author: Dupont, C. J.

text:
    Stanley Hartmann v. Black & Decker Manufacturing Company et al.
    (5300)
    (5983)
    Dupont, C. J., Daly and O’Connell, Js.

      Argued April 12
    decision released September 6, 1988

      William F. Gallagher, with whom, on the brief, were Carl E. Cella and Evelyn A. Barnum, for the appellant (defendant J & S Hydraulics, Inc.).

      David N. Rosen, for the appellee-appellant (plaintiff).

      Jeremy G. Zimmermann, with whom, on the brief, was Brian J. Casey, for the appellee (named defendant).
   Dupont, C. J.

The plaintiff brought this action seeking damages for injuries he suffered while operating a radial arm saw manufactured by the defendant Black & Decker Manufacturing Company (Black & Decker) and owned by the defendant J & S Hydraulics, Inc. (J & S), the plaintiffs employer. The trial court rendered judgment in favor of Black & Decker and in favor of the plaintiff against J & S, in accordance with the jury’s verdict. J & S appeals from the judgment rendered for the plaintiff and the plaintiff appeals from the judgment for Black & Decker.

The jury could reasonably have found the following facts. The plaintiff, a mechanical engineer, was employed as a draftsman and designer of hydraulic equipment by J & S, a corporation which designed, repaired and manufactured hydraulic equipment. J & S maintained on its premises numerous machines used in the course of its business, including a radial arm saw manufactured by Black & Decker. On January 24, 1979, the plaintiff, after regular working hours, was operating the radial arm saw for the construction of a workbench, a personal project of the plaintiff. Such after-hours personal use of machinery was permitted by J & S, was frequently exercised by its employees, and was regarded as a fringe benefit of employment. Earlier on that date, the plaintiff had obtained specific permission, as was required, to use a company vehicle to drive to a nearby lumber yard and purchase lumber for the construction of the workbench. At the end of the workday, the plaintiff, with the aid of several other employees, carried the lumber from the truck into the shop and onto the mezzanine on which the saw was located.

The plaintiff testified that management was aware of his use of the saw due to his earlier use of the company vehicle and his transport of the wood into the shop in plain view. The plaintiff did not, however, obtain explicit permission to use the saw. While the plaintiff was operating the saw it “kicked back” and pulled his left hand into the blade of the saw, severing his fingers and thumb. The saw as manufactured was equipped with a removable anti-kickback device which was not in place at the time the plaintiff was operating the saw. Following the accident, an anti-kickback device was placed on the saw by J & S.

The plaintiff instituted this action in two counts. In the first count of his amended complaint, the plaintiff alleged that Black & Decker was strictly liable for the injuries he suffered in that it designed, manufactured, distributed and sold the saw in a defective condition unreasonably dangerous to the plaintiff. The plaintiff alleged that the saw was defective because the anti-kickback device was easily removable, and because there were inadequate warnings and instructions relating to the use of the anti-kickback device. Black & Decker denied that the saw was defective and raised three special defenses: that the plaintiff improperly operated the saw; that the plaintiff assumed the risk of operating the saw in the condition in which it was maintained; and that the saw had been altered by a third party without the consent of Black & Decker, and that such alteration could not have been reasonably anticipated by Black & Decker. The plaintiff alleged in the second count of his amended complaint that J & S was negligent in removing the anti-kickback device and in failing to install additional safety devices, in failing to provide any safety warnings or instructions, save one warning on the saw itself, on the safe operation of the saw, and in failing to maintain the saw in a safe condition. J & S denied being negligent and, by way of a special defense, alleged that the plaintiffs injuries were the result of his negligent operation of the saw.

The jury found, in response to interrogatories, that the saw was not defective in either of the ways alleged by the plaintiff in the first count of his complaint, and, accordingly, returned a verdict for Black & Decker. The jury returned a verdict in favor of the plaintiff against J & S on the second count of the complaint, and awarded the plaintiff damages in the amount of $630,000. The jury found, however, that the plaintiff was 30 percent contributorily negligent and, accordingly, reduced the damage award to $441,000. The trial court denied J & S’s motion to set aside the verdict and to render judgment in accordance with its earlier motion for a directed verdict. The court also denied the plaintiffs motion to set aside the verdict in favor of Black & Decker.

In its appeal from the judgment rendered for the plaintiff, J & S claims that the trial court erred (1) in its charge to the jury regarding the duty owed the plaintiff by J & S, (2) in failing to instruct the jury as requested regarding the open and obvious nature of the condition of the saw, and (3) in refusing to set aside the verdict and direct judgment for J & S on the basis that there was insufficient evidence on the issue of liability. The plaintiff, in his appeal from the judgment for Black & Decker, claims that the trial court erred in prohibiting the plaintiffs cross-examination of Black & Decker’s expert witness as to whether his opinion on the efficacy of placing warnings directly on the saw was the same during an earlier time period as that expressed at the time of trial, and in prohibiting the introduction of evidence regarding safety measures taken subsequent to the manufacture of the saw in question by manufacturers other than Black & Decker. Black & Decker has presented three alternate grounds upon which the judgment in its favor should be affirmed.

I

Appeal of J & S Hydraulics

J & S first claims that the trial court erred in instructing the jury that J & S owed the plaintiff a duty of reasonable care. J & S argues that the permissive use of the radial arm saw by the plaintiff constituted a gratuitous bailment, and cites Johnson v. Bullard Co., 95 Conn. 251, 111 A. 70 (1920), for the proposition that a gratuitous bailor is only liable for injuries occurring as a result of defects in the bailed property of which it was actually aware and which it either deliberately or by gross negligence did not disclose to the bailee. The plaintiff argues, however, that the use of the saw constituted a mutual benefit bailment requiring a duty of reasonable care by the bailor and, therefore, that the trial court’s instructions were not erroneous. The plaintiff argues in the alternative that if a gratuitous bailment relationship were created, the gross negligence standard articulated in Johnson v. Bullard Co., supra, is outdated and that the trend of modern authority is to require a duty of reasonable care on the part of a gratuitous bailor.

“A bailment is a consensual relation and it includes, in its broadest sense, any delivery of personal property in trust for a lawful purpose.” Pinto v. Bridgeport Mack Trucks, Inc., 38 Conn. Sup. 639, 641, 458 A.2d 696 (1983). “The essential element of bailment is the express or implied assumption of control over the property by the bailee.” Lissie v. Southern New England Telephone Co., 33 Conn. Sup. 540, 543, 359 A.2d 187 (1976); see also Malone v. Santora, 135 Conn. 286, 289, 64 A.2d 51 (1949); On Site Energy Corporation v. Sperry Rand Corporation, 5 Conn. App. 326, 331, 498 A.2d 121, cert. deied, 197 Conn. 818, 501 A.2d 388 (1985); Desmond v. Wall, 39 Conn. Sup. 503, 504, 466 A.2d 804 (1983). In Zeterstrom v. Thomas, 92 Conn. 702, 704, 104 A. 237 (1918), the court defined a bailment as “a delivery of goods in trust upon a contract, express or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered.”

“The duties and liabilities of bailor and bailee are generally determined according to the character of the bailment as one for mutual benefit, or gratuitous . . . .” D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.) § 84, p. 181. Accordingly, bailments are now generally classified as (1) those for the sole benefit of the bailor, (2) those for the sole benefit of the bailee, and (3) those for the mutual benefit of both parties. Id.

A bailment for mutual benefit arises whenever it appears that both of the parties receive a benefit from the transaction. 8 Am. Jur. 2d, Bailments § 26. Classification of a bailment as one for mutual benefit, however, does not require that actual money or other consideration pass between the parties, nor does it require the demonstration of a specific, tangible benefit or compensation. Id.; American Enka Co. v. Wicaco Mach. Corporation, 686 F.2d 1050,1053 (3d Cir. 1972). A mutual benefit bailment may be premised on the expectation of benefits expected to accrue as a result of the bailment. Roy v. Friedman Equipment Co., 147 Conn. 121, 122-23, 157 A.2d 599 (1960); Global Tank Trailer Sales v. Textilana-Nease, Inc., 496 P.2d 1292, 1294-95 (Kan. 1972). Thus, where the bailment or loan of an article is motivated by the bailor’s desire to promote a sale of the article to the bailee, a mutual benefit bailment is created although no money or compensation has passed. Roy v. Friedman Equipment Co., supra, 123; Tierstein v. Licht, 174 Cal. App. 2d 835, 842, 345 P.2d 341 (1959). Similarly, if the custody or use of a bailed article is incidental to some other business transaction between the parties, it may result in a bailment for a mutual benefit, even though the loan is gratuitious. Nelson v. Fruehauf Trailer Co., 20 N.J. Super. 198, 202, 89 A.2d 445 (1952), aff'd, 11 N.J. 413, 94 A.2d 655 (1953); Berlow v. Sheraton Dallas Corporation, 629 S.W.2d 818, 821 (Tex. App. 1982); Wilson v. Hooser, 573 S.W.2d 601, 602-603 (Tex. Ct. App. 1978).

The loan of the saw by J & S for use by the plaintiff after regular working hours inured to the benefit of J & S. The permissive use of the machinery, a fringe benefit of employment, was surely calculated by management to promote goodwill and productivity among the employees of J & S. The plaintiffs use of the saw benefited both parties although no actual money or other tangible consideration was exchanged. A mutual benefit bailment may be created when, as here, a permissive loan results in benefits to both bailor and bailee, although no actual consideration is exchanged. See Dufur v. Lanvin, 101 App. Div. 2d 319, 324, 476 N.Y.S.2d 389 (1984); Ellis v. Moore, 401 S.W.2d 789, 794 (Tex. 1966). We conclude, therefore, that the loan of the saw by J & S for use by the plaintiff constituted a mutual benefit bailment.

A bailor in a mutual benefit bailment is under a duty to use reasonable care to ensure that the bailed property is reasonably safe for use in the manner and for the purpose reasonably to be anticipated by the bailor. Roy v. Friedman Equipment Co., supra, 123; Phenning v. Silansky, 144 Conn. 223, 226, 129 A.2d 224 (1957); Minicozzi v. Atlantic Refining Co., 143 Conn. 226, 231, 120 A.2d 924 (1956). Accordingly, the trial court did not err in instructing the jury that J & S owed the plaintiff a reasonable standard of care.

J & S next claims error in the trial court’s failure to instruct the jury as requested regarding the open and obvious nature of the condition of the saw. The gist of the jury instruction proposed by J & S is that were the jury to find that the allegedly defective nature of the saw was open and obvious to the plaintiff, no liability could be imposed on J & S. This instruction was based, however, on the erroneous assumption of J & S that a gratuitous bailment was present and that the principles articulated in Johnson v. Bullard Co., supra, were controlling in this case.

We recognize that in a bailment for the sole benefit of the bailee, the bailor has no duty to warn the bailee of defects in the bailed property which are open and obvious. Id., 258. Our conclusion, however, that a mutual benefit bailment was created required of J & S a duty of reasonable care and, as we have observed, the trial court properly instructed the jury in this regard. Thus, even if the allegedly defective nature of the saw was found by the jury to be open and obvious to the plaintiff, the jury nevertheless may have concluded that J & S breached its duty of reasonable care. The plaintiff had alleged in his complaint not only that J & S was negligent in failing to warn the plaintiff regarding the condition of the saw, but also alleged that J & S was negligent in removing the anti-kickback device and in failing to maintain the saw in a safe condition. Therefore, even had the jury concluded that the allegedly defective nature of the saw was open and obvious to the plaintiff, a finding of negligence was still possible predicated on the plaintiff’s other allegations of negligence.

The allegation that the saw was patently defective implicated any contributory negligence of the plaintiff, which the jury ultimately concluded to be 30 percent. It did not, however, entirely insulate J & S from liability, which was the essence of the requested instruction. Thus, the instruction proposed by J & S, namely, that if the allegedly defective nature of the saw was found to be open and obvious to the plaintiff liability could not be imposed on J & S, was an incorrect statement of the law in this case, and the trial court did not err in refusing so to instruct the jury.

J & S finally claims error in the trial court’s refusal to set aside the verdict and direct judgment for J & S on the ground that there was insufficient evidence on the issue of liability. A trial court’s refusal to set aside a verdict is entitled to great weight and every reasonable presumption must be given in favor of its correctness. O’Leary v. Industrial Park Corporation, 14 Conn. App. 425, 430, 542 A.2d 333 (1988). The refusal to set aside a verdict will not be disturbed unless it appears that the trial court clearly abused its discretion. If the jury could reasonably and logically have reached the conclusion it did, the court’s refusal to set aside the verdict will be sustained. Jonap v. Silver, 1 Conn. App. 550, 559, 474 A.2d 800 (1984). In conducting our review, the evidence will be given the construction most favorable in support of the verdict. Carrier v. Rodrigue, 3 Conn. App. 401, 402, 488 A.2d 846 (1985).

Our review of the record indicates that there was ample evidence upon which the jury could have concluded that J & S gave permission to the plaintiff to use the saw, that J & S was aware of such use and that J & S knew or should have known that the anti-kickback device was not in place and failed to warn the plaintiff of the condition of the saw. Furthermore, there was undisputed testimony that the anti-kickback device had not been in place for many years and that the plaintiff had only used the saw infrequently. These factors, along with the absence of any relevant warnings, constituted sufficient evidence upon which the jury could have concluded that J & S had reason to believe that the plaintiff would not realize the danger of operating the saw without the anti-kickback device. The trial court, therefore, did not err in denying the motion to set aside the verdict and refusing to render judgment for J & S in accordance with its motion for a directed verdict.

II

Appeal of Stanley Hartmann

During the course of the trial, both the plaintiff and Black & Decker presented expert testimony concerning the plaintiff’s allegation that the radial arm saw as manufactured by Black & Decker was defective in that the saw’s anti-kickback device could easily be removed and that there were inadequate warnings and instructions relating to the use of that device.

On cross-examination, Black & Decker’s expert witness, Craig Bertolett, was asked whether at the time of manufacture of the saw it was “feasible and practical” to place warnings concerning the anti-kickback device directly on the saw. Bertolett responded that although placing such warnings directly on the saw was possible, such warnings would not be practical because they would be ineffective. The plaintiff’s counsel then queried whether Bertolett held the same opinion during the time period that he was employed by Emerson Electric, another manufacturer of radial arm saws. The defendant objected to this question, and an extended colloquy ensued between counsel and the trial court, during which the jury was excused. The plaintiff argued that he was attempting to offer evidence that from 1976 to 1980, while Bertolett was employed at Emerson Electric supervising the manufacture of radial arm saws, warnings concerning the anti-kickback device were placed directly on the saws. The plaintiff argued that this information was admissible to impeach Bertolett’s testimony that such warnings were impractical and ineffective, and further argued that the testimony was “independently” admissible as evidence of safety measures adopted subsequent to the manufacture of the saw. Black & Decker argued that any evidence of safety measures taken regarding radial arm saws subsequent to the manufacture in 1966 of the saw at issue in this case was both irrelevant and prejudicial. The court sustained Black & Decker’s objection, and limited the plaintiff’s cross-examination to conditions prevailing during the period of time of the manufacture of the saw at issue in this case. The plaintiff excepted to the court’s ruling.

The plaintiff claims on appeal that the trial court erred in limiting the plaintiffs cross-examination of Black & Decker’s expert witness, and in prohibiting the plaintiff from asking that witness his opinion while he was employed by Emerson Electric as to the efficacy of placing warnings directly on the saw. The plaintiff claims that such evidence was admissible for impeachment purposes as a prior inconsistent statement of Bertolett and was also admissible as evidence of safety measures taken subsequent to the manufacture of the product.

When recovery is sought, as in this case, under a theory of strict products liability, evidence of remedial measures taken by the manufacturer of the product following the injury suffered, if shown to be related to the claimed defects, may be admitted at trial. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 147-48, 491 A.2d 389 (1985). In Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 647, 514 A.2d 352, cert. denied, 201 Conn. 809, 515 A.2d 378 (1986), we held that in a products liability action evidence of safety features provided by other manufacturers of the product in question prior or contemporaneous to the manufacture of that product was relevant and admissible as to the issue of defectiveness. The excluded evidence in this case falls somewhere between the evidence deemed admissible in Sanderson and in Ames: Whether safety measures taken by other manufacturers subsequent to the manufacture of the product in question but prior to the date of injury are admissible as to the issue of defectiveness. We hold that such evidence may be admitted in a products liability action, if relevant to the claimed defect and not remote in time or connection to the defect.

The rationale of the court in Sanderson allowing the admission of evidence of subsequent safety measures, and adopted in Ames, is as follows: “ ‘Subsequent change evidence may be highly probative of defectiveness because it provides a safer alternative against which to compare the allegedly defective product. Because the manufacturer’s culpability is not an issue, there should be no concern that the subsequent changes will be construed as an admission of negligence. Therefore, evidence of subsequent changes may be relevant without being prejudicial in strict products liability actions.’ ” Sanderson v. Steve Snyder Enterprises, Inc., supra, 147-48, quoting note, “Subsequently Remedying Strict Products Liability: Cann v. Ford, ” 14 Conn. L. Rev. 759, 769 (1982); Ames v. Sears, Roebuck & Co., supra. We find this rationale to be equally applicable to postmanufacture remedial measures taken by other manufacturers of the product in question.

The central issue in a products liability action is whether the product in question is defective. Evidence of safety measures taken by other manufacturers subsequent to the manufacture of the product in question may be highly probative on the issue of defectiveness because it provides safer alternatives against which to compare the allegedly defective product. See Sanderson v. Steve Snyder Enterprises, Inc., supra, 147. Furthermore, postmanufacture remedial measures taken by other manufacturers may be highly probative on the issue of the feasibility of alternative designs. See Schenck v. Pelkey, 176 Conn. 245, 250, 405 A.2d 665 (1978); Sutkowski v. Universal Marion Corporation, 5 Ill. App. 3d 313, 319, 281 N.E.2d 749 (1972); Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 793 (Alaska 1981). Thus, evidence of remedial measures taken by other manufacturers after the manufacture of the product at issue may be relevant and admissible on both the issues of defectiveness and feasibility of alternative design.

On appeal, however, a trial court’s ruling as to the admissibility of evidence is accorded great deference; State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); and we will only reverse such a ruling upon a showing of a clear abuse of discretion. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 556, 525 A.2d 954 (1987) . Furthermore, relevant evidence may be properly excluded by the trial court if its probative value is outweighed by such factors as time, confusion, or prejudice. State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 8.1.3, p. 227. These well established principles vesting a trial court with broad discretion in determining the admissibility of evidence are fully applicable to a court’s determination of the admissibility of subsequent repair evidence in a products liability action. See Sanderson v. Steve Snyder Enterprises, Inc., supra, 148 n.10. We conclude in this case that the trial court did not abuse its discretion in excluding the proffered testimony.

Bertolett’s testimony that it was “possible” at the time of manufacture in 1966 to place warnings directly on the saws established the feasibility of placing such warnings. The jury was, therefore, aware that such warnings were feasible, and any evidence of a practice at Emerson Electric from 1976 to 1980 for the purpose of demonstrating feasibility was cumulative. Furthermore, the proffered evidence regarding procedures at Emerson Electric ten to fourteen years after the manufacture of the saw in question was remote in time as to the issue of the defectiveness of the saw as manufactured in 1966 by Black & Decker. Such evidence, moreover, was not critical to the plaintiff’s demonstration of defectiveness. The plaintiff presented ample expert testimony on the issue of defectiveness, which testimony was emphasized by the trial court in its charge to the jury. In light of the concession of feasibility by Black & Decker, the remoteness in time of the proffered evidence and the ample evidence presented by the plaintiff on the issue of defectiveness, the trial court could have in its discretion concluded that any prejudice and confusion stemming from the proffered testimony outweighed its probative value. “ ‘The introduction of evidence about subsequent changes in the product or its design threatens to confuse the jury by diverting its attention from whether the product was defective at the relevant time to what was done later.’ ” Sanderson v. Steve Snyder Enterprises, Inc., supra, 145 n.8, quoting Grenada Steel Industries v. Alabama Oxygen Co., 695 F.2d 883, 888 (5th Cir. 1983). Under these circumstances, the trial court did not abuse its discretion in excluding from evidence safety measures taken by Emerson Electric ten to fourteen years following the manufacture of the saw in question. Schenck v. Pelkey, supra (admissibility of safety measure taken by other manufacturers subsequent to manufacture of product in question to demonstrate feasibility within discretion of trial court); Lolie v. Ohio Brass Co., 502 F.2d 741, 744-45 (7th Cir. 1974).

The plaintiff also claims that the proffered evidence regarding the placement of anti-kickback warnings directly on radial arm saws by Emerson Electric while Bertolett was employed by Emerson as a supervisor of the manufacture of such saws was properly admissible as a prior inconsistent statement to impeach Bertolett’s testimony that such warnings were impractical and ineffective. “If a witness, such as an expert, testifies in terms of opinion, of course all courts will permit impeachment by showing a previous expression by the witness of an inconsistent opinion.” C. McCormick, Evidence (3d Ed.) § 35. Although such prior inconsistent statements are typically oral or written; Raffile v. Stamford Housewrecking, Inc., 168 Conn. 299, 302, 362 A.2d 879 (1975); Schurgast v. Schumann, 156 Conn. 471, 482, 242 A.2d 695 (1968); inconsistent positions may also be shown by conduct as well as by statements. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.24.3; see also Weller v. Fish Transport Co., 123 Conn. 49, 56-57, 192 A.2d 317 (1937).

“In order for a statement to be introduced as a prior inconsistent statement, the court must be persuaded that, taking the testimony of the witness as a whole, the statements are indeed inconsistent, the inconsistency is substantial and relates to a material matter, and the statement yields more than a possible inference of inconsistency.” Patrick v. Burns, 5 Conn. App. 663, 675-76, 502 A.2d 432 (1985); State v. Piskor ski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935,100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). We cannot conclude that the practice by Emerson Electric, at the time Bertolett was employed by that company as a supervisor of the manufacture of radial arm saws, of affixing anti-kickback warnings directly on the saws, is indeed inconsistent with Bertolett’s testimony at trial that such warnings are impractical and ineffective. The record is devoid of evidence that the use of such warnings by Emerson Electric during Bertolett’s tenure indicates that he favored such a practice or deemed those warnings to be an effective safety measure. Indeed, it is possible that such warnings were affixed despite Bertolett’s vociferous objection that the warnings were ineffective. The evidence in this regard is entirely insufficient to support the threshold requirement that Bertolett’s testimony at trial and his conduct while in the employ at Emerson are indeed inconsistent. In the absence of a clear demonstration of inconsistency, the plaintiff’s claim of error must fail.

Since we conclude that the trial court did not err in either of the ways claimed by the plaintiff, we need not discuss the three alternate grounds presented by Black & Decker for affirmance of the judgment in its favor.

There is no error on either appeal.

In this opinion the other judges concurred.

       The allegation of negligence for failure to install other safety devices was withdrawn by the plaintiff during the trial.

       The trial court instructed the jury as follows: “What is negligence. The definition of negligence is to be applied to the alleged negligence contained in the plaintiffs [amended] count two .... Negligence is the doing of something which a reasonably prudent man would not do under the circumstances, or omitting to do what a reasonably prudent man would do under the circumstances. It is a breach of a legal duty owed by one person to another and such legal duty is the exercise of reasonable care.”

       Gratuitous bailments include both bailments for the sole benefit of the bailor and those for the sole benefit of the bailee. 8 Am. Jur. 2d, Bailments §18.

       Our conclusion that a mutual benefit bailment is present in this case renders unnecessary a determination of the standard of care required of a gratuitious bailor in a bailment for the sole benefit of the bailee. We note, however, that the minimal standard of care required of a bailor in such a situation under Johnson v. Bullard Co., 95 Conn. 251, 111 A.2d 70 (1920), is in contrast with the duty of reasonable care imposed on a bailee in a bailment for the sole benefit of the bailor. National Broadcasting Co. v. Rose, 153 Conn. 219, 224, 215 A.2d 123 (1965); Welch v. Boston & Albany R.R. Co., 41 Conn. 333, 343 (1874). The resolution of the different standard for each, however, must await another case.

       J & S requested that the trial court instruct the jury as follows: “I must instruct you that, even if you find actual knowledge of the specific defect on the part of the defendant J & S Hydraulics, before you can find any responsibility on its part, you must also be convinced by the plaintiff, again by a fair preponderance of the evidence, that the defect was, in fact, hidden. By hidden, I mean not open or obvious to Mr. Hartmann. In other words, if you find that Mr. Hartmann knew or reasonably should have known that the anti-kickback device was either not in the proper position or not on the saw during the time he used it, then again, you cannot find any responsibility on the part of J & S Hydraulics, and again, you must stop there, go no further, and return a verdict in favor of J & S Hydraulics and against the plaintiff.”

       The warning that was affixed to the saw, as conceded by the plaintiff in his complaint, did not relate to the use of the anti-kickback device.

       Bertolett’s testimony that placing warnings directly on the saw was “possible” was tantamount to an admission that placement of such warnings was “feasible.” We are led to this conclusion by the definition of “feasible” as “possible of realization”; Webster, Third New International Dictionary; and counsel for Black & Decker’s unequivocal assertion to the court that “we have conceded that it is feasible. There is no issue about that ... we concede and [Bertolett] so testified it is feasible to put them on there.”

       The court did not specifically state the basis for its ruling.

       We reject Black & Decker’s argument that we should decline to review this claim of error due to the plaintiff’s failure to make a formal offer of proof regarding the testimony which was sought to be introduced. An offer of proof may be a necessary predicate to appellate review when the nature of the evidence to be introduced is not disclosed in the record, and the reviewing court is therefore unable to determine the propriety or effect of the excluded matter. State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986); State v. Gooch, 186 Conn. 17, 24, 438 A.2d 867 (1982); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 3.5.5. In this case, however, the plaintiff stated at length on the record the content of the expected testimony, the purpose for which such testimony was solicited, and the grounds for its admissibility. The substance of the proffered evidence is therefore amply disclosed in the record, and the plaintiff has clearly met his burden of providing an adequate appellate record to support his claim of error.

       In addition, such an admission cannot rationally be inferred when the evidence is offered against a party — Black & Decker — which did not make the changes.

       The circumstances in this case must be distinguished from the situation in which the state of the art at the time of manufacture did not include the ability to equip the product with safety features that were subsequently utilized as the state of the art improved. Tomer v. American Home Products Corporation, 170 Conn. 681, 687, 368 A.2d 35 (1976). In such a case, subsequent safety measures are clearly inadmissible. Id. In this case, however, Black & Decker did not dispute that the placement of warnings on the saw itself was feasible at the time of manufacture.


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Juan Roberto Delarosa
    (6178)
    Borden, Daly and Norcott, Js.

      Argued May 12
    decision released September 6, 1988

      Patricia J. Leary Campanella and Daniel F. Sullivan, with whom, on the brief, were Nancy A. Porter and Christopher Foster, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smrigna, assistant state’s attorney, for the appellee (state).
   Norcott, J.

After a trial to a jury, the defendant was found guilty of possession of cocaine with the intent to sell in violation of General Statutes § 21a-278 (b) and conspiracy in violation of General Statutes § 53a-48. The defendant appeals from the judgment of conviction.

The defendant claims that the trial court erred (1) in denying the defendant his right to a fair trial by its conduct and comments throughout the trial, (2) in denying the defendant’s motions to sever his trial from that of his codefendants, (3) in failing to suppress evidence seized in violation of his fourth amendment rights, (4) in denying the defendant’s motion for acquittal, (5) in instructing the jury on the elements of conspiracy and on the effect of reputation evidence, (6) in admitting into evidence bags of cocaine as to which the defendant claims the state inadequately established the chain of custody, and (7) in allowing certain expert testimony as to the number of packages which could be produced from the seized contraband. We find error on the first and second issues and remand for a new trial. There is no error on the remaining five issues, and we will discuss those issues only to the extent necessary to provide guidance to the trial court at the new trial.

The jury could reasonably have found the following facts. On September 22, 1986, Trooper Bruce Whitaker was on patrol for motor vehicle violations on Interstate 95 in the town of Fairfield. At approximately 12:50 p.m., Whitaker stopped a vehicle containing three males for driving too close to another vehicle near exit 19. Whitaker radioed for backup assistance and Trooper Robert Kenney responded. Whitaker then proceeded to request the driver’s license and registration. The car was driven by Juan Soto. Hector Baez and the defendant were passengers in the right front seat and right rear seat, respectively.

While Whitaker was questioning the driver, Kenney went to the right side of the stopped vehicle and observed chunks of white powder, later proven to be cocaine, on the floor where the defendant was seated. Kenney was a certified instructor in the field of narcotics.

When Kenney inquired about the chunks of powder, he discovered that the defendant, who Kenney noticed was “fidgety,” “nervous” and continually wiping his nose, did not speak English. Soto responded to the officer’s questions by stating that he did not know if narcotics were present within the vehicle. After Kenney had ordered the three men out of the car, he noticed a bulge under Baez’s shirt. A subsequent pat-down revealed that the bulge was created by a beeper. Further observation of the interior of the automobile revealed a trail of powder leading from the right front floor area to the area of the seat belt recoil receptacle. In this area, Kenney saw “protruding from the opening where the seat belt recoils” a clear plastic baggie containing white powder. Kenney then seized the baggie, placed Baez, Soto and the defendant under arrest and read them their Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thereafter, a search of the trunk of the car revealed a grocery bag which contained newspaper that was wrapped around more baggies of white powder which later proved to be cocaine.

At the Westport state police barracks, Soto told Kenney that he worked for a “big guy” in Boston and traveled to New York on drug runs for which he was paid $500 per trip. He further said that the beeper was used to keep in touch with the “big guy.” Soto also told the police that he and others made several trips per week to transport cocaine from New York.

I

We first address the defendant’s claim of judicial misconduct. During the defendant’s trial, the state produced as a witness Trooper Dennis Coyle who had assisted Kenney with the investigation of Soto’s car while it was impounded at the parking lot of the West-port barracks. As a part of its case, the state sought to establish Coyle’s experience in dealing with narcotic dealers and users and to have him give an opinion concerning the value of the seized cocaine. The court, after indicating to the state that it had not sufficiently developed Coyle’s “experience on the street,” sustained a defense objection as to Coyle’s opinion of the street value of the seized material.

Following the direct and cross-examinations of Coyle, the court began to question the witness, sua sponte, to “educate” the jury as to the form cocaine takes, its geographical origins, how it is prepared for street sale, how it is purchased, how it is ingested, and its street value. During the court’s questioning of Coyle the following colloquy occurred:

“The Court: I only have two questions, Trooper, and that’s only because my view is that I know nothing about the case, as the jurors don’t and I also concern myself that the jurors, law abiding citizens, have never had cocaine in their possession.

“What is the form that cocaine would take and how does it relate to what we’re talking about here, powder, blocks, flake and he’s used the word crack? And that apparently, all those things taken together lead one who is uninformed to a confused state. Do you understand what I’m talking about?

“The Witness: Yes sir.

“The Court: What you may know by second nature where the jurors are totally ignorant of?

“The Witness: Yes sir.

“Mr. Schipul [counsel for the defendant]: I object to Your Honor’s question.

“The Court: Objection is noted.

“Mr. Schipul: As inflammatory and irrelevant to this inquiry.

“The Court: It’s merely educational. It has nothing to do with the ultimate questions in this case.

“Mr. Schipul: The probative value is far outweighed by the prejudicial effect, Your Honor. I’ll take an exception.

“The Court: I’ll give you an opportunity to cross-examine on my inquiry as I always do.

“Would you tell them?

“The Witness: Cocaine comes packaged from Colombia, primarily, South America. It comes in a block form and it’s compressed and it’s very flaky. And when it’s used, it’s usually cut up finely with a razor blade. It’s also, when it comes to this country, it’s also mixed with many other white powders to double the value or triple the value depending upon how much other substance you add to it.

“When it comes in block form, it’s usually in its pure state, and it tends to flake off of the blocks. It has chips and it’s kind of a hard substance. And when cocaine is actually used, it’s, actually a very fine white powder.

“Now, crack is processed cocaine. It’s actually cooked like baking soda. And then it — And all that remains is a very high quality, high grade pure form of cocaine. And crack is smoked. But it’s a very hard, small white chunk.

“The Court: And what are the substances that are mixed with cocaine?

“The Witness: (Inaudible) powder. Any kind of white powder, vitamin E could be used. Any kind of white powder primarily. They use anything at all.

“The Court: And how is that used by a consumer?

“The Witness: It’s usually mixed with the cocaine. And usually the consumer — it’s chopped finely and put into lines. They usually snort it, ingest it through their nose. It can be injected or it would be heated, free based.

“The Court: How would one — If one snorts dry substances, they inhale it through the nostrils, is that correct?

“The Witness: Yes sir.

“Mr. Schipul: Objection, Your Honor. Again, it’s irrelevant.

“The Court: I’ll give you an opportunity to cross-examine.

“Mr. Schipul: I’ll take an exception.

“The Court: And if one does not and utilizes it in the fashion of administering it internally to the vein, how is it so that the needle may do it? It’s in a dry state, isn’t it?

“Mr. Schipul: Objection, Your Honor. Irrelevant.

“The Court: Right.

“Mr. Rebollo [counsel for Baez]: The same objection, if Your Honor please.

“Mr. Schipul: Exception.

“The Court: Go ahead.

“The Witness: It can be heated, it then becomes a liquid form. And the liquid form is then injected into the vein.

“The Court: And one person buys it for however they are going to use it, in what quantities is it purchased?

“Mr. Schipul: Your Honor, I would object.

“The Court: (continuing) On the street. I’ll give you an opportunity to cross-examine.

“Mr. Schipul: Your Honor is placing yourself in the form of a second prosecutor at this point.

“The Court: No, I haven’t at all.

“Mr. Schipul: Taking an adversary approach.

“The Court: I’ll take care of objections in a minute. I’ve already prefaced it. It’s educational. The jury has no conception, presuming they all abide by the law, they don’t have any experience with the subject.

“Mr. Rebollo: Exception.

“The Court: All right.

“The Witness: Cocaine is sold by weight, which a quarter gram would be $25. A half gram would be $50. An entire gram is usually $100 to $125. And it’s also purchased by ounces, eighth ounces, quarter ounces, half ounces and then multi ounces, pounds, half pounds, quarter pounds and kilograms.

“The Court: Okay. Any questions on my inquiry?

“Mr. Schipul: Your Honor, I move to strike your questions and the answers as irrelevant and inflammatory and outside the scope of examination.

“The Court: I said I’d be right around to you in a second.

“Mr. Schipul: Thank you, Your Honor.”

The defendant’s objections and motions to strike this line of judicial questioning were subsequently denied.

The defendant’s first claim of error is that the court’s sua sponte questioning cast it in the role of an advocate for the state, that its prejudicial effect far outweighed the probative value, that the questioning was irrelevant to the issues in the case and that he was thereby denied his due process right to a fair trial. The state argues that the court’s questioning was merely informational, immaterial to the issues before the jury and neither supported nor diminished the credibility of any witness.

Our Supreme Court has recently defined the standards which govern the judge’s role at a trial as follows: “Due process of law guarantees a criminal defendant a fair trial before an impartial judge and jury in a neutral atmosphere. U.S. Const., amend. XIV; Conn. Const., art. I § 8; State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); State v. Gordon, 197 Conn. 413, 424D, 504 A.2d 1020 (1985). It is the trial court’s responsibility to conduct the trial in the ‘ “atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” ’ State v. Fernandez, supra, 10, quoting Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942); State v. Gordon, supra, 425; State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975). Particularly in the presence of the jury, which may readily be influenced by a judge’s words or conduct, the trial court has an obligation to comport itself in a circumspect and dispassionate manner. Quercia v. United States, 289 U.S. 466, 470, 53 S. Ct. 698, 77 L. Ed. 1321 (1933); State v. Fernandez, supra, 12; Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982); Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 503, 101 A.2d 500 (1953). The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s. State v. Fernandez, supra, 12; State v. Bember, 183 Conn. 394, 402, 439 A.2d 387 (1981); State v. Echols, supra, 14.” State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986).

As a threshold matter, we recognize that there may be appropriate circumstances when a trial court can exercise its discretionary right to intervene in the examination of a witness. In criminal cases, however, greater restraint in examining witnesses is required. See 81 Am. Jur. 2d, Witnesses § 420; 2 F. Wharton, Criminal Evidence (13th Ed. Torcía) § 407.

In this case, the trial court itself recognized that its questioning had “nothing to do with the ultimate questions in this case.” The trial court’s examination of Coyle was truly gratuitous. The questioning did nothing to clarify any previously given testimony, it did not bear directly on Coyle’s credibility, and it bore no relevance to any witness’ version of the facts in the case. See State v. Smith, supra, 550.

The state contends, however, that while the court’s examination of Coyle might have been inappropriate and imprudent, it did not constitute reversible error. We disagree. Irrelevance alone is not the only damning aspect of this questioning. In the context of this criminal case, the court’s expressed desire to “educate” the jury was an exercise fraught with peril.

During the examination of Coyle, the trial court elicited testimony regarding the origins of cocaine trafficking or the so-called Colombian connection, a graphic description of the manner in which the drug is ingested into the body, and information on the quantities and relevant costs available to a prospective cocaine purchaser. We fail to see how, against the background of a rather simple factual scenario put forth by the state, such questioning can be regarded as anything but inflammatory and prejudicial, the nature of which clearly outweighed any probative value.

While it is impossible to ascertain precisely what effect the trial court’s questioning had on the jury, it is clear to us that the court’s sua sponte examination of Coyle exceeded the parameters of acceptability. The trial court here crossed the fine line between being an “automaton” or “advocate”; see People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 422 N.E.2d 556, 439 N.Y.S.2d 896 (1981); and entered the realm of advocacy. Given the sensitivity and publicity that surrounds the problem of drugs in our society today, it is not difficult to conclude that the court’s questioning of Coyle evinced not merely an educational process for the jury but an overall atmosphere indicative of judicial condemnation of the drug scene in which the defendant was alleged to be involved. An indication of judicial condemnation of drugs and drug use is appropriate at sentencing, not during trial. “ ‘Interrogation of witnesses tends to assimilate the court’s role with the advocate’s, and may tread over the line separating the provinces of judge and jury. . . . There is the risk that the questioning [of witnesses] may bear “the seeds of tilting the balance against the accused” and place “the judge in the eyes of some jurors, on the side of the prosecution.” ’ United States v. Barbour, 420 F.2d 1319, 1321 (D.C. Cir. 1969).” State v. Fernandez, supra, 12. “Judicial conduct that takes ‘on the aspect of advocacy’ must be avoided.” Id., 16, quoting Blunt v. United States, 244 F.2d 355, 365 (D.C. Cir. 1957) (Bazelon, J.).

We conclude that the fine line separating permissible and impermissible judicial conduct has been crossed in this case. The trial court’s examination of Coyle resulted in prejudice to the defendant in that it denied him his constitutional right to a fair trial. A new trial is required.

II

The defendant’s next claim is that the trial court erred when it denied his repeated motions to sever his trial from that of his codefendants.

“The rules that govern motions for separate trials are well established in this state. When two or more criminal defendants are scheduled to be tried together and one or more moves for severance, separate trials ‘will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded.’ ” (Citations omitted.) State v. Vinal, 198 Conn. 644, 648, 504 A.2d 1364 (1986).

It is axiomatic that a defendant cannot successfully claim that his rights were prejudiced merely because the joint trial was less advantageous to him than separate trials. Id. Because the trial court enjoys a wide discretion in ruling on motions to sever, we will reverse only where there has been an abuse of discretion that prejudices the rights of the defendant. Id., 649.

The defendant contends that the defenses of his two codefendants were fundamentally antagonistic to his case, and, therefore, the trial court should have severed the trial of each defendant. “To decide whether severance was necessary, we must scrutinize the strategies employed by each defendant at trial and determine, in light of the trial court’s ongoing duty to monitor the fairness of the joint trial, whether conflict between the defendants tainted the proceeding.” Id.

In this case, each of the defendants claimed not to have possessed the narcotics that were found in the automobile. In the course of presenting their defenses, however, each of the defendant’s two codefendants adduced substantial evidence linking the defendant to the narcotics. Counsel for Baez adduced evidence from Kenney that when Kenney approached the car the defendant appeared “nervous and fidgety.” Soto’s counsel elicited testimony from the officer that he saw the defendant continually wipe his nose. Moreover, when Soto’s counsel sought to inquire of Kenney why the cocaine found on the floor of the back seat was in flakes and not in chunk form, he phrased the question as “[s]o, if someone in the back seat stamped on it, that would do it too?”

These facts, which were not adduced by the state, were significant in allowing the jury to convict the defendant of the crimes with which he was charged. As our Supreme Court noted in State v. Watson, 165 Conn. 577, 596, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974), the mere presence of a person in an automobile where an illegal substance is found is not sufficient evidence to support an inference that the person possessed the narcotics. There must be other indicia of ownership. Id. In this case, the testimony adduced by the other defendants provided evidence of a criminal link between the defendant and the narcotics found in the car. Accordingly, this record demonstrates that the defenses raised by the defendant’s two codefendants were antagonistic to the defendant who claimed to have been an innocent passenger. It also demonstrates that the defendant was substantially prejudiced by the court’s denial of his motion to sever. The defendant must be afforded a separate trial on remand.

Ill

We next turn to the defendant’s claim that the trial court erred in failing to suppress evidence seized in violation of his fourth amendment rights. Our simple response to this claim is that the defendant has failed to establish that he is entitled to challenge the search of Soto’s vehicle and the seizure of the cocaine found therein.

“ ‘Fourth amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.’ ” State v. Morrill, 197 Conn. 507, 540, 498 A.2d 76 (1985), quoting Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 22 L. Ed. 2d 176, reh. denied sub nom., Ivanov v. U.S., 394 U.S. 939, 89 S. Ct. 1177, 22 L. Ed. 2d 475 (1969). At a suppression hearing, a defendant must sustain the burden of demonstrating a legitimate expectation of privacy in the area searched, “the necessary predicate to his claim of a violation of his fourth amendment rights.” State v. Morrill, supra, 542.

A passenger in a motor vehicle, who fails to demonstrate a possessory interest in the car itself or in any of the seized evidence, has no reasonable expectation of privacy in the area of the vehicle searched, and thus, he is precluded from contesting the validity of the search. State v. Manson, 13 Conn. App. 220, 223, 535 A.2d 829 (1988).

In the present case, the defendant claims he was an innocent passenger. Rather than claim any possessory interest in the bag of drugs, he wholly disclaims any acknowledgment of their existence. His claim, however, is that he, having been charged with a possessory crime, has a right to challenge the search. This is no longer the law. United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); State v. Altrui, 188 Conn. 161, 179, 448 A.2d 837 (1982); State v. Daay, 5 Conn. App. 496, 499, 500 A.2d 248 (1985). Accordingly, because the defendant cannot establish any reasonable expectation of privacy in the area searched in the automobile, we need not reach the fourth amendment claims he raises with respect to the seized evidence.

IV

The defendant’s next claim of error is that there was insufficient evidence to support the jury’s guilty verdicts for the crimes with which he was charged. The essence of the claim is that the state presented insufficient evidence to link the defendant to the cocaine or to any conspiracy to distribute it. The defendant argues that the state’s case against him was based purely on inference without positive evidence to support such inference. We do not agree.

At trial, the court denied two motions for acquittal on both counts, to which the defendant duly took exception. The defendant claims that the court erred in denying his motions for acquittal. Pursuant to Practice Book § 883, a motion for judgment of acquittal must be granted as to any offense for which the evidence “would not reasonably permit a finding of guilty,”

When a claim on appeal challenges the sufficiency of the evidence we first review the evidence in the light most favorable to sustaining the jury’s verdict; next we determine, whether, upon the facts established and the inferences reasonably drawn therefrom, “the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Simino, 200 Conn. 113, 117, 509 A.2d 1039 (1986); State v. Summerville, 13 Conn. App. 175, 184-85, 535 A.2d 818 (1988). Our inquiry focuses on whether “ ‘a rational trier of fact could find guilt proven beyond a reasonable doubt.’ ” State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

“ ‘ “To establish the crime of conspiracy under Section 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed.” State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975). The conspiracy may be proved through circumstantial evidence. State v. Hayes, 127 Conn. 543, 554, 18 A.2d 895 (1941).’ State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982).” State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987).

We conclude that the state presented sufficient evidence upon which the jury could reasonably have found the defendant guilty of conspiracy beyond a reasonable doubt. The defendant was a passenger in a car in which a large quantity of cocaine was found. Some of the cocaine was discovered in plain view on the vehicle floor in close proximity to the defendant. The testimony at trial further revealed that the vehicle in which the defendant was riding was being employed in a drug trafficking venture from New York to Boston in furtherance of a plan conducted by a “big guy” in Boston.

With respect to the defendant’s illegal possession of the narcotics, it is clear that “the state must prove, not only that the defendant, ‘exercised dominion and control over the substance, [but that he] had knowledge of its presence, and had knowledge of its narcotic character.’ State v. Williams, 169 Conn. 322, 335, 363 A.2d 114 (1975).” State v. Parent, 8 Conn. App. 469, 473, 513 A.2d 725 (1986). Furthermore, when the drugs are found in a car with more than one passenger, the mere presence of a person in the car is not sufficient to support an inference that he possessed the drugs. State v. Watson, supra, 596. There must be other indicia of ownership. Id. In this case, there was sufficient other indicia of ownership. The drugs were found on the back floor of the car near the defendant’s feet, and the defendant was seen continually wiping his nose and appeared fidgety and nervous. We conclude that the defendant was not entitled to a judgment of acquittal.

V

The defendant next claims that the trial court erred in its instructions to the jury. Specifically, the defendant claims that the court erred by not giving the entire text of his requested charge on reputation evidence.

We begin our analysis of this claim by noting that “ ‘[w]hen a proper request is filed pursuant to Practice Book § 852 or exception is taken pursuant to § 854 the test is whether the charge properly covered the substance of the written request or properly and adequately covered the specific subject matter of the exception.’ State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). ‘ “[T]he charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” State v. Bell, 153 Conn. 540, 544, 219 A.2d 218 (1966).’ State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980). ‘ “The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request; its responsibility is performed when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.” State v. Harden, 175 Conn. 315, 322-23, 398 A.2d 1169 (1978).’ State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986); see also, State v. Fuller, 199 Conn. 273, 279, 506 A.2d 556 (1986); State v. Timmons, 7 Conn. App. 457, 463, 509 A.2d 64 (1986).” State v. Delgado, 13 Conn. App. 139, 144-45, 535 A.2d 371 (1987).

In this case, the court gave most of the defendant’s requested instruction on reputation evidence. The court instructed the jury it was to consider the defendant’s reputation for truthfulness in the community. The court further instructed the jury that, on a doubtful question, good reputation alone might be sufficient to raise a reasonable doubt as to the guilt of the accused. We find that these instructions adequately covered the substance of the defendant’s request and that the defendant was not entitled to further instructions on the issue.

VI

The defendant’s final claim, namely, that the trial court erred in permitting the state toxicologist, Charles Reading, to testify as to the number of “street packets” which could be obtained from the seized cocaine, also requires little discussion.

Reading first testified that he had seen cocaine packaged for street sale in his laboratory and that it usually amounted to 100 to 200 milligrams per package. He then opined that 7500 packages at 100 milligrams each with a 25 percent purity rating could have been packaged for street sale from the seized material. The defendant objected to Reading’s opinion, claiming that it was prejudicial, lacked foundation and was speculative. On appeal, however, he has shifted his claim to a challenge to Reading’s expertise to give the aforementioned opinion. Although ordinarily such a shift would preclude review of this claim, we will review it here because it is likely to arise in the retrial.

We note that the qualifications of Reading are well documented in the transcript, and, at the outset of his testimony, the defendant stipulated to those qualifications. The defendant claims, however, that notwithstanding his expertise, Reading was unqualified to testify about the packaging and resale of drugs that he has analyzed. We disagree.

“The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.” (Citations omitted.) State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). On appellate review we will not disturb the exercise of such discretion unless it has been abused or “the error is clear and involves a misconception of the law.” State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987).

In the present case we are not faced with a situation in which the lack of qualification of Reading, the expert witness, is claimed. “As the witness qualified as an expert, any objection to his testimony would go to its weight rather than to its admissibility.” (Citations omitted.) State v. Avila, 166 Conn. 569, 576, 353 A.2d 776 (1974). Here, the toxicologist had fifteen years of duty in the state toxicological services laboratory; chief among his duties was the analysis of contraband items seized by state law enforcement agencies. Reading’s expert testimony regarding the purity of the cocaine and the number of individual retail packages that could be produced from it fell well within his background and expertise. The trial court did not abuse its discretion in ruling that such testimony was admissible.

There is error, the judgment is set aside and the case is remanded for a new trial in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in pertinent part for criminal penalties for: “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person . . . .”
      General Statutes § 53a-48 provides: “(a) 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.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       The defendant also claims that the state failed to prove a sufficient chain of custody to warrant the admission of the narcotics into evidence. Because the case will be remanded for a new trial and the state will have to prove a new chain of custody, we will not review this claim at this time. State v. Peay, 13 Conn. App. 578, 579, 538 A.2d 708 (1988).

       We note that the trial court’s instructions to the jury contained general, standard language regarding the manner in which the jury was to consider judicial comments on the evidence during the trial. We do not find, however, that the court’s instruction cured the infirmity of judicial misconduct in this case.

       The defendant claims alternatively that the trial court should have granted his motions for severance because at the joint trial the state introduced the confession of one of his codefendants into evidence and thereby violated the defendant’s sixth amendment right to confrontation. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). Our holding on the issue of antagonism between the defendants obviates the need for us to consider this claim.

       The defendant also claims that certain of the trial court’s comments constituted reversible error. We will not review these claims at this time, however, because the defendant will be afforded a new trial, and these issues are not likely to recur. State v. Peay, 13 Conn. App. 578, 579, 538 A.2d 708 (1988).

       The trial court properly limited its instructions to the defendant’s reputation for truthfulness because that was the only such evidence produced at trial. The trial court does not have an obligation to instruct the jury on the defendant’s good reputation in general, even if so requested, if such evidence is not produced at trial. See State v. Timmons, 7 Conn. App. 457, 467, 509 A.2d 64, cert. granted, 201 Conn. 802, 513 A.2d 697 (1986). “ ‘A court does not err in declining to charge the jury on an issue not supported by the evidence, particularly where such charge might unfairly prejudice the jury.’ Bonner v. Winter, 175 Conn. 41, 47, 392 A.2d 436 (1978).” Id.


author: Borden, J.

text:
    State of Connecticut v. Anthony Chapman State of Connecticut v. Melvin Daniels
    (5093)
    (5097)
    Borden, Daly and Norcott, Js.
    Argued May 9
    decision released September 6, 1988

      Adele V. Patterson, certified legal intern, with whom were Timothy H. Everett and, on the brief, Michael R. Sheldon and Todd D. Fernow, for the appellant (defendant in the first case).

      James L. Radda, special public defender, for the appellant (defendant in the second case).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, was Robert J. Devlin, assistant state’s attorney, for the appellee (state).
   Borden, J.

In these combined appeals, the defendants challenge the judgments of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and of criminal attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-49. The defendant Anthony Chapman raises three claims of error: (1) the trial court erred in admitting into evidence the in-court identification testimony of a witness because the identification was tainted and unreliable as a matter of constitutional law; (2) the court abused its discretion in failing to grant defense counsel’s request for a recess in which to prepare further cross-examination of the identifying witness; and (3) the court erred in refusing to admit into evidence a tape recording of the telephone conversation of another witness made on the night of the crime. The defendant Melvin Daniels joins Chapman’s third claim of error, and, in addition, claims that the trial court denied him a fair trial when it admitted the challenged identification of Chapman and when it denied Chapman’s request for a recess. We find no error.

The jury could reasonably have found the following facts. At approximately 9 p.m. on July 26, 1985, three men committed a robbery at the New China Restaurant on Howe Street in New Haven. One robber wore a stocking mask and two wore bandanas. One of the men wearing bandanas also carried a sawed-off shotgun. Shortly before 10 p.m., another robbery occurred at an Exxon station on Whalley Avenue in New Haven. Two men, one wearing a stocking mask and one wearing a bandana and carrying a sawed-off shotgun, entered the Exxon station and demanded that the night manager, John Cooke, empty the register. When Cooke hesitated, the robber wearing the bandana poked the shotgun in Cooke’s face, cutting his upper lip. The robbers then fled with the contents of the cash register and various items and cash taken from Cooke and two bystanders. Immediately thereafter, a customer handed Cooke a slip of paper on which he had-noted the license plate number of the robbers’ car. Less than a minute later, a similar robbery occurred at a convenience store two blocks away.

The police traced the license plate number of the car to Louise Mabry. She had loaned the car that evening to a friend, James Owens. After his arrest, Owens cooperated with the police, confessing his part in the three robberies and identifying the other two participants as Chapman and Daniels.

At the joint trial of Chapman and Daniels, four witnesses to the New China Restaurant robbery testified. Three witnesses, including Cooke, testified regarding the robbery of the Exxon station, and three witnesses regarding the convenience store robbery. Because the robbers had been wearing masks, however, none of the witnesses were able to identify either Chapman or Daniels before trial.

During a recess following the completion of Cooke’s testimony, Cooke informed the state that he recognized Chapman, who had been sitting at counsel table, as the robber with the shotgun. After the recess, the state moved to recall Cooke to identify Chapman. Chapman’s counsel objected; counsel for Daniels was silent. The court heard argument, out of the jury’s presence, on the admissibility of Cooke’s identification testimony. Cooke’s examination by Chapman’s counsel during this hearing revealed that Cooke had been informed by the state that Owens had turned state’s evidence. The trial court overruled Chapman’s objection and denied the request of Chapman’s counsel for a recess in which to prepare his cross-examination of Cooke’s identification testimony.

When the jury returned, Cooke testified that he had recognized Chapman’s eyes when the two exchanged glances during Cooke’s previous examination. On cross-examination, Cooke admitted that his recognition was based solely on Chapman’s eyes and the shape of his head, which, because of the bandana, was all Cooke was able to see during the robbery. Cooke testified that he was “99 percent sure” that Chapman was the robber with the shotgun.

I

Chapman first claims that the suggestive setting of Cooke’s in-court identification, together with the fact that Cooke had been told that Owens was turning state’s evidence, rendered Cooke’s identification of Chapman unreliable and inadmissible as a matter of constitutional law. We disagree.

Chapman’s reliance upon cases that apply to out-of-court identification procedures that taint an in-court identification is misplaced. Those cases focus on the propriety of police or prosecutorial identification procedures before trial that might taint a subsequent in-court identification. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); State v. Nelson, 4 Conn. App. 514, 495 A.2d 298 (1985). A different rule applies regarding the in-court identification of a defendant where, as here, there has been no pretrial identification; the in-court identification testimony is admissible “ ‘within the discretion of the trial court, with the weight of the identification to be determined by the jury.’ ” State v. Elliott, 8 Conn. App. 566, 571, 513 A.2d 1285 (1986); State v. Frazier, 7 Conn. App. 27, 37, 507 A.2d 509 (1986).

Chapman makes much of the fact that Cooke was informed that Owens was turning state’s evidence against the other defendants. He urges us to employ this occurrence as a surrogate for an actual pretrial identification procedure, claiming that the information about Owens strongly suggested that the police believed they had apprehended the guilty parties, and that this suggestion tainted Cooke’s in-court identification. We do not find this position persuasive.

Chapman does not suggest that the information about Owens reached Cooke by design or as the result of any police or prosecutorial procedure. State v. Elliott, supra, 569 (a defendant attempting to suppress identification evidence has the burden of proving that identification resulted from some unconstitutional procedure); see State v. Aversa, 197 Conn. 685, 693, 501 A.2d 370 (1985); State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984); see also State v. Nelson, supra, 516. Nor is it likely that the information in question imprinted the image of Chapman on Cooke’s mind in such a way that his recognition of Chapman’s face must have been derived from the suggestive information. “Reliability is the linchpin in determining the admissibility of identification evidence.” Manson v. Brathwaite, supra, 114. The information in question does not cast suspicion upon the reliability of the witness’ identification in the same way, or to the same degree, as a genuine visual confrontation. It is generically different from a suggestive out-of-court identification procedure and therefore does not trigger constitutional scrutiny. The information created a potential weakness in the witness’ credibility which defense counsel was free to probe on cross-examination. “The innate weakness in any in-court testimonial identification is grounds for assailing its weight rather than its admissibility.” State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986).

II

Chapman next claims that the trial court erred in refusing to grant his request for a recess in order to prepare further cross-examination of Cooke after the trial court denied his motion to suppress Cooke’s identification testimony. This claim is without merit.

The decision to grant or deny a continuance lies within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. State v. Huff, 10 Conn. App. 330, 346, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). No such abuse is shown unless the trial court acted arbitrarily and substantially impaired the defendant’s ability to defend himself. Id.

The record does not support Chapman’s claim of abuse of discretion. Chapman argues that he was surprised by Cooke’s revelation that he recognized Chapman, and that he required further time to prepare his cross-examination. Chapman has failed to identify, however, any particular way in which he would have been aided had he been given further time to prepare his cross-examination. He had already cross-examined Cooke extensively earlier in the day; the only subject upon which further cross-examination would be allowed was Cooke’s in-court identification, and the record does not indicate any shortcoming or defect in that examination attributable to a lack of preparation.

Ill

Chapman and Daniels both claim that tfle court violated their rights of confrontation and abused its discretion by refusing to admit into evidence, for impeachment purposes, tape recordings of two telephone conversations between Owens and Mabry made on the night of the crime. We disagree.

On the night of the robberies, before the arrest of Owens and his subsequent decision to cooperate with the police, the police tape recorded two telephone conversations between Owens and Mabry, the owner of the car used in the robberies. Mabry, who was cooperating with the police, repeatedly questioned Owens about his participation in the robberies. Owens denied participating in or having any knowledge of the robberies; he fabricated an elaborate story to explain how Mabry’s car, which he had borrowed, could have been used in three robberies without his knowledge. On the phone with Mabry, he swore to the truth of his story over the graves of his mother and his child.

On direct examination at trial, Owens described the three robberies and identified Chapman and Daniels as his accomplices. Chapman and Daniels cross-examined Owens extensively on the circumstances surrounding his testifying for the state, and on the contents of the tape. He testified that virtually every element of his story to Mabry on the telephone, including his repeated denials of involvement in the robberies, were lies.

The defendants then sought to further their impeachment of Owens by introducing the tape recorded conversations. They argued that the tape was admissible to impeach Owens because it contained his denials of involvement in the crimes, was replete with prior inconsistent statements, and demonstrated his concern for himself and his lack of concern for Mabry. They also argued that the tape revealed in a way that could not be reproduced on cross-examination Owens’s ready capacity to lie. The court after listening to the forty minute tape in camera, sustained the state’s objection. The defendants duly excepted.

The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial court, but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the confrontation clause of the sixth amendment. State v. Cox, 7 Conn. App. 377, 384, 509 A.2d 36 (1986). “A claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis: (1) whether the constitutional standard has been met; and (2) if so, whether the court nonetheless abused its discretion.” State v. Diorio, 12 Conn. App. 74, 76, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987), cert. denied, 484 U.S. 1065, 108 S. Ct. 1025, 98 L. Ed. 2d 990 (1988). The constitutional standard is satisfied when a defendant has been “ ‘permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ ” State v. Jones, 205 Conn. 638, 669, 534 A.2d 1199 (1987).

The constitutional standard was met in this case. Both defendants were permitted to question Owens at length regarding his character, his habitual lying, and his strong motive for testifying for the state. This cross-examination clearly revealed Owens’s motive for giving a good performance for the state, and illustrated his history of lying whenever it was in his interests to do so. The tape was not played for the jury primarily because the trial court believed that the few statements on the tape that Owens had not unequivocally admitted making dealt with collateral issues. We are confident that the jury, even without hearing the tape, was presented with sufficient facts from which it could appropriately draw inferences regarding the reliability of Owens.

Nor did the trial court abuse its discretion by refusing to admit the tape into evidence. “ ‘ “To establish an abuse of discretion, appellants must show that the restrictions imposed upon their cross-examination were clearly prejudicial.” ’ State v. Gaynor, [182 Conn. 501, 510, 438 A.2d 749 (1980)]. Our review of the transcript indicates that the [defendants were] not prejudiced. The [defendants were] permitted the opportunity to cross-examine the state’s witness extensively regarding bias or improper motive. When the right to cross-examine to demonstrate bias, motive, or prejudice is not altogether denied, the scope and extent of the cross-examination rests in the court’s discretion.” State v. Diorio, supra, 77.

IV

We turn our attention last to the claim of Daniels that the court violated his right to a fair trial when it allowed the state to present the in-court identification of Chapman by Cooke, and when it denied Chapman’s request for a recess in which to prepare for cross-examination of Cooke after his identification of Chapman. Because Daniels failed to raise these claims in the trial court, these claims appear before us “necessarily swaddled in the hopeful mantle of [State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973)] . . . .” State v. Cosby, 6 Conn. App. 164, 172, 504 A.2d 1071 (1986).

We decline to review these claims. Although Daniels asserts that his claims involve the colorable deprivation of fundamental constitutional rights and a fair trial, “our limited review of the record discloses . . . that the defendant’s [claims are] not truly of constitutional proportions, but [are] simply characterized as such by him.” State v. Huff, supra, 335.

Our refusal to review these claims is reinforced by the fact that counsel for Daniels did not make these claims at all, even as he sat at counsel table and observed Chapman’s counsel present them properly to the trial court. We cannot imagine that, under these circumstances, the failure of Daniels to make his objections known was mere inadvertence. The inference is overwhelming that his silence was a trial tactic, employed to emphasize that Cooke’s identification testimony implicated only Chapman, and not Daniels. Compare id., 338 n.6. “[H]is silence at trial is a powerful signal that, because of the posture of the case, he did not [view the trial court’s rulings] in the harmful manner which he presses on appeal, or even if he did so [view them], he did not deem [them] harmful enough to press in the trial court. When the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate • claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial . . . is seriously undercut.” Id., 338.

There is no error in either appeal.

In this opinion the other judges concurred.

       On cross-examination, Cooke could not recall precisely who gave him the information, although he did admit that it was probably the New Haven police or the state’s attorney’s office. Chapman’s trial counsel alleged, during the hearing on Chapman’s motion to suppress, that the “probation department” was the responsible party. The state’s brief is silent on the issue, as was the assistant state’s attorney at trial.

       On cross-examination, Owens testified, inter alia, to the following: (1) he had been charged with a total of nine counts, including robbery and conspiracy, stemming from the robberies; (2) he had a prior felony record and was facing over one hundred years in prison; (3) he had struck a good deal with the state’s attorney’s office which would significantly reduce the time he spent in prison; (4) he was aware that his cooperation with the state
      would be made known to the judge sentencing him; (5) the length of his prison term would depend on his performance in court; (6) he has no qualms about lying to the police when it suits his interests; and (7) swearing to the truth did not mean much to him.

       The defendant also raises this argument on appeal, citing State v. Rollinson, 203 Conn. 641, 526 A.2d 1283 (1987), to support the proposition that a tape recording that shows the context and demeanor of a witness when making an out-of-court statement is admissible. Rollinson, however, does not support this claim. In Rollinson, the issue of the tape’s admissibility “arose in the context of the defendant’s efforts to persuade the jury that it was [the state’s witness] who killed the victim. [The state’s witness] had testified for the state about his lack of involvement with the crime; the defendant [then] cross-examined him extensively about a written confession that he had previously given to the police. As a part of this cross-examination, [the state’s witness] read his confession aloud to the jury. The state, on redirect examination, questioned [the state’s witness] about the circumstances leading to his confession. It offered the interrogation tapes into evidence in order to show [the state’s witness’] state of mind when he confessed; his apparent confusion and memory lapses, his concern for his drinking problems, and his emotional and distraught behavior.” Id., 659. The trial court admitted the tapes, cautioning the jury that their contents were not proof of what had. been said.
      The situation in Rollinson, therefore, differs in several material aspects: the defense was not merely impeaching the credibility of the state’s witness but was accusing the witness of committing the very crime for which the defendant was being tried. The tapes, now bearing directly on the issue of whether the defendant was the killer, were admitted only to place in context the otherwise highly suggestive confession of the witness. In Rollinson, the court stated: “[t]his evidence was highly relevant to rebut the inference that the jury would otherwise have been likely to draw from the fact of [the state’s witness’] confession, which was potentially very damaging to the state’s case.” (Emphasis added.) Id., 660. In the present case, there was no likelihood of the jury reaching an erroneous decision but for the admission of the tapes. The defendants sought the admission of the tapes in order to complete the impeachment of a witness whose credibility had already been thoroughly attacked.


text:
    Evelyn B. Horn, Warden v. Freedom of Information Commission et al.
    (6177)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 8
    decision released September 6, 1988

      Theresa A. Hopkins, special counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Carl J. Schuman, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Cornelius F. Tuohy, assistant attorney general, for the appellee (plaintiff).
   Borden, J.

The named defendant, the freedom of information commission (FOIC), appeals from the judgment of the trial court reversing an FOIC decision. That decision declared null and void a sixty-day suspension of a state employee who was wrongfully denied access to documents in the possession of the department of correction which were relevant to an impending disciplinary action. The issue dispositive of this appeal is whether the FOIC abused its discretion in nullifying the suspension based upon a violation of the Freedom of Information Act (FOIA). We conclude that, under the circumstances of this case, the FOIC order regarding the employment sanction imposed on the state employee constituted an abuse of discretion, and, accordingly, we find no error.

The facts of this case are undisputed. On August 21, 1984, the defendant Robert Nichols, an employee of the department of correction, was interviewed by the plaintiff, the warden of the Hartford Community Correctional Center, concerning allegations that on twelve occasions in 1982, 1983 and 1984, Nichols had called in sick for his regular shift at the correctional center on days he worked at a second job at Bulkeley High School in Hartford. The purpose of the interview was to allow Nichols an opportunity to respond to the allegations prior to the imposition of disciplinary action. During the interview, the plaintiff referred to a document on her desk that was Nichols’ attendance sheet from his second job. At the interview, Nichols requested that he be allowed to inspect the attendance sheet. His request was denied on the ground that the attendance sheet had been received by a department of correction personnel officer and was the basis for the disciplinary action. On August 23, 1984, Nichols was notified of his suspension by the department of correction for sixty days without pay.

By letter dated August 29, 1984, Nichols again made a request of the plaintiff to inspect the documents in his personnel file. Receiving no response to his request, Nichols filed a complaint with the FOIC.

While the matter was pending before the FOIC, Nichols filed a grievance concerning his suspension. As part of the grievance process, Nichols was shown the attendance sheets. Following the hearing before the FOIC hearing officer but before the FOIC issued its final decision, the grievance proceeded to the arbitration level where Nichols and the department of correction reached a stipulated agreement in “full and final settlement” of the grievance, in which the length of the proposed suspension was reduced from sixty days to thirty days and the grievance concerning the suspension was “withdrawn with prejudice.”

Prior to the time when the FOIC issued its final decision, the plaintiff moved to remand the matter to the hearing officer to consider the effect of the settlement agreement on the proposed order. By doing so, and by including a copy of the settlement agreement with the motion, the plaintiff made the settlement agreement part of the administrative record before the FOIC at the time of its final decision.

Thereafter, the FOIC issued its decision in accordance with the hearing officer’s proposed order, finding that the plaintiff had withheld public records in violation of the FOIA and that the plaintiffs refusal to grant Nichols access to his records had severely prejudiced his ability to respond to the charges against him. The FOIC then ordered (1) that the action of the plaintiff in issuing a sixty-day suspension was null and void, (2) that the plaintiff restore to Nichols any wages lost as a result of the suspension, and (3) that the plaintiff make available to all correctional center employees information in their own personnel files pursuant to the FOIA. The trial court sustained the plaintiffs appeal from the decision of the FOIC. This appeal followed.

The trial court concluded that the FOIC abused its discretion in nullifying the state agency’s employment decision. It reasoned that the settlement agreement between the parties, which was entered into during the course of an employee arbitration proceeding in accordance with the grievance procedure adopted by the department of correction and the union, was conclusive as to the issue of Nichols’ suspension, and precluded the FOIC from making any determination on that issue. We agree.

The plaintiff does not dispute that her refusal to make the attendance sheets available to Nichols violated the disclosure provisions of the FOIA. Upon finding a violation of the FOIA, the FOIC is authorized to order “the agency to comply forthwith with such relief as the commission, in its sound discretion, believes appropriate to rectify the denial of any right conferred by [the FOIA].” (Emphasis added.) General Statutes § l-21i (b). This broad grant of authority to remedy violations of the disclosure provisions of the FOIA, however, is not without limit.

The FOIC order at issue directly conflicted with, and had the effect of setting aside, a voluntary and mutual resolution of a dispute between two parties regarding a sanction to be imposed upon one of the parties. The order did not vindicate any interest of Nichols, who had resolved his grievance with his employer. Our law has long been clear that a “compromise agreement . . . if free from fraud, mistake or undue influence ... is conclusive between the parties.” Azzolina v. Sons of Italy, 119 Conn. 681, 689-90, 179 A. 201 (1935). Moreover, the settlement agreement here arose out of the grievance and arbitration process which was contractually agreed to by the parties. The FOIC’s interference with this “favored means of settling differences”; Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985); was unwarranted. The FOIC’s argument that public employee collective bargaining agreements and grievance settlements cannot super-cede the provisions of the FOIA misses the mark. The agreement here did not alter the disclosure requirements of the FOIA in any way. Rather, it limited the remedial measures not directly related to disclosure of information which are available to the FOIC upon a finding of a violation of the provisions of the FOIA. Under these circumstances, the FOIC’s interference with the private resolution of a dispute between the parties constituted an abuse of discretion.

In addition, in light of the grievance settlement entered into by Nichols, the FOIC abused its discretion in relying upon any prejudice to Nichols’ ability to respond to the agency’s charges at the August 21, 1984 interview to support its remedial order vacating the suspension and restoring lost wages. The settlement agreement did not address the merits of the respective charges and defenses of the parties thereto; rather, it constituted a waiver by the parties of any claims arising out of the dispute over the appropriate disciplinary sanction to be imposed. Whether the denial of access to Nichols’ records might have prejudiced his defense is irrelevant to the validity of the agreement, since Nichols waived his right to present any defense. In the absence of any suggestion that this waiver was the result of fraud, mistake, or undue influence, the agreement between Nichols and the agency is immune from collateral attack on the merits. Azzolina v. Sons of Italy, supra. Under the circumstances, the FOIC’s remedial order amounted to such an impermissible collateral attack.

There is no error.

In this opinion the other judges concurred.

       The Freedom of Information Act is set forth in General Statutes §§ 1-15, 1-18a, 1-19 through 1-19b, 1-20a through 1-21a, and 1-21c through 1-21k.

       The plaintiff has presented this court with an alternative ground for affirmance of the trial court’s decision, namely, that the FOIC lacked the statutory authority to review and nullify state agency employment action based upon a violation of the FOIA. In light of our disposition of the case on the grounds upon which the trial court sustained the plaintiffs administrative appeal, we need not address this issue.

       As decided by the trial court, the plaintiffs administrative appeal sought to challenge only the first two aspects of the FOIC ruling. The part of the FOIC decision requiring that the plaintiff make available to all correctional center employees information in their own personnel files, was not challenged in the trial court and is not part of this appeal.

       The trial court also determined that the FOIC’s failure to adhere to the time limitations of General Statutes § l-21i (b) invalidated its subsequent action. The court refused to give retroactive effect to Public Acts 1986, No. 86-408, § 2 (a). The plaintiff concedes that the court erred in this determination. See Galvin v. Freedom of Information Commission, 201 Conn. 448, 453-54, 518 A.2d 64 (1986); Hartford v. Freedom of Information Commission, 201 Conn. 421, 518 A.2d 49 (1986). This erroneous determination, however, was harmless because we conclude that the additional ground relied upon for the court’s judgment was proper.