author: DUPONT, C. J.

text:
    FLOYD WILLIAMS v. COMMISSIONER OF CORRECTION
    (14076)
    Dupont, C. J., and O’Connell and Spear, Js.
    Argued January 17
    officially released May 28, 1996

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

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard Eisenman, assistant state’s attorney, for the appellee (respondent).
   DUPONT, C. J.

The petitioner, Floyd Williams, appeals from the denial of his petition for a writ of habeas corpus. The petitioner was convicted of one count of felony murder in violation of General Statutes § 53a-54c. The conviction was upheld. State v. Williams, 220 Conn. 385, 599 A.2d 1053 (1991). The petitioner subsequently filed a petition for a writ of habeas corpus claiming (1) that his trial counsel rendered ineffective assistance and (2) that he is factually innocent. After conducting an evidentiary hearing, the habeas court rejected both of the petitioner’s claims and certified its decision for review by this court. We affirm the judgment of the habeas court.

A thorough review of the evidence produced at the petitioner’s habeas hearing, coupled with relevant facts from the petitioner’s criminal trial, is necessary to adjudicate properly the issues presented in this appeal. In the petitioner’s appeal from the judgment rendered in the criminal trial, our Supreme Court stated that the jury could have found reasonably the facts that follow.

“On August 28, 1989, in the early horns of the morning, the victim, Orville Grant, and Mervin Needham were walking on Sixth Street in Bridgeport when they were approached by the [petitioner] and two other men. The [petitioner] and his two companions all were armed with guns. The [petitioner] forced the victim and Need-ham to lie on the ground while he rifled Needham’s pockets for what turned out to be $5 in cash. The [petitioner] then ordered both men into a nearby yard and again forced them to lie down. After some discussion, all three assailants began shooting. As a result of this assault, Grant died of a gunshot wound to the head.

“Just prior to trial, the state filed an amended long form information charging the defendant in a seven count information with violations of the following [G] enera! [Statutes: (1) felony murder, General Statutes § 53a-54c; (2) murder, General Statutes § 53a-54a (a); (3) attempted murder, General Statutes §§ 53a-49 and 53a-54a (a); (4) robbery in the first degree, General Statutes § 53a-134 (a) (2); (5) attempted assault in the first degree, General Statutes §§ 53a-49 and 53a-59 (a) (1); (6) assault in the second degree, General Statutes § 53a-60 (a) (2); and (7) carrying a pistol without a permit, General Statutes § 29-35. On August 21, 1990, a jury found the defendant guilty of the single count of felony murder. The trial court sentenced the defendant to a term of sixty years imprisonment.” Id., 387-88. The judgment was affirmed on appeal. Id., 400.

The petitioner brought this habeas corpus action by way of an amended petition in two counts. In the first count, the petitioner alleged ineffective assistance of his trial counsel, under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. In the second count, the petitioner alleged that he was factually innocent and that he suffered a miscarriage of justice because exculpatory testimony from available witnesses was never presented during his criminal trial.

I

INEFFECTIVE ASSISTANCE OF COUNSEL

In the first count, the petitioner claimed that his trial counsel, Attorney Amaldo E. Granados, provided ineffective assistance at the petitioner’s criminal trial by (1) failing to advise the petitioner as to the potential merits of accepting a plea offer to a substitute charge of manslaughter in the first degree; (2) inadequately investigating and cross-examining Needham; (3) failing to call Ulysses Smith as a defense witness; (4) failing to pursue adequately a motion for a bill of particulars that had been filed previously; (5) inadequately investigating and failing to present the testimony of David Womack and Joseph Aranjo as defense witnesses.

The habeas court evaluated the petitioner’s claims of ineffective assistance of counsel pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, the petitioner must show that (1) defense counsel’s performance was not reasonably competent or within the range of competence expected of attorneys with ordinary training and skill in criminal law; id., 687-88; and (2) but for counsel’s substandard performance, there is a reasonable probability that the result of the proceeding would have been different. Id., 694. The habeas court concluded that none of the petitioner’s claims of ineffective assistance of counsel met the conditions set forth in Strickland.

On appeal, the petitioner challenges the habeas court’s conclusion that the petitioner failed to show that his trial counsel provided ineffective assistance by failing to present the exculpatory testimony of Aranjo at the criminal trial. The petitioner claims that the habeas court improperly evaluated the credibility of Aranjo in dismissing that claim of ineffective assistance of counsel.

The habeas court focused on the prejudice component of the Strickland standard to dispose of the claim that Granados, the petitioner’s attorney, provided ineffective assistance of counsel by failing to present the exculpatory testimony of Aranjo at the criminal trial. A habeas court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if the claim may be disposed of on the ground of an insufficient showing of prejudice. Pelletier v. Warden, 32 Conn. App. 38, 46, 627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694 (1993).

A review of the testimonies provided at the habeas hearing by the petitioner, Granados, and Aranjo is necessary to resolve this claim. The petitioner testified that he informed Granados that “[the petitioner] had seen [Aranjo] [the] night [of the shooting] and that [Aranjo] might know more information.” The petitioner also testified that his sister told Granados that Aranjo “had seen something.” The petitioner stated that it was his understanding from speaking to Granados, that Gra-nados had spoken with Aranjo and that he would be called as a witness at the criminal trial.

Granados testified that he represented the petitioner from December, 1989, until the petitioner’s sentencing. Granados’ case file for the petitioner’s criminal case was subpoenaed through the office of the chief public defender. Granados identified the case file, but could not be certain that it was the complete file. Granados testified that he recognized a document contained in the case file entitled “investigation request” and admitted that he prepared that request on January 25, 1990. The investigation request reads: “Please interview and take statement from Joseph Aranjo, Jr. at 951 Aranistan Avenue, 3rd floor, Bridgeport, Connecticut. Telephone (203) 367-6295. Our client indicates that this man is an eyewitness to the murder and that Ulysses Smith was the person who committed the crime and not [the petitioner].” Attached to the investigation request was a handwritten document that reads: “Michael call him over the weekend — Joseph Aranjo, Jr. Come to the office Monday for statement. Re: Floyd Williams.” Gra-nados testified that that document “seems to be a note to one of the investigators, but I don’t know who made the note.” Granados admitted that he had obtained Aranjo’s name approximately seven months prior to the start of the criminal trial. Granados, however, did not recall issuing a subpoena for Aranjo to testify and could not recollect the reason why he did not call Aranjo as a witness at the criminal trial.

Aranjo testified at the habeas hearing that he was walking along Sixth Street in Bridgeport to visit his girlfriend, Amy Pettway, just prior to the shooting. As Aranjo approached her residence, he observed a group of people consisting of Grant, Ulysses Smith, Raymond Tucker, and a fourth person that Aranjo could not identify gathered across the street. Aranjo also observed the petitioner walking along Sixth Street toward him on the same side of the street. Aranjo heard someone from the group call to the petitioner and saw the petitioner cross Sixth Street to join the group. Aranjo then saw the petitioner throw up his arms and walk away from the group. About thirty seconds later, Aranjo saw Smith and Tucker pull guns and start shooting at Grant and the unidentified person. Aranjo dove for cover behind some bushes. Aranjo saw the unidentified person and Grant start to run, and then saw Grant fall about “five cars down or six cars down” from where the group was assembled at the time when Aranjo first observed the group. After the shooting stopped, Aranjo entered Pettway’s residence and told her that “there were some guys out there shooting.” Later that evening, Aranjo looked out of the window of Pettway’s residence and observed the police investigating the scene. Aranjo testified that he never reported what he observed to the police because he “really didn’t want to be involved” because “it leads to trouble.” After Aranjo discovered that the petitioner was arrested, Aranjo still did not report the shooting to the police and instead, went to the petitioner’s sister and informed her about the shooting.

The habeas court concluded that the petitioner “failed to prove that there exists a reasonable probability that the outcome of his criminal trial would have been different if Aranjo was called as a witness because that testimony lacks veracity.” The trial court noted that the petitioner’s testimony at his criminal trial failed to indicate that the petitioner saw Aranjo on the night of the shooting. Moreover, the habeas court found “[t]he most important factor belying Aranjo’s version of events is that he stated that the deceased victim, Grant, was struck down on the opposite side of the street from Pettway’s residence, about five or six car lengths up from where the group had gathered. Grant was killed by a shot to the head, and his corpse was found by Richard Linton some distance up a driveway next door to Pettway’s residence at around 10 a.m. the following morning.” The habeas court further found it “implausible that Aranjo could have forgotten such a significant fact that Grant ran up the driveway of the property adjacent to his girlfriend’s residence. It is highly improbable that Aranjo could have forgotten on which side of the street Grant was struck down. It is similarly unlikely that the police who investigated the area shortly after the shooting would have overlooked Grant’s body if it actually lay where Aranjo stated it to be.”

In a habeas corpus appeal, we cannot and will not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993); Veal v. Warden, 28 Conn. App. 425, 428, 611 A.2d 911, cert. denied, 224 Conn. 902, 615 A.2d 1046 (1992). “ ‘When determining whether those facts constitute a violation of the petitioner’s right to effective assistance of counsel, however, this court is not bound by such a limited standard of review, because such a determination is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.’ ” Siano v. Warden, supra, 95-96, quoting Veal v. Warden, supra, 428; Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991).

The petitioner has failed to demonstrate that the habeas court’s factual findings are clearly erroneous or that the application of legal principles to those facts constitutes a violation of his sixth amendment rights. The petitioner has not put forth any argument that disputes the inconsistencies of Aranjo’s testimony, as found by the habeas court, in light of the evidence that was before the jury at the criminal trial. The petitioner, instead, argues that the habeas court improperly applied the prejudice component of the Strickland standard because it failed to consider the totality of the evidence before the jury and the habeas court. We are not persuaded.

“In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” Copas v. Warden, 30 Conn. App. 677, 682, 621 A.2d 1378, on appeal after remand, 234 Conn. 139, 662 A.2d 718 (1995); Tyson v. Warden, 24 Conn. App. 729, 736, 591 A.2d 817, cert. denied, 220 Conn. 909, 597 A.2d 340 (1991). The habeas court evaluated Aranjo’s testimony in light of the totality of the evidence that was before the jury at the petitioner’s criminal trial and the evidence produced at the habeas hearing, and found that “Aranjo’s testimony is unworthy of belief.” The habeas court could have concluded properly that the petitioner’s claim could not be sustained under the prejudice component of the Strickland standard because the petitioner failed to show that there is a reasonable probability that, but for Granados’ alleged ineffectiveness, the outcome of his criminal trial would have been different. The performance of the petitioner’s trial counsel, therefore, did not deprive him of his constitutional right to the effective assistance of counsel.

II

ACTUAL INNOCENCE

The petitioner claims that the habeas court applied the incorrect legal standard in denying the petitioner’s claim of actual innocence. We conclude that the petitioner’s claim of actual innocence was insufficient to trigger an evaluation of it by the habeas court for the purpose of determining whether the petitioner had made a showing of actual innocence sufficient to warrant a new trial.

We initially turn to our Supreme Court’s decision in Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994), for enlightenment regarding substantial claims of actual innocence. In Summerville, the court, held that “a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result, of his criminal trial.” Id., 422. The court recognized that the standard of proof for such claims “should be more demanding than a probability of a different result.” Id., 431. The probability of a different result is a component of the standard used to evaluate a petition for a new trial on the ground of newly discovered evidence. Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955) (standard for new trial primarily whether injustice done and whether probable that if new trial conducted, different result would be reached). The Summerville court concluded that such a standard did not fit the interests at stake in a habeas petition where the petitioner makes a substantial claim of actual innocence; Summerville v. Warden, supra, 431; but declined to specify which “more demanding” legal standard or burden of proof for such a claim of actual innocence should govern. Id., 432-33.

The United States Supreme Court has repeatedly noted that “ ‘a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ ” Schlup v. Delo, 513 U.S. 298, 325, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995), quoting In re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see also Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

A number of factors must be weighed in determining the issue of what the standard of proof ought to be when a petitioner makes, via a habeas petition, a substantial claim of actual innocence. A determination of the correct standard necessarily involves the recognition of the tension between the mandate of General Statutes § 52-470 (a) that the habeas court “dispose of the case as law and justice require,” which involves a reassessment of a situation where it is claimed that a person, although fairly convicted, may have been actually innocent, with the benefit of new evidence, and the effect on finality and justice that the passage of time has or will have on the state’s evidence in the event of a retrial, as well as on the reliability of the fact-finding process itself. Summerville v. Warden, supra, 229 Conn. 432.

In determining the correct standard for the resolution of that issue, the Summerville court turned for guidance to other standards, including the standard articulated by Justice White in his concurring opinion in Herrera v. Collins, 506 U.S. 390, 429, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993). Summerville v. Warden, supra, 229 Conn. 434-35. To be entitled to relief under that standard, a habeas “petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.” (Emphasis added; internal quotation marks omitted.) Herrera v. Collins, supra, 429 (White, J., concurring). The Summerville court, in declining to specify the legal standard for a claim of actual innocence, concluded that the evidence in that case “was insufficient to trigger an evaluation of it by the habeas court for the purpose of determining whether the petitioner had made a showing of actual innocence sufficient to require a new trial.” Sum-merville v. Warden, supra, 436-37.

In the present case, the habeas court adopted Justice White’s standard in Herrera requiring a habeas petitioner “to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) Herrera v. Collins, supra, 506 U.S. 429 (White, J., concurring). Applying that standard, the habeas court concluded that “the petitioner’s proffered evidence falls short of his burden. Even if Araujo’s testimony were to be believed, Needham, an eyewitness and victim, testified that the petitioner was actively involved in the criminal action, appeared to be in charge of that activity, robbed Needham of some money, brandished a gun, and fired at the fleeing victims. A rational jury could believe Needham’s version of events and find the petitioner guilty of felony murder beyond a reasonable doubt.”

The petitioner argues that the habeas court, by adopting the standard articulated by Justice White, applied the incorrect standard and urges this court to adopt a less stringent standard. The petitioner invites this court to implement the standard set forth in Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). That standard is to be used in extraordinary cases of claimed actual innocence and requires a habeas petitioner to show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id.

Before reaching the merits of whether the writ should issue, which of necessity requires a determination of which standard of proof to apply, we must first decide whether a substantial claim of actual innocence, in a case in which there has been no infringement of the petitioner’s constitutional rights during his criminal trial, must be premised on newly discovered evidence. To permit a petitioner to bring a substantial claim of actual innocence based on evidence that is not newly discovered would be inconsistent with our Supreme Court’s conclusion that the standard governing a claim of actual innocence should be more demanding than the standard used for determining whether a new trial should be granted because of newly discovered evidence. See Summerville v. Warden, supra, 229 Conn. 431. We, therefore, hold that a substantial claim of actual innocence, as recognized by Summerville, must be based on newly discovered evidence. We view this holding as one that balances the societal interests of finality, comity, and conservation of scarce judicial resources, against the benefit of “disposing] of the case as law and justice require.” General Statutes § 52-470 (a). Entertaining claims of actual innocence that are not based on newly discovered evidence would have a disruptive effect on the finality of judgments because it would permit a petitioner to raise allegations that, absent proof of an antecedent constitutional violation that affected the result of his criminal trial, could have been raised at the criminal trial.

In light of the holding in Summerville, we must now review the petitioner’s claim of actual innocence to determine if that claim is predicated on newly discovered evidence. The underlying premise of the petitioner’s claim is that Aranjo’s testimony shows that the petitioner has suffered a miscarriage of justice and is factually innocent, and, as such, the petitioner is entitled to a new trial.

In determining whether a new trial should be granted because of newly discovered evidence, a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence. Johnson v. State, 36 Conn. App. 59, 63, 647 A.2d 373, cert. denied, 231 Conn. 946, 653 A.2d 827 (1994), citing Asherman v. State, 202 Conn. 429, 521 A.2d 578 (1987). We incorporate the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner’s claim of actual innocence. Accordingly, the pivotal initial inquiry in this appeal is whether the petitioner demonstrated that Aranjo’s testimony could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence.

“Due diligence does not require omniscience.” Kubeck v. Foremost Foods Co., 190 Conn. 667, 672, 461 A.2d 1380 (1983). “ ‘Due diligence means doing everything reasonable, not everything possible.’ ” Id., quoting People v. Sullivan, 97 Mich. App. 488, 493, 296 N.W.2d 81 (1980). The petitioner for a new trial must be “ ‘diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted.’ ” (Emphasis added.) Malaspina v. Itts, 3 Conn. Cir. Ct. 651, 654-55, 223 A.2d 54 (App. Div. 1966), quoting White v. Avery, 81 Conn. 325, 328, 70 A. 1065 (1908).

No evidence was adduced at the habeas hearing that would permit the habeas court properly to conclude that Aranjo’s testimony could not have been discovered as a result of due diligence. To the contrary, there was uncontroverted testimony from the defendant’s trial counsel who admitted he personally prepared an investigation request that indicated that Aranjo was an eyewitness to the shooting. We'conclude, upon review of the evidence presented at the habeas hearing, that the petitioner failed to demonstrate that Aranjo’s testimony could not have been discovered by the exercise of due diligence, and, therefore, such evidence does not constitute newly discovered evidence. Thus, the petitioner’s claim of actual innocence is lacking the requisite predicate for evaluation under any legal standard and must fail. See Summerville v. Warden, supra, 229 Conn. 397.

Under the facts of the present case, it would be no more necessary for this court to answer the question left open in Summerville, namely, what is the appropriate standard for habeas courts to apply when evaluating a substantial claim of actual innocence, absent proof of an antecedent constitutional violation that affected the result of his criminal trial, than it was necessary for the Supreme Court in Summerville to establish such a standard. The Summerville court failed to reach the issue of which standard of proof to apply because under any of the various standards considered by the court, from the most stringent to the most relaxed, the petitioner’s evidence fell short of establishing that the writ of habeas corpus should be issued on the ground that the petitioner was actually innocent. We also fail to reach the issue.

We conclude that a writ of habeas coipus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered. Because the petitioner failed to make such a demonstration and because no evidence exists in the record that would permit the habeas court to conclude that the evidence at issue is newly discovered, we need proceed no further.

We concur with the habeas court’s denial of the habeas writ on the basis of the petitioner’s claim of actual innocence, although on a different basis. We, therefore, do not adopt the legal standard employed by the habeas court in reaching its decision. This court may, however, affirm a trial court’s decision even though it is based on other grounds if the same result is required by law. Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992); Brunswick v. Inland Wetlands Commission, 25 Conn. App. 543, 554, 596 A.2d 463 (1991), rev’d on other grounds, 222 Conn. 541, 610 A.2d 1260 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant has failed to provide us with any analysis of his claim under the Connecticut constitution, and, therefore, we choose not to review this claim under the Connecticut constitution. State v. Scarpiello, 40 Conn. App. 189, 198 n.4, 670 A.2d 856 (1996).

       Our Supreme Court adopted the two-pronged analysis of Strickland v. Washington, supra, 466 U.S. 668, to determine if a counsel’s assistance was ineffective. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990).

       In his amended petition, the petitioner claimed that he was “factually innocent.” Although the phrase “actual innocence” does not appear in his petition, we view the petitioner’s claim as one of actual innocence and attribute no significance to the slightly different terminology.

       We note our Supreme Court’s elucidative analysis of the various legal standards that may be appropriate for evaluating a habeas petitioner’s claim of actual innocence. In view of our resolution of this case, we need not discuss them further.

       The court noted that in light of the recent expanding scope of habeas petitions, it is not surprising that “[n] one of our prior habeas corpus jurisprudence . . . supplies us with a ready standard for this type of case.” Summerville v. Warden, supra, 229 Conn. 431.

       Ordinarily, this might be a factual question for the habeas court to resolve. There is no indication, however, in the habeas court’s memorandum of decision that this issue was addressed, and there is no evidence in the record from which the habeas court could find the evidence in support of the petitioner’s claim of actual innocence to be newly discovered. We, therefore, make the determination. Similarly, in Summerville v. Warden, supra, 229 Conn. 436-37, the court, concluded by implication that there was no evidence from which the habeas court could conclude that, under any of the various standards of proof, the petitioner could prevail.

       In his petition, the petitioner claimed that he suffered a miscarriage of justice at his criminal trial because his trial counsel failed to present exculpatory testimony from “available witnesses," including, but not necessarily limited to Aranjo. (Emphasis added.) At the petitioner’s habeas hearing, however, the only exculpatory witness to testify was Aranjo. Further, the petitioner failed to provide the habeas court with any affidavits from potential witnesses offering exculpatory testimony. Therefore, the petitioner’s claim of actual innocence centers around the testimony of Araujo and the fact that he was not called as a witness at the criminal trial even though the petitioner’s defense counsel had prepared an investigation request indicating that Aranjo was an eyewitness to the shooting.

       The standard that governs the granting of a petition for a new trial based on newly discovered evidence is comprised of four components: “(1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” Asherman v. State, supra, 202 Conn. 434.

       In considering the various standards, the Summerville court did not intend to preclude the possibility of yet another standard for such a claim. Summerville v. Warden, supra, 229 Conn. 436 n.22.


source: Caselaw Access Project

author: O’CONNELL, J. SHEA, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL SEBASTIAN
    (14984)
    O’Connell, Landau and Shea, Js.

      Argued December 1, 1995
    officially released June 4, 1996

      Walter H. Scanlon, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Maureen Keegan, assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from his conviction of felony murder in violation of General Statutes § 53a-54 (c), rendered after he entered a conditional plea of nolo contendere pursuant to General Statutes § 54-94a and Practice Book § 4003. The defendant claims that the trial court improperly (1) found that the defendant’s oral admissions were separate from his written statement, (2) concluded that the defendant’s oral admissions were made after a proper waiver of his Miranda rights, (3) concluded that the defendant’s oral statements were made voluntarily, (4) found that the defendant had been properly arraigned, thereby rendering his oral statements admissible, and (5) found that his admissions relative to the felony murder were made at a time when his detention was legal and therefore not the fruit of an illegal arrest. We affirm the judgment of the trial court.

The trial court found the following facts from the evidence adduced at the suppression hearing. Believing that the defendant was involved in a homicide that occurred during a burglary of Pauline Grincunas’ apartment, Waterbury police officers invited the defendant to the police station for questioning. At the station, Sergeant Neil O’Leary and Sergeant Robert Henderson interviewed the defendant. Before beginning the interview, O’Leary informed the defendant of his Miranda rights. Initially, the defendant denied knowledge of the burglary or homicide, but orally incriminated himself in two other burglaries in the Grincunas neighborhood. Before this statement concerning the unrelated burglaries was reduced to writing, O’Leary again advised the defendant of his Miranda rights.

Approximately twelve hours after the defendant arrived at the police station, Anthony James, a codefen-dant in this case, inculpated himself in the Grincunas burglary, and, in a written statement, told police that the defendant had killed Grincunas during the burglary of her apartment.

When confronted with James’ confession, the defendant indicated that he wanted to change his earlier statement. After the defendant was again advised of his Miranda rights, the defendant implicated himself in the Grincunas burglary, but claimed that James had actually killed her. Before the defendant signed the written transcription of this oral confession, he was again advised of his Miranda rights.

While the defendant was reiterating his confession to the felony murder of Grincunas, his attorney arrived at the police station and asked to see him. Because the defendant was not informed that his attorney was present to represent him until after he had signed the confession, the trial court suppressed the written statement.

I

A

We must first address the threshold issue of whether the defendant may raise an issue on appeal other than the voluntariness of his statements under § 54-94a.

Section 54-94a enumerates the instances in which a defendant may appeal from a conditional nolo conten-dere plea. The relevant part of § 54-94a (a) allows a defendant to plead nolo contendere “conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress . . . statements and evidence based on the involuntariness of a statement (Emphasis added.)

In strictly construing these conditions, our Supreme Court has declined to consider claims that are not encompassed within the statute. State v. Madera, 198 Conn. 92, 99, 503 A.2d 136 (1985). In Madera, for exam pie, the court refused to review the defendant’s appeal of the denial of his motion to suppress on involuntariness grounds because, at that time, voluntariness did not come within the scope of § 54-94a. Subsequent to the court’s refusal to consider the defendant’s claim in Madera, the legislature amended § 54-94a to include challenges to the voluntariness of statements. Public Acts 1988, No. 88-19. In accordance with § 54-94a, we may therefore review only those claims that challenge the voluntariness of defendant’s statements.

B

Even though we may not review the defendant’s claims that do not challenge voluntariness under § 54-94a, we must next determine if we may review them under Practice Book § 4003. Section 4003 (a) tracks § 54-94a except that, unlike the statute, the rule of practice has never been amended to include involuntariness of a statement as a ground for a plea of nolo contendere. Thus, subsection (a) provides fewer grounds for appellate review of a conditional plea than does the statute, and we are barred from reviewing an involuntariness claim under this rule of practice. State v. Piorkowski, 236 Conn. 388, 416, 672 A.2d 921 (1996).

Subsection (b) of § 4003, however, is broader than both the statute and subsection (a) and establishes a procedure by which an appeal from a conditional nolo contendere plea may be taken from “the adverse determination of any motion made prior to the close of evidence . . . .” (Emphasis added.) Before a defendant may appeal from the denial of a motion under § 4003 (b), however, he must satisfy a series of requirements. The conditions precedent to appellate review are: (1) the defendant must reserve “in writing the right, on appeal from the judgment, to review of the adverse determination”; Practice Book § 4003 (b); (2) court approval of entering the plea after a hearing to consider the state’s objections, (3) a determination by the trial court that an adverse ruling would have a significant impact on the disposition of the case, (4) there must be an adequate record for review, and (5) the defendant must specify the motion, the denial of which the defendant is reserving the right to appeal. Practice Book § 4003 (b); State v. Piorkowski, supra, 236 Conn. 418.

In the present case, the defendant neither sought nor received the trial court’s approval to condition his nolo plea on the right to appeal those issues not within the scope of § 54-94a or § 4003 (a). The mandated hearing was not held and the record does not indicate that the trial court determined the significant impact or adequate record requirements of the rule. Furthermore, the written plea of nolo contendere failed to specify the motion on which the defendant conditioned his right to appeal. It is readily apparent that the defendant has failed to satisfy any of the prerequisites to appeal under § 4003 (b).

The defendant relies on State v. Ballantyne, 17 Conn. App. 209, 211, 551 A.2d 770 (1988), to support his position that he should be allowed to appeal under § 4003 despite his failure to comply with its provisions. In Ballantyne, this court excused the trial court’s failure to make an explicit finding on the record of the impact of the nolo contendere plea as required by § 4003 (b). Because the trial court that took the plea in Ballantyne, however, also presided over the suppression motion, Ballantyne held that the court had acquired sufficient knowledge of the case so that “[ijmplicit in the [trial] court’s decision to accept the plea was the determination that the defendant’s motion to suppress would have a significant impact on the outcome of the case.” Id., 212. Our Supreme Court has similarly approved of implicit determinations of the conditions of § 4003 (b). State v. Piorkowski, supra, 236 Conn. 420.

Unlike theBallantyne and Piorkowski courts, we are not able to conclude that the trial court in the present case implicitly made the determinations required by § 4003 (b). Here, the trial court that accepted the defendant’s nolo contendere plea did not preside over the suppression hearing and had no independent knowledge of the case. We cannot conclude that the trial court accepting the plea had reason to believe, on the basis of the printed plea form before it, that the defendant would seek appellate review of issues falling outside the ambit of § 54-94a or § 4003 (a).

In summary, because these nonvoluntariness claims are not claims that can be reviewed pursuant to either § 54-94a or § 4003 (a) and because the defendant did not satisfy the predicate requirements of § 4003 (b), his plea waived his right to appeal the denial of his motion to suppress on any ground other than the involuntariness of his statements.

C

Despite the defendant’s failure to qualify his claims under either the statute or the rule of practice, we also consider whether we may appropriately review his claims other than involuntariness under our general supervisory powers. Practice Book § 4183. We are mindful of the need to conserve judicial time and resources; see State v. Chung, 202 Conn. 39, 45, 519 A.2d 1175 (1987); and in appropriate circumstances we will exercise our powers of supervision and control over proceedings on appeal in the spirit of the purpose of our rules, namely to facilitate business and advance justice. O’Bymachow v. OBymachow, 10 Conn. App. 76, 78, 521 A.2d 599 (1987). We will not, however, exercise those powers to allow litigants to circumvent rules of practice. See North Park Mortgage Services, Inc. v. Pinette, 27 Conn. App. 628, 633, 608 A.2d 714 (1992).

The state’s position is not merely a hypertechnical argument designed to obstruct the defendant’s appeal without any concomitant benefit to the state. The state did not become aware of the defendant’s intention to raise issues other than those delineated in § 54-94a until after the appeal was taken. The state did not have the opportunity to object to the plea or to argue the impact of the plea on the disposition of the case. The state was also deprived of the opportunity to be heard by the trial court on the adequacy of the record for appellate review.

Our Supreme Court has recognized the problems inherent in denying the state the opportunity to be heard with regard to § 54-94a: “[T]he [trial] court is not in a position to evaluate adequately such prosecutorial concerns as the significance of a particular ruling to the ultimate disposition of a case or the problems entailed by delaying a trial for the period necessary to obtain appellate review. The prosecutor is ordinarily much more familiar with the evidence to be presented that may not be affected by the ruling and also with the effect of delay incident to an appeal upon the availability of witnesses. Even where the prosecutor looks favorably on the conditional plea . . . the parties, as well as the trial court, must be sure that the issues reserved can properly be reviewed on the record available.” State v. Madera, supra, 198 Conn. 101-102.

Accordingly, we decline to exercise our supervisory powers to review claims that the defendant did not properly raise under § 4003 (b).

II

The defendant next claims that the trial court improperly found that he orally confessed to the Grincunas burglary and also improperly found that his oral confession was preceded by a valid Miranda waiver.

A

Whether the defendant orally confessed to the Grin-cunas burglary is an issue of fact. Fact-finding, including resolving questions of credibility of witnesses, is a function of the trial court. Drabik v. East Lyme, 234 Conn. 390, 394-95, 662 A.2d 118 (1995). This court will not disturb those findings unless they are clearly erroneous. Id., 394.

Henderson testified that the defendant orally acknowledged his participation in the burglary before his statement was reduced to writing. Upon finding Henderson’s testimony to be credible, the trial court found that the defendant orally implicated himself in the Grincunas burglary before his statement was transcribed. Accordingly, we conclude that the trial court’s finding was supported by the evidence and was not clearly erroneous.

B

We next address whether the trial court properly found that the defendant’s oral confession to his participation in the Grincunas burglary was preceded by a valid Miranda waiver.

The purpose of Miranda warnings is to assure that a confession is the product of an “essentially free and unconstrained choice by its maker.” (Internal quotation marks omitted.) State v. Madera, 210 Conn. 22, 48, 554 A.2d 263 (1989). In accordance with the well established test of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), a defendant must intentionally relinquish or abandon his Miranda rights in order for a waiver of those rights to be valid. The state bears the burden of proving, by a preponderance of the evidence, that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights. State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992).

When considering the validity of a claimed waiver, we examine the totality of the circumstances surrounding it. State v. Madera, supra, 210 Conn. 49. Factors used to assess the totality of the circumstances include the age of the accused, the extent of his education, evidence concerning advisement of constitutional rights and the length and nature of the interrogation. State v. Toste, 198 Conn. 573, 584, 504 A.2d 1036 (1986). Although we usually defer to findings made by the trier of fact, such deference is qualified in questions of this nature by the need to examine the record scrupulously to ascertain whether the factual findings were supported by substantial evidence. State v. Stanley, supra, 223 Conn. 686.

In claiming that the record is insufficient to support a conclusion that the state sustained its burden of demonstrating waiver, the defendant relies on State v. Wilson, 183 Conn. 280, 439 A.2d 330 (1981). In Wilson, the record was devoid of any evidence that the defendant expressly waived his Miranda rights. Id., 287. In this case, however, the record contains direct testimony that the defendant expressly agreed to make an oral statement after he waived his rights. The record also contains nontestimonial evidence, including the signed waiver cards, that indicate an express waiver. Because direct evidence was presented in support of the express waiver, the defendant’s reliance on Wilson is misplaced.

The record reveals that the defendant is literate, had completed the tenth grade, and was familiar with the Miranda warnings from previous experiences with the legal system. Additionally, the defendant was advised of his Miranda rights three times before giving the oral statement in question. He was advised of his rights and executed an express written waiver during the preparation of his first written statement inculpating himself in the two unrelated burglaries. The defendant testified that before giving each of his written statements, he had read the rights printed on the Miranda card, read the card aloud to Henderson, understood the rights, and signed the card waiving those rights. After being confronted with his codefendant’s account of the Grin-cunas burglary and after being advised of his rights for a fourth time, the defendant orally confessed to his participation in the burglary.

On the basis of on our thorough examination of the record, we conclude that there was substantial evidence to support the trial court’s finding that the defendant validly waived his constitutional protections of silence and legal counsel before orally confessing to the Grincu-nas burglary.

Ill

In addition to claiming that his oral statement was not supported by a valid Miranda waiver, the defendant also claims that the trial court should have suppressed his oral statements because they were made involuntarily. Irrespective of Miranda, due process of law prohibits the state from using an involuntary confession at trial. Brown v. Allen, 344 U.S. 443, 475, 73 S. Ct. 397, 97 L. Ed. 469 (1953). The state has the burden of proving the voluntariness of a confession by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v. Smith, 200 Conn. 465, 477, 512 A.2d 189 (1986). Unless that burden is met, a confession compelled by pressure from a police officer is inadmissible. State v. Smith, supra, 476. The question of voluntariness is one of fact for determination by the trial court in the exercise of its discretion, subject to the constitutional standards of due process. State v. Derrico, 181 Conn. 151, 162-63, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

“Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, supra, 479 U.S. 167. If that predicate exists, we must ultimately determine whether the confession is the product of an essentially free and unconstrained choice by its maker, that is, whether the confessor’s will has been overborne and his capacity for self-determination critically impaired, so that the use of the confession offends due process. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).

The crux of the defendant’s argument is that the police brought him to the station for questioning in the Waterbury burglaries as a ruse to compel his confession to felony murder. The defendant has a tenth grade education, is literate and repeatedly claimed to understand the rights on the Miranda card. The defendant testified that he knew that police wanted to question him about some burglaries in addition to the Grincunas homicide. In an exercise of caution, the police advised the defendant of his Miranda rights before each separate interrogation. The defendant himself asked to change an earlier statement once his codefendant confessed. Although the defendant was in custody for thirteen hours, there is nothing in the record to support a finding of coercive police activity.

Accordingly, we conclude that the record supports the trial court’s finding that the state met its burden of proving that the confession was voluntary.

The judgment is affirmed.

In this opinion LANDAU, J., concurred.

SHEA, J.,

concurring. I agree with the majority opinion in so far as it rejects the defendant’s claim that his oral confession to the police should have been suppressed because the evidence does not support the finding of the trial court that he confessed voluntarily after validly waiving his constitutional lights in accordance with the procedure prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). I disagree, however, with the position taken in part I C of the opinion, that the supervisory authority of the court should not be exercised in this case to consider the remaining ground on which the defendant relies for excluding his confession.

That ground is the claimed failure of the police to present the defendant promptly for arraignment, as required by General Statutes (Rev. to 1991) § 54-lg, after he had confessed to two unrelated burglaries and had been effectively placed in police custody on the basis of those confessions. The defendant maintains that, instead of arraigning him promptly in accordance with the statute, the police held him for several hours so that they could complete their investigation of the murder in which he ultimately implicated himself by confessing to the burglary that is the basis for his conviction of felony murder.

I

In State v. Chung, 202 Conn. 39, 43-45, 519 A.2d 1175 (1987), the Supreme Court exercised its inherent supervisory authority over the administration of justice in order to review a claim that a confession was involuntary prior to the 1988 amendment of General Statutes § 54-94a, permitting such a claim to be raised after denial of a motion to suppress a confession on the ground of invohmtariness. See Public Acts 1988, No. 88-19. “[T]o force [a] defendant to go through an entire trial to preserve the right to appeal the pretrial ruling, under the facts of this case, would be a waste of judicial time and resources.” State v. Chung, supra, 45. The court went on to review the claim of involuntariness, despite the limited scope of the statute at that time, even though the defendant at the suppression hearing had claimed only an invalid waiver of his Miranda rights. Id., 46-47.

Similarly, this court, following the view of Chung that strict adherence to procedural statutes and rules of practice must give way to the overriding necessity of administering justice in a fair and efficient manner, should invoke its supervisory authority to review the defendant’s remaining ground for excluding his confession rather than to leave pending a claim likely to resurface in a future habeas corpus proceeding. It may be well to call the attention of the bar to the not infrequent failure to conform to the procedures prescribed by § 54-94a and Practice Book § 4003, but we should not impose the burden of piecemeal litigation on the judicial system when it can be avoided simply by exercising our supervisory authority to address the merits of the defendant’s claim that his confession resulted from his detention by the police in violation of § 54-lg. Practice Book § 6 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”

The concern of the majority that we should not exercise our supervisory powers “to allow litigants to circumvent rules of practice” would leave few occasions for resort to those powers. When the rules have been followed, there is seldom any need for us to exercise those supervisory powers. Usually, it is when attorneys or trial courts have bungled by failing to comply with some procedural requirement that an appellate court will exercise its authority to disregard the nonconformity so that the judicial system may function fairly and efficiently in a particular case.

Contrary to the view of the majority, the state had sufficient opportunity “to object to the plea” and “to argue the impact of the plea on the disposition of the case.” Nothing in the record suggests that the defendant entered his nolo contendere plea ex parte. If, during the plea proceeding, the state had voiced the objections now raised on appeal, the trial court undoubtedly would have insisted on compliance with § 4003 (b) before accepting the plea. In any event, the state could hardly have argued that the defendant’s plea would not have had a “significant impact on the disposition of the case in the trial court”; Practice Book § 4003 (b); because the admissibility of the confessions was the critical issue in the case. The state has not indicated the nature of the argument it might have advanced in the trial court concerning significant impact.

The state similarly had an opportunity to object to the sufficiency of the record for appellate review. In this appeal, no claim has been raised that the record is inadequate for review of any of the defendant’s claims. This court implicitly has found the record sufficient for review of the issues of voluntariness and Miranda compliance by resolving those issues on appeal. The same record, consisting of the transcript of the hearing on the motion to suppress at which those issues together with the issue of untimely arraignment were considered, is equally sufficient for review of the defendant’s remaining claim involving the latter issue.

II

Section 54-lg provides in part that “[a]ny arrested person who is not released sooner . . . shall be promptly presented before the superior court sitting next regularly for the geographical area where the offense is alleged to have been committed. . . .” A related statute, General Statutes § 54-lc, renders inadmissible “[a]ny admission, confession or statement, written or oral, obtained from an accused person who has not been presented ... on the day specified for arraignment under the provisions of section 54-lg . . . .” In a comprehensive memorandum of decision, the trial court that ruled on the motion to suppress found that the defendant was taken into police custody at 6:40 a.m. on January 15, 1993, after confessing to two burglaries in the neighborhood where the murder victim had lived. The interrogation preceding this confession had begun at 1:45 a.m. The defendant claims that he should have been arrested for the unrelated burglaries promptly after his confession and presented for arraignment at the session of the Superior Court in Waterbury that began at 10 a.m. that day. He contends that the police held him at the police station for the propose of obtaining a confession from him with respect to the crime of felony murder, to which he confessed some time after 3 p.m. He was formally arrested on a warrant issued some time after 4 p.m. on Friday, January 15,1993, but was not arraigned until the following Tuesday because of the intervening weekend and a legal holiday.

The provision of § 54-lg requiring an arrested person held in custody to be “promptly presented before the superior court sitting next regularly” has been construed by this court to refer to the “next regularly scheduled court date.” State v. Hardy, 11 Conn. App. 238, 239, 526 A.2d 562 (1987). In State v. Vollhardt, 157 Conn. 25, 39, 244 A.2d 601 (1968), our Supreme Court had construed the phrase “session next held” of the statutory predecessor of § 54-lg to mean the session held on “the day following [the] arrest” of a defendant. The Vollhardt court relied on State v. Darwin, 155 Conn. 124, 134, 230 A.2d 573 (1967), rev’d on other grounds, 391 U.S. 346, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968), in which the court had held that the term “ ‘next session’ . . . referred to the regular session . . . next to be held, excluding any session on the day on which the arrest was made.” See State v. Piorkowski, 236 Conn. 388, 395 n.10, 672 A.2d 921 (1996).

In Darwin, the arrest had been made at 9:40 a.m., twenty minutes before the session of the arraignment court began. The defendant attempts to distinguish Darwin and its progeny from this case on the ground that there was ample time, two hours and twenty minutes, between his arrest at 6:40 a.m. and the opening of the Superior Court in Waterbury at 9 a.m. for the police to have presented him for arraignment at that session. Despite this fact, however, I conclude that the police as well as the trial court were entitled to rely on the long-standing construction of the term “next session” adopted in Darwin, “excluding any session on the day on which the arrest was made.” State v. Darwin, supra, 155 Conn. 134.

Accordingly, I concur in the judgment.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of noryurisdictional defects in the criminal prosecution.”

       Practice Book § 4003 provides: “(a) When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of noryurisdictional defects in the criminal prosecution. The court shall not accept a nolo contendere plea pursuant to this subsection where the denial of the motion to suppress would not have a significant impact upon the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere plea where the record available for review of the denial of the motion to suppress or motion to dismiss is inadequate for appellate review of the court’s determination thereof.
      “(b) With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw the conditional plea of nolo contendere after the case has been remanded to the trial court. The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not have a significant impact on the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       This court’s jurisdiction to review appeals of convictions based on nolo contendere pleas arises out of General Statutes § 54-95.

        Piorkowski was decided after this court heard oral argument on the present case.

         Practice Book § 4183 provides in pertinent, part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate . . .

       General Statutes (Rev. to 1991) § 54-lg provides: “Time of arraignment. Any arrested person who is not released sooner or who is charged with a family violence crime as defined in section 46b-38a shall be promptly presented before the superior court sitting next regularly for the geographical area where the offense is alleged to have been committed. If an arrested person is hospitalized, or has escaped or is otherwise incapacitated, the person shall be presented, if practicable, to the first regular sitting after return to police custody.”


author: HENNESSY, J.

text:
    CHARLES G. GIBSON ET AL. v. JOHN A. CAPANO ET AL.
    (13625)
    O’Connell, Foti and Hennessy, Js.
    Argued November 28, 1995
    officially released June 4, 1996

      Alan R. Spirer, for the appellants (defendants).

      Lois M. Lyons-Gibson, for the appellees (plaintiffs).
   HENNESSY, J.

The defendants, John A. Capano and Maria Capano, appeal from the judgment rendered in favor of the plaintiffs, Charles G. Gibson and Lois Gibson, after a trial before a jury. The plaintiffs brought the complaint in two counts, alleging fraudulent misrepresentation and innocent misrepresentation in the context of their purchase of a house from the defendants. The defendants claim that the trial court improperly (1) denied the defendants’ motion for a directed verdict regarding the claim of innocent misrepresentation, (2) denied the defendants’ motion for judgment notwithstanding the verdict, (3) denied the defendants’ motion for remittitur, (4) denied the defendants’ motion to set aside the verdict, and (5) rendered judgment on the jury’s verdict without deducting the amounts the plaintiffs received from settlement with the former defendants, Home Maintenance, Inc., and Carl Fritz, doing business as A & A Exterminating. We agree with the defendants that the trial court improperly denied the defendants’ motion for a directed verdict regarding the claim of innocent misrepresentation and reverse the judgment on that ground.

At the close of the plaintiffs’ case, the trial court denied the defendants’ motion for a directed verdict on the issue of innocent misrepresentation. At the end of the case, the defendants moved for a judgment notwithstanding the verdict on the same issue. “Our review of the trial court’s refusal to direct a verdict requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached [its] conclusion.” (Internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 610, 662 A.2d 753 (1995).

The evidence, viewed in the light most favorable to the plaintiff, establishes the following: The defendants owned and resided in a house in Norwalk from 1980 until January 17, 1987. While the defendants resided in the house, the defendant John A. Capano performed extensive remodeling and redecorating, which gave him access to the inside of many of the walls. On December 7, 1986, the plaintiffs entered into a binder agreement with the defendants for the purchase of the house. The agreement provided that the sale was conditioned on satisfactory building and termite inspections. By December 12, 1986, both the building and termite inspections had been performed. As a result of the termite inspection, the plaintiffs learned that the house had earlier been treated for termites. The plaintiffs then asked the defendants about the nature and extent of the earlier termite treatment and whether the chemical chlordane had been used to treat the premises for the termites. The defendant John A. Capano replied: “The only place that I saw any termite damage was in the area that I took the door out of that side wall of the dining room. There was slight damage in the area of the door sill. It started and stopped right there. It didn’t go any further, and we did lots of work here. And that is the only place that I saw any damage.” With respect to the chlordane, the defendants told the plaintiffs that they did not have to worry about that because they had contacted the treating company and chlordane had not been used. The plaintiffs purchased the house and later discovered extensive termite damage and that chlordane had been used.

The plaintiffs brought a two count complaint alleging fraudulent misrepresentation and innocent misrepresentation. The jury returned a verdict for the defendants on the fraudulent misrepresentation count and in favor of the plaintiffs on the innocent misrepresentation count. The jury answered the following interrogatories concerning the innocent misrepresentation issue in the affirmative: “Have the [plaintiffs] proven by a fair preponderance of the evidence all of the following: 1. The [defendants], in selling the property to the [plaintiffs], made a representation of material fact; 2. The representation was made for the purpose of inducing the [plaintiffs] to purchase the property; 3. The representation was not true; 4. The [plaintiffs] relied upon the misrepresentation; 5. The [plaintiffs] were justified in relying upon the representation?”

The defendants argue that the trial court should have directed judgment in their favor because the tort of innocent misrepresentation requires that the seller making the representation be more than a mere homeowner, i.e., the seller must possess a special means of knowledge. Therefore, they argue that the jury could not have reasonably and legally concluded that the defendants were more than mere homeowners. This issue requires us to examine the legal requirements of a claim of innocent misrepresentation and, specifically, the element of justifiable reliance.

The defendants’ claim that innocent misrepresentation does not apply to mere homeowners focuses on the juiy’s finding that the plaintiffs justifiably relied on the misrepresentation. In the case of Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967), our Supreme Court framed this question as whether “the [plaintiff] had reasonable grounds to attribute to the defendants] accurate knowledge of what it represented . . . .” Our Supreme Court evinced a similar test in Johnson v. Healy, 176 Conn. 97, 103, 405 A.2d 54 (1978), when it concluded that the defendant’s false statement “could reasonably have been heard by the plaintiff as an assertion that the defendant had sufficient factual information to justify his general opinion about the quality of the house.” An innocent misrepresentation is actionable when the declarant “has the means of knowing, ought to know or has the duty of knowing the truth.” Richard v. A. Waldman & Sons, Inc., supra, 346; see Johnson v. Healy, supra, 101.

In both Richard v. A. Waldman & Sons, Inc., supra, 155 Conn. 346-47, and Johnson v. Healy, supra, 176 Conn. 102-103, our Supreme Court relied on the specialized knowledge of the defendants to conclude that the reliance was justified. In Richard v. A. Waldman & Sons, Inc., supra, 346-47, the court held that the statement on which the defendant relied “was a statement of fact about which the defendant, as a developer of residential real estate, had special means of knowledge, and it was a matter peculiarly relating to its business and one on which the plaintiffs were entitled to rely.” The court further noted the defendant’s extensive commercial involvement concerning the issue about which it had made the misrepresentation. Id., 347. In Johnson v. Healy, supra, 102-103, our Supreme Court concluded that “[although the defendant vendor had built no houses other than this one, this information was not disclosed to the buyer until the sale had been concluded; the defendant had been otherwise engaged in the real estate business for about thirty years.”

In the case before us, the plaintiffs relied on the defendants’ statements that they saw termite damage only in one place and that chlordane had not been used. They claim that they justifiably relied on this assertion because the defendants had the means of knowing the truth as a result of the substantial work that they had performed throughout the house. These facts alone, however, do not support the specialized knowledge requirement of a cause of action for innocent misrepresentation. The plaintiffs did not produce evidence that the defendants held themselves out to have specialized knowledge in the area of detecting termites or termite damage or in the use of pest control chemicals. The plaintiffs failed to allege or prove that the defendants’ statement concerning the termites was anything more than a lay opinion concerning termite activity. Furthermore, the assertion concerning the chemicals was made in the context of having contacted an expert on that issue. These facts do not support a claim that the defendants had a specialized knowledge of whether chemicals were used.

The plaintiffs’ argument relies primarily on the case of Strickland v. Vescovi, Superior Court, judicial district of New London, Docket No. 058673 (November 26, 1985) (12 Conn. L. Trib. No. 11, p. 21 [1986]). The plaintiffs argue that Strickland stands for the proposition that innocent misrepresentation applies to mere homeowners. This reliance is misplaced. In Strickland, the defendants had sold a house to the plaintiffs representing that it could be occupied legally by two families. Id. The defendants had rented the property as a two-family house for approximately fifteen years. Id. After the plaintiffs purchased the house, they learned that the house was in a one-family residential zone. Id. The trial court, Berdon, J., held that a cause of action for innocent misrepresentation existed. Id. In Strickland, the court found that it was without dispute that the defendants had leased the property to others over a period of fifteen years. Id. Under those circumstances, Strickland is consistent with the proposition that a specialized knowledge is required for the tort of innocent misrepresentation. The buyer, therefore, could justifiably rely on the seller’s statements concerning the renting of the premises.

The plaintiffs also rely on Warman v. Delaney, 148 Conn. 469, 172 A.2d 188 (1961), for the proposition that innocent misrepresentation applies to mere homeowners. Warman is not applicable here because that action was decided on the basis of fraudulent misrepresentation. Id., 473-74. In this case, the jury found in favor of the defendants on the fraudulent misrepresentation count.

We conclude that the jury could not reasonably and legally have reached its conclusion that the plaintiffs justifiably relied on the defendants’ statements concerning termite activity and the use of chlordane because the plaintiffs failed to produce evidence that the defendants possessed a specialized knowledge of termite detection or determining termite damage or the use of pest control chemicals. As a result of the plaintiffs’ failure to prove that the defendants possessed a specialized knowledge, the claim of innocent misrepresentation must fail and the defendants’ motion for a directed verdict should have been granted.

Because we remand this case to the trial court with direction to set aside the jury’s verdict on the innocent misrepresentation count and to render judgment for the defendants on that count, we do not reach the defendants’ remaining claims.

The judgment of the trial court with respect to the innocent misrepresentation count is reversed and the case is remanded with direction to grant the defendants’ motion to set aside the verdict and to render judgment for the defendants.

In this opinion the other judges concurred.

       The plaintiffs filed actions against Home Maintenance, Inc., claiming negligence in its inspection of the premises, and Carl Fritz, doing business as A & A Exterminating, claiming negligence in conducting its termite inspection of the premises. The plaintiffs settled those actions in exchange for total payments of $104,000.

       While we do not ordinarily cite Superior Court cases, we do so here because the plaintiffs rely primarily on Strickland v. Vescovi, supra, to support their argument.


author: FOTI, J.

text:
    JANA BATTISTONI ET AL. v. WEATHERKING PRODUCTS, INC., ET AL.
    (14109)
    Dupont, C. J., and Foti and Spear, Js.
    Argued February 23
    officially released June 4, 1996

      RobertR. Sheldon, with whom was Jason E. Tremont, for the appellants (plaintiffs).

      Carol K. Young, with whom, on the brief, were Ann M. Siczewicz and Michael Montecalvo, for the appellee (named defendant).
   FOTI, J.

The named plaintiff, Jana Battistoni, appeals from the judgment of the trial court granting the named defendant’s motion for summary judgment. The plaintiff alleges that the trial court improperly concluded (1) that the lack of adequate warnings was not a proximate cause of the accident and (2) that the dangers to the plaintiff of diving into the swimming pool were open and obvious. The plaintiff claims that the trial court improperly granted summary judgment by deciding these issues of material fact as a matter of law. We agree and reverse the trial court’s judgment.

The following facts are not in dispute. The defendant Weatherking Products, Inc. (Weatherking), was the manufacturer of a Grecian steel wall vinyl liner pool, which it manufactured and distributed for sale in several states, including the state of Connecticut. The defendant Gregorio Associates, Inc., was a corporation engaged in the business of selling, installing and servicing swimming pools, including the Weatherking Grecian steel wall vinyl liner pool. Sometime after October 19, 1987, but before April, 1988, Gregorio Associates sold and installed, in-ground, a Weatherking Grecian steel wall vinyl liner pool to James O’Leary and Barbara O’Leary of Goshen.

On June 20, 1990, the plaintiff, who was then twelve years old, attended a pool party for Monica O’Leary’s birthday at the O’Learys’ home. The plaintiff, with the permission of the O’Learys, swam in the pool with the other invited guests. Sometime after 6 p.m. on that date, the plaintiff dived into the shallow end of the O’Learys’ pool and struck her head on the bottom. As a result of the accident, the plaintiff suffered serious, permanent injuries that rendered her a quadriplegic.

On the day of the accident, there were no signs permanently affixed or adjacent to the pool cautioning “no diving” nor were there any immovable signs attached to the pool advising of the potential hazards, dangers and risks associated with diving into shallow water. Also absent from the pool and its liner were depth markers indicating the varying depths of the water within the pool.

In May, 1992, the plaintiff brought this action against Weatherking and Gregorio Associates, Inc., for alleged violations of the Connecticut Product Liability Act, General Statutes § 52-572m et seq. The plaintiff claimed that the pool manufactured by Weatherking was dangerous and defective in that Weatherking failed to affix to the pool depth markings and warnings of the risk of potential harm to users that could not be removed by the homeowner. In July, 1994, after the action was withdrawn as to Gregorio Associates, Inc., Weatherking moved for summary judgment alleging, inter aha, that its actions did not proximately cause the plaintiffs injuries and that no genuine issue of material fact existed with respect to this claim. Weatherking also posited that the potential dangers of diving headfirst into shallow water are open and obvious to the typical pool user and, therefore, the defendant was under no duty to warn.

Weatherking submitted to the trial court only one document, the deposition of the plaintiff, in support of its motion for summary judgment. The following relevant facts were disclosed through the plaintiffs deposition testimony. The plaintiff began to swim at approximately three years of age and learned to dive between the ages of nine and ten. Prior to the date of the accident, she had swum at various places including a YMCA pool, Tyler Lake, a pool at her grandmother’s condominium in Florida, Woodridge Lake and at a pool reserved for residents of Woodridge Development where the plaintiff lived.

On at least two, and possibly as many as four occasions prior to the accident, the plaintiff also had swum in the O’Learys’ pool. On those previous occasions, the plaintiff swam in all areas of the O’Learys’ pool, including both the deep and shallow portions and, therefore, was familiar with both the configuration of the O’Learys’ pool and the fact that the pool contained varying depths of water. The plaintiff was aware that at the deep end of the pool the water went over her head and that at the shallow end it did not. The plaintiff, however, did not know the precise numerical depth of the pool at any of its various locations.

The plaintiff had never received any formal training in either swimming or diving. The plaintiff was not a member of any swimming or diving team, club or group. Madelyn Battistoni had been the plaintiffs sole instructor for both of these activities and had warned the plaintiff about the dangers of diying into a body of water where it was not feasible to determine the depth of the water. Prior to the accident, the plaintiff knew that if she dived too deep into the shallow end of a pool, she could hit the bottom and be injured. The plaintiff, however, did not know that by hitting the bottom of the pool she could sustain a spinal cord injury, permanent paralysis or serious injury. She believed that the worst injury she could possibly sustain in such an accident would be trauma to her face, such as a broken nose or a chipped tooth. On the day of the accident, just prior to making the dive, the plaintiff was aware that she was diving into shallow water.

In opposition to Weatherking’s motion for summary judgment, the plaintiff presented several supporting documents, including the plaintiffs affidavit and deposition testimony, the depositions of two witnesses to the accident and the depositions of Jonathan DeMichel, and Samuel Glucksberg. The plaintiffs evidence notwithstanding, the trial court granted Weatherking’s motion for summary judgment and issued a written memorandum of decision.

The trial court concluded that “the plaintiff has failed to establish that the alleged failure to warn by [Weath-erking], was the proximate cause of her injuries. Rather, given her experience as a swimmer, her familiarity with pools and the O’Learys’ pool in particular, and her admission that she knew she was diving into shallow water, a reasonable mind could only conclude that her own action was the proximate cause of her injury. Her awareness of the possibility of physical harm as a result of diving into shallow water shows that a warning would have only communicated what the plaintiff already knew. Therefore, such a warning would have had no effect on her decision to dive in.” The trial court also held that “because the danger of diving headfirst into shallow water is an open and obvious one, the manufacturer has no legal duty to warn of such a danger which is readily ascertainable from the characteristics of the pool.”

The plaintiff appealed from the summary judgment rendered by the trial court. In response, Weatherking argues that the trial court’s judgment was entirely appropriate.

The dispositive issue for this court to decide in this products liability appeal is whether the evidence before the trial court raised a genuine issue of material fact regarding whether the conduct of Weatherking was the proximate cause of the plaintiffs injuries. More specifically, we must determine, given the plaintiffs knowledge that she was diving into the shallow end of the pool and her understanding that such an action could result in injury, whether a reasonable mind could conclude only that the plaintiff would have elected to perform the dive even if there had been depth markings and warnings installed on the pool on the day of the accident. We conclude that this query presented a genuine issue of material fact to be determined by a jury and that the trial court improperly granted the defendant’s motion for summary judgment. We, therefore, need not address the issue of whether the dangers of diving into shallow water are so “open and obvious” as to negate the necessity of a pool manufacturer to affix depth markings and warnings to its product.

The standard of appellate review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 provides that “[t]he judgment sought 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.” “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . 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.” (Citations omitted; internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991); see also Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991), on appeal after remand, 229 Conn. 842, 643 A.2d 1282 (1994); Sharp v. Wyatt, Inc., 31 Conn. App. 824, 832, 627 A.2d 1347, aff'd, 230 Conn. 12, 644 A.2d 871 (1994); Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 165-66, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992). “The mere presence of an adverse claim, however, will not in itself defeat the motion.” Sharp v. Wyatt, Inc., supra, 832.

The plaintiff first claims that the trial court improperly granted Weatherking’s motion for summary judgment on the plaintiffs product liability claims. The plaintiff argues that she was completely unaware of the possibility of incurring a spinal cord injury from diving into shallow water. The plaintiff contends that if Weath-erking had placed permanent depth markings and warnings on the pool, advising of the risks associated with diving into the pool and the potential for serious bodily injury, the plaintiff would not have performed the dive in question. Moreover, the plaintiff asserts that the determination of whether the plaintiff would have executed the dive had there been warnings installed on the pool is a question for the trier of fact and that the trial court, therefore, improperly granted Weatherking’s summary judgment motion.

Conversely, Weatherking maintains that on the basis of the plaintiffs deposition testimony, no genuine issue of material fact existed regarding whether the alleged failure to warn caused the plaintiffs injuries. Weath-erking argues that the plaintiffs statements regarding her familiarity with the O’Learys’ pool, her knowledge that she was diving into shallow water and her acknowledgment that she was aware that an injury could result from diving into shallow water conclusively established that the existence of a warning would not have prevented the plaintiff from executing the dive in question. Weatherking contends that even if the warnings argued for by the plaintiff had been present, the plaintiff would nonetheless have made the dive in question and the plaintiffs injuries would have occurred.

“ ‘In a products liability action, the plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiffs injuries.’ Wierzbicki v. W. W. Grainger, Inc., 20 Conn. App. 332, 334, 566 A.2d 1369 (1989), citing Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987).” Haesche v. Kissner, 229 Conn. 213, 218, 640 A.2d 89 (1994). “A product is defective when it is unreasonably dangerous to the consumer or user.” Sharp v. Wyatt, Inc., supra, 31 Conn. App. 833. The established rule in Connecticut is that “[a] product may be defective because a manufacturer or seller failed to warn of the product’s unreasonably dangerous propensities.” Tomer v. American Home Products Corp., 170 Conn. 681, 689, 368 A.2d 35 (1976); see also General Statutes § 52-572q; Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 235, 429 A.2d 486 (1980). “Under such circumstances, the failure to warn, by itself, constitutes a defect.” Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 645, 514 A.2d 352, cert. denied, 201 Conn. 809, 515 A.2d 378 (1986).

General Statutes § 52-572q (c) governs the issue of causation in warnings cases. That statute provides in part that “the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm.” “Questions regarding the existence of a causal link classically are reserved for determination by the trier of fact.” Sharp v. Wyatt, Inc., supra, 31 Conn. App. 835; Haesche v. Kissner, supra, 229 Conn. 218. Proximate cause “becomes a question of law only when the mind of a fair and reasonable person could reach only one conclusion .... The question should be submitted to the trier of fact if there is room for a reasonable disagreement. ” (Internal quotation marks omitted.) Hall v. Winfrey, 27 Conn. App. 154, 158, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992).

In her deposition, the plaintiff testified that she believed that the most severe trauma an individual could sustain by diving into the shallow end of a swimming pool was a chipped tooth, a broken nose or a facial injury. The plaintiff stated that she had swum in the O’Learys’ pool previously and was familiar with its contours, configuration and varying water depths. She also testified that just prior to executing the dive in question, she knew she was diving into shallow water. The plaintiff testified in her deposition that had she known of the possibility of incurring a spinal cord injury, permanent paralysis or serious bodily injury, she would not have performed the dive in question. These facts, taken together, do not conclusively establish that the plaintiff would have dived into the pool even if warnings and depth markings, advising of the hazards of diving into shallow water, were posted on the pool.

Despite this testimony, the trial court concluded that, as a matter of law, warnings to the plaintiff, instructing of the dangers of diving into shallow water, would not have prevented the plaintiffs accident. For the court to have reached this conclusion, it must have discredited the deposition testimony of the plaintiff as well as the other depositions submitted by the plaintiff in its opposition to Weatherking’s motion. Issues of credibility, however, are exclusively within the province of the trier of fact; Berry v. Loiseau, 223 Conn. 786, 821, 614 A.2d 414 (1992); Caciopoli v. Acampora, 30 Conn. App. 327, 333, 620 A.2d 191 (1993); and should not be resolved for purposes of summary judgment. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978).

In viewing the evidence in the light most favorable to the plaintiff, we conclude that whether the lack of warnings and depth markings was the proximate cause of the plaintiffs injuries was a disputed issue of material fact that should be determined by a jury. A material fact is one that will make a difference in the result of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). Reasonable minds could reach differing conclusions as to whether the plaintiff would have made the dive in question even if Weatherking had affixed nonremovable, permanent warnings and depth markings to the pool and, therefore, Weatherking was not entitled to judgment as a matter of law.

The evidence presented by the plaintiff was sufficient to demonstrate a disputed factual issue and to substantiate her adverse claim in opposing summary judgment. Conway v. Wilton, 39 Conn. App. 280, 283-84, 664 A.2d 327, cert. granted, 235 Conn. 934, 667 A.2d 1271 (1995). Weatherking has failed to advance evidence in support of its motion for summary judgment to establish the absence of a factual dispute, thereby making summary judgment inappropriate. Town Bank & Trust Co. v. Benson, supra, 176 Conn. 307-308. It is Weatherking’s burden, as the moving party, to provide evidence to establish the absence of a material factual dispute. Gambardella v. Kaoud, 38 Conn. App. 355, 358, 660 A.2d 877 (1995). We conclude that on the basis of the evidence presented, summary judgment was not warranted.

The judgment is reversed and the case is remanded with direction to deny the motion for summary judgment and for further proceedings.

In this opinion the other judges concurred.

       Jana Battistoni’s mother, Madelyn Battistoni, is also a plaintiff in this case. Acting individually and as parent and next friend of Jana Battistoni, Madelyn Battistoni commenced this product liability action. Madelyn Battistoni’s claims against the defendant rest on the same legal and factual grounds as Jana’s claims. For the sake of clarity and because their claims will survive or be barred according to the disposition of the issues on appeal as applied to Jana, we refer to Jana as the plaintiff.

       In July, 1994, the action was withdrawn as to the defendant Gregorio Associates, Inc.

       Monica O’Leary is the daughter of James O’Leary and Barbara O’Leary.

       Weatherking caused to be issued, in conjunction with the sale of the pool, removable warning signs and decals. Although the O’Learys had received such signs and decals at the time of purchase, they had not installed the warning' labels onto the pool. At the time of the accident, therefore, the pool was substantially in the same condition as when it was sold.

       DeMichel was an officer of Gregorio Associates, Inc., who testified that no depth markers were provided with the pool.

         Glucksberg, a psychologist whom the plaintiff regarded as an expert in human factors, testified that the plaintiff was without knowledge that she could sustain a spinal cord injury, permanent paralysis or serious injury by diving into shallow water.