author: Foti, J.

text:
    State of Connecticut v. Shawn Robinson
    (10960)
    Foti, La very and Freedman, Js.
    Argued June 1
    decision released August 10, 1993

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a (a). He was sentenced to a term of twenty years imprisonment, to be served consecutive to a sixty-two year sentence previously imposed for prior convictions for which the defendant was already incarcerated. On appeal, the defendant claims that the trial court improperly (1) refused to dismiss the information against him for lack of jurisdiction, (2) failed to enforce an order of sequestration, (3) denied his motion for examination pursuant to General Statutes § 17a-566, (4) granted the state’s motion in limine, (5) denied him an opportunity to examine jurors who were exposed to allegedly inflammatory media coverage during his trial, and (6) instructed the jury on reasonable doubt. The defendant also claims that he was denied his fundamental right to a fair trial because of alleged prosecutorial misconduct during cross-examination of the defendant and during closing argument. We reverse the judgment of conviction and remand for a new trial.

The jury reasonably could have found the following facts. On January 11, 1990, the defendant, an inmate confined at the community correctional center in New Haven, was brought to the holding pen in the center’s admitting and processing area for the purpose of being transported to court in Meriden. Because the defendant had created a disturbance at court the previous day, the sheriff’s department employees assigned to that court had requested that the defendant be transported in leg irons and belly chains. At approximately 10:15 a.m., transportation sheriffs attempted to place the restraints on the defendant. The defendant refused to cooperate. Correction officer Jeffrey Higgins then entered the holding pen and explained to the defendant that he had to comply with this requirement. The defendant still refused, so Higgins called fellow officer Donald Gladue for assistance. Pursuant to department policy, Lieutenants John Casaie, James Foley and James Huckaby also responded to Higgins’ call, and the three lieutenants attempted to persuade the defendant to comply with the restraint order.

The defendant became increasingly agitated. At one point, he was given a direct order to place his hands on the wall so that he could be handcuffed. He refused and placed his hands in his pockets. He then refused, when asked, to remove his hands from his pockets. Casaie, the shift supervisor, then called for a plexiglass shield to protect the officers from injury. As the guards backed out of the holding pen, the defendant pulled his right hand out of his pocket, lunged at Huckaby and attempted to stab him with a shank constructed from the metal arch support of an inmate-issue shoe. As he did this, the defendant yelled, “Fuck you. I will kill you.” Huckaby moved; Gladue was slashed in the arm by the shank and began to bleed heavily. Foley then sprayed mace at the defendant, whom the officers wrestled to the ground. In thrashing about with the shank in his hand, the defendant jabbed Higgins in the stomach repeatedly and slashed Gladue’s back, side, leg and buttocks. The defendant was eventually restrained, and Foley pried the shank from his hand. Captain Dennis Barile arrived and directed that the defendant be placed in isolation, in four-point restraints.

Gladue was treated at a hospital, receiving eleven stitches on his arm, and he has a permanent scar. Higgins was treated at the jail infirmary for numerous stomach lacerations.

I

We first address the defendant’s claim that the court lacked jurisdiction.

An arrest warrant was signed by a judge of the Superior Court on March 5, 1990, charging the defendant with the crimes for which he was subsequently prosecuted. The return of the warrant indicates that the defendant was arrested on June 20,1990, and that at that time the arresting officer had read the warrant and information to the defendant. The defendant was arraigned on the same day.

Prior to trial, the defendant moved for dismissal of the charges against him. Specifically, he claimed that the state had failed to comply with Practice Book §§ 594 and 596 by not serving him personally with an arrest warrant and by omitting from the arrest warrant a statement regarding speedy service of the warrant.

After an evidentiary hearing, the court denied the defendant’s motion to dismiss. In its memorandum of decision, the court noted that the warrant contained no defects that would require dismissal. Citing State v. Fleming, 198 Conn. 255, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), the court concluded that, even if it assumed that the arrest had been illegal, no jurisdictional barrier prevented the defendant’s subsequent prosecution because the arrest did not impair the fairness of the prosecution.

The defendant now renews this jurisdictional claim. He argues that State v. Fleming, supra, does not control because he is not challenging the legality of his arrest but rather the state’s “fundamental failure to execute the legal documents required . . . to initiate prosecution.” This failure, he claims, precludes the initiation of criminal proceedings and makes the proceedings to which he was subjected void ab initio and coram non judice. Citing Allen v. Gray, 11 Conn. 95, 102 (1835), the defendant asserts that a criminal court’s jurisdiction consists of three elements, jurisdiction of the subject matter, of the person and of the process. He contends that he was not brought before the court solely by “legal process” and, therefore, the third element was lacking. The defendant states that his jurisdictional claim is “closely akin to a claim of a party in a civil proceeding where there is a failure of service, which is remedied by voiding the proceedings ab initio.”

“The Superior Court’s authority in a criminal case becomes established by the ‘proper presentment of the information . . . which is essential to initiate a criminal proceeding.’ Reed v. Reincke, 155 Conn. 591, 598, 239 A.2d 909 (1967).” State v. Carey, 222 Conn. 299, 306, 610 A.2d 1147 (1992). “If the court has jurisdiction of the subject matter, as it had in the present case, the rule is generally recognized that, if an accused person is physically before the court on a proper accusatory pleading, any invalidity in his original arrest is immaterial.” Reed v. Reincke, supra, 599. There is no question that this defendant was physically before the court on a proper accusatory pleading, which conferred subject matter jurisdiction upon the court.

The thrust of the defendant’s argument is that Practice Book §§ 594 and 596 create a mandatory procedure that the state must follow in order to initiate a criminal proceeding. He relies on State v. Cook, 183 Conn. 520, 441 A.2d 41 (1981). We are unpersuaded.

“In Cook, the defendant was arrested pursuant to a warrant for violating his probation. Section 943 at that time required arrest warrants to commence probation revocation proceedings, and Practice Book § 594 required that such warrants be signed by ‘the judicial authority.’ The defendant filed a motion to dismiss the revocation proceedings because the arrest warrant had not been signed by a judge.” State v. Carey, supra, 310. While § 594 may create a mandatory procedure that must be followed to initiate a proceeding for revocation of probation pursuant to Practice Book § 943; State v. Cook, supra, 523; “[a] probation revocation proceeding is not a stage of the criminal prosecution.” State v. Carey, supra, 309, citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). We are thus unconvinced that State v. Cook, supra, applies to the issue at hand.

Moreover, we cannot agree with the defendant’s claim that the time limitation “without undue delay” as stated in § 594 pertains to the actual arrest of the accused person. That phrase clearly refers to the speedy presentment of the accused to the judicial authority following the arrest. See A. Spinella, Connecticut Criminal Procedure (1985), c. II, § 3A (b). Practice Book § 596 would appear to apply to a person already in custody only insofar as it requires the service of a copy of the Warrant upon him followed by the specified applicable procedure. The trial court specifically found no defects in the warrant; despite the defendant’s contrary assertions, the return of the warrant indicated it had been properly served. We conclude that neither § 594 nor § 596 contains a mandatory requirement that, as applied to the facts of this case, affected the court’s jurisdiction over this defendant.

II

The defendant next claims that the trial court failed to enforce a sequestration order, thereby depriving him of a fair trial. We agree.

The facts relevant to this claim are as follows. On September 12,1991, before the commencement of trial, the parties obtained an order of sequestration for all witnesses. The defendant also filed a motion in limine to prevent any correction officer called as a witness from testifying in uniform rather than in civilian clothing. The court granted that motion.

On September 20, 1991, at the close of the state’s case, the defendant subpoenaed Mark Murray, a correction officer employed at Somers prison who had been guarding the defendant in court throughout the state’s case. The state, invoking the sequestration order, moved to preclude Murray as a witness. On the basis of the defendant’s representation that Murray’s proposed testimony was brief and unrelated to the state’s evidence, the court overruled the objection but directed that the defendant call Murray prior to any other defense witness. The defendant then requested that Murray be excluded from the courtroom following his testimony because “it would be prejudicial to [the defendant] to have his own witnesses then assume the role after they testify of one of the correction officers who is guarding him.” The court noted that the jury already had viewed Murray in his capacity as a correetion officer and declined to exclude Murray, reasoning that to do so would constitute undue interference with the security procedure implemented by Somers prison. The court suggested, however, that if the defendant chose not to call Murray immediately, he could call him when court resumed on the following Monday, September 23,1991, thereby allowing Murray to be reassigned, if possible, to another case. The defendant then elected to call Murray on September 23 rather than on September 20, because Murray was in uniform on September 20. Although the defendant complained that Murray’s continued presence in court on September 20 violated the sequestration order by enabling Murray to listen to the testimony of the defense witnesses, the court refused to exclude Murray.

On the same day, the defendant called Captain William King, who was employed at Somers prison and testified that the defendant had a minor laceration on his lip upon arriving at Somers on January 11, 1990. King also testified that he had documented the defendant’s appearance by taking four photographs, which were subsequently lost.

When the trial resumed on September 23,1991, the defendant called Murray, who testified that the defendant had arrived at Somers prison on January 11,1990, with a swollen lip and face, watery eyes, and a bloody shirt. On the next day of trial, the defendant noted that Murray and King were both in court guarding him, in violation of the sequestration order. Over the defendant’s objection, the court refused to exclude the officers.

Thereafter, the defendant called his father, Diago Robinson, Sr., also an inmate at Somers, as a witness. Robinson testified that he was in King’s office when King photographed the defendant. The defendant had previously admitted an alleged photocopy of these photographs, over the state’s objection. The defendant’s father testified that this photocopy had been given to him by the defendant for safekeeping on the day the photographs were taken.

On rebuttal, over the defendant’s objection, the state called King, who testified that the defendant’s father was not present when King had photographed the defendant, that the defendant was placed in isolation upon his arrival at Somers and therefore had no contact with any other inmate, including his father, following his arrival, and that inmates at Somers have access to cameras and photocopy machines.

“In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during . . . any part of the trial of such prosecution in which he is not testifying.” General Statutes § 54-85a; see also Practice Book § 876. The granting of an order on a request for sequestration is not discretionary. State v. Paolella, 211 Conn. 672, 681, 561 A.2d 111 (1989). “The purpose of a sequestration order is to prevent a witness from fashioning his testimony to correspond to the statements of others in the courtroom . . . thereby ensuring that a defendant receives a fair trial. If the trial court fails to observe its own sequestration order, the burden is on the party requesting sequestration to show prejudice.” (Citations omitted; internal quotation marks omitted.) Id., 680-81.

The defendant argues that the court’s sequestration order was violated on three occasions and that he was prejudiced each time: (1) by Murray’s presence in court during King’s defense testimony; (2) by the presence of both Murray and King after their testimony during the remainder of the defense case; and (3) by King’s giving of rebuttal testimony.

Our review of the record discloses that the defendant has failed to show prejudice in either of the first two occurrences. We note that the defendant himself may have violated the court’s sequestration order by failing to identify Murray as a potential witness until the commencement of his case.

We agree, however, with the defendant as to the third occurrence. King, a subpoenaed witness, was permitted to remain in the courtroom, guarding the defendant, throughout the testimony of defense witnesses, including that of the defendant and his father. The defendant properly objected that the state’s use of King as a rebuttal witness violated the sequestration order. King was able to listen to the testimony of both the defendant and his father and to rebut their testimony by specifically contradicting it. King admitted having taken pictures that depicted the defendant’s condition, which were subsequently lost. He also testified, however, that inmates have access to cameras, thereby supporting the state’s charge that the defendant or his father had fabricated evidence. King further disputed the testimony of the defendant’s father that he had been present when the defendant was photographed and that he had had an opportunity to see the defendant on the day that the defendant came to Somers. King was also present during Murray’s testimony and disputed Murray’s assessment of the defendant’s physical condition.

The defendant’s claim does not involve the violation of a constitutional right; therefore, the burden rests on him to show the harmfulness of the court’s permitting King to testify on rebuttal. See State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The court’s action was harmful if it was likely to have affected the jury’s verdict. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982). King’s rebuttal testimony went to the heart of the defense. His testimony directly contradicted that of the defense witnesses. The inconsistency between his testimony and theirs was not simply “marginal in the extreme”; State v. Stovall, 199 Conn. 62, 69, 505 A.2d 708 (1986); the difference was striking and, therefore, “likely to affect the result.” See State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). We conclude that, as a consequence of King’s rebuttal testimony, the defendant was prejudiced and deprived of a fair trial.

Ill

The defendant’s third claim is that the trial court improperly denied his motion for examination pursuant to General Statutes § 17a-566. We agree.

At the time of sentencing, the defendant personally requested an examination pursuant to the statute. The state objected to the request, citing the defendant’s inappropriate behavior in the courtroom and the remoteness of the mental status report. In denying the defendant’s motion, the court indicated that the defendant would have to serve his prior sentences, totaling over sixty years, before the sentence in the present case would be effectuated. The court viewed that as a factor to be considered in making what it otherwise recognized as a decision involving the exercise of discretion. After reviewing the presentence report, the court improperly concluded that it could not order an examination pursuant to § 17a-566 because the defendant was a sentenced prisoner. The court therefore did not exercise its discretion to grant or to deny the request for an examination.

“Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) State v. Polanco, 26 Conn. App. 33, 41, 597 A.2d 830, cert. denied, 220 Conn. 926, 598 A.2d 367 (1991), quoting State v. Battle, 170 Conn. 469, 476, 365 A.2d 1100 (1976). Since the court incorrectly concluded at the onset that it had no power to order an examination, it never reached the point of exercising its discretion. While every reasonable presumption will be made in favor of the trial court’s proper exercise of its discretion; State v. Graham, 21 Conn. App. 688, 703, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990); we cannot do so where the court has failed to exercise that discretion. See State v. O’Neill, 200 Conn. 268, 274, 511 A.2d 321 (1986). Inherent in the concept of judicial discretion is the idea of choice and a determination between competing considerations. State v. Bergin, 214 Conn. 657, 683, 574 A.2d 164 (1990). A court’s discretion must be informed by the policies that the relevant statute is intended to advance. In re Sheldon G., 216 Conn. 563, 584, 583 A.2d 112 (1990).

Here, the trial court denied the defendant’s motion not on the basis of an “exercise of discretion” but because the court improperly determined that the defendant’s status precluded its ordering the requested examination. Under the circumstances, therefore, we must conclude that this denial was improper.

IV

The defendant’s fourth claim is that the trial court improperly granted the state’s motion in limine, thus precluding testimony about prior incidents involving the defendant and a correction officer. We disagree.

The facts relevant to this claim are as follows. During the state’s case-in-chief, Foley testified on cross-examination that on January 11,1990, Officer Thomas Mullhall had been summoned to the admitting and processing room along with other correction officers who were responding to Higgins’ call for assistance. Mullhall, therefore, was present when the defendant allegedly assaulted the guards inside the holding pen. Foley further testified that Mullhall and the defendant had been involved in a physical altercation on January 3, 1990, approximately one week prior to the present offense. Mullhall did not testify at trial.

Prior to the commencement of the defendant’s case, the state learned that the defendant had subpoenaed certain witnesses and documents, all pertaining to the January 3 incident. The state filed a motion in limine to exclude this evidence at trial on relevancy grounds. During argument on the motion, the defendant represented that he did not plan to delve into the particulars of the January 3 incident, but merely sought to establish that a prior altercation had occurred and that on March 6, 1990, he had filed a complaint with the state police pertaining to the incident. The defendant argued that, since Mullhall had been present at the January 11 incident, evidence of this earlier altercation with Mullhall was relevant to demonstrate motive, interest and bias among the correction officers at the January 11 incident and to attack the credibility of those officers who had already testified for the state at this trial.

The court, in granting the motion, ruled that evidence of the January 3 incident was not probative of what had occurred on January 11, and that its admission would confuse the jury by opening the door to a host of collateral issues involving not only the January 3 incident but also numerous other prior physical altercations that had occurred between the defendant and correetion officers. The defendant preserved this claim by making an offer of proof outside the jury's presence.

The defendant proffered the following evidence. Thomas Devoren, a state police detective, confirmed that on March 6, 1990, the defendant had spoken to' him and filed a complaint against Mullhall pertaining to the incident on January 3, 1990. Maryann Grate, a nurse at the correctional center in New Haven, testified that she had witnessed the January 3 incident. She described it as a “playful encounter,” not an altercation. She noted that Mullhall had initiated the encounter and that at one point he had grabbed the defendant around the neck. Following Grate’s testimony, the defendant admitted a copy of the January 3,1990 incident report prepared by Foley, which contained Mull-hall’s written statement. In that statement, Mullhall complained that the defendant had disobeyed a direct order and then “charged” him in a “hostile” manner. Peter Hall, an inmate at Somers prison, testified that on January 2, 1990, while he and the defendant were confined at the correctional center in New Haven, the defendant had witnessed Hall’s being jumped, beaten and kicked by Mullhall and other correction officers following an argument between Hall and Mullhall over an electric fan. The defendant then testified that on January 3, Mullhall spotted him in the hallway without a pass and that an argument ensued. He claimed that Mullhall called him a “nigger” and then jumped on him and beat and kicked him.

The defendant argued that all of the above evidence was necessary to counter the state’s evidence by establishing the collective bias and motive of correction personnel. He also claimed that the inconsistencies between Grate’s account of the January 3 incident and the evidence contained in the institutional report of the same incident filed by Foley indicated the existence of an institutional “cover-up.” On the basis of this supposition, the defendant claimed that this “substantive evidence” supported his defense that the correction officers had been the aggressors during the January 11 incident and that the present prosecution was the product of a similar cover-up. The court disagreed and sustained its ruling on the motion in limine.

The defendant now claims that the exclusion of his proffered evidence violated his constitutional right to present a defense and to confront the witnesses against him. The state argues that the trial court properly excluded the evidence as irrelevant and collateral. In the alternative, the state contends that even if the evidence was improperly excluded, this exclusion was merely harmless error.

It is well established in Connecticut that trial courts have wide discretion in ruling on the relevancy of evidence. State v. Varricchio, 176 Conn. 445, 450, 408 A.2d 239 (1979). Because judicial discretion is involved in such a ruling, our review focuses on whether the court reasonably exercised its discretion to exclude evidence that would introduce foreign or collateral issues into the case. State v. Dortch, 139 Conn. 317, 325, 93 A.2d 490 (1952). In our review of these discretionary evidentiary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. State v. Weidenhof, 205 Conn. 262, 278, 533 A.2d 545 (1987).

The theory of defense was that the correction officers, not the defendant, had been the aggressors in the January 11, 1990 incident and that a “correctional cover-up” had taken place. The purpose of the proffered evidence was to “demonstrate the core of bias against him, and the basis of the interest, and motive underlying testimony of the state’s witnesses.”

“Impeachment of a witness for bias is a matter of right.” State v. Shipman, 195 Conn. 160, 163, 486 A.2d 1130 (1985). Evidence tending to indicate malice or ill will toward another is generally admissible in situations where states of mind are material. State v. Crowley, 22 Conn. App. 557, 559, 578 A.2d 157, cert. denied, 216 Conn. 816, 580 A.2d 62 (1990). The bias or prejudice of a witness may properly be shown either by cross-examination or by testimony of other witnesses. Id. Mullhall, however, was not a witness in this case.

The defendant sought to use this evidence not only to impeach the state’s witnesses but to establish a cover-up with respect to the incident for which he was being prosecuted. As the state points out, however, even if the defendant could have established a conspiracy by Grate and Mullhall to cover up the incident of January 3, there was nothing but Mullhall’s mere presence at the January 11 incident to connect the two events. The fact that Mullhall was present on January 11 along with numerous other correction officers was too tenuous a connection to provide a nexus with the earlier incident.

The trial court also recognized that the admission of this evidence would have opened the door to evidence of other incidents involving the defendant. Such evidence may have been very harmful to the defendant in the eyes of the jury.

We conclude that the trial court reasonably exercised its discretion to exclude, as irrelevant, this evidence of a collateral event that would have distracted the jurors’ attention and impeded their concentration on the vital issues of this case. See State v. Moynahan, 164 Conn. 560, 589, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant was also charged with two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (5). The court declared a mistrial on each of those counts, and the state thereafter nolled the charges.

       Practico Book § 594 provides: “The warrant shall be signed by the judicial authority and shall contain the name of the accused person, or if his name is unknown, any name or description by which he can be identified with reasonable certainty, and the conditions of release fixed, if any. It shall state the offense charged and direct any officer authorized to execute it to arrest the accused person and to bring him before a judicial authority without undue delay.”

       Practice Book § 596 provides: “The officer executing an arrest warrant may do so anywhere within the state upon apprehension of the accused. The officer shall take him into custody, serve a copy of the warrant upon him and follow the procedure specified in Sec. 654 or Sec. 656, whichever is applicable.”

       “The ‘jurisdictional barrier’ referred to in [State v. Fleming, 198 Conn. 255, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986)]. . . pertain[s] to personal jurisdiction over a defendant, not subject matter jurisdiction . . . .” State v. Carey, 222 Conn. 299, 311 n.6, 610 A.2d 1147 (1992).

       At the hearing on his motion to dismiss, the defendant also claimed that the judge had failed to sign the arrest warrant, an unsigned photocopy having been presented to him previously. This claim was not renewed on appeal.

       Practice Book § 943 provides in pertinent part: “In cases where the revocation of probation is based upon a conviction for a new offense and the defendant is before the court or is being held in custody pursuant to that conviction, the revocation proceeding may be initiated by a motion to the court by a probation officer and a copy thereof shall be delivered personally to the defendant. All other proceedings for revocation of probation shall be initiated by an arrest warrant . . . .”

       The other cases cited by the defendant are also inapplicable. Grumon v. Raymond, 1 Conn. 40, 43 (1814), involved a warrant directed to “search suspected persons, and arrest them.” The court found that this was a general warrant and held that the magistrate had no jurisdiction over such a process. Tracy v. Williams, 4 Conn. 107, 113 (1821), involved an action of trespass for false imprisonment in which the plaintiff’s arrest was valid but his subsequent imprisonment was “wholly extrajudicial and irregular”; the justice of the peace who had imprisoned him had no jurisdiction over this illegal process. Id. Allen v. Gray, 11 Conn. 95 (1836), also involved an action in trespass and false imprisonment, in this case against a grand juror who had no jurisdiction to issue the complaint by which the accused was later arrested. Church v. Pearne, 75 Conn. 350, 355 (1903), which speaks of a jurisdictional defect caused by the lack of “legal process,” concerned a warrant that lacked probable cause. None of these early cases is like the present case.

       Because our disposition of this issue requires a new trial, we will consider only those remaining claims that are likely to affect the proceedings on remand.

       General Statutes § 17a-566 provides in pertinent part that “any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers . . . may if it appears to the court that such person is mentally ill and dangerous to himself or others . . . order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute. ...”


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Susan Roberts v. Joseph Roberts
    (11839)
    Dupont, C. J., Daly and Freedman, Js.
    Argued June 10
    decision released August 10, 1993

      Allan M. Cane, for the appellant (defendant).

      Sheldon A. Rosenbaum, with whom was Ronald E. Kowalski II, for the appellee (plaintiff).
   Dupont, C. J.

The defendant appeals in a dissolution action from the trial court’s postjudgment order that real estate be sold by auction. The court issued the order in response to the plaintiff’s motion for an order to effectuate the sale of the jointly owned marital residence that had been ordered sold in the judgment of dissolution. The defendant claims that the trial court had no jurisdiction to entertain the plaintiff’s motion for order, and exceeded the limits of its equitable powers. The defendant also asserts that the court should not have ordered the sale of the marital residence without first holding an evidentiary hearing on the plaintiff’s motion. We conclude that the court had jurisdiction to act on the motion, and was not prohibited from exercising its equitable powers to order a sale by auction, but first should have held an evidentiary hearing in order to ascertain whether such a remedy was warranted by the facts.

The marriage of the parties was dissolved on June 7, 1991. The parties had entered into a written stipulation that was incorporated into the judgment of dissolution of marriage and provided, inter alia, for the disposition of the marital residence by sale and for the proceeds to be split evenly between the parties. The judgment also required the defendant to pay alimony to the plaintiff and allocated between the parties the personal property in the marital residence. On September 11,1992, the plaintiff filed a motion for contempt against the defendant for failure to provide certain personal property to her pursuant to the dissolution decree, and also filed a motion for order seeking to expedite the sale of the former marital residence. This motion stated that the defendant, who continued to live in the marital residence after the parties were divorced, had refused to reduce the listing price of the property in accordance with current market conditions. The plaintiff contended that the defendant’s refusal to lower the price had resulted in the property’s remaining unsold, thus depriving the plaintiff of her share of the proceeds from the sale of the property. The plaintiff also claimed in her motion that the defendant had been receiving rents from the property without her knowledge or agreement, that the defendant had refused reasonable access to the property to the plaintiff and the parties’ realtor, and that the defendant was not maintaining the premises in a manner suitable for showing the property to potential buyers.

The plaintiff sought an order that the listing price be reduced, and further reduced every thirty days until sold, that any offer within five percent of the listing price be accepted, that a new listing agreement be signed, that a lockbox be placed on the premises, that the defendant account to the plaintiff for rents, and that the plaintiff be granted access to the premises to inspect and clean it. A stipulation of the parties dated October 13,1992, resolved most of these issues, but the parties were unable to agree to terms involving a reduction of the listing price. After hearing the oral arguments of the attorneys on the motion for order, but without taking any evidence on the factual allegations made in the motion, the court ordered the sale of the real estate by auction and appointed a committee to conduct this auction. The defendant appeals the issuance of that order to this court.

I

The defendant’s first claim is that the trial court did not have jurisdiction to entertain the plaintiff’s motion for order because it requested a modification of the property settlement stipulated to by the parties and incorporated into the judgment of dissolution. The defendant cites § 46b-86 (a) of the General Statutes, which provides for the modification of final orders or judgments for the payment of periodic alimony and support, but specifically excludes modification of property assignments made under § 46b-81 of the General Statutes. The defendant argues that since the plaintiff’s motion for order did not involve custody, or the payment of periodic support or periodic alimony, the trial court did not have continuing jurisdiction to entertain that motion. Although the defendant is correct in claiming that an assignment of the estate of one party to the other in the judgment of dissolution is thereafter nonmodifiable, we disagree with his characterization of the plaintiff’s motion as one for modification. We conclude that the court had jurisdiction to order a sale by auction.

Section 46b-81 (a) provides in relevant part: “At the time of entering a decree annulling or dissolving a marriage . . . the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.” It is apparent from the plain language of § 46b-81 (a) that a court has the power in granting a dissolution of marriage to order the sale of the marital residence because that power is expressly acknowledged by the words “may order the sale of such real property” within that subsection.

Connecticut courts have repeatedly recognized both explicitly and implicitly that an order for the sale of property in a dissolution judgment is a nonmodifiable assignment. Lucisano v. Lucisano, 200 Conn. 202, 206 n.4, 510 A.2d 186 (1986); McPhee v. McPhee, 186 Conn. 167, 173-74, 440 A.2d 274 (1982); Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980); Pasquariello v. Pasquariello, 168 Conn. 579, 583-84, 362 A.2d 835 (1975); Schott v. Schott, 18 Conn. App. 333, 335, 557 A.2d 936 (1989); Niles v. Niles, 9 Conn. App. 240, 244-45, 518 A.2d 932 (1986); Croke v. Croke, 4 Conn. App. 663, 664-65, 496 A.2d 235 (1985).

The defendant also argues that the parties here incorporated their stipulated agreement into the judgment of marital dissolution, and, as such, the agreement is a court approved contract intended to place the matters covered by it beyond further controversy. Gillis v. Gillis, 214 Conn. 336, 339-40, 572 A.2d 323 (1990). The defendant claims that the court’s original judgment of sale cannot be altered without the consent of both parties absent the presence of fraud or mistake. Id. There is no dispute in this case that the stipulation in the judgment of dissolution stated that the marital residence “shall be placed on the market for sale,” that certain debts shall be paid, and that the remaining proceeds “shall be split equally between the parties.” There is also no dispute that at the time the order for sale by auction was issued, the property had not been sold and thus neither the creditors nor the parties had received any of the expected proceeds allocated in the stipulated judgment. The issue here, however, is not whether the original order for sale is a binding non-modifiable agreement, but whether the court modified the agreement or simply effectuated its prior judgment by ordering a sale by auction.

This issue is, first and foremost, a question of subject matter jurisdiction, which is “the power of the court to hear and determine cases of the general class to which the proceedings in question belong.” Demar v. Open Space & Conservation Commission, 211 Conn. 416, 424, 559 A.2d 1103 (1989). “Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991), quoting Demar v. Open Space & Conservation Commission, supra, 425; see also Cross v. Hudon, 27 Conn. App. 729, 732, 609 A.2d 1021 (1992). Thus, if the plaintiffs motion for order can fairly be construed as seeking an effec-tuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation.

The defendant relies on Bunche v. Bunche, supra, to support his position that the court had no jurisdiction to issue its order. In Bunche, a stipulated divorce decree provided that the plaintiff wife should have the option to purchase her husband’s interest in their jointly owned house by paying him 40 percent of the fair market value of the house less the outstanding mortgage balance. The wife filed a “motion to modify” the judgment to provide for payment of a specific purchase price in two explicit installments as to date and amount. The motion was denied, and the plaintiff appealed. The Supreme Court held that the trial court was correct in concluding that the plaintiff was attempting to modify an assignment of property and that the trial court was without power to do so. The granting of the option to the plaintiff to buy the property “in effect assigned to the plaintiff at least 10 percent of the defendant’s interest in that property and was clearly ordered under the authority of § 46b-81.” Id., 289.

The differences between the present case and Bunche support our conclusion that the plaintiff’s motion here did not seek modification of the stipulated judgment. In Bunche, the plaintiff had filed a “motion to modify the judgment” requesting the trial court to declare that the purchase price of the defendant’s interest be paid in two installments: $16,758.75 within thirty days, and $16,758.75 five years later, or sooner if the property was sold. Id., 286-87. If granted, the motion would have substantially modified the terms of the property assignment by adding a specific purchase price and times for payment to the stipulated judgment.

In contrast, the plaintiff’s motion in the present case does not seek to modify or add to the terms of the stipulated judgment itself. The parties still would split the proceeds of the sale equally after paying off the first mortgage and the plaintiff’s mother; no particular price or term of payment is demanded by the movant. The motion seeks only to effectuate the judgment by asking the court to determine how the property will be sold in a situation where, at the time the motion was filed, the marital residence had been on the market for over fifteen months. We have recognized that it is within the equitable powers of the trial court “to fashion whatever orders [are] required to protect the integrity of [its original] judgment.” Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 670, 594 A.2d 958 (1991), quoting Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 563-64, 468 A.2d 1230 (1983); see also Niles v. Niles, supra, 246.

The plaintiff here claimed in her motion that the defendant was impeding the agreed upon sale of the premises. If the court could not in the exercise of its equitable powers ensure that a sale would take place expeditiously, it would be unable to safeguard the integrity of its original judgment. Niles v. Niles, supra, 245-46. Here, the court’s order for sale of the marital property by auction does not interfere with the terms of the stipulated judgment in any way. Both parties continue to be entitled to 50 percent of the proceeds of the sale remaining after the enumerated debts are satisfied.

We therefore conclude that the plaintiff’s motion for order was properly entertained by the trial court, as it sought only an effectuation of the judgment rather than a modification of it. We also conclude that the trial court had jurisdiction to enter its subsequent order for sale of the real estate by auction, since that order did not operate to modify or to alter the terms of the stipulated judgment.

The defendant also argues that the trial court exceeded the limitations of its equitable powers by issuing the order for sale by auction in response to the plaintiff’ s motion for order because of the failure of the plaintiff to request general equitable relief in the motion for order. He also relies on the fact that in the stipulated judgment the defendant bargained for a sale in the open market rather than a “distress sale by auction,” and claims that an order for sale by auction is therefore inequitable, presumably because the defendant will receive less money for the property.

In her motion, the plaintiff requested various relief relating to the expeditious sale of the real estate, including a reduction of the price every thirty days. Although the precise relief of sale by auction was not requested, the relief sought was of the same general type and was sufficient to apprise the defendant of the purpose of the motion and of the kind of relief that might be ordered by the court.

A sale “in the open market” includes a sale by auction, and the accomplishment of a sale by the latter means is not an impermissible modification of the original judgment. An auction is a public sale in which property is sold to that member of the public who makes the highest bid. A sale in the open market is also a public sale, which may be accomplished by auction or by listing the property with a real estate agent for individual showing to prospective buyers who are members of the general public. An auction will not necessarily produce a lesser sum than a sale through a real estate listing. Here, the plaintiff alleges that the defendant is not acting in a way designed to promote a sale at the highest price. If that is so, and if the asset is depreciating, a prompt sale by auction may produce more money than would be produced by the further listing of the property.

We conclude that the trial court did not modify the parties’ agreement or the original judgment by ordering a sale by auction. An auction could be an appropriate method to preserve the integrity of the original judgment and, as such, would be permissible.

II

The final argument of the defendant is that the trial court should not have ordered the sale of the marital residence by auction without holding an evidentiary hearing on the plaintiffs motion for order. We agree with the defendant that the lack of evidence supporting the trial court’s order requires us to find that the order must be reversed.

During oral argument of the motion for order, the attorney for the defendant limited the scope of his objections to the exercise of continuing jurisdiction by the court, which the defendant’s attorney characterized as impermissibly seeking modification of the stipulated judgment. The plaintiff’s attorney offered to produce witnesses to testify that a reduction of the price was necessary in order to carry out the judgment. The trial court determined, without evidence of .its necessity, to generate proceeds of a sale by appointing a committee to have a sale by auction. The plaintiff’s attorney did not object to the order for auction, and, once the court stated its intent to issue an order for sale by auction, neither party suggested that evidence be introduced before the order was entered.

Although the defendant failed to request an eviden-tiary hearing at the oral argument on the motion, the trial court was nonetheless required to hold a hearing. Otherwise, the court’s order for a sale by auction could not be based on findings of fact. Specifically, the trial court had to garner evidence in this contested matter in order to determine the best way to effectuate the original judgment.

Where the legal conclusions of a trial court are challenged, this court “must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see also Practice Book § 4061. “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported.” In re Michael M., 29 Conn. App. 112, 121, 614 A.2d 832 (1992). Here, the oral statements of the attorneys at the hearing on the motion and the record itself were the only foundation for the issuance of the order for auction by committee. There was no evidentiary hearing on the plaintiffs motion for order. Even taking into account the deference due the trier of fact; Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985); the statements of the attorneys were not evidence and were insufficient for the trial court to rely upon in issuing the order for sale by auction.

“It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved.” Costello v. Costello, 186 Conn. 773, 776-77, 443 A.2d 1282 (1982) (informal meeting by trial court in chambers with counsel before issuing order to modify dissolution agreement was insufficient to meet due process requirements). “Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, ‘ “due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” ’ Lampasona v. Jacobs, 7 Conn. App. 639, 642-43, 509 A.2d 1075 (1986), quoting Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).” Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988); see also Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 376-77, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); Castro v. Castro, 31 Conn. App. 761, 769, 627 A.2d 452 (1993); Bartley v. Bartley, 27 Conn. App. 195, 197-98, 604 A.2d 1343 (1992); Duve v. Duve, 25 Conn. App. 262, 269, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, U.S. , 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992). Where, as in this case, there were no findings of fact made to support the issuance of an order for sale by auction because no evidentiary hearing was held, due process requires that the parties be given an opportunity to present evidence relevant to the necessity of such an order.

The judgment is reversed and the case is remanded for an evidentiary hearing to determine the best means to effectuate the sale of the real estate.

In this opinion the other judges concurred.

       The first numbered order listed in the dissolution judgment provided: “The house jointly owned by the parties located at 27A Juggernaut Road, Prospect, Connecticut, shall be placed on the market for sale and after the usual costs of closing, the payment of the first mortgage, and the payment of the plaintiff’s mother, Frances Kautz; of the sum of Fifteen Thousand ($15,000) Dollars, the proceeds then remaining shall be split equally between the parties.”

       The motion for contempt was resolved by a stipulated agreement dated October 13,1992, and approved by the court. The agreement also resolved some of the issues raised in the motion for order.

       A motion by the plaintiff to dismiss the defendant’s appeal on the ground that the trial court’s order for sale by auction was not an appealable final judgment was denied by this court on December 16, 1992.

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of substantial change in the circumstances of either party .... This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. . . .”

       The defendant admits in his brief that because the plaintiff’s motion for order “requested a reduction in the price every thirty (30) days until sold, and the court ordered an auction of the property by a committee, the distinction between them is at most deminimus.” If that is indeed so, it is hard to see how the plaintiff’s failure to request general equitable relief in the motion for order could possibly render the order for sale by auction outside the parameters of the trial court’s judicial authority.


author: O’Connell, J.

text:
    State of Connecticut v. Lawrence Harris
    (11109)
    O’Connell, Lavery and Heiman, Js.
    Argued June 14
    decision released August 17, 1993

      John S. Aissis, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Michael Dearing-ton, state’s attorney, and James Clark, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and larceny in the third degree in violation of General Statutes § 53a-124. The defendant claims that because exculpatory Brady material was initially disclosed at trial, the court improperly failed to grant his motions for a continuance, a mistrial and a new trial. We affirm the judgment of the trial court.

This appeal arises from a robbery of the Kimberly Avenue branch of the Bank of New Haven. Shortly after 9 a.m. on August 3, 1990, a robber approached bank teller Karen Comstock and handed her a note stating: “This is a holdup, I [want] all your big bills, don’t try anything stupid.” When Comstock tried to delay, the robber displayed a bag containing what appeared to Comstock to be a gun. This prompted Comstock to grab a handful of bills and give them to the robber who ran out the bank’s side door and escaped on a bicycle.

Comstock and another teller, Barbara Patenaude, went to the New Haven police station where they looked at more than 200 photographs. They both agreed that a picture of another individual, William Green, resembled the robber. Detectives went to Green’s address and learned that he was living in Germany. Six days later, the police showed an array of eight photographs to Comstock and Patenaude, from which each chose the picture of the defendant as the person who committed the crime. During the trial, Comstock and Patenaude, as well as a person who had been a bank customer at the time of the robbery, made in-court identifications of the defendant.

As part of their immediate postrobbery investigation, the police took fingerprints from the teller’s counter-top, the holdup note and the bank’s side door. Although the identifiable prints lacked sufficient points of identification to establish that they definitely belonged to a specific individual, they were adequate to demonstrate that they did not belong to the defendant.

The defendant filed a pretrial motion for disclosure of exculpatory material pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The motion was granted and the state disclosed that fingerprints had been taken at the scene. The disclosure, however, did not include the information that the identifiable fingerprints were not those of the defendant nor did it reveal that Comstock and Patenaude had initially chosen Green’s picture as resembling the robber. The defendant first learned of the photo identification of Green and the possible fingerprint exclusion during the state’s case. As a result, the defendant moved for a continuance, a mistrial and, at his sentencing, a new trial.

The defendant’s appeal is premised on the disclosure rule set forth in Brady v. Maryland, supra, which prohibits suppression of evidence that is favorable to the defendant and material to either the defendant’s guilt or punishment. Id., 87. The purpose of the rule is to ensure that a defendant is not deprived of a fair trial. United States v. Bagley, 473 U.S. 667, 674-75, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Evidence is not suppressed within the meaning of Brady, however, if it is disclosed at trial as it was here. State v. Rasmussen, 225 Conn. 55, 91, 621 A.2d 728 (1993); State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990); State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). In such a situation, the defendant must demonstrate that the timing of the disclosure prejudiced him to the extent that he was deprived of a fair trial. State v. Walker, supra, 127; State v. Reddick, 197 Conn. 115, 122, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). The central issue in this claim, therefore, is whether the evidence was disclosed in sufficient time for the defendant to have effectively used it at trial. State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1 (1986). This is essentially a factual determination for the trial court. Id., 414, 416-17; see State v. Pollitt, 205 Conn. 132, 531 A.2d 125 (1987).

The defendant structures his claim of prejudice on his assertion that the timing of the disclosures of both the identification and the fingerprint evidence prevented him from adequately investigating the possibility that Green or someone else might have been the perpetrator. Further facts are necessary to resolve this claim. The trial began on Wednesday, October 23, 1991, and by the next day, the identification and fingerprint evidence had been disclosed. There was also testimony from a police detective explaining that a police investigation had revealed that Green was in Germany when the bank was robbed. On Friday of that week, while the state’s case was still ongoing, the defendant moved for a mistrial or, in the alternative, for a continuance until the following Tuesday.

Without ruling on the motion, the trial court suggested that the parties cooperate in investigating the whereabouts of Green and in determining if the fingerprints either excluded Green or included any other persons that resembled the defendant. To facilitate that investigation, the defendant provided to the state the names of persons who, the defendant claimed, looked like him. The court instructed defense counsel that if he wanted to secure his own fingerprint expert, he should submit a name to the court quickly and the court would then “make the appropriate orders.” The court further suggested that defense counsel be permitted to conduct an out-of-court interview with Comstock and Patenaude to provide further details of the Green identification. At the end of the day, the court stated: “There is probably a fifty-fifty possibility that everything might fall in place and we might be able to run right through this on Monday. So, let’s see, you both know what you have to do, and I assume that you [will] have done as much as you can by Monday. Come up Monday morning at ten o’clock and let me know what is happening just out of curiosity.”

The record does not adequately reveal the degree to which the parties were successful in acting on the court’s suggestions. Nevertheless, the parties reported on Monday and when neither party requested a continuance, the state continued with the case. The state first recalled Comstock to provide a fuller explanation of the circumstances surrounding her identification of Green. Following a short series of questions by the state, the defendant cross-examined her on that topic. The state next called Green’s sister who explained, as the police detective had done previously, that Green was in Germany and had been in Germany at the time of the robbery.

At the conclusion of the state’s case, the trial court expressed its satisfaction that the issue of prejudice arising from the disclosure of the identification evidence had been effectively dealt with and pointed out that “this person could not, because he is in Germany, have been the bank robber.” Defense counsel agreed and observed that the only outstanding issue was the fingerprint on the note and as to that, he said, “Your Honor, at this point I wouldn’t claim it.” Thereafter, in closing argument, defense counsel cogently brought the exculpatory nature of the evidence to the attention of the jury.

Although neither the identification evidence nor the fingerprint evidence was suppressed in the Brady sense, the rules governing suppressed evidence are instructive and applicable in our determination of prejudice. Accordingly, we evaluate the claim by examining the evidence within the broad context of the entire trial. “[T]he courts must avoid concentrating on the suppressed evidence in isolation. Rather, we must place it in the context of the entire record. Evidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory.” State v. Shannon, 212 Conn. 387, 399-400, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989).

We first note that the issue of Green’s possible involvement in the crime was adequately addressed at trial. There was testimony from both the police detective and Green’s sister that Green was in Germany at the time of the robbery. In addition, Comstock and Patenaude explained to the jury that they chose Green’s photograph because it resembled the robber; they did not think Green was the robber. Any argument by the defendant that Green, nevertheless, might have been the robber, resides wholly in the realm of speculation and does not substantiate a claim of prejudice. See State v. Miner, 197 Conn. 298, 305, 497 A.2d 382 (1985). We further note that the impeachment value of Comstock’s and Patenaude’s identification of Green was effectively exploited by the defendant both in cross-examination and during closing argument. We conclude, therefore, that the timing of this disclosure did not prevent the defendant from receiving a fair trial.

The timing of the disclosure of the fingerprint evidence, likewise, was not prejudicial. This evidence demonstrated that identifiable fingerprints of the defendant were not on the note or at the crime scene. Despite the timing of the disclosure, the defendant was not hindered in drawing the jury’s attention to the significance of that fact. The defendant contends, nevertheless, that he was deprived of a fair trial because he needed time to investigate the possibility that the fingerprints might belong to Green or someone else. The defendant has presented nothing to show that anyone else was connected with the robbery. “On this record, the defendant’s claims of prejudice are purely speculative and cannot furnish a basis for the reversal of his conviction.” Id. This is particularly true in light of the other evidence, including the three in-court identifications and the testimony of Green’s sister and the police detective that Green was in Germany at the time of the robbery.

The defendant has failed to demonstrate the prejudice necessary to substantiate his Brady claim. Accordingly, we do not analyze the defendant’s individual claims concerning his requests for a mistrial, continuance and a new trial because they all are founded upon the claimed Brady violation.

The judgment is affirmed.

In this opinion the other judges concurred.

       Trial counsel died prior to the appeal.

       The record is clear that defense counsel did not secure a fingerprint expert. We note, however, that the defendant was aware, well before trial, that latent fingerprints had been taken and that their quality was poor. Nothing prevented him from obtaining an expert prior to trial to examine the prints in the hope of linking them to another person.
      The record is less clear concerning the results of the fingerprint matching involving the defendant’s list of look-alikes. It appears that the state cooperated and that no matching prints were found.

       Because of our disposition of the case, we do not decide whether the defendant waived his claim regarding his requested continuance to further investigate the whereabouts of Green. See State v. Miner, 197 Conn. 298, 306, 497 A.2d 382 (1985).

       The defendant asks us to take judicial notice of certain evidence adduced at his recent habeas trial. In particular, there was evidence suggesting that the police had investigated a different person than the person appearing in the photograph selected by Comstock and Patenaude and that the person depicted in the photograph was, in fact, not in Germany at the time of the robbery. We are bound to evaluate the propriety of the trial court’s rulings on the basis of the facts known to the court at the time of its rulings. We cannot evaluate those rulings through the prism of newly discovered and speculative evidence. The defendant’s recourse is through a petition for a new trial.