author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. VASKA ANDERSON
    (AC 17456)
    SchaUer, Hennessy and Dupont, Js.

      Argued April 20
    officially released September 28, 1999

      Wesley S. Spears, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Cari E. Taylor, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Vaska Anderson, appeals from the judgment rendered on a jury verdict finding him guilty of possession of more than one kilogram of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), conspiracy to distribute more than one kilogram of marijuana by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 (a) and 2 la-278 (b), and possession of more than one kilogram of marijuana with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b).

On appeal, the defendant claims that he was denied a fair trial by an impartial jury because the trial court improperly denied his motion for a mistrial due to juror misconduct that occurred during the presentation of evidence. He also claims that the trial court improperly (1) failed to give a curative instruction concerning the juror misconduct, (2) denied the defendant’s motion for a mistrial when the jury indicated it was deadlocked and (3) instructed the jury concerning proof beyond a reasonable doubt. We conclude that the defendant’s motion for a mistrial due to juror misconduct should have been granted and, therefore, do not reach the other issues.

The record reflects the following relevant facts. On August 14, 1993, a Connecticut state police detective received notice from the Drug Enforcement Administration in Los Angeles, California, that a black woman in white clothing named Brenda McCoy, suspected of carrying narcotics, would be arriving at Bradley International Airport on TWA flight 290 at 8:30 p.m. that evening. Officers detained a woman at the airport fitting this description after a narcotics-detecting canine indicated that her suitcases contained narcotics. Her identification revealed that she was Brenda McCoy, and upon searching her suitcases, the officers found inside each a large bundle wrapped in cellophane and sheets covered with a blanket. The bundles weighed a total of 18.48 kilograms or 40.75 pounds and tested positive for marijuana. The officers placed McCoy under arrest.

McCoy told tire police that she was instructed to call a beeper number when she had the suitcases, and that a person would pick up the suitcases and give her $ 1500. McCoy called the beeper number and arranged the pickup. The police in unmarked cars watched while a Pontiac Grand Am with a woman in the driver’s seat and a male, later identified as the defendant, seated next to her, parked in front of McCoy’s apartment building. The defendant exited the vehicle and, after meeting McCoy at the front entrance, followed her to her apartment. As the defendant exited the building with the suitcases, the police ordered him to stop. The defendant, instead, dropped the suitcases and ran out of the building. While outside, he shouted to the woman in the car that they had been set up by the police. The defendant and the woman were apprehended and placed under arrest.

The defendant claims that he was denied a fair trial by an impartial jury because the trial court improperly denied his motion for a mistrial due to juror misconduct during the presentation of evidence. We agree with the defendant.

The following additional facts are relevant to this claim. The trial was conducted in front of six jurors and three alternate jurors. After the conclusion of the third day of trial, the trial judge was approached by an alternate juror, M, who indicated that she wanted to speak to the judge. The trial judge instructed the courtroom clerk to speak with the juror. M told the clerk that one of the jurors, L, had stated to the other jurors that he knew the defendant or had seen him “on the street,” that the defendant was not a nice person and that “they’re going to get this guy for something.” The clerk informed the trial judge of M’s statements, and the trial judge called counsel into court and had the clerk disclose M’s statements to them. The next day when court reconvened, the trial judge instructed the clerk to state for the record the statements M made to him. The trial judge decided that it would be necessary to call M into open court to ascertain exactly what she overheard or what had been said to her. Counsel would be given the opportunity to submit questions to the court for the court to ask the juror.

M testified that L stated to the other jurors that he knew the defendant and had seen him “on the street,” that the defendant was “not a very nice person” and that “they’re going to get this guy for something.” She testified that when she heard the statements, she thought that it did not seem right to her and that she should bring this matter to the court’s attention. She said that she realized that L did not know the defendant personally. M also said that at a subsequent break in the jury deliberating room, another juror asked her what she thought about what L had said and then commented that “it didn’t seem right.” When M was asked by the trial judge if she could sit fairly and impartially and decide the case solely on the basis of the evidence presented, M answered, “Yes.”

The court then examined L. L stated that he had realized after the trial began that he recognized the defendant as a man he had seen once before when L worked as an automobile mechanic, towing vehicles. L stated that he told the other jurors in the jury room that he knew the defendant. L also stated that he had no idea if the defendant was a nice person because he had never spoken with him and saw him only on that one occasion for a short period of time. L twice denied telling the other jurors that the defendant was not a very nice person and that “they” would get him for something.

On the basis of the testimony of M and L, the trial judge determined that a separate inquiry of the remaining five jurors and two alternates would be necessary. Juror W testified that another juror, while in the jury room, said that he knew the defendant on the street in the past. She stated that she could keep an operr mind and decide the case on the basis of the evidence. Juror T testified that in the jury room with all the jurors present, another juror said that he thought he saw the defendant once and that the defendant was “a pretty tough fellow.” T said that he “tightened up a little bit” when he heard the statements. When asked if he could decide the case fairly, T replied, “Absolutely yes.” He also stated that he could put aside what he had heard and decide the case on the basis of the evidence.

Jurors P and R testified that they did not hear any statements concerning the defendant. Juror K testified that she heard a juror mention that he passed the defendant orr the street once and that she heard the juror say something to the effect that the defendant “did bad” and “he knows he is in trouble.” When asked if she could be fair and impartial, K responded, “Oh, sure. It hasn’t changed anything.” She stated that she could put the statements aside and decide the case on the basis of the evidence. Juror A, an alternate, testified that he heard one juror state that he had seen the defendant on the street, but that no statements were made concerning what kind of person the defendant was or what should happen to the defendant, and that what he heard would in no way affect his decision. Juror C, another alternate, testified that one juror stated that he knew the defendant, not personally, but that he had seen the defendant “on the street.” C also testified that nothing was said as to whether the defendant was a bad person or concerning what should happen to him.

Thus, three of the jurors testified to hearing L’s statements regarding the defendant, namely, that the defendant was “not a very nice person,” that the defendant is “a pretty tough fellow,” that “he did bad” and “he knows he is in trouble,” and that “they’re going to get this guy for something.” Two jurors had no recollection whatsoever; the rest of the jurors and alternate jurors who heard something heard statements to the effect that L either knew the defendant or had seen him “on the street.” The trial judge instructed all of the jurors and the alternate jurors that they must decide the case solely on the basis of the evidence, and all of them testified that they could decide the case fairly and impartially.

Subsequent to the court’s questioning of the jurors, the defendant requested that L be removed from the jury panel. The state did not object and agreed that L should be discharged and replaced with one of the alternates. Before ruling, the trial court recessed so that defense counsel could confer with the defendant. After the recess, the defendant moved for a mistrial. The defendant acknowledged that the trial court had fully complied with the mandates of State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995), and had made an adequate inquiry into the alleged juror misconduct. The defendant also admitted that L’s statement that he knew the defendant from the street, if considered alone, was not prejudicial to the defendant. He claimed, however, that when combined with the other comments, the statements compromised the defendant’s right to a fair and impartial jury, and that no action short of a mistrial would be sufficiently curative. The state agreed that L should be removed, but argued that the trial should proceed with the remaining jurors and alternate jurors. Thereafter, the trial court discharged L from the juror panel and reserved decision on the motion until the following day.

The next day, the trial court denied the defendant’s motion because it concluded that the grounds for a mistrial did not exist. The trial court explained that it did not take extensive notes when the jurors were testifying because the court “wanted to look right at the jurors, observe them as they were talking, observe their reactions and form [its] opinion . . . .” The court stated that case law mandates that consideration of extrinsic evidence by a juror is presumptively prejudicial to a defendant because it implicates a defendant’s constitutional right to a fair trial by an impartial jury. The court noted, however, the distinction in the law between the mere expression of opinion as opposed to a positive expression of fact, and that in the former instance a mistrial is not warranted. The court stated that in the present case the kind of statements made were not of particular facts but rather statements of an opinion type.

The court also stated: “I did observe all of these jurors very closely and I thought all of them were being very honest and very candid and very genuine and sincere in their statement to the court .... [T]his would not many way affect their judgment in the case . . . .’’The court found the jurors’ statements to be “very credible.” The court stated that “based on my assessment of the jurors that came in to take the stand and aware of the jurors’ oath . . . we do not have a situation where they have formed an opinion of the accused . . . that is going to affect the way they view the accused or impact on their ability to be objective and impartial.”

The alternate juror who had called the court’s attention to the improper remarks, M, was not selected as a juror to replace L. Alternate juror C became a regular member of the jury. The final deliberating body consisted of four jurors who had heard some of the remarks of L about the defendant and two jurors who had not heard anything said by L. Before beginning our discussion of whether the defendant was denied a fair trial by an impartial jury, we want to emphasize that the trial court conducted an exemplary examination of the jurors and alternates to determine the scope of the juror misconduct. We further note that the trial court and the parties acknowledged during the colloquy following the defendant’s motion for a mistrial, that no Connecticut case had decided the precise issue on the basis of facts similar to those in this case.

The defendant claims that the statements made were so prejudicial to him that he was denied his constitutional right to a fair trial. The defendant claims that L expressed “specific personal knowledge that the defendant was not a nice person and that the jury will get the defendant on something,” and that those statements were tantamount to the juror’s becoming a witness and prosecutor against the defendant. The defendant, who is black, also claims that the fact that the juror who made the statements was the only black juror gave credibility to the statements and “would likely influence the remaining jurors to convict a black defendant.” The defendant argues that the trial court abused its discretion in denying his motion for a mistrial, necessitating a new trial. The defendant urges, in the alternative, that, if no abuse of discretion is involved, this court exercise its supervisory authority over the administration of justice and grant him a new trial.

The standard of review in the usual criminal case involving the conduct of a juror is whether the trial court abused its discretion; State v. Brown, supra, 235 Conn. 524; in other “highly unusual cases,” review centers around whether the appellate court should exercise its supervisory power to demonstrate a lack of tolerance for the kind of conduct involved; State v. Pouncey, 241 Conn. 802, 812, 699 A.2d 901 (1997); and in yet others, it is whether the particular conduct or practice is so egregious as to undermine the structural integrity of the tribunal. See Arizona, v. Fulminante, 499 U.S. 279, 309-310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). We conclude that the facts of this case require that we exercise our supervisory authority over the administration of justice and order a new trial because we view the juror misconduct here as a contaminant affecting the structural integrity of the defendant’s trial.

I

SUPERVISORY AUTHORITY

“Due process requires that a criminal defendant be given a fair trial before an impartial jury. U.S. Const., amend XIV; Conn. Const., art. I, § 8. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982).” (Internal quotation marks omitted.) State v. Davis, 32 Conn. App. 21, 27, 628 A.2d 11 (1993). “Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the [cjonstitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” (Internal quotation marks omitted.) State v. Cubano, 203 Conn. 81, 88, 523 A.2d 495 (1987). Because there is no exact formula to test the impartiality of jurors, an appellate decision to invoke its supervisory authority to check the decision of a trial court as to that impartiality is discretionary. State v. Pouncey, supra, 241 Conn. 810 n.7.

We are aware that in Connecticut the general rule is that a trial court enjoys wide discretion in deciding whether a mistrial is warranted and that the courts of this state have “never hastened to find error in a trial court’s failure to grant a mistrial.” State v. Hancich, 200 Conn. 615, 626, 513 A.2d 638 (1986). In spite of the general rule, however, our courts have recognized that a motion for a mistrial must be granted in instances where the failure to grant the motion would “countenance the trivialization ... of our constitution” even though the state has presented sufficient evidence to sustain a defendant’s conviction. Id. In Hancich, the trial court had misstated the number of peremptory challenges to which the defendant was entitled and, therefore, a new trial was ordered by our Supreme Court.

We may invoke our supervisory authority even when the defect or error claimed is not so egregious as to have denied a defendant a fair trial if the claimed error or defect is unduly offensive to the maintenance of a sound judicial system. State v. Pouncey, supra, 241 Conn. 811-12. Whether to reverse a conviction on this basis takes into account several factors, which include a balancing of the interests involved, the extent of prejudice to the defendant, the emotional trauma to the victim and others who would have to testify again in a new trial, the practical problems due to a time lapse before a new trial can occur, the availability of other sanctions and whether the kind of conduct involved is widespread or used in other trials. Id., 813-16. Appellate courts are charged with the duty to exercise appropriately their inherent authority to safeguard the administration of justice. State v. Day, 233 Conn. 813, 855, 661 A.2d 539 (1995). Appellate review, therefore, should take into account the factors enumerated in Pouncey.

The interests involved here are those personal to the defendant and the public’s right to jury impartiality during the entire course of the trial. The prejudice to the defendant arises from the juiy being told that he was not of exemplary character based on extrinsic statements not presented to the jurors as part of the state’s case, and the fact that the statements were made during the course of the trial rather than after its conclusion. The crimes charged here do not involve an individual victim-witness. A sanction, such as a rule change, would not cure the problem as was suggested in State v. Day, supra, 233 Conn. 855-56, and the statements were not cumulative of other evidence. See State v. Rodriguez, 210 Conn. 315, 330, 554 A.2d 1080 (1989).

Although the testimony of each juror that he or she could be fair and impartial is significant, it is not determinative. Id. It is not determinative because when a trier of fact becomes privy to evidence that is statutorily or constitutionally prohibited, or which is not part of the evidence presented to it, a new trial becomes necessary even though there is no indication that such evidence affected the decision of the fact finder. See State v. Fitzgerald, 54 Conn. App. 258, 265, 737 A.2d 922 (1999); see also Borkowski v. Borkowski, 228 Conn. 729, 747-48, 638 A.2d 1060 (1994); Barbieri v. Cadillac Construction Corp., 174 Conn. 445, 451, 389 A.2d 1263 (1978) (per curiam). In Fitzgerald, Borkowski and Barbieri, the fact finder was a court, rather than a jury, as in this case. If there is no assurance that a trial judge trained in impartiality can put aside extrinsic, prejudicial evidence, it should not be assumed that the jurors in this case could either, in spite of their protestations to the contrary.

We conclude that we should exercise our supervisory authority over the administration of justice in this extraordinary case, as has been done in other extraordinary cases; see State v. Brown, supra, 235 Conn. 522-32; State v. Breton, 235 Conn. 206, 250, 663 A.2d 1026 (1995); State v. Jones, 234 Conn. 324, 346, 662 A.2d 1199 (1995); State v. Patterson, 230 Conn. 385, 390, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996); State v. Holloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); to conclude that a new trial is necessary.

II

STRUCTURAL INTEGRITY

There is a unique type of error that cannot be reviewed in terms of trial court discretion or abuse of discretion, its harmlessness or harmfulness to the defendant or its prejudice to the defendant, because it is a defect in the trial mechanism itself that defies such an analysis and requires automatic reversal. In such cases, analysis in terms of whether discretion was abused cannot be utilized because the defect is incurable and not correctable. The defect cannot, by definition, ever be cured by a discretionary act.

When the error undermines the structural integrity of the tribunal, no review for harmless error or prejudice to the defendant need be made. Such an error can never be harmless and automatically calls for reversal and a new trial. Sec Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). For example, an automatic reversal is required when the judge has a financial interest in the outcome of a trial despite the lack of any indication that his bias affected the outcome; Turney v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L. Ed. 749 (1927); or when there is a systematic exclusion from a grand jury of blacks; Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); or when a defendant has been denied the assistance of counsel; Glasser v. United States, 315 U.S. 60, 76, 62 S. Ct. 457, 86 L. Ed. 680 (1942); or when inherently adverse publicity has tainted the trial; Sheppard v. Maxwell, 384 U.S. 333, 351-52, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); or when there exists purposeful discrimination in the selection of jurors. Whitus v. Georgia, 385 U.S. 545, 549-50, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967). These cases do not involve trial error occurring during the presentation of the case to the jury but involve extrinsic factors not occurring in the courtroom. Nor do they require any showing of prejudice to the defendant. These cases recognize that violation of some constitutional rights, such as the right to a trial by an impartial jury, may require reversal without regard to the evidence in the particular case. This type of structural error renders a trial fundamentally unfair and is not susceptible to a harmless error analysis; see Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986); or an analysis based on prejudice to a defendant. See State v. Booth, 250 Conn. 611, 649, 737 A.2d 404 (1999). A harmless error analysis presupposes a trial at which a defendant is represented by counsel, and evidence and argument are presented in the courtroom before an impartial judge and jury. Rose v. Clark, supra, 578. When a structural error analysis is undertaken and such an error exists, the proceeding is vitiated. See Arizona v. Fulminante, supra, 499 U.S. 309-10; State v. Cruz, 41 Conn. App. 809, 811, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996); State v. Suplicki, 33 Conn. App. 126, 130, 634 A.2d 1179 (1993), cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994).

Even when the evidence for conviction is overwhelming and a trial is otherwise fair, the taint attributable to a structural defect cannot be purged. Vasquez v. Hillery, supra, 474 U.S. 263-64. “When constitutional error calls into question the objectivity of those charged with bringing a defendant to judgment, a reviewing court can neither indulge a presumption of regularity nor evaluate the resulting harm.” Id., 263.

Practice Book § 42-43 provides that a mistrial may be declared when there is “an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. ...” We view the remarks the dismissed juror made to the others as a legal defect requiring a new trial.

We are not, in this case, considering the competency of each of the jurors to serve, but whether the seeds of one juror’s opinion of the defendant interfered with the defendant’s right to due process to such an extent that nothing short of the declaration of a mistrial could cure that interference. See State v. Couture, 194 Conn. 530, 562-64, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). When the taint is so egregious as to be incurable, a new trial is warranted even if no prejudice to the defendant can be shown; id., 564; because a criminal trial protects not only the defendant but the entire citizenry. State v. Brown, supra, 235 Conn. 527. There are rights, such as those of a defendant to a fair and impartial jury, that protect values unrelated to the truth seeking function of a particular trial. See Rose v. Clark, supra, 478 U.S. 577-78.

This case is not about whether one juror should be removed from the panel because of bias,1 ** but whether, if, in the aggregate, the presumption that the extrinsic remarks were prejudicial could be overcome. Our inquiry relates to the nature of the remarks, not to the belief of each juror in his or her own fair-minded mental process.

The assurances of jurors that they are capable of the task is but one facet in a determination of the presence of bias. We conclude, however, that this case does not require an inquiry into whether bias existed, but an inquiry into the kind of defect L’s conduct caused. This case involves a systemic flaw the nature of which makes it difficult to assess its effect on the defendant. We conclude that the rule of mandatory reversal because of a structural defect should be applied.

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

In this opinion the other judges concurred.

       The defendant was charged with two other crimes, assault of a peace officer in violation of General Statutes § 53a-167c (a) and failure to appear in the first degree in violation of General Statutes § 53a-172 (a). He was found not guilty as to those changes. The defendant was sentenced to a total effective sentence of fourteen years.

       In State v. Brown, supra, 235 Conn. 526, our Supreme Court held: “Exercising our inherent supervisory power over the administration of justice, we now hold that henceforth a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. Although the form and scope of such an inquiry lie within a trial court’s discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto.”

       We recognize that the cases cited affect the future conduct of other trials rather than the trial of a particular defendant; State v. Patterson, supra, 230 Conn. 385; but there is nothing in the doctrine of supervisory appellate authority to limit its scope to prospective application. See State v. Pouncey, supra, 241 Conn. 813.

       In denying the motion for a mistrial, the trial court relied on State v. Cubano, supra, 203 Conn. 81. We view that case as inapposite because it did not involve juror misconduct, but speculation as to the possible bias of one juror who revealed to the parties and the court, after both summations had been given, that, one of her close friends, whom she saw in the courtroom during the summations, might be a friend of the defendant.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    CARL J. LIANO v. CITY OF BRIDGEPORT
    (AC 18550)
    Foti, Sehaller and Spear, Js.

      Argued June 3
    officially released September 28, 1999

      Carl J. Liano, pro se, the appellant-appellee (plaintiff).

      Jason M. Dodge, for the appellee-appellant (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Carl J. Liano, appeals from the decision of the compensation review board (board) dated June 3, 1998, affirming a decision of a workers’ compensation commissioner (commissioner) dated March 7, 1997. The defendant, the city of Bridgeport (city), cross appeals from the same decision. The plaintiff claims that the board improperly (1) determined that he was not entitled to have his benefits from 1983 to 1990 adjusted to include overtime and (2) deprived him of property without due process in violation of the federal and state constitutions. The defendant claims that the board improperly (1) determined that the plaintiff was entitled to overtime earnings after 1990 and (2) calculated the plaintiffs weekly compensation based on a date of injury of May 16,1983. We affirm in part and reverse in part the decision of the board.

The following procedural history and facts are necessary to a resolution of the appeal and cross appeal. The plaintiff was employed as a police officer for the city. He filed a claim on September 18,1979, based on injuries related to heart disease or hypertension suffered in the course of his duties. The commissioner determined that he suffered an injury that was compensable under the heart and hypertension statutes, General Statutes (Rev. to 1979) § 7-433a et seq., and awarded him benefits pursuant to General Statutes (Rev. to 1979) § 7-433c on September 30, 1983, with an effective date of injury of September 18, 1979. The commissioner held a subsequent hearing and, in a supplemental finding and award dated November 7, 1986, determined that the plaintiffs compensation rate was to be $204 per week. The commissioner further found that the plaintiff was temporarily totally disabled and ordered the city to make temporary total disability payments until further order of the commissioner. The plaintiff returned before the commissioner and, in a finding and award dated September 13,1988, was awarded insurance benefits pursuant to General Statutes (Rev. to 1979) § 31-51h. Neither party appealed from any of those decisions.

In August, 1993, the plaintiff filed a complaint with the freedom of information commission requesting documentation regarding police officers’ overtime rates and pay rates from the city for the years he worked on the police force. The freedom of information commission ordered that the city make those records available to the plaintiff.

On April 26, 1994, the commissioner issued yet another finding and award, determining that the plaintiffs weekly compensation rate was to be readjusted on the basis of a May 16, 1983 date of injury and that it was to include both “inside” and “outside” overtime compensation pursuant to Szudora v. Fairfield, 214 Conn. 552, 559, 573 A.2d 1 (1990), for 1990 and subsequent years. The commissioner also awarded the plaintiff interest and attorney’s fees, but determined that no facts had been presented from which the amount of attorney’s fees could be determined.

The defendant appealed to the board and the plaintiff cross appealed. In an opinion dated July 25, 1995, the board upheld the commissioner’s findings regarding the date for determining the plaintiffs weekly compensation and dismissed the defendant’s appeal. Specifically, the board held that after 1990, overtime earnings should be includable in the 100 percent cap as defined in General Statutes § 7-433b (b), but that the plaintiff was not entitled to a readjustment to include overtime for the years 1983 to 1990 because he had not provided the commissioner with any facts showing that police officers earned overtime wages prior to 1990. The board also remanded the case to the commissioner for a determination of attorney’s fees due the plaintiff. The plaintiff appealed and the defendant cross appealed to this court from the board’s July 25, 1995 opinion. We dismissed the appeal and cross appeal for lack of a final judgment because there had not been a finding as to the plaintiffs attorney’s fees, and our Supreme Court denied the plaintiffs petition for certification. Liano v. Bridgeport, 238 Conn. 906, 679 A.2d 1 (1996).

The plaintiff again returned to the commissioner, this time seeking an award of attorney’s fees. The commissioner awarded the plaintiff $6590 in attorney’s fees in a finding and award dated March 7,1997. The defendant appealed to the board, which remanded the issue of attorney’s fees to the commissioner on June 3, 1998, for a finding of reasonableness. The board also refused to revisit the redetermination of the plaintiffs date of injury and the recalculation of his weekly compensation rate, stating that its July 25, 1995 opinion was the law of the case.

On June 23, 1998, the plaintiff filed this appeal from the board’s June 3, 1998 decision. The defendant then filed its cross appeal. The defendant filed a motion to dismiss the plaintiffs appeal on July 1,1998. We granted the defendant’s motion to dismiss, limited to the issue of attorney’s fees, for lack of a final judgment in light of Benvenuto v. Mahajan, 245 Conn. 495, 715 A.2d 743 (1998). As a result of that dismissal, the defendant’s cross appeal on the same issue also was dismissed. We also, sua sponte, struck that portion of the plaintiffs brief addressing the issue of attorney’s fees.

In this appeal, the plaintiff claims that the board improperly affirmed the commissioner’s finding that he was not entitled to an adjustment of his weekly compensation to include overtime wages from the years 1983 to 1990. We are not persuaded. The defendant claims in its cross appeal that the commissioner improperly determined that the plaintiff was entitled to overtime compensation for the year’s 1990 and following, and that the plaintiffs date of injury was improperly changed from September 18, 1979, to May 16, 1983. We agree. The dispositive issue of both the appeal and cross appeal is whether the commissioner’s finding and award of November 7, 1986, was final at the time our Supreme Court decided Szudora.

Our standard of review in workers’ compensation cases is well settled. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted; internal quotation marks omitted.) Fair v. People's Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988).

We first address the question of whether the plaintiffs case was pending at the time our Supreme Court decided Szudora v. Fairfield, supra, 214 Conn. 552, or whether it was a final judgment that was modifiable only in the situations indicated in General Statutes § 31-315. In Szudora, the court held that the 100 percent cap in § 7-433b (b) “required consideration not only of base pay but also of overtime payments to similarly situated working members of the defendant’s police department.” Szudora v. Fairfield, supra, 554. The plaintiff relies on Szudora to support his position that the commissioner correctly adjusted his post-1990 compensation to include overtime and incorrectly failed to include overtime for the years 1983 to 1990. Our Supreme Court recently decided Marone v. Waterbury, 244 Conn. 1, 707 A.2d 725 (1998) (en banc), which presents facts similar to those in the present case. “The plaintiff, Vincent Marone, a Waterbury police officer, was diagnosed on September 9,1980, as suffering from hypertension .... He reached maximum medical improvement on April 15, 1982, and retired on that date .... On July 14, 1983, the plaintiff was awarded disability benefits pursuant to § 7-433c .... On June 21,1994, the plaintiff requested a recalculation, in accordance with Szudora, of his weekly compensation . . . .” Id., 4. Marone’s request was denied by the commissioner, which decision was affirmed by the board because (1) Szudora did not apply retroactively, (2) the action was no longer pending and (3) such a result would be unduly burdensome to municipalities. Id., 5. The board, however, held that Szudora could be applied prospectively. Id.

“Whether a judgment is final depends upon the governing statute. ‘[T]he line that separates lower court judgments that are pending on appeal (or may still be appealed), from lower court judgments that are final, is determined by statute .... Having achieved finality ... a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy. . . .’Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995).” Marone v. Waterbury, supra, 244 Conn. 12. As in Mar-one, the plaintiff in the present case began receiving benefits pursuant to the 1986 supplemental finding and award. The present case is controlled by our Supreme Court’s decision in Marone. Because neither party in the present case appealed from the original 1983 finding and award, the 1986 supplemental finding and award or even the 1988 finding and award, those decisions became final after the appeal periods expired, well before Szudora was decided.

We next decide whether the initial award was subject to modification pursuant to § 31-315. We conclude that it was not. Again, Marone governs this case. “The power of the commission to hear modification requests is determined by the provisions of § 31-315. ‘It is clear that an administrative body must act strictly within its statutory authority, within its constitutional limitations and in a lawful manner.’ Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). The parties to a claim cannot, by agreement, endow the commission with the authority to decide that claim. Jester v. Thompson, 99 Conn. 236, 238, 121 A. 470 (1923). Additionally, a decision of an administrative agency cannot be ‘set aside upon the sole ground that it is erroneous in matter of law, except by a court exercising appellate or revisory jurisdiction, unless authorized by statute, or unless the error is one going to the jurisdiction.’ . . . Kalinick v. Collins Co., [116 Conn. 1, 8, 163 A. 460 (1932)]. . . .

“Section 31-315 allows the commission to modify an award in three situations. First, modification is permitted where ‘the incapacity of an injured employee has increased, decreased or ceased, or . . . the measure of dependence on account of which the compensation is paid has changed . . . .’ Second, the award may be modified when ‘changed conditions of fact have arisen which necessitate a change of [the award].’ . . .Third, ‘[t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court.’ This provision extends the commission’s power to open and modify judgments to cases of accident; Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180, 188, 123 A. 9 (1923); to mistakes of fact; Fair v. Hartford Rubber Works Co., 95 Conn. 350, 355, 111 A. 193 (1920); and to fraud; Grabowski v. Miskell, 97 Conn. 76, 84, 115 A. 691 (1921); but not to mistakes of law. Kalinick v. Collins Co., supra, 116 Conn. 4-5. The final clause of § 31-315 allows the commission to retain jurisdiction over claims during the entire compensable period. This provision, however, does not independently confer authority to modify awards for reasons not otherwise enumerated in § 31-315. Id., 7-8.” Marone v. Waterbury, supra, 244 Conn. 16-17. The plaintiff in the present case did not allege that he met any of the criteria set forth in § 31-315 to warrant modifying his award. He relies solely on Szudora.

The court in Marone held that Szudora was a new interpretation of the law and, therefore, could be applied only to pending cases. Id., 18. Because the plaintiffs case was not pending at the time of the Szudora decision, § 31-315 does not permit the commission to modify the plaintiffs award on the basis of the definition of weekly compensation set forth in Szudora. Furthermore, because the plaintiffs award was a final judgment, he was not entitled to have the commission adjust his weekly compensation on the basis of a date of injury of May 16, 1983, because he did not show that he met the requirements of § 31-315.

On the plaintiffs appeal, the decision of the compensation review board is affirmed with respect to that portion determining that the plaintiff is not entitled to a recalculation of the cap pursuant to § 7-433b (b) to include overtime payments for the years 1983 to 1990. On the defendant’s cross appeal, the decision of the compensation review board is reversed with respect to those portions that modify the original date of injury and determine that the plaintiff was entitled to include overtime wages in the computation of the cap pursuant to § 7-433b (b) for the years 1990 and following. The case is remanded to the board with direction to remand the matter to the commissioner for the recalculation of the plaintiffs weekly compensation based on a September 18, 1979 date of injury and in a manner not inconsistent with this opinion.

In this opinion the other judges concurred.

       While the plaintiffs statement of the issues presented raises his due process claim, his brief does not address that question. Claims that axe not adequately briefed are considered abandoned. State v. Rodriguez, 44 Conn. App. 818, 823, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997). We therefore do not address the plaintiffs due process claims.

       General Statutes (Rev. to 1979) § 7-433b (b) provides: “Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act, providing for a police or firemen benefit fund or other ret irement system, 1 he cumulative payment s, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, t o members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.”
      General Statutes (Rev. to 1979) § 7-433c provides in relevant part:
      “[Mjunicipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment .... The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. . . .”

       “Inside” overtime is overtime that an officer works for the city. “Outside” overtime is overtime that an officer works at the request of a contractor, whereby the city pays the officer’s wages and is reimbursed by the contractor.

       The defendant’s amended reasons for appeal to the board presented, inter alia, the following issues:
      “V. Whether the compensation review board in its decision of July 25, [1995], erred in awarding the [plaintiff] a compensation rate based on the 26 weeks of earnings prior to May 16, 1983, when the evidence revealed that the [plaintiff] initially became disabled in 1979.
      “VI. Whether the compensation review board in its decision of July 25, [1995], erred in concluding that after April of 1990, ‘outside overtime’ earnings of the City of Bridgeport policemen should be includable in the ‘cap’ as defined under [§ 7-433b (b)].”

       General Statutes § 31-315 provides: "Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify ajudgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”


author: FOTI, J.

text:
    RENATE BARRON v. CITY PRINTING COMPANY ET AL.
    (AC 18407)
    Foti, Landau and Sullivan, Js.

      Argued May 3
    officially released September 28, 1999

      William C. Brown, for the appellant (defendant Chubb and Son, Inc.).

      Brian E. Prindle, for the appellees (Helmsman Management Services, Inc., et al.).

      Jason M. Dodge, for the appellee (defendant ITT Hartford Insurance Group).

      David W. Schoolcraft, for the appellee (Compu-Color, Inc.).
   Opinion

FOTI, J.

The defendant insurer Chubb and Son, Inc. (Chubb), appeals from the decision of the workers’ compensation review board (board), which affirmed the commissioner’s decision to refuse to apportion liability for the plaintiffs claim for benefits. On appeal, Chubb claims that the board improperly (1) denied its claim for apportionment, (2) considered facts outside the record in reaching its conclusion that the commissioner had acted reasonably, (3) affirmed the commissioner’s finding of fact concerning the decedent’s exposure to chemicals in the workplace and (4) affirmed the commissioner’s decision because the commissioner had improperly drawn an unfavorable inference from the fact that certain physicians had not addressed the issue of causation. We affirm the decision of the board.

The following facts are relevant to this appeal. The plaintiffs husband, George Barron, was diagnosed as having lung cancer in September, 1983, and died on September 9, 1984. Alleging that Barron’s cancer was caused by exposure to toxic chemicals at work, his widow filed a notice of claim for workers’ compensation benefits dated April 10,1985. On May 10,1988, following a formal hearing on the matter, the commissioner issued a preclusion order against Barron’s former employer, City Printing Company (City Printing), for failing to file a timely disclaimer denying the claim pursuant to General Statutes (Rev. to 1983) § 31-297 (b). As a result of this preclusion order, City Printing was conclusively presumed to have accepted the compensability of Barron’s injury.

During the time period when the notice of claim for benefits was filed and the preclusion order was issued, City Printing was insured by Chubb. As the insurer of the employer who had last employed Barron prior to the filing of the claim, Chubb assumed liability for paying benefits to Barron’s widow pursuant to General Statutes § 31-2991). Claiming that Barron’s cancer was caused by exposure to toxins over the course of his professional career in the printing business, Chubb sought to apportion liability among Barron’s former employers and their insurers. One of those insurers was ITT Hartford Insurance Group (ITT Hartford), which had insured City Printing prior to Chubb. Chubb argued that because ITT Hartford had insured City Printing during part of the time in which Barron allegedly had been exposed to chemicals, ITT Hartford was hable for a portion of the claim against City Printing.

On December 3, 1996, after considering evidence from physicians, toxicologists and Barron himself, the commissioner found that Barron’s lung cancer was the result of a two-pack-a-day smoking habit and had not been caused by exposure to chemicals in the workplace. Accordingly, the commissioner denied Chubb’s request for apportionment. On April 29,1998, the board affirmed the commissioner’s decision. This appeal fohowed.

As a preliminary matter, we must first address ITT Hartford’s claim that Chubb is barred from seeking apportionment because it failed to file an appeal in a timely manner in response to the May 10, 1988 preclusion order. As authority for this argument, ITT Hartford cites General Statutes (Rev. to 1983) § 31-300. Section 31-300, however, is inapposite to Chubb’s claim. Chubb is seeking apportionment pursuant to § 31-299b. Failure to file an appeal contesting a preclusion order in a timely manner does not foreclose an insurer’s right to apportionment under § 31-299b and, therefore, we will address Chubb’s appeal.

I

Chubb first claims that the board acted improperly in denying its claim for apportionment. We disagree.

In an appeal from a workers’ compensation decision, the commissioner’s conclusions drawn from the facts must stand unless they result from an illegal or unreasonable inference from the facts or an incorrect application of the law to the subordinate facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). Our scope of review of a decision by the board similarly is limited. DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).

Initially, we note that Chubb argues that the commissioner never addressed its claim for apportionment against ITT Hartford. We disagree. In this case, it is clear that the commissioner determined that the claim did not qualify for apportionment as to Barron’s former employers or as to ITT Hartford. The commissioner specifically found that the 1988 preclusion order applied to City Printing and its insurer of record at the time, Chubb. By inference, it is clear that the commissioner found that the preclusion order did not apply to ITT Hart ford. Such a decision was reasonable given that Chubb was the carrier on the risk when notice of the claim was tendered and when the preclusion order was issued.

Once the commissioner found that ITT Hartford was not covered by the preclusion order, the issue became one of apportionment. By failing to file a notice contesting liability, City Printing was conclusively presumed to have accepted the compensability of Barron’s condition. See Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 304, 620 A.2d 176, cert. denied, 225 Conn. 916, 623 A.2d 1024 (1993). To avoid liability for the entire amount of the claim, Chubb, as City Printing’s insurer, had the burden of proving that Barron sustained his injuries while working for another employer or while covered by another insurer. See General Statutes § 31-299b. The commissioner, however, specifically found that Barron’s cancer resulted from smoking and was unrelated to any exposure to chemicals in the workplace. The commissioner, therefore, decided that compensability could not be apportioned among Barron’s former employers or insurers, including ITT Hartford.

As support for its assertion that ITT Hartford should share liability for benefits payments, Chubb relies on Plecity v. George McLachlan Hat Co., 116 Conn. 216, 228, 164 A. 707 (1933). In Plecity, a workers’ compensation claimant’s injuries were the result of cumulative exposure to mercury over a time period that spanned coverage by two insurers. Finding that both insurers should share liability, the court held that policies should be construed as imposing an obligation on an insurer to pay compensation for any compensable disease arising out of the employment during the dates of the policy period. Id., 228-29.

In the present case, however, Barron’s injuries were not caused by his employment but by his smoking habit. What essentially would have been a noncompensable workers’ compensation claim became a compensable claim due to City Printing’s failure to file a notice contesting liability in a timely manner. That error occurred while City Printing was insured by Chubb, not by ITT Hartford. Because no actual workplace injury occurred at any time, it would have been improper to hold City Printing’s prior insurers responsible for a failure that occurred during Chubb’s coverage period.

II

Chubb next claims that the board improperly considered facts or materials not in evidence in concluding that the commissioner acted reasonably in refusing to apportion liability to ITT Hartford. Our role is to determine whether the board’s decision results from an incorrect application of the law to the subordinate facts or from an inference unreasonably drawn from them. Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986). We conclude that the board did not unreasonably affirm the commissioner’s decision.

Chubb’s chief argument regar ding this issue concerns the board’s reference to a September, 1987 letter. Chubb contends that the board should not have considered this letter when deciding that the commissioner reasonably concluded that the preclusion order did not apply to ITT Hartford. According to Chubb, this letter never was admitted into evidence, and it was, therefore, improper for the board to consider it in its decision to affirm the commissioner’s ruling. ITT Hartford counters that the letter was made part of the record and may be considered as a pleading in this case. Regardless of whether the September, 1987 letter was part of the record, we conclude that there was sufficient evidence, independent of the disputed letter, to support the board’s finding that the commissioner’s decision was not unreasonable.

For example, the caption of the May 10, 1988 preclusion order against City Printing lists Chubb as City Printing’s insurer. Also, the record contains sufficient evidence to support the finding that Chubb was the insurer of record for City Printing at the time the notice of claim was tendered and the preclusion order issued. On the basis of those examples, we find that the board properly affirmed the commissioner’s decision.

Ill

Chubb next argues that the board improperly affirmed the commissioner’s finding of fact concerning Barron’s exposure to chemicals in the workplace. Specifically, Chubb maintains that it was inappropriate for the commissioner to find that “there was no evidence presented to indicate what substances and chemicals [Barron] was exposed to or how he was exposed to them.” We do not agree.

As stated previously, Chubb, for purposes of apportionment, claimed that Barron’s lung cancer was caused by exposure to chemicals during his career in the printing business. Barron’s prior employers and insurers, against whom Chubb sought apportionment, denied that Barron’s cancer was the result of his employment history. They maintained that the cancer was caused by Barron’s two-pack-a-day smoking habit.

Chubb sought to prove that Barron’s cancer was caused by exposure to chemicals at work by relying on his sworn statement. In that statement, Barron gave a general description of the working conditions he encountered during his career in the printing business. He recounted frequent episodes of exposure to harsh smelling fumes associated with the printing process and stated that he came to learn what types of chemicals were used. Apart from a general reference to the types of chemicals used, however, Barron’s statement does not specify or quantify his exposure to chemicals at work. Also, a toxicologist, Marc Bayer, found no evidence indicating what chemicals or substances Barron had been exposed to at work. Bayer concluded that the lung cancer was caused by cigarette smoking.

As the trier of fact, the commissioner was free to accept or reject Barron’s statement regarding his exposure to chemicals. See Hills v. Servicemaster of Connecticut River Valley, Inc., 155 Conn. 214, 216, 230 A.2d 604 (1967). It is evident that the commissioner considered and chose to reject Barron’s statement. In fact, the commissioner specifically denied Chubb’s motion requesting that he correct that portion of his decision relating to evidence of Barron’s exposure to chemicals.

Barron’s sworn statement did not quantify the type of exposure, the magnitude of the exposure or the duration of the exposure to chemicals in the workplace. On the whole, Barron’s statement may at best be characterized as mere speculation as to which chemicals he may have been exposed. As the trier of fact, the commissioner did not act unreasonably in rejecting Barron’s claims, and the board properly affirmed the commissioner’s findings.

IV

Chubb finally claims that the board improperly affirmed the commissioner’s decision because the commissioner improperly drew an unfavorable inference from the fact that several of Barron’s physicians offered no opinion as to whether Barron’s cancer was work related. Chubb’s argument is without merit.

In his recitation of findings, the commissioner referred to five physicians who had treated Barron or reviewed his medical records subsequent to his death. The only physicians whose opinions were in dispute were the two who had reviewed the records for purposes related to the litigation. Bayer believed that the cancer was caused by smoking, while Romeo Vidone believed it was the result of exposure to printing chemicals. As was his prerogative as the trier of fact, the commissioner accepted Bayer’s opinion and rejected Vidone’s. See Mitaly v. Crofut & Knapp, 118 Conn. 672, 675-76, 174 A. 71 (1934).

Aside from Barron’s statement, Vidone’s opinion was the only evidence offered to support the claim that Barron’s cancer was caused by exposure to chemicals at work. By rejecting Vidone’s opinion, the commissioner essentially found that Chubb had failed to establish by credible evidence that Barron’s lung cancer resulted from exposure to chemicals associated with printing. Further, the commissioner’s acceptance of Bayer’s opinion, i.e., that Barron’s cancer was caused by his own smoking habit, clearly foreclosed the possibility that the commissioner would find that printing chemicals caused the cancer.

The commissioner’s findings included the opinions of Barron’s treating physicians to make the record clear that there was no other credible evidence to suggest that Barron’s cancer resulted from workplace exposure to chemicals. There is no evidence in the record to suggest that the commissioner drew any adverse inference from the opinions of Barron’s treating physicians. Rather, it appears that the commissioner based his decision on the reports of Bayer and Vidone. It is well established that “ ‘[i]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . . The commissioner must determine as a factual matter the causal relationship between a claimant’s symptoms and a compensable injury. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.’ ” Gillis v. White Oak Corp., 49 Conn. App. 630, 637, 716 A.2d 115, cert. denied, 247 Conn. 919, 722 A.2d 806 (1998).

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-299b provides in relevant part: “If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. ..."

       The record indicates that ITT Hartford insured City Printing for the first twelve months of Barron’s employment and that Chubb insured City Printing for Barron’s remaining twenty-four months of employment.

       Prior to his death, Barron gave a sworn statement that was transcribed and entered as an exhibit in the proceeding before the commissioner.

       Chubb’s brief refers to a “December, 1987“ letter, but the board’s decision mentions only a September, 1987 letter.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. SHERAIL COOPER
    (AC 18008)
    Lavery, Hennessy and Dupont, Js.
    Argued June 7
    officially released September 28, 1999

      Theresa M. Dalton, assistant public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joan K. Alexander, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Sherail Cooper, appeals from the judgment of conviction, rendered after her guilty plea, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21. On appeal, the defendant claims, with respect to her motion to withdraw her guilty plea, that the trial court improperly failed to appoint substitute counsel to assist her with her claim of ineffective assistance of counsel and failed to hold an evidentiary hearing on that claim. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for our review. On March 9,1997, paramedics were called to 90 Nelton Court in Hartford, where they found two year old Andre Shirley, Jr., the defendant’s son, in an extremely flaccid condition with shallow respira-tions and a very low heart rate. The defendant reported .that her son had suffered a seizure while eating. Shirley was transported to Saint Francis Hospital and Medical Center and then to Connecticut Children’s Medical Center. The child’s treating physicians found that he had sustained three distinct blows to his head, one of which was powerful enough to tear his sagittal sinus vein. Shirley died at the Connecticut Children’s Medical Center on March 18, 1997.

The defendant was the child’s sole caregiver at the time of his injuries. She was arrested on April 3, 1997, and charged with capital felony in violation of General Statutes § 53a-54b (9) and risk of injury to a child in violation of § 53-21.

A probable cause hearing was held, but not completed, on various days in July, 1997. The defendant reported to an investigating police officer that Shirley was injured when he fell backward while trying to get onto a city bus. The defendant’s explanations were not consistent with the severity of the child’s injuries. Betty Spivack, a physician specializing in pediatric critical care and child abuse, had treated Shirley and testified that his head injuries were consistent with those incurred in a fall from a ten to fifteen story building.

On September 15, 1997, the defendant waived her right to a probable cause hearing and pleaded guilty to manslaughter in the first degree and risk of injury to a child as alleged in a substitute information the state filed that day. In November, 1997, two days prior to her sentencing, the defendant moved for a continuance to afford her an opportunity to reevaluate her plea, her attorneys’ advice and the fairness of her plea agreement in view of contemporaneous events in Massachusetts. On December 4, 1997, the defendant filed a motion to withdraw her guilty plea, claiming that she was denied effective assistance of counsel and that her plea was not knowing and voluntary. The trial court heard argument on the motion on December 12, 1997, at which time the defendant’s public defenders requested that the court appoint a special public defender to represent her with respect to her motion to withdraw her guilty plea, particularly with respect to a hearing on the effective assistance of counsel issue. The trial court refused to appoint substitute counsel and denied the defendant’s motion to withdraw her guilty plea. The court then sentenced the defendant to consecutive terms of twenty years incarceration on the manslaughter charge and ten years on the risk of injury charge. This appeal followed.

The defendant’s claim before us is that the trial court’s failure to hold an evidentiary hearing on her motion to withdraw her guilty plea and its failure to appoint new counsel violated her rights to due process and effective assistance of counsel under the fifth, sixth and fourteenth amendments to the United States constitution, article first, § 8, of the constitution of Connecticut, and our rules of practice. See Practice Book § 39-19 et seq.

“A guilty plea, once accepted, may be withdrawn only with the permission of the court. State v. Risk, 17 Conn. App. 447, 451, 553 A.2d 1145, cert. denied, 211 Conn. 802, 559 A.2d 1137, cert. denied, 493 U.S. 818, 110 S. Ct. 72, 107 L. Ed. 2d 38 (1989). The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § [39-27], State v. Collins, 207 Conn. 590, 597, 542 A.2d 1131 (1988); State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983). Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused. State v. Crenshaw, [210 Conn. 304, 308-309, 554 A.2d 1074 (1989)]; Szarwak v. Warden, 167 Conn. 10, 23, 355 A.2d 49 (1974).” State v. Morant, 20 Conn. App. 630, 633, 569 A.2d 1140, cert. denied, 215 Conn. 818, 576 A.2d 547 (1990).

“It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983). By entering a guilty plea, the defendant waives his constitutional rights to a jury trial and to confront his accusers as well as his privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 288, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Wright, 207 Conn. 276, 542 A.2d 299 (1988). It is well settled that the record must affirmatively disclose that the defendant’s choice was made intelligently and voluntarily. State v. Childree, supra, 120.” (Internal quotation marks omitted.) State v. Ramos, 23 Conn. App. 1, 3-4, 579 A.2d 560 (1990).

“After a guilty plea is accepted but before the imposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in [Practice Book § 39-27]. An evidentiary hearing is not required if the record of the plea proceeding and other information in the court file conclusively establishes that the motion is without merit. See Fontaine v. United States, 411 U.S. 213, 215, 93 S. Ct. 1461, 36 L. Ed. 2d 169 (1973).” State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980). Before the trial court, the defendant relied on two subsections of § 39-27 to withdraw her plea. Only the second reason is applicable in this appeal, namely that “[t]he plea resulted from the denial of effective assistance of counsel.” Practice Book § 39-27 (4).

“In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true.” State v. Torres, supra, 182 Conn. 185. The defendant’s motion to withdraw contains no facts upon which she bases her claim that her plea was the result of ineffective assistance of counsel. See State v. Crenshaw, supra, 210 Conn. 311-12.

The defendant had the benefit of two public defenders representing her throughout the unconcluded probable cause hearing and the subsequent hearing in which she waived the probable cause hearing and pleaded guilty, and in the filing of motions for continuance and to withdraw her guilty plea. The defendant cited no facts in her motion or at oral argument before the trial court as to how or why counsels’ representation was ineffective. The defendant now claims that the trial court abused its discretion in failing to grant her a continuance to develop facts to support her claim of ineffective assistance of counsel. Her counsel asked for a reasonable period of time in which to develop those facts, and our reading of the record discloses that the court gave the defendant a reasonable period of time to do so. The defendant’s sentencing was originally scheduled to take place on November 26, 1997. The court continued the sentencing until December 12,1997, but the defendant failed to take advantage of that time to develop a factual basis to support her motion to withdraw her plea.

The defendant also claims that the trial court improperly abused its discretion by failing to appoint substitute counsel to press her ineffective assistance of counsel claim. At argument before the trial court, the defendant’s counsel requested that substitute counsel be appointed because an inherent conflict had developed between the defendant and her counsel. Our reading of the transcript demonstrates that while the defendant was waiting to be sentenced, she learned of a case in Massachusetts concerning yet another tragic death of a very young child. Apparently, the defendant hoped that she could resolve her case in a similar manner. The trial court made a specific point of telling the defendant that the Massachusetts matter was of no consequence in Connecticut. It is readily apparent from the transcript that the defendant’s counsel informed her of that as well. Defense counsel ascribed the conflict between them and the defendant to the defendant’s lack of education and her unfamiliarity with the legal system. The trial court properly noted that defense counsel acceded to the defendant’s wish for another lawyer without considering the foreseeable consequence, i.e., that the defendant would repeatedly look for a lawyer who could resolve her case in a manner similar to what occurred in the Massachusetts case. “Whether the circumstances warrant the appointment of new counsel is within the discretion of the trial court. . . . [A]bsent a factual record revealing an abuse of [the court’s] discretion, the court’s failure to allow new counsel is not reversible error.” (Citation omitted; internal quotation marks omitted.) Id., 314. For this reason, the trial court properly exercised its discretion in denying the defendant’s request for substitute counsel and

a hearing on her motion to withdraw her guilty plea due to ineffective assistance of counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured ... or does any act likely to impair the health ... of any such child . . . shall be guilty of a class C felony.”

       The trial court, canvassed the defendant concerning her waiver of her probable cause hearing.
      “The Court: Sherail [Cooper], let me ask a couple of questions concerning the probable cause. This court started a probable cause hearing, or that is, testimony. Has counsel explained to you what the purpose of a probable cause hearing is?
      “The Defendant: Yes.
      “The Court: All right. Basically, the court, will hear evidence and the court would have to make a decision on whether the state could proceed on the charges that were alleged in the information. Under our law, you have a right to a probable cause hearing. It is guaranteed by our state, and counsel is indicating to me that you wish to waive your hearing in probable cause. Is that true?
      “The Defendant: Yes.
      “The Court: Now, have you had sufficient time to discuss this with your attorney before you asked for this waiver?
      “The Defendant: Yes.
      “The Court: And you understand that once you waive the hearing in probable cause you cannot ask for it, once again?
      “The Defendant: Yes.
      “The Court: Now, do you feel in any way forced to malm this decision?
      “The Defendant: No.
      “The Court: And I know you’re in the lockup, but have you had any drugs, alcohol or medicine today?
      “The Defendant: No.
      “The Court: Have you had sufficient time to discuss this waiver over with counsel?
      “The Defendant: Yes.

        “The Court: You feel satisfied with their advice?
      “The Defendant: Yes.
      “The Court: And you’re asking this court to waive the probable cause hearing?
      “The Defendant: Yes. . . .
      “The Court: All right. The court will make a finding that the waiver of the hearing in probable cause by [the defendant] has been voluntary. She has had sufficient time to discuss this with both of her attorneys, and the court will make the finding of adequate waiver. All right.”

         The trial court canvassed the defendant as to her guilty plea as follows.
      “The Court: All right. Miss Cooper, I’m going to ask you a series of questions concerning both of these pleas here this afternoon. If you do not understand anything or have any questions, you can certainly ask the court or ask your attorneys who are standing with you about this particular canvass. The purpose of the canvass is basically to make sure that you understand each of the charges and the consequences of the charges, and some of the constitutional rights you’re giving up by pleading here this afternoon. All right. And some of the questions will be similar to the ones I’ve just asked you. Miss Cooper, do you feel in any way forced to malee both of these pleas here to both the manslaughter in the first degree [charge] and to the risk of injury charge?
      “The Defendant: No.
      “The Court: All right. And again, I understand you’re incarcerated. Have you had any medicine, drugs or alcohol today?
      “The Defendant: No.
      “The Court: All right. Do you understand you have the right to maintain your innocence, plead not guilty, to make an election [for trial] to a judge or a jury [and that] witnesses could have been subject to cross-examination? You could have taken the stand to defend yourself, if you so chose, but basically because you’re pleading here this afternoon, you’re waiving all of those constitutional rights. You understand that?
      “The Defendant: Yes.
      “The Court: That applies to both charges. Now, the charges that you’ve pleaded to today are manslaughter in the first degree, which is a class B felony that carries one to twenty years [in prison and a fine of] ten thousand dollars or both. The [offense] which you plead guilty to today is [that] a person is guilty of manslaughter in the first degree when, under circumstances evincing an extreme indifference to human life, she recklessly engages in conduct [that] creates a grave risk of death to another person, and thereby causes the death of another person. That’s the definition of manslaughter in the first degree. Do you understand that?
      “The Defendant: Yes.
      “The Court: Now on the [charge of] injury or risk of injury to, or impairing the morals of a child, it’s § 53-21 and states that any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals are likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both. Do you understand that?
      “The Defendant: Yes.
      “The Court: In this particular case, to run these [sentences] consecutively . . . which is the oiler of the state, would mean a maximum sentence of thirty years to serve. Do you understand that?
      “The Defendant: Yes.
      “The Court: Is that the sentence you agreed to when you talked to both of your attorneys?
      “The Defendant: Yes.
      “The Court: All right. And Miss Cooper, you’re a citizen of the United States?
      “The Defendant: Yes.
      “The Court: All right. And have you had sufficient time to discuss this plea with both of your attorneys?
      “The Defendant: Yes.
      “The Court: You feel comfortable with this court’s taking these pleas this afternoon?
      “The Defendant: Yes.
      “The Court: Now, the [state has] indicated its factual basis on the record. Now, after talking to both of your attorneys did you come to the conclusion that you had to take these two pleas in order to ensure the sentence [that has] been offered by the state, that is, the thirty years to serve versus the consequences of going to trial [which means you could have served the maximum of life without parole]? Is that your understanding?
      “The Defendant: Yes.
      “The Court: Now, do you have any questions through either your attorneys or of this court of this particular canvass today?
      “The Defendant: No. . . .
      “The Court: All right. Do you have any questions of your attorneys, Miss Cooper?
      “The Defendant: No. . . .
      “The Court: All right. Based upon those facts added by the state, Miss Cooper, does that change your pleas before this court this afternoon?
      “The Defendant: No. . . .
      “The Court: Miss Cooper, you’re satisfied by the counsel given to you both by Mr. [Patrick] Culligan and Mr. [Kenneth] Simon?
      “The Defendant: Yes.

        “The Court: Once again, Miss Cooper, do you have any questions of this particular court before I accept your pleas here today?
      “The Defendant: No.
      “The Court: You understand that the court will set this matter down for a presentence investigation?
      “The Defendant: Yes.
      “The Court: That in approximately six weeks the court will bring you back for a sentencing, that the court will basically have the probation department prepare a presentence investigation for this court’s perusal and information. All right.
      “The court will make the following findings: That both pleas entered by [the defendant] here this afternoon have been made voluntarily by her. She understands the crimes charged and the consequences of her pleas. [She has] indicated this to this court. [She has] had effective assistance of counsel. [She has] admitted the factual basis of both the [charges] before this particular court.
      “The court will make a finding of guilty of manslaughter in the first degree and make a finding of guilty of risk of injury for impairing the morals of a child.”

       Defense counsel was referring to the case of Commonwealth v. Woodward, 427 Mass. 659, 694 N.E.2d 1277 (1998) (conviction after trial reduced to involuntary manslaughter from second degree murder and sentence to time served).
      The following colloquy took place during argument on the defendant’s motion for a continuance.
      “[Defendant’s Counsel]: Your Honor, in support of the defendant’s motion for a continuance, I would represent to the court that in preparation for the scheduled sentencing of [the defendant] today, her defense team met with her last week. And at that time she indicated to us . . .at the conclusion of our rather lengthy conversation she requested of us that we file this motion for the reasons which are enumerated in the motion, Your Honor. Because she feels that [she has] not had, at this point, appropriate time to determine if she in fact proceeded with her entry of a plea, about two months ago, I guess it was now, in a legally appropriate and constitutionally appropriate manner, Your Honor. We advised her that certainly a review of the transcript of those proceedings might answer some of her questions for her. And, of course, acquiring that transcript may take some period of time, Your Honor . . . which would allow her to review the plea canvass that she went through with the court, Your Honor. . . .
      “The Court: All right. What does paragraph two mean?
      “[Defendant’s Counsel]: I think paragraph two and paragraph three probably are connected, Your Honor. . . .
      “[Defendant’s Counsel]: [The defendant] is someone who is not particularly familiar with the criminal justice system. [She has] had one minor encounter previously, which did not involve any sort of protracted or lengthy negotiations or any great understanding of our criminal code or the distinctions to be made between various forms of homicide, Your Honor. She has had, since the entry of her plea, a period of time to begin to ask those questions of herself. And now she has recently asked them of us, and she wishes to have an opportunity to assess the answers that we’ve given her, to reassess the facts and the evidence of her case in order to make a judgment for herself whether or not she received appropriate and competent advice from us as her attorneys. And the way that I think that is related to paragraph three is that the recent events in . . . Massachusetts on a similar-case have made her . . . reevaluate whether, in fact, the advice that her attorneys gave her and the position of the state here in Connecticut is fair and constitutes justice and was appropriate advice from counsel.
      “The Court: Now, the issue of the situation in Massachusetts, Mr. [Patrick] Culligan, I presume, with all your experience—and that also includes Mr. [Kenneth] Simon—that you have explained to [the defendant] that whatever happens in Massachusetts has no indirect, remote or any bearing in relation to how this particular court or the judges in Connecticut act. We’re talking about apples and oranges. We're talking about a different structure, legally. We’re talking about different precedent. We’re talking about different factual base's ... in that case there was a trial. This is a plea. Basically, this court is indicating, very strongly, to [the defendant] that there is no correlation whatsoever in this particular courtroom concerning Massachusetts. What the judge did up there is based upon his reading of the [law]. Whether he’s upheld, whether that is aproper decision is totally irrelevant to this particular court. I presume, Mr. Culligan, you have, in your vast experience, communicated the [differences] between the two courts to your client.
      “[Defendant’s Counsel]: That’s an accurate presumption, Your Honor. I would just note for the record that in the court’s comments the court did cover several items and reasons why there are distinctions to be made between the state of Massachusetts and the state of Connecticut and the results that occurred in that part icular child homicide case and this particular child homicide case. But the fact that there are numerous reasons, I think, Your Honor, speaks to the reason [for] her request for a continuance . . . simply to consider that reasoning, which is much more common to the court and to the attorneys to perceive and to understand than I think it is for a layperson of limited education who has not. achieved a high school education, Your Honor.
      “The Court: And I think that’s a fair assumption, Mr. Culligan . . . which is exactly what the court has stated on the record to [the defendant] very directly, that that particular issue will have no effect whatsoever on this particular court's decision concerning sentencing after plea.”

       In anticipation of the defendant’s motion to withdraw her plea, the trial court requested a transcript of its plea canvass.

       The defendant’s counsel had secured potential substitute counsel who was in the courtroom prepared to take over the defendant’s case if the trial court had appointed him.

       The following colloquy took place between the trial court and defense counsel during argument on the defendant’s motion.
      “The Court: All right. Mr. [Patrick] Culligan [is] it your suggestion, although it’s not in the motion, [that the way] to handle this particular problem is to appoint her other counsel to specifically inquire [into] (a) whether she felt that she had effective assistance of counsel and (b) . . . that counsel should be appointed and the court should conduct an independent hearing in deciding paragraph two? Is that your position?
      “[Defendant’s Counsel]: Yes, it is, Your Honor.
      “The Court: All right. Anything further, Mr. Culligan, before the court rules on the motion?
      “[Defendant’s Counsel]: Yes, Your Honor. In support of . . . defendant’s counsels’ position, Your Honor . . . that at this juncture the court should appoint [the defendant] separate counsel and conduct a hearing as to claim number two. I would point out to the court that one of . . . the conundrums with defense counsel is that certain claims which [the defendant] is making with respect to the effective assistance of counsel may involve allegations made by her which her defense counsel may not agree with or may not be able to support factually, Your Honor, and there may be a factual dispute which the court will be called upon to abdicate with respect to the second claim, Your Honor. And that’s why it puts defense counsel presently in an awkward position attempting to represent her effectively as to her second claim that we denied her effective assistance of counsel.
      “I will point out to the court, it’s my opinion that our client has come to learn of . . . certain facts and concepts since the taking of the guilty plea which she believes she did not receive adequate and sufficient advice about from Mr. [Kenneth] Simon or [me], Your Honor, and that’s why we feel that we have a conflict of interest in attempting to put forth that claim in a manner which an advocate for her should strenuously pursue, Your Honor.
      “The Court: Let me follow this, Mr. Culligan. The person pleads guilty, [is] adequately canvassed by the court, [is] questioned not once, twice, but three times by the court as far as effective assistance of counsel, then comes back prior to sentencing, changes her mind for whatever reason, [and] you feel it’s imperative [that] the court, once that issue is brought before the court . . . appoint another counsel and have a separate hearing concerning what breadth, Mr. Culligan? The breadth of the canvass, the breadth of the probable cause hearing in this . . . particular case? How far do we go with it?
      “[Defendant’s Counsel]: It would seem to me, Your Honor, that it would go to those issues and those matters on which she was advised or not by her counsel with respect to the issues surrounding the significance of her guilty plea and its legal consequences and ramifications to her, Your Honor. I would point out to the court, that just as the issue of whether a defendant’s plea is knowingly and voluntarily made is both an opinion question as well as a question of legal conclusion, Your [Honor, the] question as to whether or not a defendant has received effective assistance of counsel is both a question of a person’s opinion, which is, I think, what happened in this canvass and what often happens.
      “The Court: Well, let me follow that further. Suppose I go down that alley [and] I appoint another lawyer, Mr. Culligan, [who] works [his] way through the process. I mean, where does that particular process end? I mean, do we get another lawyer to examine the other lawyer, rather the first lawyer, if things aren’t working out the way the [defendant thinks] they should have w'orked out based upon subsequent circumstances? . . . Well, the court basically will deny the defendant’s motion to withdraw. . . . The court has read the canvass. The court finds that [it was] knowingly and voluntarily made. The court denies the motion in total. The court feels that a hearing is unnecessary. The court is prepared to sentence at this particular period of time.”

       Because the defendant briefed only her federal constitutional claim and her claims brought under the rules of practice, we will consider her state constitutional claim abandoned. See State v. Joyce, 229 Conn. 10, 16, 639 A.2d 1007 (1994).


author: O’CONNELL, C. J.

text:
    JOANNE DREA v. GERALD SILVERMAN
    (AC 18352)
    O’Connell, O. J., and Schaller and Spear, Js.
    Argued May 25
    officially released September 28, 1999

      Matthew Shafner, with whom, on the brief, was James A. Hall TV, for the appellant (plaintiff).

      Paul T. Nowosadko, with whom, on the brief, was Lorinda S. Coon, for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff, Joanne Drea, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, Gerald Silverman, in this dental malpractice action. The plaintiff claims that the court abused its discretion by admitting into evidence the opinion of her subsequent treating dentist that she had no legitimate reason to sue her former dentist. We disagree and affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff brought this action alleging that the defendant, her former dentist, had failed to install a series of crowns properly. Unsatisfied with the work, the plaintiff sought treatment from several other dentists, including Lloyd Miller, who acted as an expert witness in the present case.

Miller began treating the plaintiff to correct what she described as difficulty in chewing following the crown work done by the defendant. After examining the plaintiffs teeth, Miller removed all the crown work that had been done recently by the defendant and replaced the crowns. In the course of this action, the plaintiffs attorney wrote to Miller requesting copies of the plaintiffs treatment records. In responding to the request, Miller wrote a note at the bottom of the request letter stating, “There is no legitimate reason for this patient to be suing her former dentist.”

Miller subsequently gave a deposition at the request of counsel for the defendant. At trial, both parties presented Miller’s testimony by reading the transcript of the deposition into the record. The defendant further offered as an exhibit, over the plaintiffs objection, the original record request letter with Miller’s handwritten note at the bottom.

After the jury returned a verdict for the defendant, the plaintiff filed a motion to set it aside on the basis of the court’s admission of Miller’s handwritten opinion. Although the motion asserted several different claims of impropriety with respect to the admission of this document, this appeal is limited to the question of whether there was an adequate foundation for the statement’s admission.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997).” (Internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 229-30, 733 A.2d 156 (1999). Moreover, evidentiary rulings “will be overturned on appeal only where there was an abuse of discretion and a showing by the [challenging party] of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).

“The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant. . . . Relevance may be established in one of three ways. First, the proffering party can make an offer of proof. . . . Second, the record can itself be adequate to establish the relevance of the proffered testimony. . . . Third, the proffering party can establish a proper foundation for the testimony by stating a good faith belief that there is an adequate factual basis for his or her inquiry.” (Citations omitted; internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 586, 678 A.2d 924 (1996).

To admit an expert witness’ opinion, “[t]he witness must be qualified to express the opinion the question calls for, and adequate facts upon which [the opinion] is based must be proved.” Graybill v. Plant, 138 Conn. 397, 403, 84 A.2d 238 (1951). The plaintiff argues that Miller was not qualified to express his opinion on the validity of her legal claim because he did not have an adequate factual basis on which to base that opinion. Specifically, the plaintiff contends that Miller never reviewed the defendant’s treatment records, nor did he have knowledge of the agreement between the parties.

The trial court concluded that the questions and answers in the deposition that were read into evidence provided an adequate foundation for the admission of the challenged opinion. We agree with the trial court. When Miller was questioned with regard to the meaning of his handwritten note, he stated: “It refers to the fact [that] when I evaluated the mouth ... I found no substance to her claims that the work was done improperly. That the margin of fit of the crowns was well within the normal limits. The X-rays did not indicate any particular problem. That the bite on occlusion was even and within the discernible limits within her comfort zone. When patients tell me they don’t like the aesthetics, it may take some time to sift out what they don’t like about the settings. That is a very personal thing. That is why I said there is no legitimate reason for this patient to be suing her former dentist.”

Miller’s testimony clearly sets forth the facts on which he relied to conclude that there was no merit to the plaintiffs claim that the fit and position of the crowns was improper. As a subsequent treating dentist whose expertise with respect to proper dentistry is not disputed, Miller was qualified to give his opinion about the quality of the defendant’s dental work. The information elicited in the deposition made it clear to the jury that Miller was commenting on the fit and quality of the crowns on the basis of his examination of the plaintiffs mouth. Accordingly, the trial court properly determined that the deposition testimony furnished an adequate foundation for the admission of Miller’s opinion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Miller is a specialist in prosthodontia, the branch of dentistry dealing with the replacement of missing teeth by use of artificial means such as bridges or dentures.

       The plaintiff objected to the document’s admission claiming that it was irrelevant and highly prejudicial. The trial court overruled the objection on the ground that “the questions and answers in the deposition laid a foundation for the admissibility of this document . . . .”