text:
    FORESTVILLE LUMBER COMPANY, INC. v. RED OAK DEVELOPMENT CORPORATION ET AL.
    (14799)
    O’Connell, Lavery and Spear, Js.
    Argued April 25
    officially released August 27, 1996

      Dennis Alex, for the appellant (defendant Dennis Bitzaya).

      Peter L. Lawrence, with whom, on the brief, were John L. Laudati and Lawrence J. Kiel, for the appellee (plaintiff).
   LAVERY, J.

This is an appeal from a judgment rendered for the plaintiff in accordance with certain findings of fact made by a fact finder pursuant to General Statutes § 52-549n. On appeal, the defendant Dennis Bitzaya claims that the trial court improperly (1) referred the case to a fact finder because the money damages claimed by the plaintiff exceeded $15,000, and (2) rendered judgment concluding that Bitzaya entered into a valid credit guarantee agreement. We conclude that the trial court improperly referred this case to a fact finder and, therefore, reverse the judgment of the trial court and remand for further proceedings.

On February 14,1994, the plaintiff brought this action against the defendants, Bitzaya and Red Oak Development Corporation (Red Oak), claiming breach of a credit agreement. In its complaint, the plaintiff alleges that on May 27,1988, Bitzaya, as president of Red Oak, signed and presented to the plaintiff an application for an open credit account. The credit application provided, inter alia, that all invoices not paid within thirty days shall be subject to a finance charge of 18 percent per year. The plaintiff also alleged that Bitzaya personally guaranteed the full and prompt payment of all sums due from Red Oak to the plaintiff. The complaint states that the plaintiff sold building supplies and materials to Red Oak, which has refused to make payment. The plaintiff claims that the defendants are liable to the plaintiff for $13,772.94 plus interest at 1.5 percent per month.

At the time the plaintiff brought this action, it also issued a writ for a prejudgment remedy for a $30,000 attachment of Bitzaya’s real property pursuant to General Statutes § 52-278f. The plaintiff submitted an affidavit from its secretary stating that the defendants are liable to the plaintiff for a total sum of $28,099.77.

The trial court referred the case to a fact finder pursuant to § 52-549n. After a hearing, the fact finder concluded that judgment should enter in favor of the plaintiff. The fact finder recommended that the trial court render judgment against the defendants in the principal amount of $13,772.94, interest through December 31, 1994, in the sum of $14,326.70, interest at the rate of 18 percent per year- from January 1,1995, through the date of judgment and attorney’s fees in the amount of $2000. On April 24, 1995, the trial court approved the conclusions of the fact finder and rendered judgment accordingly pursuant to Practice Book § 546J.

The dispositive issue in this case is whether the trial court improperly referred this case to a fact finder when the pleadings indicate that the amount in demand is greater than $15,000. Section § 52-549n provides that the court may refer to a fact finder “any contract action pending in the superior court in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in demand is less than fifteen thousand dollars exclusive of interest and costs.” Fact finders are limited in their jurisdiction to addressing only contract matters in which the request for relief is limited to a claim for money damages less than $15,000. McKeever v. von Reiter, 15 Conn. App. 194, 196, 544 A.2d 242 (1988); see also Serrano v. Behar, 15 Conn. App. 308, 310 n.3, 544 A.2d 250 (1988).

In this case, the plaintiff seeks damages in excess of the $15,000 limit. On the face of the pleadings, the plaintiff has alleged that the defendants are liable to it for a total of $28,099.77. The plaintiffs complaint alleges that the defendants are hable to the plaintiff for contractual interest at 1.5 percent per month in addition to the $13,772.94 principal amount. The plaintiffs affidavit supporting its prejudgment remedy calculates the accrued contractual interest to be $12,260.90 at the time of the filing of the complaint. We hold that the pleadings in this case sufficiently show that the amount in demand is more than $15,000.

The plaintiff claims that this case falls within the jurisdictional limits outlined by § 52-549n because the amount in demand is less than $15,000 exclusive of interest and costs. The plaintiff argues that the accrued contractual interest should not be included as a component of the amount in demand, but should be construed as “interest and costs.” The plaintiff claims that only the $13,772.94 principal amount due from the sale of the materials can be included as the amount in demand. We disagree and hold that the term “interest and costs” does not include contractual interest accrued prior to the filing of the complaint.

The phrase “interest and costs” as used in § 52-549n relates to discretionary interest that a trial court may award pursuant to General Statutes § 37-3a. Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 675-76, 591 A.2d 101 (1991); Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973); Spearhead Construction Corp. v. Bianco, 39 Conn. App. 122, 136, 665 A.2d 86, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Section 37-3a allows the trial court to award as damages the interest on money that has been wrongfully detained. The term “legal interest” as used in § 52-549n refers to interest that is part of the agreement between the parties, such as interest in a contract, promissory note or revolving credit agreement. Legal interest is interest that is due and owing under the terms of the agreement at the time the plaintiff brings the action. The plaintiffs action, therefore, was beyond the jurisdiction of the fact finder because the amount in demand in this case is greater than the maximum amount set forth in § 52-549n.

The plaintiff also ar gues that Bitzaya waived his right to challenge the referral to a fact finder because he did not challenge the referral prior to the fact finder hearing the case. The plaintiff relies on our decision in Beizer v. Goepfert, 28 Conn. App. 693, 703, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, 507 U.S. 973, 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993), where we held that a party must challenge the referral of a matter by the trial court to a fact finder prior to the time the attorney fact finder begins hearing the case. In Beizer, the referral of the case to a fact finder did not implicate the subject matter jurisdiction of the trial court because it was properly referred under § 52-549n. Id., 702-703.

In this case, the matter was not properly referred pursuant to § 52-549n because the amount in demand was greater than $15,000. The trial court lacks subject matter jurisdiction to refer a case to a fact finder when the requirements of § 52-549n are not met. “A claim that the court lacks subject matter jurisdiction cannot be waived.” Beizer v. Goepfert, supra, 28 Conn. App. 697. We conclude, therefore, that the defendant has not waived his right to challenge the referral of the matter to a fact finder.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The defendants in this case are Red Oak Development Corporation and Dennis Bitzaya. The trial court rendered judgment against both defendants. Only Bitzaya appeals from the trial court’s judgment.

       The affidavit states that “there is presently due the plaintiff from the defendants . . . the sum of $28,099.77 which sum is calculated as follows:
      Principal $13,772.94
      Interest from 1/3/90
      through 1/28/94 12,260.90
      Attorney’s Fees 2,065.93
      TOTAL $28,099.77”


source: Caselaw Access Project

author: SCHALLER, J. LANDAU, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. GREG STRICKLAND
    (14593)
    Foti, Landau and Schaller, Js.
    Argued March 18
    officially released September 3, 1996

      KentDrager, assistant public defender, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   SCHALLER, J.

The defendant appeals from the judgment of the trial court revoking his probation. The defendant claims that the trial court improperly (1) found him to be in violation of probation because there was insufficient evidence, (2) failed to disqualify itself, (3) denied him the right personally to address the court, (4) deprived him of his right to counsel, and (5) refused to order an updated presentence investigation report. We affirm the judgment of the trial court.

The following facts adduced at the probation hearing are relevant to this appeal. On November 17, 1988, the defendant pleaded guilty to kidnapping in the second degree in violation of General Statutes § 53a-94, assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). The trial court sentenced the defendant to the custody of the commissioner of correction for an effective sentence of eleven years, suspended after four and one-half years, and placed him on probation for three years.

On November 1, 1992, the defendant was released from the custody of the commissioner of correction. On November 2, 1992, the defendant reported to his probation officer, Iris Santiago, who reviewed with the defendant the conditions of probation to which the defendant had agreed. The conditions included, inter alia, complying with criminal laws and reporting as directed by a probation officer.

The defendant failed to report to Santiago as directed on November 18 and December 16, 1992, January 13, February 3, March 17, June 9, July 17, August 25, October 6 and November 17,1993, and January 11, February 16 and March 9,1994. The defendant did report to Santiago as directed on April 21, May 12, July 21, September 8, October 20 and December 14, 1993, and January 19, 1994. The defendant also reported on December 18, 1992, February 5 and June 6, 1993, and March 16, 1994.

On March 10,1994, the defendant was involved in an incident at the two bedroom apartment of Theodosia Provite. At 2 a.m., the defendant, who had known Provite for two years, stopped at her apartment. Provite was with Maurice Bacote in her upstairs bedroom. Provite’s daughter was sleeping in the other upstairs bedroom. When Provite opened the front door for the defendant, he walked past her and went upstairs.

When the defendant reached the top of the stairs, he was met by Bacote. The defendant told Bacote: “Get your stuff and get out.” Bacote replied: “No, get your stuff and get out.” The defendant then said: “I know you don’t have a gun. Shoot me.” Several gunshots were then fired. After the shooting stopped, Provite, who had escaped to her kitchen, heard someone run down the stairs and out of the apartment. She then heard the defendant calling for help. She called 911 and went upstairs.

Provite found the defendant lying on the floor in the doorway to her daughter’s bedroom. The defendant gave her a .38 caliber gun and told her “to put it up.” Provite wrapped the gun in a towel and put it in her closet. Emergency medical technicians took the defendant to Yale-New Haven Hospital. The defendant had been shot in the thigh and the abdomen.

Police later discovered six bullet holes in the door to Provite’s daughter’s bedroom. The wall across the hall from the daughter’s bedroom contained two bullet holes. Detective Robert Benson found five .38 caliber shell casings, a 9 millimeter shell casing, and two 9 millimeter bullets in the daughter’s bedroom. He also found a 9 millimeter shell casing and three .38 caliber bullets in the hallway. Benson removed a 9 millimeter bullet from the bullet proof vest that the defendant was wearing and two .38 caliber bullets from the hallway wall opposite the daughter’s bedroom.

Benson also found a .38 caliber gun wrapped in a towel in the closet of Provite’s bedroom. The gun contained a cartridge housing two bullets. An empty 9 millimeter cartridge was found wrapped in the towel. The serial number on the .38 caliber gun had been drilled out and obliterated. The defendant did not possess a permit to carry a firearm.

Santiago prepared an arrest warrant application predicated on the defendant’s failure to report as directed on February 16 and March 9, 1994, and for the commission of criminal attempt to commit assault in the first degree, altering or removing an identification mark on a pistol or revolver, risk of injury to a child, and carrying a pistol or revolver without a permit. By an information dated December 8, 1994, the defendant was charged with a violation of probation pursuant to General Statutes § 53a-32. By amended information dated January 25, 1995, the defendant was further alleged to be in violation of probation for criminal possession of a firearm.

On February 6, 1995, the trial court found, by a preponderance of the evidence, that the defendant failed to report as directed to his probation officer on February 16, March 9 and March 10, 1994. The trial court further found that the defendant had been carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a), had obliterated the identification number on a pistol or revolver in violation of General Statutes § 29-36 and had been in criminal possession of a firearm in violation of General Statutes § 53a-217 (a). The court concluded that the beneficial purposes of probation were not being served and imposed the remainder of the defendant’s sentence, six and one-half years.

I

The defendant claims that the trial court improperly found that he had violated probation because there was insufficient evidence of the violations. To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his probation. State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). Where the legal conclusions of the trial court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). Where the factual basis of the court’s decision is challenged, we must determine whether the facts are supported by the evidence or whether they are clearly erroneous. Id., 222-23. “A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling. ...” (Internal quotation marks omitted.) State v. Welch, 40 Conn. App. 395, 401, 671 A.2d 379 (1996). We find no merit in the defendant’s claims.

A

The defendant first claims that his failure to report to the probation officer on February 16 and March 9, 1994, cannot properly be held to be violations of his conditions of probation. The defendant argues that the conditions of probation are analogous to the terms of a contract between the defendant and the state, and that the meaning of terms in a contract can be modified by the actions of the parties during the course of the contract. The defendant asserts, therefore, that because the probation department had accepted the defendant’s erratic manner of reporting to the probation officer, it cannot now arbitrarily and retroactively choose two dates on which the defendant failed to report as violations of the condition that he report to a probation officer as directed.

The defendant claims that our Supreme Court analogized the conditions of probation to the terms of a contract in State v. Davis, supra, 229 Conn. 285. We do not read Davis as supporting the defendant’s claim. In Davis, the court held that under General Statutes § 53a-32 the state has the burden of establishing a violation of probation by a fair preponderance of the evidence. Id., 295. In arriving at this conclusion, the court cited State v. Hodges, 798 P.2d 270, 278 (Utah App. 1990), for the proposition that “the probation revocation procedure established by § 53a-32 is akin to a civil proceeding” and that “ ‘[a]s in a contract dispute, proof of breach by the probationer is properly subject to a preponderance of the evidence standard’ . . . .” State v. Davis, supra, 295-96, quoting State v. Hodges, supra, 278.

Pursuant to General Statutes § 53a-30 (c) “the court may modify or enlarge” a defendant’s conditions of probation. State v. Smith, 207 Conn. 152, 169, 540 A.2d 679 (1988). This power is not given to the office of adult probation. We conclude that the comparison used by the Supreme Court in Davis was limited to demonstrating that the preponderance of the evidence standard should be used under § 53a-32. Because the defendant concedes that he failed to report to Santiago as directed on February 16 and March 9, 1994, the trial court’s finding was not clearly erroneous.

B

The defendant next claims that there was insufficient evidence for the court to find that the defendant possessed the gun found in Provite’s apartment. The defendant argues that, absent evidence of possession, the trial court could not find that he violated any criminal laws. At trial, Provite testified that the defendant handed her a gun and told her to “put it up.” Moreover, Benson testified that he found bullet holes from two different guns on opposite sides of the upstairs hallway. Bullet holes from the .38 caliber gun were found in the wall on the opposite side of the hallway from where the defendant was found. These facts support the inference that the defendant possessed the .38 caliber gun. We cannot conclude that the trial court’s finding that the defendant possessed a firearm was clearly erroneous.

C

The defendant next claims that the trial court improperly found that the defendant had obliterated the identification mark on the gun. General Statutes § 29-36 provides: “The possession of any pistol or revolver upon which any identifying mark, number or name has been altered, removed or obliterated shall be prima facie evidence that the person ... in possession of such pistol or revolver has altered, removed or obliterated the same.” The defendant argues that this presumption is unconstitutional and that because the state presented no evidence that he obliterated the identifying mark on the gun, other than his possession of the gun, the evidence is insufficient. We find no merit in this claim.

“ ‘The phrase “prima facie evidence” means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove.’ ” State v. Watson, 165 Conn. 577, 595-96, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). “[A] criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Leary v. United States, 395 U.S. 6, 36, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969). We conclude that the presumption in § 29-36 is not unconstitutional. We conclude further, with substantial assurance, that the defendant’s possession of the gun with obliterated markings demonstrates that it is more likely than not that he obliterated the markings.

II

The defendant next claims that the trial court improperly demonstrated bias against the defendant and improperly failed to disqualify himself. The defendant argues that by expressing disbelief of the defendant’s testimony and defense counsel's argument, the trial court deprived him of his due process right to a probation revocation hearing before a “neutral hearing body.” Because this claim was not preserved at trial, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and the plain error doctrine. We find no merit in the defendant’s claim.

Initially, we note that our review of this claim is limited to the plain error doctrine. Practice Book § 4185. A claim of judicial bias in a probation revocation proceeding, which is akin to a civil proceeding, is not subject to Golding review. State v. Burnhannan, 34 Conn. App. 537, 541, 642 A.2d 59 (1994). “Plain error exists only in truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id.

Because the court, rather than a jury, sits as the trier of fact in a probation revocation hearing, “we presume, absent an affirmative showing to the contrary, that the . . . court can put aside whatever impressions [it] may have about the [defendant] and grant him a fair hearing.” Fair v. Warden, 211 Conn. 398, 414, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989). The defendant points to several statements by the court that he claims demonstrate that the court lacked impartiality. Only one of the statements was made by the court, however, prior to the conclusion of the presentation of evidence. When the defendant refused to answer a question posed by the state, the court stated: “You want me to believe this story my friend, you better answer his questions.” The court may take reasonable steps necessary for the orderly progress of the trial. Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982).

The remaining statements that the defendant claims demonstrate bias were made after the defense rested its case. It cannot be said, therefore, that these statements demonstrate “a preconceived view of the credibility of a witness who had not yet testified before the trier.” Id. Rather, they demonstrate that the court had listened to the evidence and found, albeit hastily, that the defendant was not particularly credible. The record in this case does not support the defendant’s claim that the trial court appeared to lack impartiality such that the court should have disqualified itself.

Ill

The defendant claims that the trial court improperly denied him the right personally to address the court during the revocation portion of the probation revocation hearing. The defendant argues that this right is expressly guaranteed by Practice Book § 919 (3), which provides that, at a sentencing hearing, “[t]he judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence.” After finding that the defendant had violated his probation, the trial court revoked the defendant’s sentence of probation and ordered the defendant to serve the remainder of his original sentence. The defendant then asked to address the court, but the court refused to hear the defendant. We find no merit in the defendant’s claim.

We begin our analysis by examining the relevant sections of the rules of practice. Section 919 sets forth the procedures for conducting a sentencing hearing, including the mandate that a trial court shall allow the defendant a reasonable opportunity to address the court. Practice Book § 943 sets forth the procedures to be followed for the revocation of probation. After establishing how probation revocation proceedings may be initiated, § 943 provides: “All proceedings thereafter shall be in accordance with the provisions of Secs. 634 through 685. At the revocation hearing, the prosecuting authority and the defendant may offer evidence and cross-examine witnesses. . . .”

Section 943 does not explicitly afford the defendant the right personally to address the court. Moreover, while specifically referring to Practice Book §§ 634 and 685, which deal with arraignment and release decision-making procedures, § 943 does not specifically require the procedures of § 919 to be followed. The defendant contends, nevertheless, that because the trial court “imposes” sentence in a probation revocation hearing, the defendant is entitled to the procedures outlined in § 919.

It is well established that “a probation revocation hearing has two distinct components. [State v. Davis, 29 Conn. App. 801, 805, 618 A.2d 557 (1993).] The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. . . . State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) . . . .” (Internal quotation marks omitted.) State v. Davis, supra, 229 Conn. 289-90.

The defendant argues: the second component of a probation revocation hearing is a sentencing procedure. Section 943 further provides: “If the defendant admits the violation or the judicial authority finds from the evidence that the defendant committed the violation, the judicial authority may make any disposition authorized by law. ...” Section 53a-32 (b) provides: “If [a] violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence.

We have stated that: “A probation revocation hearing is not a stage of a criminal prosecution . . . .” (Citations omitted.) State v. Carey, 30 Conn. App. 346, 350, 620 A.2d 201 (1993), rev’d on other grounds, 228 Conn. 487, 636 A.2d 840 (1994), citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Section 919, governing the procedures for the sentencing of a defendant, clearly concerns a stage of the criminal prosecution and, therefore, does not apply to a probation revocation hearing.

Moreover, § 943 provides that a defendant may offer evidence and cross-examine witnesses at a probation revocation hearing. These rights are among those provided for in a sentencing hearing. See Practice Book § 919 (1). To hold that the procedures of § 919 must be followed in a probation revocation hearing would render the procedures outlined in § 943 superfluous. We will not read our rules of practice in such a way as to render their words superfluous. State v. Smith, supra, 207 Conn. 168.

The defendant contends further that, even if our rules of practice do not mandate the defendant’s right personally to address the court, the defendant must be afforded that right in order to meet the requirements of due process. We recognize that “[t]he loss of liberty resulting from the revocation of probation is a serious deprivation requiring that the probationer be accorded due process of law . . . .” (Citations omitted; internal quotation marks omitted.) State v. DeMasi, 34 Conn. App. 46, 51, 640 A.2d 138, cert. denied, 230 Conn. 906, 644 A.2d 920 (1994). In Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), the United States Supreme Court held that the minimum requirements of due process include “(a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body . . . and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation].” See also Gagnon v. Scarpelli, supra, 411 U.S. 781-82 (holding that probationer is entitled to preliminary and final revocation hearings).

We have stated, however, that “[a] strict interpretation of the Morrissey standards runs contrary to the spirit of flexibility with which the Supreme Court promulgated the Morrissey and Gagnon due process requirements. . . . [D]ue process is flexible and calls for those procedural protections that the particular situation demands. ... A revocation proceeding does not require all of the procedural components associated with an adversarial criminal proceeding.” State v. Baxter, 19 Conn. App. 304, 312, 563 A.2d 721 (1989) (holding that there are instances in which preliminary hearing of Gagnon is superfluous).

In United States v. Barnes, 948 F.2d 325 (7th Cir. 1991), the Seventh Circuit Court of Appeals addressed the precise issue now before us. The court distinguished the situation in which a sentence had been imposed but its execution suspended from the situation in which a defendant had been convicted but the imposition of sentence postponed. Id., 329. On the one hand, the court held that a defendant’s right personally to address the court is not implicated at a hearing to revoke probation and to reinstate a previously imposed sentence. Id., citing United States v. Coffey, 871 F.2d 39 (6th Cir. 1989). On the other hand, if the sentencing decision had been postponed, then the right to address the court was also postponed. United States v. Barnes, supra, 329.

We find Barnes persuasive. In Jackson v. Bailey, 221 Conn. 498, 513-14, 605 A.2d 1350, cert. denied, 506 U.S. 895, 113 S. Ct. 216, 121 L. Ed. 2d 155 (1992), our Supreme Court noted that “where summary judgment for contempt is imposed during trial, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution. . . . However, [t]he United States Supreme Court . . . has often recognized that the requirements of due process cannot be ascertained through mechanistic application of a formula. Groppie v. Leslie, [404 U.S. 496, 500, 92 S. Ct. 582, 30 L. Ed. 2d 632 (1972)]. The essence of due process is fundamental fairness. . . . Due process is an element that, when absent, produces the reaction given to that which is shocking to the universal sense of justice. United States v. Russell, 411 U.S. 423, 432, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973).” (Citations omitted; internal quotation marks omitted.) The court held in Jackson that the defendant was not denied due process when he was not given the opportunity personally to address the court with regard to each of three findings of summary contempt despite such a requirement in Practice Book § 988. Jackson v. Bailey, supra, 515.

The trial court’s refusal to allow the defendant to speak prior to the revocation of his parole and the lifting of the suspension of his original sentence does not shock our sense of justice. The defendant had the right to speak when he was sentenced in 1988. See Practice Book § 919 (3). “ ‘Revocation [of probation] is a continuing consequence of the original conviction from which probation was granted.’ ” State v. Deptula, 34 Conn. App. 1, 7, 639 A.2d 1049 (1994), quoting State v. Smith, supra, 207 Conn. 178. Moreover, the record reveals that the defendant testified at length and that his counsel was given the opportunity to speak with regard to the revocation and lifting of the suspended sentence. “ ‘[0]ur precedents have sought to preserve the flexible informal nature of the revocation hearing, which does not require the full panoply of procedural safeguards associated with a criminal trial.’ ” State v. Baxter, supra, 19 Conn. App. 314, quoting Black v. Romano, 471 U.S. 606, 613, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985). We decline to burden the revocation of probation proceedings in this state by holding that the defendant had a right personally to address the court in this case as he requested.

We conclude that neither our rules of practice nor due process requires that the defendant be given the opportunity personally to address the court in a probation revocation hearing.

IV

The defendant next claims that the trial court deprived him of his right to counsel by preventing his attorney from addressing the court with regard to the determination of whether the defendant’s probationary status should be revoked. The defendant seeks review of this claim under State v. Golding, supra, 213 Conn. 239-40. We decline to review this claim.

The record reveals that after the court found that the defendant had violated his probation, the following colloquy took place.

“[Defense Counsel]: Because of the substantial exposure here, Your Honor, and because of the nature of this incident, I would like to take a deep breath and suggest to the court that a presentence report or some update of [the defendant’s] status ought to be in order by the probation department. And I would ask Your Honor to consider that request.

“The Court: No. Have you got anything else to say?

“[Defense Counsel]: A lot.

“The Court: The beneficial purposes of his probation to wit, his rehabilitation and the protection of society are no longer being served by this man being on probation

From this record, we cannot conclude that the trial court precluded counsel from addressing whether the defendant’s probation ¡should be revoked. There is no indication that the court prevented counsel from saying more than he did on the defendant’s behalf. Counsel neither tried to offer more than his statement that he had a lot to say nor objected when the court went ahead and revoked the defendant’s probation. We will not review a claim of prejudice based on conjecture and speculation. State v. Dillon, 34 Conn. App. 96, 102, 640 A.2d 630 (1994), rev’d on other grounds, 232 Conn. 537, 656 A.2d 657 (1995).

V

The defendant claims finally that the trial court improperly refused to order an updated presentence investigation report (PSI) before revoking the defendant’s probation. The defendant argues that a PSI was required under General Statutes § 54-9 la (a) and Practice Book § 910 (a) and, in the alternative, the trial court abused its discretion in refusing to order a PSI. We disagree.

As we stated earlier, “[a] probation revocation hearing is not a stage of a criminal prosecution . . . but is a discrete statutory procedure to which many of the substantive and procedural rules of criminal law do not apply.” (Citations omitted.) State v. Carey, supra, 30 Conn. App. 350. The defendant’s reliance on the sentencing procedures of § 54-91a (a) and § 910 (a), therefore, is misplaced. A trial court revokes probation pursuant to General Statutes § 53a-32 (b), which provides: “If [a] violation is established, the court may continue or revoke the sentence of probation or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.'” (Emphasis added.) See also Practice Book § 943. Because neither § 53a-32 (b) nor § 943 mandates that a PSI be provided prior to the revocation of probation or authorizes a trial court to exercise its discretion in ordering a PSI, we conclude that the court properly refused to order a PSI in this case.

The judgment is affirmed.

In this opinion FOTI, J., concurred.

LANDAU, J.,

dissenting. I disagree with the majority’s reliance on United States v. Barnes, 948 F.2d 325 (7th Cir. 1991), in determining, in part III, that a defendant has no right of allocution in a probation revocation hearing.

The right of allocution affords a criminal defendant the opportunity to address the court on his own behalf prior to sentencing. See United States v. Behrens, 375 U.S. 162, 165, 84 S. Ct. 295, 11 L. Ed. 2d 224 (1963). “It is designed to temper punishment with mercy in appropriate cases, and to ensure that sentencing reflects individualized circumstances.” United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994). “As early as 1689, it was recognized that the court’s failure to ask the defendant if he had anything to say before sentence was imposed required reversal.” Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961), citing Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 (KB. 1689).

The broad language in State v. Carr, 172 Conn. 458, 474, 374 A.2d 1107 (1977), that the right of allocution in some jurisdictions is a “technical formality” and is of “little importance in modem criminal procedure” is misleading. In fact, the right of allocution “remains deeply embedded in our criminal jurisprudence.” United States v. De Alba Pagan, supra, 33 F.3d 129; see Practice Book § 919 (3); F .R. Crim. P. 32 (a) (1) (c); Boardman v. Estelle, 957 F.2d 1523, 1529-30, cert. denied, 506 U.S. 904, 113 S. Ct. 297, 121 L. Ed. 2d 221 (1992) (holding that allocution is right guaranteed by due process clause of constitution). In Green v. United States, supra, 365 U.S. 304, for example, the Supreme Court stated that “[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

The majority is correct that Practice Book § 943 does not expressly provide a defendant the right of allocution at a probation revocation hearing. The majority also relies on United States v. Barnes, supra, 948 F.2d 325. Barnes was convicted of conspiracy to possess with intent to distribute cocaine and distribution of cocaine. The District Court sentenced Barnes to three years imprisonment, to be followed by a five year term of special parole for distributing cocaine, but suspended imposition of sentencing for his conspiracy conviction, and placed Barnes on a five year period of probation. After Barnes violated the terms of his release, the District Court conducted a probation revocation hearing at which the court sentenced Barnes to five years imprisonment on the conspiracy count. The Seventh Circuit Court of Appeals vacated the sentence and remanded for resentencing because the District Court denied Barnes his right of allocution.

The Court of Appeals distinguished cases in which sentence has been imposed, but its execution suspended, from cases where the defendant is convicted but imposition of the sentence is postponed. The important distinction is that in the latter cases the scope of punishment is not preordained.

I write separately to highlight a different approach adopted by the First Circuit Court of Appeals, and offer the First Circuit’s approach for consideration in lieu of that of Barnes. In United States v. Buckley, 847 F.2d 991 (1st Cir. 1988), cert. denied, 488 U.S. 1015, 109 S. Ct. 808, 102 L. Ed. 2d 798 (1989), the defendant, Buckley, pleaded guilty to one of two drug charges against him. The court accepted Buckley’s plea and continued the case so that a presentence investigation report could be prepared. At the initial sentencing hearing, after giving Buckley an opportunity to address the court, the court imposed a provisional five year sentence and committed him for observation pursuant to 18 U.S.C. § 4205 (c) and (d). At the hearing on the final imposition of sentence, the court denied Buckley an opportunity to address the court. The court reasoned that Buckley had his right of allocution at the provisional sentencing hearing, and, thus, no such right existed at the final sentencing hearing.

The First Circuit Court of Appeals acknowledged that the District Court had denied Buckley his right of allocution. The Court of Appeals reasoned that the right of allocution arises when a defendant is,finally sentenced. Thus, the denial of Buckley’s right of allocution at the final sentencing could not be cured by what transpired at the prior provisional sentencing. The Court of Appeals remanded for resentencing in accordance with rule 32 (a) (1) (c) of the Federal Rules of Criminal Procedure, stating that “[t]he rule mandates precisely what it appears to mandate: a personal inquiry directed to the defendant himself.” United States v. Buckley, supra, 847 F.2d 1002, citing United States v. Dickson, 712 F.2d 952, 956 (5th Cir. 1983).

Ultimately, both cases turn on the fact that the scope of punishment is not preordained at the time allocution is requested. See United States v. Barnes, supra, 948 F.2d 329; United States v. Buckley, supra, 847 F.2d 1002. In Connecticut, General Statutes § 53a-32 (b) provides in pertinent part: “If [a] violation [of probation or conditional discharge] is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. . . .” Section 53a-32 (b) bestows on the trial court broad discretion in deciding whether to revoke probation. See State v. March, 39 Conn. App. 267, 278, 664 A.2d 1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995). As a result, the sentence imposed following a violation of probation or conditional discharge is not preordained.

Although Buckley is a federal provisional sentencing case, I would adopt the First Circuit’s analysis. Even though the defendant was afforded his right of allocution when he was provisionally sentenced, that right should be extended at his final sentencing. The burden on the trial court, in allowing a defendant a right of allocution at a probation revocation hearing, is outweighed by concerns of fundamental fairness.

       General Statutes § 29-35 (a) provides in pertinent part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes § 29-36 provides in pertinent part: “No person shall alter, remove or obliterate the name of any maker or model or any maker’s number or other mark of identification on any pistol or revolver. ...”

       General Statutes § 53a-217 (a) provides in pertinent part: “A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of a capital felony, a class A felony, except a conviction under section 53a-196a, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196b, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. . . .”

       Pursuant to General Statutes § 53a-30 (b) “the Office of Adult Probation may require that the defendant comply with any or all conditions which the court may have imposed under subsection (a) which are not inconsistent with any condition actually imposed by the court.”

       See State v. Baxter, 19 Conn. App. 304, 311, 563 A.2d 721 (1989).

       The court posed a series of questions to the defendant, to which defense counsel did not object, pertaining to his employment and his cousin who had left a gun in his car then concluded with the following question: “Do you think I am believing you?” When the defendant responded that he did not know, the court stated: “Well let me assure you, sir, I don’t want you to go out of this courtroom thinking I’m a fool. . . . Ninety-five percent of what you’ve said here today I don’t believe, not for one instant.” Finally, following defense counsel’s closing argument, the court stated: “I appreciate, [counsel], you have to stand up here and say something on behalf of your client, and you did. I compliment you for that. You thought of something to say, because I wondered what you were going to say.”

       The following colloquy took place:
      “The Court: The beneficial purposes of this probation to wit, his rehabilitation and the protection of society are no longer being served by this man being on probation. The sentence of probation is revoked and the defendant is ordered to serve as much of the original sentence as has not yet been served. Recess.
      “The Defendant: Excuse, Your Honor, may I say something. Can I say something to you, sir?
      “The Court: You can tell it to the people in the institution where you are being taken, sir.
      “The Defendant: Can I—May I just say something to you sir?
      “The Court: The court is in recess.”

       The rules of practice are designed to regulate pleading, practice and procedure; see General Statutes § 51-14 (a); and are to be construed in accordance with our rules of statutory construction. State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981). In State v. Baxter, 19 Conn. App. 304, 563 A.2d 721 (1989), we examined whether a defendant was entitled to both a preliminary hearing and a subsequent formal hearing to determine whether probation should be revoked. Our analysis focused on Practice Book § 943 and General Statutes § 53a-32 (a), and made no mention of the applicability of Practice Book § 919. Id., 310.

       The defendant’s brief states that because § 919 controls, “it is not necessary for this court to decide whether any form of the . . . right is guaranteed by either the federal or state constitution.” Because the defendant goes on to discuss the federal due process right to address the court, however, we will address the claim under federal law. We will not, though address the defendant’s claim under the Connecticut constitution because it has not been adequately briefed. See, e.g., State v. Egan, 37 Conn. App. 213, 218 n.4, 655 A.2d 802, cert. denied, 234 Conn. 905, 659 A.2d 1206 (1995).

       In State v. Carr, 172 Conn. 458, 473, 374 A.2d 1107 (1977), our Supreme Court commented on the common law right to address personally the court as it existed prior to the adoption of § 919 (3). “At common law, the defendant in a felony case had a right called 'allocution’ to be asked formally whether he had any reason to offer why judgment should not be awarded against him. ... In many American jurisdictions, the practice of allocution has been codified in statutes or court rules, but except where this has been done it is apparent that the tendency is to regard the practice as a technical formality of little importance in modern criminal procedure, where other procedural devices afford the accused ample opportunity to protect himself at all stages of the proceeding.” (Citations omitted; internal quotation marks omitted.) Id., 473-74. “ ‘In this state as to all crimes below that of murder the common law rule [of allocution] has never been observed in practice.’ . . .” Id., 475, quoting State v. Hoyt, 47 Conn. 518, 545 (1880); see also 1 Connecticut Practice, W. Moller & W. Horton, Practice Book Annotated (3d Ed. 1989) § 919, comments.

       General Statutes § 53a-32 (a) provides in pertinent part: “At such hearing the defendant . . . shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender . . . .”

       Defense counsel specifically made this request and it was denied. See part IV.

       General Statutes § 54-91a (a) provides: “No defendant convicted of a crime, other than a capital felony, the punishment for which may include imprisonment for more than one year, may be sentenced, or his case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court, if (1) the defendant is so convicted for the first time in this state or (2) his record, as shown by the prosecuting official, discloses a conviction obtained prior to five years from the finding of guilty in the present prosecution; but any court may, in its discretion, order a presentence investigation for a defendant convicted of any crime or offense other than a capital felony.”

       Practice Book § 910 (a) provides in pertinent part: “If the defendant is convicted of a crime other than a capital felony, the punishment for which may include imprisonment for more than one year, the judicial authority shall order a presentence investigation, or the supplementation of any existing presentence investigation report. The judicial authority may, in his or her discretion, order a presentence investigation for a defendant convicted of any crime or offense. . . .”

       See part III.

       We note that our Supreme Court recently decided that a “defendant’s right to due process at sentencing does not include the right to a PSI.” State v. Patterson, 236 Conn. 561, 572, 674 A.2d 416 (1996).

       Practice Book § 919 provides in pertinent part: “(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence.”

       Rule 32 (a) (1) of the Federal Rules of Criminal Procedure provides in pertinent part that “[b]efore imposing sentence, the court shall also . . . address the defendant personally and [determine if the defendant] wishes to malte a statement . . . and to present any information in mitigation [of the sentence].”


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. RICHARD COOKE
    (14893)
    Dupont, C. J., and Landau and Herman, Js.

      Argued June 11
    officially released September 3, 1996

      Stanley A. Twardy, Jr., filed a brief for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were Donald A. Browne, state’s attorney, and, on the brief, Cornelius P. Kelly, assistant state’s attorney, for the appellee(state).

       Defense counsel did not appear at the scheduled argument date.

   LANDAU, J.

The defendant, Richard Cooke, appeals from the judgment of conviction, rendered after a jury trial, of two counts of forgery in the second degree in violation of General Statutes § 53a-139 (a) (l) and one count of forgery in the third degree in violation of General Statutes § 53a-140 (a). On appeal, the defendant claims that the trial court improperly (1) restricted his constitutional right of confrontation, (2) excluded evidence offered to impeach a state’s witness, (3) admitted hearsay testimony and (4) violated his rights guaranteed by the double jeopardy clause. We affirm the judgment of the trial court in part and reverse it in part.

The jury could reasonably have found the following facts. In May, 1990, the defendant attended a real estate closing at the law firm of Duel and Holland in Stamford. The purpose of the closing was to consolidate two loans in the amount of $115,000 with Chase Bank and to secure the loans with a mortgage on the defendant’s residence in Fairfield. The defendant owned this property jointly with his wife Mary Alice Cooke (Cooke). The mortgage deed required the defendant’s and Cooke’s signatures, which had to be witnessed and notarized.

The defendant attended the closing alone. At the closing, the defendant claimed that Cooke was ill and, thus, could not attend the closing to sign the mortgage deed. The defendant requested bank approval to take the mortgage deed to Cooke to sign and then return to the closing. The bank agreed.

The defendant returned to his office in Southport. In the presence of a business associate, Nyles Wheeler, his secretary, Candace Cece, who acted as a notary public, and an unidentified second witness, the defendant signed the mortgage deed on behalf of Cooke. Wheeler and the unidentified party signed the mortgage deed as witnesses and Cece signed and notarized the mortgage deed. Later that same day, the defendant returned to Arthur Duel’s office with a signed, witnessed, and notarized mortgage deed. Duel, believing that the mortgage deed was properly executed, accepted the document. At trial, the defendant stipulated that he signed the deed, but insisted that he did so on Cooke’s authorization.

In February, 1992, the defendant’s marriage to Cooke was dissolved. In November, 1993, Cooke brought a complaint to the Fairfield police department concerning the May, 1990 mortgage deed signed by the defendant. Cooke told the police that she did not sign the mortgage deed and did not authorize the defendant to sign on her behalf. As a result of the subsequent investigation, the state charged the defendant with two counts of forgery in the second degree and one count of forgery in the third degree. At trial, the jury returned a guilty verdict on all counts. This appeal follows.

I

In his first claim, the defendant argues that the trial court improperly restricted the scope of his cross-examination of Fairfield police detective Josh Zabin and Cooke in violation of his sixth amendment right to confrontation. The defendant argues that he was precluded from fully exploring these witnesses’ motivation for testifying and their bias against the defendant.

Zabin investigated Cooke’s complaint filed in November, 1993, regarding the May, 1990 mortgage deed. Prior to filing this complaint, Cooke had been arrested by the Fairfield police. As a result of that arrest, Cooke filed a lawsuit in federal court against several members of the Fairfield police department. The defendant sought to explore on cross-examination whether Cooke’s pending lawsuit had any effect on the manner in which the police conducted the forgery investigation.

The federal constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const., amend. VI. A primary interest secured by the sixth amendment’s confrontation clause is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Cross-examination eliciting facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, 195 Conn. 475, 482, 488 A.2d 1239 (1985).

A defendant’s right to cross-examine witnesses, however, is not absolute and is subject to reasonable limitation. State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985); State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). “The extent of cross-examination beyond that necessitated by the constitution rests within the discretion of the trial court.” State v. Lewis, 220 Conn. 602, 622, 600 A.2d 1330 (1991). To establish an abuse of discretion, the defendant must show that the restrictions imposed on him were clearly prejudicial. State v. Lewis, 25 Conn. App. 354, 360, 594 A.2d 489, cert. denied, 220 Conn. 914, 597 A.2d 336 (1991).

“In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. ...” (Citation omitted; internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992).

Applying the foregoing principles to the present case, we conclude that the trial court did not unduly restrict the defendant’s cross-examination of Zabin or Cooke. We review the scope of cross-examination of each witness permitted by the trial court in turn.

On cross-examination, Zabin testified that, at the time he investigated Cooke’s complaint in March, 1992, he had no knowledge of her prior arrest or of her filing of a lawsuit in federal court against individual members of the Fairfield police department as a result of that arrest. Zabin testified that he became aware of the federal complaint “approximately two or three months” before trial.

The defendant’s claim that the police were motivated to pursue the criminal complaint against the defendant to appease Cooke is unsupported. Cooke filed the forgery complaint with the Fairfield police department in November, 1993. The complaint was investigated by Zabin. Zabin was not aware of Cooke’s arrest or subsequent lawsuit in November, 1993. Further, Zabin learned of the arrest and lawsuit only “two or three months” before trial. Because Zabin was unaware of Cooke’s arrest and subsequent complaint, he could not have been biased or motivated by some ulterior motive in pursuing the forgery complaint against the defendant. Further, the trial court carefully considered the relevancy of the testimony by permitting the defendant to make two offers of proof.

The defendant also conducted an extensive cross-examination of Zabin. On cross-examination the defendant explored Zabin’s investigation of the forgery case. The inquiry focused on Zabin’s interview with Cece, multiple interviews with the defendant, and Zabin’s decision not to interview Wheeler and the unidentified second witness who were both present when the defendant signed the May, 1990 mortgage deed. In reviewing the excluded area of inquiry and the cross-examination in its entirety, we conclude the trial court did not abuse its discretion by limiting the scope of Zabin’s cross-examination.

The defendant also claims that the trial court unduly restricted his cross-examination of Cooke. The defendant argues that he was precluded from fully exploring on cross-examination Cooke’s bias and motivation for pursuing this action against the defendant. This claim is equally without merit.

On cross-examination, the defendant explored the circumstances surrounding the dissolution of his marriage to Cooke and her subsequent motion for modification of the dissolution agreement. The defendant inquired as to Cooke’s arrest in March, 1992, and the basis for filing a lawsuit in federal court as a result of that arrest. The defendant also explored facts surrounding the pending criminal harassment charges filed against Cooke by the defendant.

The defendant was permitted to elicit extensive testimony from Cooke to show her possible bias and motive for testifying against the defendant. The jury heard sufficient testimony to weigh the credibility of Cooke. The trial court, therefore, did not unduly restrict the defendant’s cross-examination of Cooke.

II

The defendant claims next that the trial court abused its discretion when it excluded a check offered in evidence to impeach Cooke. The defendant contends that the check was admissible because Cooke established its authenticity by admitting that she signed it.

On direct examination, Cooke testified: “I have never given anyone permission to sign my name to anything ever.” The defendant attempted to introduce a check issued by Allstate Insurance Company payable to “Mr. and Mrs. Cooke.” The defendant offered the check to impeach the credibility of Cooke and to show that the defendant lacked the requisite “intent to deceive” required under our forgery statutes when he signed the May, 1990 mortgage deed. See General Statutes §§ 53a-139 and 53a-140. There were three signatures on the back of the check. Paul Fowler, a senior vice president of operations with Allstate, signed the check. Cooke admitted that she signed her name to the check, but stated that the third signature was “illegible.” The defendant claims that while they were married they signed each other’s names to various documents.

“In determining the admissibility of evidence, ‘[t]he trial court has broad discretion to determine both the relevancy and remoteness of evidence.’ ” State v. Coleman, 35 Conn. App. 279, 285, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994), quoting Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.’’(Internal quotations marks omitted.) State v. Ulen, 31 Conn. App. 20, 28, 623 A.2d 70, cert denied, 226 Conn. 905, 625 A.2d 1378 (1993), quoting State v. Boucino, 199 Conn. 207, 228, 506 A.2d 125 (1986).

“In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ” (Internal quotation marks omitted.) State v. Coleman, supra, 35 Conn. App. 285.

The defendant argues that if the trial court admitted the check into evidence the jury could have compared the signatures on the Allstate check with other writing exemplars admitted into evidence and concluded that Cooke signed the defendant’s name to the check. Conversely, the state contends that the check was not relevant and, thus, not admissible. The state relies on the fact that Cooke testified that the third signature was “illegible” and that the trial court stated it was “difficult to read.”

The defendant offered the check as proof that he and Cooke signed each other’s names to various documents. Cooke, however, denied that she signed the defendant’s name to the check. As a result, the check lacked any probative value. The admission of the check would not have established any fact in issue or corroborated other direct evidence in the case. Thus, the check was not relevant to what the defendant sought to prove. The defendant’s contention that the check was admissible because Cooke established its authenticity is irrelevant even assuming that such was the case. Because the trial court ruled that the check was not relevant, the authenticity of the check was never at issue. We conclude, on the basis of our review of the record, that the trial court did not abuse its discretion by excluding the Allstate check.

Ill

The defendant next claims that the trial court improperly admitted Cooke’s hearsay testimony regarding her liability on the Chase mortgage note.

On redirect examination, Cooke testified that she had been in contact with Chase Bank. 6Chase Bank informed Cooke that she was still liable, in part, on the note. The defendant argues that Cooke’s testimony was inadmissible hearsay. The state argues that the testimony was not hearsay, but rather a statement to show Cooke’s subjective state of mind and to show the effect that it had on her.

“It is an elementary premise of evidentiary law that a statement made out-of-court that is offered to establish the truth of the facts contained in the statement is hearsay. ... A statement that is offered to show its effect upon the hearer, however, is not hearsay.” (Citations omitted; internal quotation marks omitted.) State v. Robinson, 213 Conn. 243, 258-59, 567 A.2d 1173 (1989). As an evidentiary claim, the defendant has the burden of showing that the trial court abused its discretion and must also demonstrate the harmful effect of the court’s ruling. States v. Rivera, 220 Conn. 408, 411-12, 599 A.2d 1060 (1991).

The testimony was not offered to establish its truth— whether Cooke was liable on the note—but, rather, to show its effect on Cooke in deciding to file the forgery complaint against the defendant. Statements that are not used to prove the truth of the matter asserted are not hearsay. State v. Cruz, 212 Conn. 351, 356, 562 A.2d 1071 (1989). We conclude that the testimony was not hearsay and was properly admitted by the trial court. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.1.3.

TV

The defendant’s final claim of double jeopardy sounds in two parts. First, the defendant argues that his conviction on count one, forgery in the second degree, and on count two, forgery in the second degree, violates the federal prohibition against double jeopardy. Second, the defendant argues that his conviction on count two, forgery in the second degree, and on count three, forgery in the third degree, violates the federal prohibition against double jeopardy. We agree in part and disagree in part.

Although this claim is unpreserved, the defendant argues and the state concedes, that review is warranted pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and States. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We agree that the defendant’s double jeopardy claim is reviewable. See State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985) (stating that claim of double jeopardy involves fundamental constitutional right).

The double jeopardy clause of the fifth amendment to the federal constitution provides in part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

In Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the United States Supreme Court set forth the test to determine whether two offenses are the same offense for double jeopardy purposes: “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” There is no dispute that these convictions arose from the same act or transaction.

To resolve the defendant’s two double jeopardy claims we must determine whether “each provision requires proof of a fact which the other does not.” Id. The defendant first argues that his two convictions of forgery in the second degree violate the double jeopardy clause. We disagree.

The defendant was charged in count one of the information with violating § 53a-139 (a) (l), which provides in pertinent part that “a person is guilty of forgery in the second degree when, with intent to . . . deceive . . . another, he falsely . . . completes ... a written instrument . . . .” In count two of the information, the defendant also was charged with violating § 53a-139 (a) (1), which provides further that “[a] person is guilty of forgery in the second degree when, with intent to . . . deceive . . . another, he . . . possesses any written instrument which he knows to be forged . . . [and] represents] [it to be a] . . . contract . . . .” Because one count alleged false completion of a written instrument and the second alleged representation that a forged instrument was a properly executed contract, each count requires proof of a fact that the other does not require. The two crimes of which the defendant was convicted were different offenses and, thus, not in violation of the double jeopardy clause.

The defendant next argues that his conviction on count two, forgery in the second degree, and on count three, forgery in the third degree, violates the double jeopardy clause. The state concedes that because the elements of forgery in the third degree must be proven before the defendant can be convicted of forgery in the second degree, it is a lesser included crime of forgery in the second degree. See State v. Williams, 12 Conn. App. 225, 231-32, 530 A.2d 627 (1987). Pursuant to State v. Chicano, supra, 216 Conn. 699, the state requested that this court merge the defendant’s conviction for forgery in the third degree into his conviction for forgery in the second degree as charged in count two of the information. Because there is nothing on the face of these two criminal statutes indicating that the legislature intended to authorize multiple punishments for these two crimes without violating the double jeopardy clause; see Ohio v. Johnson, 467 U.S. 493, 499 n.8, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984); Missouri v. Hunter, 459 U.S. 359, 367-68, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); we direct the trial court to merge count three into count two.

The judgment is reversed in part and the case remanded with direction to combine the defendant’s forgery in the third degree conviction with the forgery in the second degree conviction on count two of the information and to vacate the sentence (unconditional discharge) for his forgery in the third degree conviction. The judgment of the trial court is otherwise affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-139 (a) provides in pertinent part: “A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed: (1) A deed, will, codicil, contract, assignment, commercial instrument or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status

       General Statutes § 53a-140 (a) provides: “A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, or issues or possesses any written instrument which he knows to be forged.”

         On appeal the defendant argues, in addition to a hearsay claim, that the testimony was inappropriate redirect examination because the subject was not raised on cross-examination. Finally, the defendant argues that even if the testimony was admissible it was irrelevant, confusing, and prejudicial. “Appellate review of evidentiary rulings is limited to the specific legal ground raised by the objection of counsel at trial.” State v. Goodrum, 39 Conn. App. 526, 543, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995); State v. Harrison, 34 Conn. App. 473, 482, 488, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994); see also Practice Book §§ 288 and 4185. Thus, we limit our review to the hearsay claim that was the basis for the objection at trial.

       The following colloquy took place at trial:
      “[Prosecutor]: Mrs. Cooke, you indicated in response to one of [defense counsel’s] questions that you had contact with Chase Manhattan Bank with respect to this note.
      “[Defense Counsel]: Objection. I never asked any such question.
      “[Prosecutor]: She gave a response to that question. I think it should be clarified for the jury.
      “The Court: Overrule the objection. There were questions as to her knowledge as to when she first became aware of this transaction. I would allow the question.
      “[Prosecutor]: Have you been in touch with Chase Manhattan Bank concerning your liability on this particular note?
      “[Cooke]: Yes.
      “[Prosecutor]: Are you still hable in some—
      “[Defense Counsel]: Objection. It calls for hearsay. It calls for a conclusion.
      “The Court: Overrule the objection.
      “[Cooke]: Yes.”

       In his brief, the defendant argued that the trial court compounded the error of admitting the hearsay testimony when it incorporated the hearsay testimony into its jury charge. Since we conclude that Cooke’s testimony was not hearsay, the trial court did not err by including that testimony in its jury charge.

       Under State v. Golding, supra, 213 Conn. 239-40, the defendant can prevail on an unpreserved claim of constitutional error “only if all of the following 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.”

       See footnote 2.

       In his brief, the defendant argued that count three, forgery in the third degree, was brought after the statute of limitations had run and was, therefore, time barred. See General Statutes § 54-193 (b). Because we conclude that count three is a lesser included offense of count two and, therefore, merges into count two, we decline to review the defendant’s claim because it is moot. State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988).


text:
    GERTRUDE O. KEEGAN v. AETNA LIFE AND CASUALTY INSURANCE COMPANY
    (14754)
    Foti, Landau and Heiman, Js.
    Argued April 1
    officially released September 3, 1996

      Robert F. Carter, for the appellant (plaintiff).

      Richard S. Bartlett, with whom, on the brief, was Timothy E. Welsh, for the appellee (defendant).
   LANDAU, J.

The plaintiff appeals from the decision of the workers’ compensation review board affirming the commissioner’s dismissal of the plaintiffs claim for lack of subject matter jurisdiction. The plaintiff claims that the review board improperly dismissed her appeal because (1) she has an occupational disease that was proximately caused by her employment and, therefore, the three year statute of limitation of General Statutes § 31-294c (a) applies, and (2) she was denied her constitutional rights to equal protection and due process. The defendant asserts that the plaintiff failed to file notice of her claim within one year from the date of her injury as she is required to do by § 31-294c (a), and that her claim for compensation is time barred.

The facts are not in dispute. On May 8, 1988, during the course of her employment, the plaintiff attended a workers’ compensation seminar in Syracuse, New York. While retrieving her luggage at the Syracuse airport, the plaintiff was struck on her left hip by a suitcase carried by another individual. The blow threw the plaintiff off balance and caused her immediate pain. At her hotel, the plaintiff continued to feel pain and she noticed that her hip was turning black and blue. Although the hematoma and pain subsided after one week, the area of the injury was numb and continued to be numb on November 17, 1992, the date of trial. The plaintiff did not file a workers’ compensation claim immediately following the incident because she did not feel that the injury would result in a serious condition.

In September, 1990, the plaintiff sought medical treatment for recurring back pain, which she attributed to a preexisting back condition. In the course of her treatment, however, the plaintiff was diagnosed as having synovial chondromatosis in her left hip joint. In March, 1991, the plaintiffs physician informed her that her preexisting hip disease was exacerbated by the injury to her hip in May, 1988. On March 29, 1991, the plaintiff filed a written notice of her claim for workers’ compensation benefits with her employer, which was denied.

The commissioner concluded that the plaintiffs hip disease was not an occupational disease within the meaning of General Statutes § 31-275 (15), and, therefore, the workers’ compensation commissioner lacked jurisdiction over the matter because the plaintiff failed to file notice of her claim within one year from the date of her May, 1988 injury as required by § 31-294c (a) of the Workers’ Compensation Act (act). The review board affirmed the commissioner’s decision, and this appeal follows. Our first consideration is whether this conclusion was appropriate.

I

It is axiomatic that a tribunal must have jurisdiction over the subject matter it hears and that subject matter jurisdiction is the power of the tribunal to hear and determine cases to which the proceedings in question belong. Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). “ ‘Administrative agencies [such as the workers’ compensation commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon . . . statutes’ . . . .’’Id. “Accordingly, a notice of a claim or the satisfaction of one of the statutory exceptions is a prerequisite that conditions whether the [workers’ compensation] commission has subject matter jurisdiction under the act.” Id., 6. Time limitations governing notice must be strictly complied with. Simmons v. Holcomb, 98 Conn. 770, 775, 120 A. 510 (1923).

Having set out these basic principles, we now consider the distinction between an “accident” and an “occupational disease” under the act. “ ‘Personal injury’ or ‘injury’ includes, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury . . . which is causally connected with . . . employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.” General Statutes § 31-275 (16) (A).

“In interpreting the phrase ‘occupational disease,’ we have stated that the requirement that the disease be peculiar to the occupation and in excess of the ordinary hazards of employment, refers to those diseases in which there is a causal connection between the duties of the employment and the disease contracted by the employee. In other words, [the disease] need not be unique to the occupation of the employee or to the work place; it need merely be so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted. . . . Thus, an occupational disease does not include a disease which results from the peculiar conditions surrounding the employment of the claimant in a kind of work which would not from its nature be more likely to cause it than would other kinds of employment carried on under the same conditions.” (Citation omitted; internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 352-53, 630 A.2d 1027 (1993).

Application of these principles to the facts of this case reveals that the plaintiffs underlying hip disorder is not an occupational disease within the meaning of § 31-275 (15). The disease is not distinctively associated with her duties as an employee of the defendant such that there is a direct causal connection between her employment duties and her injury.

Consequently, the commissioner and the review board properly concluded that the plaintiffs injury did not constitute an occupational disease and, thus, appropriately applied the one year time limitation of § 31-294c (a). Because the plaintiff did not provide written notice of her injury to the defendant until nearly three years after it had occurred, the commissioner lacked subject matter jurisdiction and properly dismissed her claim.

II

Our inquiry does not end here, however, because the plaintiff has also raised constitutional claims that the review board was not empowered to decide. See Tufaro v. Pepperidge Farm, Inc., 24 Conn. App. 234, 236, 587 A.2d 1044 (1991). Specifically, the plaintiff asserts that the application of the one year provision of § 31-294c (a) to her claim violates her rights to equal protection and due process under the United States and Connecticut constitutions. We disagree.

A

The plaintiff first argues that § 31-294c (a) creates two classes of similarly situated employees that receive disparate treatment: employees with occupational diseases, who have three years to file notice of their claim, and employees with preexisting diseases aggravated by traumatic work related injury, who have one year to file notice of their claim. Because this claim does not implicate the fundamental right of access to our courts, we employ the rational basis test in reviewing it. See Zaporta v. Burns, 207 Conn. 496, 504, 542 A.2d 700 (1988).

“The rational basis test requires us to decide first whether there are natural and substantial differences between the classes preferred by the legislation and all others, and then whether the differences identified are logically related to the subject and object of the legislation.” Id., 509-10. Here, we conclude that there is a rational basis for the statutory scheme created by the legislature. An employee who develops an occupational disease is substantially different from an employee whose preexisting condition becomes manifest as a result of a work related injury. The issue is one of knowledge. In the former instance, the employee often does not know that he has a disease until long after the exposure that caused it. In the latter instance, the employee knows the precise moment that his injury occurred, as well as its cause, regardless of whether he is aware that the injury may exacerbate a preexisting illness or disease. Because the notice provisions of § 31-294c (a) are intended to balance an employer’s right to conduct timely investigations of work related injuries against an employee’s right to pursue a claim for an occupational disease, the different classes created by the legislative scheme are logically related to the subj ect and object of the legislation. Hence, the statute does not violate equal protection.

B

The plaintiff next argues that the review board’s decision to apply the one year statute of repose to her claim deprived her of her rights under the act without due process of law. She asserts that, because she was not aware that her injury exacerbated her latent hip disease until nearly three years later, “basic fairness” principles dictate that the one year statute of repose should not be applied to bar her claim concerning her undiscovered “occupational disease.” Rather, she argues that her claim should be governed by the three year statute of repose, which requires knowledge. The plaintiffs claim is unavailing.

“ ‘There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.’ . . . Dailey v. New Britain Machine Co., [200 Conn. 562, 582-83, 512 A.2d 893 (1986)].” (Citation omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 305, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).

Thus, although the plaintiff may protest that an injustice has occurred because the review board correctly concluded that she did not suffer from an occupational disease within the meaning of the act, we conclude that she was not deprived of her due process rights as a result of the review board’s decision to apply the one year statute of repose. “ ‘There is no reason, constitutional or otherwise, which prevents the legislature from enacting a statute, such as [§ 31-294c (a)], which starts the hmitation on “[claims] for [workers’ compensation benefits] from the date of the [injury] complained of,” even though at that date no person has sustained damage and therefore no cause of action has come into existence. Indeed, such a provision accords with the purposes of statutes of limitation.’. . .” Dailey v. New Britain Machine Co., supra, 200 Conn. 584.

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

In this opinion the other judges concurred.

       General Statutes! 31-294c(a)providesmpertinentpart:‘‘Noproceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which cause caused the personal injury . . . .” (Emphasis added.)

       See footnote 1.

       General Statutes § 31-275 (15) provides: “ ‘Occupational disease’ includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”

       The plaintiff does not claim that her “injury” is the direct result of repetitive trauma or repetitive acts incident to her employment.

       Even if we assume, arguendo, that the plaintiffs hip disease was exacerbated by the blow from the piece of luggage, such an allegation could arise in numerous occupational settings. Therefore, her occupation as an employee of Aetna Life and Casualty Insurance Company is not by its nature more likely to give rise to allegations of being struck by luggage than would other kinds of employment carried on under similar conditions.