text:
    State of Connecticut v. Neville Nelson
    (6439)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued December 14, 1988
    decision released March 7, 1989

      Richard S. Cramer, for the appellant (defendant).

      Paul J. Ferencek, deputy assistant state’s attorney, with whom, on the brief, was Christopher L. Morano, deputy assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant was convicted, after a trial to a jury, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), possession of drug paraphernalia in violation of General Statutes § 21a-267 (a), and having a weapon in a motor vehicle in violation of General Statutes § 29-38. The defendant appeals from the judgment of conviction.

The defendant claims that the trial court erred (1) in failing to set aside the verdict as to the charge of having a weapon in a motor vehicle, (2) in permitting a police officer to testify as an expert witness, (3) in admitting hearsay evidence, (4) in admitting illegally seized evidence, (5) in denying the defendant’s motion to reopen, and (6) in its instructions to the jury on the charge of possession with intent to sell. We find error on the defendant’s first claim.

The jury could reasonably have found the following facts. Acting on information supplied by an informant, Detective Michael Manzi of the Hartford Police Department dialed a phone number from a public telephone in Hartford, which activated a message center beeper. A moment later, a male voice, later identified as the defendant’s, returned his call and asked Manzi what he wanted. Manzi replied that he was interested in buying a gram of cocaine. The defendant instructed Manzi to proceed to the intersection of Broad and Russ Streets in Hartford, where another pay phone was located, and to redial the phone number. When the second call was made, the message center beeper was again activated and the defendant called back. The defendant informed Manzi that the gram of cocaine would cost “a yard,” which is street parlance for one hundred dollars. After Manzi agreed to pay this amount, he was told to proceed to the Kentucky Fried Chicken restaurant at 475 Park Street in Hartford to await delivery. When Manzi arrived at the restaurant, a young Hispanic female, later identified as Sonya Hernandez, approached his car, tapped on the window and asked if he had “the money.” At Manzi’s request, Hernandez got into his car. While in the car, Hernandez produced a lottery ticket folded in the shape of a pyramid that contained a white powder which was later tested and found to be cocaine. As planned, Manzi signaled Detective Jose Morales, who approached the vehicle, identified himself as a police officer and arrested Hernandez. Hernandez stated that she was only delivering a package for a black man who was parked three or four cars behind Mansi’s car. Both detectives proceeded to this automobile where the defendant was seated in the driver’s seat. When the defendant got out of his car, Manzi performed a pat-down search and discovered a message center beeper in the defendant’s right front pants pocket. Seized from a compartment on the inside of the driver’s door, was a ziplock bag containing a white powder later identified as cocaine. The officers then arrested the defendant. The defendant’s car was seized and towed to police headquarters. An inventory search of the vehicle produced a loaded .38 caliber handgun, and a Deering precision scale kit, which included a scale, a grinder, a funnel and rotating sifters.

I

The defendant’s first assignment of error is that the state presented insufficient evidence on the issue of whether the defendant had obtained a state weapons permit and therefore, failed to prove an essential element of General Statutes § 29-38. We agree.

A person violates General Statutes § 29-38 when he or she “knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202 . ” (Emphasis added.) The term “weapon” is defined under this section and includes any “pistol or revolver . . . and any other dangerous or deadly weapon.” General Statutes § 29-28 describes the procedure for obtaining a pistol permit, and conditions the issuance of a state permit to the holder of a locally issued permit. The defendant argues that the state failed to produce any evidence that he did not have a state permit.

It is fundamental that any person accused of a crime is presumed innocent unless and until the state has proven his guilt by establishing each essential element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Williamson, 206 Conn. 685, 708-709, 539 A.2d 561 (1988). Our Supreme Court has concluded that the lack of a proper permit is an essential element of the crime of having a weapon in a vehicle pursuant to General Statutes § 29-38 and, therefore, the state is required to prove beyond a reasonable doubt that a defendant did not have a proper permit for the weapon as provided in § 29-28. State v. Beauton, 170 Conn. 234, 240, 365 A.2d 1105 (1976); see also State v. Smith, 9 Conn. App. 330, 338, 518 A.2d 956 (1986). In State v. Beauton, supra, the only evidence of a permit introduced by the state was that the defendant did not have a permit from the city of New Haven, the city in which he was arrested. The court held that this evidence alone was insufficient to determine whether the defendant had a valid state permit. The court found that the state should have introduced evidence as to whether the defendant had a permit from the state of Connecticut. The defendant was not a resident of New Haven.

Although the state concedes that the only evidence it produced at trial on whether the defendant had a permit was that the defendant had not been issued a permit by the city of Hartford, it argues that the facts of this case are distinguishable from Beauton. The state argues that the defendant is a Hartford resident and, because no local permit existed, no state permit could exist, as the state permit is preconditioned upon the issuance of a local permit. We disagree with the state’s analysis.

In this case, no evidence was presented at trial indicating how long the defendant had lived in Hartford, whether he had a place of business elsewhere, or whether he ever had a Hartford permit other than at the time of the offense. Although it is necessary to obtain a local permit before a state permit may issue, it is not necessary to renew a local permit after having obtained a state permit. Therefore, it is possible for a person to have a state permit and not to have a current local one. During oral arguments, this court queried the state as to three possible permit scenarios and, as to each, the state conceded that the evidence produced at trial would have been insufficient to sustain a conviction under § 29-38. The first situation involves a person who, at one time, was a resident of Hartford and has a place of business other than Hartford. He obtains a local permit in the town of his business and then obtains a state permit which is in effect at the time of trial. The second scenario involves a person who, while living in a town other than Hartford, obtains a local permit from that town, followed by a state permit, and then moves to Hartford, with the state permit in effect at the time of the offense. The last scenario involves a person who had obtained a Hartford permit some years ago, and then a state permit, and who does not renew his local permit, but has a valid state permit on the date of the offense.

It is evident from these examples that it was possible for the defendant to have a state permit without having one from the city of Hartford. In light of this fact, we conclude that the state did not present sufficient evidence to establish a violation of § 29-38 as it did not establish that a proper state permit did not exist as of the date of the offense.

II

The defendant next claims the trial court erred in usurping the jury’s function by permitting a police officer to testify as a narcotics expert on the issue of whether the defendant intended to sell the cocaine. We find no error.

During its case-in-chief, the state called Sergeant Robert J. Cagianello of the Hartford police as an expert witness. Cagianello is a thirteen year veteran of the Hartford police department and supervisor of that department’s narcotics division. Cagianello testified that he had been involved in the field of narcotics investigation for approximately three and a one-half years and had worked on hundreds of narcotic cases that resulted in arrests and convictions. The trial court concluded that Cagianello qualified as an expert in the field of narcotics investigation, and permitted him to testify that the combination of the items seized, which included bullets, a gun, pyramid paper, a scale, and a grinder established behavior consistent with drug sales.

The defendant does not contest the trial court’s finding that Cagianello qualified as an expert with respect to narcotics, but argues that the trial court erred in permitting the witness to testify about the ultimate issue of intent to sell.

As a general principle, “[a]n expert witness may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. State v. Donahue, 141 Conn. 656, 667, 109 A.2d 364 (1954), appeal dismissed and cert. denied, 349 U.S. 926, 75 S. Ct. 775, 99 L. Ed. 1257 (1955). ‘Experts can [however,] sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass. State v. Johnson, 140 Conn. 560, 563, 102 A.2d 359 (1954).’ ” State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). A trial court has broad discretion in admitting “expert testimony concerning the sale of illicit drugs.” Id., 45.

Our resolution of this case is controlled by State v. Vilalastra, supra, which set forth guidelines for determining to what extent an expert witness may offer opinions on the issue of a defendant’s intent to sell narcotics. According to Vilalastra, it is improper for the state to elicit testimony from an expert as to whether the defendant was a seller or user. It is permissible, however, for the state to ask the expert whether the items seized are commonly used by drug dealers generally. Therefore, under Vilalastra, it is improper to solicit a particularized opinion as to the defendant’s use and possession of items or drugs found; however, it is wholly appropriate to inquire into the custom and practice of narcotics traffickers generally.

The court in Vilalastra, supra, provided a number of examples of permissible inquiry which are helpful in understanding the distinction. “Expert witnesses may testify that certain behavior by a defendant or his possession of particular items is conduct similar to that engaged in by the typical drug dealer.” Id., 45. In addition, “[a] police officer, who is qualified as an expert witness, may . . . testify that, in light of the officer’s personal observations of [the defendant’s] conduct, it appeared that a defendant was engaged in narcotic sales.” Id. Furthermore, it is proper for the state’s attorney to ask the police officer whether, in his expert opinion it is the common practice of drug sellers, to work with the items found. Id. An expert may give his opinion about the quantity of narcotics that a drug dealer might possess. Id., 42. By contrast, the state’s attorney may not ask “[w]hether or not the items found . . . were possessed for either personal use and consumption or with intent to sell or dispense.” Id., 43.

The defendant argues that although some of the questions do not appear to be improper under Vilalastra, they are improper, when viewed individually, and examined in the respective nature and manner in which they were asked. We find this argument unpersuasive. The questions posed to the witness by the state, and allowed by the court, satisfied the standard set forth in Vilalastra. The state did not ask the witness a question framed to elicit a response that the items seized conclusively established that the defendant was a drug seller or that invited the witness to improperly speculate that the items seized were conclusively possessed for either consumption or sale. Each question sought permissible answers as to whether the items seized were those commonly used by drug dealers. The witness never expressed his opinion as to the ultimate issue of intent or that the defendant was either a user or a seller of narcotics. We conclude, therefore, that the state’s inquiry was proper.

Ill

The defendant next claims that the court erred in admitting the hearsay statements of the declarant, Sonya Hernandez, during the testimony of Officer Jose Morales. Morales was permitted to testify, over the defendant’s objection, regarding statements Hernandez made after she was arrested. The trial court ruled that the testimony was admissible under the coconspirator exception to the hearsay rule. Although the state concedes that Morales’ testimony was inadmissible under this exception because the statements were not made in furtherance of a conspiracy; see State v. Vessichio, 197 Conn. 644, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); it argues that the error was harmless because the evidence was merely cumulative of Hernandez’ own testimony concerning the same events. Since the error is evidentiary, the defendant bears the burden of establishing that the error was harmful. State v. Januszewski, 182 Conn. 142, 174, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

The defendant concedes that Morales’ testimony was cumulative. He argues, however, that Morales’ testimony was far inore damaging to his case than that given by Hernandez herself because as a police officer, Morales’ testimony had a greater aura of truth to it. We find this argument unpersuasive. The trial court charged the jury that the testimony of a police officer is not to be given greater weight than the testimony of any other witness and is to be scrutinized in the same manner as any other witness. We presume that the jury follows the instructions as presented to them. State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985).

“ ‘An ¡erroneous ruling should not be considered reversible error if the evidence admitted thereby has already properly entered the case.’ ” State v. Dolphin, 195 Conn. 444, 455, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985), quoting State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983). Although it was error to permit this evidence under the coconspirator exception to the hearsay rule, we conclude that the error was harmless. See State v. Fiocchi, 17 Conn. App. 326, 338-39, 553 A.2d 181 (1989).

IV

The defendant’s fourth claim is that the trial court violated his state and federal constitutional right to be free from unreasonable warrantless searches in denying his motion to suppress certain evidence seized from the trunk of his car. The trial court found that the items were properly seized under the inventory exception to the warrant requirement. We agree with the trial court.

The following facts were established during the evidentiary hearing on the defendant’s motion to suppress. When the defendant was arrested, his vehicle was parked near a busy intersection on the corner of Park and Lafayette Streets in Hartford. Manzi testified that the arrest occurred at approximately 4:15 p.m. during rush hour traffic. As the arrest was occurring, a large crowd gathered. When the detective conducted a pat-down search of the defendant for weapons, he felt a hard object in the defendant’s pocket which turned out to be a message center beeper. The search of the car incident to the arrest uncovered a ziplock type bag containing white powder which was in a compartment on the driver’s door. After the officers took the defendant to police headquarters, they notified a private towing company to remove the defendant’s car from the street. The vehicle was towed to the Morgan Street police station and was subjected to a routine inventory search. A search of the trunk of the car uncovered a .38 caliber handgun, and a Deering narcotics kit which included a scale and other drug paraphernalia. When asked whether the impoundment and search were conducted pursuant to established police procedures, Manzi testified that it is routine practice to impound vehicles incident to an arrest and that in conducting the search he used a standardized state form.

Because it is uncontested that the search of the defendant’s car at police headquarters was performed without a search warrant, and therefore was per se unreasonable; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); in order to uphold this search, the state must demonstrate that the warrantless search was nevertheless reasonable under one of the recognized exceptions to the warrant requirement. State v. Badgett, 200 Conn. 412, 423-24, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); State v. Murphy, 6 Conn. App. 394, 396, 505 A.2d 1251 (1986). The principal theory put forth by the state is that the warrantless search was the product of a routine inventory of the contents of the defendant’s vehicle. The United States Supreme Court has approved routine inventory searches of motor vehicles performed for purposes other than investigation and pursuant to standardized police procedures. South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).

“In order to determine the reasonableness of a routine inventory search, a court is required to weigh ‘the governmental and societal interests advanced to justify such intrusions against the constitutionally protected interest of the individual citizen in the privacy of his effects.’ ” State v. Murphy, supra, 397, quoting South Dakota v. Opperman, supra, 378. “In applying this balancing test, the Supreme Court identified three governmental and societal interests [that] support . . . inventory searches: (1) protection of the police from danger; (2) protection of the police against claims and disputes over lost or stolen property; and (3) protection of the owner’s property while it remains in police custody. South Dakota v. Opperman, supra, 369. When these interests singly or together comprise the reason for invading a citizen’s expectation of privacy in his automobile, the Supreme Court has concluded that the limited intrusion into an individual’s privacy interest caused by an inventory search is outweighed by the legitimate governmental interests embodied in the ‘community caretaking functions’ of the police. Id., 368-69; Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); see also State v. Tully, supra, 136-37.” State v. Murphy, supra, 397-98. “Whether a search is reasonable is to be determined on a case by case basis, depending upon the particular fact situation.” State v. Murphy, supra, 400, citing South Dakota v. Opperman, supra, 373.

The defendant argues that the inventory search of his vehicle was improper for a number of reasons. First, the defendant asserts that the car should not have been impounded because there was no evidence that it was illegally parked or that he had expressed concern for securing its contents. The absence of such evidence does not necessarily render impoundment improper. The trial court expressly found, on the basis of Manzi’s uncontradicted testimony, that the reason for towing the defendant’s car was to remove it from a busy public street and, in light of the fact that a crowd had gathered during the course of the defendant’s arrest, to avoid vandalism and theft. We find persuasive a recent federal case that explicitly found that the impoundment and towing of an arrestee’s car from a public parking lot was reasonable. United States v. Frank, 864 F.2d 992 (3rd Cir. 1988). The facts of the present case are even more compelling than those presented in Frank, supra. In this case, the defendant’s car was left on a busy public street during rush hour traffic. Moreover, in light of the volatile nature of the neighborhood where the car was left, by securing the property the police were protecting it from any theft or vandalism; a reason expressly recognized in Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987). Under these circumstances, the decision to impound the vehicle and inventory its contents was reasonable. The fact that a defendant does not express concern for its vehicle or contents does not affect this result.

The defendant also asserts that the inventory search of his car was unreasonable because he should have been permitted to make arrangements to move his car by other means. In support of this argument, the defendant relies on State v. Murphy, supra. For a variety of reasons, such reliance is misplaced. First, Murphy is factually distinguishable from the.present case. In Murphy, this court held that under the federal and state constitutions an inventory search of a car conducted on the street was unreasonable when the defendant requested to make his own arrangements to tow his car one and one-half miles to his residence. In this case, no such request was made by the defendant. Moreover, to the extent that State v. Murphy, supra, relied on the federal constitution in finding the search in that case unreasonable, its holding is overruled by Colorado v. Bertine, supra, which was decided after Murphy. Although the defendant made no request to move his car, he nevertheless argues that under the circumstances presented here, he “could” have made other arrangements. The defendant appears to be arguing that the police should have asked him if he wished to make such arrangements. The theory that the police must use the “least intrusive” means possible, which was adopted by this court in Murphy, supra, was expressly rejected in Colorado v. Bertine, supra. In Bertine, the court found that “while giving [the defendant] an opportunity to make alternative arrangements would undoubtedly have been possible . . . ‘[t]hereal question is not what “could have been achieved,” but whether the Fourth Amendment requires such steps . . . the reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative “less intrusive” means.’ (Emphasis in original.) [Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605, 77 L. Ed. 2d (1983)]. . . . [Reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts must as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.” Colorado v. Bertine, supra, 373-74. Therefore, the touchstone under the federal standard is the “reasonableness” of the search. In light of this pronouncement in Bertine, the defendant’s argument that he should have been allowed to make other arrangements to tow his car is without merit.

The defendant’s final challenge to the inventory search is that it was not conducted pursuant to a formal written policy. United States v. Opperman, supra, 366, mandates that an inventory search be conducted “using a standard inventory form pursuant to standard police procedures.” The reason for requiring such procedures is to avoid arbitrary determinations by police with respect to an inventory search. Id., 383. While it is clear that a search must be conducted according to established procedures, neither Opperman, nor any subsequent case, expressly requires such procedures to be written. See United States v. Frank, supra.

The record discloses that Manzi testified that it is the policy of the Hartford police department to impound cars upon the driver’s arrest. Manzi explained that the impoundment of the car was necessary in this case because the car was parked on a busy street and in a volatile neighborhood. In addition, he testified that he conducted the search pursuant to the department’s policy and utilized a standard form in doing so. We find that under the federal standard this was sufficient. We conclude, therefore, that the trial court did not err in denying the defendant’s motion to suppress.

V

The defendant’s fifth claim challenges the trial court’s denial of his motion to reopen so that he could testify on his own behalf. On July 31,1987, the defense rested its case without calling any witnesses or presenting any evidence. On August 3,1987, the next court date, the defendant moved to reopen his case. In the absence of the jury, defense counsel claimed that over the weekend he had learned from the defendant about an affidavit that Hernandez had allegedly signed recanting her previous testimony. The defendant explained that he sought to reopen his case for the purpose of recalling Hernandez and calling the defendant to testify about this alleged statement. The trial court conducted a preliminary hearing, during which Hernandez took the stand, but invoked her fifth amendment right against self-incrimination to all questions pertaining to her previous trial testimony and to the alleged affidavit. The defendant then requested that he be permitted to recall Hernandez to the stand and permit her to invoke her fifth amendment privilege in front of the jury. This request was denied on the basis that her testimony was ambiguous, nonprobative, highly prejudicial and untrustworthy. The defendant did not pursue his request that he be allowed to testify.

The defendant does not challenge the court’s ruling as to Hernandez, and we therefore decline to address this issue. Instead, he claims that the trial court erred in denying his request to reopen so that he could testify on his own behalf.

It is well established that a trial court enjoys wide discretion in permitting the reopening of a case after either side has rested. State v. Anderson, 209 Conn. 622, 634, 553 A.2d 589 (1989); State v. Allen, 205 Conn. 370, 380, 533 A.2d 559 (1987). This request to reopen involves the defendant’s constitutional right to present evidence. “The sixth amendment has been said to include ‘a compact statement of the rights necessary to a full defense’ which is part of the fourteenth amendment guarantee of due process of law. Faretta v. California, 422 U.S. 806, 818, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). One of these rights is ‘to offer testimony . . . ’; see Washington v. Texas, 388 U.S. 14, 18, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); ‘through the calling and interrogation of favorable witnesses . . . .’ Faretta v. California, supra. . . . ‘For a court’s refusal to reopen and receive new evidence after the parties have rested to constitute a sixth amendment violation . . . greater prejudice must be shown than in refusals to receive evidence offered in the regular course of a trial. . . . [A] trial judge must be allowed a fair degree of discretion in ruling upon motions to reopen the defense. And for his adverse ruling to violate the sixth amendment, it must be shown that the proffered evidence was of such importance to the achievement of a just result that the need for admitting it overrides the presumption favoring enforcement of the state’s usual trial procedures. . . . ’ Blaikie v. Callahan, 691 F.2d 64, 67-68 (1st Cir. 1982).” State v. McKnight, 191 Conn. 564, 580, 469 A.2d 397 (1983). “If the motion to reopen is denied, we must, in determining whether the trial court abused its discretion, look to see if an injustice has occurred by the omission of the evidence.” State v. Anderson, supra, 635. In reviewing the claimed error, we will give every reasonable presumption in favor of the correctness of the court’s ruling. Id., 635.

The trial court was not presented with any circumstances that would justify the reopening of the defendant’s case. While the defendant did not proffer the exact nature of his testimony, he did state that he wished to explain the circumstances surrounding the newly discovered evidence. The fact that he did not request to take the stand after the court ruled Hernandez’ testimony was inadmissible, demonstrates that the defendant’s only purpose in testifying involved Hernandez’ testimony. His testimony would only be relevant, however, if Hernandez testified. Because the defendant does not challenge the court’s ruling with respect to Hernandez, it is unnecessary for us to review it. We conclude, therefore, that the court did not abuse its discretion in denying the motion to reopen.

YI

The defendant’s final claim is that the trial court erred in instructing the jury that the defendant could be convicted of violating General Statutes § 2 la-278 (b) if it found that he “dispensed, distributed or transported” cocaine. The defendant, however, did not raise an objection to this portion of the charge at trial nor does he even argue that his claim is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). In addition, in support of his claim the defendant merely states this issue without presenting this court with any legal analysis whatsoever. In light of these briefing failures, we decline to review this claim. Practice Book §§ 4183 and 4185; see State v. Smith, 209 Conn. 423, 551 A.2d 742 (1988); State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951 (1988); State v. Fiocchi, supra, 327-28 n.3.

There is error only as to the judgment of conviction of having a weapon in a motor vehicle, that judgment is set aside and the case is remanded with direction to render a judgment of not guilty on that count.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person . . . . ”

       General Statutes § 21a-267 (a) provides in pertinent part: “No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal, or to inject, ingest, inhale or otherwise to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal, or to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance as defined in subdivision (9) of section 21a-240. . . .”

       “[General Statutes] Sec. 29-38. weapons in vehicles. Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both. . . . The word ‘weapon’, as used in this section, means any pistol or revolver, any dirk knife or switch knife or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, and any other dangerous or deadly weapon or instrument, including any slung shot, black jack, sand bag, metal or brass knuckles, stiletto, any knife, the edged portion of the blade of which is four inches or over in length or any martial arts weapon as defined in section 53a-3. The provisions of this section shall not apply to any person enrolled in and currently attending a martial arts school, with official verification of such enrollment and attendance, having any martial arts weapon including, but not limited to, nunchaku and Chinese stars in a vehicle while traveling to and from such school.”

       The defendant was also convicted on August 4,1987, of possession of narcotics in violation of General Statutes § 21a-279 (a). The court ordered the guilty verdict vacated and rendered a judgment of not guilty. A fifth count which charged the defendant with failure to appear in violation of General Statutes § 53a-172 was nolled by the state on September 14,1987.

       General Statutes § 29-28 provides in pertinent part: “Upon the application of any person having a bona fide residence or place of business within the jurisdiction of any such authority or upon the application of any bona fide resident of the United States having a permit or license to carry any firearm issued by the authority of any state or subdivision of the United States, such chief of police, warden or selectman may issue a permit to such person to carry a pistol or revolver within the jurisdiction of the authority issuing the same, provided such authority shall find that such applicant intends to make no use of any pistol or revolver which he may be permitted to carry thereunder other than a lawful use and that such person is a suitable person to receive such permit. Said commissioner may, upon application, issue, to any holder of any such permit, a permit to carry a pistol or revolver within the state. Each permit to carry any pistol or revolver shall be issued in triplicate and one of the copies issued by said commissioner shall be delivered to the person to whom issued, one shall be delivered forthwith to the authority issuing the local permit and one shall be retained by said commissioner, and the local authority issuing any such permit shall forthwith deliver one of such copies to the person to whom issued and one copy to said commissioner and shall retain one of such copies. No permit for carrying a pistol or revolver shall be issued to an alien under the provisions of this section.”

       We note that it cannot be seriously argued that the state had an impossible task to determine whether the defendant had a state permit. See State v. Beauton, 170 Conn. 234, 242, 365 A.2d 1105 (1976). The matter was heard at the Hartford G.A. facility, which we judicially notice is located almost across the street, a very short walking distance, from the office of the Connecticut State Police Permit Division on Washington Street.

       The pertinent portion of Detective Cagianello’s testimony is the following:
      “[Prosecutor] (showing the witness a handgun)
      “Q. Detective, Pm showing you State’s Exhibit 1. Can you identify that?
      “(Handed to the witness).
      “A. It’s a Smith & Wesson .38 caliber special. It’s a revolver.
      “Q. And would it surprise you to find a weapon when drugs are involved?
      “[Defense Counsel] Objection.
      “A. No sir. . . .

        “Q. Okay, now, detective, I’m showing you State’s Exhibit 6 and as you can see, I’ve removed some items from the inside of this box. Can you tell us if, in the course of your experience, you’ve run across items of that nature before.
      “A. Yes, sir.
      “Q. And can you tell us, describing for the record, what each one of these items is? . . .
      “By the Court:
      “Q. Have you ever come across those types of items before?
      “A. Yes, I have, your Honor.
      “Q. Where have you come across them?
      “A. In my narcotics investigations.
      “Q. Okay, and do you know how those items are used?
      “A. Yes, I do.
      “Q. In narcotics, in the field of narcotics?
      “A. Yes, I do.
      “Q. Those are not designed specifically for narcotics?
      “A. No, sir.
      “Q. What are they designed for?
      “A. Either used in chemistry labs or high school chemistry labs, pharmaceutical work.
      “Q. But, you do come across them as used by -
      “A. By narcotics dealers, yes, sir. . . .
      “[Prosecutor] (showing the witness a funnel from the Deering Scale Kit)
      “Q. The remaining item here, can you tell us what that is?
      “A. Yes, this is a funnel and it’s used with the rest of these items, the grinder, the strainer and the dish and this is just a funnel so they don’t lose any of the cocaine.
      “Q. And are items of this nature, based upon your experience, consistent with the mere possession of narcotics?
      “A. No, sir.
      “Q. Are they consistent with the sale of narcotics?
      “A. Yes, sir. . . .
      “[Prosecutor]
      “Q. I’m going to show you the following items, I’m showing you State’s Exhibit 1, State’s Exhibit 2, which consists of 4 bullets, State’s Exhibit 4 and State’s Exhibit 6 as well as State’s Exhibit 7. Now, if you were to learn that the combination of these items were found, some on a defendant or in a vehicle he was in, would you, based upon your training and experience, feel that that was consistent with drug sales?
      “[Defense Counsel] Objection.
      “By the witness:
      “A. Yes, sir. . . .
      “Q. Is the combination of these items consistent with the customary practices of those who market in narcotics?
      “A. Yes, sir. . . .
      “[Prosecutor]
      “Q. Is it customary for a person who is marketing narcotics to carry a handgun?
      “A. Yes.
      “Q. And why is that?
      “A. For the protection of his stashes and narcotics and money for other people.
      “Q. And if I was to tell you that these items that you see before you that I’ve read into the record as to their exhibit numbers were found on a defendant or in his motor vehicle shortly after a beeper transaction, as I’ve described, had occurred, would that affect the conclusion you have made to the jury? . . .
      “A. Yes, it would make it stronger.”

       The pertinent portion of Morales’ testimony is as follows:
      “A. Again she stated that she had gone, she was approached at Pizza Gormet, which is a pizza shop approximately a block away from where we were, and she was met by a black male who gave her a pyramid paper to bring over to the car and that he was going to pay her 10 dollars and that he suppose — she was supposed to get one hundred dollars from the individual that was in the blue car, which was Detective Mike Manzi.
      “Q. And after she told you this, what, if anything, occurred?
      “A. Then she said that the black male was approximately 3 to 4 cars behind us.
      “Q. And did she describe the car?
      “A. Yes, she described the car.
      “Q. And what was that description, if you recall?
      “A. Dark color, small compact car, Subaru of some type.”

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers, and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
      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 . . . .”
      Although the defendant refers to both the state and federal constitutions, he offers no separate analysis of the Connecticut constitution as the basis for different treatment of the state and federal claims. In light of this briefing failure, we decline to undertake such an analysis and therefore analyze his claim under the federal standard. State v. Bowden, 15 Conn. App. 539, 543 n.2, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988).


source: Caselaw Access Project

author: Borden, J. O’Connell, J.,

license: Public Domain

text:
    Commissioner of Health Services v. Harold Kadish
    (6539)
    Borden, O’Connell and Stoughton, Js.

      (One judge dissenting)

    Argued November 2, 1988
    decision released March 7, 1989

      Andrea B. Gaines, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard J. Lynch, assistant attorney general, for the appellant (plaintiff).

      R. Bartley Halloran, with whom, on the brief, was Salvatore Bonanno, for the appellee (defendant).
   Borden, J.

The sole question of this appeal is whether the record of a medical peer review proceeding is statutorily immune from production in an investigation of a health care professional by the department of health services. The plaintiff commissioner appeals from the judgment of the trial court granting a motion to quash a subpoena duces tecum served on the defendant, the chairperson of the Tolland County Dental Society peer review committee. The trial court held that the record of the committee’s proceedings are shielded from production by General Statutes § 38-19a (d). We find error.

The record discloses the following facts. The plaintiff, under authority of investigatory powers granted the department of health services, was investigating a licensed dentist, Arthur Fitzgerald, for possible violations of his license to practice, arising out of his treatment of a particular patient. The committee had conducted a peer review of Fitzgerald’s treatment of that patient. Pursuant to his authority under General Statutes § 19a-14 (a) (10), the plaintiff issued a subpoena duces tecum to the defendant in his capacity as chairperson of the committee, seeking the records of the committee’s review of that treatment. The defendant failed to appear and produce the records, and the plaintiff petitioned the trial court for enforcement. The defendant then moved to quash the subpoena, and the court granted the defendant’s motion to quash. This appeal followed.

The plaintiff’s argument, which we find dispositive, is that the trial court erred in holding that General Statutes § 38-19a (d) prevents the plaintiff from discovery of the committee’s records of its peer review of Fitzgerald. The defendant argues, and the trial court agreed, that the peer review proceedings are immune from discovery by virtue of General Statutes § 38-19a (d). We disagree.

General Statutes § 38-19a (d) provides that peer review proceedings conducted by a medical review committee are not “subject to discovery or introduction into evidence in any civil action for or against a health care provider . . . .” (Emphasis added.) Whether a statutory proceeding is a civil action depends on the purpose for which the legislature created the proceeding and the most efficacious way to carry out that purpose. Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 344, 494 A.2d 606, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985). Even those statutory proceedings that have been held to be civil actions in other contexts; see, e.g., Carbone v. Zoning Board of Appeals, 126 Conn. 602, 604-607, 13 A.2d 462 (1940); were proceedings in court and not, as here, purely administrative investigatory proceedings. See also Practice Book § 256 (administrative appeals to Superior Court are civil actions for purposes of rules of practice, but not for purposes of certain statutes). We agree with the well reasoned decision of the Superior Court, in another case, that an investigation by the commissioner of health services is not a “civil action” within the meaning of General Statutes § 38-19a (d). See Commissioner v. William W. Backus Hospital, 40 Conn. Sup. 188, 190, 485 A.2d 937 (1984) (M. Hennessey, J.).

We are unpersuaded by the dissent’s reliance on Morse v. Gerrity, 520 F. Sup. 470 (D.C. Conn. 1981), because that was a medical malpractice action — -clearly a “civil action” — in which the issue was whether the statutory privilege covered peer review proceedings unrelated to the subject matter of the case before the court. Id., 471. It did not address the issue of whether an administrative investigatory proceeding is a “civil action” within the meaning of the statute.

Indeed, the dissent’s policy argument proves too much, because General Statutes § 38-19a (d) does not create an absolute privilege; the statute itself carves out limits and exceptions where peer review proceedings are disclosable. The statutory privilege is limited to “any civil action for or against a health care provider . . . .” (Emphasis added.) General Statutes § 38-19a (d). Thus, even in the context of a civil action between other parties, peer review proceedings, if otherwise relevant, are not shielded; and peer review proceedings are not shielded “in any health provider proceedings concerning the termination or restriction of staff privileges . . . .” General Statutes § 38-19a (d) (3). Furthermore, we fail to see how, as the dissent suggests, the meaning of “civil action” as used in the statute differs when it is applied to a dentist, as opposed to a physician.

Finally, the dissent’s reliance on the purported exercise of discretion by the trial court simply mischaracterizes how the case was tried and decided in the trial court. See footnote 4, supra. The trial court did not nor was it asked to exercise any such discretion.

There is error, the judgment is set aside and the case is remanded with direction to render judgment denying the motion to quash and ordering enforcement of the subpoena duces tecum.

In this opinion Stoughton, J., concurred.

O’Connell, J.,

dissenting. I disagree with the decision of the majority and would find no error.

Peer review statutes are intended to encourage frank, uninhibited discussion, debate and criticism by the peers of a health care provider with projected goals of, inter alia, continuing professional education, evaluation of the quality of patient care, renewal of privileges, complaint investigation and malpractice review. The peer review committee’s proceedings are designed to be free from the chilling concern that they would become public and expose its members to the involvement of civil litigation and the glare of public attention.

“[Although the privilege is not absolute, the legislative history and judicial decisions in other jurisdictions with similar statutes, although sparse, support a liberal interpretation both as a matter of statutory construction and public policy. See, e.g., Scott v. McDonald, 70 F.R.D. 568 (N.D.Ga. 1976); Eubanks v. Ferrier, 245 Ga. 763, 267, S.E.2d 230, 232 (1980); Young v. Gersten, 56 Ohio Misc. 1, 381 N.E.2d 353 (Ohio C.P. Franklin County, 1978). Indeed, if the purpose of the statute is to encourage doctors to evaluate their peers without fear of disclosure, that purpose would be hampered by public release of any proceedings .... The danger of inhibiting candid professional peer review exists by the mere potential for disclosure. Any possibility that proceedings might be discoverable at a future date . . . presents a risk that a doctor will be reluctant to provide the meaningful peer review contemplated by the statute. The overriding importance of these review committees to the medical profession and the public requires that doctors have unfettered freedom to evaluate their peers in an atmosphere of complete confidentiality. No chilling effect can be tolerated if the committees are to function effectively.” Morse v. Gerity, 520 F. Sup. 470, 472 (1981).

In enforcing the plaintiffs subpoena, the majority’s reliance on Commissioner v. William W. Backus Hospital, 40 Conn. Sup. 188, 485 A.2d 937 (1984), is misplaced. That case involved an investigation of a physician, whereas, here, we are concerned with the investigation of a dentist. This seemingly unimportant distinction takes on great significance when General Statutes §§ 38-19a (d), 1-19a and 19a-14d are considered in conjunction with each other. Statutes are to be read together to form one consistent body of law. McKinley v. Musshorn, 185 Conn. 616, 623, 441 A.2d 600 (1981); Budkofsky v. Commissioner of Motor Vehicles, 177 Conn. 588, 592, 419 A.2d 333 (1979). The effect of these three statutes when read together is that records of all health department investigations become public one year after their initiation, except those of physicians which appear to remain immune from disclosure in perpetuity. Thus, the members of the Backus medical peer review committee were not confronted with the eventual public disclosure of their deliberations. Lacking the benefit of such a perpetual privacy shield, it is clear that dental peer review proceedings implicate considerations quite distinct from those of their medical review counterpart.

Determination of the issue now before the court on a technical definition of civil action emasculates the peer review statute. When interpreting a statute, the court should look beyond the literal meaning of its words to its history, the circumstances surrounding its enactment, the mischief it was designed to remedy and the policy underlying it. Board of Education v. Board of Labor Relations, 201 Conn. 685, 690, 519 A.2d 41 (1986). The majority’s narrow definition of civil action construes it in isolation from the scheme and purpose of the peer review program.

The position of the majority produces an anomalous result. It permits the dental peer review committee’s deliberation and records eventually to become public after subpoena by the health commissioner. At this point, the cat is out of the bag, so to speak. In a later civil action, however, § 38-19a (d) would preclude this information from being introduced into evidence and committee members would be prohibited from testifying as to the content of the committee proceedings. Statutes are not to be interpreted so as to produce a bizarre or unusual result. State v. Scott, 11 Conn. App. 102, 119, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987); Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398 (1985), aff’d, 200 Conn. 630, 636, 513 A.2d 52 (1986). Construing the statute to affirm quashing the commissioner’s subpoena avoids this bizarre result of attempting to close the barn door after the horse is stolen and plugs a hole in the confidentiality of the peer review system. Furthermore, affirmance of the trial court’s decision is consistent with the policy of not construing a statute in a manner that will thwart its purpose. Sutton v. Lopes, 201 Conn. 115, 121, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986); Breen v. Department of Liquor Control, 2 Conn. App. 628, 631, 481 A.2d 755 (1984).

Additionally, the position of the commissioner of health appears to be that the court must enforce his subpoena upon request. I do not agree. The pertinent part of General Statutes § 19a-14 (a) (10) provides: “If a person refuses to . . . produce any book, or record or document ... a judge of the superior court may make such order as may be appropriate to aid in enforcement of this section.” (Emphasis added.) It is elementary, with exceptions not applicable here, that the word may connotes discretionary action as contrasted with shall which implies a duty. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 202, 440 A.2d 286 (1982). In considering discretionary actions of the trial court, appellate review is limited to a determination of whether the trial court abused its discretion. Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985).

I recognize that the conflicting interests of the commissioner of health and the dental peer review committee requires a balancing of these interests by the trial court. “When a matter involving a difficult balancing process has been entrusted to the discretion of the trial court, the scope of appellate review is limited. In any such review ‘every reasonable presumption should be given in favor of the trial court’s ruling’; State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980); and we should reverse the trial court’s decision ‘only where abuse of discretion is manifest or where an injustice appears to have been done.’ State v. Johnson, [190 Conn. 541, 549, 461 A.2d 981 (1983).]” In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 714, 501 A.2d 377 (1985). In the present case, the trial court carefully weighed these conflicting interests and decided in favor of the peer review committee. I am unable to find manifest abuse of discretion or an injustice, either of which is a predicate to reversal of the trial court’s decision.

In exercising its discretion, the trial court carefully considered the failure of the commissioner to show that the material sought in the subpoena was not available elsewhere. I concur with this reasoning. The commissioner does not claim that the information sought in his subpoena could be obtained only by invasion of the peer review proceedings. Accordingly, the commissioner may subpoena the peer review members to appear and testify directly at the commissioner’s hearing. See Pisel v. Stamford Hospital, 180 Conn. 314, 317, 430 A.2d 1 (1980).

The trial court did not abuse its discretion when it quashed the subpoena and I would affirm its decision.

For the foregoing reasons, I dissent.

       Although the parties have not questioned our jurisdiction to hear this appeal, we address sua sponte whether the judgment appealed from is a final judgment. See Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 225, 429 A.2d 478 (1980). We conclude that it is.
      Ordinarily, discovery orders and the like are not final judgments for purposes of appeal. Id., 226; Holyoke Mutual Ins. Co. in Salem v. Papa, 13 Conn. App. 808, 534 A.2d 917 (1987). That rule clearly applies in civil actions where the discovery order is directed to one of the parties, because the aggrieved party may present the ruling of the court for review on appeal at the termination of the case. See Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., supra, 228.
      In this case, however, the only proceeding before the trial court involved the propriety of the investigative subpoena. That proceeding will not result in a later judgment from which the defendant can then appeal. Thus, this appeal falls within the first prong of the test of finality of judgment stated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983): “(1) where the order or action terminates a separate and distinct proceeding.” The court’s order quashing the plaintiffs subpoena terminated the separate and distinct judicial proceeding that was instigated solely to test the propriety of the administrative subpoena.

       General Statutes § 19a-14 (a) provides in relevant part: “The department of health services shall have the following powers and duties with

        regard to the boards and commissions listed in subsection (b) which are within the department of health services. The department shall: . . .
      “(10) Conduct any necessary review, inspection or investigation regarding qualification of applicants for licenses or certificates, possible violations of statutes or regulations, and disciplinary matters. In connection with any investigation, the commissioner of health services or said commissioner’s authorized agent may administer oaths, issue subpoenas, compel testimony and order the production of books, records and documents. If any person refuses to appear, to testify or to produce any book, record or document when so ordered, a judge of the superior court may make such order as may be appropriate to aid in the enforcement of this section . . . .”

       General Statutes § 38-19a (d) provides: “The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings; provided the provisions of this subsection shall not preclude (1) in any civil action, the use of any writing which was recorded independently of such proceedings; (2) in any civil action, the testimony of any person concerning the facts which formed the basis for the institution of such proceedings of which he had personal knowledge acquired independently of such proceedings; (3) in any health care provider proceedings concerning the termination or restriction of staff privileges, other than peer review, the use of data discussed or developed during peer review proceedings; or (4) in any civil action, disclosure of the fact that staff privileges were terminated or restricted, including the specific restrictions imposed, if any.”

       The defendant also argues that we need not reach the issue of whether General Statutes § 38-19a (d) shields the committee’s records from the plaintiff’s subpoena, because the trial court did not decide that issue but merely exercised its discretion to decline to enforce the subpoena pursuant to General Statutes § 19-14 (a) (10). This argument mischaracterizes the theory on which the case was tried and decided by the trial court. The trial court stated the claim of the defendant as follows: “The defendant claims the Peer Review Committee is protected by immunity according to Conn. Gen. Stats. § 38-19a.” The court stated the issue before it as “whether the proceeding in the hands of the Tolland County Peer Review Committee is protected from the demands of the Commissioner by immunity.” We decide this case on the theory on which it was tried and decided in the trial court. Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 62, 539 A.2d 614 (1988).

       R. Brunell, “Connecticut’s Peer Review Immunity Statute: A Legislative History of P.A. 76-413,” Connecticut Medicine (September 1979).

       General Statutes § 38-19a (d) provides: “The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings; provided the provision of this subsection shall not preclude (1) in any civil action, the use of any writing which was recorded independently of such proceedings; (2) in any civil action, the testimony of any person concerning the facts which formed the basis for the institution of such proceedings of which he had personal knowledge acquired independently of such proceedings; (3) in any health care provider proceedings concerning the termination or restriction of staff privileges, other than peer review, the use of data discussed or developed during peer review proceedings; or (4) in any civil action, disclosure of the fact that staff privileges were terminated or restricted, including the specific restrictions imposed, if any.”
      The pertinent part of General Statutes § 1-19 (a) provides: “Except as otherwise provided by any federal law or state statute, all records maintained are kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records . . .

      The pertinent part of General Statutes § 19a-14d provides: “All records obtained by the department in connection with any investigation of a person or facility over which the department has jurisdiction under this chapter, other than a physician . . . shall not be subject to the provisions of § 1-19 for a period of one year from the date of the petition or the event initiating such investigation or until such time as the investigation is terminated . . . (Emphasis added.)

       This may account for the apparent lack of vigorous opposition by the Backus peer review committee. No appearance was filed on behalf of the defendants in that case; Commissioner v. William W. Backus Hospital, 40 Conn. Sup. 188, 485 A.2d 937 (1984); leaving unanswered the question of how the defendants presented their contention and arguments to which the court referred.


author: Norcott, J.

text:
    State of Connecticut v. Thomas Speers State of Connecticut v. William George
    (6385)
    (6738)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued November 18, 1988
    decision released March 7, 1989

      Timothy C. Moynahan, with whom, on the brief, were John M. Loconsolo, Jr., and Theresa M. Dalton, for the appellant (defendant in the first case).

      Frederick D. Paoletti, Jr., with whom, on the brief, were John M. Loconsolo, Jr., Timothy C. Moynahan and Theresa M. Dalton, for the appellant (defendant in the second case).

      James K. Robertson, Jr., special assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Norcott, J.

The defendants, Thomas W. Speers and William George, appeal from judgments of conviction following their conditional pleas of nolo contendere to the crimes of gambling and professional gambling in violation of General Statutes § 53-278b (a) and (b) and transmitting or receiving gambling information by telephone in violation of General Statutes § 53-278d (a). They claim the trial court erred in denying their motion to suppress evidence obtained through a wiretap investigation, and their motion to dismiss the charges against them, (1) by determining that the defendants did not prove that allegedly false statements and misleading omissions, made by an affiant to obtain approval of a wiretap application, voided the basis for probable cause to issue the arrest warrant, and (2) by refusing to admit into evidence, during a Franks hearing, documents concerning the allegedly false information provided by the warrant application affiant, Lieutenant Thomas R. Brown of the Waterbury police department. They also claim that their inability to cross-examine Brown constitutes a violation of their constitutional right to confrontation. We find no error.

The record reveals the following facts. On March 15, 1985, the state’s attorney for the judicial district of Waterbury applied to a panel of judges, by authority of General Statutes § 54-41b, for an order authorizing interception of the telephonic communications of the defendants. The application was accompanied by the supporting affidavits of Connecticut state police Detective Ronald W. Kamens and Brown, alleging that the defendants were engaged in professional gambling. By-order dated March 19, 1985, the three judge panel authorized a limited telephonic interception for a period of fifteen days. On the basis of information obtained through the wiretap, the defendants were arrested pursuant to warrants issued on May 2, 1985.

Following the defendants’ arrests, Brown was arrested and charged with perjury for allegedly falsely stating in the affidavit in support of the wiretap application that the informant who had supplied him with information about the defendants’ illegal activities had previously given him information that had resulted in two arrests and two convictions. The defendants filed a motion to suppress the evidence obtained through the wiretap and a motion to dismiss the charges against them. They claimed that the arrest warrant was invalid because Brown’s statement regarding the informant was false and intentionally or recklessly made and because he had omitted significant facts from the affidavit. On July 21, 1987, the trial court granted the defendants’ motion for an evidentiary hearing as provided by Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and State v. Dolphin, 195 Conn. 444, 456-57, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). At the conclusion of the hearing, the court denied the defendants’ motions to suppress and dismiss, concluding that the defendants had failed to prove, by a preponderance of the evidence, that Brown’s statement was false and was made intentionally or recklessly or that any omissions materially affected the accuracy of the affidavit. The court also concluded that the defendants had failed to prove that the warrant application, even when viewed without the challenged statement by Brown, and considering the alleged omissions, was insufficient to establish probable cause. The defendants withdrew their pleas of not guilty, pleaded nolo contendere, and appealed the trial court’s rulings.

I

The defendants first claim that the trial court erred in determining that they had failed to prove that Brown’s statement regarding the informant was false and made intentionally or recklessly, that there were material omissions and that there was insufficient other information to support the approval of the wiretap request.

After the trial court granted the defendants a Franks hearing, it became the defendants’ burden to establish, by a preponderance of the evidence, either that Brown deliberately falsified information contained in the wiretap affidavit or prepared the affidavit with reckless disregard for the truth, and that any intentionally false statements or material omissions were necessary to a finding of probable cause. See State v. Telesca, 199 Conn. 591, 608, 508 A.2d 1367 (1986).

Brown, exercising his privilege against compulsory self-incrimination, refused to testify at the Franks hearing. The defendants, in attempting to prove that the statement by Brown was false or recklessly made, principally depended upon the testimony of the informant, Robert “Gus” Fennessy, from whom Brown had received information about the defendants’ gambling. Fennessy testified that, inter alia, he had not served as an informant against others in the past and that no information that he may have passed on to police had ever contributed to arrests and convictions. The court, however, in its memorandum of decision, discredited Fennessy’s testimony and, relying upon a number of other factors, elicited through testimony at the hearing, held that the defendants had failed to prove that it was more likely than not that Brown’s statement was false and intentionally or recklessly made.

In a suppression hearing, the trial court serves as the trier of fact, and it is axiomatic that “ ‘[t]he trier of the facts determines with finality the credibility of witnesses and the weight to be accorded their testimony. “We cannot retry the facts or pass upon the credibility of the witnesses.” ’ State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978), [quoting Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).]” State v. Kimbro, 197 Conn. 219, 222-23, 496 A.2d 498 (1985). Our role as a reviewing court is limited to deciding whether the trial court’s decision was clearly erroneous in light of the evidence in the whole record. Practice Book § 4061; State v. Enright, 17 Conn. App. 142, 146, 550 A.2d 1095 (1988).

A review of the record and transcript of testimony given by the witnesses called at the Franks hearing reveals an adequate basis for the trial court’s decision. Detective Kamens, the other affiant in the wiretap application, testified that Brown had told him that Fennessy’s testimony had led to two arrests and convictions in the past, and that he believed that Brown’s statement was reliable. Lieutenant Bruce Haines of the state police also testified that when he met with Brown and state’s attorney John Connelly at the time of the wiretap investigation, he stated that he did not believe Brown was dishonest. Although the defendants asserted that Brown’s motive for intentionally making a false statement and omitting material facts from his affidavit was a personal vendetta against Speers, Fennessy admitted that, although Brown may have had a personal motive for having Speers arrested, he also had a professional motive to see that a person he suspected of involvement in criminal activity was arrested. The transcript strongly supports the trial court’s conclusion that Fennessy’s testimony, on which the defendants so heavily relied, was equivocal at best and that he often contradicted statements he had made earlier in the hearing and before the grand jury. On this record, we conclude that the trial court had a sufficient basis upon which to discredit Fennessy’s testimony and, without credible evidence that Brown’s statement was false and intentionally or recklessly made, did not err in concluding that the defendants failed to meet their burden of proof.

The defendants also alleged that Brown omitted material information from his affidavit. They claim that he failed to inform the wiretap panel (1) of the existence of a tape of a conversation in which Fennessy allegedly placed bets with Speers, (2) that Brown, as Fennessy’s landlord, permitted him to live rent free, (3) of Brown’s alleged personal grudge against Speers, and (4) that Brown gave Fennessy money from the city of Waterbury with which to place bets with Speers. “Although the court in Franks mentioned only ‘false statements . . . included ... in the warrant affidavit,’ material omissions from such an affidavit also fall within the rule if the defendant proves that the omissions were knowingly and intentionally made, or were made with reckless disregard for the accuracy of the affidavit. United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980).” State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

The trial court found that concern for the personal safety of the informant gave the police a legitimate reason for withholding the tape. The state has a legitimate interest in protecting informants. See State v. Richardson, 204 Conn. 654, 657, 529 A.2d 1236 (1987). Given the other information provided in the affidavit, and the fact that the trial court credited Kamen’s testimony that Brown had decided not to submit the tape when Kamens had told him he would be risking exposing the identity of his informant, we find no error in the trial court’s determination that the tape was not necessary to a finding of probable cause.

As to the claims that Brown forgave Fennessy’s payment of back rent and that Brown had a personal grudge against Speers, the trial court determined that those allegations were not proved by a preponderance of the evidence. Our review of the transcript supports this holding. As the court notes, Fennessy’s testimony at the hearing that Brown forgave rent payments was equivocal and contradicted his testimony before the grand jury. At various times he testified that he still owed Brown rent money, that he did not pay him because he did not have the money, and that he had paid Brown but the check was returned for insufficient funds. The court did not find his testimony at the hearing credible.

The defendants also alleged that Brown had a personal grudge against Speers that arose when David Linsky, for whom Brown had cosigned a loan, allegedly defaulted on the loan. The defendants claimed that Linsky’s default was caused by Speers’ failure to pay a losing illegal bet he had placed with Linsky. Linsky’s testimony at trial, which the trial court found credible, was that he had never taken a bet from Speers and that, although he may have been late on several payments, he had never defaulted on the loan. Again, we defer to the trial court’s assessment of the credibility of witnesses and find no error in the court’s ruling that these allegations were not proved by a preponderance of the evidence.

The trial court also found that the failure to include in the affidavit the fact that Fennessy had used city money to place bets did not materially affect the validity of the affidavit. The defendants did-not present the trial court with any support for their claim that this information was material to a determination of probable cause. On our review of this claim, we conclude that the trial court did not err in determining that the defendants failed to meet their burden of proving that this omission materially affected the validity of that affidavit.

The third part of the defendants’ claim of error is the assertion that the trial court erred when it determined that, regardless of the alleged false statement or omissions by Brown, the affidavit was sufficient to establish probable cause that the defendants were involved in illegal gambling activities. The defendants assert that the requisite elements for determining probable cause have not been met. We disagree.

Our Supreme Court has held that the standard for determining probable cause as set out in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), applies to cases involving the sufficiency of affidavits for wiretap investigations. See State v. Telesca, supra, 601; State v. Ross, 194 Conn. 447, 463, 481 A.2d 730 (1984). Under the Aguilar-Spinelli standard, “the wiretap panel that issues the wiretap order must be ‘ “informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.” ’ State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984) . . . State v. Jackson, 162 Conn. 440, 446, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972).” (Citations omitted.) State v. Telesca, supra, 601-602.

We conclude that the trial court properly held that the Brown affidavit contained information sufficient to satisfy the first or “basis of knowledge” element of the Aguilar-Spinelli standard. The affidavit declares that Fennessy had been placing bets with the defendant Speers for at least two or three months, using one of Speers’ telephone numbers. The affidavit contains detailed information, including telephone numbers used and specific times and dates related to sports wagering, and identifies college basketball teams on which the informant placed bets with the defendants. This information satisfied the requirement that the affidavit “relate sufficient facts from which a judge reasonably could conclude that the informants based their allegations of criminal activity on sufficient underlying circumstances.” State v. Delmonaco, supra, 339.

We also conclude that the trial court properly determined that the second or “reliability” element of the standard was met, because sufficient evidence of the circumstances from which Brown concluded that Fennessy was a credible informant, or that his information was reliable, was presented to the wiretap panel. The second part of the Aguilar-Spinelli standard is satisfied if the affidavit includes sufficient evidence showing either why the affiant concluded the informant was credible, or that the information was reliable. An affiant is not required, however, to convince a wiretap panel of an informant’s credibility by a display of unequivocal proof based on specific details. “An affiant need not recite the precise factors on which he judged his informant credible and reliable. Aguilar v. Texas . . . requires only that the magistrate be informed of some of these underlying circumstances. If they are apparent to the commonsense reader of the affidavit — whether by necessary implication or recital — it is enough.” State v. Jackson, supra, 452-53. We note that, on the basis of the information provided by the affiants, the three judge wiretap panel unanimously decided to issue the wiretap order and concluded that the application met the requirements of General Statutes § 54-41c. The trial court proceeded from a presumption that the affidavits supporting the search warrant were valid; State v. Dolphin, supra, 457; restricted its review to the record before the wiretap panel; State v. Ross, 194 Conn. 447, 459, 481 A.2d 730 (1984); and accorded deference to the decision made by the wiretap panel. Id.; State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

After excising Brown’s allegedly false and allegedly intentionally or recklessly made statement that the informant’s past information had led to two arrests and convictions, the trial court found that Brown’s remaining affidavit statements — (1) that he had known Fennessy for about four years; (2) that Fennessy had no arrest record; and (3) that Fennessy was gainfully employed and enjoyed a good reputation within the community in which he lived — were sufficient indicia of reliability upon which the wiretap panel could find the affidavit established that the informant was credible. The court also determined that Fennessy’s information was reliable on the basis of statements in the affidavit that Fennessy had provided Brown with information in the past that had proved both truthful and accurate, that Fennessy was knowledgeable in the area of sports betting, and that Fennessy himself had engaged in illegal gambling with the defendants.

Given some of the events that occurred following Speers’ arrest such as the labeling of Fennessy as an informant, Fennessy’s admission of having felt intimidated by Speers’ driving him to a meeting with state police officers at which he was questioned about the information he had given Brown about Speers, and Fennessy’s arrest by the state police, we do not find it implausible that the trial court would discredit Fennessy’s testimony for the purpose of deciding whether Brown’s statement was false and intentionally or recklessly made, on one hand, and, on the other, find that the wiretap panel had sufficient indicia of reliability to credit Brown’s statement that Fennessy was, in Brown’s estimation, a reliable informant. We conclude that the trial court was correct in determining that, even absent the allegedly false statements in the affidavit, there was sufficient information to provide a basis for the wiretap panel to determine that the affidavits satisfied the second element of Aguilar-Spinelli and the requirements of General Statutes § 54-41c, and to approve the wiretap application.

II

The defendants also claim that the trial court erred in failing to take judicial notice of Brown’s perjury case court file after Brown refused to testify. This argument is without merit.

During the suppression hearing, the defendants sought to introduce the entire case file pertaining to Brown’s perjury arrest. In addition to general information concerning Brown’s arrest, this file contained the transcripts of Brown’s testimony before the grand jury and a lengthy affidavit by Inspector Frank D’Amico of the chief state’s attorney’s office that was used to establish probable cause to arrest Brown and contained references to the grand jury testimony of others. The prosecution objected to the admission of the file, arguing that it contained hearsay and included conclusory and irrelevant information. The court sustained the objection, but stated that because Brown was not available it would allow the introduction of the transcript of his testimony before the grand jury. The defendants declined the court’s offer and again requested that the entire case file be introduced. The court refused, and the defendants withdrew their request. The defendants have not provided any legal authority supporting the admission of the file but argue only that the court should have admitted it because of the unique situation in which the defendants found themselves after Brown refused to testify.

A court has the power to take judicial notice of a file in another pending court case. State v. Bunkley, 202 Conn. 629, 648, 572 A.2d 795 (1987). A trial court, however, also has broad discretion in determining the admissibility of evidence. Id., 648-49. Trial court rulings on evidence are accorded great deference on appeal, and such rulings will be disturbed only upon a showing of clear abuse of discretion. State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986). Our review of the record leads us to conclude that the trial court did not err in refusing to admit the entire case file because it contained inadmissible hearsay and double hearsay.

Ill

The defendants also argue, for the first time on appeal, that their inability to cross-examine their chief accuser, Brown, violated their sixth amendment right of confrontation and should have mandated a dismissal of all charges. Because the defendants failed to raise the argument at trial and do not seek review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), or claim that the ruling constituted plain error reviewable under Practice Book § 4185, we decline to review the claim. See State v. Maisonet, 16 Conn. App. 89, 546 A.2d 951 (1988).

There is no error.

In this opinion the other judges concurred.

       The same criminal investigation ied to the arrests of both defendants. Their appeals were argued together and raise the same claims of error.

       General Statutes § 54-94a and Practice Book § 4003 (a) authorize defendants to condition their entry of a plea of nolo contendere on the right to take an appeal from the trial court’s denial of a motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss. The issue before this court is “limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss.” Practice Book § 4003 (a).

       “[General Statutes] Sec. 53-278b. gambling; professional gambling; penalties, (a) Any person who engages in gambling, or solicits or induces another to engage in gambling, or is present when another person or persons are engaged in gambling, shall be guilty of a class B misdemeanor; provided natural persons shall be exempt from prosecution and punishment under this subsection for any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only and in which no person is participating, directly or indirectly, in professional gambling.
      “(b) Any person who engages in professional gambling shall be guilty of a class A misdemeanor.”

       General Statutes § 53-278d provides in pertinent part: “(a) Any person who knowingly transmits or receives gambling information by telephone, telegraph, radio, semaphore, or other means, or knowingly installs or maintains equipment for the transmission or receipt of gambling information, shall be guilty of a class A misdemeanor.”

        Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

       In their briefs, the defendants argue that the trial court’s actions in granting the Franks hearing, and then ultimately deciding that Brown’s alleged false statement was not necessary for a finding of probable cause, are contradictory. Although it is true that suppression hearings under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), are commonly granted when “the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and . . . the allegedly false statement is necessary to the finding of probable cause”; (emphasis added) id., 155-56; it is also true that in this case the trial court granted the hearing expressly reserving any determination of whether the challenged statement was false and whether the statement substantially affected the basis for a finding of probable cause.

       We specifically note the trial court’s reference in its memorandum of decision to Fennessy’s testimony about informing police, including Brown, of gambling activity taking place at the Mattatuck Newsstand when Fennessy was a bartender. At the suppression hearing, Fennessy claimed he had never provided the police with such information. When shown a grand jury transcript of his testimony, however, he reversed his answer and responded to a number of questions about his involvement in that situation.

       In addition to claiming that the omitted taped conversation was material to the affidavit, the defendants cite General Statutes § 54-41c (13) in support of their argument that the tape should have been presented to the wiretap panel with the affidavit. The defendants have done little more than cite the statutory provision. Because the issue has not been properly briefed, we decline to address the defendants’ statutory claim. See Morning Star Holding Co. v. Kostopoulos, 12 Conn. App. 593, 595, 533 A.2d 569 (1987).

       In State v. Telesca, 199 Conn. 591, 601 n.7, 508 A.2d 1367 (1986), the court noted that the statute listing the requirements of a proper wiretap application, now General Statutes § 54-41c, “incorporates the standards enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).”

       General Statutes § 54-41c provides: “Each application for an order authorizing the interception of a wire communication shall be made in writing upon oath or affirmation to a panel of judges. Each application shall include the following information: (X) The identity of the applicant and his authority to make such application; (2) the identity and qualifications of the investigative officers or agency for whom the authority to intercept a wire communication is sought; (3) the identity and qualifications of the investigative or law enforcement officers to whom disclosure of the contents of any intercepted wire communication or evidence derived therefrom might be made; (4) a statement of the use to which the contents of any intercepted wire communication or any evidence derived therefrom will be put; (5) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his reasonable belief that the wire communication of a particularly described person will constitute evidence of a crime enumerated in section 54-41b that has been or is being committed or that such communication will materially aid in the apprehension of the perpetrator of such crime and that an order should be issued, including (A) details as to the particular offense that has been or is being committed, (B) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (C) a particular description of the type of communications sought to be intercepted, (D) the identity of the person, if known, who has committed or is committing the offense and whose communications are to be intercepted, (E) the time and date when the facts and circumstances relied upon by the applicant were first received by him or by the investigative or law enforcement officer conducting the investigation, whichever is earlier, (F) the way in which the intercepted wire communication will constitute material evidence of the particularly described offense or will materially aid in the apprehension of the perpetrator of such offense, (G) the hours of the day or night during which wire communication may be reasonably expected to occur; (6) a full and complete statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ; (7) a statement of the period of time for which the interception is required to be maintained. No order authorizing or approving the interception of a wire communication shall be issued if the facts and circumstances relied upon by the applicant were discovered more than twenty days next preceding the date of the application. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter; (8) a full and complete statement of the facts concerning all previous applications known to the individual making the application, made to any panel of judges, for authorization to intercept, or for approval of interceptions of, wire communications involving any of the same persons, facilities or places specified in the application, and the action taken by the panel on each such application; (9) a statement that the wire communications sought are material to a particularly described investigation or prosecution and that such communications are not legally privileged; (10) if it is reasonably necessary to make a secret entry upon a private place or premises in order to install an intercepting device to effectuate the interception, a statement to that effect and to the effect that no practicable alternative method of executing the order which will preserve the secrecy of its execution exists; (11) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results; (12) where the application is for an order authorizing interception in excess of thirty-five orders previously issued by all panels in a calendar year, a statement setting forth the nature of the emergency situation which may result in imminent peril to the public health, safety or welfare, and the nature of that imminent peril, which requires the issuance of an additional interception order. The state’s attorney shall inform the governor and the joint standing committee of the general assembly having cognizance of matters relating to criminal law and procedure of the nature of the emergency situation which may result in imminent peril to the public health, safety or welfare, and the nature of that imminent peril; (13) such additional testimony or documentary evidence in support of fact in the application as the panel of judges may require. Allegations of fact in the application may be based either upon the personal knowledge of the applicant or upon information and belief. If the applicant personally knows the facts alleged, it must be so stated. If the facts establishing such probable cause are derived in whole or part from the statements of persons other than the applicant, the sources of such information and belief shall be either disclosed or described, and the application shall contain facts establishing the existence and reliability of the informant, or the reliability of the information supplied by him. The application shall also state the basis of the informant’s knowledge or belief. If the applicant’s information and belief are derived from tangible evidence or recorded oral evidence, a copy or detailed description thereof shall be annexed to or included in the application. Affidavits of persons other than the applicant may be submitted in conjunction with the application if they tend to support any fact or conclusion alleged therein. Such accompanying affidavits may be based either on personal knowledge of the affiant, or information and belief with the source thereof and reason therefor specified.”