author: HENNESSY, J.

text:
    JOHN F. MERCHANT v. STATE ETHICS COMMISSION
    (AC 17619)
    Foti, Hennessy and Daly, Js.

      Argued December 7, 1998
    officially released June 22, 1999

      John F. Merchant, pro se, the appellant (plaintiff), with whom was Daniel E. Brennan, Jr.

      Gregory T. DAuria, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Carolyn K. Querijero, assistant attorney general, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, John F. Merchant, appeals from the judgment of the Superior Court dismissing his appeal from the decision of the defendant, the state ethics commission (commission). The commission determined that the plaintiff, who was employed by the state of Connecticut as consumer counsel for the office of consumer counsel, violated the Code of Ethics for Public Officials (ethics code), General Statutes § 1-79 et seq., and the plaintiff appealed to the Superior Court. The plaintiff claims that the Superior Court improperly determined that (1) the commission had jurisdiction to hear this matter pursuant to the ethics code, (2) the commission provided timely notice of the filing of the complaint and a copy of the complaint to the plaintiff as required by the ethics code, (3) the unauthorized disclosure of the existence of a complaint against the plaintiff did not divest the commission of jurisdiction, (4) the commission was required to disclose its files where there was no finding of probable cause, (5) the Handbook for Appointed Officials was admissible before or enforceable by the commission, (6) the decision of the commission was supported by substantial evidence and (7) the multiplicity of procedural errors did not constitute a denial of procedural due process in violation of the United States and Connecticut constitutions. We affirm the judgment of the Superior Court.

The following facts and procedural history are relevant to this appeal. While the plaintiff was employed in the position of consumer counsel, a staff attorney filed a complaint with the commission alleging five separate violations of the ethics code by the plaintiff. After a preliminary hearing, the commission found probable cause to believe that the plaintiff had violated General Statutes § 1-84 (c) by improperly certifying his state attendance records to include hours when he was, in fact, out of the state attending the Masters and Walker Cup golf tournaments in his capacity as a member of the United States Golf Association’s executive committee.

Thereafter, as mandated by General Statutes § 1-82 (b), the commission held a violation hearing before a judge trial referee. The commission issued its decision in which it determined that the plaintiff had violated § 1-84 (c) as alleged. The commission concluded that the plaintiff had used his office for financial gain when he unilaterally determined that it was appropriate for him to claim work time when out of the state on personal business and, thereafter, vouched for the accuracy of his time sheets as head of the office of consumer counsel. The commission also determined that vacation time that the plaintiff accrued was of specific and substantial monetary value because he would be reimbursed fully for any accrued vacation time upon leaving state service. The commission imposed a civil penalty of $1000 against the plaintiff and ordered that he cease and desist from committing this violation of the ethics code.

The plaintiff appealed from the commission’s decision to the Superior Court pursuant to General Statutes §§ 4-183 and 1-87. The Superior Court dismissed his appeal and this appeal followed. Other facts and procedural history will be discussed where relevant to the issues on appeal.

We note that “[judicial review of an administrative agency’s action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is limited. . . . When reviewing the trial court’s decision, we seek to determine whether it comports with the [UAPA], . . . We look to see if the [trial] court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion. . . . Dortenzio v. Freedom of Information Commission, 48 Conn. App. 424, 430, 710 A.2d 801 (1998).” (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 51 Conn. App. 100, 104, 720 A.2d 268 (1998). “Conclusions of law reached by the administrative agency must stand if . . . they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion.” (Citation omitted; internal quotation marks omitted.) Id.

I

The plaintiff first claims that the Superior Court improperly determined that the commission had jurisdiction to hear this matter. Specifically, the plaintiff argues that the subject matter of the complaints against him involved personnel issues, which have been delegated to the department of administrative services pursuant to the State Personnel Act, General Statutes § 5-193 et seq., and, therefore, the commission exceeded its jurisdiction in deciding this case. We are not persuaded.

The State Personnel Act sets forth its scope in General Statutes § 5-194, which provides: “This chapter shall be so construed and administered as to provide a uniform and equitable system of personnel administration of employees in the state service. Recruitment, selection, appointment, development, promotion, transfer, layoff, classification, compensation, discipline, separation and provision for the welfare of state employees shall be performed in a manner to secure and retain well qualified employees to carry out state programs effectively and efficiently and to provide reasonable stability of employment in the state service.” (Emphasis added.) We agree that the State Personnel Act sets forth a system of personnel administration of employees in state service under the authority of the commissioner of administrative services.

In this case, however, there was an allegation that the plaintiff used his public office for personal financial gain. The plaintiff did not cite any provision of the State Personnel Act that indicates that the commissioner of administrative services has the authority to discipline a state employee for this type of act. Even if we assume that the State Personnel Act does give the commissioner of administrative services the authority to discipline a state employee for this type of act, the plaintiff has not cited any language in the act indicating that the legislature intended that the grant of authority is exclusive to the commissioner of administrative services.

Section 1-84 (c) of the ethics code, on the other hand, provides in relevant part that “no public official or state employee shall use his public office or position ... to obtain financial gain for himself . . . .” The plaintiffs alleged activity clearly falls within the jurisdiction of the commission under the ethics code. “Absent a statutory provision designating which commission is to have overriding responsibility . . . the fact that the legislature has given responsibility to more than one agency suggests that each must exercise its own authority, using its standards and procedures, regardless of what the other agencies do under their delegation of power from the state.” (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 96, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994). Section 1-82 of the ethics code provides the procedure to be used when a complaint has been filed against a public official alleging that the public official engaged in any of the prohibited activities. The commission used that procedure in addressing the allegations against the plaintiff.

The plaintiff has not persuaded this court that the department of administrative services has exclusive jurisdiction to address the violations that are the subject of the complaint. Accordingly, we conclude that the Superior Court did not abuse its discretion in concluding that the commission had jurisdiction to hear the matter.

II

The plaintiff next claims that the Superior Court improperly determined that the commission complied with the notice mandates of the ethics code and therefore had jurisdiction to hear the matter. Specifically, the plaintiff argues that the commission did not provide him with notice of the filing of a complaint against him and did not provide him with a copy of the complaint within five days of the filing of the complaint with the commission as required by General Statutes § 1-82 (a) (l). The commission responds that General Statutes (Rev. to 1993) § 1-82 (a) was in effect when the complaint was filed and that, under that version of the statute, its notice was proper because the five day notice was triggered by the sufficiency of evidence hearing and not by the filing of the complaint. We agree with the commission.

General Statutes (Rev. to 1993) § 1-82 (a) provides in relevant part: “Upon the complaint of any person . . . the commission shall, after meeting and determining that there is sufficient evidence to warrant such inquiry, investigate any alleged violation of this part. . . . The commission shall not later than five days after so meeting notify by registered or certified mail any respondent against whom such complaint is filed and a copy of such complaint shall accompany such notice. ...”

The Superior Court found and the record reflects the following facts. The complaint against the plaintiff was filed and received by the commission on June 15, 1994. The commission conducted a sufficiency of the evidence hearing with regard to the allegations in the complaint on July 29, 1994. Subsequent to the sufficiency of evidence hearing, the commission sent to the plaintiff, via certified mail, notice of the filing of the complaint and a copy of the complaint on August 1, 1994. On the basis of those facts, the Superior Court determined that notice was proper because General Statutes (Rev. to 1993) § 1-82 (a) was in effect on June 15, 1994. It further determined that Public Acts 1994, No. 94-132, which directed the commission to provide notice of the filing of the complaint and a copy of the complaint within five days after the receipt or issuance of such complaint, was not effective until October 1, 1994. We agree. Accordingly, we conclude that the commission complied with the revision of § 1-82 (a) then in effect and, therefore, the Superior Court did not abuse its discretion in finding that the commission had jurisdiction to hear the matter.

Ill

The plaintiff next claims that the commission was divested of jurisdiction to hear this matter as a result of its violation of General Statutes § l-82a. Specifically, the plaintiff argues that the unauthorized disclosure of the existence of a complaint against the plaintiff to the chairperson of the department of public utilities control (DPUC) was a violation of § l-82a that results in the divestiture of the commission’s jurisdiction. We are not persuaded.

Section § l-82a provides in relevant part: “(a) Unless the commission makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except upon the request of the respondent. ... No provision of this subsection shall prevent the Ethics Commission from reporting the possible commission of a crime to the Chief State’s Attorney or other prosecutorial authority.

“(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member. . . .”

Before making a determination on whether probable cause existed, the commission informed the chairperson of the DPUC by letter that a complaint had been filed against the plaintiff. The Superior Court determined that § l-82a (b) applied and, because the commission disclosed the fact that a complaint had been filed against the plaintiff and did not disclose any of the allegations in the complaint, the commission did not violate § l-82a (b). It further determined that even if § l-82a (a) did apply, the plaintiff failed to provide any evidence that the letter from the commission to the DPUC was the source of the information in the two news articles or that he was prejudiced or harmed in his hearing as a result of the news articles.

On appeal, the plaintiff asserts that § l-82a establishes a bright line rule on when and how proceedings before the commission can be divulged and that the commission “blatantly and deliberately ignored the stat-utoiy mandate” when it divulged the existence of the complaint against him to the DPUC. The plaintiff asserts that this disclosure contributed to a media frenzy that subjected him to ridicule and pronounced his guilt before any proceeding was conducted.

The plaintiff further asserts that this violation divests the commission of jurisdiction. Even assuming that the commission violated § l-82a by divulging the fact that a complaint was filed against the plaintiff in its letter to the DPUC, the plaintiff has not provided nor are we aware of any authority that indicates that a violation of § l-82a divests the commission of its jurisdiction to hear the matter.

“We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 420, 717 A.2d 824 (1998); see also State v. Leary, 51 Conn. App. 497, 499, 725 A.2d 328 (1999); Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 586, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). “We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 400, 662 A.2d 118 (1995). In the absence of analysis, citation to legal authority and specific facts to support the allegations, we cannot conclude that the Superior Court abused its discretion.

IV

The plaintiff next claims that the Superior Court improperly ruled that, pursuant to General Statutes § 1-82a (d) and (e), the commission was required to disclose the entire record including those allegations where the commission found that no probable cause existed. Specifically, the plaintiff argues that the commission violated § l-82a (d) by releasing to the public the result of its preliminary investigation and a copy of the entire complaint, both of which contained allegations for which no probable cause was found. The plaintiff further argues that this violation requires this court to vacate the decision of the commission. The commission responds that § l-82a (e) requires the commission to make public the entire record of its investigation after a finding of probable cause. We note that although this issue is one of statutory construction, we need not address it at this time because the plaintiff has not persuaded this court that the appropriate remedy is dismissal of the commission’s decision.

In In re Zoarski, 227 Conn. 784, 794, 632 A.2d 1114 (1993), our Supreme Court determined that, even where it is arguable that public disclosures by a complainant of misconduct of a judge is inconsistent with General Statutes § 51-511 (a), “[t]he legislature has not . . . expressly imposed a sanction of dismissal of charges for a violation of § 51-517 (a).” The court concluded that, “[b]ecause of the public interest in the proper disposition of charges of judicial misconduct, we will not infer that the legislature intended to make a complainant’s noncompliance with § 51-517 (a) a basis for the automatic dismissal of ongoing judicial misconduct proceedings.” Id. The court held that “[i]n the absence of allegation or proof that [the complainant’s] public disclosures had any impact whatsoever on the fairness of the [judicial review] council’s deliberations, dismissal of the charges was not required.” Id., 794-95.

In this case, the complaint against the plaintiff alleged five separate violations of the ethics code by the plaintiff. While it is arguable that § l-82a (e) intended the disclosure of the entire record only on the allegations where probable cause was found, the legislature has not expressly imposed a sanction of the dismissal of a commission decision for a violation of this section.

We recognize that in In re Zoarski, our Supreme Court did not address the consequences of a disclosure of pending judicial disciplinary proceedings by a member of the judicial review council or the council itself. See In re Zoarski, supra, 227 Conn. 794-95 n.14. In this case, the plaintiff failed to cite any authority to support his proposition that the disclosure of the entire record was a violation of the statute and failed to cite any authority to support his proposition that a violation required reversal because it affected the fairness of the commission’s deliberations. The plaintiffs brief asserted only unsupported allegations without substantive discussion or analysis. We conclude that the rationale of our Supreme Court in In re Zoarski is applicable to the facts of this case. Id. As the court stated in In re Zoarski, supra, 794-95, “we will not infer that the legislature intended to make [the commission’s] noncompliance with [the statute] a basis for the automatic dismissal .... In the absence of allegation or proof that . . . [the disclosure] had any impact whatsoever on the fairness of the [commission’s] deliberations, dismissal of the charges was not required.” We cannot conclude, under the circumstances of this case, that the Superior Court abused its discretion in upholding the decision of the commission.

V

The plaintiff next claims that the Superior Court improperly held that the 1987 and 1991 versions of the Handbook for Appointed Officials were admissible as evidence before the commission and enforceable by the commission. Specifically, the plaintiff argues that because the “ ‘Handbooks’ are only policy guidelines, with no force of law,” they are not controlling or binding. The plaintiff further argues that, without the admission of these documents, the commission “could not have found probable cause to pursue . . . [the] violation of § 1-84 (c) . . . .” We disagree.

The following facts are relevant to the resolution of this issue. The handbooks at issue were prepared by the executive branch and were ordered promulgated by our governor. The purpose of the handbooks is to provide appointed officials with information on work policies, regulations and benefits. The handbooks provide that “[appointed officials must follow the state Code of Ethics, which is explained in Conn. Gen. Statutes Chap. 10, Sec. 1-79 through 1-89.” The plaintiff testified that he took vacation and sick time in reliance on the provisions of the handbook. His attorney also stated during the hearing that the handbooks were “totally relevant to this proceeding.”

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [party raising the challenge] of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . . O’Brien v. Coburn, 46 Conn. App. 620, 630-31, 700 A.2d 81, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997) .” (Internal quotation marks omitted.) Pacific Land Exchange v. Hunts, 52 Conn. App. 362, 363-64, 727 A.2d 1281 (1999).

“Evidence is admissible only if it is relevant. Tomlinson v. Board of Education, 226 Conn. 704, 728, 629 A.2d 333 (1993). Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . State v. Cosby, 44 Conn. App. 26, 31, 687 A.2d 895 (1996), cert. denied, 240 Conn. 910, 689 A.2d 474 (1997). It is well settled that questions of relevance are committed to the sound discretion of the trial court. State v. Weidenhof 205 Conn. 262, 277, 533 A.2d 545 (1987). State v. Lyons, 43 Conn. App. 704, 707, 686 A.2d 128 (1996), cert. denied, 240 Conn. 906, 688 A.2d 335 (1997).” (Internal quotation marks omitted.) First Federal Bank, FSB v. Gallup, 51 Conn. App. 39, 41-42, 719 A.2d 923 (1998).

The former commissioner of the department of administrative services testified that the handbook was a direct order of our governor and applied to all appointed officials. The handbook states that it is “a resource regarding the general acceptable behavior and duties of appointed officials.” The handbook foreword states that it is “designed to provide some information about work policies, regulations and benefits regarding your appointment.” The plaintiff testified that he took vacation and sick time in reliance on the provisions of the handbook, thereby accepting the handbook as a document that sets forth his rights as an employee of the executive branch of the state government. The handbook not only sets forth the rights of supervisors, but also their responsibilities, providing that “[i]f you are absent for an entire day, it must be for either vacation, personal or sick leave.” Another responsibility is that “[appointed officials must follow the state Code of Ethics, which is explained in Conn. Gen. Statutes Chap. 10, Sec. 1-79 through 1-89.”

The commission, in enforcing the ethics code, had a right to rely on the “policies, regulations and benefits” applicable to appointed officials as set forth in the handbook published and distributed on the orders of our governor, who is the appointing authority. We conclude that the handbook was relevant to the matter before the court.

The plaintiff further argues that the handbooks are only guidelines because they are not creations of statute or duly adopted regulations and, as such, have no force of law and are not enforceable against him. The plaintiffs argument, however, is misplaced. The commission determined that the defendant violated § 1-82 (a) by using his office for personal gain. As evidence of that violation, the commission admitted into evidence the handbooks to show that the plaintiff had breached the policy guidelines and, as a result, would have been entitled to financial gain to which he is not otherwise entitled. Therefore, the commission is not enforcing the guidelines in the handbooks against the plaintiff, but, instead, is using the handbooks as evidence of the violation of the ethics code. The question, therefore, is one of relevancy. Because the handbooks were relevant, the Superior Court did not abuse its discretion in admitting them into evidence.

VI

The plaintiff next claims that the Superior Court improperly found that the decision of the commission was supported by substantial evidence. Specifically, the plaintiff claims that his time records accurately reported the hours that he worked. We disagree.

Under the UAPA, “[w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . An agency’s factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review.” (Citations omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 246 Conn. 18, 36, 716 A.2d 78 (1998).

The Superior Court found that the record contains the following undisputed facts. The plaintiff attended the Masters and Walker Cup golf tournaments between 1992 and 1994. On the days that he attended the tournaments, the plaintiff did not go to the office of consumer counsel. The handbooks provide that “[i]f you are absent for an entire day, it must be for either vacation, personal or sick leave.” The plaintiff, who was absent for the entire day, claimed several horns as work time instead of charging a full day of vacation time. As the head of the office of consumer counsel, the plaintiff submitted his time sheets and vouched for their accuracy. Because the plaintiff received partial pay for a day spent out of the office and accrued vacation time for a full day, which has a monetary value upon leaving the appointment, the commission found that the plaintiff used his public office to obtain financial gain in violation of § 1-84 (c). We conclude that the administrative record affords a substantial basis of fact from which the commission reasonably could infer that the plaintiff violated § 1-84 (c). Therefore, the Superior Court did not abuse its discretion in upholding the commission’s decision.

VII

The plaintiff finally claims that the Superior Court improperly ruled that the multiplicity of the procedural errors set forth by him did not deny him an opportunity to receive a fair hearing, and did not violate his due process rights under the United States and the Connecticut constitutions. Specifically, the plaintiff argues that the commission’s repeated failure to comply with and strictly to adhere to the statutory requirements under the statute damaged his good name and reputation in his position as consumer counsel and impaired his employment opportunities in the private practice of law upon retirement from government service. The plaintiff further argues that the procedural errors warrant that this court vacate the commission’s decision. We disagree.

“The fourteenth amendment to the United States constitution provides that the ‘State [shall not] deprive any person of life, liberty, or property, without due process of law . . . .’In order to prevail on his due process claim, the plaintiff must prove that: (1) he has been deprived of a property interest cognizable under the due process clause; and (2) the deprivation of the property interest has occurred without due process of law.” Tedesco v. Stamford, 222 Conn. 233, 241, 610 A.2d 574 (1992). “‘[D]ue process . . . is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . [D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ ” (Citation omitted.) Id., 242.

The procedural protections due to the plaintiff are established by the UAPA. The trial court’s review of the plaintiffs claim is limited by the UAPA. In this case, the plaintiff argues that the procedural errors warrant that the commission’s decision be vacated. General Statutes § 4-183 (j) provides that “[t]he court shall affirm the decision of the agency unless the court finds that the substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ... (3) made upon unlawful procedure . . . .” “[N]ot all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown.” (Internal quotation marks omitted.) Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 97, 596 A.2d 374 (1991). “An administrative proceeding is not ‘tainted’ by procedural irregularities unless substantial rights of the parties have been prejudiced.” Owens v. New Britain General Hospital, 32 Conn. App. 56, 69 n.5, 627 A.2d 1373 (1993), aff'd, 229 Conn. 592, 643 A.2d 233 (1994).

Even assuming that the commission committed all of the procedural errors alleged, the plaintiff failed to show that his substantial rights were prejudiced by the actions of the commission. In the absence of showing prejudice, the plaintiff failed to show that his hearing was tainted by the alleged errors and that the fairness of the hearing was compromised. Under these circumstances, we will not vacate the decision of the commission.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the commission found that the defendant violated General Statutes § 1-84 (c), which provides in relevant part: “No public official or state employee shall wilfully and knowingly . . . use his public office or position ... to obtain financial gain for himself . . . .”

       As to the four other counts in the complaint filed with the commission, the commission determined that no probable cause existed for two of the counts and, with regard to the remaining two counts, the commission decided not to pursue the counts even though probable cause existed because the alleged financial gain was de minimis.

       General Statutes § 1-82 (b) provides in relevant part: “If a preliminary investigation indicates that probable cause exists for the violation of a provision of this part, the commission shall initiate hearings to determine whether there has been a violation of this part. A judge trial referee, who shall be assigned by the Chief Court Administrator and who shall be compensated in accordance with section 52-434 out of funds available to the commission, shall preside over such hearing and shall rule on all matters concerning the application of the rules of evidence, which shall be the same as in judicial proceedings. . . .”

       We note that this issue is not addressed by the commission in its brief.

       General Statutes § 1-82 (a) (1) provides in relevant part: “Upon the complaint of any person on a form prescribed by the commission, signed under penalty of false statement, or upon its own complaint, the commission shall investigate any alleged violation of this part. Not later than five days after the receipt or issuance of such complaint, the commission shall provide notice of such receipt or issuance and a copy of the complaint by registered or certified mail to any respondent against whom such complaint is filed and shall provide notice of the receipt of such complaint to the complainant. . . .” (Emphasis added.)

       As the trial court found and the record reflects, the plaintiff did not receive that notice and that copy of the complaint until August 8, 1994. We note, however, that the commission provided the plaintiff with notice of the filing of the complaint against him and a copy of the complaint on July 18, 1994, when it provided him with notice of the sufficiency of evidence hearing. The plaintiff received that notice on July 22, 1994, prior to the time mandated by statute.

       The office of consumer counsel is, by statute, within the DPUC for administrative purposes only. See General Statutes § 16~2a. The chairperson of the public utilities control authority shall be the head of the DPUC. See General Statutes § 16-lb.

       The letter from the executive director and general counsel of the commission to the chairman of the DPUC provides in relevant part: “An attorney in the Consumer Counsel’s Office . . . has filed a complaint with the [commission] against . . . John Merchant. Although, of course, the [commission’s] complaint procedures are confidential, I find that I must make this limited disclosure in order to address a situation which has been brought to the Commission’s attention. After the complaint in question was filed, [the complainant] was suspended for five days by Mr. Merchant. ... As a consequence, we are requesting that, if possible, you assign a member of your agency, who is not subordinate to Mr. Merchant, to review the appropriateness of the suspension at issue. . .

       The plaintiff provided the Superior Court with two newspaper articles in support of his allegations. The Superior Court indicated that the information in the Connecticut Law Tribune article came from a complaint filed by the same person in a federal court case alleging civil rights violations against the plaintiff. The Superior Court indicated that the Hartford Courant article stated that the state ethics commission was investigating alleged misconduct on the part of the plaintiff. The Superior Court found that the plaintiff “has provided no proof that these articles were written as a result of the letter sent to the DPUC.”

       We note that the plaintiff did not present any evidence to corroborate these allegations or to show that he was prejudiced in his hearing.

       General Statutes § l-82a (d) provides in relevant part: “If the commission makes a finding of no probable cause, the complaint and the record of its investigation shall remain confidential . . . .”

       General Statutes § l-82a (e) provides in relevant part: “The commission shall make public a finding of probable cause not later than five business days after the termination of the investigation. At such time the entire record of the investigation shall become public . . . .”

       Because the plaintiff failed to offer a separate analysis under the state constitution, “[w]e, therefore, choose to consider the claim solely under the federal constitution." State v. Garvin, 43 Conn. App. 142, 146 n.5, 682 A.2d 562 (1996), aff'd, 242 Conn. 296, 699 A.2d 921 (1997). In any event, “[o]ur Supreme Court has repeatedly held that, as a general rale, the due process clauses of both the United States and Connecticut constitutions have the same meanings and impose similar limitations. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982).” (Internal quotation marks omitted.) State v. Foster, 45 Conn. App. 369, 388, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997).

       Insofar as the defendant argues that the cumulative effect of the errors was harmful and requires that the decision of the commission be vacated, we note that because, where appropriate, we have considered the prejudice of the alleged errors individually and concluded that the defendant has not shown that his rights were substantially prejudiced, we need not address this claim. See State v. Robinson, 227 Conn. 711, 747, 631 A.2d 288 (1993) (court declined to create new constitutional claim in which totality of alleged constitutional error is greater than sum of its parts).


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    IN RE DENZEL A.

    (AC 18225)
    Schaller, Sullivan and Dupont, Js.
    Argued February 19
    officially released June 22, 1999

      Teri E. Bayer, for the appellant (intervening maternal grandmother).

      Michael McKenna, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, andSAs cm T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Lisabeth B. Mindera, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, 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.

   Opinion

DUPONT, J.

This appeal arises out of an action for termination of parental rights. The maternal grandmother of the minor child, Denzel A., appeals from the judgment of the trial court terminating the parental rights of Denzel’s mother and father. On appeal, the grandmother claims that the trial court improperly (1) found that it was in Denzel’s best interests to terminate his parents’ parental rights and (2) failed to consider the grandmother’s motion requesting revocation of commitment and transfer of Denzel from the guardianship and custody of the commissioner of children and famihes to her.

The following facts are pertinent to our resolution of this appeal. Denzel was born on March 12, 1993. On December 28, 1995, the commissioner filed a petition claiming Denzel was a neglected or uncared for child. On May 15, 1996, the petition was granted and Denzel was committed to the care of the commissioner as an uncared for child for a period of twelve months. The commitment was thereafter extended.

Denzel’s mother, M, has ongoing emotional problems. She has not visited or maintained an interest in her son and she has had no contact with him since November, 1995. She alleges that Denzel’s father is her own father and that he sexually abused her and fathered all four of her children. M’s father has never been adjudicated the father of Denzel, his whereabouts are unknown and he has played no part in Denzel’s life. Denzel has three older sisters, who reside with his and their maternal grandmother, the appellant.

On September 5, 1997, the commissioner filed a petition, pursuant to General Statutes (Rev. to 1997) § 17a-112, seeking to terminate the mother’s and father’s parental rights to Denzel. On November 12, 1997, the trial court granted the grandmother’s motion to intervene, allowing her to intervene in the dispositional phase of the proceedings but not in the adjudicatory phase. Hearings on the petition for termination were held on December 10, 1997, and February 27, 1998. Neither parent attended the hearings. On December 17, 1997, the grandmother filed a motion for revocation of commitment and transfer of guardianship and custody pursuant to General Statutes (Rev. to 1997) § 46b-129 (g)_

On February 27, 1998, in an oral decision, the trial court found clear and convincing evidence to support the termination of parental rights of Denzel’s mother and father, and appointed the commissioner as Denzel’s statutory parent. Specifically, the trial court found that the commissioner established by clear and convincing evidence the adjudicatory grounds of abandonment, failure to achieve rehabilitation and no ongoing parent-child relationship with respect to both parents.Fur-thermore, the trial court, in the dispositional phase, found by clear and convincing evidence that it was in Denzel’s best interests that parental rights be terminated. The court also ordered a case plan for permanency within ninety days. See General Statutes (Rev. to 1997) § 17a-112 (i).

The grandmother does not challenge the trial court’s finding that the statutory grounds for the termination of parental rights existed. Her motion to intervene in the adjudicatory phase of the hearing was denied, and this appeal does not address any of the trial court’s findings with respect to that phase of the hearing. She claims, instead, that the trial court improperly determined that termination of parental rights was in Den-zel’s best interests. She also claims that the trial court improperly failed to consider her motion for revocation of the commitment of Denzel to the commissioner, and improperly failed to transfer Denzel’s guardianship and custody to her.

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings axe clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991) .... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 222, 435 A.2d 24 (1980)]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Citations omitted; internal quotation marks omitted.) In re Danuael D., 51 Conn. App. 829, 836-37, 724 A.2d 546 (1999); In re Roshawn R., 51 Conn. App. 44, 51-52, 720 A.2d 1112 (1998). It is thus possible for a court to find that a statutory ground for termination of parental rights exists but that it is not in the best interests of the child to terminate the parental relationship, although removal from the custody of the parent may be justified. In re Baby Girl B., 224 Conn. 263, 279-80, 618 A.2d 1 (1992).

In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the parents’ parental rights is not in the best interests of the child. In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes (Rev. to 1997) § 17a-112 (e).

Here, the grandmother claims that even though statutory grounds exist for termination of parental rights, it is not in Denzel’s best interests that those rights be terminated. The grandmother claims that Denzel should remain committed to the custody of the commissioner in order to allow the grandmother to establish a relationship with him and eventually to assume guardianship. In essence, the grandmother argues for time so that she could be considered in the future as a resource for Denzel. She claims that it is in Denzel’s best interests to be placed eventually with her and his biological family rather than to terminate parental rights, which would allow him to be freed for adoption by strangers.

This case requires a resolution of the parameters of the role of an intervening grandparent in the disposi-tional phase of a termination of parental rights action. During the dispositional phase, the court must consider all of the facts that are relevant to the welfare of the child. “Termination of parental rights does not follow automatically from parental conduct justifying the removal of custody.” In re Baby Girl B., supra, 224 Conn. 279. After the statutory grounds for termination are proved by clear and convincing evidence in an adjudicatory phase, the question then to be decided in a dispositional phase is whether it is in the best interests of the child to sever the parent-child relationship. That is different from the question of who should have custody of the child if termination of parental rights is determined to be in the best interests of the child. See Practice Book § 33-5.

The only reason in this case not to sever the parent-child relationship would be if the severance would ensure that Denzel could reside with his grandmother. Where he should reside and with whom, however, are not questions that relate to whether it is in his best interests to terminate his relationship with his parents. “It bears emphasis that a judicial termination of parental rights may not be premised on a determination that it would be in the child’s best interests to terminate the parent’s rights in order to substitute another, more suitable set of adoptive parents.” In re Baby Girl B., supra, 224 Conn. 280. The purpose of the intervention of a grandparent in a termination of parental rights case does not include the right to effect an adoption or to obtain custody for the grandparent but is solely for the purpose of affecting the termination itself. In re Ryan V., 46 Conn. App. 69, 72, 698 A.2d 371 (1997).

The appellant grandmother in this case may well be the appropriate custodian or adoptive parent. Our review of the transcript reveals that as of the date of the dispositional hearing, she was the only prospective adoptive par ent. Her ability to accomplish that remains for another day. See id., 73-74.

In this case, the grandmother sought to establish her own suitability as a custodian or adoptive parent, rather than to establish whether termination of parental rights was in the best interests of Denzel. To delay the termination of parental rights would delay the finding of a permanent home for Denzel, whether that home should be with his grandmother, which, as of the hearing date, seemed appropriate, or with some other person or persons.

The trial court discussed the appropriate criteria under § 17a-112 (e) and we conclude that it acted properly in terminating parental rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       The appellant grandmother was not involved in that case and no appeal was taken from that judgment.

       General Statutes (Rev. to 1997) § 17a-112 (a) provides in relevant part: “In respect to any child in the custody of the Commissioner of Children and Families in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in a pending or prior proceeding . . . may petition the court for the termination of parental rights with reference to such child. . . .”

       General Statutes (Rev. to 1997) § 46b-129 (g) provides in relevant part: “Any court by which a child or youth has been committed pursuant to the provisions of this section may, upon the application of the attorney who represented such child in a prior or pending commitment proceeding . . . or other relative of such child or youth ... or said commissioner, and while such child or youth is under the guardianship of said commissioner, upon hearing, after reasonable notice to said commissioner . . . upon finding that cause for commitment no longer exists, revoke such commitment, and thereupon such guardianship and all control of said commissioner over such child or youth shall terminate. . . .”

       The court ordered a transcript of the proceedings to “constitute a judgment of the court.”

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a [termination] petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) that termination is in the best interest of the child, and (3) that over an extended period of time, which . . . shall not be less than one year ... (A) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the parent of a child . . . has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; (C) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. . . . (D) There is no ongoing parent-child relationship ... or (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent’s parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families.”

       General Statutes (Rev. to 1997) § 17a-112 (i) provides in relevant pari,: “In the ease where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court within ninety days of the date judgment is entered on a case plan, as defined by the federal Adoption Assistance and Child Welfare Act of 1980, for the child. . . .”

       The commissioner argued for the termination of parental rights and for the appointment of the commissioner as statutory parent. The appellant argued that it was not in the best interests of the child to terminate parental rights, and the child’s attorney argued that the best interests of the child required placement with the grandmother. The child’s attorney did not argue the best interests of the child as they related to the termination of parental rights.

       In view of our decision as to the first issue raised, it is not necessary to discuss this second claim. Furthermore, the motion was never decided, and the transcript indicates that the appellant agreed that it would not be addressed "at this time. ” The trial court took no action because it determined that the mol ion was not timely filed and because the motion was inappropriate in a dispositional hearing on a termination of parental rights. The appellant claims that the court’s inaction was plain error. The court’s action in this situation was not plain error. See State v. Webb, 238 Conn. 389, 457, 680 A.2d 147 (1996).

       General Statutes (Rev. to 1997) § 17a-112 (e) provides in relevant part: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court, shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with tire parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future . . . and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       Practice Book § 33-5 provides in relevant part: “The judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing, but no disposition may be made by the judicial authority until any mandated social study has been submitted to the court. . . .”


author: SULLIVAN, J.

text:
    SAM HINES v. WILLIAM DAVIS
    (AC 18037)
    Schaller, Spear and Sullivan, Js.
    Argued March 18
    officially released June 22, 1999

      Conrad Ost Seifert, with whom, on the brief, was Barry Ward, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom was JosephM. Busher and, on the brief, Philip R. Dunn, Jr., for the appel-lee (defendant).
   Opinion

SULLIVAN, J.

The plaintiff, Sam Hines, appeals from a judgment, rendered after a jury trial, in favor of the defendant. The plaintiff claims that the trial court improperly (1) excluded expert testimony and (2) instructed the jury on General Statutes § 14-218a. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 23, 1994, at 11:15 a.m., the defendant was traveling southbound in his car on Route 87 in Bozrah, approaching the intersection with Stockhouse Road. That part of Route 87 is straight and relatively new, and the weather was dry and sunny. The plaintiff, who was thirteen years old, was riding his bicycle eastward on Stockhouse Road in the direction of Route 87. The defendant noticed what appeared to be a green streak and applied his brakes. The defendant’s car struck and injured the plaintiff.

The plaintiff brought suit against the defendant, alleging negligence. The defendant in his answer denied negligence and asserted the special defense of contributory negligence. The jury returned a verdict in favor of the defendant.

I

The plaintiff first claims that the trial court improperly excluded the testimony of an expert witness on the alternate bases that (1) the testimony opined a cause of the accident that exceeded the limits to which courts permit proximate cause to run and (2) went to the ultimate issue in the case. We disagree.

At trial, the plaintiff sought to introduce testimony by William A. Vliet, an accident reconstruction expert, that the accident would not have occurred if the defendant had been traveling at the speed limit of forty miles per hour rather than the forty-nine miles per hour that Vliet determined the car had been traveling. The defendant objected, and, after the plaintiffs offer of proof, the trial court excluded the testimony.

A

“Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions. Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 605-606, 662 A.2d 753 (1995). The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant’s negligent conduct. Doe v. Manheimer, 212 Conn. 748, 758, 563 A.2d 699 (1989).” First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 604, 724 A.2d 497 (1999). Alternatively stated, “the test for determining whether particular conduct is a proximate cause of an injury [is] whether it was ‘a substantial factor in producing’ the result. Mahoney v. Beatman, 110 Conn. 184, 195, 147 Atl. 762 [1929] . . . .” (Citations omitted.) Kinderavich v. Palmer, 127 Conn. 85, 92, 15 A.2d 83 (1940). Speed alone, even rapid speed, does not suffice to establish proximate cause in a negligence action. See Wallace v. Waterhouse, 86 Conn. 546, 86 A. 10 (1913) (plaintiffs mere showing of defendant’s speed and collision with dog does not establish proximate cause without conjecture and speculation); Channel v. Mills, 77 Wash. App. 268, 281, 890 P.2d 535 (1995) (evidence that excessive speed brought drivers to same point at same time is irrelevant and does not establish proximate cause).

At the plaintiffs offer of proof, Vliet testified that “[his] conclusion of the analysis of forty miles an hour versus forty-nine miles an hour was that the car and the bicycle would not have collided.” The fact that the defendant’s particular speed resulted in his collision with the plaintiff at a specific point and time does not create a sufficient causal link to impose liability. The offer of proof does not indicate that the plaintiffs speed prevented him from avoiding a collision that he could have avoided if he were traveling at forty miles per hour. The defendant’s particular speed is too remote and attenuated to constitute proximate cause.

B

Even if we assume, arguendo, that Vhet’s testimony was relevant to causation, the testimony was inadmissible as testimony concerning the ultimate issue in the case.

“An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. . . . An expert may, however, give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass .... The trial court’s exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 35 Conn. App. 51, 70, 644 A.2d 923 (1994).

The circumstances here do not warrant a departure from the general rule. We conclude that the trial court did not abuse its discretion in excluding Vliet’s testimony.

II

The plaintiff also claims that the trial court improperly charged the jury regarding unreasonable speed. Specifically, the plaintiff contends that the trial court improperly failed to read to the jury those parts of § 14-218a concerning (1) the state traffic commission’s determination and posting of speed limits and (2) the driver’s duty to decrease his speed, irrespective of the posted limit, where “special hazards” or weather and highway conditions so dictate. We disagree.

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and [whether it] sufficiently guided the jury on the issues presented at trial. . . . State v. Elijah, 42 Conn. App. 687, 691, 682 A.2d 506, cert. denied, 239 Conn. 936, 684 A.2d 709 (1996).” (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 774, 720 A.2d 242 (1998).

The trial court instructed the jury that a violation of the posted speed limit “is prima facie evidence of unreasonable speed.” The court made clear the import of the posted speed limit, and the fact that the state traffic commission sets those limits and posts the signs adds little or nothing to the weight of those speed limits. The trial court also instructed the jury that “under [some] circumstances, a veiy low rate of speed may be negligent.” The trial court’s decision not to use the exact statutory language has no significance. Although the trial court did not read § 14-218a to the jury in its entirety, the court’s instruction as a whole sufficiently informed and guided the jury concerning its duty and the relevant law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-218a provides in relevant part: “(a) No person shall operate a motor vehicle upon any public highway of the state, or road of any specially chartered municipal association or any district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any parking area as defined in section 14-212, or upon a private road on which a speed limit has been established in accordance with this subsection, or upon any school property, at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions. The State Traffic Commission may determine speed limits which are reasonable and safe on any state highway, bridge or parkway built or maintained by the state, and differing limits may be established for different types of vehicles, and may erect or cause to be erected signs indicating such speed limits. The traffic authority of any town, city or borough may establish speed limits on streets, highways and bridges or in any parking area for ten cars or more or on any private road wholly within the municipality under its jurisdiction; provided such limit on streets, highways, bridges and parking areas for ten cars or more shall become effective only after application for approval thereof has been submitted in writing to the State Traffic Commission and a certificate of such approval has been forwarded by the commission to the traffic authority; and provided such signs giving notice of such speed limits shall have been erected as the State Traffic Commission directs, provided the erection of such signs on any private road shall be at the expense of the owner of such road. The presence of such signs adjacent to or on the highway or parking area for ten cars or more shall be prima facie evidence that they have been so placed under the direction of and with the approval of the State Traffic Commission. Approval of such speed limits may be revoked by said commission at any time if it deems such revocation to be in the interest of public safety and welfare, and thereupon such speed limits shall cease to be effective and any signs that have been erected shall be removed. Any speed in excess of such limits, other than speeding as provided for in section 14-219, shall be prima facie evidence that such speed is not reasonable, but the fact that the speed of a vehicle is lower than such limits shall not relieve the operator from the duty to decrease speed when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.

        “(c) Any person who operates a motor vehicle at a greater rate of speed than is reasonable, other than speeding, as provided for in section 14-219, shall commit the infraction of traveling unreasonably fast.” In 1994, subsection (c) was subsection (b).

       The 1rial court’s instruction to the jury stated in relevant part,: “That statute I just mentioned [§ 14-218a] reads in relevant part as follows: ‘No person shall operate a motor vehicle upon any public highway of the state at a rate of speed greater than is reasonable, having regard to the width, traffic and use of the highway, the intersection of streets and weather conditions.’
      “Now there [are] two mentions of speed, both common-law and statutory. So let me—but they will be so similar as to have the distinction blur, but I will charge you on both methods. Unreasonable speed is that rate of movement which is greater than reasonable under all of tíre circumstances. Under some circumstances, a high rate of speed may not be negligence; under other circumstances, a very low rate of speed may be negligent. So it’s for you to determine under that part of the. statute whether or not the rate of speed was unreasonable on the day in question.
      “Violation of a posted speed, however, and now I’m getting into the statutory negligence, is prima facie evidence of unreasonable speed, but prima facie evidence means that if you choose to find the speed unreasonable, proof of violation of the speed limit can be sufficient, but it doesn’t have to be if you find that even though the speed limit was violated, the speed at which the vehicle was driven was not unreasonable. So with statutory negligence, if you find the statute violated, that’s negligence, but the statutory negligence claim in this case is a violation of the statute which requires a reasonable speed. So there’s not a lot of functional difference between a specification of common-law negligence alleging unreasonable speed and a specification of common-law negligence which alleges a violation of a statute, but the statute requires that you don’t drive at an unreasonable speed. It gets circular. Sorry I had to take you through it. The bottom line is if the speed is reasonable, there’s neither common-law [nor] statutory negligence. If the speed is unreasonable considering all the circumstances, then there’s both common-law and statutory negligence.”


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. CHRISTINE GONDA
    (AC 17400)
    Lavery, Hennessy and Stoughton, Js.

      Argued February 25
    officially released June 22, 1999

      James Moreno, special public defender, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was Jonathan Benedict, state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Christine Gonda, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. On appeal, the defendant claims that (1) the state failed to present sufficient evidence to sustain her conviction in violation of the fifth and fourteenth amendments to the constitution of the United States and article first, § 8, of the Connecticut constitution, (2) the state improperly argued that reasonable doubt is not doubt suggested by the ingenuity of counsel and (3) the trial court improperly charged the jury by (a) failing to instruct the jury that mere presence at the crime scene, even coupled with knowledge of the crime, is insufficient to establish guilt, (b) instructing the jury that reasonable doubt is not a doubt suggested by the ingenuity of counsel and (c) diluting the state’s burden of proof with its motive instruction.

The jury reasonably could have found the following facts. The defendant, who was forty-nine years of age at the time of the murder, had been a friend of the victim, Edward Kerishian, who was in his late sixties, for many years. The two resided in the victim’s condominium on Madison Avenue in Bridgeport. The defendant was named in the victim’s will as a beneficiary of his estate; specifically, she was to inherit the condominium.

Peter Gonda is the defendant’s adult son. The defendant and Peter were constantly in need of money and frequently borrowed money from friends and neighbors. The defendant worked part time as a waitress at a pizza restaurant; Peter was unemployed. At some time prior to the victim’s murder, Peter had taken the victim’s credit cards and incurred debt, for which he was arrested. Although the victim helped Peter with respect to the arrest, the victim no longer wanted to associate with Peter.

Prior to March 27, 1996, Holly Marshall, who was Peter’s landlord, and James Pavliscak overheard the defendant and Peter discussing plans to kill the victim. The defendant and Peter discussed having put poison in the victim’s food and recruiting teenagers to break into the condominium to assault and murder the victim. Peter and the defendant also asked Pavliscak to break into the condominium and kill the victim. Both the defendant and Peter offered to pay the teenagers for their assistance.

On March 26, 1996, the day before the murder, Peter met Pavliscak, who was driving an automobile. Peter asked Pavliscak to provide transportation for the defendant from her place of work. When she entered his automobile, the defendant asked Pavliscak if he would enter her home late at night and kill the victim. Peter volunteered that Pavliscak could kill the victim any way he wanted. The defendant gave Pavliscak a key to the condominium. When they left the automobile at the condominium, the defendant and Peter told Pavliscak that they would call him at 2 or 3 a.m. Pavliscak went home and went to bed. The next day, there were seven pages on his beeper from the defendant’s condominium. Pavliscak did not return the calls.

On March 27, Peter telephoned Pavliscak and asked why he had not come to the condominium the night before. Pavliscak told Peter he did not want to kill the victim. Peter told Pavliscak that he had to return the key to the condominium and arranged to meet him in the afternoon. When Pavliscak drove to the arranged meeting place, both the defendant and Peter got into his automobile. Pavliscak gave back the key. The defendant and Peter then asked him to drive them to downtown Bridgeport so they could look for someone. In the meantime, the defendant purchased beer for both Pavliscak and Peter. Pavliscak eventually drove the pair to an apartment complex, which Peter entered. He returned to the vehicle with Edward Garrett. Pavliscak then drove with the three others to the victim’s condominium.

When they arrived at the condominium, the defendant entered the building while the men remained outside. Peter spoke to his girlfriend, who drove up after they arrived. Pavliscak and Garrett drank beer and smoked marijuana. The defendant came back outside and told Pavliscak to use the bathroom inside the building. The defendant, Peter, Garrett and Pavliscak went into the condominium. The victim was present in the condominium when the group entered. Shortly thereafter, the victim and Peter began to argue and Peter hit the victim on the head with a beer bottle. Garrett attempted to hit the victim on the head with a beer bottle. The victim, bleeding profusely, fell back, clutching his chest. Pavlis-cak swung at the victim. The defendant put a belt around the victim’s neck and pulled on it along with Peter, Garrett and Pavliscak.

As Pavliscak and Garrett left the condominium, Peter told them not to tell anyone what had happened. Pavlis-cak then went to work at his supermarket job. The defendant and Peter entered the supermarket later that day to purchase a cleaning product. They asked Pavlis-cak to let them borrow his automobile, but he refused. Peter threatened to kill Pavliscak and his mother if he told anyone of the murder. The defendant telephoned Pavliscak’s pager several times and he telephoned her when he finished working. According to Pavliscak, the defendant was very upset, saying that she needed him to come to her home. In the meantime, Pavliscak met Garrett and told him that the defendant wanted him to go to her home. Although Pavliscak was reluctant to do so, Garrett urged him to go and accompanied him.

When the two arrived at the condominium, the defendant was there and the victim’s body was wrapped in a blanket at the end of a hallway. The defendant wanted Pavliscak to take the body away in his car, but he declined. Peter then came in and told Pavliscak that they needed his help removing the body. When Pavlis-cak refused, Peter lifted his shirt revealing a pistol. The defendant, Peter and Garrett then placed the victim’s body in the backseat of Pavliscak’s automobile. The men drove and the defendant walked to a nearby field, where the defendant, Peter and Garrett transported the body from the automobile to the field adjacent to Gedul-dig Street. The defendant, Peter and Garrett then disposed of bloody clothes and sheets. The carpeting and couch in the condominium, which were covered with blood, were also discarded.

That same day, the defendant reported to the Bridgeport police that the victim was missing. She told the police and others that the victim had gone to New Jersey for Palm Sunday or Easter but had never arrived. She was concerned for his welfare because the victim was mentally ill and got confused. Several times when the police were investigating the victim’s whereabouts, the defendant and Peter told the police that the victim had once gone to Texas and Mexico without telling them. The defendant pawned several pieces of jewelry that the victim wore daily and some of his camera equipment.

Detective Giselle Doszpoj became involved in the investigation on April 12, 1996, and spoke to the defendant, who sounded very nervous. The next day, Doszpoj and other officers went to the condominium to talk to the defendant. When they arrived, Peter was in the condominium and told them that his mother had gone shopping at a building supply store. Doszpoj noticed that there was nothing covering the subflooring in the condominium. Peter explained that the carpeting had sustained water damage and was being replaced. As Doszpoj was leaving the parking lot, the defendant returned carrying floor tiles.

The next day the defendant telephoned Doszpoj and asked her to come to the condominium to see something. During her prior conversations with Doszpoj, the defendant repeatedly talked about Inspector James Gal-lick, who had investigated the murder of the defendant’s sister many years before. Gallick met Doszpoj at the condominium where the defendant showed them the contents of the victim’s closet. Although the victim was known to have a gun, the police found none. Doszpoj noticed that the floor of the condominium was now covered with tiles. After the police officers returned to the station, the defendant telephoned Doszpoj and told her that she needed to talk to Gallick right away.

Gallick returned to the condominium. When he arrived, the defendant told him that she had seen something and that she was afraid of some individuals. Gal-lick informed her that as a police officer he would have to report anything she told him. He asked her to go to the police station to give a statement. As Gallick was taking the defendant to the station, the defendant pointed to a vacant lot and said that something had been put there. When she arrived at the station, the defendant gave the first of two statements to Doszpoj. In her first statement, the defendant said that she had walked in on two men, who had killed the victim and disposed of his body. She gave the men fictitious names. She did not report this to the police because the men had threatened to harm her, her children and grandchildren. In the meantime, Gallick and another police officer returned to the vacant lot where they discovered the victim’s body. A short time after giving the first statement, the defendant told Doszpoj that she wanted to make a further statement. In her second statement, the defendant identified the two men as Ed and Jimmy and said that on the evening of the murder she had helped the men move the victim’s body to the lot by Geduldig Street.

An autopsy revealed that the victim had died as the result of a heart attack associated with an assault.

I

The defendant’s first claim is that there was insufficient evidence to sustain her conviction in violation of the fifth and fourteenth amendments to the constitution of the United States and article first, § 8, of the Connecticut constitution. Specifically, the defendant claims that the state failed to prove beyond a reasonable doubt that there was an agreement between the defendant and another person to murder the victim, that there was an overt act in furtherance of the alleged conspiracy and that the defendant had the requisite intent to commit murder. We do not agree.

“When reviewing sufficiency of the evidence claims, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . .

“[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Orhan, 52 Conn. App. 231, 235, 726 A.2d 629 (1999).

“We first turn to an examination of the nature of the crime of conspiracy. Conspiracy has long been recognized as an offense separate and distinct from the commission of the substantive offense. In re Luis R., 204 Conn. 630, 637, 528 A.2d 1146 (1987). The commission of the substantive offense and a conspiracy to commit it are separate and distinct crimes. . . . The crime of conspiracy is dependent on clear principles, and has characteristics and ingredients which separate it from all other crimes. Id.

“To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy. State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987); State v. Estrada, 28 Conn. App. 416, 420, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992). The state is also obligated to prove that the accused intended the conduct constituting a crime be performed. State v. Rouleau, supra [258]; State v. Channer, 28 Conn. 161, 168, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992). The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy. . . . State v. Rouleau, supra [258]. Conspiracy is an inchoate offense the essence of which is an agreement to commit an unlawful act. . . . The prohibition of conspiracy is directed not at the unlawful object, but at the process of agreeing to pursue that object. . . . Conspiracy is an anticipatorial offense distinguished by a corrupt agreement by two or more persons to commit a specific crime. . . . State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986).” (Internal quotation marks omitted.) State v. Hooks, 30 Conn. App. 232, 241-42, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993).

“To establish the crime of conspiracy . . . [the state must show] that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . While the state must prove an agreement, the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts. . . . Further, [conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons. . . . State v. Taylor, 239 Conn. 481, 495-96, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).” (Internal quotation marks omitted.) State v. Lopez, 52 Conn. App. 176, 184-85, 726 A.2d 620, cert. denied, 248 Conn. 917, 734 A.2d 568 (1999).

“ ‘An overt act is an essential ingredient of the crime of conspiracy; it may be committed by either coconspirator. State v. Walton, 227 Conn. 32, 48, 630 A.2d 990 (1993).’ ” State v. Forde, 52 Conn. App. 159, 170, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d 567 (1999). “The Walton case . . . established] that the conduct of one coconspirator can be attributed to another coconspirator to prove an element of a different substantive crime with which only one of the coconspirators is charged. This is so because in a conspiracy, an element of the crime can be attributed to any conspirator, regardless of which conspirator committed that overt act as long as the overt act is in pursuance of the conspiracy, is in furtherance of it and it is reasonably foreseeable as a necessary or natural consequence of the conspiracy. . . . The overt act in pursuance of a conspiracy does not have to be the same act for all of the conspirators.” (Citations omitted.) Evans v. Commissioner of Correction, 47 Conn. App. 773, 779, 709 A.2d 1136, cert. denied, 244 Conn. 921, 714 A.2d 5 (1998).

Jurors are the arbiters of fact. See New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 99, 709 A.2d 14 (1998). “Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . Furthermore, [t]his court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Sanchez, 50 Conn. App. 145, 150, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).

Our review of the record demonstrates that the jury heard evidence that the defendant and her son Peter discussed killing the victim. The two were in need of money and knew that the defendant was to inherit the victim’s condominium. They plotted to recruit teenagers to break into the condominium to kill the victim. They tried to poison the victim. The defendant and Peter both talked to Pavliscak about killing the victim and the defendant gave Pavliscak a key to the condominium. The defendant purchased beer for Peter and Pavliscak on the afternoon of the murder. The defendant let Peter, Garrett and Pavliscak into the condominium. Peter and Garrett struck the victim on the head with beer bottles. The defendant placed a belt around the victim’s neck and they all pulled on the belt. The victim died of a heart attack associated with an assault. The next day the defendant pawned the victim’s jewelry and camera equipment. We conclude, therefore, that it was not unreasonable for the jury to infer from the facts before it that the state proved beyond a reasonable doubt that the defendant agreed with another to murder the victim, that there was an overt act to further the conspiracy to kill the victim and that the defendant had the requisite intent to murder the victim.

II

The defendant’s second claim is that the state improperly argued that a reasonable doubt is not a doubt suggested by the ingenuity of counsel. She claims that her right to due process and a fair trial pursuant to the fifth, sixth and fourteenth amendments to the United States constitution and article first of the constitution of Connecticut were violated. We are not persuaded.

The defendant, on appeal, takes exception to the following portions of the state’s closing argument. At the beginning of his argument, the prosecutor said: “What is reasonable doubt? Of course, His Honor is going to instruct you about this law later. But generally it’s a doubt that is based upon reason and the evidence. It is not a doubt that is based on a guess or on sympathy or on the ingenuity of a witness or a lawyer. The state doesn’t have to prove its case beyond a possible doubt, to an absolute certainty. We went through this during jury selection. The state only has to prove its case beyond a reasonable doubt that is based on the evidence.”

During rebuttal, the prosecutor said: “If there were one word that we could boil everything that we do here down to, the word is reasonable. I mean first of all the state’s burden of proof is, as you well know, is to prove the case beyond a reasonable doubt, which is not beyond all doubt, which is not beyond a doubt that is based on a guess or the ingenuity of an attorney, or on sympathy. It has to be a doubt that is based on reason and the evidence.” The defendant did not object to either of these arguments at trial and seeks review of her claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Our resolution of this claim is governed by State v. Hines, 243 Conn. 796, 817-18, 709 A.2d 522 (1998), where our Supreme Court, relying on State v. Taylor, supra, 239 Conn. 504, held that a jury instruction containing language similar to the “ingenuity of counsel” language in the state’s final argument was not constitutional in nature and, therefore, was not reviewable under Golding. For the same reason, we will not review the defendant’s unpreserved claim.

Ill

The defendant’s final claims are that the trial court improperly charged the jury by (1) failing to instruct the jury that mere presence at the crime scene, even coupled with knowledge of the crime, is insufficient to establish guilt, (2) instructing the jury that reasonable doubt is not a doubt suggested by the ingenuity of counsel and (3) diluting the state’s burden of proof with its motive instruction. We disagree.

The defendant concedes that she failed to preserve any of these claims at trial, but asks that we review her claims of an improper jury instruction pursuant to State v. Golding, supra, 213 Conn. 239-40. See footnote 4. Although the defendant claims that the trial court’s charge violated her right to due process and a fair trial, she has failed to cite any law to support her position that her claims rise to the level of a constitutional violation. We will, therefore, not review these unpreserved claims of error in the trial court’s charge.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       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.”

       Pavliscak, a teenager, was arrested and charged with murder and conspiracy to murder the victim. He entered into an agreement to plead guilty to conspiracy to commit murder in return for a ten year sentence with the right to argue for a lesser sentence in return for testifying on behalf of the state.

       “[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Although we decline to review the defendant’s claim concerning the “ingenuity of counsel instruction” because she failed to preserve it, we remind the trial court that our Supreme Court, pursuant to its supervisory power, has instructed trial courts to refrain from using the “ingenuity of counsel” instruction. See State v. Taylor, supra, 239 Conn. 504.