text:
    Fred Roraback v. Planning and Zoning Commission of the Town of East Haddam et al.
    (11914)
    Dupont, C. J., Lavery and Freedman, Js.

      Argued June 10
    decision released August 10, 1993

      W. Wilson Keithline, for the appellant (defendant Dolores P. Dworak).

      Frederick W. Odell, for the appellee (plaintiff).

      Mark K. Branse, for the named defendant.
   Freedman, J.

The defendant Dolores P. Dworak appeals from the decision of the trial court sustaining the appeal of the plaintiff and reversing a decision of the defendant East Haddam planning and zoning commission (commission) which approved her application for site plan review. Dworak claims that the trial court improperly concluded that her application failed to meet the requirements of the applicable zoning regulations. We agree and reverse the judgment of the trial court.

Dworak applied to the East Haddam planning and zoning commission for site plan approval to build a single-family house on a nonconforming parcel of land in East Haddam. After several public hearings and consideration of numerous exhibits, the commission approved the application with stipulations not relevant to this appeal. The plaintiff, who owns land that abuts the subject property, appealed from the commission’s decision to the Superior Court. The trial court sustained the appeal, concluding that the commission improperly-approved the application because Dworak (1) failed to submit either a variance or a finding from the zoning enforcement officer regarding her nonconforming lot, as required by § 14A.4.B of the East Haddam zoning regulations, and (2) failed to submit a written report of the town sanitarian, as required by § 14A.2.B.2 of the zoning regulations. After we granted Dworak’s petition for certification to appeal, this appeal followed.

“In ruling upon a site plan application, the planning commission acts in its ministerial capacity, rather than its quasi-judicial or legislative capacity. It is given no independent discretion beyond determining whether the plan complies with the applicable regulations. Kosinski v. Lawlor, [177 Conn. 420, 426-27, 418 A.2d 66 (1979)]. The board is under a mandate to apply the requirements of the regulations as written. Tf the plan submitted conforms to these regulations, the council has no discretion or choice but to approve it.’ RK Development Corporation v. Norwalk, 156 Conn. 369, 375-76, 242 A.2d 781 (1968); Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674-75, 236 A.2d 917 (1967).” Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984). While a commission “has limited discretion when acting in an administrative capacity . . . it does have discretion to resolve debatable questions of fact, and on appeal the issue is whether the agency’s decision on factual questions is reasonably supported by the record, in which case the court should not substitute its judgment for that of the commission.” R. Fuller, Land Use Law and Practice § 33.3, p. 568; Westport v. Norwalk, 167 Conn. 151, 161, 355 A.2d 25 (1974). We now turn to an examination of the trial court’s conclusion that Dworak’s site plan application failed to conform to the East Haddam zoning regulations in two respects.

I

The trial court first concluded that Dworak’s site plan application did not contain the necessary documentation required for a nonconforming lot. It is undisputed that, due to its small size, the Dworak property is a nonconforming lot. Section 8.1.2 of the East Haddam zoning regulations provides in pertinent part that “[t]he construction of a permitted building or structure . . . on a non-conforming lot or parcel may be allowed by the Commission, following Site Plan Approval in accordance with Section 14A of these regulations . . . .” With respect to any nonconformity, § 14A.4.B requires that “the Zoning Enforcement Officer [issue] a finding that the nonconformance is a legal, preexisting nonconformity in accordance with Section 8 of these Regulations.”

A

Dworak first posits, in her brief, that “[t]he requirement in Section 14A.4.B for a variance or a finding of pre-existing nonconformity makes sense except in the case of a Section 8.1.2 application, where the sole basis of the application is that the subject lot is nonconforming.” (Emphasis in original.) Dworak therefore argues that because § 8 expressly permits construction on a nonconforming lot, the provisions of § 14A regarding nonconformity with the zoning regulations do not apply to her site plan application. We disagree.

A zoning regulation “must be interpreted in light of our ordinary rule that '[w]here the language of the statute is clear and unambiguous, the courts cannot, by construction, read into statutes provisions which are not clearly stated.’ Point O’ Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979). ‘A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words employed are to be interpreted in their natural and usual meaning.’ (Citations omitted.) Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511, 264 A.2d 552 (1969).” Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193-94, 479 A.2d 808 (1984); Weigel v. Planning & Zoning Commission, 160 Conn. 239, 246, 278 A.2d 766 (1971). While § 8.1.2 does permit the construction of a building on a nonconforming lot, it expressly allows such construction foHoming site plan approval in accordance with § 14A. The plain and unambiguous language of § 8.1.2, which applies only to nonconforming lots, requires compliance with the provisions of § 14A, which necessarily includes § 14A.4.B. Dworak’s interpretation of § 8.1.2 would require us to ignore its reference to § 14A and would require us to read into that regulation an exception that is not clearly stated. This we cannot do. Point O’ Woods Assn., Inc. v. Zoning Board of Appeals, supra, 365-66.

B

Dworak further argues that the trial court improperly concluded that her site plan application did not meet the requirement of § 14A.4.B. We agree.

Several times during the public hearings on Dworak’s application, the issue of the nonconforming status of the lot was discussed by witnesses, the zoning enforcement officer and members of the commission. A member of the public questioned whether Dworak could properly claim that her lot was a legal, preexisting nonconformity under the local zoning regulations. The commission then expressed interest in receiving an opinion on the issue from its attorney, Mark K. Branse. At the next hearing on the Dworak application, the zoning enforcement officer read into evidence and submitted a copy of Branse’s letter on the subject. That letter con-eluded that the concerns raised at the prior hearings were unfounded. Additionally, immediately prior to the commission’s vote on the application, the zoning enforcement officer informed the commission that Dworak’s site plan “meets all the zoning requirements.” Under these circumstances, the trial court improperly concluded that the zoning enforcement officer had not “issued a finding that the nonconformance is a legal, pre-existing nonconformity,” as required by § 14A.4.B.

II

The trial court also concluded that the commission’s decision was illegal, arbitrary and an abuse of discretion because the commission did not have before it a report from the town sanitarian. Section 14A.2.B.2 of the East Haddam zoning regulations specifies additional requirements for site plans where “the existing soils in the immediate area of the site designated for sanitary waste disposal are classified as having ‘severe’ limitations for on-site sewerage treatment,” as defined elsewhere in the regulations. There is no dispute that this provision applies to Dworak’s application for site plan approval. Among the additional subsurface sewerage disposal plan requirements set forth in § 14A.2.B.2 is a requirement that the plan “shall be accompanied by a written report of the Town Sanitarian or his representative certifying that the plan will resolve the limitations of the soils, and will pose no significant risk to the public health or safety.”

The regulation in issue requires a report but does not specify the precise form of the written report from the town sanitarian. Here, the town sanitarian indicated his approval of the proposed site plan by writing “this design is approved” on the plan. In addition, the commission had before it a copy of a February 8, 1991 report from Robert W. Scully, a supervising environmental sanitarian in the on-site sewage disposal section of the Connecticut department of health services. The department of health services is the ultimate arbiter of septic system compliance, authorized to review proposed sewerage disposal plans. See generally General Statutes § 19a-36; Regs., Conn. State Agencies § 19-13-B103e. Scully’s report was addressed to the town sanitarian and contained a review of the site plan’s sewerage disposal plan. In that report, Scully recommended “approval” of the plan and commented that the plan was “very thorough.” That report contrasted sharply with Scully’s October 9,1990 report on a prior site plan for the Dworak property, in which Scully recommended denial of the plan and noted several deficiencies in the proposed sewerage disposal plans that needed to be addressed. The prior site plan and Scully’s report on that plan were both before the commission when it considered Dworak’s second application for site plan approval. Under these circumstances, we conclude that Dworak’s site plan application was accompanied by what for all intents and purposes amounted to “a written report of the Town Sanitarian or his representative certifying that the plan will resolve the limitations of the soils, and will pose no significant risk to the public health or safety,” as required by § 14A.2.B.2.

The judgment is reversed and the case is remanded to the trial court with direction to dismiss the plaintiffs appeal.

In this opinion the other judges concurred.

       Section 14A.4.B of the East Haddam zoning regulations provides: “The application shall conform in all respects with these Regulations, unless a certified copy of a variance from any such provision is submitted with the application, or the Zoning Enforcement Officer has issued a finding that the nonconformance is a legal, pre-existing nonconformity in accordance with Section 8 of these Regulations. Further, the application shall conform to the East Haddam Subdivision Regulations; the East Haddam Inland Wetlands and Watercourses Regulations, as evidenced by the submission of an Inland Wetlands Permit issued by the East Haddam Inland Wetlands and Watercourses Commission; the Public Health Code, as evidenced by a report of the Health Director [or] his authorized designee; and all relevant provisions of the Connecticut General Statutes, whether or not cited in these Regulations.” (Emphasis added.)

       Section 14A.2.B.2 of the East Haddam zoning regulations provides: “If any existing soils in the immediate area of the site designated for sanitary waste disposal are classified as having ‘severe’ limitations for on-site sewerage treatment (as set forth in Section 4.3 (1) (a) the East Haddam Subdivision Regulations), in accordance with the current soils map of the U.S. Department of Agriculture, Soil Conservation Service, then a subsurface sewerage disposal plan shall be presented to the Commission. Said plan shall specifically address the methods utilized to overcome the limitations identified in the soils of the site; shall be prepared by a licensed Connecticut Professional Engineer, and shall be accompanied by a written report of the Town Sanitarian or his representative certifying that the plan will resolve the limitations of the soils, and will pose no significant risk to the public health or safety. All sanitary waste disposal systems to be located in the immediate area of soils with ‘severe’ limitations, as set forth above, shall have 100% replacement leaching fields at least equal in size to the original leaching fields, and the location of both the original and replacement leaching fields shall be designated on the site plan. Both the original and replacement fields shall be located so as to contain the percolation and deep test pits.” (Emphasis added.)

       Because we conclude that the trial court improperly concluded that Dworak’s site plan application failed to conform to the East Haddam zoning regulations, we need not consider Dworak’s third claim on appeal, namely, that “[i]t is not illegal, arbitrary, or an abuse of the Commission’s discretion for the Planning and Zoning Commission to overlook a procedural irregularity that was not raised as an issue during the hearings provided the Commission acts in reasonable compliance with the substance and spirit of the Regulations and in so doing does not prejudice any party.”

       This language was read into the record by the zoning enforcement officer at two hearings before the commission. The zoning enforcement officer was apparently reading the sanitarian’s written approval from the site plan. The copy of the site plan in the return of the record, however, contains no such inscription by the town sanitarian. Neither party points this out, and the trial court seems to have addressed this claim under the assumption that the sanitarian did write his approval on the site plan. We will therefore address this issue on the theory on which it was tried and decided in the trial court. See State v. Ortiz, 29 Conn. App. 825, 840 n.8, 618 A.2d 547 (1993); Feng v. Dart Hill Realty, Inc., 26 Conn. App. 380, 385, 601 A.2d 547, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992); Trivalent Realty Co. v. Westport, 2 Conn. App. 213, 215 n.4, 477 A.2d 140, cert. dismissed, 194 Conn. 806, 482 A.2d 712 (1984).


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Frank Wager
    (10962)
    Dupont, C. J., Daly and Lavery, Js.
    Argued June 2
    decision released August 10, 1993

      Christine Perra, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment following his convictions, after a jury trial, of robbery in the first degree, conspiracy to commit robbery in the first degree, and larceny in the third degree. The defendant claims that (1) the trial court improperly failed to strike a witness’ trial testimony although the witness’ prior taped statement had been destroyed by the police, (2) the trial court improperly allowed into evidence a transcription of the witness’ taped statement, and (3) the evidence offered at trial was insufficient to support his convictions. We affirm the judgment of the trial court.

. The jury could reasonably have found certain facts. On June 21,1988, a lone male entered and robbed People’s Bank in West Haven by displaying a gun and demanding cash from a teller. A video surveillance camera recorded the male who was later identified as Leroy Jones. The next day, in a statement to the police that was tape-recorded, Jones acknowledged responsibility for the robbery. He also stated that he had planned the robbery with the defendant. According to Jones, the defendant gave him advice on how to commit the robbery, gave him the gun used in the robbery, and planned to enter the bank with him. Each was to rob a different teller. They met prior to the robbery, but only Jones entered the bank. After fleeing the scene of the robbery, Jones and the defendant met and the defendant received $500 from Jones.

Jones’ taped statement was transcribed within several days of its making. The detective who interviewed Jones listened to the tape of Jones’ interview, and then reviewed the written transcription but did not directly compare the tape and transcription. Jones did not review the transcription of his statement at that time, but Jones did have a copy of the transcription at his trial for robbery. At the sentencing of Jones on May 31, 1989, the trial court ordered the destruction of the tape recording of Jones’ statement. The police did not arrest the defendant until one year later on July 16, 1990, although a warrant for his arrest was pending at the time the court ordered the destruction. The detective who destroyed the tape pursuant to the court order did not question the court order or consult with his superiors before destroying the tape even though he knew the defendant was involved in the robbery. The detective claimed that he assumed that Jones and the defendant were tried together, but he did not know the resolution of the defendant’s case or if the defendant had been arrested. In keeping with his usual practice, the detective followed the court order and destroyed the tape on June 6,1989, without checking on the status of the defendant’s case.

At the defendant’s trial, the trial court admitted the transcription of Jones’ taped statement into evidence over the defendant’s objection and refused the defendant’s request to strike Jones’ live testimony. As a state’s witness, Jones testified out of the presence of the jury that the transcription was an accurate copy of the taped statement he had made to the police in 1988, and that it contained the same words he had used then. He testified to the same effect in front of the jury. Jones had signed the transcription and sworn to its accuracy about a week before the defendant’s trial, which was about three years after Jones had made the statement. Jones also testified out of the presence of the jury that he was under the influence of cocaine at the time of the statement, which he claimed may have affected his ability to remember exactly what he had said to the police. He testified to the same effect in front of the jury. During direct examination in front of the jury, Jones recanted his taped statement, stating that the defendant was not involved in the robbery. During cross-examination, Jones stated that he made up the information about the defendant’s involvement because he hoped to receive a reduced sentence and because the police pressured him to implicate the defendant.

One witness for the state, a police officer, testified that he had seen the defendant with another male on the day before and the day of the robbery in the area of the bank. Another witness testified that he had observed the defendant with another male walking back and forth between the bank and various shops near the bank on the morning before the robbery. The two witnesses identified the other male as Jones from the bank’s videotape of the crime. The detective who was present when Jones’ statement was taped testified that in his opinion Jones was not under the influence of narcotics at the time of the statement.

I

The defendant first claims that he was prejudiced by the state’s failure to preserve the tape of Jones’ statement and by the trial court’s failure to strike Jones’ testimony. The defendant claims that the state did not meet the disclosure requirements of Practice Book § 752 because the state could not produce the tape for the defendant. According to the defendant, he was prejudiced by the nonproduction of the tape because (1) the jury could not compare Jones’ demeanor at trial with his voice at the time of the taped statement, and (2) the tape and transcription could not be compared for discrepancies. The defendant claims that Jones’ trial testimony should have been stricken pursuant to Practice Book § 755. We disagree.

The state claims that the tape of Jones’ statement is not a statement under Practice Book § 752 because the statutory disclosure scheme is designed to assist a defendant in impeaching, not bolstering, the testimony of a state’s witness. According to the state, since the defendant wants the tape in order to bolster Jones’ trial court testimony that the defendant did not help him commit the robbery, the tape is not a statement for purposes of § 752. The state argues that a statement within the meaning of § 752 must assist in impeaching a state’s witness, and the use of the statement for anything other than that limited purpose removes it from the narrow thrust of Practice Book §§ 748 through 755.

We conclude that the tape of Jones’ statement to the police is a statement for the purposes of Practice Book § 752. Section 752 requires the state to provide to the defendant any statement made by a state’s witness in possession of the state and relating to the subject matter about which the witness has testified. The definition of “statement” includes a “recording . . . which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.” Practice Book § 749. A tape recording of a witness’ statement to the police fits this definition, and our Supreme Court has indicated that such a tape is a statement. State v. Cerilli, 222 Conn. 556, 577, 610 A.2d 1130 (1992).

Whether a statement is a statement for the purposes of Practice Book § 752 must be determined at the time it is made. At the time Jones’ statement was made and destroyed, it was a statement by a state’s witness who was expected to testify against the defendant and whose testimony the defendant would be expected to attempt to impeach. As such, the state had an obligation to preserve it pursuant to Practice Book § 752.

Practice Book § 752 provides that after a witness called by the state has testified on direct examination, the state must provide the defendant with any statement of the witness in the state’s possession when the statement relates to the subject matter of the witness’ testimony. If the state does not provide a witness’ statement under this disclosure requirement, the trial court must strike the witness’ testimony or order a mistrial. Practice Book § 755. The sanction of striking a witness’ testimony is unnecessary, however, where nonproduction of the statement is harmless. State v. Williamson, 212 Conn. 6, 13, 562 A.2d 470 (1989); see State v. Cerilli, supra, 577; State v. Belle, 215 Conn. 257, 268, 576 A.2d 139 (1990); State v. Johnson, 214 Conn. 161, 168, 571 A.2d 79 (1990).

We, therefore, must decide whether the state’s failure to produce the tape required the sanction of striking the witness’ trial testimony. When the police have acted deliberately but not in bad faith in destroying a statement, a reviewing court must determine whether nonproduction was harmless by balancing the state’s culpability for the nonproduction against the resulting prejudice to the defendant. State v. Cerilli, supra; State v. Belle, supra; State v. Johnson, supra; State v. Williamson, supra, 14. The state bears the burden of establishing harmlessness. State v. Cerilli, supra; State v. Belle, supra; State v. Johnson, supra, 172; State v. Williamson, supra, 18. In this case, the state concedes that it acted deliberately in destroying the tape, while the defendant does not argue that the state acted in bad faith. In fact, since the state destroyed the tape pursuant to a court order, it would be difficult to show bad faith.

There are two possible standards of proof by which the state could establish harmlessness. If nonproduction adversely affects the defendant’s ability to cross-examine the state’s witness and thereby infringes upon the defendant’s federal sixth amendment right of confrontation, then the state must establish harmlessness beyond a reasonable doubt. State v. Cerilli, supra, 577-78; State v. Belle, supra, 269; State v. Johnson, supra, 173; State v. Williamson, supra, 20. If, however, nonproduction does not infringe upon the right of confrontation, then the state must establish only that it is more probable than not that the nonproduction was harmless. State v. Cerilli, supra, 577; State v. Belle, supra, 269-71; State v. Johnson, supra, 173-75; State v. Williamson, supra, 20-23. Generally, nonproduction “ ‘is not of constitutional dimension . . . .’ ” State v. Johnson, supra, 173; State v. Williamson, supra, 20.

In determining whether a defendant’s constitutional right of confrontation has been violated, the courts have considered whether the trial or reviewing court has access to the unproduced material, whether the witness has adopted a transcription of the statement within a short time after making the statement, and whether the defendant’s conviction rested on the testimony of the witness. State v. Belle, supra, 269-70; State v. Johnson, supra, 174; State v. Williamson, supra, 21-23.

In this case, neither the trial court nor this court have access to the destroyed tape. The witness also did not adopt the transcription of his statement within a short time after it was made. The defendant’s conviction, however, did not rest on Jones’ trial testimony since that testimony was exculpatory. The conviction could not have rested on the testimony since the defendant would have been acquitted had the jury relied on the testimony. Thus, an important factor for finding a constitutional deprivation has not been satisfied.

Furthermore, the right of confrontation relates to the cross-examination and impeachment of a witness, and involves the right of a defendant to face and cross-examine a state’s witness in court. “The primary interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); and an important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959).” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992); State v. Arline, 223 Conn. 52, 60, 612 A.2d 755 (1992).

In this case, the defendant wanted the tape in order to impeach the prior taped statement of Jones, rather than to impeach Jones’ in-court testimony. The impeachment of the prior statement is not a right contemplated by the sixth amendment because it does not directly relate to the right to cross-examine a state’s witness in court. Here, the defendant had the opportunity to cross-examine Jones and question Jones’ motivation for testifying. For instance, the defendant was allowed to ask Jones whether he was offered anything by the state or the defendant in exchange for his testimony. Although the tape was unavailable, the defendant was allowed to ask Jones about his mental and physical condition at the time of the statement, and whether he was under the influence of drugs at the time of the taped statement. The defendant also was allowed to ask Jones if his speech was slow or slurred at the time of the statement.

Therefore, we conclude that the nonproduction of the tape did not result in a constitutional violation. Without such a constitutional deprivation, the state must prove only that it is more probable than not that the nonproduction of the tape was harmless. The test for such a determination is made by balancing the state’s culpability for the nonproduction against the prejudice to the defendant due to the nonproduction. In this case, the state is only minimally culpable because it was directed to destroy the tape by court order.

The reviewing courts of this state have considered a number of factors in assessing prejudice. For instance, the courts have considered (1) whether critical inconsistencies exist between the trial testimony and the prior statements, and between the prior statements themselves; State v. Belle, supra, 271; State v. Johnson, supra, 175; State v. Williamson, supra, 24-25; (2) whether the witness adopted the transcription within a short time after the statement was made; State v. Belle, supra, 272; State v. Johnson, supra, 176; State v. Williamson, supra, 25; (3) whether the defendant had access to other impeachment sources for cross-examination; State v. Joly, 219 Conn. 234, 247-48, 593 A.2d 96 (1991); State v. Johnson, supra, 175; State v. Williamson, supra, 25-26; (4) whether the conviction rested on the witness’ testimony; State v. Joly, supra, 247; In re Jesus C., 21 Conn. App. 645, 651, 575 A.2d 1031, cert. dismissed, 216 Conn. 819, 581 A.2d 1055 (1990); State v. Sinclair, 20 Conn. App. 586, 593, 569 A.2d 551 (1990); and (5) whether a court had access to the unproduced material. State v. Williamson, supra, 22, 26; In re Jesus C., supra, 652. None of the foregoing cases listed or discussed all five of these factors. In the present case, only the first three factors need to be considered.

There are inconsistencies between the witness’ trial testimony and taped statement. On tape Jones stated that the defendant helped commit the robbery, while at trial Jones stated that the defendant was not involved. Nevertheless, this inconsistency could benefit only the defendant, as Jones’ trial testimony provided evidence that, if believed by the jury, would acquit the defendant. Furthermore, Jones never denied that he had implicated the defendant in the statement or that he had made it. Jones testified only that he was unsure of the transcription’s accuracy because of his drug use at the time of the statement. Since the witness stated that the transcription reflects what he said to the police, a significant discrepancy between the tape and transcription is unlikely.

Jones adopted the transcription by signature and by statement under oath over three years after its making. Nevertheless, the defendant was only minimally prejudiced by this lapse of time. While Jones’ memory may have faded over three years and he may have forgotten certain details regarding his taped statement to the police, it is not likely that Jones’ memory as to with whom he had conspired faded.

The defendant claims prejudice since the jury could not compare the witness’ demeanor in court to his voice on the tape. Prejudice does exist to the extent that the tape is no longer available, but, as indicated previously, the defendant was only minimally prejudiced in this regard since the trial court did not prevent the defendant from questioning the witness specifically as to his condition at the time of the taped statement. The trial court also did not prevent the defendant from questioning the officer who conducted the interrogation about Jones’ condition at the time of the statement.

We conclude that the trial court correctly refused to strike the witness’ trial testimony.

II

The defendant claims that the trial court should not have admitted the transcription as substantive evidence as well as for impeachment purposes because the transcription is not sufficiently reliable. We disagree.

A prior written inconsistent statement is admissible as substantive evidence where (1) the declarant has signed the statement, (2) the declarant has personal knowledge of the facts stated, and (3) the declarant testifies at trial and is subject to cross-examination. State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The defendant claims that while the declarant, Jones, did sign the transcription, the first requirement of Whelan has not been met because the signature was made three years after the making of the statement. According to the defendant, the declarant must sign the transcription within a short time after the statement is made in order to ensure reliability and meet the principles of Whelan.

Neither Whelan nor subsequent cases have discussed whether the declarant must sign the statement within a short time after it was made. Whether a statement is made within a short time after the crime occurred has, however, been considered in determining reliability. State v. Grant, 221 Conn. 93, 100-101, 602 A.2d 581 (1992); State v. Alvarez, 216 Conn. 301, 314, 579 A.2d 515 (1990); see State v. Buster, 224 Conn. 546, 557-58, 620 A.2d 110 (1993); State v. Whelan, supra, 750. None of these cases requires that the statement be signed at any particular time. Therefore, if there is nothing to indicate that the time when the statement is signed has an impact on reliability, there is no reason to exclude it from the Whelan rationale.

These cases have emphasized that to be admissible as substantive evidence, a prior inconsistent statement must have been made under circumstances that reasonably ensured reliability and trustworthiness. State v. Buster, supra, 556; State v. Grant, supra, 100; State v. Whelan, supra, 752; State v. Green, 16 Conn. App. 390, 396-97, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988). Whelan limits the substantive use of prior inconsistent statements to situations where “ ‘the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced.’ ” State v. Grant, supra; State v. Whelan, supra, 753.

In this case, the requirements of Whelan are met. First, Jones did eventually sign each of the nine pages of the transcription. There is no evidence or indication that Jones refused to sign the transcription at any time. Second, Jones had pertinent personal knowledge. Third, Jones testified at trial and was subject to cross-examination. Therefore, while the jury was not able to consider Jones’ demeanor as indicated by Jones’ voice during the taped statement, the jury had the opportunity to observe Jones’ demeanor and assess his credibility at trial. See State v. Alvarez, supra, 314-15; State v. Whelan, supra, 755. The jury in this case could determine whether to believe Jones’ prior taped statement, his trial testimony, or neither. See State v. Alvarez, supra, 315.

We conclude that the trial court properly admitted the transcription as substantive evidence.

Ill

We consider last whether the evidence presented at trial was sufficient to sustain the convictions of the defendant. The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993); State v. Gray, 221 Conn. 713, 719-20, 607 A.2d 391, cert. denied, U.S. , 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from them, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Baldwin, supra; State v. Gray, supra, 720; State v. Allen, supra. In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct. State v. Baldwin, supra; State v. Gray, supra; State v. Allen, supra, 380-81.

In this case, a jury reasonably could have found that the evidence established guilt beyond a reasonable doubt. The jury could reasonably have found the defendant guilty beyond a reasonable doubt on the basis of Jones’ signed, sworn statement that the defendant was involved in the robbery, and on the identification of the defendant and Jones in the area of the bank the day before and the day of the robbery.

In determining the sufficiency of the evidence, a reviewing court cannot pass on the credibility of witnesses. State v. Baldwin, supra, 367-68; State v. Robinson, 213 Conn. 243, 256, 567 A.2d 1173 (1989). Furthermore, the jury is to draw whatever inferences from the evidence or facts established by the evidence it deems reasonable and logical. State v. Stanley, 223 Conn. 674, 681, 613 A.2d 788 (1992); State v. Gray, supra, 721. The jury is not prevented from drawing inferences consistent with guilt nor is it required to draw inferences consistent only with innocence. State v. Stanley, supra; State v. Gray, supra. While it is true that Jones lied either at trial or during his taped statement, the jury was free to conclude that Jones told the truth when he implicated the defendant during his taped statement.

Therefore, we conclude that the evidence was sufficient to sustain the defendant’s convictions.

The judgment is affirmed.

In this opinion the other judges concurred.

       The arrest warrant application was prepared on June 21, 1988, prior to Jones’ statement, and was authorized on June 22,1988. Probable cause was found without considering Jones’ statement.

       Jones had signed the transcription of his statement and had sworn to its accuracy in the presence of the state’s attorney and the state’s investigator.

       The transcript reveals that the first testimony about drugs affecting Jones’ recall ability came when defense counsel, out of the presence of the jury and on cross-examination, inquired whether Jones was under the influence of drugs at the time of his statement.

       Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       Practice Book § 755 provides: “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”

       “Confrontation of witness” is defined as: “[a] constitutional right of an accused to face a witness in court so that the accused may make any objection he has to the witness, be present when the witness is examined, and have opportunity for cross examination. . . .” Ballentine’s Law Dictionary (3d Ed. 1969).

         “In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Lubesky, [195 Conn. 475, 482, 488 A.2d 1239 (1985)].” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992); State v. Arline, 223 Conn. 52, 60, 612 A.2d 755 (1992).

       The detective who was present during Jones’ taped statement testified that Jones was not asked to sign the transcription before Jones’ trial. The detective testified that, as a matter of policy, a signature generally is not sought at the time the trancription is completed.


author: Lavery, J.

text:
    In re Enrique S.

    (12197)
    Lavery, Freedman and Schaller, Js.
    Argued June 10
    decision released August 10, 1993

      Eugene J. Riccio, for the appellant (respondent).

      John H. Kearney, state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Lavery, J.

The juvenile respondent, Enrique S., appeals from the order of the Superior Court for Juvenile Matters transferring his case to the regular criminal docket on the basis of a finding of probable cause that he committed felony murder in violation of General Statutes § hZa-bAc,. The respondent claims that the court (1) improperly admitted his inculpatory statement allegedly taken in violation of General Statutes § 46b-137 (a), and (2) found probable cause for the transfer based on insufficient evidence. We affirm the judgment of the trial court.

The respondent, age fourteen, was arrested on September 23, 1992, in connection with the murder of Michael Edward Samaha in Danbury. Ten days earlier, the respondent and his father had been interviewed at Danbury police headquarters. Both were told of the purpose of the interview before the questioning began. Miranda warnings were read to the respondent in his father’s presence. The trial court found that both the respondent and his father had read and signed a Miranda waiver card presented to them. The respondent then implicated himself in the murder.

The state filed a delinquency petition in the Superior Court against the respondent, alleging the serious juvenile offense of felony murder in violation of § 53a-54c. The state then moved to transfer the respondent’s case to the regular criminal docket pursuant to General Statutes § 46b-127. At the probable cause hearing on the transfer of the respondent’s case to the regular criminal docket, the respondent moved to suppress his statement to the police alleging that it was taken in violation of General Statutes § 46b-137 (a). The trial court denied the motion to suppress and found probable cause to transfer the respondent’s case; this appeal challenges both decisions.

I

The respondent claims that the police failed to comply with General Statutes § 46b-137 (a) and, therefore, his statement should not have been admitted into evidence at the transfer hearing. The respondent contends that his having heard the Miranda warnings in the presence of his father, his having read those warnings, his having signed a waiver card and his father’s having signed the waiver card were insufficient to satisfy § 46b-137 (a). The respondent claims that, in addition, the warnings should have been read aloud twice: once to the respondent and once to his father.

Our review of a statute must comport with the well settled principles of statutory construction, the objective of which is to discern and effectuate the legislature’s apparent intent. Foti v. Richardson, 30 Conn. App. 463, 466-67, 620 A.2d 840 (1993). We look first to the plain and unambiguous language of the statute. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Where particular words or sections are themselves imprecise, we consider the provision at issue in the context of its underlying statutory scheme. Danbury v. International Assn. of Firefighters, I.A.F.F. Local 801, 221 Conn. 244, 250, 603 A.2d 393 (1992). Statutory construction requires common sense to avoid “absurd consequences or bizarre results.” State v. Siano, 216 Conn. 273, 278, 579 A.2d 79 (1990); King v. Board of Education, 203 Conn. 324, 332, 524 A.2d 1131 (1987).

The respondent’s contention that the police should have read the Miranda warnings twice is not supported by the text of the statute. Section 46b-137 (a) declares a juvenile’s statement inadmissible unless “the parent or parents or guardian and child have been advised.” The statute prescribes no specific procedure; it merely requires that information be imparted to both the child and parent or guardian. As long as the accused and the accused’s parent or guardian have heard and understood the Miranda warnings, the statute is satisfied. When the accused and parent or guardian are informed through a single reading, separate Miranda readings would be unnecessary and redundant.

The warnings required by § 46b-137 (a) are equivalent to the Miranda warnings. J. Bruckmann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook (1992 Sup.) p. 90. The purpose of the Miranda warnings is to enhance an accused’s ability to exercise fifth amendment rights knowingly, intelligently and voluntarily. State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987). Thus, the purpose of the § 46b-137 (a) warnings is to help an accused make a valid decision to speak or remain silent. See id. Provided both the accused and the accused’s parents or guardian receive that information, the purpose of § 46b-137 (a) is achieved. A blanket requirement that each party in the room receive separate Miranda notice, regardless of whether they had heard the prior reading, would not enhance the accused’s ability to exercise fifth amendment rights.

In this case, the court found that the Miranda warnings were read to the respondent and his father at the same time. Further, both the respondent and his father read the warnings on a standard waiver form. Finally, both signed the form before the respondent made his statement. In light of these facts, § 46b-137 (a) was satisfied and the respondent’s statement was properly admitted.

II

The respondent also claims that the trial court found probable cause to transfer his case to the regular criminal docket on the basis of insufficient evidence. Section 46b-127 requires, as a precondition to transfer from the docket for juvenile matters to the regular criminal docket, that the court find “that there is probable cause to believe that the child has committed the act for which he is charged.” In re Keijam T., 221 Conn. 109, 114-15, 602 A.2d 967 (1992). Probable cause exists where the government’s evidence would warrant a reasonably cautious person to believe that the accused committed the crime. Id., 115. Probable cause exceeds mere suspicion, but is substantially less than proof beyond a reasonable doubt. Id. The fine line between mere suspicion and probable cause must be drawn by judgment on the basis of all of the circumstances in the particular situation. Id., 115-16.

When reviewing a trial court’s finding of probable cause, we consider whether the trial court’s decision was clearly erroneous. Practice Book § 4061; In re Keijam T., supra, 116. When the factual basis of the court’s decision is challenged, we must determine whether the facts found by the court are supported by the whole record or whether they are clearly erroneous. Practice Book § 4061; In re Keijam T., supra; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Where factual findings are challenged, we view the evidence and the permissible inferences therefrom in the light most favorable to sustaining the trial court’s determination. In re Keijam T., supra.

In the present case, our review of the whole record satisfies us that the factual basis for the trial court’s transfer order was not clearly erroneous. The respondent admitted that he participated in the robbery of the victim, that he and others forcibly attempted to rob the victim, and that one of his accomplices fired a pistol which the respondent knew was in the accomplice’s possession. Finally, the court found that the victim died from the gunshot wound. These factual findings were sufficient to support the court’s conclusion that “there is probable cause to charge the respondent with felony murder.”

The order of transfer is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54c provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       General Statutes § 46b-137 (a) provides: “Any admission, confession or statement, written or oral, by a child shall be inadmissible in any proceeding for delinquency against the child making such admission, confession or statement unless made by such child in the presence of his parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements and (3) that any statements he makes may be introduced into evidence against him.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       General Statutes § 46b-127 provides: “The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years; (2) any child referred for the violation of any provision of title 53a which is designated as a class A felony, other than murder, if such violation was committed after such child attained the age of fourteen years, provided such child has previously been adjudicated a delinquent at any age for a violation of any provision of title 53a, which at the time of such violation was designated a class A felony; or (3) any child referred for the violation of any provision of title 53a which is designated as a class B felony, provided such violation was committed after such child attained the age of fourteen years, and further provided such child has previously been adjudicated delinquent for two violations of any provision of title 53a, which at the time of such violations were designated a class A or B felony. No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. At such hearing, the child shall have the right to counsel and to confront the witnesses against him. The procedures provided in section 54-46a shall apply at such hearing, except that the child shall have the right to move to suppress any admission made by him on the ground that it was obtained in violation of the provisions of subsection (a) of section 46b-137 and to obtain discovery of exculpatory information. An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age, except that no such child shall be placed in a correctional facility but shall be maintained in a facility for children and youth until he attains the age of sixteen years or until he is sentenced, whichever occurs first. Such child shall receive credit against any sentence imposed for time served in a juvenile facility prior to the effectuation of the transfer. A child who has been transferred may enter a guilty plea to a lesser offense if the court finds that such plea is made knowingly and voluntarily. Any child transferred to the regular criminal docket who pleads guilty to a lesser offense shall not resume his status as a juvenile regarding said offense. If the action is dismissed or nolled or if such child is found not guilty of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen years.”

       In 1990, the legislature amended General Statutes § 46b-127 to permit juvenile defendants to move to suppress any statement obtained in violation of General Statutes § 46b-137 (a). Public Acts 1990, No. 90-136, § 2. That amendment was in response to our Supreme Court’s holding in In re Ralph M., 211 Conn. 289, 315, 559 A.2d 179 (1989), that § 46b-137 (a) was inapplicable to transfer hearings. Thus, the respondent’s motion was proper.

       It should be noted that the respondent challenges only the admission of his statement at the transfer hearing under the alleged violation of General Statutes § 46b-137 (a).


text:
    Edward Falby v. Commissioner of Correction
    (11647)
    Foti, Lavery and Landau, Js.
    Argued March 29
    decision released August 10, 1993

      Karen A. Goodrow, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, for the appellee (respondent).
   Lavery, J.

The petitioner appeals from the denial of his petition for a writ of habeas corpus. He claims that the trial court improperly determined (1) that erroneous advice given by his attorney did not deprive him of effective assistance of counsel, and (2) that his attorney’s erroneous advice did not render his guilty plea involuntary and therefore invalid. We affirm the judgment of the trial court.

The relevant facts are undisputed. On June 13,1978, a nine year old girl was strangled and left to die in a stream near her home in Westport. Three days later, the petitioner was arrested and confessed to the crime. After a jury trial, the petitioner was convicted of murder under General Statutes § 53a-54a (a), and sentenced to serve a term of twenty-five years to life. That judgment was set aside, however, when our Supreme Court ruled that the trial court had improperly failed to charge on lesser included offenses. State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982).

At his second trial, the state presented largely the same case. On October 11, 1983, before offering any defense evidence, the petitioner pleaded guilty to murder under the Alford, doctrine in violation of General Statutes § 53a-54a (a). In return for his plea, the petitioner received a sentence of fifteen years to life in prison.

The petitioner appeared before the state board of parole on June 10,1986. After taking statements from the petitioner and the victim’s family, the board denied parole. Two years later, the petitioner applied for a writ of habeas corpus, challenging the validity of his five year old guilty plea.

I

The petitioner claims that his guilty plea is invalid because he lacked effective assistance of counsel. The right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution. Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). A petitioner claiming ineffective assistance of counsel must prove (1) that his attorney made errors so serious as to cease functioning as counsel, and (2) that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991), quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “The ultimate focus of inquiry must be on the fundamental fairness of the proceeding being challenged.” Phillips v. Warden, supra, 134.

“We first consider our scope of review. Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment ‘is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.’ Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). As such, that question requires plenary review by this court unfettered by the ‘clearly erroneous standard.’ Id. . . .” (Citations omitted.) Phillips v. Warden, supra, 131.

A

The petitioner’s claim of attorney error arises from the advice he received before he pleaded guilty. On October 1,1983, only ten days before his plea, General Statutes § 54-126a took effect, permitting victims or their families to appear and testify at parole board hearings. The habeas court found that the petitioner and his attorney discussed this statute during their consideration of the guilty plea. The habeas court further found that his attorney told the petitioner that the new law would not affect him. This statement was incorrect. The petitioner claims that this erroneous advice deprived him of effective assistance of counsel.

“[W]hen the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney’s assessment of the law and facts.” McMann v. Richardson, 397 U.S. 759, 774, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). An attorney’s inaccurate statement of law to a defendant is not, per se, conduct outside the range of reasonable representation. See Myers v. Manson, 192 Conn. 383, 396, 472 A.2d 759 (1984) (denying petitioner’s claim of ineffective assistance of counsel based on an inaccurate statement of law). Errors alone do not give rise to a claim of ineffective assistance; only errors so serious that counsel ceased functioning as counsel guaranteed by the sixth amendment. See Phillips v. Warden, supra, 132.

In this case, the petitioner claims prejudice from the attorney’s incorrect interpretation of the applicability to the petitioner of the new law governing live victim testimony at parole hearings. It is significant, however, that prior to enactment of § 54-126a the parole board considered written victim testimony. The new law changed only the form of victim testimony in that the victim is now permitted to appear and give a statement. Therefore, the petitioner’s only claim is that he was prejudiced by the physical presence of the victim’s family, not by the fact that they gave testimony.

The McMann standard for attorney competence, as applied in a guilty plea context, includes ordinary error. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (“[i]n the context of guilty pleas, the first half of the Strickland v. Washington [supra,] test is nothing more than a restatement of the standard of attorney competence already set forth in . . . McMann v. Richardson [supra]”). The error made by the attorney related to a procedural matter in a parole hearing, to be held at some indeterminate date, years in the future. The misstatement was, at best, ordinary error. Thus, the petitioner has failed to prove the first prong of the test for ineffective assistance of counsel.

B

Even if the petitioner had succeeded in proving his attorney’s conduct deficient, his claim of ineffective assistance fails. The second prong of the Strickland test for ineffective assistance of counsel requires that the petitioner prove prejudice. Phillips v. Warden, supra. In a guilty plea context, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, supra, 59. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 694. A different result must be sufficiently probable to undermine confidence in the actual outcome. Bunkley v. Commissioner of Correction, 222 Conn. 444, 456 n.14, 610 A.2d 598 (1992). It must be reasonably probable that the petitioner remains burdened by an unreliable conviction. Id., 463.

The petitioner claims that he would not have pleaded guilty had he known that the victim’s family would be permitted to testify at his future parole hearing. The record, however, reveals facts that counter that assertion. First, the petitioner faced at his second trial substantially the same case that had resulted in a prison sentence of twenty-five years to life. Second, our Supreme Court had ruled his graphic and exhaustive confession constitutionally valid and admissible. State v. Falby, supra, 16, 18-19. Third, his psychiatric defense had failed at the first trial and his intention to use an alibi defense at his second trial would have directly conflicted with his confession. Fourth, the state was permitted at his second trial to enter evidence of his prior similar assault of a fourteen year old girl. Id. Fifth, the petitioner’s primary concern was eligibility for parole; pleading guilty cut ten years off his possible sentence advancing his eligibility by five years.

In addition to these factors, his Alford plea permitted the petitioner to avoid revealing his guilt to his parents. The petitioner admitted at his habeas trial that his parents’ health had suffered as a result of his criminal problems and he feared that he would “lose” them if they learned the truth. The petitioner stated that he knew that continuing his second trial would require him to testify and “openly talk about the case.” By pleading guilty he avoided that.

Likewise, in his 1978 confession to the murder, the petitioner said that he feared that his parents would be ruined and that he could not face them. Similarly, at his sentencing hearing five years later, the petitioner’s concern for his family was “the most strongly motivating factor” in pleading guilty. Finally, the petitioner told the parole board in 1986 that he still feared revealing his guilt to his parents. Thus, the petitioner had a long-standing desire to shield his parents from the truth. He admits that this desire was a factor in choosing to plead guilty because it meant that he could avoid testifying and “hurting” his parents. In light of the case against him and his concern for his parents, we cannot say that it is probable that he would have continued with the trial had he known of the actual parole board procedure. We certainly do not find a probability sufficient to undermine confidence in the actual outcome: guilt of murder. Bunkley v. Commissioner of Correction, supra.

II

The petitioner next claims that his attorney’s erroneous advice made his plea involuntary, undermining its validity. Guilty pleas must be intelligent, voluntary and knowing. State v. Gilnite, 202 Conn. 369, 381, 521 A.2d 547 (1987). A defendant must be aware of all direct consequences of his plea. Sherbo v. Manson, 21 Conn. App. 172, 181, 572 A.2d 378, cert. denied, 215 Conn. 808, 576 A.2d 539 (1990), citing Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). Direct consequences have definite, immediate and largely automatic effects on the range of a defendant’s punishment. Sherbo v. Manson, supra, 182 n.7. “There is no requirement, however, that the defendant be advised of every possible consequence of such a plea.” State v. Gilnite, supra, 383.

Practice Book § 711 defines the direct consequences relevant in this context. Sherbo v. Manson, supra, 181. Thus, a valid guilty plea requires that a defendant know the nature of the charge, the minimum and maximum sentence, any statutory preclusion of a suspended sentence and the right to proceed with trial. Id. The record amply demonstrates that the petitioner did have the requisite knowledge for a guilty plea, and distinguishes this case from State v. Collins, 207 Conn. 590, 598, 542 A.2d 1131 (1988). In that case, the defendant was misinformed about the length of his minimum sentence under a plea. Because the length of time spent in prison is crucial to an informed and voluntary plea, the attorney’s misstatement called into question the voluntariness of the plea. In this case, however, no error was made regarding the length of time the petitioner would spend in prison; the error dealt with the form of victim testimony during his parole hearing. In State v. Collins, the error was substantive: what date would the defendant go free. In this case, the error was procedural: what form would the parole hearing take.

The form of testimony received by the parole board does not definitely, immediately and automatically affect the range of a defendant’s punishment. Further, the procedure followed by the parole board is not information of which a defendant must be aware under § 711 of the Practice Book. Therefore, parole board procedure is an indirect consequence of a guilty plea. See Sherbo v. Manson, supra, 182 and n.7 (observing that commitment procedure of state correctional department is indirect); Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir.), cert. denied, 497 U.S. 1011, 110 S. Ct. 3258, 111 L. Ed. 2d 767 (1990) (incorrect advice about parole can be collateral issue not justifying habeas relief). “The voluntariness of a guilty plea is not undermined by lack of explanation as to the mechanics of a parole system.” Hunter v. Fogg, 616 F.2d 55, 62 (2d Cir. 1980); see also United States v. Schifano, 748 F. Sup. 172, 175 (S.D.N.Y. 1990) (stating that defendant’s ignorance that parole board could require him to serve entire sentence did not invalidate guilty plea); Hornak v. Warden, 40 Conn. Sup. 238, 239, 488 A.2d 850 (1985) (noting that terms of parole eligibility are indirect and collateral consequences of plea). The petitioner’s guilty plea is not undermined by the fact that he was incorrectly advised about parole board procedure.

Finally, if the petitioner relied on gross misadvice about an indirect consequence, his plea would have been involuntary, unintelligent and, therefore, invalid. Hor-nak v. Warden, supra. Examples of gross misadvice that invalidate a guilty plea include an attorney’s poor research and incorrect calculation of a defendant’s parole eligibility. Id., citing Strader v. Garrison, 611 F.2d 61, 63 (4th Cir. 1979) (defendant misadvised about effect of concurrent sentence on eligibility); O’Tuel v. Osborne, 706 F.2d 498, 499 (4th Cir. 1983) (defendant eligible ten years later than attorney calculated). Conversely, where the sentence remains undetermined or the error minor, parole eligibility calculation errors alone are not gross misadvice. Hornak v. Warden, supra, 240, citing Little v. Allsbrook, 731 F.2d 238, 240 (4th Cir. 1984) (uncertainty about sentence created error of fifteen years); Hill v. Lockhart, 731 F.2d 568, 571 (8th Cir. 1984), aff’d, 764 F.2d 1279, aff'd, 474 U.S. 52, 60, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (error of three years).

The attorney error in this case does not rise to the level of gross misadvice. The petitioner was correctly advised about his eligibility for parole. The sole error involved the type of procedure that would be followed at any future parole hearings. This mistake is of a different order of magnitude than errors that constitute gross misadvice.

Significantly, the petitioner seeks a writ of habeas corpus, which serves, principally, as a “bulwark against convictions that violate ‘fundamental fairness.’ ” Bunkley v. Commissioner of Correction, supra, 460-61, quoting Engle v. Isaac, 456 U.S. 107, 126, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982). The writ of habeas corpus exists to assist those “whom society has grievously wronged.” Veal v. Warden, 28 Conn. App. 425, 430, 611 A.2d 911, cert. denied, 224 Conn. 902, 615 A.2d 1046 (1992), quoting Kuhlmann v. Wilson, 477 U.S. 436, 447, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986). Ultimately, the petitioner must show that he is burdened by an unreliable conviction. Bunkley v. Commissioner of Correction, supra, 461. He has failed to do so. See footnote 5.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

        North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       While effective assistance of counsel is also guaranteed by article first, § 8, of the Connecticut constitution, the petitioner frames his claims only under federal law. We shall likewise limit our review.

       General Statutes § 54-126a provides: “(a) For the purposes of this section, ‘victim’ means the victim, the legal representative of the victim or a member of the deceased victim’s immediate family.
      “(b) At a hearing held by a panel of the board of parole for the purpose of determining the eligibility for parole of an inmate incarcerated for the commission of a class A, B or C felony or for a violation of section 53a-60a, 53a-60c, 53a-72b, 53a-103a or 53a-216, such panel shall permit any victim of the crime for which the inmate is incarcerated to appear before the panel for the purpose of making a statement for the record concerning whether the inmate should be released on parole or the nature of any terms or conditions to be imposed upon any such release. In lieu of such appearance, the victim may submit a written statement to the panel and the panel shall make such statement a part of the record at the parole hearing.”

       It is most significant in this context that, in addition to his confession, the petitioner admitted the murder at his parole hearing in 1986 and at his habeas trial in 1991.

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”