author: FOTI, J.

text:
    HARRY HYATT v. CITY OF MILFORD ET AL.
    (AC 18835)
    Foti, Mihalakos and Healey, Js.
    Argued March 2
    officially released April 25, 2000

      Albert E. Desrosiers, with whom, on the brief, was Donna Cousins Palmer, for the appellant (plaintiff).

      Jason M. Dodge, with whom, on the brief, was Margaret E. McGrail, for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiff, Harry Hyatt, appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s denial of the plaintiffs request for a formal hearing on the merits of a claim for benefits under chapter 568, the Workers’ Compensation Act. On appeal, the plaintiff contends that the commissioner improperly concluded that he was barred from pursuing a chapter 568 claim because he had made an election of remedies, even though he had filed a timely form 30C. We affirm the decision of the board.

The following facts and procedural history are relevant to our disposition of the appeal. The plaintiff had been employed as a firefighter by the city of Milford on the evening of January 2,1983, when two house fires broke out. He spent the rest of the evening and the next morning fighting the fires, which involved heavy physical exertion. He collapsed in the street that morning and was transported to a hospital, where it was discovered that he had suffered a myocardial infarction. He has not since worked as a firefighter.

A form 30C dated September 9,1983, was timely filed by the plaintiff pursuant to General Statutes § 31-294, stating that he had suffered a heart attack arising out of and in the course of his employment on January 2, 1983. The plaintiff, who was not represented by counsel, entered into a signed agreement with counsel for the city of Milford, on October 19, 1983, which stated that the plaintiff was entitled to receive benefits under General Statutes § 7-433c. No mention of any other benefits was made. On March 25,1985, the commissioner issued a finding and award that found the plaintiff to be entitled to benefits pursuant to § 7-433c, including 195 weeks of compensation for a 25 percent permanent partial impairment of the whole person, subject to the limitations of General Statutes § 7-433b. Both parties signed the finding and award, agreeing that it should be entered.

For 195 weeks, the plaintiff was paid the difference between his pension amount and an amount equal to 100 percent of the weekly compensation paid to members of the fire department in the same position that the plaintiff had at the time of his retirement in January, 1984. The difference came to $24.88 per week, or a total of $4851.60 for the 195 week period, which ended on October 21, 1987.

On March 6,1995, the plaintiff filed a motion to open the finding and award of March 25, 1985. Additionally, or as an alternative, he requested a formal hearing to determine whether he was entitled to benefits under chapter 568 for his work-related heart attack. The commissioner denied the motion to open, concluding that the plaintiff had “made a choice of remedy for benefits under General Statutes § 7-433c and there was no mutual mistake or basis for reopening the finding and award under General Statutes § 31-315.” The plaintiff thereafter filed a motion to correct regarding entitlement to a formal hearing on his chapter 568 claim. The motion was denied, and the board affirmed the commissioner’s decision not to allow a chapter 568 proceeding.

The filing of a form 30C notice of claim serves to state a claim either under chapter 568 or § 7-433c. The Workers’ Compensation Act; General Statutes, tit. 31, c. 568; “was enacted to provide compensation for any injury arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.” (Internal quotation marks omitted.) Collins v. West Haven, 210 Conn. 423, 425, 555 A.2d 981 (1989). “Heart disease and hypertension are just some of the many ailments compensable under the act. ... In order to recover under chapter 568 . . . [t]he employee [must prove] that the injury claimed arose out of the employment and occurred in the course of the employment. . . . Section 7-433c, on the other hand, was enacted to provide special compensation to qualifying policemen and firemen who die or become disabled as a result of hypertension or heart disease . . . [and] requires the employer to pay compensation to those officers who have successfully passed a physical examination which failed to reveal any evidence of hypertension or heart disease [at the time of entering employment] and who subsequently die or are disabled as a result of such conditions whether or not the [condition] occurred in the line and scope of his employment. ... An employee may . . . elect to proceed under either chapter 568 or § 7-433c.” (Citations omitted; internal quotation marks omitted.) Id., 426-27.

The wording of § 7-433c (a), as relevant, is clear and unambiguous: “The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered . . . .” The language is clear that the benefits may not be awarded concurrently.

The plaintiff argues, however, that the doctrine of election is nowhere to be found in the Workers’ Compensation Act, and should not be applied to this case at all. He claims that his chapter 568 claim is not dependent on the opening and setting aside of the finding and award under § 7-433c.

“In Bakelaar v. West Haven, 193 Conn. 59, 66-69, 475 A.2d 283 (1984), [our Supreme Court] concluded that a municipal firefighter or police officer suffering from hypertension or heart disease could elect whether to proceed under General Statutes § 7-433c, which specifically addresses such a claim for benefits, or under chapter 568, the traditional workers’ compensation law.” Jones v. Mansfield Training School, 220 Conn. 721, 730, 601 A.2d 507 (1992). In this case, the plaintiff exercised his right and elected § 7-433c benefits; he requested the award, signed the finding and award and accepted the benefits. The record is devoid of any indication that the plaintiff made this election involuntarily or without full knowledge of the consequences. The commissioner specifically found, in denying the plaintiffs motion to open, that “[t]he [plaintiff] elected to receive benefits under [General Statutes] § 7-433c.”

Further, the plaintiff argues that he was not afforded due process in being refused a formal hearing on his chapter 568 claim. We do not agree. The plaintiff was not entitled to concurrent benefits, as discussed previously. Once the plaintiffs motion to open was denied, the commissioner was without jurisdiction to conduct a formal hearing for a claim under chapter 568, as no award could follow; the award under § 7-433c being upheld, the plaintiff could not receive benefits under chapter 568.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The board also affirmed the commissioner’s denial of the plaintiffs motion to open the finding and award as to General Statutes § 7-433c; at oral argument, the plaintiff agreed that that portion of the ruling cannot now be addressed, as no appeal was taken from that decision.

       General Statutes § 7-433c (a) provides: “Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed aphysical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       General Statutes § 7-433b provides: “(a) Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police benefit fund or other retirement system, the survivors of any uniformed or regular member of a paid fire department or any regular member of a paid police department whose death has been suffered in the line of duty shall be eligible to receive such survivor benefits as are provided for in the Workers’ Compensation Act, and, in addition, they shall receive such survivor benefits as may be provided for in the retirement system in which such department member was a participant at the time of his death; provided such pension benefits shall be adjusted so that, the total weekly benefits received by such survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such deceased at the time of his death. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such survivors, provided total weekly benefits paid shall not exceed said one hundred per cent of the weekly compensation.
      “(b) Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.”

       See footnote 1.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. STEVEN LEROY SMITH
    (AC 17488)
    Schaller, Hennessy and Mihalakos, Js.

      Argued December 9, 1999
    officially released April 25, 2000

      Sarah F. Summons, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, deputy assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Steven Leroy Smith, appeals from the judgments of the trial court revoking his probation and committing him to the custody of the commissioner of correction for the remaining portion of a sixteen year sentence of imprisonment imposed in 1984. The defendant claims that the court improperly (1) denied his motion to dismiss the violation of probation charges and (2) revoked his probation. We affirm the judgments of the trial court.

The following facts were before the court. In 1984, the defendant pleaded guilty to a series of offenses and received a total effective sentence of sixteen years, execution suspended after nine and one-half years with five years probation. After serving approximately six and one-half years, the defendant was released from prison and on April 12,1991, began his period of probation. Lisa D’Amato from the office of adult probation was assigned to supervise the defendant. D’Amato met with the defendant on October 1, 1991, reviewed his sentence, read him his conditions of probation and informed him that a violation could result in his going back to prison for six and one-half years.

During the remainder of 1991 and until June, 1992, the probation office had difficulty locating the defendant because the home address that he had given did not exist, and a visit to another home address that he subsequently had given proved that he never lived there. On June 2, 1992, the state applied for an arrest warrant for the defendant, whose whereabouts were unknown. The state alleged a violation of probation in that the defendant failed to keep his probation officer informed of his whereabouts and to give immediate notice of a change of address or employment.

In early 1993, the defendant was sentenced in California to two years in prison on unrelated charges. In November, 1993, the defendant was extradited to Colorado, where he was convicted of larceny and sentenced to four years in prison. In January, 1996, the state lodged a detainer against the defendant in Colorado, and he was subsequently extradited to Connecticut in August, 1996.

At a hearing on May 20, 1997, the court found that the defendant violated the conditions of his probation because he knew that he was on probation and he did not keep the officer informed of his whereabouts or give immediate notice of any change of address or employment. On June 4, 1997, the court held a hearing, after which it revoked the defendant’s probation and sentenced him to the remaining portion of his original sentence.

I

The defendant claims first that the court improperly denied his motion to dismiss the charge of violation of probation. The defendant claims that he complied with the requirements of the interstate agreement on detainers (IAD), and the state violated the IAD by not bringing him to trial within 180 days, thereby requiring that the violation of probation charge be dismissed. We disagree.

“The purpose of the IAD is to establish a cooperative procedure for disposition of charges against a prisoner in one state who is wanted to respond to untried criminal charges in another state. General Statutes § 54-186, art. I. The IAD is activated when the state seeking the prisoner (the receiving state) files written notice that he is wanted to answer charges in that state. This notice, referred to as a detainer, is simply a notification filed with the institution in which the prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction. United States v. Mauro, 436 U.S. 340, 359, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978).” (Internal quotation marks omitted.) Smith v. Liburdi, 26 Conn. App. 254, 256, 600 A.2d 17 (1991), cert. denied, 221 Conn. 910, 602 A.2d 9 (1992).

“The IAD is a congressionally sanctioned interstate compact the interpretation of which presents a question of federal law. Cuyler v. Adams, 449 U.S. 433, 442, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981).” (Internal quotation marks omitted.) Remick v. Lopes, 203 Conn. 494, 498, 525 A.2d 502 (1987). In Remick, our Supreme Court noted that the purpose of the IAD is “to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.” Id., 500, quoting § 54-186, art. I. Our Supreme Court also has noted that “[t]he United States Supreme Court, however, in Carchman v. Nash, 473 U.S. 716, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985), concluded that detainers based upon probation or parole violation warrants are not based on ‘untried indictments, informations or complaints’; Remick v. Lopes, supra, 500; and therefore are not subject to disposition under the IAD.” Wheway v. Warden, 215 Conn. 418, 427-28, 576 A.2d 494 (1990); see also State v. Durkin, 219 Conn. 629, 632-33 n.3, 595 A.2d 826 (1991). Accordingly, we conclude that the trial court properly denied the defendant’s motion to dismiss the charge of violation of probation.

II

The defendant claims next that the court improperly revoked his probation because (1) he had no notice that the violation of probation would be based on his out-of-state convictions, (2) the finding of prior out-of-state convictions was based in part on the defendant’s own admission and (3) he was not allowed to offer evidence during the dispositional phase of the violation of probation hearing. We decline to review these claims.

The defendant raises these claims for the first time on appeal. “Ordinarily, we will not review a claim that was not distinctly raised before the trial court. Practice Book § 4185 [now § 60-5]; State v. Reddick, 33 Conn. App. 311, 331, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).” State v. Crump, 43 Conn. App. 252, 261, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996). The defendant now seeks review of these claims under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s request for review of these unpreserved claims is raised for the first time in his reply brief. Because Golding review may not be requested for the first time in a reply brief, we will not review these claims. See State v. Crump, supra, 261.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant had been platted on probation in connection with separate judgments of conviction. The information charging him with violation of probation referenced both files, and the trial court rendered a judgment of violation of probation on each file.

       The conditions of probation form states in relevant part: “Keep the Probation Officer informed of your whereabouts, give immediate notice of any change in address or employment, and permit the Officer to visit you as circumstances require.”

       The defendant does not deny that he violated these conditions of probation.

       The IAD is codified as General Statutes § 54-186. Article III (a) of § 54-186 provides: “Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of the imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to tiia.1 within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the lime of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner."

       We note that the state admits it had no legal basis under the IAD to request the return of the defendant to Connecticut. We need not address that issue, however, as it was not raised by either party or the trial court.

       The defendant disingenuously refers to the court’s statement, “Don’t say anything, sir,” as proof that he was denied an opportunity to address the existence of out-of-state convictions. The record, however, reflects that the court had characterized some statements made to a probation officer by the defendant by stating, “You told them to go jump in the river.” When the defendant attempted to address the court on that statement, the court interrupted and stated: “Don’t say anything, sir. Those are my words, not yours. I’m not insinuating that’s what you said.”


text:
    STATE OF CONNECTICUT v. DAVID SZEPANSKI
    (AC 18954)
    Foti, Schaller and Mihalakos, Js.
    Argued February 17
    officially released April 25, 2000

      Jeffrey D. Brownstein, with whom, on the brief, were Robert J. McKay and Gregory A. Thompson, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Roger Caridad, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, David Szepanski, appeals from the trial court’s judgment of conviction of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a, rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a. On appeal, the defendant claims that the court improperly denied his motion to suppress the results of his blood alcohol test. We affirm the judgment of the trial court.

The facts are not disputed. On May 26, 1997, at approximately 8:40 a.m., the defendant was driving a motor vehicle at a high rate of speed on Route 12 northbound in the town of Killingly when he crossed the center line and collided head-on with a southbound car. The defendant was found unconscious and slumped against the steering wheel of his car. He emitted a strong odor of alcohol and, after being extricated from his vehicle, was flown by helicopter to a nearby hospital in Worcester, Massachusetts. As part of the medical treatment, personnel at the hospital took a blood sample that determined, inter alia, blood alcohol content (BAC). On May 27,1997, the district attorney in Worcester obtained the blood alcohol report by means of a subpoena issued by a Massachusetts grand jury and served on the hospital. The district attorney’s action came at the request of the Connecticut state police. On July 28,1997, law enforcement authorities in Connecticut received the blood alcohol report, which revealed a BAC of 0.295 percent and traces of marijuana. The defendant thereafter was arrested pursuant to a warrant.

The defendant does not claim that the blood sample taken at the hospital was obtained illegally or that either a search warrant or consent by the defendant was required. The defendant does not contest that the blood taken at the hospital in Massachusetts was taken for purposes of medical treatment and not at the request of any law enforcement officer. The defendant does argue, however, that obtaining the BAC result from an out-of-state hospital without a search warrant or without consent of the defendant was in contravention of § 14-227a (l) and violated his constitutional rights, thereby requiring suppression. We do not agree.

The defendant claims that the acquisition of the BAC report constituted an unreasonable search and seizure in violation of article first, §§ 7 and 8, of the Connecticut constitution,1 ** and the fourth and fourteenth amendments to the United States constitution. The trial court, however, concluded that no constitutional right of the defendant was violated by the acquisition of the test results. We agree with the trial court and, therefore, conclude that it properly denied the defendant’s motion to suppress.

The fourth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, prohibits unreasonable searches and seizures by government agents. A warrantless search and seizure is per se unreasonable, subject to a few well-defined exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Miller, 227 Conn. 363, 383, 630 A.2d 1315 (1993); State v. Lewis, 220 Conn. 602, 609, 600 A.2d 1330 (1991). “The state bears the burden of proving that an exception to the warrant requirement applied. Mincey v. Arizona, 437 U.S. 385, 390-91, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); State v. Blades, 225 Conn. 609, 618, 626 A.2d 273 (1993).” State v. Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999). The defendant, however, bears the burden of proving that he has a constitutionally protected interest before the state must prove the constitutionality of its actions. State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994). The defendant has not demonstrated, in any way, that he possesses a constitutionally protected interest in the results of his BAC report absent a showing that the taking of a blood sample from his body amounted to an illegal search and seizure under the fourth amendment. The trial court correctly concluded that “the initial taking of the defendant’s blood [did] not violate any constitutional right because the blood test was performed at a hospital for medical purposes rather than at the request of a law enforcement officer.” See State v. Petruzzelli, 45 Conn. App. 804, 807, 699 A.2d 204 (1997). Although the defendant states that “the seizure of [his] blood alcohol test results involves a liberty interest and a privacy of life, which would certainly come within a purview of the Connecticut constitutional search and seizure clause,” his conclusion lacks factual underpinnings buttressed by legal principles, together with an analysis sufficient for our review.

The defendant further claims that the BAC report should be rendered inadmissible by operation of § 14-227a (l). The defendant argues that § 14-227a (/,) governs the admissibility of his BAC test and because the statute was not complied with, the results should not be allowed. We agree with the trial court’s conclusion that § 14-227a (/,) does not govern the admissibility of blood alcohol tests taken at out-of-state hospitals. It is obvious that BAC evidence cannot be obtained from an out-of-state hospital in a manner that will satisfy the requirements of § 14-227a (T) (4)7 or that is likely to satisfy § 14-227a (1) (2). The position advocated by the defendant would lead to a bizarre or absurd result. The defendant was transported out of state for the most immediate medical treatment, obviously for his own well-being and possibly to save his life. To suggest that under these circumstances a prosecution for operating under the influence must be thwarted because the BAC result can not be admitted as evidence in Connecticut is both lacking in common sense and legally absurd. Our legislature never intended such a result.

We conclude that § 14-227a (T) is permissive, not restrictive, in nature; BAC evidence is always admissible if obtained in conformity with its requirements, rather than inadmissible unless obtained in a manner satisfying all of its requirements. We conclude, therefore, that the trial court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The defendant was arrested pursuant to an arrest warrant. The affidavit for the issuance of the warrant supplied the facts on which the trial court based its decision. No testimony or evidence was offered. The defendant also filed a motion to dismiss, claiming insufficiency of the evidence, which the court ruled was precluded by Practice Book § 41-8, formerly § 815.

       The defendant also claims that such a procedure “rendered the arrest warrant and accompanying affidavit defective to justify the continued prosecution of such information.” During the course of the hearing, the defendant agreed with the trial court that a motion to dismiss was precluded. Practice Book § 41-8, formerly § 815, and § 41-9, formerly § 816. We therefore do not review this claim.

       Although the defendant refers to a violation of his rights under article first, §§ 7 and 8, of the Connecticut constitution and also under the federal constitution, he makes no claim for greater protection under the former and, therefore, provides no independent analysis. See State v. Lewis, 220 Conn. 602, 613 n.7, 600 A.2d 1330 (1991); see also State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992) (setting forth appropriate factors to be addressed when raising state constitutional claim). “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim .... State v. Robinson, 227 Conn. 711, 721-22, 631 A.2d 288 (1993); see also State v. Williams, 231 Conn. 235, 245 n.13, 645 A.2d 999 (1994); State v. Joyner, 225 Conn. 450, [458-59] n.4, 625 A.2d 791 (1993); State v. Rosado, 218 Conn. 239, 251 n.12, 588 A.2d 1066 (1991).” (Internal quotation marks omitted.) State v. Ellis, 232 Conn. 691, 692 n.1, 657 A.2d 1099 (1995).

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       The trial court concluded that “the acquisition of the [BAC] results of the test by the grand jury subpoena does not violate any constitutional right of the defendant because the subpoena, being directed to the hospital rather than the defendant, did not compel the defendant to do anything.” The court also found that the defendant had failed to show that a violation of Massachusetts law existed in the acquisition of the BAC report by a grand jury subpoena or that a grand jury subpoena constitutes a search.

       General Statutes § 14-227a (l) provides: “Notwithstanding the provisions of subsection (c) of this section, evidence respecting the amount of alcohol or drag in the blood of an operator of a motor vehicle involved in an accident who has suffered or allegedly suffered physical injury in such accident, which evidence is derived from a chemical analysis of a blood sample taken from such person after such accident at the scene of the accident, while en route to a hospital or at a hospital, shall be competent evidence to establish probable cause for the arrest by warrant of such person for a violation of subsection (a) of this section and shall be admissible and competent in any subsequent prosecution thereof if: (1) The blood sample was taken for the diagnosis and treatment of such injury; (2) the blood sample was taken by a person licensed to practice medicine in this state, a resident physician or intern in any hospital in this state, a phlebotomist, a qualified laboratory technician, an emergency medical technician II or a registered nurse; (3) a police officer has demonstrated to the satisfaction of a judge of the Superior Court that such officer has reason to believe that such person was operating a motor vehicle while under the influence of intoxicating liquor or drug or both and that the chemical analysis of such blood sample constitutes evidence of the commission of the offense of operating a motor vehicle wTiile under the influence of intoxicating liquor or drug or both in violation of subsection (a) of this section; and (4) such judge has issued a search warrant in accordance with section 54-33a authorizing the seizure of the chemical analysis of such blood sample.”

       Section 14-227a © (4) requires that a judge “has issued a search warrant in accordance with section 54-33a authorizing the seizure” of the BAC. Evidence obtained from an out-of-state hospital can never satisfy this requirement because a warrant issued pursuant to General Statutes § 54-33a cannot authorize the seizure of BAC evidence from an out-of-state hospital and, a search warrant authorized pursuant to Massachusetts law can never be issued in “accordance with section 54-33a.”

       Section 14-227a © (2) requires the blood to be drawn by medical personnel licensed or certified “in this state,” making it highly unlikely that the person drawing the blood in an out-of-state hospital is licensed or certified in Connecticut.


author: LANDAU, J.

text:
    TOWN OF SOUTH WINDSOR v. SOUTH WINDSOR POLICE UNION LOCAL 1480, COUNCIL 15, AFSCME, AFL-CIO
    (AC 18222)
    O’Connell, C. J., and Landau and Mihalalcos, Js.

      Argued October 26, 1999
    officially released May 2, 2000

      Eric R. Brown, for the appellant (defendant).

      David L. Metzger, with whom was Catherine L. More-ton, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LANDAU, J.

The defendant, South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO (union), appeals from the judgment of the trial court granting the plaintiffs application to vacate an arbitration award. In its appeal, the union claims that the court improperly (1) substituted its interpretation of the parties’ collective bargaining agreement (agreement) for the arbitrators’ interpretation with respect to the applicable standard of proof required to prove just cause, the just cause basis for discipline and the grievant’s fitness for duty, and (2) concluded that the arbitrators deprived the plaintiff, the town of South Windsor (town), a full and fair hearing by excluding evidence. In the alternative, the union claims that there is no public policy basis on which the trial court’s judgment can be affirmed. In its counterstatement of the issues, the town claims that the trial court’s judgment can be affirmed on important and clearly defined public policy grounds. We affirm the trial court’s judgment on the basis of the town’s public policy argument.

The following facts are necessary for our review. For approximately nine years prior to January 8,1992, John Marchesseault (grievant) was employed by the town as a police officer. On that date, the grievant worked the 3 p.m. to 11 p.m. shift alone in a radio police vehicle. Toward the end of his shift, the grievant was informed of a complaint that several young men had tried to gain access to the Ellsworth School to play basketball at the conclusion of an organized basketball game. Believing that the young men would later try to gain access to the building with a key one of them said he had, the director of the recreation department (director) asked the police to patrol the school to look for unauthorized activity.

The grievant proceeded to the school, observed lights in the hallway and found a broken window at the rear of the gymnasium. He reported his obseivations to the police dispatcher, who asked a second radio patrol officer to go to the school. The grievant knocked on the door but received no response. When the second officer and the director arrived, the director opened the door and the three entered the building. The grievant saw seven young men playing basketball. He then entered the gymnasium with his weapon drawn and ordered the basketball players to the floor. The grievant asked the second officer to frisk the players for weapons. The grievant’s weapon was drawn for approximately one minute, but it was never pointed at anyone.

After asking each of the young men for identification and talking with one of them about the key used to gain access to the school, the second officer decided to charge the young men with simple trespass and to issue each of them a citation, which would result in a mail-in fine of $50. While the officers were writing the citations, the second officer suggested to the grievant that he had overreacted to the situation (hereafter referred to as the basketball incident). The grievant agreed that there was no need for him to have pulled his weapon and acknowledged the danger inherent in having done so. When he returned to the police station, the grievant reported to the sergeant and described what he had done. The grievant’s supervisor, however, already had ended his shift.

On his next work day, the grievant spoke to his lieutenant saying, “I fucked up last night.” The lieutenant and the grievant had two discussions to determine what might have influenced the grievant’s inappropriate behavior. The grievant was unable to come to a conclusion about his conduct.

On or about January 13, 1992, the police chief received a letter of complaint from the mother of one of the seven young men who had been in the gymnasium playing basketball. The police chief assigned a sergeant to investigate the basketball incident. The grievant temporarily was relieved of duty with pay pending the investigation, which included an evaluation of his fitness for duty. On January 23, 1992, the police chief reviewed the basketball incident with the grievant. Again, the grievant admitted that his behavior was not proper. The investigating sergeant interviewed and took statements from the parties involved, including the grievant, and filed a report. The police chief reviewed the report and discussed the situation with the town manager. They concluded that the grievant should submit to a fitness for duty examination.

On approximately February 24,1992, the town asked Peter Zeman, a psychiatrist, to determine the grievant’s fitness for duty. The town supplied Zeman with all of the information in the grievant’s file, including information concerning an incident that occurred in 1983, which also resulted in a fitness for duty evaluation. After he met with the grievant, Zeman asked Leslie Lothstein, a psychologist, to administer psychological tests and render an opinion concerning the grievant’s fitness for duty. Both Zeman and Lothstein submitted reports to the police chief, who shared them with the town manager. The town manager held a hearing on April 15, 1992, to discuss the basketball incident and the results of the fitness evaluation. By letter dated April 28, 1992, the town manager informed the grievant that the town was going to terminate his employment as of May 1, 1992, because during the basketball incident, he had violated §§ 2.3.5 (unnecessary force), 2.3.2 (conduct unbecoming an officer) and 4.7.16 (guidelines and procedures for the use of firearms) of the South Windsor police manual, and because he was unfit for duty in Zeman’s and Lothstein’s opinions.* *

The union filed a grievance with the town, claiming that the grievant’s termination was without just cause, which the town manager denied. On or about January 25, 1993, the grievant’s attorney received a letter from David Johnson, an individual who claimed that he was counseling the grievant. Johnson’s letter stated that there was “no reason why [the grievant] should not return to duty as an officer with the ability to carry and handle firearms. I will continue to work with [the grievant] once he returns to active duty.” Later, the grievant obtained repoxts from Ronald Anderson, a psychologist, and Kenneth Selig, a psychiatrist with a law degree, who opined that the grievant was fit for duty.

The dispute was submitted to a three person arbitration panel (arbitrators). The arbitrators were to decide the following issues: (1) Was the grievant terminated by the town for just cause? and (2) If not, what shall the remedy be? The arbitrators held a hearing on numerous days on and between July 15, 1993, and March 4, 1994. While the hearing was pending, the parties agreed that Ezra Griffith, a professor of psychiatry at Yale University, should evaluate the grievant for fitness for duty. Griffith concluded that the grievant was fit for duty. In February, 1994, Zeman reviewed all of the reports and evaluation materials from the grievant’s experts, including Griffith, but did not change his opinion that the grievant was not fit for duty in early 1992.

The arbitrators issued their award on June 11, 1996, sustaining the grievance in part and denying it in part, concluding that the grievant was not terminated for just cause. The arbitrators’ award stated that the grievant “shall be reinstated to his position as a South Windsor police officer subject to retraining; a current fitness for duty statement; retraining in firearms; and, counseling as outlined in the analysis and discussion section of the award.”

The town filed an application to vacate the award pursuant to General Statutes § 52-418 (a) (3) and (4). The union moved to confirm the award. The trial court denied the motion to confirm and granted the application to vacate, concluding that the arbitrators (1) improperly imposed an excessive standard of proof on the town, (2) failed to allow evidence of the grievant’s purported search for mental health assistance, (3) relied on what the arbitrators termed “universally recognized” tests of just cause on which the parties had never agreed and (4) evaluated the grievant’s fitness for duty and the town’s actions with information that was not available at the time the town terminated the grievant’s employment. Additional facts will be addressed as needed.

“ ‘The scope of review by the court of an arbitrator’s power to make an award is limited. Arbitration is a creature of contract between the parties and its autonomy requires a minimum of judicial intrusion. . . . The parties themselves, by the agreement of the submission, define the powers of the arbitrator. . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided. . . . When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. ... An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission.’ . . . Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 583-84, 440 A.2d 774 (1981).” Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App. 805, 811-12, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).

“In determining whether a submission is unrestricted, we look at the authority of an 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 such qualifications, an agreement is unrestricted. . . . 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.” (Citation omitted; internal quotation marks omitted.) Id., 812.

I

We first address the union’s claim that the trial court improperly granted the town’s application to vacate.

A

The first set of issues raised by the union concerns its claim that the trial court substituted its interpretation of the agreement for the arbitrators’ interpretation. We agree with the union.

1

The first issue of interpretation concerns the standard of proof that the town was required to meet to prove that the grievant’s termination was for just cause. The town claims that it is not the standard of proof the arbitrators used that is at issue, but rather, the fact that the arbitrators did not tell the town until after the hearing that they required the town to prove by more than a preponderance of the evidence that the grievant was terminated for just cause. The town claimed before the trial court that the arbitrators’ failure to provide notice of the heightened standard of proof or to permit the town to be heard on the standard of proof deprived the town of a full and fair hearing.

The agreement is silent as to the standard of proof by which the town was required to prove that it terminated the grievant for just cause. Apparently, prior to and during the arbitration, the parties did not discuss or agree on the standard of proof required. In rendering their award, the arbitrators let it be known that they imposed a standard higher than a preponderance of the evidence. The trial court concluded that in so doing, the arbitrators had improperly added a provision to the agreement. The court reasoned that because article XXX of the agreement states that “[n]o amendment, alteration or variation of the terms of this Agreement shall bind the parties hereto unless made and agreed to in writing by both parties,” and because article XVII of the agreement implies that the union has the burden of proof when it questions disciplinary action, the arbitrators exceeded their authority under § 52-418 (a) (3) and prejudiced the town by adding to the agreement a standard of proof provision to which the parties never agreed in writing.

“We have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld unless an award clearly falls within the proscriptions of § 52-418 of the General Statutes. ... A challenge of the arbitrator’s authority is limited to a comparison of the award to the submission. . . . An award, therefore, will normally be vacated only if it fails to conform to the submission, and the party challenging it has the burden of producing evidence sufficient to show that it does not conform to the submission. . . . Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved.” (Citations omitted; internal quotations marks omitted.) Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338-39, 555 A.2d 406 (1989).

“Judicial rulings in Connecticut and elsewhere generally have not reviewed the procedural or substantive merits of an arbitrated decision. General Drivers Local No. 120 v. Sears, Roebuck & Co., 535 F.2d 1072, 1076 (8th Cir. 1976). Here, we are faced with a challenge to the standard of proof utilized by a panel of arbitrators. Because collective bargaining agreements are generally silent on procedural matters such as rules of evidence, an arbitration panel must be vested with the inherent authority to make procedural rulings. Otherwise, the national policy favoring arbitration of collective bargaining grievances would be frustrated.” (Internal quotation marks omitted.) New Haven v. AFSCME, Council 15, Local 530, 9 Conn. App. 396, 399, 519 A.2d 93 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1287 (1987).

Standards of proof generally are a question of law. See Miller v. Commissioner of Correction, 242 Conn. 745, 799, 700 A.2d 1108 (1997); State v. James, 237 Conn. 390, 418, 678 A.2d 1338 (1996); State v. Davis, 229 Conn. 285, 293, 641 A.2d 370 (1994); In re Juvenile Appeal (83-AB), 189 Conn. 58, 60, 454 A.2d 271 (1983); Issler v. Issler, 50 Conn. App. 58, 74, 716 A.2d 938 (1998), rev’d on other grounds, 250 Conn. 226, 737 A.2d 383 (1999); Statewide Grievance Committee v. Presnick, 18 Conn. App. 316, 323, 559 A.2d 220 (1989). Connecticut’s appellate courts have not established the standard of proof to be used to determine whether an employer had just cause to terminate a police officer. Courts do not review legal questions involved in an arbitration, save for those set forth in § 52-418 (a). Because the agreement was silent as to the standard of proof by which the town had to prove its termination of the grievant was for just cause, the arbitrators properly established the standard of proof required. Because the agreement did not contain a provision as to the standard of proof required, the town was on notice that the arbitrators could establish the standard of proof and was, therefore, not denied a full and fair hearing. Consequently, the trial court improperly vacated the award on the grounds of lack of notice and the standard of proof the ar bitrators applied to the evidence.

2

Next, the union claims that the trial court improperly substituted its interpretation of the agreement for that of the arbitrators with respect to the just cause basis for discipline. The trial court concluded that the arbitrators applied the improper test for determining just cause. Although the town included that claim in its application to vacate, we conclude, on the basis of our review of the record, that the parties did not brief this issue for the trial court. The issue, therefore, was not properly before the trial court, which improperly vacated the award on that ground. See Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 344 n.11, 680 A.2d 1261 (1996).

3

The union’s third claim is that the trial court improperly interpreted the agreement by concluding that the arbitrators considered expert opinions regarding the grievant’s fitness for duty rendered subsequent to April 28, 1992, the date the town terminated the grievant’s employment.

The basketball incident occurred on January 8, 1992. Zeman and Lothstein met with the grievant in February and March, 1992. The first contrary opinion was received by the grievant’s counsel in late January, 1993. On July 12, 1993, Anderson rendered an opinion that the grievant was fit for duty. Selig conducted interviews with the grievant in June and July, 1993, and rendered an opinion in November of that year, stating that because no one had diagnosed the grievant as suffering from any particular mental illness, the grievant must be fit for duty. Griffith rendered his opinion in late December, 1993.

The arbitrators determined that the town had to prove that the grievant was not fit for duty by more than the preponderance of the evidence and that the standard was to be met “by evidence supported by . a clinical conclusion, with reasonable medical certainty, that the grievant is not able to continue to work as a gun-carrying police officer, and that he presents a foreseeable risk to his own health and safety and that of the citizenry of [the town].” The arbitrators noted that a review of the opinions of the parties’ evaluators and of Griffith, the psychiatrist on whom the parties agreed, raised “the question as to whether or not the findings provided a conclusion, with reasonable medical certainty, that the grievant would not have been able to return to his position as a police officer if he had been allowed the opportunity to seek counseling, retraining and appropriate treatment. In other words, was his termination the only reasonable avenue available to the town or was termination based on the evaluation results excessive?” The arbitrators also found that the town did not provide the grievant with an opportunity to overcome the opinions of Zeman and Lothstein before deciding to terminate the grievant.

Before both the trial court and this court, the town argued that the arbitrators chose to believe expert opinions rendered eighteen months after the basketball incident rather than the opinions of experts who examined the grievant within two months of the event. The trial court, too, made much of the tense of the verb to be used by the arbitrators, i.e., was the grievant fit for duty or is the grievant fit for duty.

“[T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. Lawrence v. Kozlowski, [171 Conn. 705, 708, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977)]; O’Donnell v. Police Commission, 174 Conn. 422, 426, 389 A.2d 739 (1978); Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 563, 345 A.2d 520 (1973); Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 56, 282 A.2d 890 (1971). . . . Feinson v. Conservation Commission, 180 Conn. 421, 425-26, 429 A.2d 910 (1980); see Huck v. Inland Wetlands & Watercourses Agency, [203 Conn. 525, 542, 525 A.2d 940 (1987)] (administrative agency is not required to believe any witness [even expert]).

“In short, we may not substitute our own conclusions for those of the commission. Rather, we are limited to determining whether the commission’s conclusions of fact were unreasonable, arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 332, 732 A.2d 144 (1999).

Although it was well within the scope of arbitration for the arbitrators to determine which expert opinions to credit and which to disregard, the arbitrators in the case before us did not say that they chose to believe the opinions of the union’s experts rather than the opinions of Zeman and Lothstein. The arbitrators found that on the basis of their review of the evaluations and Griffith’s opinion, there was a question as to whether Zeman and Lothstein’s opinions were conclusive within a degree of medical certainty. The issue for the arbitrators was not the substance of Zeman and Lothstein’s opinions but the quality of their opinions. Because, according to the arbitrators, the town’s expert opinions did not meet the standard of proof, the town did not meet its burden of proof. The trial court improperly vacated the award on this ground.

B

Next, the union claims that the trial court improperly vacated the award by concluding that the town was deprived of a full and fair hearing because the arbitrators excluded evidence of the efforts the grievant made to secure a favorable fitness for duty report prior to November 30, 1993. We agree.

During the hearing, the town asked the grievant on cross-examination whether he had sought other opinions of his fitness for duty between the time that he saw Zeman and the time he saw Selig. The union’s counsel objected, and the arbitrators sustained the objection. When asked for a clarification of their ruling, the arbitrators gave two reasons: First, the arbitrators did not believe they had the authority to require the grievant to respond and, second, they had sufficient medical evidence so that any additional contradictory evidence would be cumulative.

“Hearings before administrative agencies . . . although informal and conducted without regard to the strict rules of evidence, must be conducted so as not to violate the fundamental rules of natural justice. . . . Due process of law requires not only that there be due notice of the hearing but that at the hear ing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 536.

“[Arbitrators are accorded substantial discretion in determining the admissibility of evidence, particularly in the case of an unrestricted submission, which ‘relieve[sj the arbitrators of the obligation to follow strict rules of law and evidence in reaching their decision.’ Norwich Roman Catholic Diocesan Corporation v. Southern New England Contracting Co., [164 Conn. 472, 477, 325 A.2d 274 (1973)]; Bridgeport v. Bridgeport Police Local 1159, [183 Conn. 102, 106, 438 A.2d 1171 (1981)]. Indeed, it is within the broad discretion of arbitrators to decide whether additional evidence is required or would merely prolong the proceedings unnecessarily.” O & G/O’Connell Joint Venturer. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 148, 523 A.2d 1271 (1987).

“In light of these well settled principles governing evidentiary issues in arbitration proceedings, we decline to interpret § 52-418 (a) (3) as mandating that every failure or refusal to receive evidence, even relevant evidence, constitutes misconduct. . . . Rather, a party challenging an arbitration award on the ground that the arbitrator refused to receive material evidence must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the arbitration panel.” (Citations omitted.) Id., 149.

“In addition, it must prove that as a result of the improper ruling, it suffered substantial prejudice. Ann Howard's Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, [237 Conn. 209, 230-31, 676 A.2d 844 (1996)]. A trial court reviewing an arbitration award, therefore, must consider all of the evidence placed before it concerning the alleged error in order to determine whether the challenging party has proved that the alleged error, in fact, denied it a full and fair hearing. Id. In reviewing the trial court’s decision, an appellate court must determine whether, on the basis of the record before it, the trial court reasonably could have concluded that the challenging party was, in fact, denied such a full and fair hearing.” (Emphasis in original.) Clairol, Inc. v. Enertrac Corp., 44 Conn. App. 506, 514, 690 A.2d 418, cert. denied, 241 Conn. 906, 695 A.2d 537 (1997).

The arbitrators’ award demonstrates that the town was not prejudiced by the arbitrators’ decision not to compel the grievant to answer the town’s question concerning efforts he had made to obtain a favorable fitness for duty opinion prior to November, 1993. During the course of the hearing, the arbitrators were concerned that they, as laypersons, were faced with opposing expert opinions from the town and the union concerning the grievant’s fitness for duty. The arbitrators, therefore, initiated a discussion between the parties that a neutral expert review the grievant’s records and the expert opinions submitted to them. Griffith was the person the parties agreed should review the conflicting materials. Because the town agreed to submit the conflicting evidence to Griffith, whose opinion broke the deadlock and formed the basis of the arbitrators’ award, we cannot say that the town did not receive a full and fair hearing because the evidence in question was excluded. The trial court improperly vacated the award on this ground.

II

The town, in its counterstatement of the issues, claims that the trial court’s vacating the arbitrators’ award can be affirmed on important and clearly defined public policy grounds. We agree.

The submission to the arbitrators consisted of two parts. If the arbitrators concluded that the grievant was not terminated for just cause, they were asked to determine the remedy. Because they determined that the grievant was not terminated for just cause, the arbitrators ordered his “reinstatement to his position as a police officer subject to retraining required by [General Statutes § 7-294d (b)] and subject to training on the use and possession of firearms. Further, he shall provide to the town a current fitness for duty statement provided by a medical expert of his choice and shall continue counseling as determined by said professional surrounding the type of judgment he made on January 8th [1992] which resulted in this arbitration.” (Emphasis added.)

The town claims that by giving the grievant the option to choose the medical expert to provide his fitness for duty statement, the arbitrators violated § 52-418 (a) (4) by exceeding their powers in that the town’s board of police commissioners is solely responsible for the appointment of police officers. See General Statutes § 7-276. The town argues that the grievant’s interest in continued employment as a police officer must be weighed against the town’s interest in protecting public safety and public confidence in its police department. The town notes that the grievant himself admitted that his behavior during the basketball incident was inappropriate. It also points out that the arbitrators found that “the grievant acted in ... an inappropriate manner based upon the expectations of the town and his own knowledge of what was required during” the basketball incident, and that “[t]he town acted reasonably and within its responsibilities by initiating an investigation of the” basketball incident. The town concludes that by giving the grievant the right to select the fitness evaluator, the arbitrators placed the grievant’s employment rights over the rights of the town’s citizens to be protected by a police force whose members are psychologically sound and fit for duty.

“[T]he public policy exception to arbitral authority should be narrowly construed and a court’s refusal to enforce an arbitrator’s inteipretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. . . . Watertown Police Union Local 541 v. Watertown, [supra, 210 Conn. 340]. [W]ith respect to matters of public policy generally, arbitrators exceed their authority if their award orders a party to engage in conduct that is patently illegal or in clear violation of public policy. Stratford v. Local 134, IFPTE, [201 Conn. 577, 585, 519 A.2d 1 (1986)]; Board of Trastees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979); [R.] Gorman, Basic Text on Labor Law, Unionization and Collective Bargaining (1976) p. 593. New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 416-17, 544 A.2d 186 (1988).

“A public policy challenge to an arbitration award is rooted in the principle that the parties cannot expect conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.” (Internal quotation marks omitted.) Hartford v. International Assn. of Firefighters, Local 760, supra, 49 Conn. App. 812-13.

To trigger the public policy exception of § 52-418 (a) (4), the award must violate an explicit public policy or statute. Watertown Police Union Local 541 v. Watertown, supra, 210 Conn. 340-41 n.4; see Board of Trustees v. Federation of Technical College Teachers, supra, 179 Conn. 195; State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 508 A.2d 806 (1986) (awards set aside pursuant to General Statutes § 54-418 [a] [4] because found in direct conflict with provisions of state statute); International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 483 A.2d 626 (1984) (arbitration award set aside that upheld the disciplining of police officer for refusing to falsify arrest warrant); Avco Corp. v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961) (arbitration board held to have exceeded its authority when award rendered found to contravene public policy because it called for reinstatement of employee convicted under state statute for gambling on employer’s premises).

“Any town may . . . establish a board of police commissioners . . . .” General Statutes § 7-274. “Such boards shall have all of the powers given by the general statutes to boards of police commissioners, shall have general management and supervision of the police department of such town .... Such board shall have the sole power of appointment, promotion and removal of the officers and members of such police department . . . .” General Statutes § 7-276. The police officer standards and training council (council) has authority “[t]o establish uniform minimum educational and training standards for employment as a police officer in full-time positions . . . .” General Statutes § 7-294d (a) (10). “The Police Officer Standards and Training Council requires, as a condition of appointment to a position of probationary candidate in a law enforcement unit in the State of Connecticut, on or after January 1, 1995, that the candidate has been the subject of a psychological examination during the selection process and that a written report of that examination is on file with the appropriate officials at the law enforcement unit. The Police Officer Standards and Training Council requires that the examination be conducted by a psychologist/ psychiatrist currently licensed by a qualified state board, who provides the law enforcement unit with documentation of the examination and who provides a written opinion of the candidate’s overall psychological stability to fill a position as a police officer.” Regs., Conn. State Agencies § 7-294e-16 (j).

The union argues that the balance between the town’s public safety concerns and the grievant’s employment interest is too vague a public policy on which to vacate the arbitrators’ award. We disagree, as the legislature made it perfectly clear that the town’s board of police commissioners alone is responsible for hiring police officers. The legislature also specifically empowered the council to establish entry level requirements that all police officers must meet. The public policy issue concerning public safety and a police officer’s fitness for duty is quite specific.

The union argues that because the applicable regulation, § 7-294e-16 (j), is limited to probationary candidates, it does not apply to the grievant. We will not construe the regulation in a manner that produces an absurd result. Pursuant to § 7-276, the town must necessarily be concerned with every police officer’s fitness for duty, whether a probationary or established officer. Because the arbitrators’ award violates the specific public policy of a town’s control over the fitness for duty of its police force, we affirm the trial court’s judgment sustaining the town’s appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court denied the union’s motion to confirm the arbitrators’ award.

       The union also claimed that the court improperly failed to confirm the arbitration award. Because this claim is subsumed in the union’s other claims, we need not address it specifically.

       Three additional complaints were submitted by other participants in the basketball game.

       Zeman’s report stated in part: “It is my opinion that, at the time of my psychiatric interview, [the grievant] didnotshow signs of amajorpsychiatric illness. However, it is my further opinion that he has a significant potential for his mental and emotional functioning to decompensate in stressful situations. During such episodes of decompensation, he is prone to exercise poor judgment and to act in poorly controlled and impulsive manner. Once the stressful situation has passed, his thinking and behavior return rapidly to normal .... It is my opinion that [the grievant’s] continued potential for unpredictable impulsive behavior and poor judgment prevent him at this time from being ‘fit for duty’ from a psychiatric perspective.”

       Lothstein’s report stated in part: “Given the nature of his conflicts I do not see him as ‘fit for duty’ if it means returning to police work with a gun that he may use inappropriately. His psychological test profile suggests that his underlying conflicts (his dependency need and masculine self image) and personality structure (histrionic, dependent and passive) combined with his surfacing aggression and hostility make him a risk for acting inappropriately in high intensity situations.”

       The grievant was offered a job as a dispatcher, a position that he initially refused but later accepted on July 19, 1992.

       The record contains no information as to Johnson’s qualifications, a definition of counseling or the basis of Johnson’s opinion.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects ... (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (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.”

       In their award, the arbitrators stated: “Since the basis for the termination of the grievant, in the first stated instance, resulted from the conclusions of ‘fitness for duty’ evaluations ordered by the town as a result of the grievant’s actions, the panel finds that the town must prove that he is unfit to serve by more than a preponderance of evidence for the termination to be sustained. The discharge not only affects the employee’s job, his seniority and other contractual benefits, but also his reputation as to his mental stability.
      “The panel finds that such burden must be met by evidence supported by a clinical conclusion, with reasonable medical certainty, that the grievant is not able to continue to work as a gun-carrying police officer, and that he presents a foreseeable risk to his own health and safety and that of the citizenry of South Windsor.
      “Along with the ‘fitness for duty’ basis used for the termination, the town outlines the grievant’s violation of certain provisions of the Duty Manual as equally supporting the discharge. These we decided need only be substantiated by a preponderance of the evidence reviewed in light of the just cause elements.”

       Article XVII, § 17.2, of the agreement provides: “The Union shall have the right to question the propriety of any such disciplinary action or charge, involving suspension, discharge or reduction in grade or rank, through the grievance procedure herein outlined, including arbitration.”

       By holding in favor of the union on this issue, we in no way imply that we agree or disagree, as a matter of law, with the standard of proof imposed by the arbitrators to the question of whether a police officer was terminated for just cause.

       The town also did not brief the issue before this court.

       “Moreover, principles of statutory construction require the court to construe a statute in a manner that will not frustrate its intended purpose or lead to an absurd result. Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). The court must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Internal quotation marks omitted.) New Milford Savings Bank v. Jajer, 52 Conn. App. 69, 79, 726 A.2d 604 (1999).

       Practice Book § 63-4 (a) (1) (A) provides that the appellee may “present, for review alternate grounds upon which the judgment may be affirmed


author: SCHALLER, J.

text:
    LONNIE WALTON v. COMMISSIONER OF CORRECTION
    (AC 18572)
    Foil, Schaller and Mihalakos, Js.
    Argued October 21, 1999
    officially released May 2, 2000

      Del Atwell, special public defender, for the appellant (petitioner).

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

SCHALLER, J.

The petitioner, Lonnie Walton, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that his attorney (1) improperly proceeded to trial and sentencing despite being aware of a conflict of interest and (2) failed to provide effective assistance of counsel in several respects, namely, that his attorney failed to file a motion for a bill of particulars, to conduct an adequate investigation and to object to an improper jury instruction. We affirm the judgment of the habeas court.

The relevant facts and procedural history necessary to the resolution of this appeal are set forth in State v. Walton, 34 Conn. App. 223, 225, 641 A.2d 391, cert. denied, 230 Conn. 902, 644 A.2d 916 (1994). “On the morning of June 2, 1990, the [petitioner] and a second male approached the victim, Angel Perez, as he was getting out of his automobile in Bridgeport. The second male pointed a gun at Perez and demanded his car key. When Perez refused, he was told by the [petitioner] to ‘give it to him or we will shoot you.’ Perez relinquished his car key and was told to sign over the title to the car or he would be shot. Perez agreed to do as commanded if they would allow him to remove some cans that he had collected for deposit money and stored in plastic bags in the car. While doing so, Perez pulled out a metal rod and hit the second male in the face several times. Perez then fled and was shot at by the second male. The [petitioner] and the second male fled.

“The police arrived and began a search of the area. The two assailants were observed walking together a short distance away and an officer ordered them to stop. The second male pulled a handgun from his waistband, handed it to the [petitioner], and fled. The [petitioner] was seized. Shortly thereafter, Perez identified the [petitioner] as one of the two men who had robbed him.”

Following a jury trial, the petitioner was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and attempt to commit assault in the first degree in violation of General Statutes §§ 53a-8, 53a-49 and 53a-59 (a) (1).

The habeas court made the following additional findings of fact. At trial, the petitioner claimed that he was coerced into committing the crimes by an unidentified assailant and that he was not a willing participant. In December, 1990, approximately four months prior to the commencement of trial, trial counsel first became aware of the existence of the unknown assailant. At that time, the petitioner claimed that he saw the unknown assailant at the Bridgeport correctional center. Upon lear ning this information, counsel contacted the warden in an effort to obtain a photographic spread of the inmates located in the cell block at that time. As a result of the warden’s refusal to produce the photographs, counsel subpoenaed the warden and demanded the production of the photographs. The warden filed a motion to quash the subpoena, which subsequently was denied after a hearing. The warden was required to produce photographs of all of the inmates located in the Bridgeport facility on April 19, 1990, for the inspection and review by the petitioner. After reviewing the photographs, the petitioner was unable to identify the person whom he claimed coerced him into committing the crime. Sometime after the petitioner’s sentencing, the petitioner learned that the name of the person whom he claimed coerced him was Charles Carr. From September 25, 1990, to March 31, 1991, Carr, who was incarcerated on unrelated charges, was represented by a public defender in the same office as the petitioner’s trial counsel.

Subsequent to the disposition of his direct appeal, the petitioner filed an amended petition for a writ of habeas corpus, raising multiple allegations of ineffective assistance of trial counsel. The habeas court dismissed the petitioner’s petition, finding that the petitioner was not denied the effective assistance of counsel. This appeal followed.

At the outset, we note that, in considering a habeas corpus appeal, “[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995).

I

First, we consider the petitioner’s claim that he was denied the effective assistance of counsel because of a conflict of interest. The petitioner maintains that he and Carr, the person whom he claims coerced him into committing the crimes, were represented for a period of approximately four months by attorneys in the same office of the public defender. The habeas court found this claim to be without merit because at the time of trial or sentencing, neither Carr’s name nor his identity were known to the petitioner or his attorney. We agree with the determination of the habeas court.

“The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel.” State v. Martin, 201 Conn. 74, 78, 513 A.2d 116 (1986), citing Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Festo v. Luckart, 191 Conn. 622, 626, 469 A.2d 1181 (1983). Akin to this right, “a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.” State v. Webb, 238 Conn. 389, 417, 680 A.2d 147 (1996); Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); Glasser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 (1942); Festo v. Luckart, supra, 626-27. The trial court retains “broad discretionary power [in determining] whether an attorney should be disqualified for an alleged . . . conflict of interest.” (Internal quotation marks omitted.) State v. Webb, supra, 417; State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980), overruled in part on other grounds, State v. Powell, 186 Conn. 547, 555, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).

In a claim of ineffective assistance of trial counsel predicated on an alleged conflict of interest, the petitioner bears the burden of satisfying a two-pronged test enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner must first demonstrate “that counsel actively represented conflicting interests and [second] that an actual conflict of interest adversely affected his lawyer’s performance.” (Internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 133, 595 A.2d 1356 (1991). To prevail, “the defendant need not establish actual prejudice. . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.” (Citation omitted; internal quotation marks omitted.) Id., quoting Strickland v. Washington, supra, 692.

In the present case, the habeas court determined that Carr, the person who allegedly coerced the petitioner into committing the crimes, “was not known to the petitioner or his counsel at the time of trial or sentencing.” It was not discovered until after trial and sentencing that the petitioner and Carr were both represented by the same office of the public defender for a four month period. Without a showing that the petitioner or his attorney actually knew Carr’s identity before sentencing, it is difficult to imagine how the attorney’s duty of undivided loyalty to his client was compromised or how the petitioner’s representation was jeopardized in any way. Indeed, for an attorney to actively represent conflicting interests, the attorney must be aware of at least both parties’ names or some other type of identifying information. The petitioner has not demonstrated the existence of a conflict of interest, nor has he shown how the alleged conflict adversely affected counsel’s representation of him.

II

Next, the petitioner claims that he was denied the effective assistance of counsel because counsel failed to file a bill of particulars, conduct an adequate investigation, object to an improper jury instruction and move for a mistrial. We will address each of these arguments in turn.

Initially, we note that to establish an ineffective assistance of counsel claim, the petitioner must satisfy the two-part test set forth in Strickland v. Washington, supra, 466 U.S. 687. To prevail, the petitioner must first “show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.” Id.; Copas v. Commissioner of Correction, supra, 234 Conn. 154; Phillips v. Warden, supra, 220 Conn. 132.

“In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal. In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial.” (Internal quotation marks omitted.) Mercer v. Commissioner of Correction, 51 Conn. App. 638, 641, 724 A.2d 1130, cert. denied, 248 Conn. 907, 731 A.2d 309 (1999); see Strickland v. Washington, supra, 466 U.S. 687; Valeriano v. Bronson, 209 Conn. 75, 85-86, 546 A.2d 1380 (1988); Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). “A reviewing court can find against the petitioner on whichever ground is easier.” (Internal quotation marks omitted.) Mercer v. Commissioner of Correction, supra, 641; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988).

“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland v. Washington, supra, 466 U.S. 691. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test . . . and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” (Citation omitted.) Id., 693. Rather, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 694; Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 394, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).

A

We first consider the petitioner’s claim that his attorney improperly failed to file a motion for a bill of particulars. On the basis of the evidence, the habeas court concluded that the attorney acted competently under the circumstances by not requesting a bill of particulars because a long form information was filed that adequately apprised the petitioner of the crimes being charged. We agree.

A bill of particulars operates “to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise.” State v. Steve, 208 Conn. 38, 44, 544 A.2d 1179 (1988); State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983). “A bill of particulars limits the state ‘to proving that the defendant has committed the offense in substantially the manner described.’ ” State v. Correa, 241 Conn. 322, 341, 696 A.2d 944 (1997); State v. Roque, supra, 155; State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976).

Relying on State v. Steve, supra, 208 Conn. 38, the petitioner argues that a motion for a bill of particulars should have been filed because it would have provided him with additional information necessary to prepare an effective defense. In Steve, the defense counsel obtained a bill of particulars that charged the defendant with criminal liability for robbery in the first degree and assault in the first degree as a principal. Id., 41. The jury was instructed on accessorial liability, even though the bill of particulars set forth facts that were sufficient to support only the defendant’s participation as a principal. Id., 41-43. In affirming our reversal of the trial court’s judgment of conviction, our Supreme Court held that “the defendant was prejudiced in his defense as a result of a substantial variance between the allegations in the bill of particulars and the court’s instructions concerning accessorial liability.” Id., 45-46. Furthermore, the court found it “significant that the state presented no evidence . . . suggesting that the defendant had acted as an accomplice.” Id., 46.

The petitioner’s reliance on Steve is misplaced, as the facts in Steve differ significantly from those in the present situation. Unlike the situation in Steve, the state, in this instance, possessed substantial evidence as to the petitioner acting as either a principal or an accessory to the crimes. In fact, at trial, the petitioner even testified that he was present during the events but was an unwilling participant, not that he was not a participant at all. Moreover, the long form information afforded the petitioner the statutory sections of the crimes charged, the victim’s name, the date and time of the crime, and the place at which it occurred. Hence, the petitioner was informed adequately of the charges against him “with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise . . . .” State v. Sumner, 178 Conn. 163, 168, 442 A.2d 299 (1979); see Russell v. United States, 369 U.S. 749, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962).

Finally, the petitioner fails to satisfy the twofold standard set forth in Strickland for establishing an ineffective assistance of counsel claim. The petitioner has not demonstrated that his attorney’s performance, in choosing not to file a motion for a bill of particulars, was deficient. The purpose behind the bill of particulars is to inform the defendant of the charges against him so as to avoid unfair surprise at the time of trial. Here, the actions of trial counsel did not fall below the level of unreasonableness because the long form information sufficiently informed the petitioner of the charges against him. Moreover, the petitioner has not shown that the defense of his case actually was prejudiced due to the alleged deficiency. Indeed, it would be sheer speculation to hold that the result of the trial would have been different had his attorney filed a motion for a bill of particulars.

B

The petitioner next claims that he was deprived of the effective assistance of trial counsel because his attorney failed to conduct an adequate investigation. The petitioner asserts that a witness in a gray pickup truck observed the incident and could testify that the petitioner was coerced into committing the crimes. Further, the petitioner maintains that despite the fact that he relayed this information to his attorney, his attorney made no effort to locate this witness. The habeas court concluded that the petitioner failed to satisfy either prong of the Strickland test for establishing an ineffective assistance claim. We agree.

Paramount to the effective assistance of counsel is the obligation by the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case. Siemon v. Stoughton, 184 Conn. 547, 556 n.3, 440 A.2d 210 (1981); Summerville v. War den, 29 Conn. App. 162, 171, 614 A.2d 842 (1992), rev’d on other grounds, 229 Conn. 397, 641 A.2d 1356 (1994); Ostolaza v. Warden, 26 Conn. App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). However, “counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it.” (Internal quotation marks omitted.) Ostolaza v. Warden, supra, 765.

In considering an ineffective assistance of counsel claim, “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland v. Washington, supra, 466 U.S. 689; see also Siemon v. Stoughton, supra, 184 Conn. 555; Summerville v. Warden, supra, 29 Conn. App. 173; Ostolaza v. Warden, supra, 26 Conn. App. 765; Chace v. Bronson, 19 Conn. App. 674, 679, 564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Strickland v. Washington, supra, 689.

Several additional findings made by the habeas court are relevant to our resolution of this matter. In its memorandum of decision, the court concluded that “[n]o evidence was produced to indicate how the petitioner expected trial counsel to determine who this individual was, if he, in fact, existed at all. . . . The petitioner presented no police report indicating the existence of this individual, no witness to corroborate his existence, nor any other evidence other than his testimony as to the existence of this person. The court does not find this testimony credible.” Furthermore, the court observed that the testimony of the petitioner’s attorney indicated that he believed that his investigator had located the witness in question. This individual, Robert Hoffman, testified unfavorably for the defense at trial. We agree with the court that if the petitioner is claiming that there is yet another witness, then “the petitioner is demanding of his trial lawyer what can only be described as the impossible task of locating an individual with a limited description of him and no other leads as to his identity other than he was driving a gray pickup truck.”

On the basis of the historical facts found by the habeas court, we hold that the petitioner has failed to satisfy either component of the Strickland test for establishing an ineffective assistance of counsel claim. See Copas v. Commissioner of Correction, supra, 234 Conn. 152. First, the petitioner has failed to demonstrate how his “counsel’s performance was deficient.” Strickland v. Washington, supra, 466 U.S. 687. It can hardly be deemed unreasonable performance on the part of an attorney when he is unable, due to the surrounding circumstances, to locate a particular witness. See Summerville v. Warden, supra, 29 Conn. App. 172-73. Here, the odds that the petitioner’s attorney could locate a witness solely on the basis of the fact that such witness drives a gray pickup truck are, indeed, very slim, if not impossible. Second, the petitioner has not illustrated how his defense was prejudiced by this alleged deficiency. See Strickland v. Washington, supra, 687. There has been no showing that the outcome of the petitioner’s criminal trial was adversely affected or that the result of his trial would have been different had his attorney located this witness. Further, we cannot speculate about the testimony of unknown witnesses. The petitioner, therefore, has failed to establish a claim of ineffective assistance of counsel on the basis of a failure to investigate because he has not shown that his attorney’s performance was deficient nor has he demonstrated that he was prejudiced by the claimed deficiency.

C

Next, the petitioner asserts that his counsel was ineffective because his attorney failed to object to an improper jury instruction. The petitioner appears to be claiming that the jury instruction on accessorial liability was incorrect. The petitioner has offered minimal analysis to support this claim.

In assessing the propriety of a jury instruction, we test whether a charge is “correct in law, adapted to the issues and sufficient for the guidance of the jury.” State v. Sumner, supra, 178 Conn. 170; Berniere v. Kripps, 157 Conn. 356, 358, 254 A.2d 496 (1969). “The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established. . . . The charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” (Citations omitted.) State v. Sumner, supra, 170-71.

Because the jury instruction was a correct statement of law as to accessorial liability; see State v. Walton, supra, 34 Conn. App. 236; the petitioner’s attorney appropriately did not object to the instruction. See Evans v. Commissioner of Correction, 37 Conn. App. 672, 689-90, 657 A.2d 1115, cert. denied, 234 Conn. 912, 660 A.2d 354 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also claims that trial counsel failed to move for a mistrial on the basis of a conflict of interest. In light of our disposition of the petitioner’s first claim, we need not address this issue.

       On direct appeal, the petitioner had maintained that “(1) the charging document failed to set forth each essential element of the crimes charges, thereby depriving the court of jurisdiction, (2) there was insufficient evidence to sustain the convictions, and (3) the trial court improperly instructed the jury.” This court affirmed the judgment of the trial court. State v. Walton, supra, 34 Conn. App. 224.

       In his brief, the petitioner acknowledges that the issue requires “plenary review . . . unfettered by the clearly erroneous standard,” thereby conceding that he is not attacking the findings of fact made by the habeas court.

       See footnote 1.

       The substitute long form information charged in relevant part: “[T]hat at the City of Bridgeport, Fairfield County, on the 2nd day of June 1990, at or about 6:30 a.m. outside 202 Maplewood Avenue, Bridgeport,, the said LONNIE WALTON stole certain property from one ANGEL A. PEREZ, to wit: personal property, and in the course of the commission of the crime he or another participant was armed with a deadly weapon, to wit: a pistol, in violation of Section 53a-134 (a) (2) of the Connecticut General Statutes.
      “AND SAID STATE’S ATTORNEY FURTHER ACCUSES the said LONNIE WALTON with the crime of ATTEMPTED ASSAULT IN THE FIRST DEGREE and charges that at the City of Bridgeport, Fairfield County, on the 2nd day of June, 1990, at or about 6:30 a.m. outside 202 Maplewood Avenue, Bridgeport, the said LONNIE WALTON did intentionally aid John Doe, while the latter, with intent to cause serious physical injury to said ANGEL A. PEREZ, did attempt to cause serious physical injury to the said ANGEL A. PEREZ, by means of a deadly weapon, to wit: a pistol, in violation of Section 53a-8, Section 53a-49 and Section 53a-59 (a) (1) of the Connecticut General Statutes.” (Internal quotation marks omitted.) State v. Walton, supra, 34 Conn. App. 225-26 n.5.