author: LAVERY, J.

text:
    MARY G. ISAAC v. TRUCK SERVICE, INC., ET AL.
    (AC 17072)
    Lavery, Schaller and Spear, Js

      Argued December 7, 1998
    officially released April 6, 1999

      John T. Scully, for the appellant (plaintiff).

      James V. Somers, with whom on the brief, was Kathleen A. St. Onge, for the appellees (defendants).
   Opinion

LAVERY, J.

The plaintiff, Mary G. Isaac, appeals from the judgment of the trial court, rendered after a jury verdict, in favor of the defendants, Truck Service, Inc. (Truck Service), and Mary Ann West. On appeal, the plaintiff claims that the trial court abused its discretion by (1) permitting the defendants to amend their answer to the complaint during closing argument, (2) failing to read or otherwise inform the jury of all of the allegations of negligence contained in the plaintiffs complaint, (3) failing to read or otherwise inform the jury of the allegations of negligence contained in the defendants’ special defense concerning comparative negligence and (4) improperly charging the jury concerning the plaintiffs duty to mitigate damages. The defendants claim, as an alternative ground for affirming the judgment, that the plaintiffs action against them was barred by the doctrine of res judicata. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. By summons and complaint dated September 28, 1993, the plaintiff commenced an action against the defendants alleging that she had sustained personal injuries as the result of a motor vehicle accident that occurred on Interstate 91 in Windsor on February 25, 1992. The complaint alleges that West, an employee of Truck Service, was operating a truck owned by Truck Service that swerved into the lane of traffic in which the plaintiff was traveling, striking the plaintiffs vehicle and causing her personal injuries. The complaint also alleges that the accident was due to the carelessness and negligence of West in that she operated the truck in breach of one or more common law or statutory duties of care she owed the plaintiff.

In response to the complaint, the defendants left the plaintiff to her proof that she was involved in a motor vehicle accident as alleged in paragraph one, admitted that West was operating the truck involved in the accident as an agent for and with the consent of Truck Service as alleged in paragraph two and denied that the accident and the plaintiffs alleged injuries were due to West’s breach of any duty of care owed to the plaintiff. The defendants alleged two special defenses: The first alleged that the plaintiffs claim was barred by the doctrine of res judicata because the plaintiff had previously obtained a judgment against the defendants; the second alleged that the accident was due to the plaintiffs comparative negligence based on her breach of one or more common law duties of care. The plaintiff denied both special defenses.

In November, 1996, a jury rendered a verdict for the defendants. The plaintiff moved to set aside the verdict, and the trial court denied the motion. This appeal followed. Additional facts will be recited as necessary.

I

The plaintiffs first claim is that the trial court abused its discretion by permitting the defendants to amend their answer to paragraph two of the complaint during closing arguments. We agree.

“Whether to grant a request to amend the pleadings is a matter within the discretion of the trial court, and this court will rarely overturn the decision of the trial court. . . . Judicial discretion ... is always legal discretion, exercised according to the recognized principles of equity. . . . While its exercise will not ordinarily be interfered with on appeal to this court, reversal is required where the abuse is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, 239 Conn. 515, 521, 686 A.2d 481 (1996).

“ ‘Under the statutes and rules of practice, the court may in its discretion, in a proper case, allow the filing of amendments to pleadings before, during and after trial.’ [Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155, 239 A.2d 493 (1968)]; see Moore v. Sergi, 38 Conn. App. 829, 835-37, 664 A.2d 795 (1995). ‘Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.’ . . . Connecticut National Bank v. Voog, 233 Conn. 352, 364, 659 A.2d 172 (1995).” Constantine v. Schneider, 49 Conn. App. 378, 389, 715 A.2d 772 (1998). “The essential tests are whether the ruling of the court will work an injustice to either [party] and whether the granting of the motion will unduly delay a trial. Moore v. Sergi, supra, 836, quoting Smith v. New Haven, 144 Conn. 126, 132, 127 A.2d 829 (1956).” (Internal quotation marks omitted.) Constantine v. Schneider, supra, 390.

In this case, the defendants admitted in their response to paragraph two of the plaintiffs complaint that West was driving the truck involved in the accident with the plaintiff. As a result of the defendants’ admission that West was operating the truck, the plaintiff conducted no discovery other than filing standard court-approved interrogatories and requests for production. In answer to one interrogatory, the defendants responded that West, her husband Norris West and the plaintiff were the “persons . . . who were present at the time of the incident alleged in the complaint or who observed or witnessed all or part of the incident.” Notably, the plaintiff did not depose West and attended the deposition of the plaintiffs passenger, Jennie Kendrick, unaware that the defendants would amend their answer to paragraph two of the complaint. Furthermore, the plaintiffs trial strategy was predicated on the defendants’ having admitted that West was operating the truck involved in the accident because the answer constituted a judicial admission. Specifically, the plaintiff did not offer other evidence to prove who was driving the truck.

At trial, during the defendants’ case, West testified that she did not have any specific recollection of the accident and that her recollection was based on what she had been told about the accident. Evidence concluded on a Friday. On the following Monday, the trial court heard argument on the defendants’ motion for a directed verdict based on the special defense of res judicata and held a charging conference. The next day, during the plaintiffs closing argument, the defendants moved to amend their answer to conform to West’s testimony at trial. The trial court granted the motion, stating that the admission was an oversight on the part of the defendants. Finally, after the jury was dismissed, the trial court met with the jurors and later reported to both counsel that at least one juror informed the court that he had concluded that the plaintiff failed to prove that West was operating the truck involved in the accident.

“An admission in a defendant’s answer to an allegation in a complaint is binding as a judicial admission. Franchi v. Farmholme, Inc., 191 Conn. 201, 214, 464 A.2d 35 (1983); Lutkus v. Kelly, 170 Conn. 252, 257, 365 A.2d 816 (1976); Bridgeport v. Stratford, 142 Conn. 634, 646, 116 A.2d 508 (1955).” United Electrical Contractors, Inc. v. Progress Builders, Inc., 26 Conn. App. 749, 753, 603 A.2d 1190 (1992). “ ‘The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader.’ Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260 (1977); see also West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986); Argentinis v. Gould, 23 Conn. App. 9, 18, 579 A.2d 1078 (1990), rev’d in part, on other grounds, 219 Conn. 151, 592 A.2d 378 (1991).” Cross v. Hudon, 42 Conn. App. 59, 65, 677 A.2d 1385, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996). “A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.” Drew v. K-Mart Corp., 37 Conn. App. 239, 250, 655 A.2d 806 (1995). “Upon the amendment of the original answer, the superseded pleading ceases to be a conclusive judicial admission and becomes nothing more than an evidentiary admission to be weighed and considered by the trial court along with the rest of the evidence.” Crowell v. Danforth, 222 Conn. 150, 155, 609 A.2d 654 (1992).

In view of the facts of this case, we conclude that the trial court’s granting of the defendants’ motion to amend their answer to paragraph two of the complaint worked an injustice on the plaintiff. Paragraph two clearly alleges that “West was operating the truck involved in this accident,” and the defendants admitted that allegation in their answer filed in November, 1993, three years prior to the trial of this matter. According to our case law, the defendants’ answer constituted a judicial admission and the plaintiff was entitled to rely on that admission and not produce evidence at trial as to the driver of the truck involved in the accident. The trial court’s granting of the defendants’ motion to amend after the plaintiff had completed part of her closing argument was unfair and an abuse of discretion.

Furthermore, the defendants’ motion to amend was the product of their own negligence. Through their investigation of the subject accident and counsel’s conversations with West in preparation for trial, the defendants should have known the substance of West’s trial testimony well before she gave it.

The defendants also argue that the plaintiff should have moved to open evidence or for a continuance and that her failure to do so did not preserve her claim for appellate review. We disagree. The plaintiff was not required to move for a continuance. See Smith v. New Haven, supra, 144 Conn. 133. The defendants’ argument fails because reopening the evidence and obtaining a continuance would have unreasonably delayed the trial. Given the facts of this case, the plaintiff would have been entitled to take the deposition of West, call the out-of-state witness and conduct any other discovery necessary to prove who was driving the subject truck. The jury would have had to be excused until discovery could be completed. Such undertakings would undermine judicial economy, where, as here, the defendants waited until the middle of closing arguments to amend their pleadings.

In support of their claim, the defendants cite Moore v. Sergi, supra, 38 Conn. App. 829, and Smith v. New Haven, supra, 144 Conn. 126, for the proposition that a party should be permitted to amend its pleadings to conform to the proof offered at trial. Those cases are distinguishable because the opposing parties were not prejudiced by the amendment of the counterclaim in Moore and the complaint in Smith to conform those pleadings to the proof offered at trial. In Moore, the court specifically concluded that because both the amendment and the original claims arose from a single group of facts and the amendment did not inject into the case anything foreign to the issues in the original claims that required proof of facts the opposing party could not meet through the normal course of trial, the amendment had not prejudiced the opposing party. See Moore v. Sergi, supra, 38 Conn. App. 836-37. Here, the amended answer did inject a new element into the case that required proof of facts that could not be met through the normal course of trial when the plaintiff reasonably believed that she did not need to prove that West was driving the truck because the defendants had admitted that fact. The plaintiff in this case was, therefore, misled and prejudiced by the amendment.

Finally, the defendants’ amended answer caused actual prejudice to the plaintiff. As the trial court informed counsel for the parties during a posttrial conference, at least one juror concluded that the plaintiff had not proved that West was driving the truck. The defendants argue that a juror’s statement may not be used to impeach a verdict pursuant to Josephson v. Meyers, 180 Conn. 302, 310-11, 429 A.2d 877 (1980). Although that proposition is correct, Josephson is not applicable to the present case. The plaintiff here is not attempting to impeach the verdict, but rather to demonstrate the prejudicial effect of the trial court’s abuse of discretion in granting an untimely motion to amend the defendants’ answer to the complaint.

We conclude, therefore, that the trial court abused its discretion in granting the defendants’ motion to amend their answer after the plaintiff had begun her final argument.

Because this issue is dispositive of the plaintiffs appeal, we need not reach her claims concerning the trial court’s improper jury charge. We must, however, resolve the defendant’s claim that the judgment may be affirmed on other grounds.

II

The defendants claim that the judgment should be affirmed because the plaintiffs claim is barred by the doctrine of res judicata. We disagree.

The following additional facts are necessary to our resolution of the defendants’ claim. After the accident occurred, the plaintiff immediately notified the Connecticut state police. She notified Truck Service of the accident the next day. On March 2, 1992, Truck Service had the property damage to the plaintiffs vehicle appraised at $1422.58. After her attempts to resolve her claim with Truck Service failed, the plaintiff initiated a small claims action against Truck Service in July, 1992. The plaintiff was able to reach a settlement agreement with Truck Service’s liability insurance carrier in September, 1992. The insurance carrier issued settlement checks to the plaintiff but stopped payment on the drafts soon thereafter. The plaintiff, therefore, proceeded to a hearing in damages in small claims court and was awarded a judgment of $1422.58 plus costs.

At the time she instituted her small claims action against the defendants, the plaintiff had not yet seen a physician for the injuries she alleges that she had sustained in the accident. Although she was experiencing back and neck pain, the plaintiff treated herself with over-the-counter pain relievers. On April 23, 1993, the plaintiff sought treatment from an orthopedic surgeon when the over-the-counter remedies ceased providing relief. The physician advised the plaintiff that she had underlying orthopedic conditions that were, in his opinion, made substantially and materially worse by the accident. The plaintiff commenced the present action against West and Truck Service in September, 1993, seeking damages for the personal injuries she had sustained. The defendants filed a special defense alleging that the plaintiffs claim was barred by the doctrine of res judicata.

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” (Citations omitted; internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 685, 719 A.2d 62, cert. denied, 247 Conn. 945, 728 A.2d 323 (1998). “[A] judgment on default is a judgment on the merits of the controversy.” (Internal quotation marks omitted.) Segretario v. Stewart-Warner Corp., 9 Conn. App. 355, 359, 519 A.2d 76 (1986).

“The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.” (Citations omitted; internal quotation marks omitted.) In re Brianna F., 50 Conn. App. 805, 813, 719 A.2d 478 (1998). “[Wjhether res judicata is a defense depends on the facts peculiar to the case.” Orselet v. DeMatteo, 206 Conn. 542, 548, 539 A.2d 95 (1988).

We, therefore, must examine the facts of this case to determine whether there is any public policy that bars the application of the doctrine of res judicata to the plaintiffs claim for personal injuries. We first note that the plaintiff attempted to settle her property damage claim with the defendants’ liability insurer. When she was not able to settle her claim, she filed a small claims action against Truck Service, seeking damages in the amount of her loss as assessed by the defendants’ insurance adjuster. Prior to a hearing in the small claims action, the defendants’ liability insurer agreed to settle the small claims action, issued settlement checks to the plaintiff and thereafter stopped payment on those checks. The plaintiff then proceeded to obtain a default judgment against Truck Service for her property damage. Furthermore, although she was experiencing neck and back discomfort at the time she brought her small claims action, the plaintiff had not seen a physician. When she did see a physician, the plaintiff learned that certain preexisting conditions were made substantially and materially worse by her motor vehicle accident.

Our Supreme Court has adopted the transaction test to determine whether a judgment on an original claim extinguishes a plaintiffs subsequent causes of action. Id., 545. “What factual grouping constitutes a ‘transaction,’ and what groupings constitute a ‘series,’ are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” (Internal quotation marks omitted.) Id., 545-46. Although we agree with the defendants that the plaintiffs property damage and personal injury losses both arose out of the same transaction, i.e., the motor vehicle accident, the facts of this case require that we not follow mechanically the doctrine of claim preclusion to deny this plaintiff her day in court.

The facts of this case demonstrate that the plaintiff, within one or two weeks of the accident, attempted to secure compensation for the property damage her automobile sustained when it was allegedly struck by the defendants’ truck. At that time, according to her trial testimony, the plaintiff believed that her personal injuries could be treated with over-the-counter pain remedies. More than one year later, the plaintiff learned that she had, in fact, sustained serious personal injuries that required surgical inteivention. Within six months of learning of the seriousness of her personal injuries, the plaintiff brought an action against West and Truck Service claiming damages for her personal injuries. Citizens of this state have a constitutional right to seek redress for injuries. See Conn. Const., art. I, § 10; Dubay v. Irish, 207 Conn. 518, 529, 542 A.2d 711 (1988); Falco v. Institute of Living, 50 Conn. App. 654, 659, 718 A.2d 1009 (1998). To bar the plaintiffs claim for personal injuries on the basis of the facts of this case would frustrate the constitutional right and social policies providing redress for injuries, which are “more important than the convenience afforded by finality in legal controversies.” In re Brianna F., supra, 50 Conn. App. 813.

We conclude that in this instance our social policy of providing a means of redress for personal injuries outweighs the need for finality of the small claims judgment. The plaintiffs personal injury claim, therefore, is not barred by the doctrine of res judicata.

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

In this opinion the other judges concurred.

       Paragraph one of the complaint alleges: “On February 25,1992, at, approximately 7 p.m. a truck owned by the defendant, Truck Service, Inc. and operated by the defendant, Mary Ann West, which was traveling south in the left lane on 1-91 in Windsor, Connecticut, proceeded to swerve into the right lane and strike an automobile owned and operated by the plaintiff, Mary G. Isaac.”

       Paragraph two of the complaint alleges: “At all times herein mentioned, the defendant Mary Ann West was operating the truck involved in this accident as the agent, servant or employee of the defendant, Truck Service, Inc., and was operating the truck with the permission and consent of said defendant.”

       The defendants’ first special defense is predicated on a property damage judgment obtained in small claims court by the plaintiff in October, 1992. In 1994, the defendants moved for summary judgment on the basis of this special defense, which was denied by the trial court, Hammer, J. At the conclusion of evidence at trial, the defendants moved for a directed verdict also on the basis of this special defense, which was denied by the trial court, Rittenband, J.

       The defendants’ amended answer to paragraph two states: “As to the allegations contained in paragraph 2, the defendants deny that Mary Ann West was operating the truck which was involved in the subject accident. The remaining allegations contained in said paragraph 2 are admitted.”

       See Practice Book § 13-6 (b).

       The plaintiff also read Kendrick’s deposition into evidence rather than calling her as a witness.

       Truck Service did not file an answer to the small claims complaint and appeared only for the hearing in damages.

       See footnote 3.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CHARLES BOSTWICK
    (AC 17927)
    Foti, Sullivan and Daly, Js.

      Argued January 22
    officially released April 6, 1999

      Robert M. Berke, assistant public defender, with whom, on the brief, was Colleen Budzinski, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Jonathan Benedict, state’s attorney, and Joseph Corradino, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Charles Bostwick, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32, and committing him to the custody of the commissioner of correction for a period of six years, which represents the unexecuted portion of his sentence. On appeal, the defendant claims that the trial court (1) lacked sufficient evidence to support its finding that the defendant violated his probation and (2) abused its discretion by revoking his probation because the beneficial purpose of probation was still being served. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On November 14, 1989, the defendant was sentenced by the trial court, Reilly, J., after being convicted of a number of offenses, to a total effective sentence of ten years imprisonment, execution suspended after four years, followed by three years probation. On November 22, 1993, the defendant was found by the trial court, Devlin, J., to be in violation of the conditions of his probation and his probation was extended for an additional two years. On February 1, 1995, the defendant signed a standard document outlining certain new conditions of probation.

On January 2, 1997, a probation officer applied for an arrest warrant, alleging that the defendant had violated the conditions of his probation by failing to report as directed, by failing to keep the probation office informed of his whereabouts and by violating a law of the state. A hearing was held on June 26, 1997. During the probation revocation hearing, evidence was presented that the defendant had failed to keep a scheduled appointment at his drug treatment program, had tested positive for drug use and had been terminated from the program.

Further evidence showed that on October 17, 1996, the defendant was specifically directed by his probation officer to attend a meeting that was scheduled for November 6, 1996. The defendant, who had been arrested for larceny in the sixth degree on the previous day, October 16, 1996, failed to inform his probation officer of that fact. He thereafter failed to attend the November 6 meeting. The probation officer’s attempts to find the defendant over the next few weeks proved fruitless. The defendant failed to contact his probation officer because of his continued drug use. Additionally, the defendant was aware that he had to appear in court for his larceny arrest, but failed to do so.

“[U]nder § 53a-32, a probation revocation hearing has two distinct components. . . . 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. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion.” (Citations omitted; internal quotation marks omitted.) State v. Treat, 38 Conn. App. 762, 766-67, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995).

“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 or her probation. State v. Davis, [229 Conn. 285, 302, 641 A.2d 370 (1994)]. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... 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 .... State v. Treat, supra, 38 Conn. App. 769-70. A fact is more probable than not when it is supported by a fair preponderance of the evidence. State v. Haggood, 36 Conn. App. 753, 768, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995).” (Internal quotation marks omitted.) State v. Welch, 40 Conn. App. 395, 401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996).

I

The defendant first claims that the trial court lacked sufficient evidence to support its finding that he had violated the conditions of his probation. We disagree.

“The weight to be given the evidence and the credibility of witnesses are solely within the determination of the trier of fact. State v. Scott, 31 Conn. App. 660, 664, 626 A.2d 817 (1993). In the statutory probation hearing, the trial court acts as the trier of fact in making the findings as to whether the defendant has violated the terms of his probation. See State v. Roberson, 165 Conn. 73, 80-81, 327 A.2d 556 (1973). If the record supports the trial court’s finding that the defendant failed to comply with the conditions of his probation, the trial court then had the discretion to order a revocation of the probation. State v. Scott, supra, 664.” (Internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 485, 723 A.2d 817 (1999).

The document outlining the conditions of the defendant’s probation, which was signed by the defendant and not contested by him, set forth ten conditions to which the defendant was subject. The three conditions relevant to this case were that the defendant was (1) not to violate any criminal law, (2) to report as directed to his probation officer, giving immediate notice if arrested and, if incarcerated, to report immediately upon release and (3) to keep his probation officer informed of his whereabouts, giving notice of any change in address or employment, and to allow visitation by the probation officer.

We find it unnecessary to discuss at length how the state met its burden of proving that the defendant violated each of those conditions. The defendant admitted to having failed to appear for a sixth degree larceny charge while on probation. The evidence presented also showed that the defendant neither reported to his probation officer as directed nor informed him of his arrest for larceny. Finally, the evidence showed that the defendant failed to keep his probation officer informed of his whereabouts. The record demonstrates that the evidence adduced at the probation hearing was more than sufficient to support the trial court’s finding and to induce a reasonable belief that it was more probable than not that the defendant violated the three conditions of his probation.

II

The defendant next claims that the trial court abused its discretion by revoking his probation because the beneficial purpose of probation was still being seived. Specifically, the defendant argues that because he became homeless, was addicted to drugs, including alcohol, crack cocaine and marijuana, and because he had only four months left on probation, his “unintentional” violations should not have caused the trial court to conclude that the beneficial purposes of probation were no longer being served. The trial court did not accept the defendant’s argument and we cannot conclude that the trial court abused its discretion in revoking his probation.

“When reviewing the second component of a probation revocation hearing, an appellate court must determine whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. State v. Roberson, [supra, 165 Conn. 80]; State v. Johnson, 11 Conn. App. 251, 257, 527 A.2d 250 (1987). In making this second determination, [whether the defendant’s probationary status should be revoked] the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988). State v. Davis, supra, 229 Conn. 290. 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 . . . [and] [Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . Walker v. Commissioner of Correction, 223 Conn. 411, 414-15, 611 A.2d 413 (1992). In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. State v. DeMasi, [34 Conn. App. 46, 55, 640 A.2d 138, cert. denied, 230 Conn. 906, 644 A.2d 920 (1994)]. The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public. State v. Davis, supra, 297.

“General Statutes § 53a-32 (b) provides that revocation shall not be ordered except upon consideration of the whole record . . . .” (Internal quotation marks omitted.) State v. Treat, supra, 38 Conn. App. 770-71. “Although a finding of a violation of a condition of probation should not lead to a rote revocation of probation . . . there [generally] is no constitutional requirement . . . that the trial court must first find that the violation was willful, before probation may be revoked.” (Citation omitted.) State v. Baxter, 19 Conn. App. 304, 320, 563 A.2d 721 (1989). The record discloses that the defendant’s testimony demonstrates that the violations were not unintentional. After examining the entire record in this case, we cannot conclude that the trial court abused its discretion in revoking the defendant’s probation and imposing the suspended portion of his sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. . . .
      “(b) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       The trial court did not file a memorandum of decision or a signed transcript of its findings. The defendant filed a motion for articulation, which was denied by the trial court. The defendant failed to seek review of the denial of his motion for articulation from this court. The grounds for the trial court’s conclusion that the defendant violated his probation, however, are adequately shown in the record.

       The defendant erroneously claims that the probation was extended “until November 22, 1995.” The record appears to indicate that his probationary period was to end in October, 1997.

       The record discloses that a rearrest of the defendant was ordered for his failure to appear on December 19, 1996. The state is not required to obtain a criminal conviction to establish a violation of probation arising out of criminal conduct. State v. Deptula, 34 Conn. App. 1, 5, 639 A.2d 1049 (1994). There need be only “enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” Payne v. Robinson, 10 Conn. App. 395, 403, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).


author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. RAYMOND L. HAYLES
    (AC 17103)
    Foti, Spear and Sullivan, Js.

      Argued January 11
    officially released April 6, 1999

      Eugene P. Falco, for the appellant (defendant).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Devin Stilson, assistant state’s attorney.
   Opinion

SULLIVAN, J.

The defendant, Raymond L. Hayles, appeals from a judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and of carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court improperly (1) denied his motion to dismiss because of the state’s Brady violations and (2) excluded the testimony of an expert witness on gangs. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 2, 1994, Duwayne Brown, a friend of the defendant, was sitting in a chair in front of a building in Danbury when Timothy Locke, Kailash Thakordeen, Larry Hill and Thomas West approached him. The defendant, who was in or near the building, stated that he believed these individuals were members of a gang and planned to attack Brown. Hill and West remained in the street while Locke and Thakordeen went up to Brown. Locke first hit Brown in the face and then hit him several more times as he lay on the ground. Two or three people came over and stood near Locke and Thakordeen, and five or six onlookers gathered in the street near Hill and West. The defendant came around a corner and opened fire with a nine millimeter pistol, wounding Thakordeen in the abdomen and Hill in the arm and shoulder. The defendant later claimed that he attempted to intercede verbally to assist Brown and that he fired his pistol only out of fear for his and Brown’s safety when the gang members directed their attention to him.

Almost one year later, the defendant was arrested in Camden, New Jersey, and returned to Connecticut for trial.

I

The defendant claims that the trial court improperly denied his motion to dismiss on the basis of the state’s Brady violations. We disagree.

The following additional facts are necessary to our resolution of this claim. On February 28,1996, the defendant filed requests for disclosure of exculpatory material and information relating to any witness’ affiliation with gangs and information on those gangs. It was not until December 6, 1996, after jury selection was complete and just prior to the commencement of the trial, that the prosecutor transmitted to the defendant statements given to police by Brown on October 12, 1994, and by Curtis McCormack, a witness, on October 3, 1994. The defendant moved to dismiss on December 10, 1996, on the ground of the state’s failure to disclose exculpatory material. The trial court denied the motion to dismiss but offered defense counsel “a continuance as long as you’d like within reason to investigate and prepare your defense. Now, if you’d like to tell me how much you’re going to need, again, within reason, I’ll consider it. If you’d like to wait until after you’ve had lunch or slept on it or talked to your client about it, we’ll do that too. The motion to dismiss, however, is denied.” The defendant declined the court’s offer and proceeded to trial, where both Brown and McCormack were called as witnesses.

“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). However, Brady does not mandate pretrial disclosure in all cases. W. LaFave & J. Israel, Criminal Procedure (2d Ed. 1992) § 20.7, p. 894. Evidence “that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady.” State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). “Where there has been an initial disclosure of exculpatory evidence at trial, the appropriate standard to be applied ‘is whether the disclosure came so late as to prevent the defendant from receiving a fair trial.’ United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir.), cert. denied, 444 U.S. 833, 100 S. Ct. 65, 62 L. Ed. 2d 43 (1979) . . . .” (Citations omitted.) State v. Walker, 214 Conn. 122, 127-28, 571 A.2d 686 (1990). The defendant bears the burden of proving that he was prejudiced by the failure of the state to make the disclosure earlier. Id.

The defendant received the two statements, albeit after jury selection. The trial court offered the defendant any reasonable continuance that he wanted. The defendant declined the court’s offer and instead opted to proceed with the trial. At trial, both Brown and McCormack testified for the defense. Although we agree with the trial court in its disapproval of the “incredible negligence and incredible lack of supervision” that resulted in the delay of the disclosure of the statements, we cannot conclude that the defendant in this case was prejudiced by the delay.

II

The defendant also claims that the trial court improperly excluded expert testimony concerning gangs. The defendant maintains that such testimony was essential to his claim of self-defense.

A few additional facts are necessary. At trial, the defendant argued that the attack on Brown was a gang “beat down,” which he attempted to stop verbally, but that ultimately he could protect himself and Brown from serious harm only by using force. Pueblo Otero, an acting Bridgeport police lieutenant, was qualified as an expert on gangs by the defendant. The state objected on the ground of relevance. During the defendant’s proffer, Otero testified as to the origins and hierarchy of the gang, the gang’s identification signs and symbols, and the nature of a beat down. Otero stated that a beat down was a brief, minor physical assault, which gangs use for discipline and which resulted in only slight injuries. The trial court excluded Otero’s testimony as irrelevant.

“The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or juiy in considering the issues. . . . State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986).” (Internal quotation marks omitted.) Hutchinson v. Andover, 49 Conn. App. 781, 788, 715 A.2d 831 (1998).

We cannot say that the trial court abused its discretion in excluding Otero’s testimony. The relevant issue was whether the defendant was justified in using the force that he used. The organization and symbols of the gang are not helpful in the determination of that issue. The testimony on the nature of a beat down may speak to the issue but does not do so clearly enough that we can find an abuse of discretion.

Moreover, even if the trial court did abuse its discretion, the defendant points to no identifiable harm. The state convincingly argues that the exclusion of the testimony helped the defendant because Otero stated that a beat down usually lasts no more than one minute and results in very minor bruises. That statement actually undercuts the defendant’s claim that he needed to use force. Linder those circumstances, the defendant suffered no harm by the exclusion of the testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

        Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

       The defendant’s reliance on State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), and State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995), is misplaced. Both of those cases involve circumstances in which evidence was never made available to the defendant. The trial court used Asherman merely as an a fortiori argument rather than suggesting that it was the proper standard. Our Supreme Court has made clear that Walker controls late disclosures.


author: DUPONT, J.

text:
    PETER CHERNOVITZ v. PRESTON TRUCKING COMPANY
    (AC 17849)
    Foti, Schaller and Dupont, Js.
    Argued January 25
    officially released April 6, 1999

      Matthias J. DeAngelo, for the appellant (defendant).

      Nicholas A. D’Agosto IV, for the appellee (plaintiff).
   Opinion

DUPONT, J.

In this appeal, pursuant to General Statutes § 31-290a, from a decision of a workers’ compensation commissioner in favor of the plaintiff employee, the defendant employer claims that the commissioner failed to consider (1) whether the plaintiff met his burden of proof and (2) whether the defendant had a legitimate nondiscriminatory reason for challenging the findings of the plaintiff’s treating physician. We affirm the commissioner’s decision.

General Statutes § 31-290a (a) provides: “No employer . . . shall ... in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him . . . .” The plaintiff’s claim of discrimination was that he was not allowed to return to his regular duty of employment when he was released from work restrictions by his treating physician. The commissioner found the relevant facts that follow.

On August 12, 1992, the plaintiff, an employee of the defendant, sustained a work-related left shoulder injury while working for the defendant. The defendant accepted liability for the injury and paid the plaintiff a 25 percent specific award for permanent partial disability of the left shoulder. On April 5,1994, Norman Kaplan, the plaintiffs treating physician, released the plaintiff for light duty work. The defendant provided the plaintiff with light duty work from April, 1994, until October, 1994, when the plaintiff was laid off because the defendant decided it would no longer provide light duty work to employees who had permanent restrictions. On May 2,1995, Kaplan gave the plaintiff a medical slip indicating that he could return to regular work duty.

The commissioner also found that Kaplan, in a written report of August 22,1995, had released the plaintiff to his regular work as driver-utility man, and that the physician’s report indicated that Kaplan had lifted the light duty restrictions that he had previously placed on the plaintiff in April, 1994. The commissioner concluded that the defendant should have permitted the plaintiff to return to regular work duty on August 22, 1995, but that the defendant did not allow the plaintiff to return to work until January 2,1996, and, therefore, the defendant had discriminated against the plaintiff. The plaintiff has been performing his regular work since January, 1996. The commissioner did not order any lost wage reimbursement to the plaintiff because the plaintiff did not mitigate his damages by seeking work after being released by his physician. The commissioner ordered that the defendant reimburse the plaintiff for any sick and vacation time that he would have accumulated between August 22, 1995, and January 2, 1996, that the defendant make pension contributions for the plaintiff for the same period based on the salary the plaintiff would have earned at his regular employment, and that the defendant pay the plaintiff an attorney’s fee of $2000.

The burden of proof in actions involving § 31-290a is stated in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53, 578 A.2d 1054 (1990), and Chiaia v. Pepperidge Farm, Inc., 24 Conn. App. 362, 366, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991). “The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. ... In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. ... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatoiy reason for its actions. ... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. . . . The plaintiff then must satisfy [the] burden of persuading the factfinder that [the plaintiff] was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (Citations omitted; internal quotation marks omitted.) Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 53-54. Chiaia reiterates the Ford outline for the burden of proof in § 31-290a (a) cases.

A workers’ compensation commissioner has the power to determine the facts and we cannot disturb them when reasonably found. Erisoty v. Merrow Machine Co., 34 Conn. App. 708, 712, 708 A.2d 643, cert. denied, 231 Conn. 908, 648 A.2d 151 (1994). Conclusions drawn from those facts also cannot be disturbed unless they result from an incorrect application of the law to those facts or from an inference illegally or unreasonably drawn from them. Dowling v. Slotnik, 244 Conn. 781, 797-98, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).

A discriminatory discharge does not include a discharge because the worker is unable to perform his or her work due to a work-related injury; Chiaia v. Pepperidge Farm, Inc., supra, 24 Conn. App. 366; nor does it include a discharge occasioned by the neutral application of a policy. Id., 367.

The defendant claims that the plaintiff failed to prove a discriminatory intent of the defendant and failed to refute the defendant’s evidence of nondiscriminatory reasons for the failure to allow the plaintiff to return to regular work duty. We do not agree.

The defendant’s basic arguments are that it could refuse to credit Kaplan’s change of diagnosis as to the permanency of the plaintiffs injury and still be without a discriminatory intent and that the defendant had met its burden of proving that it had a legitimate nondiscriminatory reason for its conduct. The defendant seeks reversal of the commissioner’s order because the commissioner did not discuss the latter issue and because the commissioner must have had the same doubts as the defendant as to the variance between the Kaplan reports, as evidenced by the commissioner’s order of another physical examination by a different physician.

The plaintiff in this case does not claim that the discriminatory act occurred when he was laid off because the light duty work position was eliminated, but claims that the discriminatory act was the failure to allow him to return to his regular duties after Kaplan’s medical slip, issued before the physician’s written report, allowed him to return to those duties as of May 8,1995. The defendant argues that there was no discrimination at all for any period of time.

The commissioner’s decision does not contain specific statements as to the standard of proof or the burden of proof. Briefs of the parties were submitted to the commissioner, however, in which the plaintiff correctly set out the burden of proof as stated in Ford. When a decision does not state what standard of proof is being used, the standard is deemed to be a fair preponderance of the evidence. Schaffer v. Lindy, 8 Conn. App. 96, 105, 511 A.2d 1022 (1986).

Here, the defendant made no motion to dismiss at the close of the plaintiff’s case for failure to make out a prima facie case. It cannot now complain that the plaintiff failed to make out a prima facie case. For purposes of the establishment of a prima facie case, the trier must take as true the evidence offered by the plaintiff and interpret it in the light most favorable to the plaintiff, with every reasonable inference being drawn in favor of the plaintiff. Berchtold v. Maggi, 191 Conn. 266, 271, 464 A.2d 1 (1983). In any event, a review of the transcript of the hearing makes it evident that the plaintiff did make out a prima facie case. The plaintiffs allegations were proven by a fair preponderance of the evidence. The plaintiff testified that it was not the usual practice for employees of the defendant to be sent for a second medical opinion before allowing them to return to regular work, that he attempted to return to regular work after Kaplan reported that he could, that his attorney scheduled two informal hearings about his right to return to work but neither resulted in his being permitted to return to work. That testimony, coupled with the factual findings made by the commissioner, support the award to the plaintiff.

The defendant introduced no witnesses or evidence and rested its case at the conclusion of the plaintiffs case. The defendant, having failed to introduce any evidence at all, cannot now claim that it rebutted the presumption of discrimination. Without any evidence of a “legitimate, nondiscriminatory reason for its actions”; Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 216 Conn. 53-54; the defendant has not carried its burden of production.

The commissioner’s findings of the facts were reasonable and the law was correctly applied to them.

The decision of the workers’ compensation commissioner is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-290a(b) provides in relevant part that any employee “discriminated against may either: (1) Bring a civil action in the superior court... or (2) file a complaint with the chairman of the Workers’ Compensation Commission .... Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”

       The defendant’s union contract with the teamsters union states that “employees who, consistent with professional medical evaluations and opinion, may never be expected to receive an unrestricted medical release, shall not be eligible to participate in a modified work program.”

       A second physician performing a commissioner’s examination at the request of the defendant on January 29, 1996, found that the plaintiff could perform his regular work but that he should avoid overhead work.

       Although the commissioner found that the defendant discriminated against the plaintiff because (1) the defendant laid off the plaintiff from his light duty job and, (2) the defendant would not let the plaintiff return to his regular job upon the release by the plaintiffs treating physician, the commissioner limited the time period of discrimination to the period between August 22, 1995, and January 2, 1996. Neither party argues on appeal that the time period should have begun in October, 1994, when the plaintiff was laid off. Thus, it is only the second reason for discrimination with which we are concerned.