author: Schaller, J.

text:
    State of Connecticut v. Edward Yopp
    (12036)
    (12037)
    O’Connell, Schaller and Spear, Js.

      Argued June 6
    decision released August 30, 1994

      Susan F. Filan, special public defender, with whom was Donald Dakers, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Elpedio Vitale, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (l), and one count each of larceny in the first degree in violation of § 53a-122 (a) (l), conspiracy to commit robbery in the first degree in violation of §§ 53a-48 (a) and 53a-134 (a) (l), attempted assault in the first degree in violation of §§ 53a-49 and 53a-59 (a) (l), larceny in the second degree in violation of § 53a-123 (a) (3), and theft of a firearm in violation of § 53a-212 (a). The defendant claims that the trial court improperly (1) denied his motion to suppress the identification procedure used by the police in violation of his right to counsel under both the fifth and sixth amendments to the United States constitution, (2) denied his motion to suppress the pretrial identification procedure utilized by the police in violation of his due process rights under the fourteenth amendment to the United States constitution, and (3) consolidated the two cases for trial, thus unduly prejudicing him and depriving him of his due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We affirm the judgment of the trial court.

The defendant was charged in two substitute informations. In the first case, the defendant was charged with robbery in the first degree, kidnapping in the second degree, and larceny in the first degree. In the second case, the defendant was charged with robbery in the first degree, conspiracy to commit robbery in the first degree, attempted assault in the first degree, larceny in the second degree, and theft of a firearm. The defendant elected to be tried by a jury of six and the two cases were consolidated for trial. The defendant was convicted of all charges except kidnapping in the second degree.

The jury reasonably could have found the following facts. In the early morning of October 18, 1991, Gary Malanson of West Haven drove his red Honda Civic to New Haven to buy cocaine. Underneath the front floor mat on the driver’s side was the passbook for a joint account held by Malanson and his mother. At about 1 a.m., Malanson saw Eddy Rosenbloom and James Fields standing together on Edgewood Avenue. Malanson had purchased cocaine from Rosenbloom on several occasions and knew that Fields was Rosenbloom’s supplier.

Rosenbloom and Fields entered Malanson’s Honda and Malanson drove to Rosenbloom’s apartment at 59 Derby Avenue. When Malanson stopped the car, Fields pointed a sawed-off shotgun at him and demanded $500. Malanson refused to give him the money. Fields told Malanson that he needed to borrow the car to take care of some business. He directed Malanson to go into Rosenbloom’s apartment and tell “E.K.,” later identified as the defendant, to come outside. Malanson waited in the apartment while Rosenbloom, Fields and the defendant drove away in the Honda. About forty-five minutes later, the three men returned to the apartment with the shotgun and four small bags of cocaine. Malanson and Fields used some of the cocaine. At about 3:30 a.m., Rosenbloom, Fields and the defendant took the shotgun and drove away in the Honda.

At 4 a.m., Gianfranco Benedetti left work at the New Haven Register. While he was stopped at a traffic light, a woman flagged him down, and stated that she needed a ride to Branford. Although Benedetti was heading in another direction, he agreed, after some pleading by her, to drive her to Branford.

On the way, the woman suggested taking a shortcut onto Dwight Street. While Benedetti was traveling on Dwight Street, a small red car sped past his car, cut in front of him and stopped. Three men got out of the car, identified themselves as police officers, and approached Benedetti’s car. Benedetti got out of his car, claiming to have done nothing wrong. The woman disappeared.

One of the men, later identified as the defendant, grabbed Benedetti, while a second man stood behind the defendant holding a sawed-off shotgun. Hoping to stop the men from harming him, Benedetti shouted, “I’m a cop!” When asked for identification by the defendant, Benedetti pulled a silver .22 caliber pistol out of his pocket. Although loaded, the pistol could not be fired until it was cocked and the safety was taken off. The defendant grabbed the pistol by the barrel and a struggle ensued between the defendant and Benedetti. The man with the shotgun ran down the street, while the third man began to hit Benedetti in the face and ribs. About three to five minutes later, the man with the shotgun returned and hit Benedetti with the gun. Benedetti let go of the pistol. The defendant told the man with the shotgun to shoot Benedetti, but he did not respond. The defendant then pointed the pistol in Benedetti’s face and pulled the trigger. The gun did not fire. The three men entered the red car and drove away.

At about 5:30 a.m., Rosenbloom, Fields and the defendant returned to Rosenbloom’s apartment. The three men left the apartment and returned about thirty minutes later. The defendant suggested that Malanson accompany them in the Honda. After driving a short time, they parked the car. The defendant pointed the shotgun at Malanson and, while holding Malanson’s bank passbook, demanded all the money in the account, $641. Malanson explained that there was a hold on the account for approximately $500, but that he would withdraw the balance when the bank opened. They drove back to Rosenbloom’s apartment.

Later that morning, the defendant accompanied Malanson to a branch of Centerbank. The defendant concealed the shotgun under his jacket. Malanson withdrew $161 and gave it to the defendant. Fields was waiting outside the bank. They drove to another branch of Centerbank where Malanson unsuccessfully attempted to withdraw the remaining money from the account.

The three then drove to Malanson’s home in West Haven. The defendant told Malanson to tell his mother that he had been in a car accident with the defendant and needed a check for $600 to pay for the damage to the defendant’s car. The defendant accompanied him inside the house. Malanson’s mother agreed to give him the money. Malanson made out a check to himself for $600, drawn from a joint account that he and his mother held at New Haven Savings Bank. Fields drove the defendant and Malanson to a New Haven Savings Bank branch in West Haven, where Malanson cashed the check and gave the proceeds to the defendant and Fields. Malanson was dropped off at Rosenbloom’s apartment, where he waited for Fields and the defendant to return with his car. They returned at about 7:30 p.m.

Four days later, on October 22,1991, Malanson saw the defendant at a gas station in West Haven. The defendant demanded $100, and Malanson gave him $20. Later that day, Fields knocked on Malanson’s door. Malanson looked out and then called the West Haven police. Upon the arrival of the police, Malanson told them about the events of October 18 and Fields was taken into custody.

I

The defendant claims that the trial court improperly denied the motion to suppress the identification procedure used by the police, in violation of his right to counsel pursuant to the fifth amendment to the United States constitution. The defendant also claims that the denial of the motion to suppress the identification procedure violated his right to due process of law under the fourteenth amendment to the United States constitution. Because the defendant did not preserve these claims at trial, and can prevail only if the claims meet the conditions set out in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), the claims will be considered together.

The following additional facts are necessary to resolve this matter. The defendant was charged with the robbery of Malanson and arraigned on November 7, 1991. Counsel was appointed at that time. On November 18,1991, Benedetti was asked to come to the police station to look at some individuals with regard to the crimes committed against him. Detective Mel Cartoceti of the New Haven police took Benedetti to the courthouse. When they entered the courthouse lobby, Cartoceti told Benedetti to look at everyone in the building, including those in the hallway, and to keep in mind the persons who had robbed him. They entered courtroom B. Court was not yet in session and there were ten to twenty other people in the room, including some African-Americans. The sheriff told Cartoceti that “they are going to bring in the individuals.” Twenty-three men came in and sat down. Fourteen were African-American. After looking at the men for a few minutes, Benedetti pointed out the defendant as the man he believed to be the robber who had fought with him for the pistol. Benedetti later indicated he was 80 percent sure of his identification.

“In State v. Golding, [supra, 213 Conn. 233] our Supreme Court reformulated the test of reviewability in [State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973)]. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim 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. ...” (Citations omitted; internal quotation marks omitted.) State v. Velez, 30 Conn. App. 9, 20, 618 A.2d 1362, cert. denied, 225 Conn. 907, 621 A.2d 289 (1993); State v. Gamble, 27 Conn. App. 1, 13, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992). We conclude that the defendant has failed to provide an adequate record on which to review these claims and thus fails to meet the first prong of Golding.

Our Supreme Court stated in State v. Golding, supra, 213 Conn. 240, that “[t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” The record in this case does not provide an adequate basis for reviewing either of the defendant’s claims.

A

The evidentiary support for the defendant’s fifth amendment claim consists entirely of the representations of counsel at trial regarding what allegedly had occurred leading up to the identification procedure. “[Statements of counsel are not evidence.” State v. Roman, 224 Conn. 63, 68, 616 A.2d 266 (1992), cert. denied, U.S. , 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993). There is no actual evidence in the record establishing that the defendant objected to being taken to the courthouse for the lineup. The record is insufficient, as well, to determine whether the defendant invoked his fifth amendment right to counsel prior to the identification proceeding. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Accordingly, the defendant’s fifth amendment claim must fail because he cannot satisfy the first prong of Golding.

B

The defendant’s fourteenth amendment due process claim also fails for lack of an adequate record on which to review the claim. The defendant failed to incorporate into the record the decision of the trial court from the suppression hearing on this issue. Neither a written memorandum of decision nor a transcript signed by the trial court presiding at the suppression hearing was included in the record. See Practice Book § 4059. We, therefore, have no way of knowing the reasoning of the trial court in denying the motion to suppress.

The record, therefore, contains no evidence indicating that the identification procedure used “was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification.” State v. Arroyo, 13 Conn. App. 687, 690, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988). Because the defendant has not provided us with an adequate record, he fails to satisfy the first prong of Golding.

II

The defendant also claims that the trial court improperly admitted into evidence the identification procedure in violation of his sixth amendment right to counsel. Because the issues are inadequately briefed, we decline to review this question. State v. Rumore, 28 Conn. App. 402, 410-11, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). In the absense of a sufficient review and analysis of the case law applicable to this case, we have no basis on which to determine whether the defendant’s sixth amendment right to counsel was violated.

Ill

The defendant’s final claim is that the trial court improperly granted the state’s pretrial motion to consolidate the two informations filed against him over his objection. He asserts that the resulting prejudice was beyond the curative power of the trial court’s instructions and deprived him of his right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We do not agree.

The trial court has broad discretion as to whether to join separate charges for trial. Practice Book § 829; State v. Boscarino, 204 Conn. 714, 720, 529 A.2d 1260 (1987); State v. Rose, 29 Conn. App. 421, 429-30, 615 A.2d 1058, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992); State v. Carpenter, 19 Conn. App. 48, 62, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). “The court enjoys broad discretion which, absent manifest abuse, an appellate court may not disturb.” State v. Owens, 25 Conn. App. 181, 193, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991); State v. King, 187 Conn. 292, 299, 445 A.2d 901 (1982). To demonstrate that the trial court abused its discretion, the defendant bears the heavy burden of showing that the joinder resulted in substantial injustice beyond the curative power of jury instructions. State v. Herring, 210 Conn. 78, 94-95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Whether a joint trial will be substantially prejudicial to the rights of the defendant means more than that it will be less advantageous to the defendant. State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982); State v. Rose, supra, 429-30.

When a defendant stands accused of two or more similar offenses, they may be joined at trial if they are based on related acts that evince a common scheme, intent or motive. State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988). In this case, the crimes arose out of a sequence of events, with interrelated facts, occurring in the same twenty-four hour period.

Joinder is considered appropriate where evidence of one crime is admissible in the trial of another. Id., 464; State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987). In this case, much, if not all, of the testimony of the two victims was admissible in both cases. “Where evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial." (Emphasis in original.) State v. Pollitt, supra, 68. There would be no significant benefit to the defendant by having separate trials because evidence of one crime would be admissible in the other trial. Therefore, the defendant is not substantially prejudiced by the joinder of the informations.

Our Supreme Court has held that a trial court should consider several factors in determining whether severance is required. “These factors include: (1) whether the charges involved discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred." (Citations omitted; internal quotation marks omitted.) State v. Jennings, 216 Conn. 647, 658, 583 A.2d 915 (1990); State v. Rose, supra, 29 Conn. App. 429-30. We conclude that joinder did not result in substantial injustice.

First, the charges against the defendant involved discrete, easily distinguishable factual scenarios. Although both crimes occurred in the same twenty-four hour period, they had different factual circumstances and different victims. One case did not involve violence, but rather a victim, Malanson, who knew the people who robbed him. The other case involved the stopping of a car, and a violent struggle over a pistol in which the victim sustained injuries. In that case, the victim, Benedetti, was not familiar with the perpetrators. The distinctiveness of the factual scenarios made it unlikely that the jurors would confuse the two cases.

Second, although an element of violence was involved in this case, the conduct was not so brutal or shocking as to create a substantial risk that the jury, with explicit instructions to treat each offense separately, would nevertheless treat the evidence cumulatively. The physical harm inflicted on Benedetti was not of the type the Supreme Court considered brutal or shocking in State v. Boscarino, supra, 204 Conn. 723; see State v. Herring, supra, 210 Conn. 96.

Third, the trial was of short duration and the evidence was not complex. The jury heard the testimony of ten witnesses over six days with the admission of twenty-nine exhibits. See State v. Herring, supra, 210 Conn. 97; cf. State v. Boscarino, supra, 204 Conn. 723-24. “The complexity and risk of confusion [at] trial did not approach that involved in Boscarino.” State v. Herring, supra, 97.

“Finally, although ‘ “a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissible other crimes] evidence” ’; State v. Boscarino, supra, [204 Conn.] 724-25, quoting State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980); where the likelihood of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the defendant’s right to a fair trial has been preserved.” State v. Herring, supra, 210 Conn. 97. In this case the trial court admonished the jury to keep the informations separate and consider only the evidence that was pertinent to the particular charge in reaching a verdict on that charge. The trial court’s instruction further minimized any risk of prejudice that might have been caused by the joinder in this case. We conclude that the trial court did not abuse its discretion in granting the state’s motion to consolidate.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime . . . .”

       General Statutes § 53a-122 provides in pertinent part: “(a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and: (1) The property or service, regardless of its nature and value, is obtained by extortion . . . .”

       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.”

       See footnote 1.

       General Statutes § 53a-49 provides in pertinent part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument

       General Statutes § 53a-123 (a) provides in pertinent part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”

       General Statutes § 53a-212 (a) provides: “A person is guilty of stealing a firearm when, with intent to deprive another of his firearm or to appropriate the same to himself or a third party, he wrongfully takes, obtains or withholds a firearm, as defined in subdivision (19) of section 53a-3.”

       General Statutes § 53a-94 provides in pertinent part: “(a) A person is guilty of kidnapping in the second degree when he abducts another person.”

       Our Supreme Court has held that we “remain free to dispose of the claim ‘by focusing on whichever condition is most relevant in the particular circumstances.’ ” State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990), quoting State v. Golding, supra, 213 Conn. 240. Thus, we need not consider any of the remaining conditions.

       Practice Book § 829 provides: “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Armond Rouillard v. Commissioner of Correction
    (12205)
    Lavery, Freedman and Spear, Js.
    Argued May 4
    decision released August 30, 1994

      Edwin C. Pearson, for the appellant (petitioner).

      Margaret Gaffney Rodionovas, assistant state’s attorney, with whom, on the brief, were John M. Bailey,
      chief state’s attorney, and John Dropick, assistant state’s attorney, for the appellee (respondent).
   Lavery, J.

The petitioner appeals from the dismissal of his petition for a writ of habeas corpus. He raises the following claims on appeal: (1) he received ineffective assistance from his trial counsel; (2) the trial court’s canvass failed to comply with Practice Book § 711 (2) and (4); and (3) the state violated his right to due process when it altered the date of the alleged offense on the information. We affirm the judgment of the trial court.

The following facts are not disputed. On February 20, 1985, the petitioner pleaded nolo contendere to one count of sexual assault in the first degree in violation of General Statutes § 53a-70, and one count of risk of injury to a child in violation of General Statutes § 53-21, on an information brought to the Superior Court in geographical area number twelve (hereinafter the G.A. 12 case). On March 1, 1985, the petitioner pleaded nolo contendere to a total of three counts of sexual assault in the second degree in violation of General Statutes § 53a-71, on informations brought to the Superior Court in geographical area number thirteen (hereinafter the G.A. 13 cases). The petitioner entered these pleas under the Alford doctrine. In return for his pleas in all of the cases, the petitioner received a total effective sentence of thirty to forty-five years in prison.

On October 22,1985, the petitioner appeared before the sentence review board seeking review of his sentences in these cases. The board dismissed the case and the petitioner appealed the dismissal to this court. This court dismissed that appeal on December 9,1986. The petitioner initiated habeas corpus proceedings on February 23,1987, to challenge the validity of the convictions.

I

The petitioner claims that his guilty pleas in the G.A. 13 cases were invalid because the trial court failed to comply with Practice Book § 711. Specifically, the petitioner claims that the trial court failed to canvass him as directed by § 711 (2) and (4).

Practice Book § 711 details the requirements for a guilty plea, ensuring that a plea is made knowingly and voluntarily. In particular, § 711 (4) requires that the judicial authority must first address the defendant personally to determine that the defendant fully understands the maximum possible sentence on the charge, including, if there are several charges, the maximum sentence from consecutive sentences. Practice Book § 711 (4) is an express recognition that the defendant’s awareness of the maximum sentence possible is an essential factor in determining whether to plead guilty. State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985). The defendant is constitutionally entitled to be informed of the direct consequences of his plea as the length of time a defendant may have to spend in prison is clearly crucial to a decision to plead guilty. Sherbo v. Manson, 21 Conn. App. 172, 181, 572 A.2d 378, cert. denied, 215 Conn. 808, 809, 576 A.2d 539 (1990).

The habeas court correctly rejected the petitioner’s claim that the trial court failed to comply with the constitutional mandate recognized by Practice Book § 711 (4). The record clearly reveals that the petitioner understood, as required by Practice Book § 711 (4), the maximum possible sentences for all offenses, and that the sentences could be imposed consecutively. Thus, the trial court properly canvassed the defendant and the defendant’s claim must fail.

Second, the petitioner claims that the trial court’s canvass did not comply with the requirements of Practice Book § 711 (2). After the habeas court found that there was no deliberate bypass of orderly procedures respecting relevant substantive claims, the habeas court summarily dismissed the petitioner’s § 711 (2) claim as being without merit. Because the habeas court dismissed the claim without explanation and the petitioner did not file a motion for articulation of the court’s decision, there is no record before us explaining the habeas court’s reasoning.

In accordance with Practice Book § 4059, the petitioner has a duty to provide this court with a record for review. “The [petitioner] failed to follow the relatively simple rules established to guarantee the presentation to this court of a record appropriate for review.” Holmes v. Holmes, 32 Conn. App. 317, 322, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). As there was a total failure on the petitioner’s part to comply with Practice Book § 4059, the petitioner’s claim must fail. Economy Sales & Service Co. v. Family Center Pharmacy, Inc., 33 Conn. App. 822, 826, 639 A.2d 1042 (1994).

II

The petitioner next claims that the habeas court should have found that the alteration of the date of the alleged offense violated his due process rights. The state’s attorney in the G.A. 13 cases changed the date of the offense charged from “June 1976” to “December 1979.” The habeas court noted that this change occurred after a review of all the evidence. The habeas court found that the facts available to the state’s attorney supported the change of offense date. The habeas court also found that the petitioner had not deliberately bypassed direct appeal of this claim, but did not specifically address the merits of the claim. Instead, the court swept the petitioner’s claim out with all other unaddressed issues in the final sentence of its opinion: “All other claims made in or within the purview of the Third Revised Amended Petition herein are dismissed.” As the habeas court dismissed the claim without explanation and the petitioner did not file a motion for articulation of the court’s decision, the petitioner, here as in part I, completely failed to fulfill his duty under Practice Book § 4059 and his claim must fail. See Economy Sales & Service Co. v. Family Center Pharmacy, Inc., supra, 33 Conn. App. 826.

Ill

The petitioner next claims that his guilty pleas are invalid because he lacked effective assistance of counsel in the G.A. 13 cases. The right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). A petitioner claiming ineffective assistance of counsel must satisfy a two-pronged test: (1) that his attorney made errors so serious as to cease functioning as counsel, and (2) that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991), quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “The ‘ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.’ ” Phillips v. Warden, supra, 134.

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

The petitioner’s claim of ineffective counsel consists of three parts. He claims that his trial counsel was ineffective for failing (1) to advise him “concerning his right to appeal the trial court’s possible violation of Practice Book § 711,” (2) to “raise the issue of the underlying basis for the change of the date of the alleged offense by the prosecutor,” and (3) to “file a motion to dismiss, pursuant to the statute of limitations.”

A

As to the petitioner’s first claim concerning ineffective assistance of counsel, the petitioner claims that the trial court’s canvass did not comply with Practice Book § 711 and, therefore, his counsel should have advised him regarding the possibility of challenging the canvass on appeal. As noted in part I, the trial court did comply with Practice Book § 711 when it canvassed the petitioner. Thus, there were no grounds on which the attorney could recommend an appeal. To the extent that a good faith argument could have been made in support of the petitioner’s claim, the attorney’s error would not be so serious as to satisfy the first prong of Strickland. “Errors alone do not give rise to a claim of ineffective assistance; only errors so serious that counsel ceased functioning as counsel guaranteed by the sixth amendment.” Falby v. Commissioner of Correction, 32 Conn. App. 438, 442, 629 A.2d 1154, cert. denied, 227 Conn. 927, 632 A.2d 703 (1993).

B

The petitioner next claims that his counsel was ineffective because he failed to raise the issue of the underlying basis for the change of date of the alleged offense by the prosecutor. As noted in part II of this opinion, the habeas court found that the facts supported the change of date. Therefore, it is at best questionable that the petitioner’s attorney erred by not raising the issue. Even if there was error on the part of the attorney, however, the error was not so serious as to satisfy the first prong of Strickland. See id.

C

The petitioner’s final claim is that his counsel failed to investigate and assert a statute of limitations defense properly. The record indicates that petitioner’s counsel was aware of a potential statute of limitations defense, thoroughly investigated the issues and discussed them with the petitioner. The flaw in that defense was that the petitioner had been out of the state for approximately two and one-half years following the offenses. The record shows that the petitioner’s counsel believed that the petitioner’s absence from the state would defeat the statute of limitations defense under General Statutes § 54-193 (c). Section 54-193 (c) tolls the statute of limitations while an accused resides out-of-state.

The petitioner now challenges his counsel’s belief that the statute of limitations defense would be defeated and alleges that such a belief constitutes ineffective assistance of counsel. The question is not whether his counsel’s interpretation was correct, but only whether it was one a reasonably competent attorney could have made. Aillon v. Connecticut, 597 F. Sup. 158 (D. Conn. 1984), aff'd, 770 F.2d 157 (2d Cir. 1985), cert. denied, 478 U.S. 1021, 106 S. Ct. 3335, 92 L. Ed. 2d 740 (1986); Valeriano v. Bronson, 209 Conn. 75, 546 A.2d 1380 (1988). The habeas pourt found that, in light of counsel’s investigation of the relevant facts and law, it could be concluded, reasonably, that a statute of limitations defense was indeed questionable.

We conclude that counsel’s conduct may have been in error, but was certainly not “so serious that counsel ceased functioning as counsel guaranteed by the sixth amendment.” Falby v. Commissioner of Correction, 32 Conn. App. 442. Thus, the petitioner has failed to satisfy the first prong of Strickland.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petition was dismissed as to all claims, except that the petitioner’s right to sentence review was reinstated.

       General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age ....
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes (Rev. to 1979) § 53a-71 provides: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age, or (2) mentally defective, mentally incapacitated or physically helpless, or (3) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (4) such other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person.
      “(b) Sexual assault in the second degree is a class C felony.”

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

       The transcript adequately reflects that the petitioner understood the maximum possible sentences for all offenses, and that the sentences could be imposed consecutively.
      “The Court: Has your counsel informed you of the maximum sentence?
      “Mr. Rouillard: Yes.
      * * *

      “The Court: Are you aware that in each of these counts the maximum penalty is ten years in prison . . . and that they can run consecutively for a total effective potential sentence . . . are you aware of that?
      “Mr. Rouillard: Yeah, I am.”

       This court notes that the habeas court should have employed the test for cause and prejudice and not the bypass test. Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). Notwithstanding this fact, the petitioner was not prejudiced, as he received a review on the merits.

       General Statutes § 54-193 (c) provides: “If the person against whom an indictment, information or complaint for any of said offenses is brought has fled from and resided out of this state during the period so limited, it may be brought against Mm at any time within such period, during which he resides in this state, after the commission of the offense.”


author: Spear, J.

text:
    Darryl McKnight v. Commissioner of Correction
    (12849)
    Heiman, Schaller and Spear, Js.
    Argued June 13
    decision released August 30, 1994

      Neal Cone, assistant public defender, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard Eisenman, assistant state’s attorney, for the appellee (respondent).
   Spear, J.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. He claims that the habeas court (1) improperly concluded that he had abandoned his claim that his guilty plea under the Alford doctrine was not voluntarily and intelligently entered, and (2) abused its discretion in refusing to permit the petitioner to reassert a previously withdrawn claim that his guilty plea was invalid. We affirm the judgment of the habeas court.

The record sets forth the facts and procedural history of this case. The petitioner was arrested and charged with murder in violation of General Statutes § 53a-54a. On January 22,1987, a probable cause hearing was held pursuant to General Statutes § 54-46a. As a result of the hearing, the court made a finding of probable cause. The petitioner eventually entered a guilty plea under the Alford doctrine and received a total effective sentence of imprisonment of twenty-five years. He did not appeal from the judgment of conviction.

On May 31,1989, the petitioner, represented by new counsel, filed a petition for a writ of habeas corpus. The petitioner claimed that his conviction was improper because (1) he was denied his constitutional right to the effective assistance of counsel at the probable cause hearing, and (2) his Alford plea was not made knowingly, intelligently and voluntarily. With regard to the first claim, the petitioner specifically argued that trial counsel failed to offer evidence or to make an offer of proof that the petitioner was not present at the scene of the crime, and that witnesses may have identified the perpetrator as someone other than the petitioner. He further argued that his plea was not entered intelligently and knowingly because he was not aware that his counsel had been ineffective at the probable cause hearing.

At the habeas hearing on July 19, 1993, the habeas court dismissed the petition, concluding that (1) the petitioner’s unconditional Alford plea served as a waiver of his antecedent claim of ineffective assistance of counsel at the probable cause hearing pursuant to State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991), and (2) the petitioner specifically abandoned any claim that his plea was not entered knowingly, intelligently and voluntarily. Having received certification from the habeas court pursuant to General Statutes § 52-470 (b), the petitioner appealed to this court.

I

The petitioner first claims that the habeas court improperly concluded that he had abandoned his claim that his guilty plea was not made voluntarily and intelligently. He contends that this claim was before the habeas court as “part of the claim that [the] petitioner had not received the effective assistance of counsel at the [probable cause hearing].” We disagree.

We first consider our scope of review. “In a habeas corpus appeal, this court may not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Veal v. Warden, 28 Conn. App. 425, 428, 611 A.2d 911, cert. denied, 224 Conn. 902, 615 A.2d 1046 (1992); Biggs v. Warden, 26 Conn. App. 52, 56, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). [W]e are called upon to 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. . . . Our function is not to examine the record to see if the trier of fact could have reached a contrary conclusion.” (Citation omitted; internal quotation marks omitted.) Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993).

The petitioner, in his fourth amended petition for a writ of habeas corpus, alleged, inter alia, that his guilty plea was not made knowingly, intelligently or voluntarily. The transcript of the May 19,1993 habeas hearing reveals, however, that this allegation was expressly withdrawn by the petitioner’s habeas counsel. Her concession that she would not pursue the issue of the validity of the petitioner’s guilty plea is bolstered by the absence of evidence on the record as to the petitioner’s state of mind when he entered the plea or what motivated him to do so. The petitioner did not testify at the habeas hearing and the petitioner’s trial counsel was never questioned about the circumstances surrounding the entry of the plea. We are therefore left to speculate as to why the petitioner’s plea was not made knowingly, voluntarily and intelligently. This we cannot do.

A review of the record reveals that the habeas court’s finding that the petitioner’s habeas counsel expressly waived the claim that the petitioner’s guilty plea was not validly made is not clearly erroneous.

II

The petitioner next claims that the habeas court abused its discretion in refusing to permit his habeas counsel to reinstate the petitioner’s plea claim. We disagree.

Our Supreme Court has held that if the plaintiff withdraws a claim and the action is still pending, “the plaintiff may be permitted, despite the withdrawal, to reinstate his claim.” Lusas v. St. Patrick’s Roman Catholic Church Corp., 123 Conn. 166, 169, 193 A.2d 204 (1937); Boothe v. Armstrong, 80 Conn. 218, 225-26, 67 A. 484 (1907). The trial court may exercise its discretion, however, to deny the reinstatement of a claim that has been expressly withdrawn. Only where the trial court has abused that discretion will this court order a reversal.

“[Ejvery reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” State v. Hamilton, 228 Conn. 234, 240, 636 A.2d 760 (1994). “Demonstrating that the trial court has abused its discretion is a difficult task.” Citicorp Mortgage, Inc. v. D’Avanzo, 31 Conn. App. 621, 627, 626 A.2d 800, cert. denied, 227 Conn. 909, 632 A.2d 690 (1993). At the habeas hearing on July 19,1993, the court commented that although habeas counsel had properly raised the issue of the effectiveness of the petitioner’s trial counsel at the probable cause hearing, she had specifically stated, at the initial habeas hearing on May 19 that she was not raising the validity or the voluntariness of the petitioner’s plea. It was not until the close of the final hearing on July 19 that the petitioner’s habeas counsel asked to reinstate the invalidity of the plea claim.

The record reveals that the hearings were held with the understanding that the validity of the petitioner’s plea was not at issue. The petitioner’s habeas counsel did not request the court to reinstate this claim until the close of the final hearing, after all of the evidence had been presented and the witnesses excused. If the trial court had agreed to reinstate the claim, the petitioner’s trial counsel would have had to have been recalled and questioned by the state as to the validity of the petitioner’s plea and the advice he gave the petitioner. The petitioner’s expert witness would also have had to have been recalled to testify as to the quality of the advice given to the petitioner at the time of the plea. Given the express waiver by habeas counsel, and the timing of the request to reinstate the abandoned claim, the trial court’s refusal to entertain a new hearing on the petitioner’s claim that his guilty plea was not knowingly, intelligently and voluntarily made was not an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner appealed to the Appellate Court upon the habeas court’s granting of certification pursuant to General Statutes § 52-470 (b).

       Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he is guilty to avoid the risk of proceeding to trial.

       The petitioner was also charged with two counts of assault in the first degree in violation of General Statutes § 53a-59 to which he pleaded guilty under the Alford doctrine. These convictions are not at issue in the present appeal.

       The petitioner’s claim of ineffective assistance of counsel was properly pursued on a petition for a writ of habeas corpus rather than on direct appeal. State v. Crenshaw, 210 Conn. 304, 315, 554 A.2d 1074 (1989); State v. Williamson, 206 Conn. 685, 707, 539 A.2d 561 (1988); State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982).

       In State v. Niblack, supra, 220 Conn. 270, the petitioner claimed that errors in the probable cause hearing invalidated his guilty plea entered pursuant to the Alford doctrine. Our Supreme Court held that the petitioner’s unconditional plea of guilty intelligently and voluntarily made, “ ‘operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings.’ ” Id., 276.

       Even if we were to agree with the petitioner that this claim was part of the ineffective assistance of counsel claim, we would still reach the same result. The habeas court gave a full hearing to the petitioner’s claim of ineffective assistance before concluding that he had waived that claim by pleading guilty under the Alford doctrine. See State v. Niblack, supra, 220 Conn. 270. By pleading guilty, the petitioner also waived any claim subsumed within the ineffective assistance claim.

         The petitioner alleged the following: “2.g. Trial counsel’s representation further prejudiced the petitioner because on March 3, 1988, the petitioner pleaded guilty under the Alford doctrine to murder in the first degree [sic], [General Statutes] § 53a-54c [sic], and two counts of assault in the first degree, [General Statutes] § 53a-59. Petitioner pleaded guilty because he was advised by counsel that because he was charged with murder, he risked the imposition of one hundred years incarceration and the possibility of the death penalty if he persisted in his plea of not guilty.
      “2.h. Petitioner’s trial counsel’s failure and omissions outlined above undermined the adequacy of counsel’s advice to the petitioner to plea bargain, because the advice was the result of counsel’s ineffective assistance at the petitioner’s probable cause hearing.
      “2.i. Accordingly, petitioner’s guilty plea was not knowing, intelligent or voluntary.”

       The colloquy between counsel and the court was as follows:
      “[The State]: Your Honor, I think before I go any further, is counsel withdrawing her claims under Paragraph 2.g, h, i . . . ?
      * * *
      “[The Court]: I think the respondent’s counsel is addressing the statements that you made in your opening statement that you weren’t attacking the guilty plea ... is that correct, as I understand?
      * * *
      “[The Court]: Well, he wants to know whether or not you’re arguing it. He doesn’t want the witness to be gone and then find out he had other questions to ask.
      * * *
      “[Special Public Defender]: No, Your Honor, we [are] [restricting it to the representation at the probable cause hearing.
      “[The Court]: Okay.
      “[The State]: So those other sections are withdrawn?
      “[The Court]: Except to the extent there are implications of his activity at the probable cause hearing. In other words, if the probable cause hearing would have gone in the defendant’s favor, there wouldn’t have been anything charged to him to plead to.
      “[Special Public Defender]: Right.
      “[The Court]: But as far as his advice that was given, or the propriety of the likely sentence and the outcome, that aspect is not being pursued?
      “[Special Public Defender]: No absolutely.”

       The colloquy between the petitioner’s habeas counsel and the court was as follows:
      “[Special Public Defender]: . . . [T]his strikes me as semantics, whatever, or an error in this way, and at this point, to me it sounds like it’s the same thing. That a pre-plea occurrence, probable cause ineffectiveness, affected the outcome, the outcome being the guilty plea. ... I would ask if it would be possible to reinstate that allegation because it’s just a semantical — it’s not a difference with any distinction, and then if it was my understanding, then it puts this petitioner in the position of doing an ineffective assistance of counsel habeas against me for that point where— you know my reading of the case law did not come up with this. So I guess I’m asking you . . . that I be allowed to reinstate that and do whatever it is to do that, that we’re challenging the guilty plea.
      “[The Court]: . . . I’m not going to allow you to reinstate a claim that you specifically withdrew and we had the whole trial based on the fact of believing that that claim was withdrawn.”


text:
    Paul G. Maresca v. Town of Ridgefield
    (12531)
    Dupont, C. J., and O’Connell and Spear, Js.
    Argued March 25
    decision released July 22, 1994

      William M. Laviano, for the appellant (plaintiff).

      Robyn L. Sondak, for the appellee (defendant).
   Spear, J.

The plaintiff appeals from the judgment of the trial court dismissing his complaint for lack of subject matter jurisdiction. He claims that the trial court improperly (1) found that he must exhaust his administrative remedies before filing suit for damages in the trial court, and (2) held that he had abandoned his 42 U.S.C. § 1983 civil rights claim by failing to brief the issue in a memorandum in opposition to the defendant’s motion to dismiss. We reverse the judgment of the trial court.

In February, 1987, the plaintiff was hired by the defendant town of Ridgefield as its data center manager. In August, 1991, after receiving a poor performance evaluation from his supervisor, the plaintiff was placed on probation. In December, 1991, his employment was terminated. The plaintiff retained counsel and sought a reinstatement hearing before the board of selectmen (board) pursuant to § 8.4 of the town charter. At the outset of the first hearing, it was determined that the purpose of the reinstatement hearing was to determine whether there was just cause to terminate the plaintiff’s employment. The hearings were extended over eight months due to scheduling delays and the illness and eventual death of one of the four board members. A new selectman was appointed, but he declined to participate in further proceedings, thus leaving three members to continue the hearings. During this protracted delay, the plaintiff sought new employment. In October, 1992, he accepted a new job at a lower salary that required him to relocate to Berlin. Thereafter, the plaintiff withdrew his reinstatement request.

The plaintiff then filed suit in the Superior Court alleging breach of contract, wrongful discharge, breach of the implied covenant of good faith and fair dealing, and a violation of 42 U.S.C. § 1983. He sought damages as his relief and made no claim for reinstatement. The defendant moved to dismiss the complaint, arguing that the trial court lacked subject matter jurisdiction because the plaintiff had failed to exhaust his administrative remedies. The trial court granted the motion to dismiss, finding that, although the plaintiff was not obliged to appeal his termination to the board, once he chose to do so, “he was required to exhaust this remedy prior to commencing an action in the Superior Court.” This appeal ensued.

I

The plaintiff claims that the trial court improperly found that he was required to exhaust his administrative remedies prior to filing a suit for damages in the Superior Court, and improperly found that the board was authorized to award money damages as well as the relief of reinstatement.

“ ‘It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter.’ ” Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 557, 630 A.2d 1304 (1993); LaCroix v. Board of Education, 199 Conn. 70, 83-84, 505 A.2d 1233 (1986); Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979); McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 735 S. Ct. 336, 97 L. Ed. 704 (1953). “We must examine the complaint to determine whether the [plaintiff was] required to exhaust an administrative remedy before the Superior Court could entertain this action. Whether prior recourse to the agency will be required will depend on the injury alleged and the administrative remedy available.” (Internal quotation marks omitted.) Savoy Laundry, Inc. v. Stratford, 32 Conn. App. 636, 640, 630 A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704 (1993). In his complaint, the plaintiff sought money damages in excess of $15,000 for, inter alia, wrongful discharge and breach of contract, but he did not seek reinstatement.

We conclude that the exhaustion doctrine does not control on the facts presented here. “There is no question that the law recognizes exceptions to the exhaustion doctrine in situations in which resort to the administrative remedy available to a party would be futile or inadequate. See, e.g., Griswold v. Union Labor Lee Ins. Co., 186 Conn. 507, 519, 442 A.2d 920 (1982); Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., [supra, 178 Conn. 589]; State ex rel. Golembeske v. White, 168 Conn. 278, 282, 362 A.2d 1354 (1975); Bianco v. Darien, 157 Conn. 548, 554, 254 A.2d 898 (1969).” Silverman v. New Haven, 19 Conn. App. 360, 365, 562 A.2d 562, cert. denied, 212 Conn. 812, 565 A.2d 537 (1989); see also Labbe v. Pension Committee, 229 Conn. 801, 812, 643 A.2d 1268 (1994). Here, the remedy provided by the town charter was inadequate because the only relief it authorized the board to grant an aggrieved employee was reinstatement. No administrative remedy was available authorizing the board to award money damages. The trial court’s reliance on General Statutes § 7-12 as statutory authority granting the board the power to award damages is misplaced. Although § 7-12 generally authorizes boards of selectmen to adjust and settle all claims, it is not part of the charter’s administrative remedy. Thus, the plaintiff’s only recourse to recover the wages he lost was to file suit in the Superior Court.

Moreover, the administrative remedy of reinstatement was futile. Futility is more than a mere allegation that the board might not grant the relief requested. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 560, 529 A.2d 666 (1987). “[W]e have held that the failure to exhaust an administrative remedy is permissible only when the administrative remedy would be useless.” (Emphasis added.) Id. Two events transpired that made the remedy of reinstatement useless: eight months passed without a resolution of the plaintiff’s. claim for reinstatement, and the plaintiff, who could no longer afford to remain unemployed, was forced to accept a new position and relocate to another town. The plaintiff, therefore, was no longer in a position to accept reinstatement even if it had been offered to him by the board.

As the exhaustion doctrine does not apply, the Superior Court has subject matter jurisdiction. “Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.” Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987). “The source of a court’s jurisdiction is ‘the constitutional and statutory provisions by which it is created.’ C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973).” Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989). The constitution of Connecticut, article fifth, § 1, as amended by article XX, § 1, of the amendments and General Statutes § 51-164s confer jurisdiction on the Superior Court for all carnes of action. Thus, the Superior Court has jurisdiction to entertain the plaintiff’s cause of action for money damages.

We conclude that the trial court improperly found that the plaintiff was required to exhaust the appeal process provided in the town charter prior to exercising his right of action for damages in the Superior Court.

II

The plaintiff also claims that the trial court improperly concluded that he had abandoned the fourth count of his complaint alleging a constitutional violation for failure to brief that claim in his opposition to the defendant’s motion to dismiss. The defendant’s motion to dismiss was based solely on the plaintiff’s failure to exhaust his administrative remedies. The plaintiff’s failure to brief his § 1983 civil rights claim in his opposition to the motion to dismiss is not an abandonment of that claim as we have concluded that the exhaustion doctrine does not control here. The Superior Court has subject matter jurisdiction, and all counts of the plaintiffs complaint, including his § 1983 claim, remain to be resolved.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       Section 8.4 of the Ridgefield town charter provides that the first selectman may remove those individuals that he has appointed as administrative officers. It further provides that “[s]uch action may be appealed to the board of selectmen which will hold a hearing within thirty (30) days.”

       We analyze the plaintiffs claim in light of the common law as we conclude that the Uniform Administrative Procedure Act (UAPA), General Statutes §§ 4-166 to 4-189, is not applicable to this case. The UAPA provides a statutory framework within which an appeal from an administrative agency may be taken. An “agency” is defined by General Statutes § 4-166 (1) as “each state board, commission, department or officer authorized by law to make regulations or to determine contested cases, but does not include either house or any committee of the general assembly, the courts, the council on probate judicial conduct, the governor, lieutenant governor or attorney general, or town or regional boards of education, or automobile dispute settlement panels established pursuant to section 42-181.” The board of selectmen of the town of Ridgefield does not meet the statutory definition of an agency and therefore this appeal is not governed by the UAPA.

       General Statutes § 7-12 provides in pertinent part that the board “shall superintend the concerns of the town, adjust and settle all claims against it and draw orders on the treasurer for their payment. . . .’’(Emphasis added.)

       The plaintiff alleged the violation of his due process rights under the fourteenth amendment to the United States constitution and requested damages and attorney’s fees pursuant to 42 U.S.C. § 1983.


text:
    International Association of Fire Fighters, Local 1339, AFL-CIO v. City of Waterbury
    (12273)
    Landau, Spear and Cretella, Js.
    Argued March 28
    decision released August 30, 1994

      J. William Gagne, Jr., for the appellant (plaintiff).

      John F. Phelan, for the appellee (defendant).

      Scott A. Garver filed a brief for Erwin Hale, as amicus curiae.
   Spear, J.

The plaintiff, the International Association of Fire Fighters, Local 1339, AFL-CIO, appeals from the judgment of the trial court denying its application to vacate an arbitration award. On appeal, the plaintiff claims that the arbitrators exceeded their authority or imperfectly executed their powers in violation of General Statutes § 52-418 (a) (4) and that the trial court improperly denied the application to vacate. We reverse the judgment of the trial court and remand this case with direction to render judgment vacating the arbitration award.

The record discloses the following facts. In October, 1986, the defendant, the city of Waterbury, properly appointed Lieutenant Erwin Hale to the temporary position of acting fire marshal. Hale held this position until his retirement in August, 1987. Upon retirement, Hale received a pension based on a fire marshal’s pay rather than the lower pay of a lieutenant. The plaintiff filed a grievance challenging the amount of Hale’s pension benefits.

The collective bargaining agreement provides for the arbitration of grievances between the parties. Article V limits the arbitrators’ authority as follows: “Section 6a. The authority of the arbitrator shall be limited to the interpretation and application of this Contract. He shall have no right to add or subtract from the Contract.

“Section 6b. The decision of the arbitrator shall be final and binding on both parties.”

Pursuant to this agreement, the plaintiff filed a grievance claiming that the defendant had violated article XXX, § 11 (E), of the collective bargaining agreement. The parties submitted the following issue to arbitration: “Did the City violate Article XXXII of the contract by basing E.H. Hale’s pension benefit on his Acting Fire Marshal’s pay. If so, what shall be the remedy, to the extent the SBMA [State Board of Mediation and Arbitration] may order a remedy under the law.” On February 10,1992, the arbitrators rendered the following award: “Based on the extenuating circumstances in this case as well as the fact that the panel is without jurisdictional authority to make any pension adjustments ... it has unanimously decided to deny the grievance.”

The plaintiff applied to the Superior Court, pursuant to § 52-418 (a) (4), to vacate the arbitration award claiming that “the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” The Superior Court denied the application to vacate, stating that the award conformed to the submission because it answered the specific questions presented. From that judgment, the plaintiff appealed to this court.

“When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Citations omitted.) Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992).

We agree with the trial court that the submission was unrestricted. In determining whether a submission is unrestricted we look at the authority of the arbitrator. “The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted.” Id., 5; Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983). In the present case, the collective bargaining agreement does not limit or condition the arbitrator’s authority in a manner that would make this a restricted submission. Thus, the submission is unrestricted and our review is accordingly limited.

“Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of § 52-418.” (Citations omitted.) Garrity v. McCaskey, supra, 223 Conn. 6; State v. Connecticut Employees Union Independent, Inc., 33 Conn. App. 737, 740-41, 638 A.2d 619 (1994). The plaintiff maintains that the award should be vacated because the arbitrators exceeded their powers in violation of § 52-418 (a) (4) by (1) making an award that failed to conform to the submission, (2) referring to “extenuating circumstances,” (3) considering matters outside the collective bargaining agreement, (4) deciding whether arbitrability was at issue, and (5) manifestly disregarding the law.

In deciding whether the arbitrators have exceeded their powers under § 52-418 (a) (4), we compare the award with the submission to determine if the award and the submission conform. See New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415, 544 A.2d 186 (1988); Forge Square Associates Ltd. Partnership v. Construction Services of Bristol, Inc., 33 Conn. App. 669, 671, 638 A.2d 606 (1994); Hartford v. Local 760, 6 Conn. App. 11, 13, 502 A.2d 429 (1986); Board of Education v. Local 818, 5 Conn. App. 636, 639-40, 502 A.2d 426 (1985). “The burden of demonstrating the nonconformity of the award to the submission is on the party seeking to vacate the award.” Board of Education v. Hartford Federation of School Secretaries, 26 Conn. App. 351, 353-54, 600 A.2d 1053 (1992). Although we recognize that it is the exceptional case that is vacated on appeal because our courts have faithfully given great deference to arbitrator’s decisions, we believe that this is such a case. See State v. Connecticut Employees Union Independent, Inc., supra, 33 Conn. App. 740.

Here, the submission expressly asked the arbitrators to determine whether the defendant had violated the collective bargaining agreement by basing Hale’s pension benefits on the higher pay of acting fire marshal, and if it had, to provide an appropriate remedy. The submission was specific in form and could have been answered with precision and exactitude. It required a clear, unequivocal answer as to whether the agreement had been violated. See Local 1078 v. Anaconda American Brass Co., 149 Conn. 687, 690, 183 A.2d 623 (1962). By failing to answer the submitted question, the arbitrators imperfectly executed their powers under § 52-418 (a) (4).

Moreover, “[t]he submission defines the scope of the entire arbitration proceedings by specifically delineating the issues to be decided and no matter outside the submission may be included in the award. ” (Emphasis added.) Board of Education v. Hartford Federation of School Secretaries, supra, 26 Conn. App. 353; Board of Education v. AFSCME, 195 Conn. 266, 272,487 A.2d 553 (1985). Instead of answering the question submitted, the arbitrators stated that they were denying the grievance because of “extenuating circumstances” and because they were “without jurisdictional authority to make the pension adjustments.” The arbitrators, therefore, also exceeded their powers under § 52-418 (a) (4) because their award included matters outside the submission, namely the arbitrators’ noncontractual reasons for denying the grievance. See Board of Education v. AFSCME, supra, 273; Local 1078 v. Anaconda American Brass Co., supra, 149 Conn. 690.

We conclude that the arbitrators exceeded their powers and imperfectly executed them so as not to render a “mutual, final and definite award” pursuant to § 52-418 (a) (4).

The judgment is reversed and the case is remanded with direction to render judgment vacating the arbitration award.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . . . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       Article XXX, § 11 (A) of the parties’ collective bargaining agreement provides: “In the event of the absence for any reason of the occupant of the Fire Marshal’s position, such absence shall be filled by a ‘qualified Deputy Marshal’ . . . .” It is uncontested that Hale was a qualified deputy marshal because he met the requirements set out in article XXX, § 11 (D), by being a bargaining unit member holding proper state certification.

       On December 18, 1986, the plaintiff and the defendant entered into a collective bargaining agreement that was retroactively effective from July 1, 1986, to June 30, 1989.

       Article XXX, § 11 (E) provides: “When any Deputy Marshal performs the duties of the Marshal (as prescribed in the preceding sub-sections) such Deputy Marshal shall receive his normal base pay plus the difference between his normal base pay and the Marshal’s base pay. Said difference shall not be considered for the purposes of Article XXXIII (pension).”

       The plaintiff contends that the wording of the submission in the SBMA arbitration award, dated February 10,1992, which erroneously stated article XXXII as opposed to the correct citation of article XXX, § 11, evidences the arbitrators’ confusion. We conclude that this is merely a typographical error and that the arbitrators considered the pertinent sections of the collective bargaining agreement.


author: O’Connell, J.

text:
    State of Connecticut v. Adrian King
    (12363)
    O’Connell, Schaller and Spear, Js.
    Argued June 6
    decision released September 6, 1994

      Marilyn B. Fagelson, special public defender, for the appellant (defendant).

      Jacqueline J. Footman, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Clark, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), one count of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8, and one count of criminal possession of a firearm in violation of General Statutes § 53a-217. The defendant claims that the trial court (1) improperly denied his motion to suppress evidence, (2) improperly denied his motion to sever the cases, and (3) failed to instruct the jury, sua sponte, to give special scrutiny to an accomplice’s testimony. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was charged with a series of crimes in New Haven that took place over a six day period. The first crime occurred on January 16,1992, in a parking lot behind 310 Whitney Avenue. As Mathilde Gontarski was removing snow from the roof of her white Pontiac Sunbird, the defendant came up behind her and demanded that she give him the car keys. Gontarksi initially refused, attempted to spray mace in the defendant’s face and scuffled with him. Gontarski was thrown to the ground, and the defendant grabbed her purse and stole her car.

Two days later, January 18, at approximately 1 p.m., the defendant entered Herzyk’s Package Store in New Haven and requested a bottle of beer from the store clerk, Maria Lebiedz. Lebiedz brought the beer to the counter and the defendant pointed a gun at her face. Lebiedz began taking money out of the register and giving it to the defendant, while pleading for her life. After receiving the money, the defendant walked backwards out of the store and was seen by Lebiedz entering a white Pontiac Sunbird.

Eight hours later, the defendant entered the Long Wharf Mobil Station in New Haven and after purchasing a pack of gum, produced a gun and instructed the clerk, Michael Cohen, to keep his head down, not to speak and to hand over the money in the register. Cohen did as he was told and saw the defendant drive off in a white Pontiac Sunbird.

On January 20, 1992, the defendant and his girlfriend, Staci Byrd, were riding in Byrd’s roommate’s car when they stopped at the Chapel Street Ice Cream Cafe. The defendant handed Byrd a gun and ordered her to rob the store. Byrd entered the store, asked an employee to get the manager and, with the gun in her hand, ordered the manager, Garnett Wells, to hand over the money in the register. Wells did so. The defendant waited outside and, when Byrd returned to the car, they drove away in what Wells identified as a white, two door car with “HER” as the last letters on the license plate.

The following day the defendant entered the Foxon Sunoco Station in New Haven at approximately 7:40 a.m. to purchase several items, including a bottle of orange juice. When the defendant paid the attendant, Gary Smith, the defendant stated that he wanted “all of it.” Smith handed the defendant the entire cash drawer. Fingerprints lifted from the orange juice bottle were identified as the defendant’s.

At the time of the defendant’s arrest, the police recovered a handgun from the inside pocket of a jacket owned by the defendant. The defendant stipulated that he had previously been convicted of a class B felony. Additional facts are included as necessary in our analysis of the individual claims.

I

Prior to trial, the defendant moved to suppress identifications made by Gontarski, Lebiedz and Cohen on the grounds that they violated his federal and state constitutional rights. Specifically, the defendant claims that the identification procedures were impermissibly suggestive and that the identifications were unreliable. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Payne, 219 Conn. 93, 108, 591 A.2d 1246 (1991); State v. Pollitt, 205 Conn. 132, 164-65, 531 A.2d 125 (1987).

The defendant challenged the identification procedure that took place on January 24,1992, when Detective Brian Norwood of the New Haven police department drove Gontarski, Lebiedz and Cohen to the New Haven Superior Court. Norwood told the victims that they were being brought to an arraignment proceeding in order to determine whether each could recognize the person who had robbed him or her. There was some discussion between the victims before and after entering the courtroom. Norwood brought the three victims into the back of the courtroom where they sat together and watched the arraignment proceedings for approximately fifteen minutes. After each victim notified Norwood that he or she had made an identification, Norwood escorted them out of the courtroom.

A defendant’s due process rights are violated when an identification procedure gives “rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). When a defendant moves to suppress identification evidence, he bears the initial burden of proving that the identification resulted from an unconstitutional procedure. State v. Payne, supra, 219 Conn. 106. “In order to establish that a pretrial identification procedure has violated a defendant’s constitutional right to due process, the defendant must prove (1) that the identification procedure was unnecessarily suggestive and (2) that the resulting identification was not reliable under the totality of the circumstances.” State v. Hunt, 10 Conn. App. 404, 407, 523 A.2d 514 (1987). “Whether such an identification procedure is unnecessarily suggestive, depends on the facts and circumstances of each case.” State v. Arroyo, 13 Conn. App. 687, 690, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988).

Although our Supreme Court has stated that arraignment identifications may be “suggestive”; State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981); it does not necessarily follow that such a procedure is “impermissibly suggestive.” See State v. Hinton, 196 Conn. 289, 295, 493 A.2d 836 (1985). The arraignment identification procedure here was nearly identical to the procedure utilized in State v. Payne, supra, 219 Conn. 105, when two witnesses were brought to an arraignment for possible identification of a suspect.

Here, as in Payne, the victims entered the arraignment courtroom in order to make a possible identification. At no time did Norwood describe the defendant or suggest who or where he was. Although there was some variation in the victims’ testimony regarding the number of arraignees involved and the manner in which the arraignees were brought into the courtroom, all agreed that a significant number of them were black, as is the defendant. Moreover, at no time could the victims hear the names of those being arraigned or the crimes with which each arraignee was being charged. None of the victims was aware of the identifications made by either of the other victims until after they had left the courtroom. The victims then discussed the person whom they had identified, in each case, the defendant.

The defendant also argues that the identification procedure was impermissibly suggestive because the victims conversed before identifying the defendant in the arraignment courtroom. We are not persuaded. Nor-wood testified that the victims were left alone together and they may have discussed the perpetrator’s description. The testimony of the three victims regarding the nature of the preidentification conversations varied considerably, however. Gontarski testified that there was no such discussion. Lebiedz stated at the suppression hearing that the three had discussed the crimes committed against each of them in addition to other details concerning the perpetrator’s race, height and build. At trial, however, Lebiedz stated that any discussion concerning the specific features of the perpetrator took place after each of the victims had identified the defendant in the arraignment courtroom. Cohen recalled that some discussion took place before the arraignment but could not remember any of the details. Although we recognize that Norwood’s failure to sequester the victims permitted them to converse about the defendant, the record is, at best, confusing as to the nature and extent of those conversations. There is no evidence suggesting that the conversations helped any of the victims distinguish the defendant from the other arraignees. Therefore, we cannot conclude that the conversations unlawfully tainted any of the victims’ identifications. See State v. Boscarino, 204 Conn. 714, 731-32, 529 A.2d 1260 (1987) (prelineup conversations did not render subsequent identification procedure impermissibly suggestive).

We cannot say that the identifications here were impermissibly suggestive and therefore constitutionally infirm. Even if we were to assume that the procedures were unnecessarily suggestive, however, that would not be dispositive of the claim. We would then proceed to determine whether the identifications were reliable under the totality of the circumstances. “In determining whether an identification is reliable in the totality of circumstances, the corruptive influence of the suggestive procedure is weighed against the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Internal quotation marks omitted.) State v. Pollitt, supra, 205 Conn. 164.

“The reliability inquiry . . . is fact-bound and made on an ad hoc basis. Generally, where the admissibility of evidence depends upon a preliminary question of fact to be determined by the court, its decision is not to be reversed unless there is clear and manifest error.” (Internal quotation marks omitted). State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). “Absent a very substantial likelihood of irreparable misidentification, [w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” (Internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 688, 631 A.2d 271 (1993).

Applying the applicable factors under the reliability inquiry to the facts of this case, we are satisfied that the trial court correctly concluded that each identification was reliable under the totality of circumstances. Gontarski, Lebiedz and Cohen were victims and not merely witnesses to the crimes involved, a factor buttressing the reliability of their identifications. In re Juvenile Appeal (83-EF), 190 Conn. 428, 437, 461 A.2d 957 (1983). With respect to Gontarski’s identification, a little more than one week had elapsed between the crime and the arraignment. Lebiedz’ and Cohen’s identification took place within one week of the crimes. Both Gontarski and Lebiedz saw the defendant in daylight face-to-face confrontations lasting over one minute. Although Cohen testified that he had seen the defendant for only one second, he nonetheless was certain that the defendant was the man who had robbed him. Under these circumstances, we conclude that the identifications made by Gontarski, Lebiedz and Cohen were reliable. Accordingly, the trial court properly denied the defendant’s motion to suppress.

II

The defendant next claims that the trial court improperly denied his motion to sever because the evidence of each crime was similar but unconnected and likely to have prejudiced the jury. He argues that this prejudice was not cured by the court’s jury instruction. The defendant contends that the joinder of the cases “enhanced the likelihood that the jury would weigh the evidence against the defendant cumulatively rather than independently in each case.” State v. Boscarino, supra, 204 Conn. 723.

General Statutes § 54-57 and Practice Book § 829 both expressly authorize a trial court to order the joint trial of charges arising from separate cases. Joinder of cases is the norm. See State v. Greene, 209 Conn. 458, 463, 551 A.2d 1231 (1988), citing Project, “District of Columbia Court of Appeals Project on Criminal Procedure, Joinder and Severance,” 26 Howard L. J. 1104, 1105 (1983). The trial court enjoys broad discretion in deciding whether cases should be tried jointly or severed, and that discretion will be overturned only if it has been manifestly abused. State v. Herring, 210 Conn. 78, 94, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230,106 L. Ed. 2d 579 (1989). “The defendant bears the heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court’s instructions.” (Internal quotation marks omitted.) Id., 94-95.

Although evidence of misconduct is inadmissible merely to show a defendant’s bad character or tendency to commit criminal acts; State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167 (1982); such evidence maybe offered as proof of an issue in the case, such as intent, identity, malice, motive or a system of criminal conduct. State v. Pollitt, supra, 205 Conn. 69. The trial court must still consider whether the evidence is relevant and material to one of the circumstances encompassed by the exceptions and, thereafter, weigh whether the probative value of the evidence outweighs its prejudicial impact. State v. Mandrell, 199 Conn. 146, 151, 506 A.2d 100 (1986).

We agree with the trial court’s conclusion that joinder was proper because evidence relating to each case could have been used in the others to show the identity of the defendant or to show a common scheme. To be relevant on the issue of identity or common scheme, the other crime charged must be “sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other.” State v. Ibraimov, 187 Conn. 348, 354, 446 A.2d 382 (1982). The similarities connecting the crimes need not be so unique as to constitute “signature crimes.” See State v. Pollitt, supra, 205 Conn. 69-70. Rather, the features may be of substantial but lesser distinctiveness which, if considered separately, would be insufficient to raise an inference, but when taken together yield a distinctive combination. State v. Jones, 205 Conn. 638, 661, 534 A.2d 1199 (1987).

Here, all of the crimes took place in New Haven over the course of six days and, with the exception of the first, were generally similar in nature. In addition, the automobile stolen by the defendant in the first robbery was used by him in the next two robberies. The police discovered the stolen vehicle near the apartment of the defendant’s girlfriend, Byrd, who had been ordered by the defendant to conduct the fourth robbery while he waited in an automobile outside. The following day, the defendant robbed the Foxon Sunoco Station. Before the defendant’s arrest, the police stopped a vehicle owned by the roommate of the defendant’s girlfriend that fit the description of the vehicle used in at least one of the two final robberies. When granted permission by the owner to search the automobile, the police found articles of clothing linking the defendant to the vehicle and its use. Finally, much of Byrd’s testimony was also relevant to establish the identity of the defendant and the interconnection of all the robberies. We agree with the trial court that the foregoing evidence could have been used, in the event of separate trials, to show the identity of the defendant or to illustrate a common scheme.

Even if we were to assume that evidence of the other robberies would have been inadmissible at individual trials, we would still conclude that joinder of the cases was proper. In State v. Boscarino, supra, 204 Conn. 722-23, our Supreme Court recognized three factors that must be considered in determining whether a joinder of cases is improper. These factors are “(1) whether the charges involved discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Citations omitted; internal quotation marks omitted.) State v. Jennings, 216 Conn. 647, 658, 583 A.2d 915 (1990).

Although the defendant was charged with five counts of first degree robbery, the charges were based on specific, easily distinguishable facts. Each robbery involved different victims as witnesses. The first count involved an assault on a woman and, thereafter, the theft of her automobile. The fifth count involved Byrd, the defendant’s girlfriend, in the robbery of an ice cream parlor. While the remaining three counts involved the robbery by the defendant of three small retail establishments, each involved different victims, locations and times. Although the defendant conducted himself similarly during the three robberies, our review of the record reveals greater differences than similarities. This conclusion is buttressed by the orderly manner in which the state presented the evidence related to each crime, which had the effect of clearly distinguishing the evidence applicable to each count.

In addition, the crimes committed, while serious, were not of a brutal or shocking nature. With the exception of the first victim’s being knocked to the ground, there was no physical harm inflicted on any of the victims. Only eighteen witnesses testified during the five day trial, which was neither complex nor unusual in any regard. See State v. Herring, supra, 210 Conn. 97 (eight days of testimony by twenty-three witnesses not undue in duration or complexity). Finally, the trial court’s instructions included repeated warnings to the jury that the defendant was on trial for six separate counts and that each offense should be considered separately.

Having applied the Boscarino factors to the present case, we are satisfied that the trial court correctly concluded that joinder did not result in substantial injustice. Accordingly, we conclude that the defendant has not established that the trial court manifestly abused its discretion by refusing to sever the counts.

Ill

In his final claim, the defendant argues that the trial court improperly failed to instruct the jury, sua sponte, to give special scrutiny to the testimony of the defendant’s accomplice. Our case law is clear that “where warranted by the evidence, it is the court’s duty to caution the jury as to the testimony of an accomplice in its charge.” (Emphasis in original.) State v. Ferrara, 176 Conn. 508, 511, 408 A.2d 265 (1979).

Because he did not file a written request for this instruction or take an exception to the instruction on credibility as given, we can review the defendant’s claim only if it constitutes plain error. Practice Book § 4185. Review under the plain error doctrine is granted only in extraordinary situations where the error is so obvious that it affects the fairness and integrity of public confidence in the judicial proceeding. State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

“Whether in the interest of justice we notice this failure to give the accomplice instruction as plain error depends in part on whether the failure was harmful. The failure to give the accomplice instruction would be harmful only if the absence of this instruction was likely to have affected the jury’s verdict.” State v. Brown, 187 Conn. 602, 613, 447 A.2d 734 (1982). Because the failure to give the accomplice instruction does not violate a constitutional right, it is the defendant’s burden to show its harmfulness. Id.

In the present case, the trial court’s instruction was more than adequate to inform the jurors that they should scrutinize the accomplice’s motives. Accordingly, the defendant has not met his burden of demonstrating that the omission of the accomplice instruction affected the fairness and integrity of the trial. We decline to notice the trial court’s failure to give an accomplice instruction as plain error in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides in relevant part: “bobbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”
      General Statutes § 53a-8 provides: “criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.
      “(b) A person who sells, delivers or provides any firearm, as defined in subdivision (19) of section 53a-3, to another person to engage in conduct which constitutes an offense knowing or under circumstances in which he should know that such other person intends to use such firearm in such conduct shall be criminally liable for such conduct and shall be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-217 provides: “criminal possession of a firearm or electronic defense weapon: class d felony, (a) A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of a capital felony, a class A felony, except a conviction under section 53a-196a, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196b, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.
      “(b) Criminal possession of a firearm or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.”

       The defendant’s motion was made pursuant to the fourth, fifth and fourteenth amendments to the United States constitution and article first, §§ 7 and 8, of the Connecticut constitution. “The defendant failed to brief the state constitutional issue separately. This court may, but need not, independently undertake to engage in such an analysis where the issue has not been briefed. Here, we choose not to consider this issue.” State v. Sweeney, 30 Conn. App. 550, 553 n.5, 621 A.2d 304, cert. denied, 225 Conn. 927, 625 A.2d 826 (1993).

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book § 829 provides: “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the court. ...”