text:
    WILLIAM EVANS v. COMMISSIONER OF CORRECTION
    (AC 16778)
    Lavery, Schaller and Dupont, Js.
    Argued October 30, 1997
    officially released February 24, 1998

      James A. Shanley, Jr., special public defender, for the appellant (petitioner).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (respondent).
   Opinion

DUPONT, J.

The primary issue in this appeal from the judgment of dismissal of a petition for a writ of habeas corpus is whether, as a matter of law, the petitioner’s plea of guilty in the trial court, under the Alford doctrine; North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); to the crime of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-48, should have been allowed, after his alleged coconspirator pleaded guilty to conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-135 (a) (2), and 53a-48, and attempt to commit robbery in the second degree in violation of § 53a-135 (a) (2) and General Statutes § 53a-49. We affirm the judgment of the habeas court.

The petitioner alleged in his habeas corpus petition that he had received ineffective assistance of trial and appellate counsel. To succeed in this claim, he must prove that his attorneys’ performances were not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law and that the lack of competence contributed to the conviction. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Williams v. Manson, 195 Conn. 561, 564, 489 A.2d 377 (1985). The state concedes that if, as a matter of law, the petitioner should not have been allowed to plead guilty to conspiracy to commit robbery in the first degree, both ineffective assistance of counsel and prejudice to the petitioner would have been demonstrated.

The genesis of this case is the petitioner’s plea of guilty to conspiracy to commit robbery in the first degree, which plea the trial court accepted after it canvassed the petitioner. The petitioner had entered into a plea bargain with the state in which he would plead guilty under the Alford doctrine to conspiracy to commit robbery in the first degree and be sentenced to twenty years, concurrent to a sentence he was already serving. In anticipation of the petitioner’s prosecution for another unrelated robbery, it was also agreed that if he pleaded guilty in the future to that offense, the state would recommend that he receive a sentence of twenty years for it, concurrent to the other two sentences, namely the sentence he was presently serving, and the sentence that is the subject of this appeal. A few days after his plea of guilty, the petitioner, as anticipated, was arrested for the other robbery. The charge was subsequently nolled by the state, and the petitioner then made a motion to withdraw his plea in this case on the ground that he had been led to assume that the evidence in the other robbery case was stronger than it was actually. The trial court denied the petitioner’s motion to withdraw his plea and sentenced him in accordance with the plea bargain. The denial of the motion to withdraw the plea was upheld on the petitioner’s direct appeal. State v. Evans, 34 Conn. App. 911, 642 A.2d 755 (1994). The legal argument that is the subject of this appeal from the dismissal of his petition for a writ of habeas corpus was not made in the appeal from the denial of the petitioner’s motion to withdraw his plea.

The petition for a writ of habeas corpus alleged that both trial and appellate counsel were ineffective, and that the conviction of conspiracy to commit robbery in the first degree was infirm as a matter of law. The petition also claimed that the plea agreement resulted from the incomplete and incorrect advice of counsel because that advice did not provide for the possibility that the state would not prosecute the petitioner for another robbery that was unrelated to the offense to which he pleaded guilty, but which involved the same coconspirator.

An affidavit of the petitioner’s coconspirator and other evidence formed the basis for the facts presented by the state at the time of the petitioner’s guilty plea to conspiracy to commit robbery in the first degree. These facts are as follows. Two witnesses observed one man trying to open the back door of Burger King restaurant in New London and another man standing near a car in a dark area of the parking lot behind the restaurant. The witnesses saw the interior lights of the car flash and then saw the male who had been trying to enter the back door of the restaurant get into the passenger seat of the car, which was then driven out of the parking lot without its fights on. The witnesses immediately reported their observations, and the police stopped the car soon thereafter. The petitioner and his alleged coconspirator were in the car, with the petitioner in the passenger seat. On the back seat of the car were two stun guns, and a .25 caliber automatic pistol was found under the passenger seat. Two ski masks, duct tape and ammunition were also found in the car. The driver of the car, in his affidavit, which was available to the petitioner and the court at the time that the petitioner pleaded guilty, stated that he and the petitioner had a history of criminal association and that on the night in question they had planned to rob Burger King, and had planned to use a gun or guns but had abandoned the plan because the restaurant was busy and they were afraid two witnesses had seen them. At the time of these events, the petitioner was on a weekend furlough from prison and was serving a twenty-five year sentence. One day prior to the petitioner’s plea of guilty to conspiracy to commit robbery in the first degree, his coconspirator pleaded guilty to conspiracy to commit robbery in the second degree.

The petitioner relies on State v. Robinson, 213 Conn. 243, 250-53, 567 A.2d 1173 (1989), for his legal argument that a conspirator can be guilty of conspiracy to commit only the same crime as his coconspirator. Robinson held that a conspiracy conviction of a coconspirator cannot stand, as a matter of law, after a trial of a sole alleged coconspirator for conspiracy to commit the same crime resulted in an acquittal. Id., 253. The Robinson court reasoned that a conspiracy is an agreement to commit an unlawful act and that another person’s culpability is an essential element of the crime of conspiracy because the crime is indivisible. Id. The petitioner asks us to extend the principle of Robinson beyond its facts to the situation of a guilty plea of one coconspirator following a guilty plea of the other conspirator to a different conspiratorial crime, based on the same predicate facts.

There are many cases involving separate trials or separate guilty pleas of coconspirators where the same conspiracy to commit the same crime is involved. See annot., 19 A.L.R.4th 192 (1983); annot., 9 A.L.R.4th 972 (1981); annot., 91 A.L.R.2d 700 (1963). The decided cases in the annotations and in Connecticut involve situations where one conspirator is found guilty but no other conspirator is charged; see State v. Shaw, 24 Conn. App. 493, 494, 589 A.2d 880 (1991); or involve situations where one conspirator is charged with a conspiracy, while the other coconspirators are charged only with the underlying substantive crime; id.; or involve situations where all of the conspirators are charged with the crime of conspiracy to commit the same underlying crime, and one conspirator is charged with a substantive crime different from the one underlying the conspiracy charge, but based on the same predicate facts; State v. Walton, 227 Conn. 32, 34-35, 630 A.2d 990 (1993); or involve situations where one conspirator is charged with conspiracy to commit a particular crime, and the other coconspirators are charged with a conspiracy to commit a lesser included crime. See annot., 9 A.L.R.4th 972 (1981).

We are aware of no case, however, that involves the situation of this case where both conspirators, on the same predicate facts, and pursuant to the same single agreement, plead guilty to a conspiracy, with the second conspirator pleading guilty to a conspiracy to commit a different underlying offense with some of the same elements but with a greater penalty than the crime to which the first coconspirator pleaded.

We begin our analysis by noting that General Statutes § 53a-134 (a), which contains the elements of robbery in the first degree, provides that “[n]othing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.” Thus, a defendant can be convicted of both robbery in the first degree and robbery in the second degree. See, e.g., State v. Ford, 33 Conn. App. 143, 146-47, 634 A.2d 1188 (1993), rev’d on other grounds, 230 Conn. 686, 646 A.2d 147 (1994). If, however, a conspiracy to commit more than one crime involves only one agreement, a defendant can be punished only for one conspiracy, that which relates to the most serious offense that is the object of the conspiracy. See State v. Toth, 29 Conn. App. 843, 858-59, 618 A.2d 536, cert. denied, 225 Conn. 908, 621 A.2d 291 (1993); State v. Stellato, 10 Conn. App. 447, 456-57, 523 A.2d 1345 (1987); see also General Statutes § 53a-51.

A defendant may be charged with a substantive crime and a crime of conspiracy to commit another crime, both arising out of the same predicate facts. See State v. Walton, supra, 227 Conn. 40-42. In Walton, the named defendant was charged with both a substantive crime in violation of General Statutes § 21a-278 (b) and a conspiracy to commit a different crime in violation of General Statutes § 21a-277 (a). The coconspirators were charged with conspiracy to commit a crime in violation of § 21a-277 (a) only. The latter crime is not a lesser crime included within § 21a-278 (b); id.; although it carries a less severe penalty. The Walton case does not deal directly with the issue of the present case, but it does establish that the conduct of one coconspirator can be attributed to another coconspirator to prove an element of a different substantive crime with which only one of the coconspirators is charged. This is so because in a conspiracy, an element of the crime can be attributed to any conspirator, regardless of which conspirator committed that overt act as long as the overt act is in pursuance of the conspiracy, is in furtherance of it and it is reasonably foreseeable as a necessary or natural consequence of the conspiracy. Id., 53; see also Pinkerton v. United States, 328 U.S. 640, 647, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). The overt act in pursuance of a conspiracy does not have to be the same act for all of the conspirators.

The petitioner’s coconspirator pleaded guilty to conspiracy to commit robbery in the second degree, which plea acknowledges that there was an agreement with another person to commit a robbery. There is an acknowledgment in the petitioner’s Alford plea of guilty that there was the same one agreement and an acknowledgment by the petitioner that the state had a case against him for conspiracy to commit robbery in the first degree that it could have proved after a trial. See North Carolina v. Alford, supra, 400 U.S. 37-38.

The failure to prosecute a defendant with a particular crime is not the equivalent of an acquittal of that crime. An acquittal or a conviction after a trial is an adjudication of the factual elements of the crime charged. The failure of the state to charge a defendant with a particular crime does not foreclose the possibility that the defendant committed that crime, as does an acquittal. Thus, in this case, the first conspirator to plead could have been charged with either a conspiracy to commit robbery in the first degree or a conspiracy to commit robbery in the second degree, because a prosecutor has wide discretion as to whether to charge, what the charge should be and whether to pursue a prosecution. State v. Menzies, 26 Conn. App. 674, 680, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992). The coconspirator’s plea of guilty in this case to a crime that has a lesser penalty is not an adjudication that he and the petitioner did not have an agreement also to commit a crime that has a greater penalty.

Both conspirators in this case chose to avoid a trial by pleading guilty to a charge. The state had the option of charging both conspirators with either one or both crimes of conspiracy to commit robbery in the first degree and conspiracy to commit robbery in the second degree. No adjudication was made in connection with the petitioner’s plea as to whether he conspired to commit robbery in the second degree, as well as robbery in the first degree. Under § 53a-134 (a), he could have conspired to commit both robbery in the first degree and robbery in the second degree. Two criminal statutes can be construed to proscribe the same conduct and a defendant can be prosecuted under either. See United States v. Batchelder, 442 U.S. 114, 123-24, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979); State v. Evans, 200 Conn. 350, 359, 511 A.2d 1006 (1986).

The plea of the petitioner acknowledged that the coconspirator had inculpated the petitioner in a conspiracy to commit both robbery in the first degree and robbery in the second degree because it was based on the affidavit of the coconspirator, which described their agreement and the particular overt acts committed by the petitioner. That those acts were different acts from those committed by the first conspirator to plead does not change the culpability of the petitioner for the particular acts committed by him in pursuance of the plan of both conspirators to rob. The conspiracy agreement was the plan to commit a robbery together using a firearm. That plan could include the commission of more than one crime. That the first conspirator to plead was allowed to plead to a crime of conspiracy that carried a lesser penalty was dependent on his particular bargain with the state. One of the prosecutorial concessions that may be made in a plea agreement is the reduction of a charge to another charge with a lesser penalty or to a related offense. Szarwak v. Warden, 167 Conn. 10, 18, 355 A.2d 49 (1974).

The petitioner pleaded guilty under the Alford doctrine. He assessed his situation at the time, which included his bargain to receive a concurrent sentence to the sentence already being served. Although he did not admit the commission of the crime with which he was charged, he did agree that the evidence would warrant a conviction of that crime after a trial. A plea bargain is a negotiated plea and does not involve a finding that the defendant is guilty or not guilty of other crimes arising out of the same facts. At the time the first conspirator pleaded, the state’s agreement with him was dependent on the facts known to it and that conspirator, and on the particular situation of that defendant. At a later time, other facts might surface that might require a different penalty and allow proof of different overt acts arising out of the same agreement, as far as concerns another conspirator.

We hold that it was legally permissible on the particular facts of this case, where both pleas were the result of plea bargains, for the petitioner to plead guilty to a conspiracy to commit robbeiy in the first degree although his coconspirator had previously pleaded guilty to robbery in the second degree. We therefore conclude that the petitioner’s claim of ineffective assistance of counsel on this basis must fail.

The petitioner’s second claim is that both his trial counsel and appellate counsel were ineffective because the former should not have allowed him to plead guilty without anticipating that the state would not prosecute him for another crime allegedly committed with the same coconspirator, and the latter should have argued on the appeal from the denial of the petitioner’s motion to withdraw his plea that the lack of prosecution for that other crime necessitated a withdrawal of his plea because the expected prosecution was a significant consideration for the plea. At the time of the plea, the petitioner had not yet been prosecuted for the other robbery, but an arrest was imminent. The plea, therefore, included a sentence resolution if the state were to prosecute and if the petitioner pleaded guilty. Subsequently, the petitioner was arrested for that other robbery, but the prosecutor decided to nolle the case because, in view of the state’s plea agreement with the petitioner, a prosecution in that case would not result in increased prison time for the petitioner. Trial counsel, who was originally also appellate counsel, testified at the habeas hearing that he did not pursue, on the appeal from the denial of the petitioner’s motion to withdraw his plea, the argument the petitioner now makes, because the case that was eventually nolled was not consideration for, nor did it affect the guilty plea.

A careful review of the transcript of the plea canvass and of the habeas hearing leads us to conclude that the petitioner did not predicate his plea on the outcome of the other case. Thus, neither counsel, trial or appellate, was ineffective, nor did any prejudice to the petitioner result.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the.second degree when he commits a robbery as defined in section 53a-133 and. . . (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”

       The crime of robbery in the second degree in violation of § 53a-135 (a) (2), as charged in this case, is not a lesser included crime of robbery in the first degree in violation of § 53a-134 (a) (2). See State v. Dolphin, 203 Conn. 506, 517-18, 525 A.2d 509 (1987). Section 53a-135 (a) (2) is not a lesser included offense of § 53a-134 (a) (2) because a person may commit robbery “armed with a deadly weapon,” but never display or threaten to use the weapon. State v. Anderson, 178 Conn. 287, 293-94, 422 A.2d 323 (1979); State v. Clemons, 31 Conn. App. 614, 620 n.6, 626 A.2d 1310, cert. denied, 227 Conn. 908, 632 A.2d 696 (1993).

       The petitioner’s plea was accepted after a proper canvass. Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    VAL DUMAIS ET AL. v. DAVID UNDERWOOD ET AL.
    (AC 16291)
    O’Connell, C. J., and Foti and Hennessy, Js.

      Argued December 2, 1997
    officially released February 24, 1998

      LesleeB. Hill and Edward C. Krawiecki, with whom, on the brief, was Robert A. Ziegler, for the appellants (defendants).

      Timothy C. Moynahan, for the appellees (plaintiffs).
   Opinion

FOTI, J.

The defendants appeal from the judgment of the trial court rendered in favor of the plaintiffs in this action brought in the nature of a quo warranto challenging the appointment of the defendants to the charter revision commission of the town of Plainville. The defendants claim that the trial court lacked subject matter jurisdiction to hear the quo warranto action. In the alternative, they argue that the trial court improperly (1) determined that a quo warranto action is the appropriate method to challenge the defendants’ appointment, (2) determined that the town charter is controlling with respect to the number of votes required to appoint members to the commission, (3) determined that the defendants’ actions were invalid and without force and effect, and (4) removed the defendants from the commission. We affirm the trial court’s judgment.

The parties stipulated to the following facts. The plaintiffs are taxpayers and electors of the town of Plainville, and the seven defendants have been acting as members of a charter revision commission of that town. The defendants hold their office solely by virtue of a vote of the seven members of the town council that took place at a special meeting of the council on May 28, 1996. Only four members of the town council voted in favor of the resolution appointing the defendants as commission members.

In February, 1996, a prior commission, whose members had been appointed by five affirmative votes of the town council, filed a report recommending certain charter revisions requested by the council. The report did not recommend certain other revisions requested by the council. The council rejected the entire report. The council’s May 28, 1996 resolution appointing the defendants as commission members also directed the defendants to reconsider certain charter provisions that the prior commission had considered in its February report and had recommended not be changed.

At the May 28, 1996 special meeting of the town council, the town attorney advised the council that five affirmative votes were required to adopt the resolution naming the defendants as commission members. The validity of the defendants’ appointment was questioned publicly at the May 28,1996 meeting of the town council and was the subject of articles in newspapers of general circulation in Plainville.

Plainville’s town charter was originally adopted on May 19, 1959, and became effective in October, 1959. Each of the previous ten charter revision commissions was initiated by the town council and was established by resolutions approved by the affirmative vote of at least five council members.

On June 6, 1996, the defendants established a schedule of meetings pursuant to which their final meeting would be held on Saturday, July 13,1996. Subsequently, the defendants advanced the schedule of meetings so that their second public hearing would be conducted on July 8,1996. On July 9,1996, the defendants delivered their July 8, 1996 draft report of proposed charter changes to the Plainville town clerk. The town council scheduled a public hearing on this draft report for August 19,1996. The parties agree that all of the actions of the defendants, including their July 8, 1996 draft report, are null and void and of no legal effect, unless the defendants were duly appointed to the office of charter revision commission.

The trial court determined that (1) the town charter requires five affirmative votes of the town council to appoint persons to the charter revision commission, and (2) because the defendants were appointed by only four affirmative votes, their appointment and their subsequent actions are null and void. The trial court ordered the defendants removed from office and found, in accordance with the parties’ stipulation, that any official acts undertaken by the defendants since June 14, 1996, are invalid and without the force and effect of law.

I

The defendants first argue that the trial court lacked subject matter jurisdiction because the plaintiffs could not, as a matter of law and fact, state a cause of action in quo warranto. The defendants argue that a quo warranto action is designed to prevent the usurpation of a public office “legally authorized and constituted” and that the office of charter revision commissioner does not come into legal existence until the members of the commission are appointed. Thus, the defendants claim that the office comes into existence concurrent with the appointment of the commissioners and terminates with the town council’s acceptance or rejection of the commission’s final report. The defendants claim that the present case is not an action to prevent the defendants’ usurpation of the office of charter revision commissioner, but rather is a challenge to the creation of the office itself.

“[Wjhere a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991). “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” (Internal quotation marks omitted.) Toise v. Rowe, 44 Conn. App. 143, 146, 687 A.2d 557, rev’d on other grounds, 243 Conn. 623, 707 A.2d 25 (1998).

A complaint in the nature of a quo warranto may be brought “[w]hen any person . . . usurps the exercise of any office . . . [and] the Superior Court may proceed ... to punish such person ... for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.” General Statutes § 52-491. “A quo warranto proceeding under the common law lies only to test the defendant’s right to hold office de jure.” Cheshire v. McKenney, 182 Conn. 253, 256, 438 A.2d 88 (1980). In such an action, the burden is on the defendant to show, by a preponderance of the evidence, a complete title to the office in dispute. Deguzis v. Jandreau, 27 Conn. App. 421, 424, 606 A.2d 52 (1992). The title to be challenged in a quo warranto proceeding must be to a public office. State ex rel. Stage v. Mackie, 82 Conn. 398, 400, 74 A. 759 (1909).

The office of charter revision commission member is established pursuant to General Statutes § 7-188 (b). Even if we were to assume, arguendo, that the office does not come into legal existence until its members are appointed, it is irrelevant. Because a quo warranto proceeding seeks to test the defendants’ legal right to hold office, the plaintiffs properly brought an action in the nature of a quo warranto to challenge the legality of the defendants’ appointment to the charter revision commission. See Alcorn, State’s Attorney, ex rel. Hoerle v. Thomas, 127 Conn. 426, 428, 17 A.2d 514 (1941). The Superior Court, therefore, did not lack subject matter jurisdiction to hear and determine this quo warranto action.

II

The defendants next allege that the trial court improperly determined that a quo warranto action was the appropriate method to challenge the defendants’ appointment to the charter revision commission. Alternatively, the defendants claim that the plaintiffs failed to allege and prove the existence of a public office being usurped by the defendants and, therefore, have not set forth a prima facie case in quo warranto.

Our review of the record reveals that the defendants did not challenge the plaintiffs’ proceeding under the quo warranto statute, did not move to dismiss for failure to make out a prima facie case, and did not specifically raise either of these claims before the trial court. Nevertheless, the defendants argue that we should review their unpreserved claims because (1) the trial court made a determination that quo warranto was an appropriate remedy, and (2) they raised the issues in their amended statement of issues, thereby apprising the plaintiffs of the issues. The defendants also argue that we should consider their claims in the interest of the public welfare or of justice between the parties. See Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567 (1971). We do not agree.

While the record before us may be adequate for our review; see West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507, 636 A.2d 1342 (1994) (invoking supervisory power of court to review unpreserved claim where record adequate); we decline to review this claim, raised for the first time on appeal, because we do not deem it to be one in the interest of the public welfare or necessaiy for justice between the parties. We are not bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. Practice Book § 4061; see also Dept. of Public Safety v. Freedom of Information Commission, 242 Conn. 79, 91, 698 A.2d 803 (1997); Skrzypiec v. Noonan, 228 Conn. 1, 13, 633 A.2d 716 (1993).

Ill

The defendants next claim that the trial court improperly determined that since the Home Rule Act (act), General Statutes §§ 7-187 through 7-201, sets forth the specifics regarding the appointment, membership, duties, report and termination of a charter revision commission, but is silent as to the number of affirmative votes required to adopt a resolution appointing commission members, the town’s charter is controlling on that issue.

“Under the act, municipalities have the power to adopt a charter to serve as the organic law of that municipality. General Statutes § 7-188 (a); Caulfield v. Noble, 178 Conn. 81, 86, 420 A.2d 1160 (1979). It is well established that a [town’s] charter is the fountainhead of municipal powers. State ex rel. Raslavsky v. Bonvouloir, 167 Conn. 357, 362, 355 A.2d 275 (1974). The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised.” (Internal quotation marks omitted.) Windham Taxpayers Assn. v. Board of Selectmen, 234 Conn. 513, 529, 662 A.2d 1281 (1995). Our Supreme Court has stated that “to achieve the goal of local autonomy over issues of local concern, [courts do] not ‘apply a strict construction to the home rule legislation, because to do so would stifle local initiative ....’” Id., 535, quoting Norwich v. Housing Authority, 216 Conn. 112, 116, 579 A.2d 50 (1990). “[H]ome rule legislation was enacted to enable municipalities to conduct their own business and control their own affairs to the fullest possible extent in their own way . . . .” (Internal quotation marks omitted.) Caulfield v. Noble, supra, 87.

The trial court concluded that § 7-188 (b) addresses a municipality’s initiation of action to amend its charter and not the number of votes required to appoint members to the charter revision commission. The court determined that because the plaintiffs challenged only the second stage of the charter amendment process, § 7-188 (b) was irrelevant to its decision. The court further determined that it is only when the town council has moved beyond the initiation process contemplated by § 7-188 (b) that the second stage begins with the appointment of the charter revision commission members. Moreover, since General Statutes §§ 7-190 and 7-193 provide the exclusive statutory guidance as to the process for appointing members to the commission, and since those sections are silent as to the requisite number of votes, the language of the town’s charter is controlling.

We agree with the trial court’s determination and, because Plainville’s charter requires five affirmative votes of the town council for the adoption of any resolution, ordinance or vote, the adoption of the resolution to appoint the defendants by only four affirmative votes renders their appointment and their subsequent actions null and void.

We see no conflict between the provisions of the Home Rule Act and the town charter. The trial court’s determination is supported by § 7-193 (b) of the act, which provides that “[e]ach municipality may have any . . . commissions . . . which are specifically allowed by the general statutes or which are necessary to carry out any municipal powers, duties or responsibilities under the general statutes. All such . . . commissions . . . shall be elected, appointed and organized in the manner provided by the general statutes, except as otherwise provided by the charter or by ordinances or resolutions adopted pursuant to such charter. Any municipality may, by charter or by ordinances or resolutions adopted pursuant to such charter, alter the method of election, appointment or organization of any or all of such . . . commissions . . . unless specifically prohibited from making such alteration by the constitution or the general statutes.” (Emphasis added.) It is evident that the legislature, in enacting the Home Rule Act, “intended to give ‘home rule towns’ the freedom to retain aspects of special acts and charters suited to particular local needs and practices. Caulfield v. Noble, [supra, 178 Conn. 90.]” Sansone v. Clifford, 219 Conn. 217, 223, 592 A.2d 931 (1991). In accordance with the act, the manner in which members are appointed to a charter revision commission is a matter of local concern governed by the town’s charter, unless specifically prohibited by the constitution or General Statutes.

IV

Finally, the defendants claim that the trial court improperly (1) determined that their actions were invalid and without force and effect and (2) removed them from the commission. For the reasons previously stated, we conclude that the trial court properly adhered to the stipulation of the parties after concluding that the defendants were not duly appointed to the office of charter revision commission.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are David Underwood, Thomas Arcari, Reade Clemens, Vincent Riera, Joseph Plourde, George Fensick and Gloria Saucier.

       The plaintiffs are Val Dumais and Gregory Granger.

       The plaintiffs filed their complaint in the nature of a quo warranto on June 14, 1996.

       General Statutes § 7-188 (b) provides: “Any action [to adopt or amend a charter of a municipality] shall be initiated by a resolution adopted by a two-thirds vote of the entire membership of the appointing authority of such municipality, or by petition filed with the clerk of such municipality for submission to the appointing authority and signed by not less than ten per cent of the electors of such municipaliiy, as determined by its last-completed registry list; provided, in the case of a consolidated town and city having a town clerk and a city clerk, such petition shall be filed with the city clerk.”

       General Statutes § 7-190 provides: “Commission: Appointment, membership, duties, report, termination, (a) Within thirty days after such action has been initiated by vote of the appointing authority or by certification of a petition, the appointing authority shall by resolution appoint a commission consisting of not fewer than five nor more than fifteen electors, not more than one-third of whom may hold any other public office in the municipality and not more than a bare majority of whom shall be members of any one political party, which commission shall proceed forthwith to draft a charter, or amendments to the existing charter, or amendments to the home rule ordinance, as the case may be.
      “(b) The appointing authority shall direct the commission to consider those recommendations included in the petition and may make other recommendations to the commission. The commission may also consider other items for inclusion in the proposed charter, other changes to the charter or home rule ordinance and such other items as it deems desirable or necessary. The commission shall in its reports comment on each recommendation which it has been directed to consider, if any, and on such other changes or items. The appointing authority shall specify by resolution when the commission shall submit its draft report, which shall be not later than sixteen months from the date of its appointment.
      “(c) The commission shall terminate upon acceptance or rejection of its final report by the appointing authority.”

       General Statutes § 7-193 provides in relevant part: “(b) Every municipality shall have all municipal officers, departments, boards, commissions and agencies which are required by the general statutes or by the charter. Each municipality may have any municipal officers, departments, boards, commissions and agencies which are specifically allowed by the general statutes or which are necessary to carry out any municipal powers, duties or responsibilities under the general statutes. All such officers, departments, boards, commissions and agencies shall be elected, appointed and organized in

        the manner provided by the general statutes, except as otherwise provided by the charter or by ordinances or resolutions adopted pursuant to such charter. Any municipality may, by charter or by ordinances or resolutions adopted pursuant to such charter, alter the method of election, appointment or organization of any or all of such officers, departments, boards, commissions or agencies, including combining or separating the duties of each, unless specifically prohibited from making such alteration by the constitution or the general statutes.” (Emphasis added.)

       Chapter three, § 5, of the Plainville charter provides in relevant part: “The Council shall determine its own rules of procedure not inconsistent with the provisions of this Charter. The presence of five members shall constitute a quorum but no ordinance, resolution or vote, except a vote to acljoum or to fix the time and place of its next meeting, shall be adopted by less than five affirmative votes and the ayes and noes of each vote shall be recorded in the journal. No ordinance or resolution shall be adopted or appointment or removal made except in a meeting of the Council open to the public.” (Emphasis added.)

       The Home Rule Act neither specifically provides for the number of affirmative votes necessary to adopt a resolution appointing members to a charter revision commission nor specifically prolúbits municipalities from altering, by charter, the method of election of commission members. See, e.g., General Statutes § 7-188 (b) (two-thirds vote of entire membership of appoinling authority required for charter revision); General Statutes § 7-191 (d) (majority vote of entire membership of appointing authority required to approve proposed charter revisions contained in commission’s final report); General Statutes § 7-191 (e) (majority vote of entire membership of appointing au1 hority required to determine whether proposed charter revisions shall be submitted to electors for approval or rejection).


author: DALY, J.

text:
    STATE OF CONNECTICUT v. MICHAEL WATSON
    (AC 16560)
    O’Connell, C. J., and Spear and Daly, Js.
    Argued October 30, 1997
    officially released March 3, 1998

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

In this action, the defendant, Michael Watson, appeals from the judgment of conviction, rendered after a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and, as found by the court, of being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a).

The defendant claims that the trial court improperly (1) permitted cross-examination of an alibi witness about her failure to report the alibi, (2) denied the defendant’s motion for a mistrial, which he based on a reference by the prosecutor to his incarceration, (3) failed to inquire about a possible conflict of interest of defense counsel, (4) failed to find ineffective assistance of counsel, and (5) refused to permit the defendant to demonstrate his voice without being forced to testify. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of December 17, 1994, Elaine Jackson and Christina Ramirez were employed at a sandwich shop in Bridgeport. At approximately 11 p.m., the defendant entered the store and asked for a soda. Ramirez waited on the defendant. He inquired about a telephone, and Ramirez indicated that there was one on the street comer. The defendant then displayed a gun and demanded money from Ramirez, who was standing next to the cash register. Ramirez called to Jackson, who observed the gun pointed at Ramirez. Both employees were behind a floor-to-ceiling partition that had an opening through which customers received their orders. The defendant kept the gun pointed at Ramirez and repeatedly demanded money. The defendant took the money that Ramirez removed from the cash register. He then pointed the gun at Jackson and demanded that she open the door leading to the rear of the store. Apparently unable to exit the store from the rear, he ordered the two employees to lie face down on the floor and to count to ten before moving. He left by the front door, and the employees then notified the police and the store supervisor.

The employees described the defendant as a Hispanic male, five feet, five inches tall, who spoke broken English, had a gauze bandage over one eye and was wearing a red and black flannel jacket. Ramirez selected the defendant’s photograph from a photographic array of eight males as being that of the perpetrator. The defendant was thereafter arrested.

At trial, the defendant presented an alibi defense that on the evening of December 17, 1994, he was attending a Christmas party at a club in Stratford with his fiancee, Lisa Cabral, who is now his wife. Cabral testified that she was with him from shortly before 9:30 p.m. until after 12:15 a.m. She testified that the defendant had no accent or injury to his face. Two other witnesses testified that the defendant was at the party and that he had no accent and no injury to or bandage on his eye.

I

A

The defendant first claims that the trial court improperly permitted the state to cross-examine Cabral concerning her failure to report the defendant’s alibi to the proper authorities.

As noted previously, Cabral testified that the defendant was with her at the time of the robbery. The state inquired on cross-examination whether she had reported this to the police department or to the state’s attorney’s office. The defendant did not interpose an objection to those questions on relevancy grounds, but did object to one of the questions on the ground that it assumed that Cabral had an obligation to report the alibi. The court overruled the defendant’s objection and the witness testified that she did not report the alibi to the police or to the state’s attorney’s office. The state then attempted to ask the witness whether, and how many times, she had come to court on this case. The defendant objected, contending that the question was irrelevant and suggested that the state give an offer of proof as to the relevance of that “line of questioning.” The court overruled the objection and permitted the state to inquire as to the number of times Cabral had come to court on this case. The defendant also objected to the state’s question as to how many days per week Cabral was in the downtown Bridgeport area. The defendant did not, however, object to the state’s question as to whether Cabral was in the downtown area at her job five days per week from February through July, 1995. The state then asked: “Okay. You told us you never told the police department that you had an alibi for your husband? You never told anyone in the state’s attorney’s office you had an alibi for your husband other than his attorney. Did you ever tell anyone in law enforcement that you had an alibi for your husband?” Cabral responded that she had not informed anyone in law enforcement of the alibi, but that she had told defense counsel. In his brief, the defendant argues that the state asked, “[o]ver multiple relevancy objections, if Cabral had ever reported the alibi to police or the state’s attorney even though she worked down the street from the courthouse.”

The defendant asserts that the court improperly admitted evidence of Cabral’s silence and denied the request for a hearing to challenge the relevancy of the silence. The defendant requested a hearing to show that Cabral had refrained from speaking on the advice of defense counsel.

The standard of review on the propriety of the trial court’s ruling on the relevance of questions by a state’s attorney is well settled. State v. Ghere, 201 Conn. 289, 303, 513 A.2d 1226 (1986). “The scope of cross-examination in a criminal trial is a matter properly left to the sound discretion of the trial court .... Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Reversal is required only where an injustice appears to have occurred.” (Internal quotation marks omitted.) Id.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. State v. Cosby, 44 Conn. App. 26, 31-32, 687 A.2d 895 (1996), cert. denied, 240 Conn. 910, 689 A.2d 474 (1997).” (Emphasis in original; internal quotation marks omitted.) State v. Torres, 47 Conn. App. 149, 155-56, 702 A.2d 142 (1997), cert. denied, 243 Conn. 963, 707 A.2d 1267 (1998).

In State v. Ghere, supra, 201 Conn. 300, the defendant challenged “the propriety of the trial court’s ruling allowing the state’s attorney to impeach the defendant’s alibi witnesses by exposing their failure to tell the police their story in support of the alibi.” The Supreme Court addressed the narrow issue of “whether the failure of the witnesses to approach the police with their alibi story was relevant on the issue of credibility or, more specifically, the issue of fabrication.” Id., 303-304. The court pointed out that “[although we do not believe that an alibi witness has a duty to report an alibi story to the police or, for that matter, to any other person, a witness in many instances naturally may be expected to convey such information, especially when the witness is friendly with the accused. Failure of the witness to do so would, under these circumstances, constitute grounds for impeachment.” Id., 304.

In State v. Bryant, 202 Conn. 676, 703, 523 A.2d 451 (1987), the court referred to its decision in Ghere and stated that the alibi witnesses in Ghere “ ‘were shown to be friends or acquaintances of the defendant and it would only have been natural for them to exculpate the defendant of any wrongdoing by approaching the police’ and, therefore, the trial court correctly allowed the state to impeach them by questioning their failure to relate their stories to the police.” Id., quoting State v. Ghere, supra, 201 Conn. 305.

The defendant concedes that he has the burden of establishing that there has been an erroneous ruling that was harmful to him. State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60i, p. 385. The questions relating to Cabral’s failure to report the alibi to the police were relevant to the issues of credibility and fabrication. “[I]f evidence adduced on cross-examination conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should be admitted.” (Internal quotation marks omitted.) State v. Ghere, supra, 201 Conn. 303. Cabral’s credibility was clearly in issue, and it was proper for the state’s attorney to inquire into the circumstances of the alibi claim in an attempt to discredit it. See id. We hold that the trial court did not improperly permit, as relevant, questions concerning the witness’ failure to report the alibi.

B

The defendant also claims a violation of his right to a fair trial under the constitution of Connecticut, article first, § 8, and under the sixth and fourteenth amendments to the United States constitution. The defendant asserts that Cabral was advised by defense counsel not to report the alibi. The defendant claims that this fact rendered the evidence of her silence inadmissible under State v. Bryant, supra, 202 Conn. 676, because it raised issues relating to “the advice and strategy of counsel and attorney-client commxmications.”

To support this claim on appeal, the defendant relies on our Supreme Court’s statement in State v. Bryant, supra, 202 Conn. 676, that “[i]t may be prudential for the trial court to have a bench conference to ascertain ‘whether [a] witness refrained from speaking under the advice of defense counsel, for in such a case examination on the issue of the witness’ postconsultation silence would be improper and could well result in a mistrial. ’ ” Id., 705-706, quoting People v. Dawson, 50 N.Y.2d 311, 323, 406 N.E.2d 771, 428 N.Y.S.2d 914 (1980). la Bryant, the defendant claimed that “the impeachment of his alibi witnesses, because of their ‘silence’ up to trial, violated his sixth amendment right to present a defense.” Id., 704. The court stated that “[i]t can fairly be said that an alibi witness, like any other witness, may be cross-examined with a view to demonstrating the improbability or even fabrication of his testimony. Where, however, such a witness is cast in the posture of having been silent as to claimed exculpatory testimony and is not given a real opportunity to explain that silence, some courts have suggested salutary responses in an effort to insure basic fairness. See, e.g., Commonwealth v. Brown, 11 Mass. App. 288, 296, 416 N.E.2d 218 (1981); People v. Dawson, supra [323], Some courts have, therefore, required that the state lay a ‘proper foundation’ for this type of cross examination.” State v. Bryant, supra, 704-705. A proper foundation may be laid by “demonstrating that the witness was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities. ... A proper foundation may better aid the trier of fact in determining whether the testimony of such a defense witness is an accurate reflection of the truth or is, instead, a recent fabrication.” (Citations omitted; internal quotation marks omitted.) Id.

At trial, the defendant objected to the state’s questions only on the ground of relevance. He did not object on the ground of a lack of foundation and he did not raise the present constitutional claim. He now seeks review of the claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant can prevail on his unpreserved constitutional claim only if the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986); State v. Manfredi, 17 Conn. App. 602, 621, 555 A.2d 436 (1989), aff'd, 213 Conn. 500, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990). Because the defendant’s claim is of constitutional magnitude and a record sufficient to review the claim exists, we will review it. The claim fails, however, under the third prong of Golding.

On cross-examination, Cabral stated that she told defense counsel about the alibi. On redirect, counsel for the defendant asked Cabral why she did not go to the police. Cabral explained that she reported the alibi to defense counsel and that she believed he would do what was necessary with the information. Thus, Cabral was given an opportunity to explain her silence without having to divulge the substance of any conversation with defense counsel. We are unable to conclude that the state’s questions deprived the defendant of a fair trial.

II

The defendant next claims that the trial court improperly denied his motion for a mistrial. The defendant moved for a mistrial based on the following question asked of Cabral by the state: “[Y]ou are aware that when your husband was arrested he went to jail, aren’t you?” The defendant objected to the reference to jail in the question and the court sustained the objection. The defendant then moved for a mistrial on the ground that the prosecution’s mention of the fact that the defendant was in jail violated a court order not to refer to the defendant’s incarceration and constituted prosecutorial misconduct. The state claimed that the question was relevant. The trial court denied the motion for a mistrial, finding that the question did not indicate that the defendant was presently incarcerated. On appeal, the defendant also claims that the question impinged on the presumption of innocence.

“The decision as to whether to grant a motion for a mistrial ... is one that requires the trial court to exercise its judicial discretion. . . . Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 635, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997).

The trial court sustained the defendant’s objection to the question and prohibited the state from alluding to the defendant’s incarceration. Furthermore, the court specifically instructed the jury that it should consider only such evidence as was admitted. Applying the standard of review to the defendant’s claims, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.

The defendant’s claim that the question impinged on the presumption of innocence is equally without merit. In State v. Dolphin, 195 Conn. 444, 452, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985), the state’s attorney alluded to the defendant’s incarceration during cross-examination of the defendant’s principal witness, and the trial court denied defense counsel's motion for a mistrial, finding that the remark had been inadvertently made. The Dolphin court observed that “[w]hile a state’s attorney has an obligation to present the state’s strongest case, he is not licensed to use unethical or inflammatory tactics. ... He must carefully avoid improprieties tending to prejudice any constitutional right of the accused. . . . Merely asking an improper question, however, does not necessarily mandate a mistrial. . . . The defendant must prove to the court that the remarks made by the prosecutor were so prejudicial that the defendant was deprived of the opportunity for a fair trial and the entire proceedings were tainted.” (Citations omitted; internal quotation marks omitted.) Id., 452-53.

In Dolphin, the court upheld the trial court’s decision not to grant the motion for mistrial, finding that the trial court promptly intervened to cure any prejudicial impact. The Dolphin court also found that there was nothing in the record to indicate that the questions in any way contributed to the verdict or that the court was incorrect in concluding that the prosecutor’s questions did not warrant the extreme remedy of a mistrial. For the same reasons, we hold that the court in this case did not abuse its discretion in denying the defendant’s motion for a mistrial.

Ill

The defendant raises for the first time on appeal a claim that his right to effective assistance of counsel was violated when the trial court did not inquire into the possible conflict of interest of defense counsel. The defendant contends that if defense counsel questioned Cabral concerning his advice to her with respect to the alibi, he would have been, in effect, testifying as an unsworn witness while at the same time acting as an advocate.

“Practice Book § 4061 provides that ‘[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .’ This court follows the ‘[long-standing] rule that absent certain exceptional circumstances . . . claims not distinctly raised at trial will not be reviewed on appeal.’ Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). This rule encompasses even constitutional issues. State v. Kelly, 23 Conn. App. 160, 167, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991). Our Supreme Court has held that ‘[s]uch exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial.’ ” In re Michael A., 47 Conn. App. 105, 110, 703 A.2d 1146 (1997), quoting In re Romance M., 229 Conn. 345, 352-53, 641 A.2d 378 (1994).

“The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Festo v. Luckart, 191 Conn. 622, 626, 469 A.2d 1181 (1983). Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981). Festo v. Luckart, supra, 626-27. . . . Moreover, one of the principal safeguards of this right is the rule announced by [our Supreme Court] that [a trial] court must explore the possibility of conflict . . . when it knows or reasonably should know of a conflict.... Festo v. Luckart, supra, 629.” (Emphasis in original; internal quotation marks omitted.) State v. Martin, 201 Conn. 74, 78-79, 513 A.2d 116 (1986).

“The two leading cases on the trial court’s duty to inquire into possible conflicts of interest, Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978), and Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), both involved multiple representation of criminal codefendants.” State v. Martin, supra, 201 Conn. 79. As noted by the court in Martin, however, the fact that a conflict of interest arises “out of a situation other than multiple representation of criminal codefendants does not prevent the application of the principles set forth by the United States Supreme Court in Holloway v. Arkansas, supra [435 U.S. 475].” State v. Martin, supra, 81. In Holloway, “the trial court’s failure to investigate defense counsel’s timely allegation of a conflict of interest constituted a violation of the defendant’s sixth amendment right.” State v. Martin, supra, 79. “In Cuyler v. Sullivan, supra, [446 U.S.] 347, the court held that a trial court is under no obligation to initiate inquiry ‘[u]nless [it] knows or reasonably should know that a particular conflict exists. . . .’ See Festo v. Luckart, supra, [191 Conn.] 628. . . . In Cuyler, the court also noted that defense counsel has ‘an ethical obligation to avoid conflicting representations’ and must immediately advise the court when a conflict of interest arises during the course of, as well as prior to, trial. [Cuyler v. Sullivan, supra], 346.” State v. Martin, supra, 80. The court in Martin held, therefore, that “when counsel makes a timely assertion of a conflict of interest, the trial court is under an affirmative obligation to make an adequate inquiry on the record to establish whether there is a conflict of interest.” Id., 83.

In this case, defense counsel was remiss in failing to advise the court of any possible conflict of interest. As previously noted, the trial court is under no obligation to initiate an inquiry unless it knows or reasonably should know that a particular conflict exists. Id.,79. Here, the trial court reasonably could have presumed that Cabral and defense counsel shared a common interest in advancing the defendant’s cause. Accordingly, the defendant’s claim is without merit.

IV

The defendant next claims that his attorney’s explanation to the jury in closing argument about the advice he gave to Cabral concerning the disclosure of the alibi constituted a conflict of interest and resulted in ineffective assistance of counsel.

The trial court adequately instructed the jury to consider only the admissible evidence presented during the course of the trial. Furthermore, defense counsel’s remarks to the jury do not appear to create a conflict of interest. “We have long held that the proper forum in which to address claims of ineffective representation of counsel is in the habeas forum or in a petition for a new trial, rather than on direct appeal.” State v. Jones, 46 Conn. App. 640, 660, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997), citing State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

Assuming, arguendo, that a conflict did exist, we deem it to be harmless in view of the other witnesses who also testified as to the whereabouts of the defendant on the evening of December 17, 1994.

V

The defendant’s final claim is that he was deprived of a fair trial when the trial court ruled that he could not demonstrate his voice to the jury without appearing as a witness. The purpose of the proposed demonstration was to show that the defendant did not have an accent, as testified to by witnesses for the state. Jackson and Ramirez had testified that the gunman was a Hispanic male who spoke broken English.

The defendant contends that due process required that he should have been allowed to introduce his voice exemplar at the trial because the state would have been allowed to introduce it. A similar claim was raised in United States v. Esdaille, 769 F.2d 104 (2d Cir.), cert. denied, 474 U.S. 923, 106 S. Ct. 258, 88 L. Ed. 2d 264 (1985), in which the defendant contended that the trial court had “denied him due process in refusing to permit him to give an exemplar at trial without exposing himself to cross-examination . . . .” Id., 107. The defendant argued that “a voice exemplar displays an identifying physical characteristic in a way that is not testimonial and that, as the government would have been allowed to require him to give such an exemplar on the theory that it is not testimonial, it was unfair not to permit him the same right.” Id. The court in Esdaille concluded, however, that “the trial court did not abuse its discretion in refusing to allow the exemplar without [the defendant’s] subjecting himself to cross-examination.” Id. The court explained that “the matter of whether an act is testimonial or not bears on whether a person may be compelled, consistent with his Fifth Amendment right to avoid self-incrimination, to perform that act; but the fact that exhibition of a physical characteristic is not testimonial in nature, and hence may be compelled at some stage, does not require its admissibility into evidence.” Id. Thus, the appeals court determined that the trial court had properly focused on whether the exemplar was reliable, not on whether it was testimonial. We find Esdaille persuasive and conclude that the defendant’s due process rights were not violated in the manner in which he suggests.

The “demonstration of voice expression, delivery or style clearly lacks the reliability inherent in handwriting, clothing size and similar expositions. ... In view of the lack of reliability of the proposed demonstration and the existence of readily available alternative means of presenting the evidence to the jury, the trial court did not abuse its discretion in denying the defendant the opportunity to speak before the jury other than as a sworn witness.” State v. Johnson, 183 Conn. 156, 163, 438 A.2d 855 (1981). In denying the defendant’s request, the trial court herein stated that many identifying attributes of voice can be altered and that therefore the demonstration would have been of no value. We hold that the trial court did not abuse its discretion in denying the defendant the oppoitunity to demonstrate his voice.

The judgment is affirmed.

In this opinion the other judges concurred.

       Rule 3.7 (a) of the Rules of Professional Conduct, provides in relevant part that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness . . . .’’The defendant does not invoke this rule in arguing that his right to effective assistance of counsel was violated.
      The defendant asserts that Cabral testified that she remained silent on the advice of defense counsel. Consequently, the defendant contends that counsel's credibility became an issue in the case and that counsel would have had to argue the correctness of this advice in defending against the state’s inference that Cabral fabricated the alibi. Irrespective of the merits of this argument, the transcript reveals that Cabral testified that she did not report the alibi to the police or to the state’s attorney’s office because she believed that defense counsel would do what was necessary with the alibi information, and not that she refrained from reporting the alibi on the advice of defense counsel.

       Counsel for the defendant made the following remarks during closing argument: “Now, Lisa [Cabral] did not go to the police department and Lisa did not go to the prosecutor’s office. Lisa did the reasonable thing. Lisa went to the attorney, the attorney’s office. Lisa knows the only person who has the best interest of his client in mind is the defense attorney and he would make the best choice of what to do with the information, because common sense tells you once an arrest takes place it’s much more difficult to undo an arrest after it’s taken place and this arrest had taken place. Do you think if somebody marched in and said, I’m the wife of the defendant in this case and he wasn’t there, do you think they would just have said, Okay, we’ll dismiss this case? They would say that is up to the jury to decide. By the way, what is your name and sit down, we’ll have a chat, but we’re not going to dismiss that case. We’re not going to dismiss that case. That goes against reason, because if that were the case I guess there is probably a bridge in Brooklyn that might be for sale.”


text:
    STANLEY DORSEY v. UNITED TECHNOLOGIES CORPORATION/NORDEN SYSTEMS, INC., ET AL.
    (AC 16378)
    Foti, Schaller and Hennessy, Js.
    Submitted January 29
    officially released March 3, 1998

      Lindalea P. Ludwick, for the appellant (plaintiff).

      Jason M. Dodge, for the appellees (defendant Cigna Property and Casualty Company et al.).

      Maureen E. Driscoll, with whom, on the brief, was Scott Wilson Williams, for the appellees (defendant Liberty Mutual Insurance Company et al.).
   Opinion

FOTI, J.

This matter is currently before us on remand from our Supreme Court. A petition for certification was filed by the plaintiff following the publication of Dorsey v. United Technologies Corp., 45 Conn. App. 707, 697 A.2d 713 (1997) (Dorsey I). The petition was granted and the matter remanded to this court for reconsideration in light of our Supreme Court’s decision in Discuillo v. Stone & Webster, 242 Conn. 570, 698 A.2d 873 (1997). Dorsey v. United Technologies Corp., 243 Conn. 949, 704 A.2d 795 (1997).

In Dorsey I, we relied on our decision in Discuillo v. Stone & Webster, 43 Conn. App. 224, 682 A.2d 145 (1996), aff'd, 242 Conn. 570, 698 A.2d 873 (1997), to “conclude that the statute of limitations in repetitive trauma cases runs one year from the date of last injurious exposure, regardless of when the plaintiff developed knowledge that the injury resulted from his employment.” Dorsey I, supra, 45 Conn. App. 711. Although our Supreme Court affirmed our decision in Diseuillo, it disagreed with the suggestion that “repetitive trauma injuries must automatically be treated as accidental injuries for purposes of [General Statutes] § 31-294.” (Emphasis in original.) Diseuillo v. Stone & Webster, supra, 242 Conn. 580 n.10. The court held that repetitive trauma claims fall within a statutory gap as to the duration of the filing period and, therefore, must be folded into one of the preexisting jurisdictional categories for claims based on accidental injury or occupational disease. Id., 577-78. The court stated that “the terms ‘accident’ and ‘occupational disease’ as they are used in § 31-294 must be read broadly enough so that even an injury that is defined as stemming from repetitive trauma pursuant to [General Statutes] § 31-275 (8) may nonetheless be deemed to fall into one of the two extant jurisdictional categories, as appropriate to the specific facts of each particular claim.” (Emphasis in original.) Id., 578. “Moreover, with regard to repetitive trauma claims to which the limitation period for accidents applies, the date on which the ‘accident’ is deemed to have occurred is the last day of exposure to the work-related incidents of repetitive trauma.” Id., 581. In analyzing the injury claim in Discuillo, our Supreme Court concluded, under the particular facts of that case, that “the plaintiffs heart attack more closely resembles an accidental injury than an occupational disease.” Id., 580.

Our analysis of the plaintiffs claim herein, under the particular facts found, leads us to conclude that the plaintiffs hearing loss more closely resembles an accidental injury than an occupational disease. In Discuillo v. Stone & Webster, supra, 242 Conn. 580, our Supreme Court stated that “a series of repetitive workplace traumas can have the unintended result of causing an ‘accidental’ injury to an employee.” The facts found support the conclusion that an accidental injury resulted from the plaintiffs exposure to a series of traumas, i.e., noise, occurring over a course of time. The plaintiffs hearing loss was not found to be a “natural incident” of his occupation as a powerhouse operator, nor did it “attach to [his] occupation a hazard which distinguishes it from the usual run of occupations and is in excess of that attending employment in general.” Glodenis v. American Brass Co., 118 Conn. 29, 40-41, 170 A. 146 (1934). From the facts found, there was no recognizable link between the plaintiffs hearing loss and some distinctive feature of his employment that is common to all jobs of that sort. The facts do not establish that the plaintiff’s occupation as a powerhouse operator subjected him to a hazard that made it more likely that he would suffer a hearing loss than if he were otherwise employed. See Hansen v. Gordon, 221 Conn. 29, 34-37, 602 A.2d 560 (1992).

Although the plaintiff was diagnosed with hearing loss on January 5, 1993, his last day of exposure was March 11, 1990. Because his claim was not filed until January 14, 1993, he did not file within one year of the last injurious exposure in a repetitive trauma case that more closely resembles an accidental injury than an occupational disease. The plaintiff, therefore, has not satisfied the jurisdictional filing prerequisites pursuant to § 31-294.

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

In this opinion the other judges concurred.

       Pursuant to General Statutes § 31-294, compensation claims based on accidental injury must be filed within one year from the date of the accident, whereas claims based on occupational disease must be filed within three years from the first manifestation of a symptom of the occupational disease.

       We note that we ordered the parties to file simultaneous supplemental briefs to address the question: “Does the plaintiffs repetitive trauma iqjury (i.e., hearing loss) more closely resemble an ‘accident’ or an ‘occupational disease’ pursuant to General Statutes § 31-294? See Discuillo v. Stone & Webster, [supra, 242 Conn. 570].”