author: SCHALLER, J.

text:
    JAMES KNAPP v. CITY OF NEW LONDON ET AL.
    (15257)
    Foti, Sehaller and Hennessy, Js.
    Argued December 10, 1996
    officially released March 18, 1997

      Nathan Julian Shafner, with whom, on the brief, was Amy M. Stone, for the appellant (plaintiff).

      Christine C. Murphy and Joseph Passaretti, for the appellees (defendants).
   SCHALLER, J.

The plaintiff appeals from the decision of the compensation review board (board) affirming the order of the workers’ compensation commissioner (commissioner) dismissing his claim for workers’ compensation benefits. The dispositive issue in this case is whether the board properly determined that the plaintiff failed to file a timely notice of claim as required by General Statutes § 31-294c (a). We affirm the decision of the board.

On October 25, 1991, the plaintiff filed a notice of claim alleging that noise exposure at work damaged his hearing. The named defendant city challenged this claim asserting that it was time barred because it was not filed within one year from the date of exposure to the injurious noise. Formal hearings were held before the commissioner.

The commissioner found the following facts. The plaintiff began working for the defendant in 1967. From 1967 to 1985, the plaintiff was employed as a laborer operating machines for the New London highway department. After experiencing hearing difficulties, the plaintiff consulted a physician for a hearing examination in the late 1970s. The physician informed him that he had sustained partial hearing loss that was work related. In 1984, the plaintiff consulted the same physician for a hearing examination. After this examination, the plaintiff began wearing hearing protection at work. In 1985, the plaintiff was promoted to the position of foreman, and was no longer exposed to the noise level and frequency that he had been prior to 1985. According to the expert medical testimony, the plaintiffs hearing loss did not appreciably change from 1984 to 1991. From these findings, the commissioner determined that the plaintiffs injurious exposure to repetitive trauma ceased in 1985, and that after 1985, when he was promoted to foreman, he was no longer exposed to injurious noise. The commissioner concluded that the “date of the accident” for purposes of § 31-294c was prior to 1985 and that, because the plaintiff failed to file written notice of his claim until 1991, his claim was time barred under § 31-294c.

The plaintiff appealed to the board claiming that there was insufficient evidence to support the commissioner’s finding that he was not exposed to injurious noise after 1985. The plaintiff claimed that after he became a foreman he was still exposed to injurious noise when he supervised workers operating machinery and when he occasionally drove trucks. The board affirmed the commissioner’s finding. This appeal followed.

In workers’ compensation cases, “[t]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .” (Citations omitted; internal quotation marks omitted.) Discuillo v. Stone & Webster, 43 Conn. App. 224, 226, 682 A.2d 145 (1996). “ ‘Our scope of review of actions of the [board] is . . . limited. . . . The decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.’ ” (Citations omitted.) Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994). “We accord great deference to the construction given to § 31-294 by the commissioner and the [board] because they are both charged with its enforcement.” Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993).

The plaintiff claims first that his notice of claim was timely for purposes of § 31-294c because he was exposed to injurious noise until 1991. We disagree. There was evidence in the record that the plaintiff was not exposed to injurious levels of noise after 1985. Notably, the plaintiff himself testified that as a foreman he no longer worked with machinery, that when he approached workers who were using machinery they would turn off the equipment while he spoke to them, and that he obtained hearing protection in 1984 that he used as often as he could. Also, the plaintiffs physician testified that the results of the plaintiffs 1984 and 1991 audiograms were substantially the same. Because the commissioner’s finding that the plaintiffs exposure to injurious noise ceased after 1985 did not result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them, we conclude that the board properly affirmed his decision. See Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988).

The plaintiff claims alternatively that, even if we agree that the injurious exposure ceased in 1985, he still had one year from his last day of employment to file his claim. He argues that, because he filed his notice of claim while he was still employed by the defendant, it was timely. The plaintiff relies on Crochiere v. Board of Education, supra, 227 Conn. 333, for this argument. He asserts that in repetitive trauma cases the date of injury for puiposes of § 31-294c “is the last day of exposure to the work related incidents of repetitive trauma, or the last day worked, whichever is later.” (Emphasis added.) Id., 354. The plaintiff raises this claim for the first time in his reply brief. “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593 n.26, 657 A.2d 212 (1995). We therefore decline to consider it.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-294c provides in pertinent part: “Notice of claim for compensation. Notice contesting liability, (a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal ipjury . . .

       The defendant city’s workers’ compensation insurance carriers were also named as defendants. We refer in this opinion to the employer, the city of New London, as the defendant.

       Even if we were to consider the plaintiff s claim, the claim would fail. In Crochiere, our Supreme Court determined that the last day worked was the same as the last day of injurious exposure and, thus, held that the plaintiff timely filed his notice of claim because he filed the claim within one year from his last day of exposure to the work related trauma. Crochiere v. Board of Education, supra, 227 Conn. 353-54. This holding is consistent with the repetitive trauma cases decided since Crochiere, which state that, as a matter of law, the “date of the accident” of a repetitive trauma case is the last day of exposure. Borent v. State, supra, 33 Conn. App. 499; Discuillo v. Stone & Webster, supra, 43 Conn. App. 227. Although it is true that in many instances the last day of exposure is the last day worked; see Crochiere v. Board of Education, supra, 353-54; Discuillo v. Stone & Webster, supra, 227; this is not always true. The present case illustrates that point. This case, in fact, is unique because it involves two situations in which the last day of injurious exposure is not the same as the last day worked. The first situation is where the injurious exposure ceases at some point before the employee’s last day worked. The second situation is when the employee files his or her claim while he or she is still employed. In both instances, the commissioner’s finding of the last day of injurious exposure properly governs for purposes of determining the date of the accident under § 31-294c. Here, the commissioner correctly concluded that, because the plaintiff did not file a written notice of claim within one year from his last day of exposure, his claim was time barred under § 31-294c.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KEVIN MCCOMMIC v. COMMISSIONER OF CORRECTION
    (16256)
    O’Connell, Hennessy and Stoughton, Js.
    Argued January 13
    officially released March 18, 1997

      Kevin McCommic, pro se, the appellant (petitioner).

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   PER CURIAM.

The petitioner in this habeas corpus action appeals from the granting of summary judgment dismissing his petition. The petitioner, a sentenced prisoner in the respondent’s custody, brought this habeas corpus petition alleging illegal confinement and claiming entitlement to sentence good conduct credits to reduce the amount of time until his parole eligibility date. The respondent filed a return to the petition and then moved for summary judgment.

Following briefing and argument, the habeas court granted the defendant’s summary judgment motion and dismissed the petition on the ground that the petitioner had no liberty interest in any particular potential release date of parole. The habeas court granted certification and the petitioner appealed to this court.

The dispositive issue on appeal is whether the habeas court properly concluded that the petitioner had not raised a justiciable issue.

We are persuaded by our consideration of the oral arguments and our examination of the record and the briefs of the parties that the judgment of the habeas court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with statutes and case precedents. McCommic v. Commissioner of Correction, 44 Conn. Sup. 417, 691 A.2d 47 (1997). Because that memorandum addresses the dispositive issue in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law. It would serve no useful purpose for us to repeat the discussion contained therein. See Yantic Volunteer Fire Co. v. Freedom of Information Commission, 42 Conn. App. 519, 522, 679 A.2d 989 (1996); State v. Mobley, 33 Conn. App. 103, 105, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994).

The judgment is affirmed.

       Practice Book § 529P provides: “At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law.”


author: O’CONNELL, J.

text:
    EQUITY MORTGAGE, INC. v. KAREN NIRO
    (15600)
    O’Connell, Landau and Schaller, Js.

      Argued January 14
    officially released March 18, 1997

      James C. Delaney, for the appellant (defendant).

      Raymond J. Lemley, for the appellee (plaintiff).
   O’CONNELL, J.

The defendant appeals from a judgment for the plaintiff rendered after a court trial. She claims that the trial court improperly (1) allocated the burden of proof concerning forgery and (2) found consideration.

This case involves a written instrument that the plaintiff claims evidences the defendant’s promise to repay a $5000 loan and to make monthly interest payments of $62.50 representing an annual interest rate of 15 percent until repayment of the loan was completed. The instrument also provided that the defendant assigned to the plaintiff $5000 of the proceeds that the defendant would receive as compensation for an accident in which she had been involved in Pratt and Whitney’s parking lot. The defendant denied that she had signed the instrument and by special defense alleged that her signature thereon was a forgery. The plaintiffs employee who was allegedly involved in the transaction was not available to testily.

The trial court heard the evidence and rendered judgment for the plaintiff for $8985.04 plus costs. The defendant appealed and the matter initially came before this court on a waiver of oral argument. After consideration of the record and briefs, we assigned the appeal for oral argument and ordered the parties to file briefs on the following issues: (1) does the assignment violate the public policy against assignment of an interest in a personal injury claim and (2) does the assignment violate the Connecticut usury law?

The plaintiff did not brief the merits of the usuiy question, arguing instead that this court lacked jurisdiction to consider the issue because it had not been raised in the pleadings. Gordon v. Tuffano, 188 Conn. 477, 450 A.2d 852 (1982). Accordingly, as a threshold matter we discuss whether it is appropriate under the circumstances for us to consider usury.

Under ordinary circumstances, a litigant is not entitled to plenary appellate review of a claim that was not presented to the trial court. Practice Book § 4061, formerly § 4185. Appellate review of such a claim is limited to plain error.

“ ‘In civil cases, [p]lain error is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial.’ ” Lynch v. Granby Holdings, Inc., 230 Conn. 95, 644 A.2d 325 (1994), quoting Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 671, 594 A.2d 958 (1991).

The Supreme Court in Lynch v. Granby Holdings, Inc., supra, 230 Conn. 95, reversed this court when we considered plain error on the part of the trial corut. The Supreme Court gave three reasons for reversal of our Lynch decision: (1) the failure to discuss the plain error ruling and articulate why plain error review was appropriate, (2) our addressing the issue sua sponte, thereby depriving the parties of an opportunity to brief the issue, and (3) that the issue at bar did not implicate interests of public welfare or fundamental justice between the parties. Id., 99. We will discuss each of the Supreme Court’s concerns in Lynch as they apply to the present case.

First, “[l]oans with interest rates in excess of 12 percent per annum are prohibited by General Statutes § 37-4 and as a penalty no action may be brought to collect principal or interest on any such prohibited loan. General Statutes § 37-8. In addition to the civil forfeiture penalty, Connecticut law also provides a criminal penalty of a fine not to exceed $1000 or imprisonment for not more than six months or both, for making a usurious loan.” Ferrigno v. Cromwell Development Associates, 44 Conn. App. 439, 442, 689 A.2d 1150(1997). On its face, the instrument in the present case indicates a 15 percent interest rate. In addition to civil sanctions, a loan at 15 percent constitutes a crime. General Statutes § 37-7.1 ** To ignore the plaintiffs flouting of the statutes where the error is so obvious would affect the fairness and integrity of and public confidence in the judicial proceeding. State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987). Additionally, the interest rate on a loan is a matter of fundamental justice between a lender and borrower when the interest rate is illegal. The interests of justice require that we consider usury under the plain error doctrine.

Second, in advance of oral argument, we notified the parties to brief the usury issue. As a result, there was extensive argument of the issue at the appellate hearing.

finally, because making a usurious loan is a crime and bringing suit to recover money loaned at usurious rates is barred by statute, it is readily apparent that the usury issue implicates interests of public welfare as well as fundamental justice between the parties.

In view of the foregoing discussion, we conclude that this appeal presents one of those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired if we failed to address the issue, despite the fact that it was not raised or preserved at trial. Lynch v. Granby Holdings, Inc., supra, 230 Conn. 98.

Our analysis of whether there is an issue warranting plain error review effectively decides the appeal. The plaintiff contends that the written instrument demonstrates that it is a promissory note for money loaned to the defendant by the plaintiff. On its face, it specifically calls for 15 percent per annum interest. With exceptions not relevant here, interest at greater than 12 percent is barred by § 37-4. As a sanction for making such a proscribed loan, the lender may not bring an action to collect either principal or interest. General Statutes § 37-8. Because the plaintiff in the present case has brought an action that is forbidden by § 37-8, the judgment in the plaintiffs favor cannot stand.

In view of our decision on the usury issue, we do not reach the issue of whether the written instrument is an illegal assignment of an interest in a personal injury claim, nor do we reach either of the issues raised by the defendant.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       The August 24, 1990 agreement by which the defendant assigned her interest in her personal injury action states:
      “For Value Received, I, Karen Niro, am assigning to Equity Mortgage Inc., the sum of Five Thousand and 00/100 ($5,000.00) dollars of the proceeds that I will receive as compensation from the accident that I was in at the Pratt and Whitney parking lot.
      “Interest shall be paid monthly ($62.50) at the rate of Fifteen (15.0%) percent per annum until this note is paid in full.
      The signature on the agreement was illegible, and the defendant’s name was typed next to the signature.

       Practice Book § 4061 provides in pertinent, part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . .

       General Statutes § 37-4 provides in pertinent part: “No person . . . shall . . . directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive therefor interest at a rate greater than twelve per cent per annum.”
      General Statutes § 37-8 provides in pertinent part: “No action shall be brought to recover principal or interest, or any part thereof, on any loan prohibited by [section] 37-4 . . . .”
      General Statutes § 37-7 provides in pertinent part: “Any person who . . . violates any provision of section 37-4, 37-5 or 37-6 shall be fined not more than one thousand dollars or imprisoned not more than six months or both.”

       We recognize that there must be an intent to make a usurious loan for a violation of the usury statute. “Where all that appears in the case is that the lender has made a charge for the use of the money loaned in excess of that permitted by the statute, it follows as a matter of law that there is an intent to violate the statute.” Manchester Realty Co. v. Kanehl, 130 Conn. 552, 556, 36 A.2d 114 (1944).


text:
    STATE OF CONNECTICUT v. ORION JONES
    (15591)
    Foti, Lavery and Schaller, Js.

      Argued November 6, 1996
    officially released March 18, 1997

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

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, Harry Weller, and Mary H. Lesser, assistant state’s attorneys, for the appellee (state).
   SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a, kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, assault in the first degree in violation of General Statutes § 53a-59 (a) (1), robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), and larceny in the first degree in violation of General Statutes § 53a-122 (a) (3). He claims that the trial court improperly (1) failed to suppress his oral confession, (2) admitted the typewritten document containing his admissions and permitted the document to be referred to at trial as the “defendant’s statement,” (3) admitted his confession in violation of his due process rights under the state constitution because the police had failed to record the confession electronically, (4) admitted hearsay statements of a police officer, and (5) instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of May 11,1993, Rodney Trovarelli left his home for work. As Trovarelli was entering his blue Isuzu Rodeo, which was parked in his driveway, the defendant jumped into the backseat, held a gun to Trovarelli’s head and ordered him to drive. After driving a short distance, the defendant ordered Trovarelli to stop at an abandoned house at 51 Green Street in Bridgeport and forced him into the back of the house. The defendant took Trovarelli’s wallet, ordered him to lie facedown on the floor and shot him two times in the back of the head. The defendant then fled the house and drove away in Trovarelli’s vehicle. The defendant drove Trovarelli’s vehicle around Bridgeport, and, later that day, parked the vehicle in the driveway of his aunt, Terry Shaw Weaver.

During the morning of May 11, 1993, Trovarelli’s supeivisor called Linda Trovarelli and told her that her husband had not reported for work. Linda Trovarelli became worried because she had not heard from her husband since he had left early that morning.

Sometime in the afternoon of May 11, 1993, Weaver became suspicious about the fact that the defendant had parked a new Isuzu Rodeo in her driveway. She looked in the vehicle’s glove compartment and found the Trovarellis’ telephone number. She called the number and Linda Trovarelli answered. Weaver asked her if she was selling a blue jeep or if she used drugs. Linda Trovarelli replied that she did not use drugs and that she owned a blue jeep but that it was not for sale. She then asked Weaver if she knew where Rodney Trovarelli was. Weaver responded that she did not know where he was, but that she saw a young man driving the Trovarellis’ vehicle in the Bridgeport area. She warned Linda Trovarelli not to go looking for the vehicle. Later that evening, the Bridgeport police discovered Rodney Trovarclli at 51 Green Street. He was transported to Bridgeport hospital. He survived the shooting, but was severely injured.

The next day, the defendant, at the urging of his cousin, Lyle Hassan Jones (Jones), went to the Bridgeport police station. On the way to the station, Jones spotted Officer Robert Moss of the Bridgeport police, whom he had known for a number of years. Jones spoke briefly with Moss while the defendant waited in the car. After their conversation, Moss called the Bridgeport police station and was told that an injured person had been found in a building on Green Street. Moss then drove to the police station, and Jones and the defendant followed in their own vehicle.

Upon arriving at the police station, the defendant and Jones met with Joseph Sherbo, the detective assigned to the case. Sherbo met with the defendant and Jones briefly in the lineup room. He then moved the discussion into the police interview room. In the interview room, Sherbo advised the defendant of his Miranda rights. The defendant waived his Miranda rights and confessed to kidnapping and shooting Rodney Trovarelli and then taking his vehicle.

I

The defendant first claims that the trial court improperly failed to suppress an inculpatory oral statement made by him to the police. He claims that because he refused to sign the typed document that contained his admissions, his earlier actions constituting a knowing, intelligent and voluntary waiver were vitiated. We are not persuaded.

Prior to trial, the defendant filed a motion to suppress the oral confession that he gave to Sherbo at the police station. A suppression hearing was conducted, at which the state presented evidence concerning the circumstances under which the defendant’s statement was made. After the hearing, the trial court denied the defendant’s motion to suppress the statement. On appeal, the defendant argues that the state failed to meet its burden of establishing that he waived his constitutional privilege against self-incrimination, as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

“To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. . . . Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992). A trial court’s findings will be reversed only if they are clearly erroneous. Id., 687.

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings . . . his level of intelligence, including his IQ . . . his age ... his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation.” (Citations omitted; internal quotation marks omitted.) State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986).

Our scrupulous review of the record reveals that substantial evidence exists to support the trial court’s findings that the defendant knowingly, intelligently and voluntarily waived his Miranda rights. Sherbo read the defendant his Miranda warnings. The defendant and Sherbo initialed a card on which the Miranda warnings were written. Sherbo then showed the defendant a waiver form. The defendant completed and signed the waiver form indicating that he was eighteen years old, that he had completed the eleventh grade, and that he could read and write English. Next, Sherbo read the defendant each of the six paragraphs contained on the waiver form. The defendant placed his initials next to each paragraph to signify that he read and understood the warnings contained therein. The defendant signed his name beneath the sixth paragraph, which is the waiver of rights section. Jones also signed the waiver form as a witness to the waiver of rights procedure. Sherbo testified that the defendant appeared coherent, calm and collected during the entire interview.

After the defendant waived his Miranda rights, he made an oral statement in which he admitted stealing Rodney Trovarelli’s vehicle, driving him to the house on Green Street, stealing his wallet and shooting him. Sherbo testified that the procedure he used in taking the defendant’s statement was one in which he would pose a question to the defendant, type the question, and then type the response. After Sherbo completed typing the defendant’s statement, the defendant refused to sign it. The defendant claims that his refusal to sign the statement vitiated his earlier waiver of his Miranda rights. “While the refusal to sign a . . . written statement is a ‘relevant factor in determining whether an individual knowingly, intelligently, and voluntarily waived his privilege’; State v. Derrico, [181 Conn. 151, 165, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980)]; it is not controlling and ‘may be outweighed by affirmative conduct indicative of a knowingly and intelligently made decision not to remain silent.’ State v. Harris, [188 Conn. 574, 581, 452 A.2d 634, cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983)].” State v. Shifflett, 199 Conn. 718, 733, 508 A.2d 748 (1986). Here, the defendant’s conduct clearly indicated that he made a voluntary, knowing and intelligent waiver of his Miranda rights. We conclude, therefore, that the trial court properly refused to suppress the defendant’s confession.

II

The defendant next claims that it was improper for the trial court to admit the typewritten document containing the defendant’s admissions and to allow the document to be read to the jury at the trial. We disagree.

Our review of the record indicates that substantial evidence exists to support the trial court’s findings that the defendant made the statement voluntarily, that the police read him his Miranda rights and that the defendant knowingly, intelligently and voluntarily waived his Miranda rights. Furthermore, “the fact that the defendant refused to sign the statement . . . does not render his statement inadmissible.” State v. Usry, 205 Conn. 298, 307, 533 A.2d 212 (1987). Accordingly, it was proper for the trial court to admit the inculpatory statement into evidence and to permit it be read to the jury. See State v. Grant, 33 Conn. App. 647, 658-62, 637 A.2d 1116, cert. denied, 229 Conn. 910, 642 A.2d 1206 (1994).

The defendant also claims that it was improper for the court to allow witnesses to refer to the document as the “defendant’s statement” because the document was not “made” by the defendant and signed or otherwise adopted or approved by him. The defendant failed to preseive this claim at trial. He argues that review is proper under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or as plain error pursuant to Practice Book § 4061, formerly § 4185. We disagree.

“Evidentiary claims are not of constitutional magnitude and are thus not entitled to Golding review.” State v. Hansen, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). The defendant’s claim also does not merit review under the plain error doctrine. See State v. Krzywicki, 39 Conn. App. 832, 837, 668 A.2d 387 (1995).

III

The defendant claims next that his right to due process under article first, § 8, of the state constitution was violated because the state was allowed to introduce at trial evidence of his statements to the police when those statements had not been electronically recorded. We reject this claim on the basis of our Supreme Court’s opinion in State v. James, 237 Conn. 390, 428-34, 678 A.2d 1338 (1996), in which the court held that electronic recording of confessions is not a prerequisite to their admissibility at trial under article first, § 8, of the state constitution.

The defendant also claims that it was improper for the trial court to admit his confession because it was not witnessed by someone other than the police officer taking the statement. This claim is unavailing. Our Supreme Court has held that it is not a prerequisite of admissibility that a confession be witnessed by someone other than the police officer taking the statement. State v. James, supra, 237 Conn. 431; see also State v. Whitaker, 215 Conn. 739, 757, 578 A.2d 1031 (1990).

IV

The defendant claims next that trial court improperly admitted hearsay testimony by Moss. That claim concems the events of May 12, 1993, when the defendant and Jones were on their way to the police station. Before they reached the station, Jones saw Moss and stopped to talk with him. Jones asked Moss if a body had been found in a building on Green Street. He told Moss that the defendant had been driving a stolen jeep and had told him that he had shot Rodney Trovarelli in the head and left him in a building on Green Street. He also told Moss that he and the defendant had gone to Green Street to look for Rodney Trovarelli’s body but that the body was not there. After this conversation, Moss called the police station and received confirmation that an injured person had been found in a building on Green Street. Subsequently, the defendant and Jones followed Moss to the police station.

At trial, the state asked Moss on direct examination what he did after he spoke with Jones. The defendant objected claiming that Moss’ testimony would be inadmissible hearsay. The trial court overruled the defendant’s objection. Moss testified that after speaking with Jones, he called the police station to see if he could get verification on the information that Jones had given him and that he asked “if there was a body found in a building on Green Street.” The defendant claims that Moss’ out-of-court statement is hearsay and that it was improper for the trial court to admit it at trial.

It is axiomatic that an out-of-court statement that is not offered to prove the truth of the matter asserted therein is not hearsay. State v. Alvarez, 216 Conn. 301, 310-11, 579 A.2d 515 (1990). “Testimony of the contents of a prior oral statement . . . offered only to prove that it was made, is not hearsay.” State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967). Here, Moss’ statement was not offered to prove its truth, i.e., that a body was found in a building on Green Street, but was admitted to show that the statement was made during the investigation.

The defendant also argues that, because the jury could infer what Jones had told Moss from what Moss had asked when he called the police station, Moss’ statement should be excluded under an implied hearsay theory. We acknowledge that our courts have recognized certain circumstances when, although a witness did not repeat the statements of another person, his or her testimony presented to the jury, by implication, the substance of the other person’s statements. See State v. Robinson, 213 Conn. 243, 567 A.2d 1173 (1989); In re Jose M., 30 Conn. App. 381, 386, 620 A.2d 804 (1993). Even if we were to accept the implied hearsay theory in this case, however, Jones’ statements to Moss would not run afoul of the hearsay rule because they were not offered to prove the truth of the facts asserted therein, but merely indicated that a close relative of the defendant had knowledge of the incident before the police had a suspect in the case.

“The trial court has broad discretion in ruling on the admissibility of evidence and only upon a showing of a clear abuse of discretion will this court set aside rulings on evidentiary matters.” State v. Sieving, 35 Conn. App. 173, 178, 644 A.2d 958, cert. denied, 231 Conn. 914, 648 A.2d 158 (1994). We conclude that the trial court did not abuse its discretion in admitting Moss’ statement.

The defendant also claims that it was improper for the trial court to admit Moss’ rebuttal testimony with respect to Jones’ hearsay statements. The defendant failed to object to this evidence. He seeks review under State v. Golding, supra, 213 Conn. 233. Alternatively, he seeks review under the plain error doctrine. Practice Book § 4061, formerly § 4185. “Evidentiary claims are not of constitutional magnitude and are thus not entitled to Golding review.” State v. Hansen, supra, 39 Conn. App. 390. The defendant’s claim also does not merit review under the plain error doctrine. See State v. Krzywicki, supra, 39 Conn. App. 837.

Finally, the defendant claims that the trial court improperly admitted Moss’ supplemental report concerning the conversation that he had with Jones. The defendant objected at trial on the ground that the report is “simply redundant” and that there was no reason for its admission under the circumstances. The court admitted the report solely to challenge the credibility of Jones. A trial court has broad discretion in ruling on the admissibility of evidence, and such discretion will not be disturbed on appeal except on a showing of a clear abuse of discretion. State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986). We conclude that the trial court did not abuse its discretion in admitting Moss’ supplemental report.

V

The defendant next claims that the trial court’s instructions were not adequate to prevent inconsistent guilty verdicts on the attempted murder and assault counts because a conscious objective to kill in the attempted murder count negates a simultaneous intention to cause that victim only serious physical injury. The defendant raises these claims for the first time on appeal. In order to preserve a claim of error properly, the defendant must make a written request to charge or take exception to the jury instructions when they are given by the trial court. State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982). This court is not bound to review claims of instructional error if the party raising the claim neither submitted a written request to charge, nor excepted to the charge given by the trial court. Practice Book § 852. “The purpose of [§ 852] is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” State v. Packard, 184 Conn. 258, 281, 439 A.2d 983 (1981).

Acknowledging that his claims are not preserved, the defendant seeks review under State v. Golding, supra, 213 Conn. 233. This claim is reviewable under Golding. See State v. Hinton, 227 Conn. 301, 313-14, 630 A.2d 593 (1993). We reject his claim, however, on the basis of on our Supreme Court’s holding in State v. Williams, 237 Conn. 748, 679 A.2d 920 (1996), that “under the appropriate circumstances, a defendant can simultaneously intend to cause the death of, and intend to cause serious physical injury to, the same victim.” Id., 757.

VI

The defendant next asserts that the trial court improperly (1) failed to instruct the jury on the role of the state’s information, (2) stated that “the law is made to protect society and innocent persons and not to protect guilty ones” and (3) unduly emphasized his interest in the outcome of the trial. Conceding that these claims weré not properly preserved at trial, the defendant asks for review of these issues under State v. Golding, supra, 213 Conn. 233.

With regard to the defendant’s first two claims, “[d] espite the mention of Golding as the standard of review requested for these claims, the defendant’s failure to analyze the claims under Golding’s four prong test prevents us from reviewing [them]. . . . We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . This is true even though the defendant requests review of these issues under Golding. . . . [W]e conclude that lack of analysis of these claims under the four prongs of Golding prevents us from reviewing the issues further.” (Citations omitted.) State v. Ramos, 36 Conn. App. 831, 838-39, 661 A.2d 606, cert. denied, 235 Conn. 902, 662 A.2d 905 (1995).

We will, however, review the defendant’s third claim under Golding. See State v. Williams, 220 Conn. 385, 396-97, 599 A.2d 1053 (1991). The claim concerns the trial court’s instructions “that [the defendant’s testimony] necessarily involves a consideration of any interest that he might have in the case. You will consider the importance to him of the outcome of this case and his motive on that account for not telling the truth.” The defendant claims that this instruction unduly emphasized his interest in the outcome of the case. We disagree. “We have repeatedly approved the use of similar language.” Id., 397. Furthermore, in raising this challenge, the defendant omits the trial court’s prefatory statement that, “[i]n weighing the testimony that the defendant has given you, you should apply the same principles by which the testimony of the .other witnesses is tested . . . .” Our review of the instruction as a whole, thus, indicates that the trial court properly instructed the jury that it should consider the defendant’s testimony in the same fashion as the testimony of the other witnesses. It also indicates that “the jury was adequately informed that the defendant was presumed innocent until the state proved otherwise and that it was the state’s burden to prove him guilty beyond a reasonable doubt.” State v. Thomas, 214 Conn. 118, 119-120, 570 A.2d 1123.

The judgment is affirmed.

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

       We note that “[w]e need not determine whether the trial court properly-found that the defendant was in custody because we dispose of the defendant’s claim on the basis that the trial court’s findings that the police gave the defendant his Miranda warnings and that the defendant validly waived those rights were not clearly erroneous.” State v. Smith, 42 Conn. App. 41, 46, 680 A.2d 1340 (1906). We also note that the defendant does not challenge the voluntariness of Ms confession.

       The record is not entirely clear on how long Jones remained in the room after the interview began. Jones testified that he recalls leaving within the first five minutes because Moss said that he wanted to talk to him. Sherbo does not recall when, if ever, Jones left the interview room.

      ‘The defendant originally filed a motion in limine objecting to Moss’ testimony, but the trial court declined to rule on the motion at that time, and, instead, ruled on the objections as they were raised during the course of examination.

       The court stated at trial that “[t]he report would be offered to show that the officer filled out a report on May 12 and included specific facts which are contrary to what [Lyle Jones] says the conversation was and that would be offered as to the credibility of Mr. [Jones]. In its final instructions, the court advised (he jury that “I just want to give you the following charge concerning statements—the statement of Officer Moss that was introduced into evidence during the rebuttal testimony of Officer Moss—his supplemental [report] was impeaching the credibility of Mr. Hassan Jones’ testimony as to what he said to Officer Moss. The other statements which have been introduced into evidence can be considered by you for substantive purposes.” The court also included a nonspecific instruction in its final charge advising the jury that, inconsistent out-of-court statements of nonparty witnesses could not be used for their truth but only for credibility.

       Practice Book § 852 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”

       Wo note that the same or similar instruction has been approved by our Supremo Court. State v. Stanley, supra, 223 Conn. 695-96.


author: FOTI, J.

text:
    IBM CREDIT CORPORATION v. MARK FACEY AND COMPANY, INC.
    (15183)
    Foti, Lavery and Landau, Js.
    Argued January 29
    officially released March 18, 1997

      John F. McKenna, with whom, on the brief, were Richard Goodman and Rebecca Lamont, for the appellant (defendant).

      Wendy Dunne DiChris Lina, with whom, on the brief, was Thomas D. Goldberg, for the appellee (plaintiff).
   FOTI, J.

The defendant appeals following the trial court’s granting of the plaintiffs motion for summary judgment. On appeal, the defendant claims that the trial court improperly granted the plaintiffs motion for summary judgment because the court was presented with evidence of material facts that raise genuine issues. We conclude that no final judgment exists, and, therefore, dismiss the appeal.

The following facts and procedural history are necessary for the disposition of this appeal. In 1991, the plaintiff, IBM Credit Corporation, and the defendant, Mark Facey & Company, entered into alease agreement by which the plaintiff was to supply computer equipment to the defendant for a period of sixty months. On March 14,1994, the plaintiff filed a one count complaint alleging that the defendant had defaulted on the agreement and seeking payment on an accelerated rental amount due February 1, 1993, and thereafter. The defendant filed its answer and, by way of special defenses, alleged unconscionability, breach of warranty, fraud, payment, satisfaction and cancellation. In its special defenses, the defendant claimed that International Business Machines Corporation and Informational Management Associates, Inc., were agents or partners of the plaintiff and that these agents orpartners sold the defendant the computer equipment and software. The defendant alleged that the lease agreement was the financial component through which this had occurred, and that the plaintiffs agents or partners had represented and warranted that the equipment would fit the defendant’s needs, but that the equipment had failed to meet those needs.

The plaintiff filed a motion for summary judgment seeking over $190,000 in damages “together with interest, attorney’s fees and costs of collection in an amount to be determined.” On March 24, 1995, the trial court granted the plaintiffs motion for summary judgment. Thereafter, the plaintiff filed “an application for a prejudgment remedy” that the trial court granted on July 10, 1995, in the amount of $190,025.16. On September 5,1995, the trial court denied the defendant’s motion to open and modify. On September 13,1995, the defendant appealed the trial court’s granting of the summary judgment. On November 30,1995, the trial court granted the plaintiffs motion for a hearing on the issue of attorney’s fees and interest. On June 12, 1996, judgment was rendered “[w]hereupon it is adjudged that Plaintiff is entitled to recover in damages $190,025.16 together with interest, attorney’s fees and costs from the defendant.”

As a preliminary matter, we must determine whether the trial court’s failure to determine the award of prejudgment interest precludes this from being an appeal-able final judgment. Because it is a jurisdictional defect, the lack of a final judgment implicates this court’s authority to hear the appeal. Preston v. Phelps Dodge Copper Products Co., 35 Conn. App. 850, 854, 647 A.2d 364 (1994). “Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented.” (Internal quotation marks omitted.) Cross v. Hudon, 27 Conn. App. 729, 732, 609 A.2d 1021 (1992).

The record is clear that after this appeal was filed, the trial court granted the plaintiffs request to schedule a hearing as to pretrial interest. The plaintiff sought “[i]nterest on all delinquent payments commencing from the due date,” pursuant to General Statutes § 37-3a. Section 37-3a is “a substantive law that requires an analysis of the merits of the underlying claim. [It] allows the court, in its discretion, to award prejudgment interest for the wrongful retention of money. . . . Interest awarded pursuant to the substantive rule § 37-3a constitutes an element of the damages awarded on debts owing.” (Citations omitted.) Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 651-52, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990).

The granting of a motion for summary judgment establishing liability for the principal amount claimed, but reserving a ruling on a claim for prejudgment interest does not constitute an appealable final judgment. Balf Co. v. Spera Construction Co., 222 Conn. 211, 214-15, 608 A.2d 682 (1992). Such an adjudication of prejudgment interest is a discretionary award, and part of the plaintiffs claim to be made whole. Id. “[T]he conclusion that a postjudgment motion for discretionary prejudgment interest postpones the finality of a judgment on the merits ‘helps further the important goal of avoiding piecemeal appellate review of judgments.’ [Osterneck v. Ernst & Whinney, 489 U.S. 169, 177, 109 S. Ct. 987, 103 L. Ed. 2d 146 (1989).]” Balf Co. v. Spera Construction Co., supra, 215. We conclude that, because the trial court had not determined prejudgment interest when the defendant filed this appeal, we are without jurisdiction to hear it.

The appeal is dismissed for lack of a final judgment.

In this opinion the other judges concurred.

       The parties agree that this postjudgment action by the trial court was not appealed and is not part of this appeal.

       The record does not disclose that the trial court has determined the amount of prejudgment interest or attorney’s fees to date.

       The judgment file is dated June 12, 1996, and was filed June 14, 1996. For the purposes of final judgment analysis, it would not appear to be of consequence that attorney’s fees and costs of collection have not been determined. In Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988), our Supreme Court concluded that the trial court’s determination of liability and damages was a final judgment, for purposes of appeal, even though a supplemental postjudgment claim for statutory attorney’s fees had not been resolved. In Balf Co. v. Spera Construction Co., 222 Conn. 211, 214-15, 608 A.2d 682 (1992), our Supreme Court explained that an award of attorney’s fees and costs was a means of defraying costs of litigation and was therefore ancillary to the main action.

       General Statutes § 37-3aprovides in pertinent part: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. ...”


author: DUPONT, C. J.

text:
    F. W. WOOLWORTH COMPANY v. TOWN OF GREENWICH
    (15375)
    Dupont, C. J., and Landau and Hennessy, Js.
    Argued December 12, 1996
    officially released March 18, 1997

      Eugene F. McLaughlin, Jr., assistant town attorney, for the appellant (defendant).

      Barry C. Hawkins, with whom, on the brief, was Jennifer Hauhuth, for the appellee (plaintiff).
   DUPONT, C. J.

The assessor of the town of Greenwich valued the property of the plaintiff, including land and improvements, on the list of October 1, 1993, in the amount of $3,338,090. The plaintiff, thereafter, filed an application in the trial court to appeal from the board of iax review’s failure to change the assessment, claiming in one count that the valuation was grossly excessive, disproportionate and unlawful and, in a second count, that the assessment was manifestly excessive. The defendant answered the complaint and counterclaimed, alleging that its assessments on the lists of 1993 and 1994 were erroneous because the property was undervalued and that the assessment should be increased to reflect the fair market value of the property. Shortly after the counterclaim was filed, the plaintiff withdrew its application to appeal. The sole issue of this appeal is whether the trial court properly dismissed the defendant’s counterclaim for lack of subject matter jurisdiction after the plaintiff had withdrawn its application.

Subject matter jurisdiction is the power to adjudicate a particular controversy based on the general class of case in which the controversy belongs. Tolly v. Dept. of Human Resources, 225 Conn. 13, 29, 621 A.2d 719 (1993). The plaintiffs action was based on statutory causes of action. General Statutes §§ 12-117a and 12-119. The defendant claims that its counterclaim is also statutory and that, pursuant to § 12-117a, the trial court could increase, as well as reduce, the amount of a tax assessment. The defendant thus argues that its counterclaim is unaffected by the withdrawal of the plaintiffs application and can stand on its own.

A counterclaim is an independent action and, if it states a cause of action that is within the general class of case that a court has the power to hear, will continue unabated after the withdrawal of a plaintiffs action. See Practice Book § 169; Union Carbide Corp. v. Aetna Casualty & Surety Co., 212 Conn. 311, 318, 562 A.2d 15 (1989). The question to be resolved here, therefore, is whether the counterclaim alleges a type of case that the trial court had the statutory power to hear.

We begin our discussion by first establishing what this appeal does not concern. The defendant claims that because the plaintiff sold the subject property for $12,500,000 in April, 1995, fewer than ten months after bringing its appeal, the assessor had grossly undervalued the property at $3,338,090. What a trial court, after a trial, might have found the value of the property to be for the tax year of 1993, does not, however, answer the question of whether the trial court had the authority or power to establish that value at the request of the defendant alone.

The defendant depends on the case of Tucker v. Hartford, 15 Conn. App. 513, 545 A.2d 584, cert. denied, 209 Conn. 807, 548 A.2d 444 (1988), and certain similar language found in both §§ 12-117a and 12-119 to support its theory that its counterclaim remained viable on its own.

In Tucker, an action brought by a taxpayer, the trial court increased the assessment made by a city in determining the market values of real estate. The trial court did not, however, do so at the request of the city. Furthermore, although the trial court had found market values to be higher than those established by the city assessor, the city did not change its original assessments, and the taxpayer continued to be taxed at the lower values originally set. Id., 517. A trial court, thus, has the power to determine an assessment value in an action brought by the taxpayer. The issue in this case, however, is not whether the power to determine an assessment includes the power to increase that value, but whether the trial court has the power to determine an assessment value in an action brought by the town.

An analysis of the language found both in § 12-117a and in § 12-119, on which the defendant relies, reveals that no statutory right of action is given a town to claim that its own assessment was manifestly “underexcessive” or that the town assessment list should be changed. Both of the statutes contain similar language. General Statutes § 12-117aprovides in relevant part that “[t]he court shall have the power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable . . . .” (Emphasis added.) “The common definition of the word ‘such’ includes ‘having a quality already . . . specified ... of the sort . . . previously indicated or implied . . . previously characterized or specified’; and ‘aforementioned.’ ” Verrastro v. Sivertsen, 188 Conn. 213, 221 n.7, 448 A.2d 1344 (1982). Thus, the words “such relief’ can refer only to the previously stated relief afforded by the statutes, namely, the right of a person who is bound to pay real property taxes and who claims to be aggrieved by the action of a board of tax review with regard to an assessment to appeal from that action; General Statutes § 17-117a; or to the remedy of an owner who claims that the tax was computed on an assessment that, under all the circumstances, was manifestly excessive. General Statutes § 12-119. Because the relief afforded by the statutes does not include a remedy for a town that has made an “underexcessive” assessment, the court has no power to grant such relief.

Not only is there no statutory authority that allows a town to question the value it has assessed on real estate in our trial courts, there is a statutory prohibition preventing assessors from changing an assessed valuation on an assessment list as compared to an immediately preceding assessment list solely on the basis of the sale price of the subject property.

We conclude that if the plaintiff had never brought an action to question the assessment, the defendant could not have requested the trial court to change the assessment upward. We further conclude that the withdrawal of the plaintiffs application was not the cause of the dismissal of the defendant’s counterclaim. Rather, it was the lack of subject matter jurisdiction over the defendant’s counterclaim.

The judgment of dismissal is affirmed.

In this opinion the other judges concurred.

       Practice Book § 169 provides: “The withdrawal of an action after a counterclaim, whether for legal or equitable relief, has been filed therein shall not impair the right of the defendant to prosecute such counterclaim as fully as if said action had not been withdrawn, provided that he shall, if required by the court, give bond to pay costs as in civil actions.”

       The defendant claims that the power to hear this counterclaim rests on a distinction between compulsory and permissive counterclaims. At oral argument, the defendant agreed that a town cannot bring an independent action against a taxpayer to increase a tax: assessment set by the town. The defendant, however, argues that we are dealing with a compulsory counterclaim that may be asserted in the absence of independent jurisdictional facts. The defendant claims that there is a distinction between permissive and compulsory counterclaims but cites no Connecticut authority that recognizes such a distinction. Further, he cites no relevant Connecticut authority that recognizes a distinction between a counterclaim that is ancillary to the main action but does not require independent jurisdictional grounds to survive the withdrawal of the main action and another type of counterclaim.

      ‘The language of General Statutes § 12-119 is slightly different. It states that the court “shall have the power to grant such relief upon such terms and in such manner and form as to justice and equity appertains . . . .”

       General Statutes § 12-63(1 provides: “The assessor in any municipality may not, with respect to any parcel of real property in the assessment list for any assessment year, make a change in the assessed value of such parcel, as compared to the immediately preceding assessment list, solely on the basis of the sale price of such parcel in any sale or transfer of such parcel.”


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. ALPHONSO VEGA
    (14797)
    O’Connell, Lavery and Spear, Js.
    Argued December 4, 1996
    officially released March 18, 1997

      Michael L. Moscowitz, special public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (l), and possession of a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a (a). The jury could not reach a unanimous verdict on the charge of attempted assault in violation of General Statutes §§ 53a-8 and 53a-49 (a) (2), and the trial court declared a mistrial on that charge. On appeal, the defendant asserts that the trial court improperly (1) refused to give a missing witness instruction, (2) admitted hearsay testimony, and (3) permitted correctional officers to testify as expert witnesses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. James Diaz, the victim, was incarcerated from January to March, 1991, at the Community Correctional Center in Bridgeport for a robbery that was committed in Norwalk. When the victim was arrested for the robbery, he gave the Norwalk police a statement implicating two other men, Ramito Tosado and Angel Lopez, in the crime. While at the Bridgeport jail, the victim was threatened by Tosado, who was a fellow inmate, and by Tosado’s friend Carlos Feliciano, who was also an inmate. While at the Bridgeport jail, the victim lear ned that Tosado was a member of a gang. Tosado informed the victim that the gang had put out a contract on the victim’s life.

The victim informed the correction officials about the contract and was promptly transferred to a correctional facility at Enfield, and then to the Cheshire Correctional Center (Cheshire). The day after the victim’s arrival at Cheshire, he was eating supper in the cafeteria with a friend, Orlando Jiminez. Carlos Feliciano, who had also been transferred to Cheshire, came into the cafeteria and stared at the victim. Feliciano began gesturing to others in the cafeteria in a “yes” fashion. Without finishing their meals, the victim and Jiminez exited the cafeteria. The victim and Jiminez later returned to the cafeteria to obtain a towel. While in a hallway, the victim was grabbed from behind and cut with a razor on the right side of his neck. Jiminez, who was a few steps ahead of the defendant, looked back and saw the defendant running and making a hand movement across the victim’s neck. Jiminez could also see that the defendant had a blade in his hand.

While on furlough, the victim received a telephone call from his brother, Mark Diaz, who was incarcerated at the Correctional Institution at Somers. During this telephone call, the defendant, who was also at the prison, spoke with the victim. The defendant told the victim that he had to cut him because gang members had threatened to harm the defendant if he did not attack the victim.

I

The defendant’s first claim is that the trial court improperly denied the defendant’s request for a Secondino instruction. The defendant claims that he was entitled to the missing witness instruction because the state failed to call the victim’s brother, Mark Diaz, as a witness to corroborate the testimony about the telephone conversation between the victim and the defendant. “The failure to produce a witness for trial who is available and whom aparty would naturally be expected to call warrants an adverse inference instruction against that party who could be expected to call that witness. Secondino v. New Haven Gas Co., [147 Conn. 672, 674-75, 165 A.2d 598 (1960)]. State v. Santagelo, [205 Conn. 578, 596, 534 A.2d 1175 (1987)]; see also State v. Amarillo, 198 Conn. 285, 307, 503 A.2d 146 (1986). An inquiry into the appropriateness of a Secondino instruction is, accordingly, two-pronged: whether the witness is available and whether, under the facts of this case, the witness is one whom the state would naturally be expected to produce. . . . State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). This court has consistently held that [w]hether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a question of fact for the trier. Perl v. Case, 3 Conn. App. 111, 115, 485 A.2d 1331 [cert. denied, 195 Conn. 803, 491 A.2d 1103 (1985)]. This court cannot reverse or modify the trial court’s determinations of fact unless they are clearly erroneous. Buddenhagen v. Luque, 10 Conn. App. 41, 44, 521 A.2d 221 (1987). State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989).” (Internal quotation marks omitted.) State v. Jurgensen, 42 Conn. App. 751, 758, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996).

The defendant did not carry the burden of putting forth sufficient evidence demonstrating that Mark Diaz vstas available to testify during trial. The victim testified that he would not tell the state’s attorney his brother’s location because he was concerned for his brother’s safely because of the gang. In addition, even if Mark Diaz’ location were known to the state, he would most likely have resisted coming to court because he had received threatening telephone calls about the trial.

When a statute does not define a phrase, we look elsewhere for the peculiar and appropriate meaning of the phrase. We may look to the meaning given the phrase in unrelated statutes and consider that where the legislature uses the same phrase it intends the same meaning. See Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). Therefore, we will also look to Practice Book § 956C, which sets forth excluded time periods with regard to a speedy trial and addresses unavailability. Practice Book § 956C provides that: “a defendant or any essential witness shall be considered unavailable whenever such person’s whereabouts are known but his or her presence for trial cannot be obtained by due diligence or he or she resists appearing at or being returned for trial.” Moreover, “[bjefore a negative inference can be drawn from a party’s failure to produce a witness, it must be shown that the party was able to procure the witness’ physical presence in court.” State v. Wood, supra, 208 Conn. 140.

Because the defendant failed to demonstrate Mark Diaz’ availability, we do not have to determine whether he was in fact a witness whom the state would naturally have been expected to produce. The trial court’s finding of unavailability was not clearly erroneous, and its decision not to deliver the Secondino instruction was, therefore, not in abuse of its discretion.

II

The defendant’s second claim is that the trial court improperly admitted hearsay testimony. The defendant argues that the trial court should not have allowed the victim to testify that Tosado had asked him why he had given a statement to the police implicating Tosado. The victim also testified that Tosado had threatened him.

The defendant claims that the trial court improperly admitted these statements under the state of mind exception to the hearsay rule. The state, however, contends that it did not offer these statements to show the state of mind of the declarant, but to show the effect of the statements on James Diaz, the victim to whom the statements were made.

“It is an elementary premise of evidentiary law that a statement made out-of-court that is offered to establish the truth of the facts contained in the statement is hearsay. ... A statement that is offered to show its effect upon the hearer, however, is not hearsay. . . . As an evidentiary claim, the defendant has the burden of showing that the trial court abused its discretion and must also demonstrate the harmful effect of the court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. Cooke, 42 Conn. App. 790, 799, 682 A.2d 513 (1996).

The testimony was not offered to establish its truth— whether something was going to happen to the victim—but, rather, to show its effect on the victim in deciding to speak to correction officers about being transferred. Statements that are not used to prove the truth of the matter asserted are not hearsay. State v. Cruz, 212 Conn. 351, 356, 562 A.2d 1071 (1989). We conclude that the testimony was not hearsay and was properly admitted by the trial court. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.3.3.

Ill

The defendant’s third claim is that the trial court improperly allowed Correction Officer Curtis Wood and Deputy Warden Remi Acosta to testify as experts concerning the conduct of prison inmates. At trial, Wood and Acosta testified that they had substantial experience as correctional officers. Wood and Acosta also testified that they possessed a great deal of knowledge concerning prison gangs and weapons made in correctional facilities. The defendant claims that the trial court improperly usurped the jury’s function by permitting the two correction officers to render their opinions and to answer hypothetical questions as experts in the area of gangs and weaponry in correctional facilities.

“The determination of the qualification of an expert is largely a matter for the discretion of the trial court.” (Internal quotation marks omitted.) Knock v. Knock, 224 Conn. 776, 783, 621 A.2d 267 (1993). Furthermore, the question of a witness’ competency to testify on technical matters is an issue to be determined by the trier through an assessment of the nature of the technicality involved and the proposed witness’ level of expertise concerning these matters. See Varley v. Varley, 189 Conn. 490, 501, 457 A.2d 1065 (1983). Moreover, hypothetical questions are the most common form of expert opinion and are routinely permitted. See State v. Vilalastra, 207 Conn. 35, 44-45, 540 A.2d 42 (1988).

In the present case, the trial court did not abuse its discretion when it permitted the two correction officers to render opinion testimony on subjects with which they had a great deal of experience. It is common to qualify law enforcement officers as experts in the conduct of criminals because of their experience and the lack of such knowledge among lay jurors. See State v. Anderson, 20 Conn. App. 271, 275, 566 A.2d 436 (1989), cert. denied, 213 Conn. 813, 568 A.2d 796 (1990) (based on her experience, police officer qualified to testify to comparative reliability of crime victim’s identification of defendant). Furthermore, the defendant cannot prevail on this claim because he did not prove harm by showing that the testimony probably affected the verdict. State v. Campbell, 225 Conn. 650, 657-58, 66 A.2d 287 (1993).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

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

       General Statutes § 53a-174a (a) provides: “Aperson is guilty of possession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly makes, conveys from place to place or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to Mil, injure or disable.”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-49 (a) provides in pertinent part: “Aperson is guilty of an attempt to commit a crime if, acting with the Mnd of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”


author: GLASS, J.

text:
    CLAIROL, INC. v. ENERTRAC CORPORATION
    (15402)
    Lavery, Spear and Glass, Js.
    Argued October 29, 1996
    officially released March 18, 1997

      Lawrence J. Golden, for the appellant (defendant).

      Ernest J. Mallei, with whom, on the brief, was Philip S. Wellman, for the appellee (plaintiff).
   GLASS, J.

The principal issue in this case is whether it was improper for the trial court to grant the application of the plaintiff, Clairol, Inc. (Clairol), to vacate an arbitration award in favor of the defendant, Enertrac Corporation (Enertrac), pursuant to General Statutes § 52-418 (a) (3). The application was granted on the basis of a finding that Clairol had been denied a full and fair hearing before the arbitration panel. Enertrac claims (1) that the trial court did not correctly apply the presumption that arbitration awards should be sustained and that arbitration proceedings were properly conducted, and (2) that the trial court improperly failed to seek an articulation or explanation from the arbitration panel. We reverse the judgment of the trial court.

The facts relevant to the disposition of the issues are as follows. On December 7, 1988, Clairol entered into a written construction contract with Enertrac for Enertrac to design and construct a cogeneration facility for use by Clairol in its manufacturing business in Stamford. Disputes ensued concerning performance by both parties under the agreement. Pursuant to article 10.1 of the contract, “[c]laims, disputes and other matters in question between the parties . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association . . . .” Article 10.3 of the agreement provides that “[t]he award rendered by arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction.”

On November 19,1990, Clairol submitted the disputes between the parties to arbitration. Enertrac filed a counterclaim. The arbitration hearings commenced on May 4, 1992. Thereafter, more than twenty hearings were held or scheduled over a period in excess of two years.

During the arbitration hearings, Enertrac introduced the testimony of two witnesses. Enertrac’s first witness was Robert Reilly, Enertrac’s president who was involved with the business aspects of the project. A second witness for Enertrac was George Thompson, an engineer and Enertrac’s designated expert.

Thompson’s direct examination was concluded, but cross-examination was deferred to a later date. In a letter to the American Arbitration Association, counsel for Enertrac stated, inter alia: “Should Enertrac not be able to make Mr. Thompson available in order to conclude these hearings, then Mr. Thompson’s direct testimony should be stricken.”

Clairol requested that the arbitration panel strike the direct testimony of Thompson and dismiss the counterclaim of Enertrac, both of which requests the arbitration panel formally denied on January 10,1994. Additionally, on March 24, 1994, the panel decided that it would disallow Enertrac’s request to withdraw Thompson’s testimony voluntarily. The spokesperson for the panel stated: “With respect to the voluntary withdrawal of Mr. Thompson’s testimony, as you know in our arbitration proceedings here, we are the ultimate final decision makers with respect to relevancy and materiality, and just how much [weight], if any, is given to any exhibits or oral documentary or oral testimony that comes before the panel. We are going to approach the testimony of Mr. Thompson in the same fashion. Whatever relevancy or whatever [weight] the direct examination may have; it may be zero, it may be negative. That is the way we are going to approach it. So we are going to deny your voluntary request to strike that testimony. And we will assign it our own [weight] or relevancy or materiality in our ultimate deliberations on a decision.”

At the hearing on May 16, 1994, Clairol renewed its requests to strike the direct testimony of Thompson and to dismiss Enertrac’s counterclaim. These requests were considered and the spokesperson for the panel stated that the panel would “take a very hard look at assigning the appropriate weight” to Thompson’s testimony, “ranging from no weight whatsoever to possibly negative weight.” The panel also indicated again that it was not going to dismiss Enertrac’s counterclaim. Clairol then decided to introduce testimony and exhibits to rebut Thompson’s testimony. Subsequently, the hearings closed.

On March 27, 1995, the arbitration panel issued a unanimous written award. The panel awarded each party a small portion of its claim and assigned nearly all of the administrative costs of the arbitration to Clairol. The award also provided that Clairol would be liable to Enertrac for all costs that Enertrac owed to the manufacturer of the cogeneration equipment.

On March 31, 1995, counsel for Clairol sent a letter to the arbitration association requesting a clarification by the arbitrators as to the basis for their decision, including an explanation of the underlying award and how the arbitrators reached their decision on Clairol’s claim and Enertrac’s counterclaim. The arbitration association responded by letter dated April 4, 1995, in which it refused Clairors request to provide clarification without first obtaining the consent of both parties to reinstate the authority of the arbitrators. The letter also indicated that “[a]n arbitration award is considered final when rendered and the arbitrator’s authority ceases thereafter.” In a letter to the arbitration association dated April 10, 1995, Reilly, Enertrac’s president, refused to consent to the reinstatement of the authority of the arbitrators.

On April 24, 1995, Clairol filed an application in the trial court to vacate the award based on the claims that the arbitrators had denied Clairol’s right to cross-examine Thompson, had refused to vacate or deny Enertrac’s counterclaim because of Enertrac’s failure to produce Thompson for cross-examination, and had issued an award not supported by the complete testimony of Thompson, which testimony was pertinent and material to the resolution of the parties’ controversy. On October 25,1995, the trial court granted the application to vacate the award. The trial court found that Enertrac “does not contest that Thompson was not made available for cross-examination. Furthermore, [Clairol] has provided a ruling of the arbitrators denying [Clairol’s] motion to strike Thompson’s direct testimony. [Clairol] was deprived of its absolute right of cross-examination and a full and fair hearing.”

Enertrac filed a motion for articulation on January 18, 1996. This motion was denied. A motion for review was filed with the Appellate Court on February 23,1996. This court granted the motion for review, but denied the relief requested.

Enertrac first claims that the trial court did not correctly apply the presumption that arbitration awards should be sustained and that the arbitration proceedings were properly conducted. We have been loath to intervene judicially and to interfere with the parties’ voluntary agreement to settle their disputes by arbitration. O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987). Because arbitration is such a valuable and commendable tool in alternative dispute resolution, judicial intervention is the exception rather than the rule. See id.

“We have stated repeatedly that judicial review of arbitration awards is limited in scope .... Metropolitan District Commission v. AFSCME, Council 4, 35 Conn. App. 804, 807-808, 647 A.2d 755 (1994). Our courts have wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. . . .O &G/O’Connell Join Venture v. Chase Family Ltd. Partnership No. 3, [supra, 203 Conn. 145]; see also Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989). Judicial review of arbitration awards is, therefore, limited in scope by § 52-418 and our courts will not disturb an arbitration award unless it clearly falls within the proscriptions of [that statute], . . . State v. AFSCME, 13 Conn. App. 461, 463, 537 A.2d 517 (1988); see also State v. Connecticut Employees Union Independent, Inc., 33 Conn. App. 737, 740, 638 A.2d 619 (1994).

“In addition, [t]he party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it falls within the proscriptions of § 52-418 of the General Statutes . . . will the determination of an arbitrator be subject to judicial inquiry. . . . O & G/O’Connell Joint Venturer. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 145-46; see also Norwich Roman Catholic Diocesan Corp. v. Southern New England Contracting Co., 164 Conn. 472, 476, 325 A.2d 274 (1973). [A] court will make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings. O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 145; see also Diamond Fertiliser & Chemical Corp. v. Commodities Trading International Corp., 211 Conn. 541, 547, 560 A.2d 419 (1989); Norwich Roman Catholic Diocesan Corp. v. Southern New England Contracting Co., supra, 476. Absent a showing of perverse misconstruction [of the law] or positive misconduct . . . the arbitrator’s determination is not subject to judicial inquiry. Twin Towers Associates v. Gilbert Switzer & Associates, 4 Conn. App. 538, 540, 495 A.2d 735, cert. dismissed, 197 Conn. App. 811, 499 A.2d 61 (1985), citing Schwarzschild v. Martin, 191 Conn. 316, 327, 464 A.2d 774 (1983).” (Internal quotation marks omitted.) Metropolitan District Commission v. AFSCME, Council 4, Local 184, 37 Conn. App. 1, 5-6, 654 A.2d 384 (1995).

Article 10.3 of the parties’ agreement provides that “the award rendered by arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction.”

The trial court found that the “arbitration award may only be vacated if the arbitrators’ refusal to afford [Clairol] the opportunity to cross-examine Thompson deprived [Clairol] of a full and fair hearing.” We conclude that Clairol was not deprived of a full and fair hearing.

We first note that the alleged lack of opportunity to cross-examine a witness occurred in a proceeding before an arbitration panel in a private, unrestricted and consensual arbitration, not in a jury or court trial and, therefore, cases such as Commercial Union Ins. Co. v. Frank Perrotti & Sons, 20 Conn. App. 253, 262, 566 A.2d 431 (1989), are not applicable.

“[A] court or hearing officer has the discretion to choose among three options when a witness has testified on direct examination and subsequently becomes unavailable for cross-examination: declare a mistrial; strike the direct testimony; or allow the direct testimony to stand.” Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 222, 676 A.2d 844 (1996), citing C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.4.3, p. 47. In the present case, the arbitration panel chose to allow the direct testimony to stand. Clairol’s application to vacate the arbitration award alleged that the arbitrators had both committed misconduct; see General Statutes § 52-418 (a) (3); and exceeded their powers; see General Statutes § 52-418 (a) (4); in permitting the testimony that was not subject to cross-examination to be admitted. On appeal, however, Clairol, while citing both subsections of the statute, limits its argument to the former. We, therefore, consider whether the panel’s decision constituted misconduct under § 52-418 (a) (3).

Section 52-418 (a) (3) provides that the court shall vacate an arbitration award “if the arbitrators have been guilty of misconduct in . . . refusing to hear’ evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced . . . .” Our Supreme Court has held that “we decline to interpret § 52-418 (a) (3) as mandating that every failure or refusal to receive evidence, even relevant evidence, constitutes misconduct.” O & G/O’Connell Joint v. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 149. “[Arbitrators are accorded substantial discretion in determining the admissibility of evidence, particularly in the case of an unrestricted submission, which reheve [s] the arbitrators of the obligation to follow strict rules of law and evidence in reaching their decision. . . . Indeed, it is within the broad discretion of arbitrators to decide whether additional evidence is required or would merely prolong the proceedings unnecessarily. . . . This relaxation of strict evidentiary rules is both necessary and desirable because arbitration is an informal proceeding designed, in part, to avoid the complexities of litigation. Moreover, arbitrators generally are laypersons who bring to these proceedings their technical expertise and professional skills, but who are not expected to have extensive knowledge of substantive law or the subtleties of evidentiary rules. . . .

“To establish that an evidentiary ruling, or lack thereof, rises to the level of misconduct prohibited by § 52-418 (a) (3) requires more than a showing that an arbitrator committed an error of law. . . . Rather, a party challenging an arbitration award . . . must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the arbitration panel.” (Citations omitted; emphasis added; internal quotation marks omitted.) O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 148-49. In addition, it must prove that as a result of the improper ruling, it suffered substantial prejudice. Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, supra, 237 Conn. 209. A trial court reviewing an arbitration award, therefore, must consider all of the evidence placed before it concerning the alleged error in order to determine whether the challenging party has proved that the alleged error, in fact, denied it a full and fair hearing. Id. In reviewing the trial court’s decision, an appellate court must determine whether, on the basis of the record before it, the trial court reasonably could have concluded that the challenging party was, in fact, denied such a full and fair hearing.

In the present case, we conclude that no misconduct by the arbitration panel occurred. The record before us contains certain portions of the transcript of the arbitration proceedings that were before the trial court indicating that Clairol was denied the opportunity to cross-examine Thompson, and Enertrac has not disputed this fact. On the basis of that fact, the trial court concluded as a matter of law that Clairol, as a party to an arbitration hearing, was denied a full and fair hearing and, therefore, vacated the award. The court, however, failed to consider whether, in fact, a full and fair hearing was denied because Clairol suffered substantial prejudice by the lack of cross-examination.

To determine whether that Clairol was, in fact, denied a full and fair hearing, the court would have had to review a complete transcript of the arbitration proceeding, and, in particular, the transcript of Thompson’s testimony. We note that Clairol put before the trial court a minimal record that failed to include the transcript of Thompson’s testimony. Absent that transcript, it was impossible for the trial court to determine whether any of his testimony was detrimental to Clairol. Moreover, the transcript of all other witnesses would have been necessary to determine whether Thompson’s testimony was merely duplicative, or whether the other testimony impeached or explained his testimony, rendering it harmless to Clairol. Our review of the record indicates that no such transcript was provided to the trial court.

Although we do not have transcripts of testimony, we do know that Clairol produced an additional witness to refute the testimony of Thompson. Also, the panel, during the colloquy on the motion to strike, stated: “Whatever relevancy or whatever [weight] the direct examination may have; it may be zero, it may be negative. That is the way we are going to approach it.” The panel also stated that it would “take a very hard look at assigning the appropriate weight” to Thompson’s testimony, “ranging from no weight whatsoever to possibly negative weight.”

We conclude that the trial court did not have before it an adequate record on which to determine that the lack of opportunity to cross-examine Thompson constituted a denial of a full and fair hearing. It is difficult to substantiate a deprivation of Clairol’s right to a full and fair hearing when the panel itself has stated that the testimony of Thompson would have either no effect or a negative effect on Enertrac’s position. Thus, in fact, the lack of the cross-examination appears to have benefited Clairol. The trial court, therefore, could not reasonably have found that the arbitration panel committed misconduct that deprived Clairol of a full and fair hearing. We, therefore, conclude that Clairol failed to meet its burden of proving that the decision of the arbitration panel violated § 52-418 or procedurally violated the parties’ agreement. The decision of the arbitration panel is, therefore, not subject to further judicial review, and the presumption in favor of upholding the arbitration award must be applied.

The record does not support the conclusion of the trial court that Clairol “was deprived of its absolute right of cross-examination, and a full and fair hearing.”

Our disposition of Enertrac’s first issue concerning cross-examination makes it unnecessary to consider Enertrac’s second issue concerning the trial court’s failure to seek an articulation or explanation from the arbitration panel of its action.

The judgment is reversed and the case is remanded with direction to render judgment denying the plaintiffs application to vacate the arbitration award.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in pertinent part: “Upon the applicalion of any party to an arbitration, the superior court for tire judicial district in which one of the parlies resides or, in a controversy concerning land, for the judicial district in which the land is situated, or when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects . . . (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear- evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced . . .