author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. THOMAS W. JENSEN
    (AC 29035)
    Flynn, C. J., and Gruendel and Harper, Js.
    Argued May 22
    officially released August 5, 2008

      Gregory A. Thompson, for the appellant (defendant).

      Elizabeth A. Colombo, certified legal intern, with whom were Bruce R. Lockwood, assistant state’s attorney, and, on the brief, Scott J. Murphy, state’s attorney, and Christian M. Watson, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Thomas W. Jensen, appeals from the judgment of conviction rendered following his conditional plea of nolo contendere to operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. The plea followed the trial court’s denial of the defendant’s motion to suppress. On appeal, the defendant claims that the court improperly denied the motion to suppress the evidence that had been obtained following the investigative or Terry stop of his motor vehicle because the police officers did not possess a reasonable and articulable suspicion of criminal activity to justify the stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). We disagree and affirm the judgment of the trial court.

On March 5, 2007, the defendant filed a motion to suppress all evidence that had been obtained pursuant to the stop of his motor vehicle. The court conducted an evidentiary hearing on the motion to suppress on May 10 and 16, 2007. At the suppression hearing, the state presented the testimony of Janet Thayer. Thayer testified to the following facts. At approximately 10:30 p.m. on July 16, 2006, Thayer and her husband were traveling on Meriden Waterbury Turnpike in Southington when they observed a dark colored sport utility vehicle driven by the defendant. After determining that the defendant was not driving well, Thayer and her husband, who were driving in their own vehicle, decided to follow the defendant.

As they traveled behind the defendant, Thayer and her husband observed the defendant’s vehicle repeatedly swerve and cross the yellow line. Thayer, concerned for the safety of other people and for the defendant, contacted 911 using her cellular telephone. Thayer informed the Southington police department dispatcher that she and her husband were following a vehicle that was being driven erratically and provided a description of the defendant’s sport utility vehicle, including its make, model and license plate number. While on the telephone with the dispatcher, Thayer continued to observe the defendant weave in and out of the travel lane. At one point, the defendant entered a parking lot adjacent to the Marion post office and then exited the parking lot, traveling on Meriden Waterbury Turnpike in the direction opposite from which he had been driving. Thayer and her husband turned around and followed the defendant. Thayer also saw the defendant swerve into another lane and almost collide with another motor vehicle. Upon arriving at the scene, police officers confirmed the identification of the motor vehicle with Thayer and her husband and then informed Thayer and her husband that they could leave.

The state also presented the testimony of. Officers Scott Wojenski and James Armack of the Southington police department, who were on patrol duty together in Wojenski’s police cruiser during the evening hours of July 16, 2006, in the vicinity of Meriden Waterbury Turnpike. Wojenski and Armack testified that at approximately 10:30 p.m., they received a transmission from the police department dispatcher, indicating that a citizen had reported an erratic driver on Meriden Waterbury Turnpike. The dispatcher also provided the police officers with a description of the motor vehicle, including the vehicle’s make, model and license plate number. After receiving updates from the dispatcher regarding the location of the vehicle, the police officers came upon the defendant’s vehicle, which fit the description of the vehicle that they had received, at the intersection of Meriden Waterbury Turnpike and the entrance ramp for Interstate 84. Armack stated that he initially noticed the defendant’s vehicle stopped at a green traffic signal. Both officers also observed the defendant’s vehicle driving very slowly through the green traffic signal. According to Wojenski and Armack, the defendant was traveling fifteen miles per hour in a speed zone of forty miles per hour. Before activating the emergency signals on the police cruiser, the police officers noticed a motor vehicle being driven behind the defendant’s vehicle, and Armack testified that a woman from that other vehicle was pointing in the direction of the defendant. The police officers then stopped the defendant’s vehicle. Wojenski testified that the sole basis for the stop of the defendant’s vehicle was the information from the citizen’s complaint. Armack testified that he and Wojenski “more or less pulled [the defendant’s] vehicle over due to the fact that it matched all the descriptions that dispatch gave [to them]” but he also noted that the defendant was driving very slowly.

On June 8, 2007, the court issued a memorandum of decision, denying the defendant’s motion to suppress. The court found that at the time of the stop, the police officers knew from the complaint of Thayer, an identifiable citizen informant, that the defendant had been driving erratically. In addition, the court found that the police officers personally observed the vehicle, which had been described to them in the citizen complaint, “driving slowly, if not stopping, at a green light and driving fifteen miles per hour in a forty mile per hour zone.” The court therefore concluded that “the information that the defendant was driving erratically, when combined with the police officers’ own observations of the defendant driving in an unusually slow manner, gave the police at least reasonable suspicion to believe that the defendant was driving under the influence of alcohol.”

After the court denied the motion to suppress, the defendant entered a conditional plea of nolo contendere, which the court accepted. The court subsequently sentenced the defendant to six months incarceration, execution suspended after forty-eight hours, and eighteen months of probation with conditions. This appeal followed.

On appeal, the defendant claims that the court improperly denied his motion to suppress and challenges the court’s factual findings as well as its legal conclusions. We are not persuaded by the defendant’s arguments.

“[0]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling] . . . .” (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 654, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007).

“When considering the validity of a Terry stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Citations omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 503, 838 A.2d 981 (2004).

“The determination of whether a reasonable and articulable suspicion exists rests on a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” (Internal quotation marks omitted.) Id., 504-505.

“Under the fourth amendment to the United States constitution, and under article first, [§§ 7 and 9] . . . of the Connecticut constitution, a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime.” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 281, 764 A.2d 1251 (2001). “[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Internal quotation marks omitted.) State v. Santos, supra, 267 Conn. 505.

“Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . Whether a reasonable and articulable suspicion exists depends on the totality of the circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Torelli, 103 Conn. App. 646, 652, 931 A.2d 337 (2007).

The defendant asserts that the court improperly concluded that the police had a reasonable and articulable suspicion to justify the Terry stop. The defendant claims that the record lacks sufficient corroborative evidence to give rise to a reasonable and articulable suspicion because the police officers, who observed only slow driving on the part of the defendant, did not observe the defendant driving erratically. The defendant also claims that the court made an improper “finding that the stop was based partially on the observations of erratic driving by the officers . . . .” We disagree.

We first address the defendant’s claim that the record does not contain sufficient corroborative evidence to give rise to a reasonable and articulable suspicion. Specifically, the defendant asserts that the information that Thayer, the citizen informant, conveyed to the Southington police dispatcher was not sufficiently corroborated because the police officers did not observe firsthand any erratic driving.

“In cases in which a police stop is based on an informant’s tip, corroboration and reliability are important factors in the totality of the circumstances analysis. ‘[IJnformants do not all fall into neat categories of known or anonymous. Instead, it is useful to think of known reliability and corroboration as a sliding scale. Where the informant is known from past practice to be reliable ... no corroboration will be required to support reasonable suspicion. Where the informant is completely anonymous ... a significant amount of corroboration will be required. However, when the informant is only partially known (i.e., [informant’s] identity and reliability are not verified, but neither is [informant] completely anonymous), a lesser degree of corroboration may be sufficient to establish reasonable suspicion.’ United States v. Elmore, 482 F.3d 172, 181 (2d Cir. 2007).” (Emphasis in original.) State v. Torelli, supra, 103 Conn. App. 653. Our Supreme Court also has noted that “there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” (Internal quotation marks omitted.) State v. Hammond, 257 Conn. 610, 617, 778 A.2d 108 (2001).

In this case, Thayer remained on the telephone with the dispatcher while continuing to follow the defendant and, when the responding police officers arrived, gestured toward the defendant’s vehicle. The court found that Thayer was an identifiable citizen informant. Accordingly, when, as here, “an informant provides sufficient information so that he may be located and held accountable for providing false information, the officer is justified in assuming the caller is being truthful in so identifying himself. . . . [C]itizen informers are presumptively reliable if they are identifiable.” (Citations omitted; internal quotation marks omitted.) State v. Bolanos, 58 Conn. App. 365, 369, 753 A.2d 943 (2000).

With respect to the defendant’s contention that information supplied by Thayer was not sufficiently corroborated, our resolution of that claim is guided by this court’s decision in State v. Torelli, supra, 103 Conn. App. 652. In Torelli, a citizen informant reported an erratic driver to the Branford police department, and, while on the telephone with the police department, the citizen informant followed the defendant in his own vehicle. Id., 649, 656. The citizen informant provided the police dispatcher with the location and direction of travel of the driver as well as the make, model and color of the vehicle. Id., 649. The dispatcher conveyed this information to the responding police officer, who, after corroborating the informant’s report, stopped the vehicle. Id. The responding officer, however, never observed any erratic driving. Id., 657. In concluding that a reasonable and articulable suspicion existed to justify the Terry stop, this court stated that the responding officer reasonably could have inferred that the informant was sufficiently identifiable to be reliable and that “the information that [the responding police officer] obtained from the dispatcher was sufficiently corroborated to provide a reliable basis for stopping the [vehicle]. Although information about the make, model and color of the [vehicle] was in itself innocuous, the car’s location corroborated the informant’s report.” Id., 656. The Torelli court also declined to “assign dispositive weight to the fact that [the responding officer] did not himself observe the defendant’s erratic driving” and stated that “[b]ecause of the state’s pervasive interest in preventing drunk driving, the officer was not required to wait for erratic driving or an accident to occur before pulling over the defendant.” Id., 657.

Here, as in Torelli, Wojenski and Armack received a report of an erratic driver. Further, as in Torelli, the officers obtained information from the dispatcher pertaining to the make and model of the defendant’s vehicle, and these innocuous details about the defendant’s vehicle were corroborated by the observations of Wojenski and Armack. More importantly, through Thayer’s ongoing conversation with the dispatcher as she followed the defendant, the location and direction of travel of the defendant’s vehicle was conveyed to the police officers. As they came upon the defendant’s vehicle, the police officers observed the citizen informant pointing toward the defendant’s vehicle, which fit the description transmitted by the dispatcher. The location of the defendant’s vehicle further corroborated the report of Thayer.

In arguing that the record lacks sufficient corroborative evidence, the defendant emphasizes that the police officers themselves did not observe any erratic driving. However, as we indicated previously, this court rejected that argument in Torelli, under a factual situation similar to the one presented here. See id. We therefore are not persuaded that Wojenski and Armack were required to wait for erratic driving or an accident, potentially causing death or injury to others, before stopping the defendant. Additionally, we also note that the police officers did see the defendant driving very slowly and even stopping momentarily at a green traffic signal. Viewing the totality of the circumstances, we conclude that the information provided to Wojenski and Armack by the Southington police dispatcher was sufficiently corroborated to give the police officers the necessary level of suspicion of operating while under the influence of liquor to justify the Terry stop of the defendant.

We now turn to the defendant’s claim, as stated in his appellate brief, that the record does not support “the court’s finding that the stop was based partially on the observations of erratic driving by the officers.” The defendant, in making this argument, refers to the testimony of Wojenski, in which he indicated that the sole basis for the stop was the information that the citizen informant conveyed to the police department, and the testimony of Armack, in which he stated that they “more or less pulled” over the defendant because of the citizen informant’s report. Although we agree with the defendant that Wojenski and Armack testified at the suppression hearing that they stopped the defendant’s vehicle on the basis of the information conveyed by the citizen informant, we do not agree that the court made a finding about the police officers’ stated reasons for the stop. Rather, the court found that the police officers had observed the defendant driving his vehicle in an unusually slow manner, a finding that the defendant does not challenge and one that is supported clearly by the testimony at the suppression hearing. The court then, viewing the circumstances objectively, made a conclusion as to whether the facts it found concerning the information available to Wojenski and Armack, which consisted of the report from Thayer and the police officers’ observations of the defendant driving his vehicle slowly, if not stopping at a green traffic signal, and driving fifteen miles per hour in a forty mile per hour zone, gave rise to a reasonable and articulable suspicion to justify the stop.

More specifically, the court, in evaluating whether a reasonable and articulable suspicion existed, was not required to consider only the police officers’ stated reason for the stop. “Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . Whether a reasonable and articulable suspicion exists depends on the totality of the circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Torelli, supra, 103 Conn. App. 652; see also Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978) (“the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action”). Because the test for reasonable suspicion is an objective test, it therefore was not improper for the court to consider all of the information that was available to WojensM and Armack, including the officers’ observations of slow driving, and to conclude that “the information that the defendant was driving erratically, when combined with the police officers’ own observations of the defendant” gave rise to a reasonable and articulable suspicion that the defendant was driving while under the influence of intoxicating liquor.

We conclude that the record supports the court’s conclusion that the police officers had a reasonable and articulable suspicion to stop the defendant. The court, therefore, properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       In his statement of the issues and in the main point heading of his brief to this court, the defendant appears to argue that an informant’s report of erratic driving, which was conveyed to the responding police officers but did not contain any specific details concerning the nature of the erratic driving or the name of the informant, cannot give rise to a reasonable and articulable suspicion to justify a Terry stop. The defendant, however, did not address these claims in his brief, nor did he provide citations or analysis of case law in support thereof. “Claims that are inadequately briefed are deemed abandoned, and we are not bound to review them.” State v. Edward B., 72 Conn. App. 282, 298, 806 A.2d 64, cert. denied, 262 Conn. 910, 810 A.2d 276 (2002). Accordingly, we decline to review the claims.

       Although the defendant states in his appellate brief that the court found that the police officers had observed erratic driving, we note that the court did not make such a finding. The court found that the police officers had observed slow driving.

       We note also that Armack, immediately alter testifying that he and Wojenski “more or less” stopped the defendant on the basis of the citizen informant’s report, stated that the defendant was driving slowly.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MANUEL E. JURADO
    (AC 28552)
    DiPentima, McLachlan and Peters, Js.

      Argued May 23
    officially released August 5, 2008

      Daniel J. Foster, special public defender, with whom was Michael P. Shea, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Brian F. Kennedy, senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

The constitutional right to trial by jury guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. State v. Cubano, 203 Conn. 81, 88, 523 A.2d 495 (1987). The determination of a potential juror’s impartiality ordinarily is a decision particularly within the province of the trial judge and therefore, on appeal, is reviewable only for an abuse of discretion. State v. Esposito, 223 Conn. 299, 310-11, 613 A.2d 242 (1992). In this case, the defendant claims that the trial court deprived him of his right to trial by an impartial jury by denying his request to remove a juror who, after hearing the testimony of a police officer who was the principal complainant, testified to knowing the complainant very well and expressed doubts about his ability to adjudge the case fairly. We conclude that, under these particularly telling circumstances, the court’s refusal to remove the juror was an abuse of its discretion. Furthermore, because the juror’s belated disclosure of the relevant facts deprived the defendant of an opportunity to exercise a peremptory challenge at voir dire, we conclude that the court’s decision was prejudicial. The judgment is reversed and the case is remanded for a new trial.

The defendant, Manuel E. Jurado, was charged, tried and convicted of assault in the third degree in violation of General Statutes § 53a-61 (a) (1), assault of a peace officer in violation of General Statutes § 53a-167c (a) (1), interfering with an officer in violation of General Statutes § 53a-167a and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). These charges were based on allegations that, on May 29, 2005, the defendant had assaulted Officer Ronald Mercado of the Bridgeport police department and another Bridgeport police officer. Mercado was the final witness in the state’s presentation of its case. The jury found the defendant guilty only of the charges relating to Mercado. The trial court sentenced the defendant to a total effective term of seven years imprisonment, execution suspended after three years, followed by five years probation.

The defendant has appealed. Although he does not challenge the sufficiency of the evidence against him or the validity of the trial court’s evidentiary rulings, he argues that he is entitled to a new trial because the court improperly declined to excuse a juror who expressed doubts about his ability to adjudicate the defendant’s case fairly. Those doubts arose out of the juror’s ongoing acquaintanceship with Mercado, a relationship that the juror failed to disclose until after he had observed Mercado on the witness stand. We agree with the defendant that the juror should have been excused and an alternate juror should have taken his place.

The record discloses the following facts relating to the juror whose impartiality is at issue. At the beginning of general voir dire, the state informed the panel of venirepersons that Mercado was one of the witnesses it intended to call to testify. The court then asked the members of the venire to indicate whether they knew any of the witnesses. Venireperson C did not so indicate.

During individual voir dire of C, the following colloquy occurred:

“[Defense Counsel]: Have you ever had any interaction with police officers?
“[C]: No.
“[Defense Counsel]: Is there anything you think we should know that may affect you sitting on this particular jury?
“[C]: No.”

At the conclusion of the individual voir dire, the state and the defendant accepted C as a juror. At that time, the defendant had not exhausted his peremptory challenges.

Following Mercado’s testimony impheating the defendant in his assault, C sent a note to the court in which he stated: “Something came up, the last witness that was called, I know him from my church. I didn’t recall his name at the beginning.” The court immediately brought C forward for additional questioning outside of the presence of the other jurors. During this inquiry, C stated that he talked with Mercado “all the time” at church, that he knew Mercado “very well,” that he knew Mercado was a police officer, that he had been uncomfortable during Mercado’s testimony and that he doubted he still could be a fair juror. In response to additional questions from the court, however, C stated that he did not think his relationship with Mercado “should” or “would” affect his ability to be an impartial juror. At the conclusion of this inquiry, the defendant requested C’s removal from the jury due to bias. The trial court denied this request, stating: “[C] absolutely said it would not in any [way] affect his ability in terms of the police officer’s testimony one way or the other.”

On appeal, the defendant claims that the trial court committed reversible error by permitting a juror who was not impartial to remain on the jury, thereby depriving the defendant of his constitutional right to trial by a fair and impartial jury. The state contends that the trial court reasonably exercised its discretion in denying the defendant’s request to remove the juror and that the defendant failed to meet his burden of showing prejudice. We agree with the defendant.

Well established legal principles govern our analysis of the defendant’s claim. “[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the [Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula. . . . The trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showring of an abuse of discretion. ... In exercising this discretion the trial court must zealously protect the rights of the accused.” (Citations omitted; internal quotation marks omitted.) State v. Cubano, supra, 203 Conn. 88-89; see also Wainwright v. Witt, 469 U.S. 412, 429-30, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985); Irvin v. Dowd, 366 U.S. 717, 722-25, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).

In this case, the defendant relies on the transcript of the inquiry into C’s familiarity with Mercado to demonstrate that the court’s failure to replace C with an alternate juror was an abuse of the court’s discretion. The transcript is noteworthy in two respects. It manifests the juror’s uncertainty about his reaction to Mercado’s testimony at trial. Furthermore, it reveals the juror’s presumably inadvertent earlier lack of candor, when, at voir dire, he had denied knowing Mercado or any other police officer.

In response, the state maintains that, in light of the totality of C’s responses, the trial court reasonably could have concluded that C’s contact with Mercado would not affect C’s ability to remain impartial. The state emphasizes the role that personal observation plays in atrial court’s assessment of a juror’s demeanor.

As a preliminary observation, we note that C’s initial responses, when he twice expressed doubts whether he still could be fair, stand in marked contrast with the court’s ultimate conclusion that “[C] absolutely said it would not in any [way] affect his ability in terms of the police officer’s testimony one way or the other.” We further note that the phrasing of the court’s questions during the inquiry might well have made it difficult for C to feel it appropriate to persist in his initial misgivings. For instance, the court asked him: “I mean I know that you’re not comfortable because you know [Mercado], but are you going to lean in one direction over the other?” Tellingly, rather than responding to these questions with an unabashed “yes” or an unequivocal “no,” C answered with less than certainty, in this instance: “I don’t think I should. I don’t think I would.” C’s equivocation, the defendant maintains, at best suggests that he was unsure of his ability to judge the case impartially. We agree.

Although equivocal evidence ordinarily requires us to affirm rather than to question a trial court’s exercise of its discretion, our case law about the right to an impartial jury counsels a different course here. In State v. Esposito, supra, 223 Conn. 299, the principal case on which the defendant relies, our Supreme Court stated: “Although . . . [t]he determination as to a potential juror’s impartiality, in which demeanor plays an important part, is particularly within the province of the trial judge . . . there are limits to the deference we will afford such a judgment on appeal. . . . Because of . . . practical realities, a prospective juror’s assessment of his or her own partiality must be carefully scrutinized on appeal and considered in the context in which it was uttered.” (Citations omitted; internal quotation marks omitted.) Id., 310-11. In Esposito, a venireperson had acknowledged during voir dire that she felt uncomfortable with the defendant and that acquitting him would put her in an awkward position because she lived in the neighborhood where the charged crimes had occurred. At several other junctures during the voir dire, the venireperson had, however, assured defense counsel that she could be completely fair and objective. Id., 308. Relying on these assurances of evenhandedness, the trial court had overruled the defendant’s challenge to excuse the venireperson for cause. On appeal, our Supreme Court reversed. It concluded that the trial court’s ruling was an abuse of its discretion because the personal nature of the juror’s interest in the trial’s outcome and her discomfort with the defendant “raise [d] a conclusive presumption of bias.” Id., 310.

We find Esposito a compelling precedent in this case. Perhaps because the similarities are so striking, the state has not tried to distinguish it. In both cases, a juror disclosed personal experiences that presented a strong probability of coloring the juror’s evaluation of the evidence at trial. In Esposito, the juror was being asked to set aside her feelings about her comfort level in her neighborhood. In this case, the juror was asked to set aside his feelings about his comfort level in his church. Indeed, the court here recognized that to be the issue when it asked C whether he would “be able to face [Mercado] at church and hold [his] head high no matter what you do.” C’s less than unequivocal response of “I should,” was no more dispositive than less guarded assurances by the venireperson in Esposito.

Moreover, as in Esposito, the trial court also should have given greater consideration to C’s repeated statements that, as a juror, he was uncomfortable while Mercado testified. As the defendant correctly notes in his brief on appeal, whereas the trial court explained that it was denying the request to excuse the juror “because the mere fact [that] he was a little uncomfortable is not enough for me to excuse him,” the transcript reveals that C, in fact, never said that he was only “a little” uncomfortable. Rather, C stated that he knew Mercado “very well” from his church, that he talked to him “all the time,” that he “wasn’t feeling comfortable” during Mercado’s testimony and, most importantly, that he did not think that he could still be fair. Under these particularly telling circumstances, removing C was the only course that was open to the court. We conclude, therefore, that the court’s refusal to remove C from the jury and replace him with an alternate was an abuse of its discretion.

To prevail in this appeal, however, it is not enough for the defendant to demonstrate that the trial court abused its discretion in declining to remove C from the jury. He also must demonstrate that the court’s decision was so prejudicial as to entitle him to a new trial.

We turn again to State v. Esposito, supra, 223 Conn. 299, in which our Supreme Court underscored the constitutional role of peremptory challenges in our law. “The Connecticut constitution guarantees a criminal defendant the right to exercise peremptory challenges in the selection of his jury. Conn. Const., art. I, § 19, as amended by art. IV of the amendments to the constitution; see also General Statutes §§ 54-82g and 54-82h.” State v. Esposito, supra, 313. Accordingly, the court concluded, in Esposito, that failure to excuse a juror for cause was reversible error because it had forced the defendant to use one of his limited number of peremptory challenges. Id.

“The purpose of voir dire is to facilitate [the] intelligent exercise of peremptory challenges and to help uncover factors that would dictate disqualification for cause.” (Internal quotation marks omitted.) State v. Griffin, 251 Conn. 671, 699, 741 A.2d 913 (1999). In this case, had C disclosed originally that he regularly encountered Mercado at church and that he knew Mercado to be a police officer, it would have been entirely reasonable for the defendant to have asked the trial court to excuse this juror for cause. At the very least, timely knowledge of these facts would have afforded the defendant an opportunity to exercise his constitutional right to a peremptory challenge. The record of the voir dire demonstrates that the defendant had used only three of his peremptory challenges prior to his individual voir dire of C.

Due to the tardy disclosure of this valuable information, however, the possibility of exercising a peremptory challenge was no longer available to the defendant. We have no reason to doubt C’s representation that, at voir dire, he had not recognized Mercado’s name and had not recalled that his fellow churchgoer was a police officer. Nonetheless, the result of his nondisclosures was to deprive the defendant of his constitutional right to exercise a peremptory challenge to remove a possibly biased juror from the jury panel. As in State v. Esposito, supra, 223 Conn. 313, under these circumstances, we must presume prejudice and order a new trial.

The judgment of conviction is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       We decline to identify the juror by name to protect the juror’s right to privacy. See State v. Dorans, 261 Conn. 730, 749 n.23, 806 A.2d 1033 (2002).

       Practice Book § 42-12 provides in relevant part: “Each party shall have the right to examine, personally or by counsel, each juror outside the presence of other prospective jurors as to qualifications to sit as a juror in the action, or as to interest, if any, in the subject matter of the action, or as to relations with the parties thereto. If the judicial authority before whom such examination is held is of the opinion from such examination that any juror would be unable to render a fair and impartial verdict, such juror shall be excused by the judicial authority from any further service upon the panel, or in such action, as the judicial authority determines. ...” See also Conn. Const., art. I, § 19; General Statutes § 54-82f; State v. Griffin, 251 Conn. 671, 710, 741 A.2d 913 (1999).

       The following colloquy occurred:
      “The Court: And you guys talk a lot?
      “[C]: Yes, we do. At church we do.
      “The Court: Oh—and based on that, you don’t think you could be fair?
      “[C]: I don’t think I would—like I said, I wasn’t feeling comfortable. When he was testifying, I wasn’t feeling comfortable looking at him.
      “The Court: Okay. Because you know who he was and—
      “[C]: Yes.
      “The Court: Are you going to tend to believe him more now that you know him from church?
      “[C]: Not really, but I just don’t feel comfortable.

        “The Court: Well, uncomfortable, that’s an interesting—so, you’re not really going to—it’s not going to affect your ability to be a juror in this case.
      “[C]: I just wanted to let you know.
      “The Court: I mean, I know that you’re not comfortable because you know him, but are you going to lean in one direction over the other?
      “[C]: I don’t think I should. I don’t think I would. I don’t think I would. . . .
      “The Court: Well let’s follow up on this, because just not being comfortable is one thing. And even if you have to render a verdict and I don’t know which way it’s going to go, of course, are you going to be able to face him at church, and hold your head high no matter what you do?
      “[C]: I should. I should.
      “The Court: You don’t particularly like to sit on a case because you know him from church, but that’s about it?
      “[C]: Right. That’s it. That’s it.
      “The Court: Do you still want to continue being a juror in this case?
      “[C]: Yes, I would.”

       The record of the voir dire discloses that the trial court sua sponte excused a venireperson who admitted that he was friends with some police officers in Bridgeport, although he had not recognized any of the names of the officers announced as state’s witnesses. The venireperson mused that he might more readily believe a police officer’s testimony, but then he stated that he would “try real hard” to follow the court’s instructions not to bring any preconceived notions into deliberation. At this point, the court, exercising its discretion, excused the venireperson, telling him: “All right. It’s going to be a problem, you know police officers. ... So, I’ll excuse you.”

       We do not decide whether the nature of the relationship between the juror and Mercado, in and of itself, required dismissal. Although we note that the American Bar Association has expressed a policy preference for the dismissal of potential jurors who have a personal or social relationship with a witness because such jurors “may be biased, or give the appearance of bias”; A.B.A., Standards for Criminal Justice: Discovery and Trial by Jury (3d Ed. 1996) standard 15-2.5, p. 160; in Connecticut, neither statute nor case law requires that such a relationship result in automatic dismissal for implied bias. “This court does not choose to create a set of unreasonably constricting presumptions that jurors be excused for cause due to certain occupational or other special relationships which might bear directly or indirectly on the circumstances of a given case . . . .” State v. Clark, 164 Conn. 224, 228, 319 A.2d 398 (1973).

       Two of these three venirepersons had relatives who had been police officers, and the third indicated that she might assign more credibility to a police officer’s testimony.


author: BEACH, J.

text:
    ANTWAIN HERNANDEZ ET AL. v. JANET DAWSON ET AL.
    (AC 28842)
    Lavine, Beach and Hennessy, Js.
    Argued May 21
    officially released August 12, 2008

      Brian M. Gildea, for the appellant (named defendant).

      John A. Cirello, for the appellees (plaintiffs).
   Opinion

BEACH, J.

In this personal injury action, the defendant Janet Dawson appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff Antwain Hernandez. On appeal, the defendant claims that the court’s findings that her negligence was the proximate cause of the plaintiffs injury and that the plaintiff was not comparatively negligent were clearly erroneous. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The defendant’s property is located in an area where children in their early teens congregate and play. On September 8, 2005, the plaintiff, who was a teenager, received a severe laceration on the left side of his nose, which resulted in permanent scarring, as a result of his face coming in contact with a fence post on the defendant’s property. The portion of the fence on which the plaintiff fell was in total disrepair. The rounded cap of the fence post was missing, leaving exposed a bare pipe with sharp top edges. The fence post borders a sidewalk, is unpainted and would be difficult to see except in daylight. At the time of the incident, the premises were dark with no lights coming from the house.

By amended complaint dated September 27, 2006, the plaintiff sought to recover damages for injuries and permanent disfigurement sustained when his face struck the steel fence post on the defendant’s property. In her answer, the defendant denied the allegations of negligence. The defendant further pleaded, as a special defense, that the plaintiffs injuries were due to his negligence.

The matter was tried to the court. On April 11, 2007, the court issued a memorandum of decision in which it found in favor of the plaintiff. The court concluded that the defendant’s negligence in maintaining the fence post was the proximate cause of the plaintiffs injury. The court awarded the plaintiff $2809.04 in economic damages and $37,500 in noneconomic damages. This appeal followed.

I

The defendant claims that there is no evidence in the record to support the court’s finding that her negligence was the proximate cause of the plaintiffs injury. Rather, the defendant contends that the plaintiffs actions were the proximate cause of his injury and that the court improperly failed to find that the plaintiff was more than 50 percent comparatively negligent. We disagree.

We first set forth our standards of review. “Proximate cause is ordinarily a question of fact. ... To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . .” (Citation omitted; internal quotation marks omitted.) Gurguis v. Frankel, 93 Conn. App. 162, 168, 888 A.2d 1083, cert. denied, 277 Conn. 916, 895 A.2d 789 (2006).

“Contributory negligence is a question of fact to be determined by the trier from all the circumstances. The burden of proof is on the defendant. Where the trier concludes that one is free from contributory negligence, that conclusion must stand unless the conduct involved is manifestly contrary to that of the reasonably prudent . . . [person], . . . When the actor is a child, the conduct of that child is to be measured by that which may reasonably be expected of children of similar age, judgment and experience.” (Citations omitted; internal quotation marks omitted.) Clennon v. Hometown Buffet, Inc., 84 Conn. App. 182, 188-89, 852 A.2d 836 (2004).

The following additional facts are relevant to our resolution of the defendant’s claim. The court noted that the plaintiffs version of the incident differs from that of the defendant. The plaintiff testified that as he was leaving the defendant’s premises, he was struck in the back of the head by a “fuzz ball,” thereby causing him to turn around quickly. As he was turning around to see who threw the “fuzz ball,” his face struck the fence post causing a laceration to his face. Ann Hotchkiss, a witness for the defendant, testified that she witnessed the incident. She testified that the plaintiff, while playing with other children, either tripped over or jumped off his bike and fell into the fence post. She further testified that the plaintiff was acting like a typical teenager and that she had children of her own who were once that age.

We cannot say that the court’s finding that the defendant’s negligence in maintaining the fence post was the proximate cause of the plaintiffs injury was clearly erroneous. Photographs entered as full exhibits depict the fence post without a cap and with exposed sharp edges. There was testimony from Edward Rodriguez, who lived next door to where the incident took place, that the fence had been in that condition for approximately one year prior to the incident. Rodriguez and Francisco Moll, both of whom were socializing with the plaintiff on the night of the incident, testified that the premises were dark with no lights coming from the street or from the house. The court found that under either the plaintiffs or the defendant’s theory of events, it was the contact with the raw metal top of the fence post that lacerated the plaintiffs face.

The court also found that under either theory, the plaintiff was not comparatively negligent. According to the plaintiffs theory, he was struck from behind by a “fuzz ball.” The court found that there was no act on the part of the plaintiff that could be seen as negligent, particularly because it was dark. With respect to the defendant’s theoiy of contributory negligence, the court found that the plaintiff could not have seen the hazardous fence post before it was too late. We cannot say that the court’s findings that the defendant’s negligence was the proximate cause of the plaintiffs injury and that the plaintiff was not comparatively negligent were clearly erroneous.

II

The plaintiff claims in his brief that the defendant’s appeal is frivolous. He argues, therefore, that under Practice Book § 85-2, he is entitled to receive attorney’s fees and costs incurred as a result of her appeal. Practice Book § 85-2 provides in relevant part: “Actions which may result in the imposition of sanctions include, but are not limited to, the following ... (5) Presentation of a frivolous appeal or frivolous issues on appeal. . . . Offenders will be subject, at the discretion of the court, to appropriate discipline, including . . . costs and payment of expenses, together with attorney’s fees to the opposing party. ...” “Sanctions may be imposed by the court, on its own motion, or on motion by any party to the appeal. . . .” (Emphasis added.) Practice Book § 85-3. We decline to consider this issue because the plaintiff failed to raise this claim in a motion for sanctions. See Main v. Main, 17 Conn. App. 670, 676-77, 555 A.2d 997 (declining to review appellant’s claim for attorney’s fees based on alleged frivolity of appeal when claim not raised in motion for sanctions), cert. denied, 211 Conn. 809, 559 A.2d 1142 (1989); see also Practice Book § 85-3.

The judgment is affirmed.

In this opinion the other judges concurred.

       Apple Management, LLC, was also a defendant in this matter. Only Dawson filed an appeal in this case, and, therefore, we will use the term defendant to refer to her only.

       Hernandez by and through his father and next best friend, Pedro Hernandez, and Pedro Hernandez, individually, brought the complaint in this matter. Pedro Hernandez, individually, sought to recover medical expenses incurred as a result of his son’s ipjuries. The court dismissed the counts of the plaintiffs’ complaint that Pedro Hernandez brought individually. Therefore, we will use the term plaintiff to refer to Antwain Hernandez only.

       In count one, Antwain Hernandez, acting through his father, asserted a negligence claim against the defendant. In count two, Pedro Hernandez, on his own behalf, sought to recover from the defendant medical expenses that he allegedly incurred or will incur for the treatment of his son’s injuries. In count three, Antwain Hernandez, acting through his father, asserted a negligence claim against Apple Management, LLC, which the plaintiffs alleged controlled, possessed, managed or maintained the defendant’s property, including the yard and fence post that caused the injuries. In count four, Pedro Hernandez, on his own behalf, sought to recover from Apple Management, LLC, medical expenses that he allegedly incurred or will incur for the treatment of his son’s injuries. On April 11, 2007, the court dismissed counts two and four.