author: SCHALLER, J.

text:
    AETNA CASUALTY AND SURETY COMPANY v. PIZZA CONNECTION, INC.
    (AC 17452)
    Lavery, Schaller and Dupont, Js.
    Argued April 29
    officially released October 26, 1999

      Joel J. Rottner, with whom was Robyn L. Sondak, for the appellant (plaintiff).

      Jon L. Schoenhom, for the appellee (defendant).
   Opinion

SCHALLER, J.

This appeal arises from a declaratory judgment action filed by the plaintiff, Aetna Casualty and Surety Company, with respect to a controversy between it and the defendant, Pizza Connection, Inc. (Pizza Connection), regarding insurance coverage to be provided by the plaintiff under a policy that it issued to the defendant. The trial court held that, under the terms of the commercial general liability and fire insurance policy, the plaintiff was liable to the defendant for the loss arising from a fire that destroyed the defendant’s restaurant. On appeal, the plaintiff claims that the court improperly (1) concluded that the plaintiff did not present sufficient evidence to sustain its burden of proof and (2) precluded testimony of certain expert witnesses concerning a prior fire. We affirm the judgment of the trial court.

The following facts and procedural history provide the necessary background to the disposition of this appeal. Prior to June 16, 1991, the defendant rented the property at 99 Maple Avenue in Hartford and operated a restaurant known as the Pizza Connection. On June 16, 1991, a Hartford police officer responded to the burglar alarm at the defendant’s address and discovered the restaurant ablaze. The building was damaged and the contents of the restaurant were destroyed.

Prior to the fire, the plaintiff had issued to the defendant a commercial general liability and fire insurance policy. Following the fire, Joseph Citino, the primary stockholder of the defendant, notified the plaintiff that the defendant was filing a claim for damages caused by the fire. The defendant also submitted to the plaintiff the requisite statement of loss and acquiesced to an examination under oath, a procedure required by the policy. On February 14,1992, after a review of the claim, the plaintiff denied coverage for any losses or damages claimed by the defendant.

On May 1, 1992, the plaintiff instituted this declaratory judgment action against the defendant seeking an order of the court declaring that there was no coverage under the policy for any losses or damages claimed by the defendant as a result of the June 16, 1991 fire. The plaintiff claimed, inter alia, that the loss was caused, directly or indirectly, by the actions of one or more of the defendant’s agents, and that the defendant, through its agent, misrepresented material facts regarding the loss. While the declaratory judgment action was pending, the defendant, on June 28, 1993, brought a breach of contract action, alleging that the plaintiffs refusal to pay constituted breach of contract. Thereafter, the court consolidated the actions, and the parties stipulated that the decision concerning the plaintiffs liability in the declaratory judgment action would be binding as to liability in the defendant’s breach of contract action.

In its memorandum of decision, the court characterized the predicate for the plaintiffs denial of coverage as twofold: “(1) that the fire was intentionally set by Joseph Citino . . . (or was set by someone else at his direction); (2) Citino violated the terms of the policy by misrepresenting to [the plaintiff] that he intended, after the fire, to return to the business at its then location when in fact he did not.” With respect to both grounds for denying liability, the court determined that the plaintiff had not sustained its burden of proof. The court concluded that the plaintiff was liable under the policy for the losses or damages arising from the June 16, 1991 fire. This appeal followed. Additional facts will be set forth as they become relevant in the context of the plaintiffs specific claims.

I

The plaintiff first claims that the trial court improperly concluded that the plaintiff did not present sufficient evidence to sustain its burden of proving “that the subject fire was a result of arson at the direction of [Citino] and that [Citino] misrepresented his intention to reopen his business at the fire location.”

As an appellate court, our review of a trial court’s decision is limited to determining whether it is clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). “This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Id., 221-22.

The arguments proffered by the plaintiff implicate the trial court’s role as fact finder. The plaintiff essentially claims that the evidence produced at trial satisfied its burden of proof. In cases such as this, where there is conflicting testimony, it is appropriate to give the trial court’s factual findings “a great degree of deference.” United Components, Inc. v. Wdowiak, 239 Conn. 259, 262-63, 684 A.2d 693 (1996). “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is. left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 263; Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992).

A

The plaintiff claims that it presented ample evidence to sustain its burden of proof that the fire was the result of arson committed by or at the direction of Citino. The plaintiff essentially argues that the trial court’s findings were clearly erroneous because there was ample evidence from which the trier of fact “could have and should have” determined that Citino had the motive and opportunity to set the fire. We disagree.

To prevail in a declaratory judgment action seeking to deny insurance coverage predicated on arson, “the insurer must establish that the fire was incendiary, that the insured, its agents or officers had an opportunity to cause the fire, and that such individuals had a motive for setting the fire. . . . These elements must be proved by a preponderance of the evidence, which evidence maybe either direct or circumstantial.” (Citation omitted.) Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 585, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986); see Corosa Realty v. Covenant Ins. Co., 16 Conn. App. 684, 687, 548 A.2d 473 (1988). “Although any or all of the elements of arson may be proven by circumstantial evidence, ‘evidence creating a mere suspicion or conjecture that [the] insured fraudulently burned the insured property is not sufficient.’ 18 G. Couch, [Insurance (2d Ed. Rev. 1983)] § 74:668; see Cora Pub, Inc. v. Continental Casualty Co., 619 F.2d 482 (5th Cir. 1980).” Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 183-84, 540 A.2d 693 (1988).

To be successful and to avoid liability under the policy, the plaintiff had to prove each element of arson by a preponderance of the evidence. See id., 184 (all elements of arson, including opportunity element, must be proven by preponderance of evidence). Therefore, if we conclude that the plaintiff failed to sustain its burden of proof with regard to any one of these elements, it cannot prevail in its declaratory judgment action. Because we conclude that the trial court properly concluded that the plaintiff failed to sustain its burden of proof with regard to the motive element of arson, we will not address the claim that there was sufficient evidence to establish that Citino had the opportunity to set the fire.

The plaintiff argues that there was a surplus of circumstantial evidence to demonstrate that Citino had the motive to cause the fire. The plaintiff directs our attention to testimony in the record to support what it believes was Citino’s motive: the restaurant’s destruction would have enabled Citino to use the insurance proceeds to open a smaller, more manageable restaurant that his wife could operate while he served a prison term stemming from an unrelated incident.

In its memorandum of decision, the trial court acknowledged that there was some evidence of Citino’s motive to cause the fire.* The court concluded, however, that such evidence was totally insufficient to sustain the plaintiffs burden of proof that the fire loss was a result of arson perpetrated by or at the direction of Citino. “The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” (Internal quotation marks omitted.) Smith Brook Farms, Inc. v. Wall, 52 Conn. App. 34, 37, 725 A.2d 987 (1999). Therefore, “[t]his court does not retry the case or evaluate the credibility of the witnesses. . . . [Rather, we] are guided by the well established principle that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... As such, the trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility.” (Citation omitted; internal quotation marks omitted.) State v. Fernandez, 52 Conn. App. 599, 603-604, 728 A.2d 1, cert. denied, 249 Conn. 913, 733 A.2d 229, cert. denied, 528 U.S. 939, 120 L. Ed. 2d 348, 145 L. Ed. 2d 272 (1999). On the basis of our review of the record, we are confident that no “ ‘mistake has been committed.’ ” United Components, Inc. v. Wdowiak, supra, 239 Conn. 263. We conclude that the court’s finding that the plaintiff did not present sufficient evidence to sustain its burden of proof that Citino had the motive to cause the fire was not clearly erroneous.

B

The plaintiff next claims that it presented sufficient evidence to sustain its burden of proof that Citino misrepresented his intention to reopen Pizza Connection at the fire location. In essence, the plaintiff argues that the trial court’s findings were clearly erroneous because there was ample evidence from which the trier of fact “could have and should have” determined that Citino violated the terms of the policy by misrepresenting to the plaintiff that he intended, after the fire, to reopen the business at the location of the fire, when, in fact he did not. We disagree.

The insurance policy at issue here had within it a “concealment, misrepresentation or fraud” provision that defined the consequences for any fraudulent conduct on the part of the insured. Connecticut law requires every fire insurance policy written in Connecticut to contain a fraud and concealment provision similar to the one present in the policy at issue here. See General Statutes §§ 38a-307 and 38a-308. Such a provision clearly provides that the consequence for concealing or misrepresenting a material fact after a loss is a voiding of the entire policy and the insured’s forfeiture of any contractual benefit. See Rego v. Connecticut Ins. Placement Facility, 219 Conn. 339, 347, 593 A.2d 491 (1991); Davis-Scofield Co. v. Reliance Ins. Co., 109 Conn. 686, 689, 145 A. 42 (1929). Although the penalty seems harsh, it does not apply “[w]here the false [representation] was not intentionally false, or [where] the false [representation was] not intentionally so, but made through mistake or an opinion honestly entertained . . . .” Davis-Scofield Co. v. Reliance Ins. Co., supra, 689. Rather, to constitute a misrepresentation sufficient to defeat recovery on a policy, the insurer must establish that there was “a false [representation] wilfully made with respect to a material matter with the intention of thereby deceiving the insurer.” Chauser v. Niagara Fire Ins. Co., 123 Conn. 413, 423, 196 A. 137 (1937); see Rego v. Connecticut Ins. Placement Facility, supra, 346. These elements must be proved by a preponderance of the evidence. Rego v. Connecticut Ins. Placement Facility, supra, 347.

After the defendant made a claim for the damage caused by the fire, the plaintiff commenced an investigation. In furtherance of the investigation, Citino was required to submit to an examination under oath. At the examination, Citino represented to the plaintiff that as soon as the Maple Avenue premises was rebuilt, he intended to again lease the premises from his landlord, Joseph Timbro, and to resume his business there.

The plaintiff contends that the evidence adduced at trial pertaining to Citino’s actions after the fire was sufficient to demonstrate that when he made his statement under oath he did not have any intention to return the restaurant to the Maple Avenue location. The plaintiff directs our attention to Citino’s testimony that he reopened the restaurant at a smaller location on Weth-ersfield Avenue in Hartford. The plaintiff also focuses on Timbro’s testimony that he could not contact Citino to discuss another lease for the premises. Timbro testified that it was not until one month after the fire that Citino came to his office and discussed the property damage. Timbro testified that he had no further discussions with Citino regarding his return to Maple Avenue. The plaintiff argues that “[b]ased on this testimony, there can be no dispute that Citino never intended to return to Maple Avenue to resume his Pizza Connection enterprise.”

In its memorandum of decision, the trial court concluded that the plaintiff had not sustained its burden of proof that Citino, during the examination under oath, had falsely represented his intention to reopen the business at the Maple Avenue location. The court accepted Citino’s explanation for his inconsistent actions after the examination. Citino testified that at the time of the examination, he wanted to lease the Maple Avenue premises again and to move in as soon as it was rebuilt. It is clear from the record that Citino’s representations were predicated on the plaintiffs payment of his claim. The court found that Citino’s decision to open a smaller restaurant at a different location was financial in nature. Because the plaintiff did not pay the claim under the policy, Citino did not have sufficient personal funds to open the same sized restaurant at the original location. The court found that Citino’s testimony was supported by the fact that the plaintiff did not deny the nonpayment of the claim or Citino’s financial inability to open the same sized restaurant. “Where there is conflicting evidence ... we do not retry the facts or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 404, 461 A.2d 422 (1983). The probative force of conflicting evidence is for the trier to determine. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987). In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party. See Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987); Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). On the basis of our review of the record, we are confident that no “ ‘mistake has been committed’ ”; United Components, Inc. v. Wdowiak, supra, 239 Conn. 263; and conclude that it was not clearly erroneous for the trial court to find that the plaintiff did not present sufficient evidence to sustain its burden of proof that Citino falsely represented his intent to reopen the business at the Maple Avenue location.

II

The plaintiffs final claim is that the trial court improperly precluded the testimony of certain expert witnesses concerning a fire on August 7, 1988. Specifically, the plaintiff claims that Practice Book § 220, now § 13-4, did not require it to disclose certain public sector individuals that it attempted to call as expert witnesses because they were not “acquired or developed in anticipation of litigation or for trial”; Practice Book § 220; and such witnesses were equally accessible to both parties. Because the plaintiff on appeal does not challenge the court’s ruling that all evidence concerning the 1988 fire was inadmissible, we do not reach the merits of the plaintiffs argument.

The following additional facts are relevant to our resolution of this issue. On or about May 7,1997, approximately three weeks before the trial was to begin, the plaintiff filed a supplemental disclosure of expert witnesses. The disclosure identified Lieutenant William Barrows and Detective Thomas Goodrow of the Hartford fire marshal’s office and Inspector Edward Casares and Lieutenant Michael Ciccarelli of the Hartford fire department as individuals who would testify about the cause and origin of the 1988 fire at Citino’s prior restaurant, Pizza Express on Wethersfield Avenue. In response to the plaintiffs late disclosure, the defendant filed a motion for a continuance, which the court denied.

On May 30, 1997, prior to the commencement of the evidence, the defendant made an oral motion to preclude the expert testimony of those witnesses named in the supplemental disclosure. The defendant argued that the late disclosure did not comply with § 220 (D), now § 13-4 (4), and that, as a result, it suffered undue prejudice. In response to the defendant’s oral motion, the plaintiffs counsel stated that the late disclosure was an oversight and explained that he had originally believed that evidence concerning the 1988 fire would not be admissible. The plaintiffs counsel further explained that in May, 1997, after further research was undertaken, he concluded that there might be a legal basis to seek the admission of evidence concerning the 1988 fire. The plaintiffs counsel stated that, at that point, he realized that to provide the necessary foundation for the admissibility of evidence about the 1988 fire, it might be necessary to show that it was incendiary and not merely accidental; hence, he decided to disclose the four fire officials as expert witnesses. After additional colloquy concerning the relative prejudice to each party, plaintiffs counsel unilaterally withdrew Barrows, Goodrow and Ciccarelli as expert witnesses, stating that “it’s probably Inspector Casares [who] is the only one that’s necessary.”

After finding that the late disclosure was prejudicial to the defendant, the trial court granted the motion to preclude. The court, therefore, excluded the remaining witnesses named in the supplemental disclosure. The court emphasized, however, that it was not precluding those individuals from testifying as fact witnesses.

During trial, the plaintiff made an oral motion to reconsider the trial court’s earlier order granting the defendant’s motion to preclude. The plaintiff argued that Practice Book § 220 did not require it to disclose the four fire officials because they were public officials and, as such, could not be considered expert witnesses “acquired or developed in anticipation of litigation or for trial.” Practice Book § 220. The court denied the plaintiffs motion for reconsideration.

Despite the court’s adverse rulings, the plaintiff revisited the issue. This time, however, the plaintiff sought to admit evidence of the incendiary nature of the 1988 fire to demonstrate Citino’s motive for setting the June, 1991 fire. The court permitted the plaintiff to make an offer of proof as to the incendiary nature of the 1988 fire. The plaintiff indicated to the court that, if permitted, it intended to call Goodrow, an expert named in the supplemental disclosure and subsequently withdrawn, and an engineer from Hartford’s building department who would testify that the cause and origin of the 1988 fire was not accidental but incendiary. The plaintiff conceded, however, and the court agreed, that because of the exclusion of the expert witnesses’ testimony, it could not be shown that the 1988 fire was incendiary.

Convinced that the trial court had improperly precluded its expert witnesses’ testimony regarding the cause and origin of the 1988 fire and concerned about an adequate appellate record, the plaintiff requested that the court rule on whether evidence of the 1988 fire would be admissible to demonstrate Citino’s motive for committing the June, 1991 fire. The court acquiesced and allowed the plaintiff to make a renewed offer of proof. The plaintiff then orally stated what testimony the witnesses would give regarding the cause and origin of the 1988 fire.

After hearing the proposed testimony and the arguments of counsel, the trial court ruled that evidence concerning the 1988 fire was inadmissible. The court found that although the plaintiff presented “a lot of evidence that [the 1988 fire] was incendiary,” the evidence linking Citino to the earlier fire was “so thin.” The court concluded that the prejudice to the defendant would be extreme and that it substantially outweighed any probative value the evidence might have.

On appeal, the plaintiff challenges only the trial court’s preclusion of its public sector expert witnesses. The plaintiff argues that “there is no doubt that the trial court’s failure to allow this testimony resulted in irreversible prejudice to the [plaintiff].” It is clear from the record that the court, in determining the admissibility of evidence about the 1988 fire, heard and considered the plaintiffs offer of proof. The plaintiff does not, however, challenge the court’s evidentiary ruling regarding the inadmissibility of the evidence about the 1988 fire. Therefore, even if we assume, arguendo, that the court improperly precluded the plaintiffs expert witnesses from testifying, the plaintiff fails to articulate, and we fail to see, how it was prejudiced in any way by the ruling. See Coble v. Maloney, 34 Conn. App. 655, 661, 643 A.2d 277 (1994) (appellant bears burden of estabhshing specific harmfulness of evidentiary error).

The judgment is affirmed.

In this opinion the other judges concurred.

       With regard to the breach of contract action, the issue of damages, if any, was reserved for further proceedings.

       Because the defendant’s breach of contract action is presently pending in the Superior Court awaiting a determination of damages, the judgment pertaining to the breach of contract action is not final. See Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985) (judgment rendered as to liability without award of damages is interlocutory in character and not final judgment from which appeal lies); see also Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980); Palmer v. Hartford National Bank & Trust Co., 157 Conn. 597, 253 A.2d 28 (1968). Therefore, because “[t]he lack of a final judgment is a threshold question that implicates the subject matter jurisdiction of this court”; (internal quotation marks omitted) Dacey v. Commission on Human Rights & Opportunities, 41 Conn. App. 1, 4, 673 A.2d 1177 (1996); jurisdiction is lacking to hear that portion of the appeal taken from the court’s judgment on the breach of contract action. That portion of the appeal is therefore dismissed. The portion of the appeal taken from the court’s judgment on the plaintiffs declaratory judgment action does, however, constitute a final judgment for purposes of this appeal. See General Statutes §§ 51-197a and 52-263; Practice Book § 61-1, formerly § 4000. We conclude, therefore, that only the plaintiffs appeal from the adverse finding on its declaratory judgment action is properly before us.

       We note that the plaintiff argues that we should apply a variation of the standard set out in Verrastro and Souper Spud, Inc., in that we should view the motive and opportunity elements not as mandatory elements to be proven separately, but rather as two factors to be considered in determining whether the defendant set the fire. The plaintiff does not, however, provide us with any reason why we should depart from precedent. Moreover, it is not for this court to decide whether to reexamine, discard or change the precedents set by our Supreme Court. State v. Oliver, 41 Conn. App. 139, 146, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996).

         The court also acknowledged that there was some evidence of Citino’s opportunity, through his father, to cause the fire.

       The circumstances surrounding the cause and origin of the fire were disputed at trial. With regard to the incendiary element of arson, it is unclear from the memorandum of decision whether the court concluded that there was sufficient evidence presented to show that the fire was incendiary. The court did find that the following evidence supported such a finding. James Kelly, a captain with the Hartford fire department who investigated the Pizza Connection fire, testified that there were indications of an accelerant used at the point of origin of the fire. Thomas Goodrow, an investigator with tire fire department, testified that he was of the opinion that an accelerant was used and that if all electrical causes were ruled out, the fire was a deliberate act. The court also noted the testimony of Vaughn Modeen, an electrical contractor who indicated that the fire was not electrical in origin. Modeen was not qualified to render an opinion as to the cause of the fire. With regard to the two expert witnesses from the fire department, the court found, however, that neither had records of their investigations and that, with regard to their testimony that an accelerant was used, “no analysis was made to find out what type of accelerant, if any, was present.” (Emphasis added.)

         The relevant section of the policy provides: “This coverage form is void in any case of fraud by you as it relates to this coverage form at any time. It is also void if you or any other insured, at any time, intentionally conceal or misrepresent a material fact concerning ... [a] claim under this coverage form.”

       We note, however, that Citino informed Timbro at that meeting that he was planning to return to the Maple Avenue location.

       The disclosure also identified two privately retained experts, Thomas Haynes and Lawrence Schwartz, who would testify about the cause and origin of the Pizza Connection fire on June 16, 1991.

       The court also found, as an alternative ground for its decision, that the supplemental disclosure did not set forth the factual basis for each expert’s opinion. See Practice Book § 220 (D), now § 13-4 (4).

       The court stated: “[T]he following witnesses are excluded as experts from testifying. Detective T. Goodrow, Thomas Haynes and Lawrence Schwartz.” In light of the plaintiffs decision to withdraw Goodrow as an expert and because the court granted the defendant’s motion to preclude, we believe that the court meant to exclude Casares as the only remaining expert who would testify about the 1988 fire.

       The plaintiffs counsel stated that the preclusion of his expert’s testimony left him “in a ‘catch 22’ with respect to my offer of proof because ... if Your Honor was wrong in excluding the testimony, an appellate court would likely tell me, ‘So what? We don’t know if the [trial] court would’ve admitted the testimony anyway on the balancing test aspect of the case. . . . [S]o ... we can do two things. I can make an [oral] offer of proof and get a ruling on the offer. Or, I can put the witnesses on and ask the opinions, and let Your Honor hear it . . . [a]nd then rule on the balancing.”


source: Caselaw Access Project

author: LAVERY, J. FOTI, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. HAROLD TRENT BUTLER
    (AC 17753)
    Foti, Lavery and Landau, Js.
    Argued June 8
    officially released November 2, 1999

      Avery S. Chapman, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael Dearinglon, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Harold Trent Butler, appeals from the judgment of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes §§ 53a-54a (a) and 53a-8 and conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motions for a mistrial that were based on the existence of egregious prosecutorial misconduct, (2) adopted a curative instruction that was insufficient to cure the prejudice caused by the misconduct, (3) denied his motion to set aside the verdict on the basis of juror misconduct and (4) admitted evidence of uncharged misconduct. We agree with the defendant and reverse the judgment of the trial court.

The record discloses the following information that is relevant to the resolution of this appeal. On March 21, 1994, Officer William Coppola of the New Haven police department was dispatched to 305 Exchange Street, where he discovered the body of the victim, Amenophis Morris. The victim had sustained fatal gunshot wounds. At the defendant’s trial, Jeffrey Dolphin testified for the state concerning the circumstances surrounding the murder. Dolphin testified that on March 21, 1994, Terrance Stevenson forced him at gunpoint into a motor vehicle driven by James Baker. Jermaine Harris and the defendant were passengers in Baker’s vehicle.

Dolphin testified that when Baker was driving on Exchange Street, one of the vehicle’s occupants noticed the victim standing on the front porch of 305 Exchange Street. Baker then parked the vehicle farther down the block. Dolphin testified that Stevenson and Harris exited the vehicle and walked toward the victim. Baker and the defendant then exited the vehicle and waited near the front of the car. Dolphin testified that shortly after he heard six or seven gunshots, Harris, Baker, Stevenson and the defendant returned to the vehicle, and either Harris or Stevenson stated, “I got the mother ... I got the asshole.”

Dolphin did not immediately contact the police. On April 22,1994, the police arrested Dolphin on unrelated narcotics charges, and he provided information about the murder. The police subsequently arrested Harris, Stevenson, Baker and the defendant, and charged them with murder as accessories and conspiracy to commit murder. Dolphin testified at the trials of Baker and Stevenson, which preceded the defendant’s trial, and Baker and Stevenson were convicted on both charges. In the present case, the jury found the defendant guilty of murder as an accessory and conspiring to commit murder. He received a total effective sentence of forty-five years imprisonment. This appeal followed.

The defendant claims that the trial court improperly denied his motions for a mistrial, which he based on the existence of egregious prosecutorial misconduct that deprived him of his due process right to a fair trial in violation of the federal constitution. After careful examination of the specific circumstances in this case, we agree with the defendant.

The following additional facts are relevant to a resolution of this issue. The defendant was charged with accessory to murder and conspiring to commit murder. At trial, the prosecutor claimed that the defendant aided and abetted Baker, Harris and Stevenson in murdering the victim, and conspired with them to commit the murder. In its appellate brief, the state concedes that the jury was informed that the trials of Baker and Stevenson had preceded the defendant’s trial and that Dolphin had testified in those trials.

In closing argument to the jury, defense counsel stated: “[0]ne of the most difficult parts about [this case] has been tracking all of the inconsistencies of the state’s witness, Mr. Dolphin. The witness for the state, Jeffrey Dolphin, has lied to you, ladies and gentleman. He has lied to the police, he has lied to other juries, he has lied to you as members of this jury. He has lied to an officer of the court, attorney [Leo] Ahem. But don’t take my word for it, just look at his testimony . . . .” The prosecutor neither objected to this statement when it was made, nor did he object at the conclusion of defense counsel’s closing argument, nor did he request a curative instruction or some other remedy.

Instead, in rebuttal, the prosecutor stated: “[T]he other thing [defense counsel] said to you—I do not want you to be left with the wrong impression—he said that [Dolphin] has lied to other juries. Well, let me tell you, ladies and gentlemen, I wish I could tell you what other juries decided, but I am not allowed to. ” (Emphasis added.) At the conclusion of the prosecutor’s rebuttal, after the court had excused the jury, defense counsel orally moved for a mistrial. The court stated: “That is absolutely some of the most impermissible argument I have heard. ... I am so upset about this, and I am going to think about it during the lunch hour, but you might think about what I might send to the New York District Attorney.” After the lunch recess, defense counsel filed a written motion for dismissal, mistrial, surrebuttai time or a corrective instruction. The prosecutor claimed that his statement was invited by defense counsel and that he was merely attempting to counteract defense counsel’s assertion that Dolphin had lied to other juries. Defense counsel responded that his statement merely referred to the inconsistencies in Dolphin’s testimony in this trial and the two previous trials. The court agreed with defense counsel. Despite stating that the prosecutor’s comment was prejudicial, improper and unprofessional, the court denied the defendant’s motions for dismissal and a mistrial, but granted the request for a curative instruction.

The following principles govern our review of the defendant’s claim. It is well recognized that the state’s attorney “is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused be guilty, he should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” State v. Ferrone, 96 Conn. 160, 168-69, 113 A. 452 (1921).

“The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980) .... When a mistrial is sought on the ground that a prosecutor’s improper remarks violated the defendant’s constitutional right to due process of law the same standard applies. See State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982); State v. Hawthorne, 176 Conn. 367, 372, 407 A.2d 1001 (1978). The burden on the defendant is to show that the prosecutor’s remarks were prejudicial in light of the entire proceeding. See State v. Cosgrove, supra, 488-89; State v. Hawthorne, supra, 372; State v. Kinsey, 173 Conn. 344, 348-49, 377 A.2d 1095 (1977). The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. State v. Cosgrove, supra, 488-89, citing Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).” (Citation omitted.) State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).

“[A] state’s attorney should scrupulously avoid questions of probable impropriety . . . .” (Internal quotation marks omitted.) State v. Piskorski, 177 Conn. 677, 719, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). “ ‘A demonstrated deliberate effort by a prosecutor to influence the jury against the defendant through the attempted introduction of obviously inadmissible evidence may entitle the defendant to a new trial. United States v. Woods, 486 F.2d 172 (8th Cir. [1973]); State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 [1975].’ State v. Baker, 182 Conn. 52, 58, 437 A.2d 843 (1980). While the absence of bad faith by a prosecutor is to be accorded considerable weight in a given case, that, however, is not to say that a showing of good faith by the prosecutor is ‘determinative.’ State v. Hafner, [supra, 249]. Indeed, it is ‘well established that serious prosecutorial misconduct, regardless of the prosecutor’s intentions, may so pollute a criminal prosecution as to require a new trial, even without regard to the prejudice to the defendant.’ [Id.], 251. Crucial considerations in appellate adjudication of such questions are not only the need, where demonstrated, to discipline prosecutors where reprehensible conduct is present but to assure ultimate fairness to the defendant. [Id.], 252; see Smith v. Phillips, [supra, 455 U.S. 219].” State v. Binet, 192 Conn. 618, 629, 473 A.2d 1200 (1984).

“Prosecutorial misconduct may also occur in the course of closing argument. State v. Pelletier, [196 Conn. 32, 33-34, 490 A.2d 515 (1985)]; State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact. State v. Fullwood, 194 Conn. 573, 585, 484 A.2d 435 (1984).

“The defendant claims that the prosecutorial misconduct in this case was so egregious that it deprived him of his constitutional right to a fair trial under the due process clause of . . . [the] federal [constitution]. In analyzing the defendant’s claim, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); State v. Hawthorne, [supra, 176 Conn. 372], We do not focus alone, however, on the conduct of the prosecutor.” (Internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity wit h courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument; State v. Fullwood, supra [194 Conn. 585]; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, supra, [194 Conn.] 562-63; see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, [196 Conn. 157, 163, 491 A.2d 1075 (1985)]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra [1181]; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, supra [654]; and the strength of the state’s case. See United States v. Modica, supra [ 1181 ]; State v. Couture, supra, 564; State v. Glenn, [194 Conn. 483, 492, 481 A.2d 741 (1984)].” State v. Williams, supra, 204 Conn. 540.

We must first determine whether the prosecutor’s statement was improper. The jury was aware that the state had charged Baker, Stevenson, Harris and the defendant as accessories and coconspirators in the same murder, and that the trials for Baker and Stevenson had preceded the defendant’s trial. On several occasions, the court instructed the parties to refrain from mentioning the outcome of those prior proceedings. The court properly determined that when viewed in this context, the prosecutor’s comment informed the jury that the state’s chief witness had testified in the previous trials and that juries had convicted both Baker and Stevenson of the same crimes with which the defendant was charged. The court stated that the prosecutor’s comment was deliberate, improper, prejudicial and unprofessional.

“[A] defendant is entitled to have the question of his guilt determined upon the evidence against him, not on whether a codefendant or government witness has been convicted of the same charge.” United States v. Miranda, 593 F.2d 590, 594 (5th Cir. 1979). “Generally, the guilty plea or conviction of a co-defendant or co-conspirator is not admissible at trial, and such guilty pleas and convictions are never admissible as substantive evidence of the defendant’s guilt. United States v. Blandford, 33 F.3d 685, 709 (6th Cir. 1994), cert. denied, [514 U.S. 1095], 115 S. Ct. 1821, 131 L. Ed. 2d 743 (1995). However, guilty pleas and convictions may be introduced into evidence if the co-conspirator or co-defendant testifies at trial, so that the factfinder will have appropriate facts on hand to assess the witness’s credibility. Id. . . . Convictions and guilty pleas generally are not admissible for credibility purposes if the co-conspirator or co-defendant does not testify, and convictions and guilty pleas of co-conspirators or co-defendants other than the witness are not admissible to attack or bolster the witness’s credibility. See United States v. Austin, 786 F.2d 986, 992 (10th Cir. 1986)...." (Citation omitted.) United States v. Sanders, 95 F.3d 449, 454 (6th Cir. 1996); see also State v. Just, 185 Conn. 339, 343-48, 441 A.2d 98 (1981).

In the present case, neither Baker nor Stevenson testified at the defendant’s trial, and the prosecutor did not offer the challenged statement to impeach the credibility of either Baker or Stevenson. The state neither claims, nor does the record disclose, any legitimate justification for informing the jury of the outcomes of the Baker and Stevenson trials. Accordingly, the prosecutor’s comment was improper. We must, therefore, next determine whether the prosecutor’s misconduct, viewed in the context of the entire trial, deprived the defendant of his due process right to a fair trial. As previously stated, we focus on six factors in determining whether prosecutorial misconduct was so serious as to amount to a denial of due process. See State v. Williams, supra, 204 Conn. 540.

First, the state claims that the prosecutor’s reference to the outcome of the Baker and Stevenson trials was invited by defense counsel. It claims that the prosecutor made this statement to counteract the prejudicial impact of defense counsel’s assertion that Dolphin had lied to other juries. The state’s argument presupposes, however, that defense counsel’s comment was improper. Although the state claims that defense counsel’s statement was improper, the prosecutor neither objected at the time the statement was made, nor did he object at the conclusion of defense counsel’s closing argument, nor did he request a curative instruction or some other remedy. The court concluded that defense counsel’s statement was permissible because it referred to the inaccuracies defense counsel had pointed out in Dolphin’s testimony. At trial, defense counsel attempted to impeach Dolphin’s credibility by pointing out inconsistencies in his testimony. Defense counsel claimed that his statement that Dolphin had lied to other juries merely referred to these testimonial inconsistencies, and the court agreed. Additionally, unlike the prosecutor’s statement, defense counsel’s comment did not directly or indirectly disclose the outcomes of the prior trials.

Second, several factors establish the severe nature of the prosecutor’s misconduct. The United States Court of Appeals for the Fourth Circuit has stated: “It is a well-accepted principle that ‘evidence about the conviction of a co-conspirator is not admissible as substantive proof of the guilt of a defendant.’ United States v. Leach, 918 F.2d 464, 467 (5th Cir. 1990), cert. denied, [501 U.S. 1207], 111 S. Ct. 2802, 115 L. Ed. 2d 976 (1991). In criminal cases, it is the province of the defendant’s jury to resolve questions of credibility; referring to what another jury may have done is clearly improper because the defendant’s jury cannot permissibly rely on what they may assume a previous jury to have found. See United States v. Samad, 754 F.2d 1091, 1100 (4th Cir. 1984) (observing that a prosecutor may not argue evidence not presented to the jury). Such conduct ‘raises the concern that a defendant might be convicted based upon the disposition of the charges against the [co-conspirator], rather than upon an individual assessment of the remaining defendant’s personal culpability.’. . . Indeed, improper use of a co-conspirator’s conviction infringes on the principle that the ‘central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.’ Delaware v. [Van Arsdall], 475 U.S. 673, 681, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986).” (Citation omitted.) United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993).

Furthermore, “[a] demonstrated deliberate effort by a prosecutor to influence the jury against the defendant through the attempted introduction of obviously inadmissible evidence may entitle the defendant to a new trial.” State v. Binet, supra, 192 Conn. 629. The prosecutor’s misconduct constituted a wilful violation of an order of the trial court and a deliberate attempt to improperly influence the jury. In its instruction to the jury, the trial court stated that the prosecutor’s comment constituted “a deliberate attempt to mislead you to consider matters not for your consideration and that it was a distortion of the truth in fact. . . . The fact is that [the prosecutor] has had a copy of that charge and heard me numerous times during the trial on a specific theme to disregard these matters throughout the trial.”

Third, we consider the frequency of the prosecutor’s misconduct. Other than the blatantly egregious comment the prosecutor made during rebuttal, the record discloses that he did not make any additional references to the outcome of the Baker and Stevenson trials. The prosecutor’s improper reference to the outcome of those trials did not, however, constitute his only act of misconduct. The court strongly admonished the prosecutor for engaging in improper communication with a witness during the course of the trial.

Fourth, in considering the centrality of the misconduct to the critical issues of the case, we conclude that the prosecutor’s misconduct went to the very heart of this case. In closing argument, the prosecutor repeatedly emphasized that the outcome of this case turned on the credibility of witnesses. Dolphin was the state’s most important witness, and the prosecutor’s misconduct improperly bolstered Dolphin’s credibility by informing the jury that the state already had convicted Baker and Stevenson based in part on Dolphin’s testimony. The “government’s attempt to bolster the credibility of government witnesses by saying their previous testimony resulted in convictions of other defendants [is] improper”; United States v. Taylor, 900 F.2d 779, 781 (4th Cir. 1990); and “convictions and guilty pleas of co-conspirators or co-defendants other than the witness are not admissible to attack or bolster the witness’s credibility.” United States v. Sanders, supra, 95 F.3d 454. Moreover, where, as here, a defendant is charged with conspiring with others to commit murder, the introduction of evidence of coconspirator convictions as substantive proof of the defendant’s guilt is central to this ultimate determination. “Such conduct raises the concern that a defendant might be convicted based upon the disposition of the charges against the [co-conspirator], rather than upon an individual assessment of the . . . defendant’s personal culpability. . . . Indeed, improper use of a co-conspirator’s conviction infringes on the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.” (Citation omitted; internal quotation marks omitted.) United States v. Mitchell, supra, 1 F.3d 240.

Fifth, we consider the strength of the state’s case. The state neither cites, nor can we discern from the record, any physical evidence tying the defendant to the murder. Dolphin was the only witness the state produced who directly connected the defendant to the murder, and in his closing argument, the prosecutor conceded that defense counsel had pointed out several inconsistencies in Dolphin’s testimony. Dolphin’s credibility was pivotal to the outcome of this case and, as we have already stated, the prosecutor improperly bolstered Dolphin’s credibility by informing the jury that he had testified in the two previous trials and that both Baker and Stevenson had been convicted.

Finally, we consider the strength of the curative measures adopted by the court. The court granted defense counsel’s request for a curative instruction and instructed the jury to disregard the prosecutor’s comment. Several courts have recommended that reviewing courts should scrutinize more closely the purported remedial effect of a curative instruction in cases where a prosecutor has improperly disclosed a coconspirator’s guilty plea. See, e.g., United States v. Kroh, 915 F.2d 326, 336-37 (8th Cir. 1990) (en banc) (Lay, C. J., dissenting); United States v. Gullo, 502 F.2d 759, 761 (3d Cir. 1974). The reasoning underlying this recommendation extends to cases involving the improper disclosure of a coconspirator’s conviction. Although we generally accord deference to a trial court’s efforts to eliminate prejudice through a curative instruction, in certain circumstances we have concluded that no curative instruction reasonably could have been expected to remove the prejudicial impact of prosecutorial misconduct. See State v. Binet, supra, 192 Conn. 632-34; State v. Williams, 41 Conn. App. 180, 190-91, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996). “[A] curative instruction is not inevitably sufficient to overcome the prejudicial impact of inadmissible evidence. See also Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). One court, observing that a cautionary instruction does not always remove the prejudice involved, has aptly stated: It must be remembered that after the saber thrust, the withdrawal of the saber still leaves the wound. United States v. Rudolph, 403 F.2d 805, 807 (6th Cir. 1968).” (Internal quotation marks omitted.) State v. Binet, supra, 633. In the present case, the trial court itself questioned whether a curative instruction adequately could remove the prejudice caused by the misconduct.

After careful examination of each of those six factors in light of the specific circumstances of this case and despite the trial court’s use of a curative instruction; see United States v. Miranda, supra, 593 F.2d 595-96 (doubtful that any curative instruction could have erased prejudice from minds of jurors resulting from improper disclosure of coconspirator’s conviction); we conclude on the basis of the severity of the misconduct, its centrality to the critical issues in the case and the weakness of the state’s case, that the prosecutor’s misconduct deprived the defendant of his due process right to a fair trial. See United States v. Austin, supra, 786 F.2d 991-92 (prosecutor’s improper disclosure of coconspirators’ convictions constituted reversible error); United States v. Miranda, supra, 595-96 (same). When prosecutorial misconduct has deprived a defendant of a fair trial, a new trial is warranted. State v. Binet, supra, 192 Conn. 634; State v. Williams, supra, 41 Conn. App. 191.

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

In this opinion LANDAU, J., concurred.

FOTI, J.,

dissenting. I respectfully dissent. The primary issue in this appeal is whether the trial court properly denied the defendant’s motion for a mistrial on the ground of prosecutorial misconduct. The defendant ar gues that the remarks made by the prosecutor were so prejudicial as to deprive him of a fair trial and violated his right to due process, in spite of the court’s emphatic curative instruction. Alternatively, he claims that even if he was not denied a fair trial, we should exercise our supervisory authority to grant him a new trial. See State v. Pouncey, 241 Conn. 802, 808, 699 A.2d 901 (1997) (court has supervisory power to order new trial to deter prosecutorial misconduct that is “ ‘unduly offensive to the maintenance of a sound judicial process’ ”).

As a preliminary matter, let me state that the prosecutor’s remarks were clearly improper and perhaps worthy of sanction. I also conclude, however, that defense counsel’s earlier remark that “[Jeffrey Dolphin] has lied to other juries,” made during final argument, also was improper. As a result, I view the prosecutor’s misconduct as having been invited by the defendant’s argument.

The defendant argues that his comment was not improper because on cross-examination of Dolphin, defense counsel elicited certain inconsistencies in prior statements and prior testimony in other cases. My review of the record discloses that Dolphin never admitted lying in other cases or at any other time. The purpose of the cross-examination was to allow the defendant to argue to the jury that Dolphin was not credible in his current testimony because of prior inconsistencies. In remarking in final argument that Dolphin had lied to other juries, however, the defendant was inviting the jury to speculate that other juries had disbelieved his testimony and, therefore, had acquitted the codefen-dants, James Baker and Terrance Stevenson.

In final closing argument, the prosecutor replied, “I do not want you to be left with the wrong impression— [defense counsel] said that [Dolphin] has lied to other juries. Well, let me tell you, ladies and gentlemen, I wish I could tell you what other juries decided, but I am not allowed to.” The obvious meaning of that remark was that “defense counsel implied that other juries had acquitted Baker and Stevenson, and I am implying otherwise.”

Closing argument by both sides should be based on the evidence presented during trial. There was no evidence presented concerning the verdicts in other cases, which evidence would have been totally improper. Given the circumstances of this case combined with the very strong curative instruction given by the court; see footnote 11 of the majority opinion; I would not reverse this conviction. There was no due process violation and the defendant was not deprived of a fair trial. I would, therefore, affirm the judgment.

       Because we agree with the defendant’s first claim, we find it unnecessary to address his remaining claims.

       The defendant neither invokes our state’s constitution nor provides an independent analysis of his claim pursuant to the state constitution. Accordingly, we limit our analysis to the protection afforded by the federal constitution. See State v. Wright, 246 Conn. 132, 138, 716 A.2d 870 (1998). Because we conclude that the prosecutor’s misconduct deprived the defendant of his due process right to a fair trial, we need not reach his claims that reversal of the judgment is warranted pursuant to our supervisory powers and that the misconduct unconstitutionally burdened the exercise of his constitutional right of confrontation.

       Defense counsel claimed that “a corrective instruction in no way could possibly repair the irreparable harm done by [the prosecutor’s] comment We feel that. . . [there was] a quite clear inference that these other people have been convicted and that, therefore, [the jury] should convict [the defendant].”
      Defense counsel also stated that if the trial court denied its motion for a mistrial, it sought several alternatives: a hearing and submission of briefs to determine whether a mistrial was appropriate or surrebuttai during closing argument.

       The state’s appellate brief discloses that “[t]his was the prosecutor’s final case before going to work in the district attorney’s office in Brooklyn, New York.”

       The “ ‘opening the door’ or ‘invited error’ doctrine . . . does not condone a prosecutor’s improper argument by adopting the proposition that two wrongs make a right. It merely recognizes that the prosecutor’s misconduct may be less damaging to the defendant when balanced against the defense counsel’s excesses.” United States v. Napue, 834 F.2d 1311, 1324 (7th Cir. 1987). “[I]f defense counsel exceeds proper bounds in eliciting evidence, the prosecutor can object and can even ask that defense counsel be held in contempt; the prosecutor may not, however, fight fire with fire.” Id.

       In a colloquy with the court, defense counsel explained his assertion that Dolphin had lied to other juries:
      “[Defense Counsel]: Your Honor, I would just briefly add something, two sentences.
      “The Court: Uh-huh.
      “[Defense Counsel]: Mr. Dolphin was many times confronted with his prior testimony in other trials here, that was the nature of the reference, I do not think—
      “The Court: I am accepting your claim on that.
      “[Defense Counsel]: You saw me reading from transcripts. Thank you.”

       In the following colloquy between the court and the prosecutor, the court stated that the prosecutor’s misconduct was deliberate:
      “[The Prosecutor]: If Your Honor is going to give an instruction at all, I have given Your Honor an instruction in my jury charge that I had submitted back in February, 1997, February 11,1997, about disregarding any copartici-pants, whether they have been arrested or tried or about to be tried.
      “The Court: That is interesting that even you put that down and you argued against it in front of this jury.
      * * *
      “The Court: [T]he more you say, the more I defend my decision that I will have to put on the record as to what and why I think you did this and the nature of how deliberate I think it is myself.”

       During the prosecutor’s cross-examination of the defendant, the court, defense counsel and the prosecutor engaged in the following colloquy:
      “[The Prosecutor]: You were arrested in 1988 [for] threatening and convicted of that charge in 1988, isn’t that true, sir?
      “[The Defendant]: Yes.
      “[The Prosecutor]: If I may have a moment, Judge?
      “The Court: Uh-huh.
      “[Defense Counsel]: Mr. Butler, [the prosecutor] is still questioning.
      “[The Prosecutor]: I do not think that counsel should be communicating with the witness.
      “The Court: I have seen you doing it.
      “[The Prosecutor]: When?
      “The Court: During this trial.

        “[The Prosecutor]: In what circumstances?
      “The Court: You walked up to a witness and talked to a witness while something else was going on.
      “[The Prosecutor]: Which witness was that?
      “The Court: I cannot recall. You doubting my word?
      “[The Prosecutor]: Well, I do not think it should be on the record.
      “The Court: Are you? Are you? Are you?
      “[The Prosecutor]: I may have—
      “The Court: You shake your head at my rulings all the time and everything else and I am sick of that. You [have] been talking about that, but I am sick of you shaking your head and doing all these things that even another judge has said something to me about.
      “[The Prosecutor]: I may have gotten somebody a glass of water during one of the breaks.
      “The Court: I saw you talking to him.
      “[The Prosecutor]: Not about what was going on in the courtroom, and that is what was going on here and I think it is inappropriate.
      “[Defense Counsel]: Your Honor, I just want to address the court so the record is clear. [The defendant] made some hand gestures to me. I pointed to [the prosecutor] and said [that 1he prosecutor] is still questioning you. That was the sum and substance of my communication with [the defendant], okay. The communication was initiated by [the defendant] and I did not respond other than to indicate that [the prosecutor] was still questioning him.
      “[The Prosecutor]: I do not think there should be any communication while I am still questioning.
      “The Court: He is not asking for communication. In fact, I saw what was going on. [The defendant] might have wanted to communicate with [defense counsel] but [defense counsel] did what he was supposed to do. He just sat there and brought, it to your attention that he wanted to talk to him.'’

       The prosecutor stated: “Now, the judge is also going to give you instructions on the criteria you are going to be using to judge the credibility of witnesses. And a lot, of this case is about credibility of witnesses.” Later in this closing argument, the prosecutor stated: “I would submit, to you one more time, ladies and gentlemen, that this case is about credibility.”

       The prosecutor stated: “Now I would submit to you, ladies and gentlemen, it is easy for [defense counsel] to point out this discrepancy and this inconsistency. That is what he is trained to do. He has had months to . . . go over all these various statements that Mr. Dolphin has given and other witnesses have given. He has hundreds of pages of trial transcripts from Mr. Baker’s case, from Mr. Stevenson’s case. I would submit to you, ladies and gentlemen, it is easy for him to say, ‘Mr. Dolphin, you said X on this date three years ago, and now you are saying it a little different a year later. And you said it a little different six months after that. And what you are saying today, is it based on what you saw three years ago.’ ... Do we expect to plug Mr. Dolphin into an electrical outlet, turn on the play button and have him recite in exact detail exactly what was said every time he was confronted by representatives of the defendant and the defendant’s coconspirators . . .

       The court instructed the jury as follows: “I have one other matter that I have to address, a very important matter. In [the prosecutor’s] second argument, there were comments made to you that, I immediately pointed out to you were impermissible and ordered you to disregard. My comments at that time were insufficient. [The prosecutor’s] argument was clearly improper, unprofessional and a deliberate attempt to mislead you to consider matters not for your consideration, and it was a distortion of the truth in fact.
      “Again, in my charge, I will address this issue. The fact is that [the prosecutor] has had a copy of that charge and heard me numerous times during this trial on a specific theme to disregard these matters throughout the trial. For you to speculate about matters not in evidence in this case would be a very grave injustice and in the strongest terms possible I order you, I order you to disregard his comments.’'

       “The naive assumption that [ail] prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction.” (Citation omitted.) Krulewitch v. United States, 336 U.S. 440, 453, 69 S. Ct. 716, 93 L. Ed. 790 (1949) (Jackson, J., concurring); see also Bruton v. United States, 391 U.S. 123, 129, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (“ ‘too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors’ ”).

       In the following colloquy with defense counsel, the court expressed reservation about the adequacy of a curative instruction:
      “The Court: I was concerned when I was addressing this issue if I was going to give a curative instruction specifically referring to the actual language [used by the prosecutor] and just say [that] when I said that [the prosecutor’s statement was] impermissible and disregard it—I am just curious, do you think that you are going to do more harm than good?
      “[Defense Counsel]: Our defense position at this point, Your Honor, is that the cat is out of the bag. This is an intelligent jury. They heard the comment. It is no longer an issue of, gee, I do not want a corrective instruction because I might draw attention to what was said. They know what was said. It was a very strong inference. It was addressed by Your Honor and there was a significant pause in the proceedings. We respectfully request that for that reason also, the fact that any type of curative instruction you ini end to give would draw attention to it means that only solution is a mistrial.”

       In reaching this conclusion, we also reject, the state’s alternative ground for affirming the judgment. Pursuant to Practice Book § 63-4 (a) (1), the state claimed that the court properly denied the defendant’s motions for a mistrial because the prosecutor’s comment disclosing the outcome of the Baker and Stevenson trials was justified pursuant to the “invited response” doctrine.

       The court also offered defense counsel the opportunity for surrebuttal argument to the jury. The offer was withdrawn when defense counsel proffered that he would, if given that chance, argue that the jury should adopt a negative inference from the prosecutor’s remarks, i.e., that the remarks were motivated by a bad case.

       In using the trial transcripts, the defendant brought forward inconsistencies in the testimony given at the trials of James Baker and Terrance Stevenson. Some of the testimony, however, was consistent with Dolphin’s direct testimony in this matter.

       In fact, courts in other jurisdictions have found that the introduction of evidence of a codefendant’s conviction was not per se prejudicial, especially if the introduction was in some way invited by defense counsel; see United States v. Casto, 889 F.2d 562, 567 (5th Cir. 1989), cert. denied, 493 U.S. 1092, 110 S. Ct. 1164, 107 L. Ed. 2d 1067 (1990) (not improper in light of possibility that defense counsel would later inquire about guilty plea to impeach witness); United States v. Bryza, 522 F.2d 414, 424-25 (7th Cir. 1975), cert. denied, 426 U.S. 912, 96 S. Ct. 2237, 48 L. Ed. 2d 837 (1976) (not prejudicial when used to refute defendant’s inference that codefendants were not indicted); Swift v. United States, 314 F.2d 860, 863 (10th Cir. 1963) (not prejudicial when used to counter defendant’s argument that, since codefendants did not know merchandise was stolen, defendant did not. know); or if the trial court gave a curative instruction to the jury. See United States v. Hartmann, 958 F.2d 774, 781-82 (7th Cir. 1992) (instruction that codefendant’s guilty plea was “ ‘not to be considered as evidence against the defendants’ ” sufficient to cure prejudice); United States v. De La Vega, 913 F.2d 861, 866-67 (11th Cir. 1990), cert. denied, 500 U.S. 916, 111 S. Ct. 2011, 114 L. Ed. 2d 99 (1991) (curative instruction rendered exposure to codefendant’s conviction harmless); United States v. Pickett, 746 F.2d 1129, 1135-36 (6th Cir. 1984), cert. denied, 469 U.S. 1226, 105 S. Ct. 1222, 84 L. Ed. 2d 362 (1985) (jury capable of abiding by court’s clear, direct corrective instruction not to consider evidence of codefendants’ guilty pleas).


author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. CURTIS HERRING
    (AC 17360)
    O’Connell, C. J., and Sullivan and Spallone, Js.
    Argued April 19
    officially released November 2, 1999

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Cecilia Wiederhold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Curtis Herring, appeals from the judgment of conviction, rendered after a jury trial, of one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1) and three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). The defendant claims that the trial court improperly instructed the jury on the issue of inconsistent statements as they pertained to the victim’s credibility. We do not agree and, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim had been romantically involved since the summer of 1994. When the defendant and the victim used drugs and drank alcohol, however, the defendant would become violent toward the victim.

On May 4, 1995, the victim and the defendant were drinking beer at the defendant’s apartment. When the victim decided to leave, the defendant refused to let her go. The defendant pushed her onto the bed and choked her as he threatened her and forced her to remove her clothing. After the victim removed her clothing, someone knocked at the door. When the defendant went to answer, the victim covered herself with a sheet and climbed out a window onto the roof to escape. The defendant followed her onto the roof and tried to pull her from a pole that she was holding onto, but decided to retreat when the victim started screaming for the police and an officer on patrol observed the incident. The officer interviewed the victim and took a complaint, but the police were unable to apprehend the defendant that night. Several days later, the victim and the defendant reconciled.

A second incident occurred on September 1, 1995, when the victim celebrated her birthday with the defendant at his apartment by drinking champagne and smoking cocaine. After drinking and smoking all day, the victim attempted to leave the defendant’s room to get some fresh air. The defendant, however, would not allow her to leave. He blocked the door and demanded oral and vaginal sex, which the victim refused. Believing that she was at physical risk, the victim subsequently complied by undressing, performing fellatio on the defendant and submitting to vaginal intercourse with him. Afterward, the defendant went to the kitchen to get more to drink, but the victim was too frightened to attempt an escape. When the defendant returned, he demanded sex again from the victim who refused to comply. The defendant then grabbed her by the neck, struck her in the face and kicked her in the chest, after which she was submitted to additional acts of fellatio and vaginal intercourse.

The next morning, September 2, 1995, the victim called the police from her neighbor’s house. When the police officers arrived, the victim recounted how the defendant had physically and sexually assaulted her the night before. One police officer saw several scratch marks on the victim’s neck and near her eye. Another saw bruises and marks on the victim’s neck and upper chest, as well as around her eye. The defendant was subsequently arrested and convicted, and this appeal ensued.

On appeal, the defendant claims that the trial court improperly refused to instruct the jury in accordance with his requested charge on inconsistent statements. Specifically, the defendant contends that the court’s instructions did not provide adequate guidance as to how the jury should have considered and weighed the victim’s testimony in light of prior inconsistencies in her statements. The court refused to give the defendant’s instruction and instead instructed the jury generally about the credibility of witnesses. The defendant preserved this claim of error by filing an appropriate request to charge and by taking exception to the portion of the charge given that pertained to the use of prior inconsistent statements. See State v. Tatum, 219 Conn. 721, 737, 595 A.2d 322 (1991).

The defendant’s request to charge focused on three purported prior inconsistent statements by the victim. Those statements concerned (1) whether the defendant had physically assaulted her by kicking her in the chest or threatened physical force prior to having sex the first time on September 1, 1995, (2) whether the victim had sustained a black eye on September 1, 1995, or a couple of days before and (3) whether the defendant had been awake when the victim left his room on the morning of September 2, 1995. This court rejected a similar claim in State v. Gonzalez, 18 Conn. App. 643, 560 A.2d 468, cert. denied, 212 Conn. 812, 564 A.2d 1073 (1989). We conclude that the trial court did not improperly fail to give a particularized jury charge on these inconsistencies.

“In determining whether a witness’ prior statement is admissible as a prior inconsistent statement, the court is entitled to take into account whether the inconsistency is substantial and relates to a material matter. State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); Hartmann v. Black & Decker Mfg. Co., 16 Conn. App. 1, 17, 547 A.2d 38 (1988). Even where, as here, prior inconsistent statements are admitted into evidence, however, the court is not required to give a specific charge concerning the statements, at least where the inconsistencies are not substantial and do not relate to a material matter.” State v. Gonzalez, supra, 18 Conn. App. 648-49. In this case, the inconsistencies on which the defendant focuses can hardly be characterized as substantial and material.

Furthermore, unlike the trial court in Gonzalez, the trial court in the present case specifically referred to the issue of prior inconsistent statements; it not only gave a thoroughly adequate charge on the credibility of witnesses in general, but also instructed the jury on several occasions about inconsistent statements. The court instructed the jury during its main charge that “[a]ny conduct or statement of the witness which you find inconsistent with any other conduct or statement of that witness you may also consider in weighing the credibility of that witness.” In addition, the court not only restated that instruction during its supplemental charge, but also stated that “[t]o the extent that you find [the victim] has been inconsistent in what she has said outside the courtroom, you may consider the degree of inconsistency which you find and you may consider the reasons which you may find for the inconsistency in evaluating her testimony given here in court.” “Viewing the charge on credibility in its entirety, as we must”; id., 649; we conclude that the court did not improperly decline to give the specific charge requested by the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant's request to charge was as follows: "The testimony of a witness may be discredited or impeached by showing that he or she previously made statements which axe inconsistent with his or her present testimony. It is the province of the jury to determine the credibility, if any, to be given the testimony of a witness who has been so impeached.
      “You may recall that [the victim] initially testified that [the defendant] physically assaulted her by kicking her in the chest prior to having sex the first time on September 1, 1995. This is inconsistent with her statement to police officers that [the defendant] threatened to use physical force against her if she did not have sex with him. [The victim] also initially testified that she sustained a black eye during the evening hours of September 1 and 2, 1995. This is inconsistent with her statement to the police that she sustained the black eye a couple of days before September 1, 1995. Additionally, [the victim] testified that on the morning of September 2, 1995, she left [the defendant’s] apartment while he was sleeping. This is inconsistent with her statement to the police that [the defendant] was awake when she left to wash on the morning of September 2, 1995.
      “You may consider these inconsistencies when evaluating [the victim’s] testimony. If you find such changes in her testimony, or that of any other witness, to be incredible and unreliable you may disregard those portions you find incredible or you may find the witness’ entire testimony to lack sufficient candor and reliability and may disregard it in its entirety.
      "If a witness is shown knowingly to have testified falsely or has admitted lying under oath, you have a right to distrust such witness’ testimony in other particulars, and you may reject all of the testimony of that witness or give it such credibility as you may think it deserves. 1 E. Devitt & O. Blackmar, Federal Jury Practice and Instructions (3d Ed. 1977) § 17.08, p. 540."


author: HENNESSY, J.

text:
    DEPARTMENT OF PUBLIC UTILITIES OF THE CITY OF NORWICH v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 18549)
    Foti, Spear and Hennessy, Js.
    Argued April 20
    officially released November 2, 1999

      Roger E. Koontz, for the appellant (plaintiff).

      Victor Perpetua, appellate counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Joseph J. Cassidy, pro se, the appellee (defendant), with whom, on the brief, was Jodi M. Thomas.

   Opinion

HENNESSY, J.

The plaintiff department of public utilities of the city of Norwich (Norwich) appeals from the judgment of the trial court upholding an order of the defendant freedom of information commission (commission) requiring the plaintiff to disclose a study concerning the cost of serving a particular customer (study). Norwich specifically claims that the court improperly held that the study is not exempt from disclosure as a trade secret pursuant to General Statutes (Rev. to 1997) § 1-19 (b) (5), now § 1-210 (b) (5). We affirm the judgment of the trial court.

The following facts are relevant to this appeal. Yankee Gas Services Company (Yankee) supplies natural gas to the Tribal Utility Authority of the Mashantucket Pequot Tribe (Tribal Utility). Norwich, a supplier of natural gas and a competitor of Yankee, had entered into an agreement with Tribal Utility to provide it with natural gas by building a pipeline. Yankee thereafter requested a copy of the agreement between Norwich and Tribal Utility, but was provided only a copy without the portion that contained the study. The study is a fifteen to twenty page document that reflects a specific formula to allocate costs to deliver a volume of product at a determined rate. Norwich claims that the study contains confidential and proprietary information, as well as feasibility estimates and evaluations describing the cost of providing the contracted gas service to the Mashantucket Pequot Reservation. Norwich further claims that such information is not readily available from other sources, and disclosure would give its competitors, including Yankee, an unfair business advantage in knowing the methodology used to adjust the cost of the contracted gas service.

The defendant attorney Joseph J. Cassidy, representing Yankee, complained to the commission, which ordered the disclosure of the study. Norwich appealed from that order to the Superior Court, which affirmed the order of the commission. Norwich now appeals to this court.

Norwich claims that the study is a trade secret and, as such, is exempt from disclosure pursuant to § 1-19 (b) (5). Norwich relies on the reasoning of our Supreme Court in Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 125-26, 222 A.2d 220 (1966), which held that a corporation’s costs, pricing and bidding procedures constitute confidential “trade secrets.” Norwich also cites Town & Country House & Homes Service, Inc. v. Evans, 150 Conn. 314, 318-19, 189 A.2d 390 (1963), in which the court adopted the definition of trade secrets set forth in 4 Restatement, Torts § 757, comment (b), pp. 5-6 (1939), which provides in relevant part: “A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. . . . Some factors to be considered in determining whether given information is one’s trade secret are (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” Norwich agrees that the court properly relied on Town & Country House & Homes Service, Inc. v. Evans, supra, 314, in determining the meaning of “trade secret,” but with respect to the element of secrecy, claims that the court went beyond the ruling in Town & Country House & Homes Service, Inc., in apparently requiring a formal confidentiality agreement to demonstrate secrecy.

Applying the criteria set forth in Town & Country House & Homes Service, Inc., the trial court found that “(1) cost of service studies are routinely viewed as confidential by [the department of public utility control]; (2) the agreement is available to [Norwich’s] personnel, the Norwich utility commissioner, the tribal personnel and the [United States] Bureau of Indian Affairs; (3) no evidence of confidentiality agreements or internal controls is in the record. There is testimony that it would not generally be available to the public; (4) the cost of service study was paid for by [Norwich] at a cost of thousands of dollars and is desired by a competitor, Yankee Gas; (5) the cost of the consultant was incurred by [Norwich]; (6) the information is available to various members of the Mashantucket tribe, [Norwich’s] employees, the Norwich Utility Commission and the Bureau of Indian Affairs.”

On the basis of these findings, the court concluded that “[t]he evidence of dissemination of the study and the absence of any confidentiality agreement or any steps taken to limit its dissemination defeat the claim of secrecy or confidentiality essential to the definition of ‘trade secret.’ [Norwich] failed to meet its burden of establishing the application of the exemption.”

General Statutes § l-21i (d), now § 1-206 (d), provides that “appeals from the decisions of the commission are taken pursuant to the Uniform Administrative Procedure Act (UAPA). General Statutes §§ 4-166 through 4-189. . . . This court is required to defer to the subordinate facts found by the commission, if there is substantial evidence to support those findings. Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 259, 673 A.2d 101 (1996); Newtown v. Keeney, 234 Conn. 312, 319-20, 661 A.2d 589 (1995).” (Citations omitted; internal quotation marks omitted.) Furhman v. Freedom of Information Commission, 243 Conn. 427, 430-31, 703 A.2d 624 (1997). In the present case, the subordinate facts are not in dispute. Rather, it is the meaning of the statute that is disputed. “The determination of the meaning of a statute presents a question of law, which is within the province of the trial court and of this court.” Id., 431.

The court found, and Norwich agrees, that the definition of trade secrets adopted by our Supreme Court in Town & Country House & Homes Service, Inc. v. Evans, supra, 150 Conn. 318-19, is applicable. Norwich’s claim turns, however, on the interpretation of the secrecy or confidentiality portion of the term “trade secrets.”

“[I]t is well established that the general rule under the Freedom of Information Act [FOIA] is disclosure, and any exception to that rule will be narrowly construed in light of the ‘general policy of openness expressed in the FOIA legislation.’ Board of Education v. Freedom of Information Commission, [208 Conn. 442, 450, 545 A.2d 1064 (1988)]. ‘The burden of proving the applicability of an exception to the FOIA rests upon the party claiming it.’ Rose v. Freedom of Information Commission, 221 Conn. 217, 232, 602 A.2d 1019 (1992).” Ottochian v. Freedom of Information Commission, 221 Conn. 393, 398, 604 A.2d 351 (1992).

Norwich contends that the fact that some public officials reviewed the study does not defeat a claim of secrecy and, furthermore, that there was no evidence to show that access to it was allowed to the general public. See Plastic & Metal Fabricators, Inc. v. Roy, 163 Conn. 257, 269, 303 A.2d 725 (1972) (inspection by public official does not contradict element of secrecy). “[A] substantial element of secrecy must exist, to the extent that there would be difficulty in acquiring the information except by the use of improper means.” (Internal quotation marks omitted.) Id., 265. However, “absolute secrecy is not essential and the plaintiff does not abandon his secret ‘by delivering it or a copy to another for a restrictive purpose, nor by a limited publication.’ ” Id., 268.

Here, the trial court found that there was no evidence that the study was to be kept confidential. Although the court cited the lack of a confidentiality agreement as part of its reasoning for such a conclusion, it coupled that with a finding that there were no efforts to limit the study’s dissemination. Although we recognize that a thorough review of applicable case law reveals no case stating that a formal confidentiality agreement is essential to preserve the secrecy of a document, when the facts do not reveal discernible measures taken to guard the secrecy of the information, as evidenced by a lack of warnings alerting individuals to the confidentiality of the information, as well as a lack of a requirement that strict limits be placed on its distribution, the essential element of secrecy is compromised. The fact that the study was available to various members of the Mashantucket Pequot Tribe, Norwich employees, the Norwich utility commission and the Bureau of Indian Affairs demonstrates that the study was given wide distribution. Although these entities had an interest in the contents of the study and it was not shown that either Norwich’s competitors or members of the general public had access to the study, there was no evidence that those who were provided with the study were under any obligation to keep the contents confidential or to curtail its distribution. The court reasonably could have found, therefore, that Norwich failed to meet its burden of establishing the application of the statutory exemption from disclosure.

The judgment is affirmed.

In this opinion the other judges concurred.

       Attorney Joseph J. Cassidy, acting on behalf of Yankee Gas Services Company, requested the cost of service study from Norwich. After Norwich denied his request, he appealed to the commission, which ordered disclosure. Cassidy is a defendant in this appeal.

       Norwich also claims that the court improperly determined that the study was not held in confidence where it was available only to Norwich, its customer and essential regulatory agencies. This claim is subsumed in the arguments addressed to the main issue of whether the study was a trade secret and whether it was exempt from disclosure under the statute.

       General Statutes (Rev. to 1997) § 1-19, now § 1-210, provides in relevant part: “(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records ....
      “(b) Nothing in [the Freedom of Information Act] . . . shall be construed to require disclosure of . . . (5) trade secrets, which for purposes of [the Freedom of Information Act], are defined as unpatented, secret, commercially valuable plans, appliances, formulas or processes, which are used for the making, preparing, compounding, treating or processing of articles or materials which are trade commodities obtained from a person and which are recognized by law as confidential, and commercial or financial information given in confidence, not required by statute . . . .”