source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. TOMMIE L. MARTIN
    (AC 22978)
    Dranginis, Flynn and McDonald, Js.

      Argued December 10, 2002
    officially released July 8, 2003

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, was Patricia M. Froelich, state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Tommie L. Martin, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit robbeiy in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), robbery in the first degree in violation of General Statutes §§ 53a-133 and 53a-134 (a) (2), and felony murder in violation of General Statutes § 53a-54c. On appeal, the defendant claims, among other things, that the trial court improperly took judicial notice of the fact that Carlton Martin, the defendant’s alleged coconspirator and accomplice, had been convicted of the crimes of felony murder, robbery in the first degree and five counts of tampering with a witness. Because we agree that the court improperly took judicial notice of the conviction of the defendant’s alleged coconspirator and accomplice, we reverse the judgment of the trial court and remand the case for a new trial.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. In connection with the death of Robert Gallo during an alleged armed robbery at Gallo’s liquor store in Danbury on January 18, 1999, the defendant pleaded not guilty to a long form information charging him with conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134 (a) (2), robbery in the first degree in violation of §§ 53a-133 and 53a-134 (a) (2), and felony murder in violation of § 53a-54c. In each count of the long form information, the state alleged that the defendant and his cousin, Carlton Martin, were coconspirators or accomplices. On December 14, 2000, the jury returned a guilty verdict on all three counts, and on February 16,2001, the court sentenced the defendant to a total effective term of ninety years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the court, during its final instructions to the jury, improperly took judicial notice of the fact that Carlton Martin had been convicted of the crimes of felony murder, robbery in the first degree and five counts of tampering with a witness. The defendant argues that contrary to the court’s determination, statements made by defense counsel during closing argument to the jury did not require the court to inform the jury that Carlton Martin had been convicted of crimes arising out of the same incident that prompted the defendant’s trial. The defendant contends that the value of the court’s instruction informing the jury of the conviction was outweighed by its prejudicial effect and deprived him of his due process right to a fair trial under the federal constitution. We agree.

The following additional facts are necessary for our resolution of the defendant’s claim. At the defendant’s trial, the state called Carlton Martin as a witness after he had been convicted in a separate trial. The court determined that because Carlton Martin had testified at his criminal trial, he could no longer invoke his privilege against self-incrimination at the defendant’s trial. Nonetheless, when Carlton Martin was called to testify before the jury at the defendant’s trial, he refused to answer any questions that could have placed the defendant in his company on January 18, 1999, or connected the defendant to the alleged murder weapon. During the evidentiary phase of the defendant’s trial, the jury was not informed of Carlton Martin’s conviction or the disposition of any charges brought against him.

During closing argument, defense counsel argued that the state had failed to present sufficient evidence to prove that the defendant and Carlton Martin committed the robbery and murder. Specifically, defense counsel emphasized the lack of blood evidence linking the defendant or Carlton Martin to the crime and stated: “[The state] didn’t have any of that [forensic blood evidence] because there isn’t any of it, not on either Carlton Martin or [the defendant]. There is, on whoever was back there doing the shooting, not Carlton and not [the defendant], . . . And, I’m asking you, why isn’t there anything about all this blood? And, it’s because the state can’t explain it except to say Carlton and [the defendant] didn’t do it. Carlton and [the defendant] didn’t do it and get into [the] car because the evidence would have been on Carlton or [the defendant’s] clothes or in [the] car, and it’s not there. And the only reason it’s not there is because they’re not guilty.” (Emphasis added.)

In light of defense counsel’s statement that the defendant and Carlton Martin were “not guilty,” the state, before presenting its rebuttal argument to the jury, asked the court to take judicial notice of the fact that Carlton Martin had been convicted of robbery in the first degree, felony murder and five counts of tampering with a witness. Defense counsel objected, arguing that it would be “incredibly prejudicial to the defendant” to advise the jury that Carlton Martin already had been found guilty of the charges. Defense counsel maintained: “It will implant in the jurors’ minds the fact that other jurors considered evidence and already made a decision, and why should they think about it independently, just go with what has already been presented and already concluded. And, the court will be advising them, if [it takes] judicial notice, that this is a fact. He’s guilty.”

The court, in overruling the objection, concluded: “The state and the defense and the court have stayed away from the conviction of Carlton Martin as such. ... I think [defense counsel’s] comment has invited the request of the state. Otherwise, [the jury is] left with the impression that . . . Carlton Martin was not convicted of anything or that he is not guilty, and that simply is not true. He was found guilty by a jury and sentenced by the court. So, here’s what I’ll do. I will instruct the jury that I’ve taken judicial notice of the fact that Carlton Martin was convicted of felony murder, robbery in the first degree and five counts of witness tampering on November 1, 2000, and they may, if they wish, take that as a fact, but I will also tell them that they’re not required to accept that as conclusive. And, I’m basing that statement I just made on § 2-1 of the Connecticut Code of Evidence.”

Thereafter, following the state’s closing rebuttal argument, the court gave its final instructions to the jury. In instructing the jury, the court stated: “I am now taking judicial notice of the fact that Carlton Martin, on November 1, 2000, was convicted of the crimes of felony murder, robbery in the first degree and five counts of tampering with a witness. That — those judicially noticed facts are not binding on you. They’re not conclusive, but you may accept them as conclusive if you wish. I instruct [that] you are not to draw an inference that [the defendant] is guilty of the offense as charged simply because Carlton Martin was convicted of those offenses. You must judge [the defendant] on the evidence produced in this courtroom in this case.”

We begin by setting forth certain legal principles that guide us in our review. “Judicial notice . . . meets the objective of establishing facts to which the offer of evidence would normally be directed. . . . The underlying theory is that proof by evidence concerning a proposition may be dispensed with where the court is justified, by general considerations, in declaring the truth of the proposition without requiring evidence from the party. . . . This theory goes no further, however, than to mean that the proposition is taken as true without an offer of proof by the party who should ordinarily have offered it.” (Citations omitted.) State v. Tomanelli, 153 Conn. 365, 368-69, 216 A.2d 625 (1966); see also De Luca v. Park Commissioners, 94 Conn. 7, 10, 107 A. 611 (1919) (“[j]udicial notice, in its appropriate field, displaces evidence, since, as it stands for proof, it fulfils the object which evidence is designed to fulfil, and makes evidence unnecessary”).

“The doctrine of judicial notice is not a hard and fast one. It is modified by judicial discretion. . . . Courts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved and the apparent justice of the case.” (Internal quotation marks omitted.) De Luca v. Park Commissioners, supra, 94 Conn. 10; see also Conn. Code Evid. § 2-1 (b); C. Tait, Connecticut Evidence (3d Ed. 2001) § 2.2, p. 108. “Whether to take judicial notice of a fact is a function of the exercise of judicial discretion.” (Internal quotation marks omitted.) Pie Plate, Inc. v. Texaco, Inc., 35 Conn. App. 305, 316, 645 A.2d 1044, cert. denied, 231 Conn. 935, 650 A.2d 172 (1994).

Thus, “a trial court’s determination [to take or] not to take judicial notice is essentially an evidentiary ruling. . . . Our role in reviewing evidentiary rulings of the trial court is settled. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 398-99, 662 A.2d 118 (1995).

As previously set forth, the court determined that defense counsel’s statement that “they’re not guilty,” exceeded the appropriate scope of final argument because, in essence, the statement suggested an inference from facts not in evidence, such as the verdict in Carlton Martin’s trial, and presented a matter that the jury had no right to consider. Thus, it was within the court’s discretion to limit the scope of final argument to prevent the juiy from being influenced by improper matter that might prejudice its deliberations. We generally accord deference to a court’s efforts to eliminate prejudice through a curative instruction. See State v. Butler, 55 Conn. App. 502, 517-18, 739 A.2d 732 (1999) (when court instructs jury to disregard counsel’s improper comment, “we generally accord deference to [such] efforts to eliminate prejudice through a curative instruction”), aff'd, 255 Conn. 828, 769 A.2d 697 (2001). The court, however, did not simply identify defense counsel’s improper comment and instruct the jury to disregard the comment. Instead, the court concluded that the comment “invited” or opened the door for the court affirmatively to take judicial notice of Carlton Martin’s conviction.

“It is a well-accepted principle that evidence about the conviction of a co-conspirator is not admissible as substantive proof of the guilt of a defendant. . . . Indeed, improper use of a co-conspirator’s conviction infringes on the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.” (Citations omitted; internal quotation marks omitted.) Id., 513.

“[A] defendant is entitled to have the question of his guilt determined upon the evidence against him, not on whether a codefendant or government witness has been convicted of the same charge. . . . Generally, the guilty plea or conviction of a co-defendant or co-conspirator is not admissible at trial, and such guilty pleas and convictions are never admissible as substantive evidence of the defendant’s guilt.” (Citation omitted; internal quotation marks omitted.) Id., 510-11; see also State v. Just, 185 Conn. 339, 347-48, 441 A.2d 98 (1981) (fact that person jointly charged with crime pleaded guilty not admissible on trial of another person so charged to establish that crime was committed); State v. Pikul, 150 Conn. 195, 198, 187 A.2d 442 (1962) (same).

There are, however, certain permissible purposes for the use of guilty pleas and convictions of alleged coconspirators or accomplices at trial. For example, guilty pleas and convictions maybe used to impeach the credibility of a testifying coconspirator or codefendant so that the fact finder will have appropriate facts on hand to assess the witness’ credibility. State v. Butler, supra, 55 Conn. App. 511; see also State v. Just, supra, 185 Conn. 343-48; State v. Pikul, supra, 150 Conn. 198-99. In addition, a court may take judicial notice of a testifying accomplice’s or witness’ conviction or guilty plea to a charge based on facts unrelated to those involved in the information against the defendant for purposes other than proving the defendant’s guilt. See State v. Taylor, 153 Conn. 72, 85-86, 214 A.2d 362 (1965), cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 (1966).

In the present case, although Carlton Martin was called as a witness to testify at the defendant’s trial, his conviction was not offered or used to impeach his credibility. Furthermore, Carlton Martin’s conviction was not for crimes based on facts unrelated to those involved in the information against the defendant; rather, it was for crimes involving the same factual situation alleged in the information against the defendant, which specifically alleged that the defendant and Carlton Martin were participants in the crimes.

Although the state maintains that defense counsel’s remarks during closing argument invited or opened the door for the court to inform the jury of Carlton Martin’s conviction, we note that the “opening the door” or “invited error” doctrine “cannot ... be subverted into a rule for injection of prejudice.” (Internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 653, 789 A.2d 519, cert. denied, 261 Conn. 938, 808 A.2d 1133 (2002); see footnote 15. Moreover, the court has inherent authority to prevent the jury from being influenced by matters that might prejudice its deliberations. See generally State v. Dorans, 261 Conn. 730, 755, 806 A.2d 1033 (2002) (recognizing trial court’s inherent authority to exclude conviction otherwise qualifying for admission when prejudicial tendency outweighs probative value); State v. Crnkovic, 68 Conn. App. 757, 764-65, 793 A.2d 1139 (court must undertake balancing test before admitting evidence of witness’ conviction to determine if probative value outweighs any prejudicial impact), cert. denied, 260 Conn. 925, 797 A.2d 521 (2002); Conn. Code Evid. §§ 6-7 (a), 4-3. “Evidence is prejudicial when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” (Internal quotation marks omitted.) State v. Feliciano, 256 Conn. 429, 454, 778 A.2d 812 (2001); State v. Rivera, 74 Conn. App. 129, 151, 810 A.2d 824 (2002).

In State v. Butler, supra, 55 Conn. App. 506-19, we held that a prosecutor’s comment during closing argument regarding the outcomes of the trials of the defendant’s coconspirators deprived the defendant of his due process right to a fair trial. We explained that in criminal cases, “referring to what another jury may have done is clearly improper because the defendant’s jury cannot permissibly rely on what they may assume a previous jury to have found. . . . Such conduct raises the concern that a defendant might be convicted based upon the disposition of the charges against the [co-conspirator], rather than upon an individual assessment of the remaining defendant’s personal culpability.” (Citation omitted; internal quotation marks omitted.) Id., 513.

The concerns discussed in Butler extend to cases where, as here, the disclosure of the coconspirator’s conviction is made by the court; when the court provides the jury with such information, the potential for prejudice is substantial. “A judge presiding at a jury trial occupies a role of inherent power and dignity that commands a deference from the jury impossible to appraise precisely. What he tells the jury . . . has great weight with them.” (Internal quotation marks omitted.) State v. Loughlin, 149 Conn. 21, 27, 175 A.2d 367 (1961). “It is enough to say that the trial judge is the arbiter of the many circumstances which may arise during a trial in which his function is to assure a fair and just outcome.” State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970); State v. Jennings, 5 Conn. App. 500, 508, 500 A.2d 571 (1985).

In light of the foregoing principles and the specific facts and circumstances of this case, we conclude that the court abused its discretion by taking judicial notice of the conviction of the defendant’s alleged coconspirator and accomplice during its final instructions to the jury, thereby providing the jury with unduly prejudicial matter for deliberation. The court’s improper comment deprived the defendant of his due process right to a fair trial and warrants a new trial.

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

In this opinion the other judges concurred.

       In addition to his claim regarding judicial notice, which is his third claim on appeal, the defendant also claims that the court improperly (1) concluded that the prerequisites for admissibility of certain evidence had been satisfied under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), when Carlton Martin refused to answer questions by reason of his fifth amendment privilege, (2) permitted Carlton Martin’s invocation of his fifth amendment privilege to occur in the jury’s presence (a) after an offer of proof made clear that the witness was going to invoke his privilege and (b) where the court’s attempted curative instruction failed to remove the prejudice caused thereby, and (4) failed to charge the jury as requested by the defendant on the affirmative defense to felony murder set forth in General Statutes § 53a-54c, when sufficient evidence existed regarding the statutory prerequisites for that defense.

       Because we resolve the defendant’s third claim regarding judicial notice in his favor, we do not address his remaining claims because they are not likely to arise in a new trial. See footnote 18.

       For a more complete recitation of the facts underlying the criminal prosecutions brought against the defendant and Carlton Martin, see State v. Martin, 77 Conn. App. 778, 825 A.2d 835 (2003).

       Initially, the defendant was charged with felony murder and robbery in the first degree. The defendant’s case also was joined initially with Carlton Martin’s case, but on October 10, 2000, after jury selection, the cases were severed and Carlton Martin was tried first. Carlton Martin was convicted ol' felony murder, robbery in the first degree and five counts of tampering with a witness. See Martin v. Flanagan, 259 Conn. 487, 489, 789 A.2d 979 (2002); State v. Martin, 77 Conn. App. 778, 825 A.2d 835 (2003). Thereafter, on November 14, 2000, the state filed the long form information charging the defendant with the additional count of conspiracy to commit robbery in the first degree.

       The first count of the long form information charged the defendant with conspiracy to commit robbery in the first degree and alleged that “on or about January 18,1999, [the defendant] did, with intent that conduct constituting a crime, to wit: Robbery in the First Degree, be performed, agree with another person, to wit: Carlton Martin, to engage in or cause the performance of such conduct, and either he or Carlton Martin committed an overt act, to wit: entering Gallo’s Hi-Way Package store while either [the defendant] or Carlton Martin was armed with a deadly weapon in pursuance of such conspiracy, in violation of Sections 53a-48 and 53a-134 (a) (2) of the Connecticut General Statutes
      The second count charged the defendant with robbery in the first degree and alleged that “at approximately 10:30 a.m. on or about January 18, 1999 at Gallo’s Hi-Way Package Store . . . [the defendant] did, in the course of committing a larceny, use or threaten the immediate use of physical force upon another person, to wit: Robert Gallo, for the purpose of preventing or overcoming resistance to the taking of the property, to wit: bottles of liquor, or to the retention thereof immediately after the taking, or compelling the owner of such property or another person to deliver up such property, and in the course of the commission of the robbery or of immediate flight therefrom, he or another participant in the crime, to wit: Carlton Martin, was armed with a deadly weapon, to wit: a Titan .25 caliber pistol, in violation of Section 53a-133 and 53a-134 (a) (2) of the Connecticut General Statutes . . . .”
      The third count charged the defendant with felony murder and alleged that “at approximately 10:30 a.m. on or about January 18, 1999 at Gallo’s Hi-Way Package Store . . . [the defendant] did, acting with one other person, to wit: Carlton Martin, commit or attempt to commit robbery and, in the course of and in furtherance of such crime or flight therefrom, he, or another participant, to wit: Carlton Martin, caused the death of a person, to wit: Robert Gallo, who was not a participant in the crime of robbery, and who died as a result of gunshot wounds to the head and neck, in violation of Section 53a-54c of the Connecticut General Statutes.”

       On February 16, 2001, prior to sentencing, the court denied the defendant’s motion for a judgment of acquittal and denied without prejudice his motion for a new trial.

       The defendant neither specifically invokes our state constitution nor provides an independent analysis of his claim pursuant to the state constitution. Accordingly, we limit our analysis to the protection afforded by the federal constitution. See State v. Wright, 246 Conn. 132, 138, 716 A.2d 870 (1998); State v. Butler, 55 Conn. App. 502, 505 n.2, 739 A.2d 732 (1999), aff'd, 255 Conn. 828, 769 A.2d 697 (2001).

       The state filed a motion in limine indicating its intention to call Carlton Martin as a witness at the defendant’s trial. Counsel for both Carlton Martin and the defendant objected on several grounds, including the expected invocation by Carlton Martin of his privilege against self-incrimination. In an offer of proof, Carlton Martin was called as a witness for questioning, outside the presence of the jury, so that the court could rule on the admissibility of his testimony. See Martin v. Flanagan, 259 Conn. 487, 490-93, 789 A.2d 979 (2002) (setting forth details involving Carlton Martin’s invocation of privilege against self-incrimination while being questioned outside presence of jury at defendant’s trial).

       Carlton Martin sought a writ of error from the trial court’s determination, claiming that the court improperly rejected his assertion of his fifth amendment privilege not to testify and improperly held him in contempt for refusing to testify at the defendant's trial. Martin v. Flanagan, 259 Conn. 487, 489, 789 A.2d 979 (2002). Our Supreme Court agreed and determined that Carlton Martin “properly invoked his privilege” at the defendant’s trial. Id., 494. The court explained that a waiver of the privilege against self-incriroinaüon in one proceeding does not affect the rights of a witness in another, separate proceeding; id., 496-99; and, accordingly, concluded that the trial court’s determination that Carlton Martin could not invoke the privilege at the defendant’s trial was improper. Id., 499-503.

       The questions posed to Carlton Martin in the presence of the jury, to which he invoked his privilege against self-incrimination at the defendant’s trial, are summarized in Martin v. Flanagan, 259 Conn. 487, 492-93, 789 A.2d 979 (2002).

       Section 2-1 of the Connecticut Code of Evidence provides: “(a) Scope of section. This section governs only judicial notice of adjudicative facts.
      “(b) Taking of judicial notice. A court may, but is not required to, take notice of matters of fact, in accordance with subsection (c).
      “(c) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration.
      “(d) Time of taking judicial notice. Judicial notice may be taken at any stage of the proceeding.
      “(e) Instructing jury. The court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.”

       The state, in its rebuttal argument, remarked: “You heard [defense counsel] tell you that [the defendant] and Carlton Martin are not guilty. You will hear from [the trial judge] with respect to Carlton Martin." (Emphasis added.)

       “[T]he scope of final argument, lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. ... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations. . . .
      “Our Supreme Court frequently has stressed the importance of restricting comments made during closing arguments to matters related to the evidence before the jury. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury have no right, to consider.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Rios, 74 Conn. App. 110, 119, 810 A.2d 812 (2002), cert. denied, 262 Conn. 945, 815 A.2d 677 (2003).

       The court could have commented on defense counsel’s argument by warning the jury that it should not involve itself in conjecture or surmise regarding the disposition of any charges against Carlton Martin, and that defense counsel's argument as to his being “not, guilty” was not evidence and should not be considered as such.

       Generally, a party who delves into a particular subject or initiates discussion on an issue is said to have “opened the door” to rebuttal by the opposing party or to a response by the court. State v. Lewis, 67 Conn. App. 643, 652-53, 789 A.2d 519, cert. denied, 261 Conn. 938, 808 A.2d 1133 (2002). As we stated in State v. Butter, supra, 55 Conn. App. 502, however, the “opening the door” or “invited error” doctrine does not stand for the proposition that “two wrongs make a right.” (Internal quotation marks omitted.) Id., 512 n.5. “The doctrine of opening the door cannot ... be subverted into a rule for injection of prejudice. . . . The trial court must carefully consider whether the circumstances of the case warrant further inquiry into [or discussion of] the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original [discussion or] evidence.” (Intemal quotation marks omitted.) State v. Lewis, supra, 653.

       Section 6-7 (a) of the Connecticut Code of Evidence provides: “For the purpose of impeaching the credibility of a witness, evidence that a witness has been convicted of a crime is admissible if the crime was punishable by imprisonment for more than one year. In determining whether to admit evidence of a conviction, the court shall consider:
      “(1) The extent of the prejudice likely to arise,
      “(2) the significance of the particular crime in indicating untruthfulness, and
      “(3) the remoteness in time of the conviction.” (Emphasis added.)

       Section 4-3 of the Connecticut Code of Evidence provides: “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.”

        That discretionary rule of exclusion is not limited just to issues of relevancy, but applies to the admission of all types of evidence and it applies to each section of the code even though not expressly referenced therein. C. Tait, supra, § 4.7.2, p. 207.

       As previously indicated, because we resolve the defendant’s third claim regarding judicial notice in his favor and remand the case for a new trial, we would address his remaining claims if they were likely to arise in the new trial. See footnotes 1 and 2. As to his first claim, we note only that it is predicated on the court’s determination that Carlton Martin could not invoke his privilege against self-incrimination at the defendant’s trial and conclude that this issue is not likely to recur in the new trial in light of our Supreme Court’s holding in Martin v. Flanagan, 259 Conn. 487, 499-503, 789 A.2d 979 (2002) (concluding that trial court’s determination that Carlton Martin could not invoke privilege at defendant’s trial was improper); see footnote 9. Accordingly, we do not reach that claim. As to the defendant’s second and fourth claims, we note that because we do not know the course of events that will transpire or what evidence will be presented at the defendant’s new trial, we do not reach those claims.


text:
    METROPOLITAN DISTRICT COMMISSION v. LOCAL 184, COUNCIL 4, AFSCME, AFL-CIO, ET AL.
    (AC 22641)
    Foti, Dranginis and Hennessy, Js.
    Argued February 24
    officially released July 8, 2003

      J. William Gagne, Jr., with whom, on the brief, was P. Jo Anne Burgh, for the appellants (defendants).

      Bourke G. Spellacy, with whom, on the brief, were Bernard E. Jacques and Barbara A. Frederick, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

The defendants, Local 184, Council 4, AFSCME, AFL-CIO (union), and William Rodriguez, appeal from the judgment of the trial court granting the application of the plaintiff, Metropolitan District Commission, to vacate an arbitration award. On appeal, the defendants claim that the court improperly vacated the arbitration award on the ground that the arbitrators’ award violated public policy. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to the defendants’ appeal. Rodriguez was an employee of the plaintiff. The plaintiff operates a facility under a contract with the Connecticut Resources Recovery Authority (CRRA) to receive solid waste from participating towns. The plaintiff then converts that waste into a fuel product that can be burned to produce steam to drive turbines, which, in turn, generate electricity. In operating the facility, the plaintiff is contractually obligated to follow certain procedures that are dictated by the CRRA. Pursuant to those procedures, only trucks with permits are allowed to enter the facility to dump solid waste materials. Furthermore, CRRA prohibits certain wastes from being dumped at the plaintiffs facility and prohibits the plaintiff from accepting waste on Saturday afternoons, Sundays and some legal holidays. Although the plaintiff does not accept waste during those times, it continues to operate the facility to ensure that CRRA has adequate fuel to meet its generating capacity and to provide security for the facility. Two operators are assigned to work during the time that the plaintiffs facility is closed for dumping. Those operators are responsible for feeding the power block and for providing security.

In response to a rash of vandalism, the plaintiff installed fifteen security cameras throughout its facility with the knowledge and consent of the union. On Tuesday, October 27,1998, an employee advised the manager of the plaintiffs facility to review the security tapes from the previous Sunday, October 25, 1998. A review of those tapes revealed that on the previous Sunday, a large truck had entered the facility and dumped a load of unidentified material. After dumping the material, the truck drove around to the rear of the facility, an area that is off limits to nonemployees. The truck approached one of the plaintiffs employees. It later was determined that that employee was Sebastian Stevens. After conversing for a short time with the occupants of the truck, Stevens went to the dumping floor and moved the materials that the truck had just dumped to an existing waste pile.

The plaintiff conducted an investigation into the events of October 25, 1998. As part of its investigation, the plaintiffs manager interviewed Stevens because Stevens was one of the two employees on duty at the facility on the date of the incident. After the interview, the manager decided that he would discipline Stevens because Stevens had failed to report that an unauthorized truck had entered the facility and dumped materials, and because he was evasive when questioned by the manager. The plaintiff scheduled Stevens’ disciplinary hearing for November 20,1998. On November 19,1998, Rodriguez, accompanied by two union stewards, approached the manager and handed him a written statement. In that statement, Rodriguez admitted that he was an occupant of the truck that entered the facility on Sunday, October 25,1998. Upon learning that Rodriguez was an occupant of the truck, the manager immediately suspended Rodriguez.

Subsequently, the plaintiff scheduled a disciplinary hearing for Rodriguez. At Rodriguez’ disciplinary hearing, he admitted that he had escorted an unauthorized truck onto the property, dumped unidentified materials, and breached rules and procedures that were designed to safeguard the public and the facility of the plaintiff. On the basis of those facts, the plaintiff terminated Rodriguez’ employment.

Thereafter, the union filed a grievance on Rodriguez’ behalf challenging his termination. In accordance with the collective bargaining agreement between the union and the plaintiff, the parties submitted the grievance to arbitration. The issues before the three member arbitration panel were as follows: (1) “Was the termination of the employment relationship of Mr. William Rodriguez on November 20, 1998 for just cause?” and (2) “If not, what shall the remedy be?”

The arbitration panel conducted a hearing and, on March 14, 2000, issued its award in which it concluded that the plaintiff had terminated Rodriguez’ employment without just cause. The panel explained that in making its determination as to whether the plaintiffs termination of Rodriguez was for just cause, it looked to the “rule” that the plaintiff claimed Rodriguez had violated. The panel determined that although there were rules and regulations posted at the plaintiffs facility, those rules pertained to processing vehicles passing through the gatehouse or weighing station prior to unloading. The panel further determined that the purpose of the rules and regulations was to collect the appropriate fees for dumping, and that to bypass the rules and regulations meant the possible loss of revenue to the plaintiff.

The panel concluded that because Rodriguez chose to dump materials during the weekend, a time period when the facility was closed for dumping and when there was no supervisor present, Rodriguez probably knew that the practice of dumping without a permit was not allowed. The panel concluded, however, that there was no evidence that Rodriquez knew that his misconduct was of the sort that could subject him to the termination of his employment. Finally, the panel concluded that the plaintiffs claim that it did not know what materials were dumped by Rodriguez was less than accurate because during its investigation, the plaintiff discovered what type of materials Rodriguez had dumped, and the plaintiff failed to show how the material that was dumped would potentially cause it to lose its contract with CRRA. Although the panel was unanimous in its decision that Rodriguez’ misconduct warranted some form of discipline because his actions had led to other employees being disciplined, the panel also unanimously agreed that Rodriguez’ misconduct was not so egregious that it warranted the termination of his employment. Consequently, in its award, the panel reduced the termination to a two week suspension without pay.

The plaintiff applied to the trial court to vacate the arbitration award, claiming that given the undisputed facts and evidence, an award that ordered anything less than full termination of employment violated public policy. It argued that Rodriguez knew the rules regarding the dumping of waste at the plaintiffs facility, that he admitted that he violated those rules and that his conduct was, therefore, in direct contravention of state laws and policy regarding the dumping of solid waste. The defendants filed an objection to the motion to vacate in which they argued that the plaintiff had failed to identify any explicit, well defined and dominant public policy that would be violated by the award. Thereafter, the plaintiff filed a reply brief in support of its application to vacate the arbitration award. In its brief, the plaintiff argued that the award reinstating Rodriguez violated at least two explicit mandates of public policy, namely: (1) the public policy of protecting the environment to enhance the health, safety and welfare of the people of the state, as set forth in General Statutes §§ 22a-1 and 22a-15, and (2) the public policy against requiring an employer to reinstate an employee who has admitted to committing what amounts to embezzlement, as set forth in Groton v. United Steelworkers of America, 254 Conn. 35, 48, 757 A.2d 501 (2000).

The court granted the plaintiffs application to vacate the arbitration award. It concluded that Connecticut has a comprehensive scheme for solid waste management, as found in General Statutes § 22a-207 et seq., the Solid Waste Management Act, and that Rodriguez’ actions violated that policy. The court also concluded that Rodriguez’ actions deprived the plaintiff of revenue and, therefore, his conduct was analogous to the conduct of the employee in Groton v. United Steelworkers of America, supra, 254 Conn. 35, in which our Supreme Court held that “the public policy against embezzlement encompasses the policy that an employer should not be compelled to reinstate an employee who has been convicted of embezzling the employer’s funds, irrespective of whether the conviction followed a trial, a guilty plea or a nolo contendere plea.” Id., 48. The defendants filed a motion for reargument and reconsideration, which the court granted. After hearing reargument, the court declined to change its decision. This appeal followed.

I

The defendants claim that the court improperly vacated the arbitration award as violative of public policy because the plaintiff failed to demonstrate the existence of any explicit, well defined and dominant public policy that would be violated by an award reinstating Rodriguez. We agree.

We begin our analysis of the defendants’ claim by setting forth the general rule regarding arbitration awards. “The standard of review relative to arbitration awards depends on the nature of the challenge. With a voluntary, unrestricted submission to an arbitrator, as is the case before us, the court may only examine the submission and the award to determine whether the award conforms to the submission. ... In making such a comparison when the submission is unrestricted, the court will not review the evidence or legal questions involved, but is bound by the arbitrator’s legal and factual determinations. . . .

“Certain conditions do exist, however, under which we conduct a more searching review of arbitral awards. In Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992), our Supreme Court reiterated that there are three grounds for vacating an award when the submission is unrestricted. These grounds arise when the award (1) rules on the constitutionality of a statute, (2) violates clear public policy or (3) contravenes one or more of the statutory proscriptions of General Statutes § 52-418.” (Citations omitted; internal quotation marks omitted.) State v. AFSCME, Council 4, Local 2663, AFL-CIO, 59 Conn. App. 793, 796, 758 A.2d 387, cert. denied, 255 Conn. 905, 762 A.2d 910 (2000). In the present case, the defendants’ challenge implicates only the second exception; accordingly, it will be the focus of our discussion.

In Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 747 A.2d 1017 (2000), our Supreme Court enunciated the proper standard of review for determining whether an arbitral decision violates a clear public policy. It stated: “Where there is no clearly established public policy against which to measure the propriety of the arbitrator’s award, there is no public policy ground for vacatur. If, on the other hand, it has been determined that an arbitral award does implicate a clearly established public policy, the ultimate question remains as to whether the award itself comports with that policy. We conclude that where a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy.” Id., 429.

“Recently, this court had the opportunity to clarify the standard annunciated in Schoonmaker. In State v. AFSCME, Council 4, Local 2663, AFL-CIO, supra, 59 Conn. App. 797, we held that Schoonmaker require[s] a two-step analysis in cases such as this one in which a party raises the issue of a violation of public policy in an arbitral award. First, we must determine whether a clear public policy can be identified. Second, if a clear public policy can be identified, we must then address the ultimate question of whether the award itself conforms with that policy.” (Internal quotation marks omitted.) Cheverie v. Ashcraft & Gerel, 65 Conn. App. 425, 432, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001). The court in the present case relied on two separate public policy bases. We must, therefore, determine whether either of the public policy bases relied on by the court for vacating the arbitration award satisfied that two step analysis.

A

First, the court concluded that Connecticut has a public policy regarding solid waste management, as found in § 22a-207 et seq., and that Rodriguez had violated that public policy.

We agree that § 22a-207 et seq. sets forth an explicit and well defined public policy regarding the disposal and reduction of solid waste. See, e.g., City Recycling, Inc. v. State, 247 Conn. 751, 755, 725 A.2d 937 (1999). The award in the present case implicates that public policy because Rodriguez was reinstated to employment at the plaintiffs facility, which must comply with the solid waste management act. Accordingly, the plaintiff has succeeded in identifying a clearly established public policy against which to measure the propriety of the arbitration award.

Because the plaintiff has identified a clear public policy, we must, therefore, address the ultimate question of whether the plaintiff demonstrated that the arbitration award of reinstatement clearly violated that public policy because “[t]he public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy.” (Emphasis added; internal quotation marks omitted.) Groton v. United Steelworkers of America, supra, 254 Conn. 45. The court seemed to conclude that the plaintiff had met its burden of showing that the award clearly violated that public policy because Rodriguez admitted at the disciplinary hearing that he had “dumped unidentified material, escorted a truck onto the property, and breached rules and procedures designed to safeguard the public and the facility.” We disagree.

Although, as the court noted, Rodriguez admitted at the disciplinary hearing that he had dumped unidentified material, the arbitration panel expressly found that the materials that Rodriguez dumped were not “unidentified.” The panel further found that the plaintiff had conducted an investigation into the dumping incident and, on the basis of its investigation, learned what type of materials Rodriguez had dumped and that the plaintiff failed to show how those materials would potentially cause it to lose its contract with CRRA. From those findings, it is reasonable to infer that if the material that Rodriguez dumped was material that the plaintiff was prohibited by CRRA from accepting at its facility or the solid waste management act, the plaintiff would have offered evidence of that fact at the arbitration hearing.

Additionally, as the court noted, Rodriguez also admitted at the disciplinary hearing that he had violated rules and procedures designed to safeguard the public and the facility. The panel found that the rules that were posted at the facility by the plaintiff applied to how vehicles should be processed through the weigh stations and how the appropriate fees were to be collected. The plaintiff, however, failed to demonstrate that the rules and procedures that Rodriguez bl eached were anything other than the internal rules and procedures of the plaintiff. Internal “directives are not in and of themselves determinative of public policy. Internal practices and procedures may reflect public policy but those practices and procedures do not determine that policy.” (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 476 n.10, 747 A.2d 480 (2000). Finally, although Rodriguez dumped waste without a permit on a Sunday afternoon in violation of CRRA regulations, the plaintiff failed to articulate, or even allege, that those regulations reflected the public policy encapsulated in the solid waste management act.

This court’s role “in addressing a public policy challenge has been confined largely to determining whether, as gleaned from a statute, administrative decision or case law, there exists a public policy mandate with which an arbitral award must conform.” Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., supra, 252 Conn. 428. In the present case, the court determined that there is a public policy regarding solid waste disposal as gleaned from a statutory scheme, the solid waste management act. The plaintiff failed, however, to cite any particular provisions of the solid waste management act that Rodriguez had violated. Furthermore, it failed to cite the particular provisions of the act that would be violated by reinstating Rodriquez to his previous position. In fact, in its application to vacate the award, the plaintiff set forth only a very general claim that Rodriguez’ conduct was in direct contravention of state law and policy regarding solid waste disposal; it did not even cite the statutory scheme regarding solid waste management that was relied on by the court in vacating the award. Instead, the plaintiff relied on §§ 22a-1 and 22a-15 for its claim that the award violated this state’s public policy of protecting the environment to enhance the health, safety and welfare of the people of this state.

On the basis of the foregoing, we conclude that the plaintiff failed to meet its burden of demonstrating that the arbitration award reinstating Rodriguez clearly violated the public policy set forth in the solid waste management act and, therefore, that the court improperly vacated the arbitration award on that basis.

B

Second, the court concluded, in reliance on Groton v. United Steelworkers of America, supra, 254 Conn. 35, that the arbitration award reinstating Rodriguez violated the clear public policy against requiring employers to reinstate employees who have embezzled from them. The defendants claim that the court improperly vacated the arbitration award as violative of the public policy set forth in Groton. In making that determination, we must, again, employ the two step analysis that we set forth in State v. AFSCME, Council 4, Local 2663, AFL-CIO, supra, 59 Conn. App. 797, namely, we must first determine whether a clear public policy can be identified and, if so, we must then address whether the award conflicts with that policy.

We conclude that the plaintiff has failed to meet its burden of identifying a clear public policy because it has failed to demonstrate how the policy set forth in Groton was implicated in this case. The narrow issue in Groton v. United, Steelworkers of America, supra, 254 Conn. 35, was “whether an arbitral award, which reinstated to employment an employee who had been convicted of embezzlement of his employer’s funds following a plea of nolo contendere, violates public policy.” Id., 36. In that case, the employee had worked for the town as a weighmaster at the town landfill. Id., 37. His duties included selling landfill permits to residents. Id. He was responsible for accounting for the permits and for turning over the money he received from sales to the town. Id. The employee was charged by the Groton police with two counts oflarceny by embezzlement and one count of violating a town ordinance. Id., 37-38. Those charges arose out of allegations that the employee had sold permits and kept the proceeds of those sales for himself. Id., 38. As part of a plea agreement, the state agreed to drop one of the larceny counts and the municipal ordinance count in exchange for the employee’s plea of nolo contendere to the remaining larceny count. Id. The employee accepted the plea agreement. Id. The town discharged the employee on the basis of his larceny conviction. Id.

Thereafter, the defendant union filed a grievance on the employee’s behalf, challenging the termination of his employment. Id., 39. The grievance was ultimately submitted to arbitration. Id. The arbitrator determined that the conviction did not establish just cause for termination. Id., 41. The town applied to the trial court to vacate the award. Id., 43. The court rendered judgment vacating the award. Id. The defendants appealed, arguing that the court improperly applied the public policy exception to the general rule of deference regarding arbitrator’s awards because the employee’s conviction was based on a plea of nolo contendere and therefore that the conviction could not be used to establish that he had, in fact, embezzled from his employer or be given any other effect. Id. Our Supreme Court disagreed. It concluded that the award reinstating the employee “violated the clear public policy against embezzlement, and that this policy encompasses the policy that an employer may not be required to reinstate the employment of one who has been convicted of embezzlement of his employer’s funds, whether that conviction follows a trial, a guilty plea, or a plea of nolo contendere.” (Emphasis added.) Id., 46-47.

In the present case, Rodriguez was neither charged with nor convicted of embezzlement or any other crime. Furthermore, there was no finding by the arbitration panel that Rodriguez admitted that he committed theft. Instead, he admitted to breaking rules, which meant the possible loss of revenues to the plaintiff.

Even if we assume arguendo that the plaintiff has successfully demonstrated that the public policy set forth in Groton was implicated, we would conclude that the plaintiff has failed to demonstrate how the arbitration award reinstating Rodriguez clearly violates that public policy. We conclude that Groton is distinguishable from the present case. In Groton, the employee was charged and convicted of a crime. Here, Rodriguez was neither charged with nor convicted of embezzlement or any other crime.

Furthermore, a factor that figured prominently in our Supreme Court’s determination that reinstatement of the employee in Groton was repugnant to public policy was the fact that the employee in the Groton case held a position of financial trust. Id., 48. The court concluded that requiring the employer to reinstate that employee to such a position undermined the legitimate expectations of the employer, namely, that an employer is entitled to expect that it should be able to trust an employee in a position of financial responsibility and that an employer also is entitled to expect that other employees and members of the public will feel that they can trust that employee. Id., 48-49. In the present case, there is no indication as to the nature of the position held by Rodriguez. Moreover, the cases that have held that a court properly vacated an arbitration award that compelled reinstatement of an employee usually involved some apparent and egregious misconduct on the part of the employee. See id., 35 (employee arrested and convicted of larceny of employer’s funds); State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. 467 (employee arrested for making harassing telephone calls on state telephone during working hours granted accelerated rehabilitation); State v. AFSCME, Council 4, Local 2663, AFL-CIO, supra, 59 Conn. App. 793 (employee, who was driver for department of children and families, arrested and convicted of possession of marijuana, cocaine with intent to sell); Board of Education v. Local 566, Council 4, AFSCME, 43 Conn. App. 499, 683 A.2d 1036 (1996) (employee convicted of embezzling union funds demoted to position where he would not be responsible for publicly owned property), cert. denied, 239 Conn. 957, 688 A.2d 327 (1997); State v. Council 4, AFSCME, 27 Conn. App. 635, 608 A.2d 718 (1992) (employee arrested for stealing state funds granted accelerated rehabihtation). We conclude that the misconduct at issue in this case did not rise to that level. Accordingly, the court improperly vacated the arbitration award on the ground that it violated the public policy set forth in Groton.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs application to vacate the arbitration award.

In this opinion the other judges concurred.

       In the record, Rodriguez is, at times, referred to as the operator of the vehicle and, at other times, an occupant of the vehicle.

       The award stated as follows: “Grievance is sustained in part. The termination of the employment relationship of Mr. William Rodriguez on November 20, 1998 was not for just cause. [Rodriguez] shall be suspended for two weeks without pay. He shall be paid all lost wages for the period of his suspension, less any wages earned during the period in question.”

         In the present case, the parties did not dispute that the submission was unrestricted.

       The record reveals that Rodriguez dumped cut brush, a material that the plaintiff was not prohibited from accepting at its facility.

       General Statutes § 22a-l provides in relevant part that “the policy of the state of Connecticut is to conserve, improve and protect its natural resources and environment and to control air, land and water pollution in order to enhance the health, safety and welfare of the people of the state. . . .”
      General Statutes § 22a-15 provides in relevant part that “there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same. . . .”

       By means of our analysis, we do not imply that Rodriguez’ conduct constituted embezzlement. See General Statutes § 53a-119; see also State v. Lizzi, 199 Conn. 462, 467, 508 A.2d 16 (1986) (“crime of embezzlement is consummated where . . . the defendant, by virtue of his agency or other confidential relationship, has been entrusted with the property of another and wrongfully converts it to his own use”).


author: BISHOP, J.

text:
    LEGA SICILIANA SOCIAL CLUB, INC. v. ROBERT ST. GERMAINE, SR.
    (AC 23071)
    Lavery, C. J., and Bishop and West, Js.

      Argued March 24
    officially released July 8, 2003

      Alvin Rosenbaum, for the appellant (plaintiff).

      Eddi Z. Zyko, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff corporation, Lega Siciliana Social Club, Inc. (club), appeals from the judgment of the trial court rendered in favor of the defendant, Robert St. Germaine, Sr., following the granting of the defendant’s motion for summary judgment. On appeal, the plaintiff claims that the court improperly (1) concluded that the allegedly defamatory statements by the defendant with reference to the plaintiff were not libelous per se, (2) concluded that the plaintiff had not shown that it suffered actual damages and (3) revisited the issue of damages, which had been previously decided by another judge when the defendant’s motion to strike was granted. In response, the defendant claims that the court properly granted the motion for summary judgment not only on the grounds adopted by the court, but also because all of his statements about the plaintiff were made in the course of a quasi-judicial proceeding or in an attempt to initiate such a proceeding and, thus, were protected statements entitled to absolute privilege. We reverse the judgment of the trial court.

As a preliminary matter, we set forth our standard of review. “Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citation omitted; internal quotation marks omitted.) Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 188, 819 A.2d 765 (2003).

A review of the documents submitted in conjunction with the motion for summary judgment reveals the following undisputed facts. At some point in 1994, the plaintiff purchased from the city of Waterbury a former school building, Roosevelt School, for use as a private social club, whose regular membership is restricted to native bom Sicilians or natural bom Americans of Sicilian ancestry. Thereafter, it sought and received a zone change from the Waterbury zoning board, despite objection from the defendant, a resident of the Norton Heights neighborhood of Waterbury, and other residents.

Approximately five years later, in 1999, the plaintiff applied for and obtained a liquor license for the club. The defendant was unhappy that he was not provided with “adequate notice” that the club had applied for the liquor license. In the defendant’s view, the granting of a liquor license along with other operations of the club led to increased traffic and noise, which adversely affected the residents by destroying the privacy, seclusion and quiet character of their residential community.

On or about October 24, 1999, well after the plaintiff had received approval of its liquor license, the defendant sent a letter to Nicholas Augelli, president of the board of aldermen of the city of Waterbury, in which the plaintiff detailed his concerns regarding the club. A copy of that letter was sent to the minority leader of the board of aldermen and the zoning board. At the time the letter was sent, there were no proceedings pertaining to the club pending before either the board of aldermen or the Waterbury zoning board.

In the letter, the defendant detailed his dissatisfaction with the increased traffic and noise that he believed stemmed from club activities and the granting of the liquor license. He also chronicled his failed attempts to persuade his elected officials to take action. In the letter, he stated: “Now that the Liquor Permit has been granted, we are seeing even more activity at the club, with parties and gatherings. Cars are parked on both sides of the narrow road and even spilling over the adjacent streets. Our quiet neighborhood is no more!”

On the basis of its belief that the letter contained defamatory statements, the plaintiff commenced this action. The statements in question are as follows:

“The rumors with the elderly go from [members of the club] having political connections in both state and local, to Mafia connections to rubber stamp whatever they want. We wish to live out our lives without fear. They as Italians do have the ethnic [muscle] to influence policy in both state and city [department] on the side of what is in their best interest for their Social Club. . . .

“Would Club Members allow another ethnic group to invade their [families’] quality of life as they are doing to us. . . .

“Due to rumors of Mafia and political connections my own wife would not sign the petitions for fear of having someone setting our house on fire. . . .”

In response to the complaint, dated May 15, 2000, the defendant filed a motion to strike on the grounds that (1) the allegedly defamatory statements were not made about the club, but rather its members and, therefore, the club did not have standing to sue; (2) the club failed to set forth any facts in its complaint that sufficiently allege defamation; (3) the complaint was legally insufficient and did not state a claim upon which relief can be granted because the defendant was privileged to make all statements; (4) the complaint was legally insufficient because the club did not allege that the defendant acted with malice; (5) the complaint was legally insufficient because the club did not plead any cognizable damage or harm because a corporation does not have a reputation that can be injured by the alleged acts; and (6) the club’s prayer for relief was insufficient because it did not correspond or was not supported by the allegations. The court denied the motion to strike on the grounds that the club’s allegations sufficiently set forth a cause of action for defamation and libel per se, and that the club was not required, as a matter of law, to plead actual or special damages.

Subsequently, the defendant filed a motion for summary judgment in which he denied making the statements, claimed that the statements were not libelous per se and that the plaintiff had not shown any “cognizable damage or harm” to its reputation. The court granted the motion. This appeal followed. Additional facts will be set forth as necessary.

The dispositive issue on appeal is whether, in granting the motion for summary judgment, the court properly concluded that the publication by the defendant of the subject letter did not constitute libel per se.

The court granted the defendant’s motion for summary judgment on the ground that the allegedly defamatory statements did not constitute libel per se. The court further concluded that because the statements were not libelous per se, to prevail, the plaintiff had to show “cognizable damage or harm” to its reputation to survive a motion for summary judgment. On the basis of the documents filed in conjunction with the motion for summary judgment, the court concluded that the plaintiff had shown no “cognizable damage or harm” as a consequence of the defendant’s allegedly libelous statements.

We begin our resolution of the plaintiffs first claim with a brief overview of the law of defamation. “Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him. . . . Slander is oral defamation.” (Citation omitted; internal quotation marks omitted.) DeVito v. Schwartz, 66 Conn. App. 228, 234, 784 A.2d 376 (2001). Libel, which we are concerned with in the present case, is written defamation. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 611, 116 A.2d 440 (1955).

“While all libel was once actionable without proof of special damages, a distinction arose between libel per se and libel per quod. ... A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication. . . . When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover. . . .

“Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages. . . . The distinction between libel per se and libel per quod is important because [a] plaintiff may recover general damages where the defamation in question constitutes libel per se. . . . When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiffs reputation. He is required neither to plead nor to prove it. . . . The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him. . . . Whether a publication is libelous per se is a question for the court.” (Citations omitted; internal quotation marks omitted.) Battista v. United Illuminating Co., 10 Conn. App. 486, 491-92, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987). Because the plaintiff in the present case has not shown actual economic damages, the parties agree that to prevail, the plaintiff must prove that the defendant’s statements constitute libel per se.

“Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling. ... To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached.” (Citations omitted.) Proto v. Bridgeport Herald Corp., 136 Conn. 557, 565-66, 72 A.2d 820 (1950).

“Moral turpitude, [our Supreme Court has] observed, is a vague and imprecise term to which no hard and fast definition can be given. ... A general definition applicable to the case before us is that moral turpitude involves an act of inherent baseness, vileness or depravity in the private and social duties which man does to his fellow man or to society in general, contrary to the accepted rule of right and duty between man and law.” (Citations omitted.) Moriarty v. Lippe, 162 Conn. 371, 383, 294 A.2d 326 (1972).

With those legal principles in mind, we turn to the plaintiffs allegations. The complaint alleges that the plaintiffs reputation in the community has been damaged as a consequence of defamatory statements contained in the subject letter. The plaintiffs claim is based largely on the defendant’s assertion in the letter that the club has “political connections in both state and local, to Mafia connections to rubber stamp whatever [it] wan^s].” (Emphasis added.)

The plaintiff acknowledges that the defendant was free to express his concerns about his view of the club’s activities, which he claimed disturbed the peace of his residential community. The plaintiff argues, however, that the allegation that the club was connected with the international criminal organization known as the Mafia exceeded permissible limits of free speech. In that regard, the plaintiff claims that the Mafia generally is known to be involved in criminal activities such as bribery, illegal gambling, manufacturing of narcotics and other acts. See, e.g., United States v. Gotti, 155 F.3d 144, 145 (2d Cir. 1998); United States v. Van Dorn, 925 F.2d 1331, 1333-38 (11th Cir. 1991); United States v. Eufrasio, 935 F.2d 553, 559-60 (3d Cir. 1991); United States v. Persico, 832 F.2d 705, 708 (2d Cir. 1987). Those are crimes, many of which, involve moral turpitude and are punishable by imprisonment. See Drazen v. New Haven Taxicab Co., 95 Conn. 500, 507-508, 111 A. 861 (1920).

Moreover, the plaintiff claims that the allegedly libelous letter went beyond suggesting a mere affiliation with the Mafia because it stated that the plaintiff uses its Mafia connections to “rubber stamp whatever [it] want[s].” (Emphasis added.) Finally, the plaintiff claims that on its face, the latter recitation amounts to a statement that the plaintiff approves of the Mafia’s illegal tactics and that the club utilizes those tactics to its benefit because it is by using those illegal tactics that the club gets whatever it wants.

We agree with the plaintiff that the allegedly defamatory statement is of the type that will “diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against [it].” (Internal quotation marks omitted.) DeVito v. Schwartz, supra, 66 Conn. App. 234. We therefore conclude that the statement linking the plaintiff to the Mafia was libelous per se and, consequently, that the plaintiff was required neither to plead nor to prove actual damages.

As an alternate ground for affirming the judgment, the defendant claims that the allegedly defamatory statements were absolutely privileged because they were made in the course of a quasi-judicial proceeding or in an attempt to initiate such a proceeding. See Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986).

In Connecticut, “ft]he class of absolutely privileged communications is narrow, and practically limited to legislative and judicial proceedings, and acts of State.” Hassett v. Carroll, 85 Conn. 23, 35, 81 A. 1013 (1911); see D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 155, p. 419. It is well settled that “communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy. . . . The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously .... The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.” (Citations omitted; internal quotation marks omitted.) Petyan v. Ellis, supra, 200 Conn. 245-46. Thus, the privilege “applies to statements made in pleadings or other documents prepared in connection with a court proceeding. ” (Internal quotation marks omitted.) Preston v. O’Rourke, 74 Conn. App. 301, 312, 811 A.2d 753 (2002).

“[L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature. . . . Once it is determined that a proceeding is quasijudicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition.” (Citations omitted; internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 565-66, 606 A.2d 693 (1992).

We now turn to the merits of the defendant’s claim. It is true, as the defendant claims, that “ [i]n Connecticut, parties to or witnesses before judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of statements made therein.” (Internal quotation marks omitted.) Preston v. O’Rourke, supra, 74 Conn. App. 311. It is equally true that “[i]n passing upon the issuance of a [liquor] permit, the [Waterbury zoning] board is an administrative body acting in a quasi-judicial capacity.” (Internal quotation marks omitted.) Astarita v. Liquor Control Commission, 165 Conn. 185, 189, 332 A.2d 106 (1973). As a result, statements made by a party or a witness during and before the final disposition of a quasi-judicial proceeding before such a board would be absolutely privileged, as long as they are pertinent to the issue at hand. We disagree, however, that the absolute privilege extended to quasi-judicial proceedings applies in this instance.

The defendant’s letter was sent long after the plaintiff had obtained its liquor license, and the defendant has not indicated to us that there were any other proceedings pending before the board. We also are not persuaded by the defendant’s present argument that the letter reasonably can be read as an attempt to initiate a quasi-judicial proceeding. To accept that contention would be tantamount to stating that any citizen may write a defamatory letter to a municipal officer at any time under a cloak of immunity on the basis of a belated claim that the communication is an unspoken effort to initiate a governmental proceeding. That we will not do. Because our resolution of the first issue and the alternate ground urged by the defendant is decisive, we need not reach the remaining issues raised by the plaintiff.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Pursuant to the laws of this state, the plaintiff corporation may sue for libel. Monroe v. Crandall, 3 Conn. App. 214, 221, 486 A.2d 657 (1985).

       The plaintiff also claims that the court improperly (1) concluded that there are only two recognized categories of libel per se and (2) granted summary judgment in a libel case. Contrary to the plaintiffs first claim, case law has made clear that “[t]wo of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling.” (Internal quotation marks omitted.) Battista v. United Illuminating Co., 10 Conn. App. 486, 492, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987). The short answer to the plaintiffs second claim is that summary judgment may well be appropriate in some libel actions. See Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 315-16 n.4, 477 A.2d 1005 (1984).

       We are mindful that this court has stated that it is “settled that the credit, property or business reputation of a corporation can be injured by a false publication of defamatory matter, written or oral, which tends to prejudice it in the conduct of its trade or business, or to deter third persons from dealing with it. Since a corporation has no reputation in the sense that an individual has, it is only with respect to its credit, property or business that a corporation can be injured by a false publication.” (Internal quotation marks omitted.) Monroe v. Crandall, 3 Conn. App. 214, 221, 486 A.2d 657 (1985).
      When the corporation, however, as is the case here, is not for profit and depends on financial support from the public, one who publishes a defamatory statement regar ding it is liable if such statement “tends to interfere with its activities by prejudicing it in public estimation.” (Emphasis added.) 3 Restatement (Second), Torts § 561 (b), p. 159 (1977). We believe that the determination of whether the defendant’s statement had prejudiced the plaintiff in public estimation is a question of fact to be determined by the finder of fact. See Weiss v. Bergen, 63 Conn. App. 810, 812-13, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001).

       The defendant argues as well 1hat his letter was privileged because it was sent to the board of aldermen, which is a legislative body. The defendant has provided no legal authority or analysis relating to how the legislative immunity that is available to members of Congress and the state legislature should be extended to a letter submitted to a governmental body when no proceeding is then pending. See State v. Edward B., 72 Conn. App. 282, 298, 806 A.2d 64 (“[cjlaims that are inadequately briefed are deemed abandoned, and we are not bound to review them”), cert. denied, 262 Conn. 910, 810 A.2d 276 (2002). Additionally, no fair reading of the subject letter suggests that it was an effort by the writer to initiate a government proceeding. See, e.g., D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 156 (e), p. 421; see also note, “The Scope of Immunity for Legislators and Their Employees,” 77 Yale L.J. 366, 372-73 (1967).


author: FLYNN, J.

text:
    SCOTTSDALE INSURANCE COMPANY v. DANIEL W. DUMONT ET AL.
    (AC 23432)
    Lavery, C. J., and Dranginis and Flynn, Js.

      Argued May 12
    officially released July 8, 2003

      Daniel W. Dumont, pro se, the appellant (named defendant).

      James V. Somers, with whom, on the brief, was Erik J. Ness, for the appellee (plaintiff).

      Eileen Duggan, with whom was Andrew Brand, for the appellee (defendant Suisman, Shapiro, Wool, Brennan, Gray and Greenberg, P.C.).
   Opinion

FLYNN, J.

The defendant Daniel W. Dumont appeals from the judgment of the trial court in an interpleader action initiated by the plaintiff, Scottsdale Insurance Company (Scottsdale). Scottsdale is the insurer of a party against whom Dumont had won a judgment in the amount of $150,000. A dispute subsequently arose between the defendant and the law firm that represented him in winning that judgment, Suisman, Shapiro, Wool, Brennan, Gray and Greenberg, P.C. (law firm), about the proper distribution of the damages award. As a result, Scottsdale initiated the present interpleader action against the defendant and the law firm, seeking a judicial determination as to the proper distribution of the award. In its complaint, Scottsdale indicated its willingness to pay the amount of the judgment against its insured in whatever manner the court directed. The defendant appeals from the trial court’s decision ordering Scottsdale to distribute the damages award from the underlying personal injury case to both the defendant and his former law firm.

The defendant makes one claim that is properly preserved for appeal. He claims that the trial court did not have subject matter jurisdiction over the interpleader action, because only the federal courts had the authority to hear the case. We affirm the judgment of the trial court.

The following facts are relevant to the issue in this appeal. In a complaint dated March 21, 2002, Scottsdale initiated the present interpleader action against the defendant and the law firm pursuant to General Statutes § 52-484. According to the defendant’s motion to dismiss, dated May 18, 2002, Scottsdale’s business address is in Arizona. The defendant’s residence is in New York. The law firm is located in Connecticut. On August 19, 2002, the court ordered Scottsdale to distribute the funds which it yet owed from the underlying personal injury case as follows: $53,424.74 to the law firm and $96,410.90 to the defendant.

The sole issue before this court is whether the trial court lacked subject matter jurisdiction to act in this case. The defendant argues that, because there was a complete diversity of citizenship between the parties and the amount in controversy exceeded $75,000, the present case should have been brought in the federal District Court rather than in our state court. The defendant’s claim is without merit.

The defendant’s claim is made in reference to 28 U.S.C. § 1332 (a), which provides in relevant part: “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . (1) citizens of different States . . . .” It is well settled that the grant of subject matter jurisdiction set forth in 28 U.S.C. § 1332 is not exclusive, but would allow a claim that could be brought in state courts to be removed to a Federal District court.

“In general, a case that can be filed in the state court where the district court sits can also be filed in federal court where the plaintiff and defendant are citizens of different states, and the amount in controversy exceeds the specified minimum. This provision gives to a resident plaintiff who sues a non-resident defendant the option to sue in either state or federal court. If the resident plaintiff sues in state court, the non-resident defendant has the option of removing the case to federal court under 28 U.S.C. § 1441, with various exceptions.” Johanning v. Johanning, 509 F. Sup. 770, 772 (D. N.J. 1981). “This statutory provision does not divest the State courts of jurisdiction. Therefore a plaintiff has the option to begin his suit either in the Federal or in the State court.” Columbian National Life Ins. Co. v. Cross, 298 Mass. 47, 50 51, 9 N.E.2d 402 (1937); see also Tiernan v. Missouri New York World’s Fair Commission, 48 Misc. 2d 376, 379, 264 N.Y.S.2d 834 (1965).

Although this action could have been brought in either state or federal court, the plaintiff chose to bring this action in the courts of this state. “Under 28 U.S.C. § 1441, authority for removal is found when the State Court action could have originally been brought in Federal Court. Original jurisdiction does not mean exclusive jurisdiction. . . . Furthermore, the existence of concurrent state and federal jurisdiction does not operate to defeat defendant’s right of removal to federal court.” (Citation omitted.) Leonardis v. Local 282 Pension Trust Fund, 391 F. Sup. 554, 557 (E.D.N.Y. 1975); see also DiAntonio v. Pennsylvania State University, 455 F. Sup. 510, 512 (M.D. Pa. 1978). At no time did the defendant seek to have the state case removed to the federal courts pursuant to the authority granted by 28 U.S.C. § 1441. Therefore, the present case properly was decided by the trial court because it had subject matter jurisdiction over the action.

The judgment is affirmed.

In this opinion the other judges concurred.

       Any reference to “the defendant” in this opinion is meant to signify Dumont and not his former law firm, which was a codefendant in the present action.

       In the statement of issues in the defendant’s brief, there are three numbered paragraphs. Only the second of those three paragraphs, however, contains an issue which is properly before this court. Of the two which are not, we take a moment to explain the reasons why.
      The first numbered paragraph involves accusations that Scottsdale acted in collusion with the defendant’s former law firm and that both made false statements to the trial court. In the defendant’s analysis of this claim, he has failed to provide a single case or statute that supports his argument. In addition, the defendant has failed to comply with Practice Book § 67-4 (d) in that he did not provide a brief statement of the standard of review that should apply to this claim. A failure to comply with our rules of appellate procedure has sometimes been considered, by itself, grounds to deny review of an appellant’s claims. See, e.g., Cichocki v. Quesnel, 74 Conn. App. 299, 812 A.2d 100 (2002). This omission on the part of the defendant is coupled with the fact that his first claim is best described as a request for this court to make findings of fact. We, as a reviewing court, “cannot find facts, nor, in the first instance, draw" conclusions of facts from primary facts found, but can only review such findings to see whether they might legally, logically and reasonably be found.” (Internal quotation marks omitted.) State v. Clark,
        160 Conn. 555, 556, 274 A.2d 451 (1970). Although pro se parties are given some latitude, they are not excused from compliance with the General Statutes or rules of appellate procedure. See Cichocki v. Quesnel, supra, 301. Therefore, we decline to review the defendant’s first claim.
      The defendant describes the issue in the third numbered paragraph as follows: “Whether the trial court properly entered judgment in this matter and ordered distribution of monies from the plaintiff to the defendants, Daniel W. Dumont, and to [the defendant’s former law firm], there is not whether [sic] for that case, base [sic] on all of the above and the following, and the Appellate Court should declare void and invalid all the rilings [sic], and dismiss this case altogether." (Emphasis in original.) With regard to this numbered paragraph, the defendant has not analyzed this as a separate claim in his brief. Therefore, we consider the claim abandoned.

       Several thousand dollars were paid to reimburse expenses that had been paid previously by workers’ compensation.