author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. DAVID JOYCE
    (AC 15603)
    O’Connell, Schaller and Hennessy, Js.

      Argued November 7, 1996
    officially released June 10, 1997

      KentDrager, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction, following a jury trial, of felony murder in violation of General Statutes § 53a-54c, attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (3), robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and criminal possession of a pistol in violation of General Statutes § 53a-217 (a). The jury acquitted the defendant of attempted murder and assault in the third degree.

The defendant claims that the trial court improperly (1) admitted evidence of prior arrests and other misconduct at the suppression hearing, (2) restricted the cross-examination of one police officer and the direct examination of another officer, (3) replied to jury questions, (4) allowed the state to inform the jury of the precise underlying crime in the criminal possession of a firearm charge, (5) denied his request to dismiss his trial counsel, and (6) denied his motion for a new trial. We affirm the judgment of the trial court.

The record discloses the following facts. On August 1, 1991, the defendant entered a small grocery store in Bridgeport. As he approached the counter, he grabbed a female customer, held a knife to her throat and threatened to kill her if the clerk, John Hanna, did not give him money. Nicholas Hanna, the store’s owner, was sitting on a crate behind John near the cash register as the defendant jumped over the counter to take money from the register. Nicholas grabbed a gun he kept nearby and shot the defendant once in the head. During a struggle for the gun, the defendant shot Nicholas in the forehead, killing him. The defendant shot twice at John, missed him, and fled from the store. Outside the store, the defendant pulled a woman, Joyce Castro, from her car and stole her purse and car.

The defendant was later apprehended in Hartford after the police were told about a shooting victim in an apartment on Cabot Street. The Hartford police located the stolen vehicle three blocks from the Cabot Street address and notified the Bridgeport police. Sergeant Glen Prentice of the Bridgeport police went to Hartford to investigate. On August 2, 1991, Prentice spoke to the defendant at a hospital in Hartford and arrested him on an outstanding warrant in an unrelated case. The defendant was returned to Bridgeport on the evening of August 2, 1991, and he asked to speak to Prentice. The defendant signed a written waiver of his Miranda rights and gave Prentice a written statement. Prentice again questioned the defendant on August 3, 1991, and the defendant gave him a second written statement. On August 4, 1991, Prentice sought to question the defendant again, but he refused to speak to him.

I

SUPPRESSION HEARING

The defendant filed a motion to suppress any statements he made to the police on the ground that they violated his federal and state constitutional rights. The motion is general in form and does not refer to specific statements. Our examination of the record indicates, however, that it was apparently intended to suppress the two statements made to Prentice. The defendant claims that the trial court improperly admitted evidence of other arrests and misconduct at the suppression hearing. Furthermore, the defendant claims that the denial of the motion to suppress was based on the .impeachment of the defendant by his prior convictions.

The defendant’s principal claim at the suppression hearing was based on his prior assault by a Bridgeport police officer, Joseph Procaccini. In that assault, Procaccini struck the defendant while the defendant was in handcuffs. As a result of his conduct, Procaccini was convicted in federal court and sent to prison. The defendant claimed that his statements to Prentice were not voluntary due to his fear of retaliation by Bridgeport police officers because of Procaccini’s conviction.

The test for voluntariness of a confession is “whether an examination of all the circumstances shows that the conduct of [the] police was such as to overbear the defendant’s will to resist and bring about a confession not freely self-determined.” State v. Perry, 195 Conn. 505, 515-16, 488 A.2d 1256 (1985). The trial court permitted the state to introduce evidence of all of the defendant’s prior arrests, as well as evidence concerning incidents occurring subsequent to the statements of August 2 and 3, 1991. These poststatement incidents included an October 1991 arrest for assaulting a police officer, a January 19, 1992 arrest for interfering with a police officer, and a January 19, 1992 arrest for contempt of court. The poststatement incidents also included misconduct reports for fighting with correction officers during his pretrial confinement. The state argued that it was necessary for the court to consider the defendant’s prior experience with the police, as well as the defendant’s conduct after he made the statements to Prentice, to evaluate the defendant’s ability to withstand pressure to overbear his will.

After an evidentiary hearing, the trial court made the following findings: “[The defendant] is powerfully built with an exceptionally large neck and upper body and with well-defined muscular arms and biceps. He appears to be a very powerful man. By contrast, quite frankly, Sergeant Prentice appeared to be relatively puny. Prentice was not armed during the time they were alone together at the detective bureau interrogation room, and the defendant was not restrained at that time. The defendant certainly appears to have no fear of authority. From 1979 to 1992, he had a great number of significant arrests and spent a great deal of time in jail or on parole. It is obvious that he has received Miranda warnings many times during this period and he is familiar with police and court procedures. His familiarity with Miranda warnings is especially clear since they are not just given by arresting and interrogating officers but also by the courts. He has had a number of convictions of various degrees of robbery and larceny and the court notes that these are crimes involving honesty and takes special note of them regarding the issue of credibility. There are also a significant number of arrests for violent acts, much of which was directed at police officers and correction officers, even after the Procaccini incident. The defendant is now, apparently, in solitary confinement for striking a correction officer and has had other altercations with correction officers. As a matter of fact, it is noteworthy that only twelve days after the incident with Officer Procaccini, the defendant was arrested again. The Procaccini incident obviously had little or no deterrent effect. Moreover, it would appear that the defendant is easily frustrated. He made this clear by swearing and cursing at the court when he did not like a court ruling during the voir dire, thus forcing the court to remove him from the courtroom. Again he showed no fear of authority, let alone respect. He was not afraid of the court and by his own admission had no fear of being held in contempt, something which his record indicates happened to him before.”

The trial court further found that “the defendant has no real fear of authority. It does not find that he is afraid of receiving physical injuries, something he appears to handle and tolerate with surprising ease. Moreover, the court does not find that he was afraid of Prentice. Quite the contrary, he wanted to talk to Prentice and he asked to do so. He was alone for a considerable period of time with the much smaller Prentice, who was unarmed and the defendant was not restrained. Prentice did not strike him during the interview in fact he gave him food.”

Finally, the trial court concluded that “[i]t is not credible that this exceptionally powerful man gave a false involuntary statement just to get out of the interview room so that he could lie down and rest when all he had to do is stop talking.”

The burden is on the state to prove by a preponderance of the evidence that the statements were voluntary. State v. Smith, 200 Conn. 465, 477, 512 A.2d 189 (1986). In analyzing an issue of voluntariness, our usual deference to the trial court’s fact-finding is qualified by the necessity for an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence. Id., 478.

Having examined the record and applied the appropriate standard of review, we conclude that there was substantial evidence to support the trial court’s finding that the defendant’s will was not overcome by the police and therefore that his statements were voluntary. Admission of the challenged evidence of the defendant’s prior arrests and misconduct was necessary for the trial court fairly to consider the defendant’s ability to withstand pressure to overbear his will.

II

RESTRICTION OF CROSS-EXAMINATION AND DIRECT EXAMINATION

The defendant next claims that the trial court improperly restricted his cross-examination of Prentice and direct examination of Officer David Daniels of the Bridgeport police concerning bias against the defendant that may have arisen as a result of the defendant’s 1990 assault by Procaccini. The defendant claims that the trial court’s restriction of his cross-examination violated his sixth amendment constitutional right of confrontation. The thrust of the defendant’s claim is that the Bridgeport police officers were aware of and resented the defendant’s complaint against Procaccini, and, therefore, Prentice’s testimony was biased and motivated by this resentment.

A

In an offer of proof, outside the jury’s presence, the defendant examined Prentice concerning his knowledge of the Procaccini assault and conviction. The defendant’s counsel also questioned Prentice about whether he knew of the defendant’s involvement in the incident. The trial court ruled that it would not permit the defendant to cross-examine Prentice about his knowledge of the Procaccini incident for purposes of impeachment based on bias or motive. The trial court concluded that the proposed cross-examination was not relevant and was a collateral issue that would divert the trial from material issues.

The trial court has wide discretion to determine relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). It is true that the scope and extent of cross-examination generally rest within the sound discretion of the trial court. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). “This discretion arises, however, only after the defendant has been permitted cross-examination and impeachment of a witness sufficient to satisfy the sixth amendment.” State v. Colton, 227 Conn. 231, 248, 630 A.2d 577 (1993). “[A]n important function of cross-examination is the exposure to a witness’ motivation in testifying.” Id., 249, citing Green v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). “Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” State v. Colton, supra, 249.

In the present case, the trial court completely denied the defendant’s right to cross-examine Prentice on the issue of bias concerning the Procaccini incident and did not merely limit the extent of the cross-examination. The trial court’s discretion, therefore, did not come into play. State v. Milum, 197 Conn. 602, 610, 500 A.2d 555 (1985). We conclude that the trial court improperly determined that the evidence of bias or interest was collateral. Evidence tending to show bias is never collateral or irrelevant. Id. Prentice’s possible bias against the defendant was clearly relevant and was a matter for the jury to consider when it evaluated Prentice’s credibility.

B

During its case-in-chief, the defendant proposed to examine Daniels to impeach Prentice’s testimony. In an offer of proof, Daniels testified that he and Prentice were members of the fifth platoon, which shared shifts and time off. Daniels testified that the fifth platoon was like a family and socialized together. Daniels testified that because he had reported Procaccini’s misconduct against the defendant, he was shunned by the other members of the platoon, including Prentice. Daniels testified that the platoon’s resentment flared when the defendant was charged in another murder case in July, 1991.

The defendant argues that Daniels’ testimony was necessary to show that Prentice had strong feelings about the Procaccini incident and was likely to have known of the defendant’s involvement before he investigated the present case and took the defendant’s statements. The trial court disallowed the examination of Daniels on this issue, concluding that Prentice’s bias against Daniels did not mean that Prentice was biased against the defendant.

Because bias or interest is not collateral, extrinsic evidence may also be introduced. State v. Colton, supra, 227 Conn. 231, citing State v. Shipman, 195 Conn. 160, 163, 486 A.2d 1130 (1985). The trial court improperly restricted the defendant’s right to show Prentice’s bias through the direct examination of Daniels.

C

We next consider whether the trial court’s improper exclusion of evidence pertaining to Prentice’s bias against the defendant requires a new trial. “Although the outright denial of a defendant’s opportunity to impeach a witness for motive, bias and interest implicates the constitutional protection of the confrontation clause, such a denial is subject to harmless error analysis.” State v. Colton, supra, 227 Conn. 253, citing United States v. Anderson, 881 F.2d 1128, 1139 (D.C. Cir. 1989); State v. Santiago, 224 Conn. 325, 332, 618 A.2d 32 (1992).

“Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . .” (Internal quotation marks omitted.) State v. Colton, supra, 227 Conn. 254.

We next evaluate the importance of Prentice’s testimony to the state’s case. Prentice testified as to the defendant’s statements, and to the steps involved in his investigation. Prentice’s testimony was, however, cumulative and corroborative of the testimony of John Hanna, an eyewitness to the robbery and murder. In all, three eyewitnesses placed the defendant at the crime scene. Both Hanna’s wife and brother testified that he was in the store, and John Hanna identified him as the killer. The defendant lied to the Hartford police upon his apprehension after stealing a car and driving to Hartford. Castro’s pocketbook was found near where the defendant was apprehended in Hartford. A Hartford police officer also identified the defendant. Overall, the state had a strong case against the defendant. Accordingly, we conclude that the trial court’s limitation of Prentice’s impeachment for bias was harmless beyond a reasonable doubt and does not warrant a new trial.

Ill

JURY QUESTIONS

The defendant does not attack the main charge on felony murder but complains instead about the answers to two questions that the jury sent to the court during its deliberations.

A

In its first question, the jury asked if it was sufficient to satisfy the causation element of felony murder if the victim was killed during the commission of the robbery or if the defendant physically had to cause the victim’s death. The trial court responded that “to convict this defendant of felony murder, you must find that he caused [the victim’s] death and in this case you must find proven beyond a reasonable doubt that the victim died as a result of being shot by the defendant.” The effect of the response was that if the defendant caused the victim’s death in the course of and in furtherance of the attempted robbery, then the defendant was guilty of felony murder if the other elements of that crime were also satisfied. We do not consider the court’s response to this question in a vacuum, but look at it together with the main charge in which the court also clearly charged the jury that to convict the defendant it had to find that the defendant caused the victim’s death by shooting him.

Appellate review is limited to determining whether “considering the substance of the charge, rather than the form of what was said, it is reasonably possible that the jury was misled.” State v. Zayas, 195 Conn. 611, 617, 490 A.2d 68 (1995). The test to be applied to any part of the charge is whether the charge as a whole presents the case to the jury in such a manner that no injustice is perpetrated. State v. Derrico, 181 Conn. 151, 170, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). After reviewing the main charge and the trial court’s response to the jury question, we conclude that the jury could not have been misled about the causation element.

B

The second jury question inquired whether self-defense applied even if the jury was convinced that the defendant was in the process of robbing the store and that the defendant had killed the victim. The court responded that the jury could not consider self-defense.

Self-defense, technically known as justification, is a recognized defense defined in our penal code, General Statutes §§ 53a-16 through 53a-23, and in our case law. State v. Pearsall, 44 Conn. App. 62, 66, 687 A.2d 1301 (1997); State v. Panella, 43 Conn. App. 76, 80, 682 A.2d 532, cert. denied, 239 Conn. 937, 684 A.2d 710 (1996); State v. Hester, 28 Conn. App. 469, 472, 612 A.2d 120 (1992). A defendant is entitled to a theory of defense instruction as a matter of law when evidence of a legally recognized defense is placed before the jury. State v. Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979).

The defendant concedes that he has not established a statutory justification defense. He argues, nevertheless, that the trial court should have instructed the jury on some sort of layman’s concept of self-defense. We are not persuaded. A claim that does not fall within one of the statutorily recognized defenses does not entitle a defendant to a theory of defense charge. Id., 707. Furthermore, a “ ‘trial court should submit no issue to the jury which is foreign to the facts in evidence or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence.’ ” State v. Campbell, 225 Conn. 650, 659, 626 A.2d 287 (1993), quoting State v. Cafone, 164 Conn. 162, 168, 319 A.2d 381 (1972).

Because there was no evidence of self-defense, the trial court properly replied to the jury that it could not consider it.

IV

UNDERLYING FELONY CLAIM

The defendant’s next claim involves count six of the amended information, which accused the defendant of criminal possession of a pistol or revolver. General Statutes § 53a-217 (a) provides that a person who has been previously convicted of certain crimes, among them certain class B felonies, and is found in possession of a firearm, shall be guilty of a class D felony. The defendant had previously been convicted of attempted robbery in the first degree, a class B felony.

The defendant contends that the trial court should have conducted a balancing test to determine whether the prejudice outweighed the probative value of informing the jury that the defendant had previously been convicted of one of the same crimes with which he is charged in the present case. Because the defendant was presently defending several charges involving robbery, he claims that evidence of a prior attempted robbery conviction prejudiced his defense and deprived him of a fair trial.

The defendant relies on cases that hold that “a high degree of prejudice is created” by informing the jurors of a prior conviction of the accused “[w]here the prior crime is quite similar to the offense being tried . . . .” State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982); State v. Keiser, 196 Conn. 122, 129-30, 491 A.2d 382 (1985); see also General Statutes § 52-145 (b). These cases involve the proposed admittance of prior convictions for the purpose of impeachment. Impeachment of the defendant’s credibility is not at issue here.

The defendant also relies on State v. Jones, 234 Conn. 324, 662 A.2d 1199 (1995), in which our Supreme Court held that where a defendant was charged with capital felony, the trial court should have bifurcated the trial. The Supreme Court concluded that evidence of the defendant’s prior murder conviction should not have been admitted until after the jury determined whether he had committed the murder for which he was then on trial. The Jones court pointed out that, without mention of the prior conviction, the information alleges a cognizable offense, namely murder in violation of § 53a-54 (a), for the jury’s consideration.

The Supreme Court enunciated that “[w]e agree that the structure of the capital felony statute, like that of the statute at issue in [State v. Banta, 15 Conn. App. 161, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988)], makes the former conviction an essential element of the crime charged. Compare General Statutes §§ 53a-54b (3) and 53a-40. The purpose of [the capital felony statute], however, unlike the [criminal possession of a firearm] statute at issue in Banta, is not to define a new type of crime, but rather to enhance the sentence for an activity that is already classified as a crime. By designating the defendant’s prior felony conviction as an ‘element’ of the crime of capital felony, the legislature has made the defendant eligible for the sentence not just of life in prison, but of death. Thus, the statute is much more analogous to the persistent offender statutes we discussed in State v. Ferrone, [96 Conn. 160, 172-76, 113 A. 452, (1921)], than to the crime of possession of a handgun by a felon discussed in Banta,.” State v. Jones, supra, 234 Conn. 339-40.

Section 53a-217 (a) is not a penalty enhancement statute. The defendant in Banta, as was the defendant in the present case, was charged with criminal possession of a pistol in violation of § 53a-217 (a). The Banta court reasoned that alleging possession of a firearm without reciting the prior criminal conviction would not set forth a cognizable criminal offense. State v. Jones, supra, 234 Conn. 339-40.

In addition, we note that during the trial it was stipulated that the defendant had previously been convicted of attempted first degree robbery and that the trial court twice in its jury instructions advised the jury that the prior conviction of robbery in the first degree was to be used only as proof of that element and was not to be considered by them for any other purpose.

We conclude that the defendant was not deprived of any rights by the manner in which he was charged in count six of the amended information.

V

DISMISSAL OF TRIAL COUNSEL

The defendant next claims that the trial court improperly denied his oral pro se motion to dismiss his court-appointed counsel and to appoint new counsel. The motion was predicated on his dissatisfaction with his counsel’s representation in two respects: (1) that counsel consented to the absence of the court reporter for one day during jury selection and (2) that counsel failed to object when the trial court left the bench on two or three occasions during voir dire in order to receive telephone calls. It was the judge’s recollection that both counsel had agreed to his brief absence and also that both counsel had agreed that nothing had happened in his absence that required his presence. In addition, defense counsel consented to the absence of the court reporter for one day of jury selection. The record does not disclose whether the prospective jurors who were examined during the judge’s absence or the court reporter’s absence were selected to serve as members of the jury.

“While a criminal defendant’s right to be represented by counsel implies a degree of freedom to be represented by counsel of defendant’s choice . . . this guarantee does not grant a defendant an unlimited opportunity to obtain alternate counsel on the eve of trial.. . .” (Citations omitted; internal quotation marks omitted.)State v. Gonzalez, 205 Conn. 673, 683, 535 A.2d 345 (1987). “A court need not permit the replacement of counsel upon a defendant’s mere whimsical demand . . . .” (Internal quotation marks omitted.) Sekou v. Warden, 216 Conn. 678, 686-87, 583 A.2d 1277 (1990). “The trial court has discretion to decide whether the circumstances that occur during a particular trial warrant the appointment of a new counsel. ... If supported by a substantial reason the request for substitution of counsel should be granted.” (Citations omitted.) State v. Lee, 32 Conn. App. 84, 100, 628 A.2d 1318, cert, denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994). In view of the absence of any evidence that the defendant’s rights were in any way impaired by the defense counsel’s agreement to the absence of the judge or court reporter, we are not persuaded that the trial court abused its discretion in denying the appointment of new counsel.

VI

MOTION FOR NEW TRIAL

The defendant argues, in his final claim, that the trial court improperly denied his motion for a new trial based on the judge’s absence from the bench during portions of the voir dire. The facts relative to this claim are contained in part V of this opinion.

In State v. Patterson, 230 Conn. 385, 400, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996), our Supreme Court, acting under its supervisory powers, declared that thereafter the trial judge must be continuously present to oversee voir dire in a criminal case and this requirement could not be waived. Because Patterson was prospective and decided after the trial of the present case, the rule laid down therein does not control the present case. State v. Cox, 36 Conn. App. 463, 465-66, 652 A.2d 520 (1994).

Patterson, however, is not wholly irrelevant to the issue before us, because its analysis showed that prior to its effective date, a defendant could validly waive his right to the continual presence of the judge during voir dire. In Patterson, the Supreme Court found such a waiver where the defendant had been represented by counsel and had had prior personal experience with the criminal justice system. In the present case, the trial court found that the defendant’s counsel had consented to the judge’s absence. That fact supports a finding of a valid waiver of the judge’s presence. State v. Lopez, 37 Conn. App. 509, 512-13, 657 A.2d 647, cert. denied, 234 Conn. 902, 660 A.2d 858 (1995).

The trial court did not abuse its discretion in denying the motion for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       Because the defendant was continuously in custody subsequent to his arrest on August 1, 1991, these arrests were presumably on warrants based on previous allegations of previous criminal conduct.

       The court charged the jury on felony murder as follows: “In furtherance of an attempted robbery means the killing must in some way be causally connected to or as a result of the attempted robbery, or of flight from the robbery. It must be done to aid the attempted robbery in some way to further the purpose of the attempted robbery. If one commits an attempted robbery, the natural and probable consequences [of] which involve the contingency of taking a human life, that person is responsible for a homicide committed while acting in pursuance of or in furtherance of the attempted robbery or of flight therefrom, if he also caused the death during the course of the attempted robbery or of flight therefrom. The words ‘in the course of the attempted robbery’ limit the killing to one which occurs within the time frame and the actions which make up the attempted robbery or flight therefrom. In other words, in the course of the attempted robbery means during any part of defendant’s participation in the attempted robbery; thus, the shooting which allegedly caused [the victim’s] death must have occurred somewhere within the time span of the occurrence of the facts which constitute the attempted robbery.”

       Count six of the amended information states: “[The] state’s attorney further accuses the said David Joyce with the crime of criminal possession of a pistol or revolver and charges that at the City of Bridgeport, Fairfield County, on the 1st day of August, 1991, between 7:13 p.m. and 7:30 p.m., outside 427 Wood Avenue, Bridgeport, the said David Joyce did possess a pistol, and the said David Joyce had previously been convicted of the crime of Attempted Robbery in the First Degree, in violation of Section 53a-217 (a) of the Connecticut General Statutes.”

       General Statutes § 53a-217 (a) provides: “A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of a capital felony, a class A felony, except a conviction under section 53a-196a, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196b, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

       General Statutes § 52-145 (t>) provides: “A person’s interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. FRANK W. BANKS
    (AC 15666)
    O’Connell, Heiman and Schaller, Js.
    Argued January 28
    officially released June 10, 1997

      Bruce A. Sturman, public defender, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction, following a jury trial, of four counts of harassment in the first degree in violation of General Statutes § 53a-182b (a). He claims that the trial court improperly denied his motion to bifurcate the trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. While the defendant was incarcerated, he wrote letters to the Superior Court judge who had sentenced him. In his brief, the defendant concedes that “it is fair to characterize [those letters] as vile and derogatory, threatening harm to the judge and his family, with antiSemitic and Nazi overtones.” The trial court properly cautioned the jury that evidence ofthe defendant’s prior convictions was not introduced to show a propensity to commit crimes, but only to establish an element of the crime of harassment in the first degree.

The defendant had previously been convicted of murder, a class A felony, and two counts of attempted murder, class B felonies, and sentenced to imprisonment for a term of not less than twenty-five years to life. Defense counsel attempted to prevent the jury from learning that his client was serving a sentence for murder and attempted murder by seeking bifurcation to prevent the state from establishing the defendant’s prior convictions until the other elements of the crime of harassment were proven. The defendant asserted in the motion that the jury would be unduly prejudiced against him if evidence of the convictions was introduced before the jury first determined whether the defendant was guilty of harassment. The defendant emphasized that the striking similarity between the words “kill” and “physically injure” in § 53a-182b and the offenses of murder and assault in the first degree was particularly prejudicial. The trial court denied the motion to bifurcate, and the defendant argues that the denial deprived him of a fair trial.

Our Supreme Court and this court have both discussed the problem inherent in a prosecution for a crime that makes proof of a prior conviction an element of the crime being prosecuted. State v. Jones, 234 Conn. 324, 662 A.2d 1199 (1995); State v. Joyce, 45 Conn. App. 390, 696 A.2d 993 (1997); State v. Banta, 15 Conn. App. 161, 554 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988).

The state introduced evidence that the defendant was serving twenty-five years to life for felony convictions. The state did not, however, introduce evidence of the specific nature of the felony convictions. The previous sentencing judge testified only in terms of sentencing the defendant for a class A and two class B felonies. The words “murder” and “attempted murder” were never used by any state’s witnesses.

While testifying on his own behalf at trial, and when no question was pending, the defendant volunteered that he was convicted of murder and rebuked the state’s attorney for not bringing that fact to the jury’s attention. Even if we assume, arguendo, that the trial court’s ruling on the bifurcation motion was improper, the defendant’s voluntary announcement of his murder conviction rendered any error harmless.

It is fundamental that it is not reversible error where evidence that comes into a case through an erroneous ruling is later introduced through another source. In State v. Pannone, 9 Conn. App. 111, 120, 516 A.2d 1359 (1986), cert. denied, 202 Conn. 804, 519 A.2d 1208 (1987) , the trial court denied the defendant’s request that the correction officers accompanying him in the courtroom wear plain clothes to prevent the jury from learning that he was incarcerated. In Pannone, the defendant argued that the trial court’s denial of his motion deprived him of a fair trial because the jury would infer from the uniformed guards that the defendant was presently incarcerated. In Pannone, “the defendant himself took the stand and admitted that he had been convicted during the year before the trial of a crime carrying a penalty of more than one year of imprisonment. This admission had the effect of nullifying any prejudicial influence the court’s action might have engendered. . . . Thus, even if we found error in the corut’s refusal of the defendant’s request, the error would be rendered harmless by his admission at trial that he had been convicted of a crime requiring imprisonment.” (Citations omitted.) Id.

Instate v. Yates, 174 Conn. 16, 19, 381 A.2d 536 (1977), the trial corut required defense witnesses to testify while dressed in prison attire. The defendant objected on the grounds that the witnesses’ credibility would be diminished in front of the jury. The trial court agreed that “[i]n the minds of the jurors the credibility of such witnesses can be affected in the same manner as the presumption of innocence can be diminished by the defendant’s appearance in prison garb.” Id. The Supreme Court held, however, that “whatever prejudice may have been caused by the witnesses’ attire was nullified by the fact that the witnesses themselves testified to their prior felony convictions .... The error viewed in the context of that testimony, therefore, cannot be said to be prejudicial or to have deprived the defendant of a fair trial.” Id.

Here, the defendant’s admission that he was presently incarcerated for murder had the effect of nullifying any prejudicial influence that the court’s denial of the motion to bifurcate might have engendered. Accordingly, it would be a futile exercise for this court to perform an analysis of the defendant’s claim that the denial of his motion to bifurcate was improper. We, therefore, decline to review it.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-182b (a) provides in relevant part: “A person is guilty of harassment in the first degree when, with the intent to harass, annoy, alarm or terrorize another person, he threatens to kill or physically injure that person or any other person, and communicates such threat by telephone, or by telegraph, mail computer network, as defined in section 53a-250, or any other form of written communication, in a manner likely to cause annoyance or alarm and has been convicted of . . . a class A felony [or] a class B felony . . . .” (Emphasis added.)

       The trial court instructed the jury as follows: “[T]he state has offered evidence that the defendant, Mr. Banks here, has previously been convicted of crimes. As a general rule, evidence of other crimes is not admissible to prove a defendant, guilty of the crimes with which he is now charged. If you find that the defendant has previously been convicted of crimes you must not, consider that as evidence of bad character or a tendency to commit criminal acts. Evidence of the defendant’s prior conviction has been offered only for the puipose of establishing an element of the crimes with which he is presently charged, for the purpose of identification of the defendant with the crimes presently charged and for the purpose of showing a motive on the part, of the defendant to commit the crimes presently charged. If you find from the evidence that the defendant has previously been convicted of crimes, I emphasize that you may consider such evidence of convictions only lor those specific purposes that I just mentioned and not as evidence of bad character or propensity to commit criminal conduct.”

       The defendant concedes that the class B felony was attempted murder despite indication in part of the record that the convictions may have been for assault in the first degree. Because both crimes are class B felonies, the difference is of no significance in this appeal.

       “[State’s Attorney]: And presumably you thought that it would upset him because if the letters didn’t upset him he wouldn’t do anything about them, isn’t that right?
      “[The Defendant,]: Yeah, because judges are hot shit. You’re not supposed to threaten them.
      “[State’s Attorney]: And now—
      “[The Defendant]: And the twenty-five to life is murder, by the way, how come you don’t come into that?

      “[State’s Attorney]: The twenty-five to life is for murder?
      “ [The Defendant]: You keep on saying that twenty-five to life and I thought that the jury has to hear tha,t it is for murder.

      “[State’s Attorney]: Well, now that you have told them they know.
      “[The Defendant]: Yeah.” (Emphasis added.)

       This was prior to the adoption of Practice Book § 967 which prohibits requiring witnesses to appear in court in distinctive prison clothing.


author: LAVERY, J. HEIMAN, J.,

text:
    SUZANNE PASSINI ET AL. v. TOWN OF WINCHESTER
    (AC 15953)
    Lavery, Heiman and Hennessy, Js.
    Submitted on briefs March 24
    officially released June 10, 1997

      Terence D. Mariani filed a brief for the appellants (plaintiffs).

      Jeffrey D. Lynch and Andrew B. Goodwin filed a brief for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiffs, Suzanne Passini and her mother, Patricia Passini, appeal from the summary judgment rendered by the trial court in favor of the defendant town of Winchester. The plaintiffs claim that the trial court improperly determined that they failed to give the required written notice of Suzanne Passini’s injuries to the defendant pursuant to General Statutes § 13a-149. On appeal, the plaintiffs claim that the trial court improperly granted the defendant’s motion for summary judgment because the court was presented with evidence of written notice, thereby demonstrating a genuine disputed issue of material fact. We agree and reverse the judgment of the trial court.

The following facts and procedural history are necessary for the disposition of this appeal. On June 21, 1993, the plaintiff Suzanne Passini was injured when she tripped and fell on an allegedly defective sidewalk adjoining Willow Street in Winchester. The plaintiffs claim in their amended complaint and affidavits that written notice was given to the Winchester town clerk.

Paragraphs seventeen through twenty-four of the plaintiffs’ amended complaint state: “17. At the instruction of the Town Clerk information on the fall and bills for medical attention to the Plaintiff, Suzanne Passini, were delivered to Dianne Drabik, an employee of the Defendant. In a phone conversation in late June of 1993 with Plaintiff Patricia Passini Dianne Drabik said she had a note containing the information on the claim.

“18. A bill for medical services rendered to Suzanne Passini by Dr. Dan Chilton on June 22, 1993 was delivered per the Town Clerk’s instructions to Dianne Drabik on or before July 1, 1993.

“19. A handwritten note on yellow-lined paper setting out all the details recited in subparagraph a) to e) [of paragraph sixteen detailing the plaintiffs fall] was also delivered along with Dr. Chilton’s bill to Dianne Drabik.

“20. Dr. Chilton’s bill was not paid promptly and at the end of July or August an additional copy of his bill and another note repeating the information in subparagraph 16 a) thru 16 e) was brought to the Town Clerk’s office by Patricia Passini who was given directions to Dianne Drabik’s office and told to give the papers to her.

“21. When the second written notice was delivered to Dianne Drabik in late July or August she again she said she was aware of the claim on behalf of Suzanne Passini and referred to a hard-covered register in her office in which the details of the incident were written.

“22. Other bills submitted to the Defendant were processed by Defendant and paid by or on behalf of the Defendant.

“23. A ‘Loss Notice’ dated July 15, 1993 was issued by the Defendant through its employee Dianne Drabik to Defendant’s insurance carrier.

“24. The ‘Loss Notice’ accurately recited the details of Suzanne Passini’s fall. The notice is attached hereto as Exhibit 1.”

The plaintiff Patricia Passini stated in an affidavit: “[N]ear the end of June I received Dr. Chilton’s bill for the June 22, 1993 services to Suzanne for her knee injury. As I had been instructed to do I sent the bill to Dianne Drabik [an employee in the town clerk’s office]. With the bill I put in a handwritten note on yellow-lined paper. In the note I repeated the details of Suzanne’s June 21, 1993 Willow Street fall putting in writing the information I had given to the Town Clerk’s office in my June 22, 1993 phone call.”

On June 1,1995, the plaintiffs, under the Freedom of Information Act; General Statutes § 1-19 (a); requested from the defendant any documents relating to the plaintiffs fall and injury. The plaintiffs received from the defendant a “loss notice” and a record of medical payments by the defendant on behalf of the plaintiff. The loss notice was sent from the defendant to its insurance carrier and contained information concerning the fall.

On December 28, 1995, the trial court denied the defendant’s motion to dismiss the plaintiffs’ action for lack of the statutoiy notice, required by § 13a-149. On March 22, 1996, the trial court granted the defendant’s motion for summary judgment on the ground that the plaintiffs failed to comply with the § 13a-149 notice requirement. The trial court’s granting of the defendant’s motion for summary judgment is the sole basis for this appeal.

“Summary judgment is a method of resolving litigation when the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .

“Section 13a-149 provides that before an action for personal injury caused by a defective road may be brought against a municipality bound to keep it in repair, the claimant must first give the municipality written notice of such injury and a general description of the same, and of the cause thereof and the time and place of its occurrence. Whether notice is sufficient is normally a question of fact for the jury. . . . The sufficiency of the notice is to be tested by the purpose of the statute, and not by the requirements of a pleading. . . . The obvious purpose of [the statutory notice provision] is that the officers of municipal corporations, against which suits for injuries are about to be instituted, shall have such precise information as to time and place as will enable them to enquire into the facts of the case intelligently. . . . Notice is sufficient if it enables one of ordinary intelligence, using ordinary diligence under the circumstances, to ascertain where the injury occurred. ...” (Citations omitted; internal quotation marks omitted.) McCann v. New Haven, 33 Conn. App. 56, 58-59, 633 A.2d 313 (1993).

The plaintiffs assert that whether the plaintiffs gave the defendant written notice, as required by § 13a-149, is a genuine issue of material fact, and thus the trial court improperly granted summary judgment. We agree.

In its memorandum of decision, the trial court stated that the plaintiffs’ complaint did not allege the giving of a written notice. The plaintiffs clearly pleaded, however, that written notice was given to the town clerk, as reflected in paragraphs seventeen through twenty-four of the amended complaint. In addition, the plaintiffs filed affidavits and documentary evidence substantiating their claim that written notice was given to the town clerk.

The plaintiffs also attached a copy of a “loss notice” that the plaintiffs received from the defendant as a result of a freedom of information request. This “loss notice” was issued by the town to its insurer and indicated the plaintiffs injury, the cause of the injury, and the time and place of the injury, thereby furnishing all relevant information that § 13a-149 requires. The “loss report” was reported by Dianne Drabik from the defendant’s town clerk’s office and was dated July 15, 1993, which was within the ninety day time limit for the issuance of notice, as prescribed by § 13a-149.

The judgment is reversed and the case is remanded with direction to deny the motion for summary judgment and for further proceedings.

In this opinion HENNESSY, J., concurred.

HEIMAN, J.,

dissenting. The majority concludes that the operative complaint to be considered in this appeal is the amended complaint dated October 23, 1995, and further concludes that the trial court improperly rendered summary judgment in favor of the defendant. Accordingly, it reverses the judgment of the trial court and remands the case for further proceedings. I believe that the result reached by the majority is incorrect, and, thus, I dissent.

The majority, in reaching its decision, relies on its determination that the operative complaint to be considered on appeal is the amended complaint dated October 23, 1995. The majority reaches this remarkable conclusion despite the fact that the trial court determined that the operative complaint was the original complaint filed by the plaintiffs, which failed to allege that written notice was afforded to the defendant pursuant to the provisions of General Statutes § 13a-149. Further, the plaintiffs in this appeal do not argue that the trial court relied on the wrong complaint in reaching its decision, nor do they claim error in the trial court’s reliance thereon. They merely assert that the operative complaint was the amended complaint.

Certain historical facts must be recited to make the issue clear. In the original complaint dated June 16, 1995, the plaintiffs, with respect to their claimed compliance with the provisions of § 13a-149, alleged merely that notice was given to the defendant. The defendant pleaded by way of special defense that the plaintiffs had failed to provide notice to the town of Winchester.

On October 27, 1995, the plaintiffs filed an amended complaint in which they attempted to flesh out their claim of having provided the proper statutory notice to the defendant. The defendant filed an objection to the request for leave to amend the complaint that appears to have been filed on November 15, 1995. The plaintiffs filed an objection to the defendant’s objection on November 21, 1995. In their objection, the plaintiffs asserted that “[s]aid objection was not filed within the time required by our rules. Further, said objection, even if timely filed, lacks merit.” Neither the objection to the request for leave to amend nor the plaintiffs’ objection to the objection was ever heard and determined by the trial court.

On March 5, 1996, the defendant filed its answer and special defenses addressed specifically to the plaintiffs’ original complaint dated June 16,1995, and not answering the purported amended complaint. Moreover, the trial court’s memorandum of decision also specifically relied on the original complaint. Thus, I believe that the operative complaint to be considered on appeal is the original complaint dated June 16, 1995, not the amended complaint on which the majority relies.

The majority concludes that whether the plaintiffs gave the defendant written notice, as required by § 13a-149, is a genuine issue of material fact, and thus the trial court improperly granted summary judgment. I disagree.

“ ‘[I] initially note the standard of review of a trial court decision granting a motion for summary judgment. Practice Book § 384 mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.’ ” Budris v. Allstate Ins. Co., 44 Conn. App. 53, 56-57, 686 A.2d 533 (1996).

Upon close examination of the original complaint, answer, affidavits, and exhibits on which the trial court relied, I believe that the plaintiffs failed to present any evidence that they provided notice to the defendant as required by § 13a-149. Thus, as there were no genuine issues of material fact before the trial court, it properly granted summary judgment in favor of the defendant.

General Statutes § 13a-149 provides that “[a]ny person injured ... by means of a defective road or bridge may recover damages from the party bound to keep it in repair.” The statute provides further, however, that “[n]o action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town . . . .” (Emphasis added.)

In a September 15, 1995 affidavit, the defendant’s town clerk alleged that the defendant had never received any notice from the plaintiffs. In Patricia Passini’s October 20, 1995 affidavit, she alleged that she gave written notice to a certain Dianne Drabik. While Patricia Passim explains that the defendant’s office of the town clerk directed her to “a town employee” by the name of Dianne Drabik, nowhere does she allege that Drabik is a selectman or a town clerk, or even a selectman’s or town clerk’s agent. The plaintiffs also submitted to the trial court a “Loss Notice” issued by the defendant to its insurer. The loss notice was submitted by Drabik, and lists her as the contact person for the defendant. The loss notice, however, places Drabik in the defendant’s accounting department, not in its town clerk’s office. Further, the loss notice identifies Drabik as a town employee, but not as a town selectman or a town clerk.

Thus, according to the pleadings, affidavits and exhibits relied on by the trial court, the plaintiffs failed to present the trial court with any evidence that they complied with the § 13a-149 notice requirement by giving written notice to a selectman or town clerk of the defendant. Therefore, I believe that the trial court correctly found that there were no genuine issues of material fact, and properly granted the defendant’s motion for summary judgment. I would affirm the judgment of the trial court.

       General Statutes § 13a-149 provides: “Damages for injuries by means of defective roads and bridges. Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be hable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       Practice Book § 176 (c) provides in pertinent part: “[A] party may amend his pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner . . . (c) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sec. 120, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. . . .”
      The plaintiffs requested permission to amend their complaint, pursuant to Practice Book § 176, on October 27, 1995. The date of objection was November 15, 1995. Since fifteen days had passed, by rule the amended complaint was and is the operative complaint.

       The majority’s reliance on Practice Book § 176 is misplaced because we may not review an issue that was not raised by the parties either at trial or on appeal. See Practice Book § 4061; see also Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98, 644 A.2d 325 (1994); Pietrorazio v. Santopietro, 185 Conn. 510, 512-15, 441 A.2d 163 (1981). We may review a claim not raised at trial or on appeal only when the claim warrants plain error review. As the parties failed, however, to raise this claim at all in their appellate briefs, they failed to request plain error review. Moreover, the issue of whether the trial court improperly relied on the original complaint “does not warrant plain error review because such a claim of error does not implicate interests of public welfare or of fundamental justice between the parties.” Lynch v. Granby Holdings, Inc., supra, 99.

       Practice Book § 384 provides: “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other, proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Emphasis added.) Thus, the issue of what complaint is to be considered by the trial court is a matter of importance in the resolution of whether the trial court properly granted summary judgment.

       Paragraph sixteen of the original complaint reads: “16. Notice as required by statute was given to the Defendant. In giving notice to the Defendant the Plaintiffs had no intention to mislead Defendant and the Defendant was not in fact misled.”

         The defendant’s second special defense states: “BY WAY OF SECOND SPECIAL DEFENSE:
      The plaintiff failed to provide notice to the Town of Winchester required by Connecticut General Statutes § 13a-149.”

       The allegations of the amended complaint that deal with the issue of notice are as follows:
      “16. Notice as required by Connecticut General Statutes § 13a-149 was given to the Town Clerk of the Defendant. The Town Clerk was notified that: a) Suzanne Passim fell as described in the Complaint at about 6:30 p.m. June 21, 1993. b) Her fall occurred on Willow Street in Winchester on the sidewalk on the northerly side of Willow Street between the Little League Baseball Field and the building at 140 Willow Street which is across Willow Street from the ballfield. c) The fall was caused by a defect in the sidewalk described in subparagraph b) above. The defect was identified as a hole in the sidewalk at that location which was big enough to, and did in fact, receive the Plaintiff Suzanne Passini’s left foot as she was jogging on the Willow Street sidewalk, d) As a result of her foot going into the hole Suzanne Passini fell and twisted her left leg and seriously ipjured her left knee, e) Payment was being sought for the losses resulting from the fall.
      “17. At the instruction of the Town Clerk information on the fall and bills for medical attention to the Plaintiff, Suzanne Passini, were delivered to Dianne Drabik, an employee of the Defendant. In a phone conversation in late June of 1993 with Plaintiff Patricia Passim Dianne Drabik said she had a note containing the information on the claim.
      “18. A bill for medical services rendered to Suzanne Passini by Dr. Dan Chilton on June 22, 1993 was delivered per the Town Clerk’s instructions to Dianne Drabik on or before July 1, 1993.
      “19. A handwritten note on yellow-lined paper setting out all the details recited in subparagraph a) to e) above was also delivered along with Dr. Chilton’s bill to Dianne Drabik.
      “20. Dr. Chilton’s bill was not paid promptly and at the end of July or August an additional copy of his bill and another note repeating the information in subparagraph 16 a) thru 16 e) was brought to the Town Clerk’s Office by Patricia Passini who was given directions to Dianne Drabik’s office and told to give the papers to her.
      “21. When the second written notice was delivered to Dianne Drabik in late July or August she again said she was aware of the claim on behalf of Suzanne Passini and referred to a hard-covered register in her office in which the details of the incident were written.
      “22. Other bills submitted to the Defendant were processed by the Defendant and paid by or on behalf of the Defendant.
      “23. A ‘Loss Notice’ dated July 15, 1993 was issued by the Defendant through its employee Dianne Drabik to Defendant’s insurance carrier.
      “24. The ‘Loss Notice’ accurately recited the details of Suzanne Passini’s fall. The notice is attached hereto as Exhibit 1.
      “25. The defect described in Paragraph 16 c) was repaired by the Defendant on June 22, 1993.
      “26. In giving notice to the Defendant the Plaintiffs had no intention to mislead Defendant and the Defendants were not in fact misled.”


author: HENNESSY, J.

text:
    IRENE IRELAND v. JAMES F. IRELAND
    (AC 15729)
    Schaller, Spear and Hennessy, Js.

      Argued February 25
    officially released June 10, 1997

      Geraldine Battistoli, for the appellant (plaintiff).

      Kathleen A. Hogan, with whom, on the brief, was Sarah S. Oldham, for the appellee (defendant).
   Opinion

HENNESSY, J.

In this dissolution action, the plaintiff, Irene Ireland, appeals from the judgment of the trial court denying her motion for permission to relocate her minor son to California and granting the motion of the defendant, James Ireland, to enjoin and restrain the relocation. The plaintiff claims that the trial court improperly (1) required her to bear the burden of proof on the defendant’s motion, (2) established criteria on determining the best interests of the child in relocation cases and prohibited her from offering evidence or questioning witnesses addressed to the criteria, (3) refused to allow her to examine the child’s attorney on a report that he submitted to the court and (4) failed to consider her evidence. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The parties’ marriage was dissolved on January 30, 1990. Pursuant to the agreement of the parties that was incorporated into the dissolution decree, the court awarded joint custody of their minor son to the parties, with primary physical custody to the plaintiff. From September, 1989, until August, 1995, the order allowed the defendant to visit his son every other weekend. At the time of the dissolution, the plaintiff resided in Connecticut, and the defendant resided in Massachusetts. In 1993, the defendant remarried and settled with his wife in Fairfield county.

The plaintiff commenced a relationship with Steven Zakar in 1992 and married him in November, 1995. Zakar is a computer consultant whose major consulting contract concluded in April, 1995. He undertook a search for additional work and secured a position in Sacramento, California. In July, 1995, the plaintiff informed the defendant of her plan to join Zakar in California with their son. In reaction to this news, the defendant obtained a temporary injunction that enjoined the plaintiff from leaving the state with the minor child and transferring temporary physical custody of the child to the defendant pending a further hearing.

At the three day trial commencing January 30, 1996, the trial court heard evidence and argument on the defendant’s motion to enjoin and restrain and the plaintiffs motion for permission to relocate with their son. After analyzing the evidence under the best interests of the child standard, the trial court denied the plaintiffs motion and granted the defendant’s motion. The plaintiff appeals from that judgment.

I

The plaintiff first claims that she was improperly required to bear the burden of proof of establishing that the move was in the child’s best interest. The plaintiff asserts that the trial court removed the defendant’s burden of proof, required for his motion to enjoin, and placed the burden solely on her. Because she had been awarded primary physical custody in the divorce decree, the plaintiff maintains that the defendant must bear the burden of proving the benefits of a change from the original order.

It is well established that the burden of proving that a modification of custody is in the best interests of the child rests with the party seeking a modification. See Cookson v. Cookson, 201 Conn. 229, 233-41, 514 A.2d 323 (1986). In the present case, neither party moved for a modification of the custody orders. The plaintiff requested permission to relocate the minor child to California and the defendant moved for an injunction to prevent the relocation. Because neither party requested a modification, the trial court exercised its discretion to manage the hearing and required the plaintiff to bear the burden of proof that the move was in the child’s best interest. We conclude that the trial court’s action was not an abuse of discretion.

II

The plaintiff next claims that the trial court improperly established criteria in determining the best interests of the child in relocation cases and prevented her from submitting evidence or questioning witnesses addressing the history of the child’s relationship with the defendant, one of the court’s criteria. We disagree.

“We are limited in our review to determining whether the trial court abused its broad discretion to [decide relocation cases] based upon the best interests of the child as reasonably supported by the evidence. See Practice Book § 4061; Dubicki v. Dubicki, 186 Conn. 709, 717, 443 A.2d 1268 (1982); Hall v. Hall, 186 Conn. 118, 123-24, 439 A.2d 447 (1982); Seymour v. Seymour, [180 Conn. 705, 709, 433 A.2d 1005 (1980)].” Weinstein v. Weinstein, 18 Conn. App. 622, 625, 561 A.2d 443 (1989). “[G]reat weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” Askinazi v. Askinazi, 34 Conn. App. 328, 340, 641 A.2d 413 (1994).

In its memorandum of decision, the trial court set forth the factors it considered in determining the best interests of the child: “[W]hat was contemplated by the parties and the court at the time the original orders were entered, the impact the relocation will have on the minor child, the history of the nonrelocating parent and the child’s relationship, the history of the relocating parent and the child’s relationship, the input from the attorney for the minor child, the family relations report and the reasons offered by the relocating parent for the move.”

The criteria for determining the best interests of a child in relocation cases have not been established in this state. Several other jurisdictions, however, have adopted the criteria set forth in D’Onofrio v. D’Onofrio, 144 N.J. Super. 200, 365 A.2d 27, aff'd, 144 N.J. Super. 352, 365 A.2d 716 (App. Div. 1976). In D’Onofrio, the court articulated the following criteria in deciding whether the custodial parent should be permitted to remove the child to another jurisdiction: (1) advantages of the move in terms of its likely capacity to improve the general quality of life for the custodial parent and child; (2) motivation or good faith of the custodial parent in desiring relocation, specifically, if interference in noncustodial parent’s visitation or relationship is a factor in the move; (3) likelihood of custodial parent to comply with visitation orders necessitated by relocation; (4) good faith or motivation of noncustodial parent in resisting relocation; and (5) whether, if relocation is allowed, there is a realistic opportunity for a visitation schedule that will provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent. Id., 206.

In this case, the trial court was presented with a wealth of information that, although contradictory in some respects, addressed the relevant factors concerning the determination of the best interests of the child when the custodial parent is contemplating a relocation. As in other areas of domestic relations, the trial court is not obligated to make express findings on all of the criteria it has considered in determining the best interests of the child. See Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). To conclude that the trial court abused its discretion in such matters, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. Id., 234-35. The standard used in deciding whether to allow the custodial parent to relocate the minor child is that of the best interests of the child. The trial court correctly applied this standard by employing criteria relevant to that issue. As noted, the criteria that are appropriate for that determination have not previously been clearly set forth in our statutes or case law. We conclude that the criteria set forth in D ’Onofrio encompass the factors relevant to the relocation issue. Accordingly, we exercise our supervisory authority to provide guidance in this area of the law and endorse the D’Onofrio criteria for use in future postjudgment relocation cases. See State v. Piorkowski, 37 Conn. App. 252, 265, 656 A.2d 1046 (1995); O’Bymachow v. O’Bymachow, 10 Conn. App. 76, 78, 521 A.2d 599 (1987). In this case, we conclude that the trial court essentially considered those criteria.

We now turn to the plaintiffs claim that the trial court abused its discretion in excluding certain evidence and limiting questioning regarding the nature of the defendant’s relationship with his son. The following relevant facts are necessary for the resolution of this issue. At trial, the plaintiff attempted to admit a letter from Christine Hartley, the defendant’s former girlfriend, that had been submitted to the family relations officer. The trial court excluded the letter as inadmissible hearsay. The plaintiff then attempted to question the family relations officer regarding Hartley’s letter because it was part of his file. When the trial court disallowed the questioning, the plaintiff offered to call Hartley as a witness. The plaintiff claimed that Hartley would testify to the defendant’s relationship with his son within the past two years. The trial court disallowed Hartley’s testimony stating, “I am not going to retry the earlier dissolution .... I don’t think it’s probative; I don’t think it’s relevant to accept testimony as to whether or not he is a nice guy from an ex-girlfriend whoever she may be . . . .” The trial court also later refused to admit a document from the family relations officer’s file, a child custody sheet filled out by the plaintiff, and it prohibited the plaintiff from questioning the officer on this document.

It is well established that “[t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence.” State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). Here, the trial court acted within its discretion to exclude questioning and testimony about a letter from a former girlfriend, which contained outdated allegations and apparently was solicited for purposes of trial. It also properly excluded the child custody sheet and restricted examination of the officer regarding this document because it contained the plaintiffs unsubstantiated allegations against the defendant and his character. We conclude that the trial court did not abuse its discretion.

III

The plaintiff next claims that the trial court improperly refused to allow Terrance Milardo, attorney for the child, to be called as a witness. We disagree.

The following additional facts are necessary for the resolution of this issue. Prior to trial, on November 6, 1995, Milardo submitted a report to the trial court recommending that the child’s best interest would be served by preserving the status quo and remaining in Connecticut. The plaintiff attempted to call Milardo as a witness to question him about the report. The trial court ruled that the attorney could not be questioned.

We find no support for the plaintiffs position that an. attorney for the child is subject to examination if he submits a written report to the court. The trial court properly prohibited the plaintiff from calling Milardo as a witness.

IV

In the plaintiffs last claim, she argues that the trial court failed to consider her evidence concerning the best interests of the child. Specifically, she asserts that the court failed to consider that the original dissolution orders and the contemplation of the parties at that time were not based on an assumption that the minor child would remain in the court’s jurisdiction. She also argues that the court discounted her evidence of the economic, educational, recreational and cultural benefits of the move for their son.

Because it is the trial court’s function to weigh the evidence and to determine credibility, we give great deference to its findings. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990). Our review of the record discloses no basis for finding that the trial court abused its discretion in weighing the evidence to determine the best interests of the parties’ child. In evaluating the original dissolution orders and what the parties contemplated at that time, the trial court had before it information that, at that time, the plaintiff was residing in Westbrook and the defendant was residing in sufficient proximity to have visitation on alternate weekends. In interpreting the original intention of the parties, the trial court chose to give greater weight to this information than to the plaintiffs contention that, at the time of the dissolution order, she believed that she could move anywhere with her son without consulting with the defendant. Furthermore, there is no support in the record that the trial court failed to consider the benefits of the move for the child. The court simply gave greater weight to the benefits of remaining in the state than to the plaintiffs claimed benefits of moving. We conclude that the trial court’s finding on the best interests of the child was supported by the evidence and did not constitute an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the time of trial, the child was seven years old.

       The states 1hat have adopted the D’Onofrio factors are Arkansas, Florida, Massachusetts, Michigan, Nevada, North Carolina, South Dakota, Tennessee, Vermont and Wyoming.

       We note that although the trial court did not expressly articulate the D’Onofrio factors as a basis for its decision, it was presented with evidence that addressed all of these factors.

       In 1982, the Connecticut Bar Association, Family Law Section, issued guidelines on the role of counsel for children in civil placement cases. These guidelines stated that “[cjounsel should not be a witness at trial, either through testimony or by the submission of a report.” The plaintiff, however, did not object to the counsel’s submission of the report to the trial court, therefore, we do not address the propriety of the counsel’s action in filing the report.


author: LAVERY, J.

text:
    TOWN OF WALLINGFORD v. WALLINGFORD POLICE UNION LOCAL 1570, COUNCIL 15, AFSCME WALLINGFORD POLICE UNION LOCAL 1570, COUNCIL 15, AFSCME v. TOWN OF WALLINGFORD
    (AC 15594)
    Dupont, C. J., and Lavery and Hennessy, Js.
    Argued March 3
    officially released June 10, 1997

      Robert J. Murray, Jr., for the appellant (defendant in the first case, plaintiff in the second case).

      Dennis G. Ciccarillo, for the appellee (plaintiff in the first case, defendant in the second case).
   Opinion

LAVERY, J.

The defendant, the Wallingford Police Union Local 1570, Council 15, AFSCME, appeals from the judgment of the trial court vacating an arbitration award in its favor. This dispute arose out of the termination by the plaintiff town of Wallingford of Philip Nicker-son’s employment as a police officer. The defendant claims that the trial court improperly (1) found that under the collective bargaining agreement the termination of a probationary employee was not arbitrable and vacated the arbitration award pursuant to General Statutes § 52-418 (a) (4), and (2) concluded that the arbitrator was guilty of misconduct under General Statute § 52-418 (a) (3) when he considered evidence that was not part of the record and to which the parties were not given an opportunity to respond. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. On November 22, 1991, Philip Nickerson was hired by the plaintiff as a police officer and given probationary status for a period of two years, pursuant to the collective bargaining agreement that the plaintiff and the defendant had entered. During the course of the next year, Nickerson’s supervisors conducted detailed investigations into four incidents that involved Nicker-son. After conducting these investigations, Nickerson’s supervisors concluded that his performance included a premature escalation of force, arrest or detention without probable cause or justification, improper tactics, potential injury to fellow officers, potential injury to citizens and potential civil liability.

Prior to Nickerson’s termination, the chief of police discussed Nickerson’s conduct at length with Nicker-son’s supervisors and the deputy chief of police. At this meeting, Nickerson’s supervisors expressed their concerns about his inappropriate response to several incidents. On November 15, 1992, the chief of police held a conference with Nickerson and terminated him from the Wallingford police.

The defendant filed a grievance protesting the termination, and an arbitration proceeding was convened. Prior to and during arbitration, the plaintiff preserved and argued the claim that the termination of a probationary employee was not subject to arbitration. Thereafter, hearings were held and the arbitrator found that the grievance was arbitrable and defined the issue as whether the termination of the grievant was for “capricious reasons.” The arbitrator rendered an award sustaining the grievance, and concluded that Nickerson was entitled to be reinstated to “full status.” In his memorandum, the arbitrator referred to the Department of Public Safety Administration and Operations Manual, 3d Ed., of the Connecticut state police.

The defendant filed an application to confirm the arbitration award, pursuant to General Statutes § 52-417. The plaintiff, in turn, filed an application to vacate the arbitration award. An evidentiary hearing was held by the trial court to allow the plaintiff to present evidence that the arbitrator was guilty of misconduct by referring to a manual that was not an exhibit in the arbitration hearing. The trial court subsequently granted the plaintiffs motion to vacate the arbitration award both on the issue of arbitrability and on the merits. The trial court also denied the defendant’s motion to confirm the arbitration award. The plaintiff filed a motion for articulation, to which the trial court filed a supplemental memorandum of decision. In its supplemental memorandum of decision, the trial court found that the arbitrator relied on a document not in evidence, resulting in a violation of General Statutes § 52-418 (a) (3), and thereby providing an additional ground for vacating the arbitration award. This appeal followed.

I

The defendant claims that the trial court improperly found that under the collective bargaining agreement the termination of a probationary employee was not arbitrable and vacated the arbitration award pursuant to General Statute § 52-418 (a) (4). We disagree.

“Whether a particular dispute is arbitrable is typically a question for the court. . . . It is well established [however] that arbitration is a matter of contract and that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator. ... In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators. . . . The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration . . . .” (Citations omitted; internal quotation marks omitted.) International Marine Holdings, Inc. v. Stauff, 44 Conn. App. 664, 668, 691 A.2d 1117 (1997).

At issue in the present case is the arbitration clause contained in article 16, § 2, of the collective bargaining agreement, which states: “The Union shall have the right to question the propriety of any such disciplinary action or discharge, through the grievance procedure herein outlined, including arbitration, except for termination of probationary employees which is not subject to the grievance and arbitration provisions of this agreement. Probationary employees shall not be terminated for capricious reasons.” Concerning Nickerson’s employment status at the time of his termination, we look to article 5, § 3, of the collective bargaining agreement, which states: “No appointment or employment in the Police Department shall be deemed final and permanent until after expiration of one (1) year’s probationary service and successful completion of the Municipal Police Training Academy. For employees hired after July 1, 1988 the probationary period shall be two years.” Therefore, since Nickerson was hired on November 22, 1991, Nickerson was a probationary employee when he was terminated on November 15, 1992.

In Metropolitan District Commission v. AFSCME, Council 4, Local 3713, 35 Conn. App. 804, 811 n.6, 647 A.2d 755 (1994), this court recently recognized that an arbitrator cannot find a dispute arbitrable if language in the contract indicates that it is not. Furthermore, in White v. Kampner, 229 Conn. 465, 472-73, 641 A.2d 1381 (1994), our Supreme Court held: “We initially note that, because we favor arbitration, we will defer to this alternative method of dispute resolution if the contractual arbitration provisions fall within the grey area of arbitrability, employing the ‘positive assurance’ test as set out in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). Under this test, ‘ “judicial inquiry . . . must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance. . . . An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” ’ ”

In the present case, the plain language of article 16, § 2, of the collective bargaining agreement explicitly states that the termination of probationary employees “is not subject to the grievance and arbitration provisions of the Agreement.” The article 16, § 2, provision that “[probationary employees shall not be terminated for capricious reasons” contemplates the fact that the termination of probationary employees is not subject to arbitration but that some j ob security to probationaiy employees should be provided. We conclude that this section of the collective bargaining agreement could not have reasonably been given any other interpretation than to exclude the termination of probationary employees from arbitration. There is no grey area in the interpretation of article 16, § 2, of this collective bargaining agreement and Nickerson, as a probationary employee, was not entitled to arbitration.

We agree with the well reasoned analysis of the trial court in ruling on this particular issue when it said: “The collective bargaining agreement, at article 16, § 2, clearly and unmistakenly provided that while termination or disciplinary sanctions as to nonprobationary members of the bargaining unit could be pursued through all steps of the grievance procedure, including arbitration, the issue of termination of probationary employees is ‘not subject to the grievance and arbitration procedures of this agreement.’ The arbitrator reasoned that because the town also agreed not to terminate probationary employees for ‘capricious reasons’ it must have meant to agree to arbitration of claims of violation of that provision. Such a construction ignores the express language of the contract to the contrary, and imposes on the town an obligation directly contrary to the bargained for exclusion. There is nothing ambiguous in the exclusionary language cited above, nor does the provision prohibiting ‘capricious’ termination necessitate a ‘construction’ of the exclusion that negates its plain words. An employer may certainly agree not to act capriciously without also agreeing to a particular procedure from enforcement of that agreement, leaving a party who believes the agreement has been violated to resort to such other means of enforcement as may be available.” We, therefore, agree with the trial court that the arbitrator’s award should be vacated on this ground.

II

Even if the award should not have been vacated because it was not arbitrable, it should be vacated on the ground that the arbitrator should not have considered evidence that was not part of the record. The defendant contends that the trial court improperly vacated the arbitrator’s award and concluded that the arbitrator was engaged in an “action by which the rights of any party have been prejudiced,” under § 52-418 (a) (3) when he considered evidence that was not part of the record and to which the parties were not given an opportunity to respond.

In the present case, the arbitrator referred to the Department of Public Safety Administration and Operations Manual, 3d Ed., of the state police in its memorandum of decision. This manual was not offered or received into evidence, either in whole or in part, and it was not mentioned during the hearing by any witness, lawyer, or the arbitrator.

The trial court, in its supplemental memorandum of decision, stated: “After a hearing, this court finds that neither party submitted this document as an exhibit at the arbitration hearing and that the arbitrator was presented with no testimony to the effect that the contents of that manual had been adopted by or for the use of the Wallingford police department. This court finds that the arbitrator obtained this document outside of the arbitration procedure and used it as evidence in deciding the issue presented. The town was deprived of any opportunity to object to the document on the grounds of relevance or to counter, explain or distinguish any of the statements made in that document.”

Section § 52-418 (a) (3) provides that the court shall vacate an arbitration award if the arbitrators engaged in “any other action by which the rights of any party have been prejudiced.” “To establish that an evidentiary ruling, or lack thereof, rises to the level of misconduct prohibited by § 52-418 (a) (3) requires more than a showing that an arbitrator committed an error of law.” Clairol, Inc. v. Enertrac Corp., 44 Conn. App. 506, 514, 690 A.2d 418 (1997).

“The concept of arbitral ‘misconduct’ does not lend itself to a precise definition but is, instead, best illustrated by example. See generally A. Rothstein, ‘Vacation of Awards for Fraud, Bias, Misconduct and Partiality,’ 10 Vand. L. Rev. 813 (1957). Among the actions that have been found to constitute such misconduct on the part of an arbitrator as would warrant vacating an arbitration award are the following ... ex parte receipt of evidence as to a material fact, without notice to a party; Hewitt v. Village of Reed City, 124 Mich. 6, 8, 82 N.W. 616 (1900); Reisman v. Ranoel Realty Co., 224 Pa. Super. 220, 224, 303 A.2d 511 (1973) .... Though not exhaustive, these examples of arbitral misconduct delineate the broad contours of conduct that is unacceptable and prohibited under § 52-418 (a) (3). The presumptive validity of consensual arbitration awards depends upon the underlying integrity of the arbitration process. When that integrity is tainted either by actual impropriety or the appearance of impropriety, the arbitration award cannot be permitted to stand. See Commonwealth Coatings Corporation v. Continental Casualty Co., 393 U.S. 145, 147-48, 89 S. Ct. 337, 21 L. Ed. 2d 301 (1968), reh. denied, 393 U.S. 1112, 89 S. Ct. 848, 21 L. Ed. 2d 812 (1969).” O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 146-48, 523 A.2d 1271 (1987).

In the present case, the reasons for terminating a police officer were at issue. Therefore, proper police conduct was material to the case. The use of an undisclosed document regarding that conduct was prejudicial and denied the plaintiff a fair hearing because it was not given an opportunity to respond to this document, which was never placed in evidence. This was a violation of § 52-418 (a) (3). Accordingly, the award of the arbitrator must be vacated.

The judgment is affirmed.

In this opinion the other judges concurred.

       Each party filed an application, one to vacate and one to confirm the award. We will refer in this opinion to the town of Wallingford as the plaintiff and to the union as the defendant.

       Philip Nickerson is a member of the defendant union.

       General Statutes § 52-418 provides in relevant part: “Vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court, is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (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. . . .”

       These four incidents were termed: “Stop & Shop, Woodington Road, Executive Dodge, and American Savings Bank.” These names represent the location where the incidents took place. In the “American Savings Bank” incident Nickerson’s supervisor stated that he should not have “given up his cover so fast” and come as close to the police subject as he did. In the “Stop & Shop” incident, Nickerson, without any firsthand knowledge or information about a suspect, grabbed the suspect, put him on the floor and cuffed him. The chief of police, after assessing the incident, concluded that this arrest was made without probable cause. In the “Wooding Road” incident, Nickerson failed to confiscate certain cans of beer as evidence and instead made a suspect pour the beer down a sink. In the “Executive Dodge” incident, Nickerson pulled a suspect out of a car without first asking him to get out, put him on the ground, handcuffed him, and searched his car. The suspect was then released. Nickerson’s police supervisors stated that the methods used to remove and detain the suspect were inappropriate and were a “premature escalation of force.”