text:
    General Accident Insurance Company v. Susan McGee
    (11744)
    O’Connell, Lavery and Landau, Js.

      Argued September 30, 1993
    decision released February 22, 1994

      Barbara E. Crowley, with whom was Dennis N. Garvey, for the appellant (defendant).

      Michael J. Quinn, with whom, on the brief, was Jane Richardson, for the appellee (plaintiff).
   Lavery, J.

The defendant, Susan McGee, appeals from the judgment of the trial court vacating her arbitration award and denying her application to confirm the award. The defendant claims that the trial court improperly (1) conducted a de novo review of the arbitration decision rather than a limited review of whether the award conformed to the submission, (2) ruled that the defendant was not a named insured under her father’s Rhode Island insurance policy, (3) ruled that the defendant was not a resident relative of her father’s household, and (4) ruled that the owned vehicle exclusion would deny recovery under Rhode Island law. We reverse the judgment of the trial court.

The basic facts are as follows: The defendant, while operating her own vehicle, sustained injuries in an automobile accident on November 4,1988, in Beacon Falls. The tortfeasor’s liability was admitted and his insurance carrier paid the defendant $91,610. The defendant’s vehicle was insured under a policy issued by the plaintiff in Rhode Island with $100,000 uninsured motorist coverage. The defendant was also listed as one of the insured operators on the declarations sheet of her father’s automobile insurance policy, also issued by the plaintiff in Rhode Island. The defendant sought to recover damages under her father’s policy, which provided $300,000 underinsured motorist coverage.

The plaintiff denied liability under the policy and the matter was submitted to arbitration on the issues of coverage and damages pursuant to the policy. The arbitration was held in Connecticut. The parties stipulated that Rhode Island substantive law would be applied. A majority of the arbitrators ruled that the defendant was covered by her father’s policy and awarded her $195,049.15. A dissent argued that the majority impermissibly reformed the insurance contract by extending coverage to the defendant.

The plaintiff applied to the Superior Court to vacate the award; the defendant applied to confirm the award. Using Connecticut procedural law and Rhode Island substantive law, the trial court conducted a de novo review of the arbitrators’ award. The trial court ruled that the defendant was not covered by her father’s policy and that Rhode Island law prohibited her recovery. The trial court vacated the arbitration award and denied the motion to confirm.

I

The first issue to be resolved is whether the trial court appropriately conducted a de novo review rather than a limited review of whether the award conformed to the submission. The parties submitted this case to arbitration solely under the contractual provisions of the Rhode Island insurance policy. Rhode Island does not have a statute requiring binding arbitration of insurance coverage disputes. Moreover, the Connecticut statute requiring arbitration; General Statutes § 38a-336; applies only to contracts of insurance issued in Connecticut. Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41-42, 434 A.2d 304 (1980). Thus, since the arbitration was submitted under the contractual provision of the policy and not mandated by statute, the arbitration was voluntary and not compulsory.

The voluntary or compulsory nature of arbitration determines the scope of judicial review. Bodner v. United Services Automobile Assn., 222 Conn. 480, 486-87, 610 A.2d 1212 (1992). “ [Voluntary arbitration and compulsory arbitration are fundamentally different if only because one may, under our system, consent to almost any restriction upon or deprivation of right, but similar restrictions or deprivations, if compelled by government, must accord with procedural and substantive due process. ... To insulate statutorily mandated arbitration awards from judicial review for errors of law creates the anomaly that, without the consent of the parties, arbitrators are empowered to disregard the law in deciding issues affecting substantial rights. . . . The case is different where the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision.” (Citations omitted; internal quotation marks omitted.) Id., 487.

In short, de novo judicial review is appropriate where arbitration is compulsory. Id. Conversely, “when arbitration is consensual, rather than statutorily imposed, judicial review is limited in scope. ... If the parties mutually agree to submit their dispute to arbitration, the resulting award is not reviewable for errors of law or fact. . . . Judicial review of unrestricted submissions is limited to a comparison between the submission and the award to see whether, in accordance with the powers conferred upon the arbitrators, their award conforms to the submission. ...” (Citations omitted; internal quotation marks omitted.) Id., 487-88.

Because this case was submitted to arbitration with the consent of the parties, the trial court improperly conducted a de novo review. The trial court should have limited its review to a determination of whether the award conformed to the submission. We must likewise limit our review. Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992); Bodner v. United Services Automobile Assn., supra, 487. Therefore, we do not address the defendant’s second, third and fourth claims.

II

The final issue on appeal is whether the trial court properly vacated the arbitration award. Connecticut recognizes only “three grounds for vacating an award: (1) the award rules on the constitutionality of a statute . . . (2) the award violates clear public policy . . . or (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418.” (Citations omitted.) Garrity v. McCaskey, supra, 6.

Our review of the award reveals that it neither ruled on the constitutionality of a statute nor violated a clear public policy. Further, the plaintiff has not alleged and the award does not reveal any violations of § 52-418. Therefore, the award was improperly vacated.

In this case, the policy provided for arbitration of coverage and damages. Since the award was limited to coverage and damages, the award conforms to the submission. The award, therefore, should be confirmed.

The judgment is reversed and the case is remanded with direction to render judgment confirming the award.

In this opinion the other judges concurred.

       This payment exhausted the tortfeasor’s $100,000 policy because the remainder had been applied to the defendant’s property damage claim.

       We need not address whether the scope of review is a procedural or substantive issue and thereby determine which state’s standard applies. Under both states’ law, de novo review is inappropriate in this case. Compare Bodner v. United Services Automobile Assn., 222 Conn. 480, 486-87, 610 A.2d 1212 (1992), with Rhode Island Council 94 v. State, 456 A.2d 771, 773 (R.I. 1983).

       Having decided that the trial court used the wrong standard, we need not remand this case for a new hearing. Where the record suffices, we will determine whether the award should have been confirmed or vacated. See, e.g., Ceci v. National Indemnity Co., 225 Conn. 165, 176, 622 A.2d 545 (1993) (remanding with direction that trial court deny confirmation and vacate award); Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 22, 615 A.2d 1032 (1992) (remanding with direction that trial court confirm award); White v. Kampner, 31 Conn. App. 73, 79, 623 A.2d 514, cert. granted on other grounds, 226 Conn. 909, 625 A.2d 1379 (1993) (remanding with direction that trial court confirm award); Bio-Polymers, Inc. v. D’Arrigo, 23 Conn. App. 107, 111, 579 A.2d 122 (1990) (remanding with direction that trial court confirm award).

       General Statutes § 52-418 (a) provides in pertinent part: “Upon the application of any party to an arbitration, the superior court . . . or . . . any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing Upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    In re Donna M.

    (12537)
    Foti, Heiman and Spear, Js.
    Argued December 13, 1993
    decision released February 22, 1994

      Helen M. Doherty, for the appellant (respondent mother).

      Maureen A. Chmielecki, the appellee (petitioner), for the minor child.

      Paul J. Bakulski, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (department of children and families).

      Matthew J. Collins, for the appellee (respondent father).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Heiman, J.

The respondent mother appeals from the judgment of the trial court adjudicating her child neglected and committing the child to the custody of the department of children and youth services (DCYS). On appeal, the respondent mother claims, in part, that the trial court improperly (1) overruled her objection to commencing trial before an amended petition was filed identifying alleged acts of misconduct committed by her, in light of the court’s ruling that such amendment was to be allowed, (2) overruled her objection to commencing testimony relative to misconduct by her until the amended petition was filed, (3) allowed a mid-trial amendment to the neglect petition, (4) ordered a psychological evaluation of the parties and the minor child on April 21,1992, and (5) denied her request for blood testing. We reverse, in part, the judgment of the trial court.

The trial court found the following facts. The respondent parents were married on February 29,1988. One child, born June 21, 1989, was issue of the marriage. The marriage was terminated on February 13, 1991, after claims by the mother of family violence and sexual abuse by the husband. The divorce decree granted sole custody of the child to the mother subject to the father’s reasonable rights of visitation.

On March 7,1991, the mother claimed that the father had sexually abused the child during an unsupervised visit. The mother took the child to Kimberly Mailloux, a child advocate and certified sexual assault counselor employed by the Northeast Connecticut Sexual Assault Crisis Service, and Morton Glasser, a physician in general and family practice, for examination and evaluation. The police, DCYS and Martha Roberts, a counselor and clinician employed by United Services who became the child’s therapist, were also notified. The father’s visitation rights were modified to allow only supervised visitation until the end of January, 1992, when the father was allowed to resume unsupervised visits for a few hours a week.

On June 6,1991, an attorney for the minor child filed a petition seeking a determination of neglect pursuant to General Statutes § 46b-129 and requesting that the court take appropriate action. The petition was premised on an allegation that the father had sexually abused the child. DCYS filed a motion to amend the child’s petition on December 13,1991, to include allegations of neglect against the mother.

On February 21, 1992, after the first full day of the child’s unsupervised visit with the father, the mother again reported that the father had sexually abused the child. The mother again took the child to Mailloux and Glasser for evaluation and examination, and the police and DCYS were informed. Again, the father’s visitation rights were modified to supervised visitation only.

On April 21, 1992, the hearing commenced on the June 6,1991 neglect petition. At that hearing, DCYS withdrew its motion to amend the petition and the child’s attorney requested permission from the trial court to amend the neglect petition. The court granted the motion to amend and the child’s attorney informed the court that the amended petition would be filed on April 23,1992. The court then asked the child’s attorney to call her first witness. The mother objected to the commencement of evidence prior to the filing of the amended petition. The trial court overruled the objection and commenced trial. The child’s attorney did not file the amended petition on April 23, 1992.

On May 26, 1992, at the mother’s request, her then prospective mother-in-law took the child to DCYS for the father’s regularly scheduled visit. Diane Sinapi, a DCYS social worker, informed the prospective mother-in-law that the child would be released only to her mother after the visitation. The mother, at that time, had accompanied her fiance to Putnam Superior Court for proceedings concerning her fiance’s marital status.

When the mother failed to come to the DCYS office to pick up the child before the office closed, Sinapi released the child to the father and the child’s paternal grandmother. The grandmother drove to her home with the child. The grandmother’s home was located approximately forty-five minutes from the DCYS office. About forty-five minutes after the grandmother had arrived at home, the mother retrieved the child. The mother immediately reported another instance of claimed sexual abuse by the father. Again, the child was brought to Mailloux and Glasser for evaluation and examination and the police and DCYS were notified.

On July 17, 1992, the attorney for the child filed an amended petition for a determination of neglect alleging that the child was neglected, abused, denied proper care and attention, permitted to live under conditions, circumstances or associations injurious to her well-being and was uncared for in that her home could not provide the specialized care that her physical, emotional and mental condition'required. The amended petition had matters stricken and a new amended petition was filed on July 21,1992. The new petition was premised on allegations that the father had sexually abused the child, and, in the event that the allegations of sexual abuse by the father were not true, that the mother was abusing the child by intentionally or otherwise fabricating false claims of sexual abuse, thereby exposing the child to unnecessary and intrusive examinations. The mother objected to the amendment because the trial was in an advanced stage. The trial court overruled the objection and stated that Practice Book § 1029 (now § 1055.1 [3]) allowed the amendment. Both parents were represented by counsel and entered denials of the petition.

On December 16,1992, the trial court found that the mother’s claims of sexual abuse by the father were untrue. The trial court further found that the acts of the mother were intentional in falsely reporting the sexual abuse thereby obstructing and interfering with the father’s relationship with the child, and that those actions constituted neglect and abuse on the part of the mother. On the basis of those findings, the trial court ordered that the child be committed to DCYS for a period of eighteen months. The trial court further ordered that the father be instructed and counseled on parenting and that he receive progressively increased visitation with the child in the paternal grandmother’s home. The trial court also ordered that the mother have supervised visitation rights of no more than two hours per week. The mother appeals from that judgment.

I

The mother claims that the trial court improperly (1) commenced trial prior to the filing of the amended petition identifying alleged misconduct on her part, in light of the court’s ruling that such amendment was to be allowed, (2) permitted evidence relative to acts of her misconduct prior to the filing of the amended petition, and (3) allowed a midtrial amendment to the neglect petition. The mother asserts that the trial court violated her right to due process of law by failing to give her adequate notice of the claims directed against her. We agree.

“The State has a parens patriae interest in preserving and promoting the welfare of the child, Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) . . . .” (Internal quotation marks omitted.) In re Steven G., 210 Conn. 435, 440, 556 A.2d 131 (1989). We must, therefore, strike a balance between the informality and flexibility that characterize juvenile proceedings with the requirement of fundamental fairness demanded by due process. Schall v. Martin, 467 U.S. 253, 263, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984); Lehrer v. Davis, 214 Conn. 232, 240, 571 A.2d 691 (1990); In re Steven G., supra, 440-41. Due process requires notice that would be deemed constitutionally adequate in a civil or criminal proceeding. In re Gault, 387 U.S. 1, 33, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). “Notice is not a perfunctory act in order to satisfy the technicalities of a statute, but has, as its basis, constitutional dimensions.” In re Baby Girl B., 224 Conn. 263, 295, 618 A.2d 1 (1992). “Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity.” (Internal quotation marks omitted.) In re Gault, supra; In re Steven G., supra, 441; In re Michael M., 29 Conn. App. 112, 119, 614 A.2d 832 (1992). The fact that the parties may have had knowledge that misconduct will be alleged against them does not excuse the requirement of actual adequate notice. In re Gault, supra, 34 n.54. The purpose of notice is to clarify the issues being considered. Id.

In compliance with the requirements of due process, our rules require that the neglect petition set forth with “reasonable particularity” specific allegations that have resulted in the neglect of the child. Practice Book § 1027 (4) (now § 1040.1 [l]). The rules also allow the trial court to permit amendments to the neglect petition during the trial. Practice Book § 1029. Amendments to the petition, however, cannot be of such a nature as to violate the parties’ constitutional rights to notice of the allegations against them. In re Steven G., supra. We apply a “fundamental fairness” analysis in determining whether the midtrial amendment allowed by Practice Book § 1029 violated the mother’s constitutional rights. Id.

The amendment was first filed on July 17,1992, after a significant amount of evidence had been produced at trial. By the time of the amendment, the child’s attorney had called five witnesses and the mother had called five witnesses. Further, the original petition was not accompanied by factual allegations of neglect by the mother; cf. In re Michael M., supra, 120; and the amendment changed the basic nature of the offense alleged in the original petition. Cf. In re Steven G., supra. The amendment also did not occur near the beginning of the trial. Cf. In re Carl 0., 10 Conn. App. 428, 437, 523 A.2d 1339, cert. denied, 204 Conn. 802, 525 A.2d 964 (1987). Therefore, the amendment of the neglect petition was not fundamentally fair and we thus conclude that it violated the mother’s due process right.

The child’s attorney claimed during oral argument that the mother had waived her due process rights by agreeing on June 16, 1992, to have the evidence that was introduced on the issue of temporary custody considered on the neglect petition. “The waiver of a constitutional right is effective only if, under all the circumstances, it was knowingly, voluntarily and intelligently given.” State v. Smith, 185 Conn. 63, 86, 441 A.2d 84 (1981). The transcript does not support the claim of waiver. The mother could not intelligently waive her rights at that time. She was unaware of the allegations of the amended petition and did not know whether the amended petition would be filed. The record reflects that the child’s attorney did not file the amended petition until July 17, 1992. Therefore, the mother agreed only to allow the evidence from the temporary custody issue to be used for the issue of the neglect petition that alleged wrongdoing by only the father.

II

Although our disposition of the previous issue requires a new trial, we address the issue of whether the trial court improperly ordered the mother to undergo a psychological evaluation on April 21, 1992, and then allowed the report of the examination to be admitted at trial because it is likely to recur at retrial.

Certain additional facts are necessary for a proper resolution of this issue. The mother alleged sexual abuse of the child by the father on March 7, 1991. After the child’s attorney filed the petition for a determination of neglect on June 6,1991, the court ordered that psychological tests be administered by David Mantell, a licensed clinical psychologist, on the mother, father and child. On the basis of the report, the court ordered that the father have only supervised visitation rights. The trial court had scheduled a trial on the petition for December 17, 1991. On that date, the trial was continued to April 21, 1992. On February 21, 1992, the mother again alleged that the father had sexually abused the child. On April 21,1992, the court ordered a second psychological evaluation of all of the parties in view of the further allegations of sexual abuse. Man-tell asked to have access to the reports of seven professionals, to talk with the parties and to talk with relatives of the parties. All of the parties agreed to the second evaluation. On July 17,1992, the child’s attorney filed an amended petition alleging abuse by the mother. Another amended petition was filed on July 21, 1992. The report based on the evaluation was admitted into evidence on July 21, 1992, without objection. On appeal, the mother claims that the ordering of the evaluation (1) violated General Statutes § 46b-129 (c), which denied her due process of law, and (2) constituted plain error. We are unpersuaded.

A

General Statutes § 46b-129 (c) provides that the trial court may order a physical or mental examination of the parents only after a hearing on the petition for neglect and a finding that the physical or mental ability of the parent to care for the child is at issue. Although the statute seems to connote a compulsory procedure by requiring a hearing and finding by the court, we have held that such statutory schemes are not mandatory but directory. See In re Adrien C., 9 Conn. App. 506, 510, 519 A.2d 1241, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987). “We determine whether a statute is mandatory or directory by testing whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. . . .If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (Citations omitted; internal quotation marks omitted.) Brown v. Smarrelli, 29 Conn. App. 660, 664, 617 A.2d 905 (1992), cert. denied, 225 Conn. 901, 621 A.2d 284 (1993); In re Adrien C., supra. “Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.” (Internal quotation marks omitted.) Rowe v. Godou, 12 Conn. App. 538, 543, 532 A.2d 978 (1987), rev’d on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988); In re Adrien C., supra, 510-11. The party challenging the action of the trial court must object in a timely manner or waive the right to do so. In re Adrien C., supra, 511.

The requirement of a hearing and finding by the court is directory. It does not relate to a matter of substance, but is designed to secure order in the proceedings. Its purpose is to afford the objecting party a procedure for challenging a court ordered examination. If the party elects not to object, the court is not required to hold a hearing as a matter of law. Therefore, by her failure to object to the ordering of the psychological evaluations, the mother waived her right to do so on appeal.

B

The mother next claims that ordering the evaluation constituted plain error. Practice Book § 4185. It is rare that this exception to the requirement for seasonable objection in the trial court is invoked. In re Mark C., 28 Conn. App. 247, 252, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992). “Where a trial court’s action does not result in any manifest injustice, a defendant's claim under the plain error doctrine does not warrant review. . . .” (Internal quotation marks omitted.) State v. Morales, 33 Conn. App. 184, 197, 634 A.2d 1193 (1993); State v. Ulen, 31 Conn. App. 20, 37-38, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). “Such review is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Morales, supra; State v. Ulen, supra, 38; In re Mark C., supra. As we previously stated, the trial court may order a psychological evaluation without a hearing if all of the parties agree. In any event, the order did not result in manifest injustice. Further, the fact that the mother failed to object to the ordering of the evaluation and to the admission of the report frustrates any sense of injustice surrounding the admission of the report. The trial court did not commit plain error.

Ill

Although the disposition of the issue in part I requires a new trial, we address the issue of the trial court’s denial of the mother’s request for blood testing since it is likely to recur on retrial.

Certain additional facts are necessary for a proper resolution of this issue. On August 7,1992, the mother requested, pursuant to General Statutes § 46b-168 (a), that the trial court require the respondent father and the child to undergo blood grouping tests to determine whether the respondent father was, in fact, the father of the child. The court denied the motion on August 13, 1992, and found on the basis of past conduct of the mother that paternity was not an issue in the case. The trial court orally stated that the mother claimed that the respondent father was the father of the child in the divorce action and sought support from the respondent father, which required that the respondent father be the father of the child. See General Statutes § 46b-84 (a); Remkiewicz v. Remkiewicz, 180 Conn. 114, 117, 429 A.2d 833 (1980). Further, the trial court found in the memorandum of decision that the mother’s motion for blood grouping tests had “the purpose of attempting to undo the determination of [the father’s] paternity of the child, who was both conceived and born during the parent’s marriage and was previously judicially determined to be issue of their marriage and for whom [the] mother has received a substantial sum in child support both pendente lite and postjudgment [and viewed] this tactic as an ill conceived effort on the part of [the] mother to delay and confuse [the] proceedings and to further obstruct and interfere with the father’s relationship with the child; indeed to destroy that relationship with the man she has come to know and understand to be her father.” The mother claims on appeal that the blood grouping tests were necessary to determine that all necessary parties are present in the neglect petition.

“General Statutes § 46b-168 provides that the court ‘may’ order blood tests upon a motion by any party. Thus, the order is discretionary.” Barlow v. Guerrera, 9 Conn. App. 431, 432, 519 A.2d 623 (1987). We must, therefore, determine if the trial court abused its discretion. Id.

The trial court based the denial of the blood tests on estoppel. “There are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist. . . .” (Citations omitted; internal quotation marks omitted.) Remkiewicz v. Remkiewicz, supra, 119. Both elements are met in this case. The mother claimed that the respondent father was the actual father during the divorce proceedings. This claim was calculated to have the respondent father believe that he was the actual father of the child. As a consequence, the father was required to pay support payments to the mother, which he would not have been required to do had the mother not claimed that he was the actual father. The mother was estopped from claiming that the respondent father was not the actual father. The trial court did not abuse its discretion in denying her motion for blood testing.

The judgment is reversed in part and the case is remanded for a new trial as to the respondent mother only.

In this opinion the other judges concurred.

       The department of children and youth services was renamed the department of children and families. Public Acts 1993, No. 93-91, § 1.

       The respondent mother also claims that the trial court improperly (1) denied her request for a continuance pending completion of the evaluation ordered on April 21,1992, (2) granted an order of temporary custody, (3) denied her motion to dismiss the order of temporary custody, (4) relied on opinion evidence of the court-appointed evaluator as to the credibility of the parties and the child, (5) accepted, after opening her case-in-chief, a stipulation offered by counsel and closed the proceedings in spite of her statements to the court that she desired new counsel and wanted to offer additional evidence, (6) denied her motion for recusal based on receipt of ex parte communications, and (7) denied her the right to effective assistanee of counsel. We will not address those issues because our disposition of the issues enunciated in the text requires a new trial and the issues we do not address are not likely to recur on retrial or are moot.

       General Statutes § 46b-129 (a) provides in pertinent part: “[A] child or his representative or attorney . . . having information that a child or youth is neglected, uncared-for or dependent, may file with the superior court which has venue over such matter a verified petition plainly stating such facts as bring the child or youth within the jurisdiction of the court as neglected, uncared-for, or dependent, within the meaning of section 46b-120, the name, date of birth, sex, and residence of the child or youth, the name and residence of his parents or guardian, and praying for appropriate action by the court in conformity with the provisions of this chapter. . . .”

       At the time the petition was filed, Practice Book § 1029 provided: “A petition may be amended at any time by the court on its own motion or in response to the motion of any interested party prior to the final adjudication of delinquency or neglect. When an amendment has been so ordered, a continuance shall be granted whenever the court finds that the new allegations in the petition, as amended, justify the need for additional time to permit the parties to respond adequately to the additional or changed facts and circumstances.”
      That section became Practice Book § 1055.1 (3) effective October 11,1993.

       While Gault does not specifically address midtrial amendments to allegations in a neglect proceeding, “it does provide us with a basic standard of essential due process and fair treatment.” In re Steven G., 14 Conn. App. 205, 209, 540 A.2d 107 (1988), aff’d, 210 Conn. 435, 556 A.2d 131 (1989). “As the court observed in Gault, ‘juvenile Court history has . . . demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.’ In re Gault, supra, 18 . . . .” In re Tyvonne M., 211 Conn. 151, 164, 558 A.2d 661 (1989).

       At the time the petition was filed in this case, Practice Book § 1027 (4) provided: “If jurisdiction over the child is alleged to arise out of neglect, the petitioner must set forth with reasonable particularity the specific instances, acts, or conditions which he contends have resulted in the neglect of the child in question.” That section became Practice Book § 1040.1 (1), effective October 1, 1993.

       See footnote 4.

       The trial court held hearings on this matter on five occasions before the amendment was first brought to the attention of the court. The court held seven more hearings after the amendment.

       The mother called witnesses to respond to the single issue of the order for temporary custody. The court and the parties agreed that the evidence from the issue of temporary custody would be used as part of the issue of the neglect petition.

       The transcript reflects the following:
      “The Court: All right. It’s still understood by all parties and counsel that all of this evidence will be used as part of the case-in-chief and I’m trying this case together with the temporary custody application. Is that everybody’s agreement and understanding?
      “All: Yes, Your Honor.”

       The transcript reflects the following colloquy among the parties and the court:
      “The Court: All right. Fine. Now any objection to Dr. Mantell having access to the seven professionals and their reports? Attorney McKenna?
      “[Assistant Attorney General]: No objection, Your Honor.
      “The Court: Attorney Chmielecki?
      “[Counsel for minor child]: None whatsoever, Your Honor.
      “The Court: Attorney Collins?
      “[Counsel for respondent father]: No, Your Honor.
      “The Court: Attorney Tuller?
      “[Counsel for respondent mother]: No, Your Honor.
      “The Court: All right. So ordered.”

       The transcript reveals the following colloquy among the parties and the court:
      “[Counsel for minor child]: Doctor, I would show you this document and ask you please to identify it.
      “[Mantell]: Yes, this is most the recent study that I prepared for the court. It’s 117 pages long and it’s dated July 16, 1992.
      “[Counsel for minor child]: And that is your signature on the last page of the document?

        “[Mantell]: Yes. it is.
      “[Counsel for minor child]: Your Honor, I would request that this be admitted as a full exhibit marked Petitioner’s No. [9],
      * ** *
      “The Court: Counsel?
      “[Assistant Attorney General]: No objection.
      “[Counsel for respondent father]: No objection.
      “The Court: Attorney Thompson?
      “[Counsel for respondent mother]: I have no objection, Your Honor.”

       The mother also claims that the trial court denied her due process of law because she was unaware of the allegations brought against her in the amended petition. We do not review this issue because the mother did not adequately preserve the issue for review. The mother did not object when the evaluation was ordered or to the admission of the report when she was aware of the claims in the amended petition. See State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986); Budlong v. Nadeau, 30 Conn. App. 61, 63-64, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290 (1993).

       General Statutes § 46b-129 (c) provides: “When a petition is filed in said court for the commitment of a child or youth, the commissioner of children and youth services shall make a thorough investigation of the case and shall cause to be made a thorough physical and mental examination of the child or youth if requested by the court. The court after hearing on the petition and upon a finding that the physical or mental ability of a parent or guardian to care for the child or youth before the court is at issue may order a thorough physical or mental examination, or both, of the parent or guardian whose competency is in question. The expenses incurred in making such physical and mental examinations shall be paid as costs of commitment are paid.”

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       General Statutes § 46b-168 (a) provides: “In any proceeding in which a question of paternity is an issue, the court or a family support magistrate, on motion of any party, may order the mother, her child and the putative father or the husband of the mother to submit to one or more blood grouping tests, to be made by a qualified physician or other qualified person, designated by the court, to determine whether or not the putative father or the husband of the mother can be excluded as being the father of the child. The results of such tests shall be admissible in evidence only in cases where such results establish definite exclusion of the putative father or such husband as such father.”

         General Statutes § 46b-84 (a) provides: “Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.”


author: Freedman, J.

text:
    State of Connecticut v. Gary Grant
    (11630)
    Heiman, Freedman and Schaller, Js.
    Argued November 29, 1993
    decision released March 1, 1994

      John R. Williams, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Michael J. Weber, Jr., assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to sell cocaine in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b). The defendant claims that (1) the conviction violated his right against double jeopardy, (2) the trial court improperly denied him access to, or an in camera review of, the drug treatment records of the chief prosecution witness in violation of the defendant’s state and federal constitutional rights to confront his accusers, and (3) the trial court improperly denied his motion to suppress his confession. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On March 12,1991, Trooper Thomas Murray, acting undercover, contacted Odell Williams to purchase cocaine. This was a part of an ongoing investigation of the defendant and Williams involving a number of set up drug transactions. Williams and Murray arranged to meet in the parking lot of the Showcase Cinemas in Orange at 7:30 p.m. that evening.

Murray and the undercover narcotics team congregated in the parking lot of the Showcase Cinemas and positioned themselves at various points. Murray, wearing a body microphone transmitter, parked his vehicle and waited for Williams to arrive. Soon thereafter, Murray saw Williams and another man, whom he later identified as the defendant, enter the parking lot in a red Volkswagen Jetta. The defendant drove to the side of the lot opposite from where Murray was parked. Williams walked across the parking lot and entered the front passenger side of Murray’s vehicle. The two men engaged in a brief discussion and Murray counted out $5500, the previously agreed-upon price for five ounces of cocaine. Williams then directed Murray to drive to where the Jetta was parked. Murray parked his vehicle so that the driver’s sides of both cars were next to each other.

The defendant was seated in the driver’s seat of the Jetta. Williams got out of Murray’s vehicle, entered the right rear door of the Jetta and slid behind the defendant. Williams and the defendant engaged in a brief conversation, then Williams motioned for Murray to join them. Murray exited his vehicle and entered the right rear seat of the Jetta, but left the $5500 in the undercover vehicle. The defendant handed Williams a cardboard box, which Williams gave to Murray, indicating that the cocaine was in the box. Murray found a plastic baggie containing cocaine in the box.

At that point, Murray gave a previously agreed-upon oral arrest signal, but the undercover team failed to respond. Williams asked Murray for the money; Murray again gave the signal, and told Williams that he had to get the money from his vehicle. The undercover team again failed to respond to the signal. Murray then returned to his vehicle. At this time, the undercover team arrived in several vehicles and attempted to block the Jetta. As the officers approached, Murray put his hands on his head as if to surrender and shouted that the defendant had set him up. Police officers converged on the area. The defendant attempted to escape, but his vehicle struck a police vehicle.

The defendant was arrested at the scene and subsequently charged in six separate informations. The defendant entered a plea of not guilty to each count. The separate informations were consolidated for trial. The defendant was found guilty of one count of conspiracy to sell cocaine, as set forth in Docket No. CR5-88324.

I

The defendant first claims that his conviction of conspiracy to sell cocaine in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b) violated his constitutional right against double jeopardy. Specifically, the defendant claims that the jury verdicts convicting him of conspiracy to sell cocaine in Docket No. CR5-88324, and acquitting him of conspiracy to sell cocaine in Docket No. CR5-89040 violated his federal and state constitutional protections against double jeopardy. We disagree.

After the jury rendered its verdict, acquitting the defendant on all counts except conspiracy to sell cocaine in Docket No. CR5-88324, the defendant moved to set aside the verdict on the ground that it was inconsistent with the jury’s acquittal on the sale count in that same information. This motion was denied. At the sentencing hearing, the defendant renewed his motion to set aside the verdict as inconsistent. The trial court denied this motion. On appeal, the defendant does not press his claim of inconsistent verdicts, but now seeks to claim a violation of his right against double jeopardy. This claim, not having been raised before the trial court, was not properly preserved.

“Pursuant to State v. Golding, [213 Conn. 233, 239-40, 567 A.2d 823 (1989)], a defendant may prevail on an unpreserved claim of constitutional error only by meeting all of the following conditions: ‘(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ State v. Marra, 222 Conn. 506, 527, 610 A.2d 1113 (1992). In harmony with the objective of Golding, the defendant’s claim may be disposed of ‘by focusing on whichever condition is most relevant in the particular circumstances.’ State v. Golding, supra, 240; State v. Pinnock, [220 Conn. 765, 778, 601 A.2d 521 (1992)].” State v. Cooper, 227 Conn. 417, 440, 630 A.2d 1043 (1993).

Prong two of Golding requires that the defendant raise a claim of the violation of a fundamental constitutional right. The defendant “bears the burden of demonstrating that his claim is indeed a violation of a fundamental constitutional right ‘rather than a common law or statutory claim wearing a constitutional mask.’ ” State v. Owens, 25 Conn. App. 181, 197, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991), citing State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990).

“The double jeopardy clause of the fifth amendment to the United States constitution provides: ‘[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .’‘The prohibition of double jeopardy prevents not only multiple trials, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).'. . . State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. John, 210 Conn. 652, 693, 557 A.2d 93 (1989); P. Robinson, Criminal Law Defenses (1984) § 68 (a). In the context of a single trial, ‘the threshold issue [in determining whether the double jeopardy clause is implicated is] whether multiple punishments have been imposed.’ State v. John, supra, 694. ‘The prosecution and submission to a jury of multiple charges arising from the same offense is not itself unconstitutional. See Ohio v. Johnson, 467 U.S. 493, 500, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984).’ State v. Devino, supra, 73-74 n.4.” (Emphasis in original.) State v. Anderson, 212 Conn. 31, 34-35, 561 A.2d 897 (1989).

Here, multiple punishments for the different counts brought by the state were not imposed against the defendant. The defendant was convicted and sentenced on only one count of conspiracy to sell cocaine. Therefore, the defendant’s right against double jeopardy has not been implicated and we decline to review the defendant’s claim under prong two of the Golding test. See id.

II

The defendant next claims that the trial court improperly denied him access to, or in camera review of, the drug treatment records of the chief prosecution witness, Williams, in violation of the defendant’s state and federal constitutional rights to confront his accusers. Although we agree with the defendant, we conclude that the error was harmless.

The following facts are necessary to the disposition of this claim. Williams testified for the prosecution that he and the defendant had jointly committed all the drug related crimes alleged in the information. On cross-examination, Williams admitted that he was addicted to drugs, using them daily at the time of the alleged crimes. He stated that he was under the influence of cocaine on each occasion. Williams testified that he had been incarcerated from the time of the last incident until four or five months later when he entered a drug treatment center. At this point, the defendant asked the court to make an in camera inspection of Williams’ drug treatment records to determine whether any information was contained therein pertaining to Williams’ perception and memory. The court denied the defendant’s request on the ground that the defendant had made no showing as to what the records could add to the cross-examination. The court further stated that because Williams admitted his addiction and treatment, the defendant had adequately impeached Williams. The defendant took an exception to the trial court’s ruling.

The defendant continued his cross-examination of Williams. Williams admitted that he did not think his memory of the events was accurate and that his use of cocaine had affected his ability to perceive and recall the events. The defendant again moved that the trial court make an in camera review of Williams’ drug treatment records. The trial court denied this motion stating that the records would add nothing and would be collateral since the witness had not denied his addiction, treatment, or the effect of the addiction on his memory and perception. The defendant excepted to the trial court’s denial of this motion.

“The people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records, including those pertaining to their diagnosis, prognosis or treatment for alcohol [or drug] abuse or alcoholism. See General Statutes [Rev. to 1989] §§ 17-155bb (b) [now § 17a-630 (c)], 52-146d, 52-146e. A criminal defendant has a constitutional right to cross-examine state witnesses, however, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. Delaware v. Fensterer, 474 U.S. 15, 19, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985) (per curiam); Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Storlazzi, 191 Conn. 453, 457, 464 A.2d 829 (1983). Thus, in some instances, a patient’s psychiatric privilege must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility. State v. Hufford, 205 Conn. 386, 401-402, 533 A.2d 866 (1987); State v. Pierson, 201 Conn. 211, 227, 514 A.2d 724 (1986); see also Davis v. Alaska, supra, 320 (defendant’s right to cross-examine for bias is paramount to state’s policy of protecting juvenile offender’s identity). The defendant’s right of cross-examination does not, however, allow him to discredit and impeach ‘in whatever way, and to whatever extent, the defense might wish.’ Delaware v. Fensterer, supra, 20; Ohio v. Roberts, 448 U.S. 56, 73 n.12, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). We have therefore directed trial courts to engage in a specific procedure designed to accommodate this inherent tension.

“If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury’s presence, attempt to make a preliminary showing that ‘there is a reasonable ground to believe’ that the failure to produce the records would likely impair his right to impeach the witness. State v. Pierson, supra, 225; State v. Esposito, 192 Conn. 166, 179, 471 A.2d 949 (1984). If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken. State v. Burak, 201 Conn. 517, 524, 518 A.2d 639 (1986); State v. Bruno, 197 Conn. 326, 331, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); State v. Esposito, supra, 179-80.

“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. State v. Esposito, supra, 176; State v. Storlazzi, supra, 459 n.4. If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. State v. Hufford, supra, 404; State v. Pierson, supra, 228. Once the trial court has made its inspection, the court’s determination of a defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb unless abused. State v. Herring, 210 Conn. 78, 109, 554 A.2d 686 (1989); State v. Kelly, 208 Conn, 365, 380, 545 A.2d 1048 (1988).” State v. D’Ambrosio, 212 Conn. 50, 55-59, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

In State v. D Ambrosio, supra, our Supreme Court stated that “in order to induce the trial court to inspect the records in camera, the defendant had to make a threshold showing that there was a reasonable probability that the records would reveal that ‘at any pertinent time’ [the witness’ drug] problem affected his testimonial capacity ‘to a sufficient degree to warrant further inquiry. ’ State v. Pierson, supra, 225-26; State v. Esposito, supra, 180.” Id., 59. Here, the defendant demonstrated on cross-examination that Williams had a drug addiction for which he sought treatment, and that it had impaired his perception and memory. We conclude that this satisfied the threshold showing required by State v. D Ambrosio, supra, and therefore, the trial court improperly refused to attempt to obtain Williams’ consent to inspect his treatment records in camera.

That conclusion does not end our analysis, however. We must determine whether the trial court’s failure to inspect Williams’ records requires reversal. Where a trial court’s error is of constitutional magnitude, reversal is unnecessary if “ ‘the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ ” Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); see also State v. Johnson, 21 Conn. App. 291, 295-96, 573 A.2d 1218 (1990); State v. Coleman, 14 Conn. App. 657, 679, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).

Here, the defendant was charged with eleven different counts and convicted with respect only to the count of conspiracy to sell cocaine in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b) relating to the March 12, 1991 incident at the Showcase Cinemas in Orange where the defendant was arrested at the scene of the crime. Our review of the evidence presented at trial reveals that there was substantial evidence presented for the jury to convict the defendant on this count without Williams’ testimony. This evidence consisted of the on-site arrest, a later inculpatory statement by the defendant admitting that he and Williams had been in the parking lot for the purpose of selling cocaine, and the testimony of Murray. Williams’ testimony was merely cumulative on this count. We conclude, therefore, that the court’s error, which implicated the defendant’s constitutional right to confront his accusers, or to impeach and discredit the state’s witness, was harmless beyond a reasonable doubt.

III

The defendant’s final claim is that the trial court improperly denied his motion to suppress his confession. He claims that the admission of his inculpatory statement violated his federal constitutional right against self-incrimination under the fifth and fourteenth amendments to the United States constitution. We do not agree.

The following facts are necessary to the disposition of this claim. The trial court held a suppression hearing out of the presence of the jury. Only the defendant and former State Trooper Bruce Lockwood testified at the hearing. Lockwood testified that the defendant had been advised of his Miranda rights while sitting in a police cruiser at the scene of the arrest. Lockwood transported the defendant to the police barracks where the defendant was placed in a holding area. The defendant gave an oral statement, in which he admitted that he and Williams had been in the parking lot for the purpose of selling cocaine. Lockwood paraphrased the defendant’s oral statement in writing. When the defendant related his version of the incident, he was not handcuffed and appeared to have no difficulty understanding Lockwood. Lockwood then read the written statement to the defendant and again advised him of his Miranda rights. The defendant did not ask any questions about the content of the statement, nor did he disagree with it. The defendant signed the statement.

The defendant’s testimony regarding those events differed from that of Lockwood. The defendant testified that he had been beaten when he was apprehended at the Showcase Cinemas parking lot. The beating caused his face to swell, closing his left eye. As a result of the beating, the defendant claimed that he did not understand that the police wanted to take his statement. Further, he had no memory of being advised of his Miranda rights. He testified, however, that he already knew that he did not have to talk to the police and that anything he said could be used against him. He denied having read the statement, or having it read to him by someone else. The defendant also denied ever giving any of the information contained in the statement. He testified that he did not sign the statement, nor did he know how his signature got on the statement. He recalled signing only a paper “entitled Motor Vehicle Department.” He testified that he signed this document only because Lockwood had told him it concerned the motor vehicle collision at the Showcase Cinemas. Later, on redirect, the defendant testified that he signed a blank piece of paper because Lockwood had told him that his statement was being recorded by video camera and that later Lockwood would fill in the paper from the statements on the videotape.

On the basis of this testimony, the trial court ruled that “given the totality of the circumstances, I will find that the state has met its burden of showing based on what was presented to me that Mr. Grant’s statement was a voluntary statement given after being fully advised of all his constitutional rights and that he voluntarily, intentionally and intelligently waived those rights.” The defendant claims that the trial court failed to address whether the evidence established that the confession was not “ ‘extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . Malloy v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).

“[T]he use of an involuntary statement of a defendant in a criminal trial violates a defendant’s right to due process of law. . . .Asa prerequisite to admissibility the state is required to prove, by a preponderance of the evidence, that under all the circumstances admissions by an accused were voluntarily made. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972) .... State v. Kane, 218 Conn. 151, 160, 588 A.2d 179 (1991). Under the federal due process clause, however, the defendant must establish that his lack of voluntariness was the result of improper police activity. The measure of voluntariness [under the federal constitution] is whether a review of all the circumstances surrounding the elicitation of the statement reveals that the conduct of the law enforcement officials involved was such as to overbear the will of the accused to resist and bring about a statement not freely determined. State v. Rosado, [218 Conn. 239, 254-55, 588 A.2d 1066 (1991)]. A statement by the defendant that is the product of police coercion, therefore, may not be used by the state against that defendant. Cobrado v. Connelly, 479 U.S. 157, 163-64, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v. Roman, 224 Conn. 63, 69, 616 A.2d 266 (1992), cert. denied, U.S. 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993).” (Citations omitted; internal quotation marks omitted.) State v. Medina, 228 Conn. 281, 293-94, 636 A.2d 351 (1993).

“ ‘This determination of voluntariness and admissibility, in the first instance, is a question of fact for the trial court to resolve in the exercise of a legal discretion in accordance with 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)]. This, of course, includes decisions on questions of credibility presented to the trial court. State v. McCarthy, 197 Conn. 247, 258, 496 A.2d 513 (1985). “Though the question is ultimately factual, our usual deference to factfinding by the trial court is qualified on the question of voluntariness by the necessity for an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence.” State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986); State v. Chung, [202 Conn. 39, 54, 519 A.2d 1175 (1987)].’ State v. Schroff, [206 Conn. 182, 195-96, 536 A.2d 952 (1988)]; see State v. Barrett, 205 Conn. 437, 451-52, 534 A.2d 219 (1987); State v. DeAngelis, [200 Conn. 224, 232-33, 511 A.2d 310 (1986)].” State v. Madera, 210 Conn. 22, 40, 554 A.2d 263 (1989).

Here, there was no credible evidence presented of police coercion, or of other improper police activity or conduct “to overbear the will of the accused to resist and bring about a statement not freely determined.” State v. Rosado, supra, 255. In determining whether a defendant’s will was overborne, the defendant’s age, educational background, emotional state and prior experience with the criminal justice system are all relevant. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Here, the testimony revealed that the defendant had graduated from high school with honors and at the time of the arrest was employed as a postal worker, having scored well on the postal employment test. Additionally, the defendant testified that he knew that he did not have to talk to the police and that anything he said could be used against him.

Our review of the record demonstrates that the credible evidence contained therein more than adequately supports the trial court’s determination that the defendant’s statement was voluntary and that he intentionally and intelligently waived his Miranda rights. In the absence of credible evidence of any coercion, or other improper police activity, and in light of the testimony of Lockwood, we conclude that the trial court’s admission of the defendant’s statement did not violate the defendant’s federal constitutional protection against self-incrimination.

The judgment is affirmed.

In this opinion the other judges concurred.

       Docket No. CR22-06551: One count of sale of cocaine on or about February 22, 1991, in the town of Milford, while not a drug-dependent person, in violation of General Statutes § 21-278 (b); and one count of conspiracy to sell cocaine at various times and locations, including but not limited to February 22, 1991, in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b).
      Docket No. CR22-06552: One count of sale of cocaine in the town of Milford, on or about February 28, 1991, while not a drug-dependent person, in violation of § 21-278 (b); and one count of conspiracy to sell cocaine at various times and locations, including but not limited to February 28,1991, in violation of §§ 53a-48 (a) and 21a-278 (b).
      Docket No. CR5-89040: One count of sale of cocaine on or about March 6, 1991, in the town of Orange, while not a drug-dependent person, in violation of § 21-278 (b); and one count of conspiracy to sell cocaine, at various times, and locations, including but not limited to March 6, 1991, in violation of §§ 53a-48 (a) and 21a-278 (b).
      Docket No. CR22-06553: One count of sale of cocaine on or about March 8, 1991, in the town of Milford, while not a drug-dependent person, in violation of § 21-278 (b); and one count of conspiracy to sell cocaine at various times and locations, including but not limited to March 8, 1991, in violation of §§ 53a-48 (a) and 21a-278 (b).
      Docket No. CR5-88324: One count of sale of cocaine on or about March 12, 1991, in the town of Orange, while not a drug-dependent person, in violation of § 21-278 (b); and one count of conspiracy to sell cocaine at various times and locations, including but not limited to March 12, 1991, in violation of §§ 53a-48 (a) and 21a-278 (b).
      Docket No. CR5-88323: One count of attempted assault in the second degree, on or about March 12,1991, in the town of Orange in violation of §§ 53a-49 (a) (1) and 53a-60 (a) (3).

       Because the defendant has not provided an independent analysis to support his state constitutional claim, we will not review it. Our Supreme Court and this court have declined to review a defendant’s state constitutional claim, deeming it to have been abandoned, when the defendant has not separately briefed and analyzed that claim. See, e.g., State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Redente, 19 Conn. App. 521, 531 n.5, 563 A.2d 1365 (1989); State v. Thompson, 17 Conn. App. 490, 498 n.5, 554 A.2d 297, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989). That decimation, however, does not mean that we are not able to review such a claim if we choose to do so. State v. Hoeplinger, 27 Conn. App. 643, 652 n.2, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992); State v. Geisler, 25 Conn. App. 282, 283-84 n.2, 594 A.2d 985 (1991), aff’d, 222 Conn. 672, 610 A.2d 1225 (1992).

       Constitutional guarantees against double jeopardy were made applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

       Williams’ treatment records from the Ducher Hall Treatment Center were subpoenaed by the defendant.

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


author: Landau, J.

text:
    Fleet Bank, N.A. v. Gianfranco Galluzzo et al.
    (11895)
    Foti, Lavery and Landau, Js.
    Argued November 5, 1993
    decision released March 1, 1994

      Richard P. Weinstein, for the appellant (defendant Richard S. Whitehouse).

      David C. Bloomberg, with whom, on the brief, was Kirk D. Tavtigian, Jr., for the appellee (plaintiff).
   Landau, J.

In this action in contract, the defendant Richard S. Whitehouse, appeals from the judgment of the trial court (1) granting the plaintiffs motion for summary judgment, and (2) awarding interest pursuant to General Statutes § 52-192a, the offer of judgment statute. The principal issue on appeal is whether White-house produced sufficient evidence as to the existence of an agreement and such partial performance so as to survive the plaintiffs motion for summary judgment under General Statutes § 52-550.

The following facts are relevant to this appeal. On May 22, 1989, 44-52 Cedar Street Associates, a general partnership, executed a promissory note in favor of United Bank and Trust Company, the predecessor of the plaintiff, Fleet Bank, N.A., in the amount of $350,000. The note was secured by real property located in Hartford. The general partners, the named defendant, Gianfranco Galluzzo, and the defendant Richard Whitehouse signed guarantee agreements. Following the defendants’ default, under the terms of the note, the plaintiff initiated this action to recover on the defendants’ guarantees.

On October 17, 1991, the plaintiff filed an offer for judgment, pursuant to General Statutes § 52-192a, in the amount of $325,000 against Whitehouse. White-house did not accept the offer of judgment.

On December 12,1991, Whitehouse filed an answer, special defenses and a three count counterclaim. In his special defense, Whitehouse contended, inter alia, that the plaintiff breached an alleged agreement to accept the deed to property securing the note in full satisfaction of the debt. On March 11,1992, the plaintiff filed a motion for summary judgment claiming that the defendant, as a guarantor, was liable on a certain note and was in breach of his agreement of guaranty.

Addressing the significance of the parties’ telephone conversations, the trial court found: “This language [of the parties] is merely an expression of preliminary acts on which to predicate a future contract. It does not allege present agreement or even present agreement to contract. . . . Without an agreement there is no basis for finding that the party seeking enforcement, in reasonable reliance on the contract, has so changed his position that injustice can be avoided. . . . Even if an agreement could be found, the acts of the part performance must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute.” (Citations omitted.)

“The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 provides that 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. See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn. App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); the 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. .. . . Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. . . . Trotta v. Branford, supra, 410.” (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn. App. 569, 572-73, 626 A.2d 1306 (1993).

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. Lomangino v. LaChance Farms, Inc., 17 Conn. App. 436, 438, 553 A.2d 197 (1989) (in granting summary judgment, court’s function is not to decide issues of material fact).” Sharp v. Wyatt, Inc., 31 Conn. App. 824, 844, 627 A.2d 1347 (1993). “[T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982).” Cortes v. Cotton, supra, 575.

“[A]cts of part performance . . . must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties. Andrew v. Babcock, 63 Conn. 109, 120, 26 A. 715 [1893]. The acts also must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute . . . .” (Internal quotation marks omitted.) Ubysz v. DiPietro, 185 Conn. 47, 54, 440 A.2d 830 (1981). The determination of whether any acts by Whitehouse occurred that amounted to part performance requires a factual finding properly submitted to the jury. Id., 55. Therefore, the trial court improperly granted the motion for summary judgment.

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

In this opinion the other judges concurred.

       The named defendant, Gianfranco Galluzzo, was defaulted for failure to appear in this action, and judgment by default was rendered against him on October 8, 1992.

       General Statutes § 52-192a(b) provides: “After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1,1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       General Statutes § 52-550 (a) provides: “No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.”

       The plaintiff filed a reply to Whitehouse’s special defense and counterclaim denying all allegations, but admitting that it was in the possession of an appraisal indicating that the value of the mortgage property exceeded the debt.

       Much of our case law relating to the doctrine of part performance includes either cases tried to the trial court, in which the court may properly make findings of fact, or cases sustaining a party’s demurrer or motion to strike, a circumstance in which the trial court is required to decide whether the party’s actions constitute part performance as a matter of law. Confronted with a motion for summary judgment, a trial court may not conclude the nature of a party’s conduct in the area of contract law.

       Because our resolution of the defendant’s first claim is dispositive of this appeal, we need not address the defendant’s second claim.


author: Per Curiam.

text:
    Dennis W. Byars v. Whyco Chromium Company
    (12310)
    Dupont, C. J., Heiman and Spear, Js.
    Argued January 6
    decision released March 1, 1994

      Dennis W. Byars, pro se, the appellant (plaintiff).

      Kevin J. Maher, with whom, on the brief, was Scott Wilson Williams, for the appellee (defendant).
   Per Curiam.

The plaintiff brought a worker’s compensation claim under chapter 568 of the General Statutes asserting entitlement to compensation benefits, interest and attorney’s fees.

The plaintiff appealed to the compensation review board from the compensation commissioner’s award, which gave the plaintiff certain benefits and interest, but denied attorney’s fees. The board, citing Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 612 A.2d 82, cert. denied, 223 Conn. 920, 615 A.2d 507 (1992), held that where interest was awarded on a compensation claim under General Statutes § 31-300 attorney’s fees must be awarded. The board stated, however, that it could not properly review the claim for attorney’s fees on the record before it and remanded the case to the commissioner for a determination as to whether the plaintiff was represented by counsel for any part of the proceedings and, if so, what fees should be awarded.

A final judgment is necessary for this court to have subject matter jurisdiction. Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993). The scope of the proceedings on remand determines whether the board decision constitutes a final judgment for purposes of appeal. “[I]f such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990).

Evidence will be required on the representation question and any award of attorney’s fees rests in the sound discretion of the trier. Link v. Shelton, 186 Conn. 623, 443 A.2d 902 (1982). The additional proceedings require more than a ministerial act.

The appeal is dismissed for lack of a final judgment.

       General Statutes § 31-300 provides in relevant part: “In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee. . . .”


author: O’Connell, J.

text:
    Forge Square Associates Limited Partnership v. Construction Services of Bristol, Inc., et al.
    (12127)
    O’Connell, Foti and Cretella, Js.
    Argued October 28, 1993
    decision released March 8, 1994

      Louis R. Pepe, with whom, on the brief, was Linda J. Cannata, for the appellant (plaintiff).

      Raymond A. Garcia, with whom were Jane I. Milas and, on the brief, Gregory R. Faulkner, for the appellees (defendants).
   O’Connell, J.

The plaintiff appeals from the trial court’s denial of its application to vacate an arbitration award pursuant to General Statutes § 52-418 (a) (4). The dispositive issue is whether the trial court improperly refused to vacate an award in an unrestricted submission because of the arbitrators’ alleged manifest disregard of applicable law. We affirm the judgment of the trial court.

The relevant facts are as follows. In 1987, the plaintiff, Forge Square Associates Limited Partnership (Forge Square), contracted with the defendant Construction Services of Bristol, Inc. (CSB), to convert an old forge building in Middletown into eighty-one residential rental units. Shortly after CSB commenced work on the project, a series of problems arose. These problems, the causes of which were vigorously disputed by the parties, resulted in the project’s completion date being pushed back considerably beyond the original deadline. Believing that blame for the problems and corresponding delays rested with CSB, Forge Square sought to discharge CSB. Toward this end and pursuant to § 2.2.9 of the contract, Forge Square referred the matter to the architect who, after an investigation, certified that sufficient cause existed for Forge Square to terminate CSB’s contract. On the basis of this certification, Forge Square terminated the employment of CSB. CSB responded by filing a timely demand for arbitration, seeking damages for each of the following: breach of contract; failure to issue change orders; failure to make timely payment; and wrongful termination of contract. Forge Square filed an answer and counterclaim, also seeking damages for breach of contract.

After extensive hearings, the arbitration panel awarded $617,740 to CSB on its claim and $278,069 to Forge Square on its counterclaim. Forge Square then filed an application to vacate the award under § 52-418 (a) (4) on the ground that “the arbitrators had manifestly disregarded the governing law in Connecticut with respect to the binding effect of the architect’s certification on termination.” CSB countered by filing a motion to confirm the arbitration award. After the submission of briefs and oral argument, the trial court denied Forge Square’s motion to vacate and confirmed the award. This appeal followed.

The parties agree that the trial court’s scope of review of an arbitration award under § 52-418 (a) (4) is governed by Garrity v. McCaskey, 223 Conn. 1, 612 A.2d 742 (1992). In Garrity, our Supreme Court held that a trial court should vacate an arbitrator’s award under § 52-418 (a) (4) where “the award reflects an egregious or patently irrational rejection of clearly controlling legal priniciples.” Id., 11. The court will generally examine whether the award conforms to the submission; it will not review an arbitrator’s decision in an unrestricted submission merely for errors of law, errors in the application of the law to the facts or the relative merits of an unsatisfied party’s claim. Id., 10-13.

Forge Square argues that the architect’s certification stating that it had sufficient cause to terminate the contract with CSB was final and binding on the arbitrators, absent proof that the architect’s decision was the product of fraud, bad faith, or gross misconduct. Because there was no showing of fraud, bad faith or gross misconduct, Forge Square claims that the arbitrators’ award in favor of the defendant ignored the architect’s decision regarding termination “in manifest disregard of the law.” Id., 10.

CSB claims that under the terms of the contract the architect’s decision on claims or disputes between the parties became final and binding on the arbitrators under only a limited number of situations, none of which are applicable here. Because the decision of the architect was not final, CSB contends that the arbitrators’ award in its favor, despite the architect’s conclusion otherwise, reflects a result consistent with vigorously contested issues regarding the cause of the delays, contract interpretation and the applicability of the law to the facts.

The parties submitted comprehensive briefs and engaged in robust oral argument in support of their respective claims on appeal. We have carefully reviewed the briefs and oral argument as well as the entire record and are satisfied that the judgment of the trial court should be affirmed. We have also reviewed the trial court’s memorandum of decision. Forge Square Associates Ltd. Partnership v. Construction Services of Bristol, Inc., 43 Conn. Sup. 32, 638 A.2d 653 (1994). In that decision, the trial court determined that the arbitrators’ award did not represent an “egregious or patently irrational rejection of clearly controlling legal principles.” See Garrity v. McCaskey, supra, 11-12.

The trial court’s memorandum of decision is an accurate statement of the Connecticut law governing in this action. Little would be accomplished by our recitation of what the trial court, through its diligent efforts, has already ably furnished. Accordingly, we adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law in this ease. See Daw’s Critical Care Registry, Inc. v. Department of Labor, 225 Conn. 99, 102, 622 A.2d 518 (1993); see, e.g., Loeb v. Al-Mor Corp., 224 Conn. 6, 7, 615 A.2d 149 (1992); State v. Mobley, 33 Conn. App. 103, 105, 633 A.2d 726, cert. denied, 228 Conn. 917, 636 A.2d 849 (1993); LaValley v. Correia, 33 Conn. App. 41, 43, 632 A.2d 1143 (1993).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) (4) provides: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       Section 2.2.9 of the contract states: “Claims, disputes and other matters in question between the Contractor and the Owner relating to the execution or progress of the Work or the interpretation of the Contract Documents shall be referred initially to the Architect for decision which he will render in writing within a reasonable time.”

       CSB filed for arbitration pursuant to § 7.9.1 under the General Conditions of the contract, which provides: “All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof, except as provided in Subparagraph 2.2.11 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Sub-paragraphs 9.9.4 and 9.9.5, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise.”

       The defendant Seaboard Surety Company joined in and agreed to be bound by the arbitration.

       The arbitration consisted of fifty-one days of hearings, which included 619 exhibits entered into evidence, approximately 9000 pages of transcript, a visit to the construction site by the arbitrators and counsel, four hours of oral argument and, finally, a separate question and answer session called by the panel at the conclusion of the fifty-one days of hearings.

       The three arbitrators were John C. Travis, Jr., Esq., Robert C. Canning and John Scholsky.

       See footnote 1.

       Under § 2.2.11 of the parties’ contract the “Architect’s decision in matters relating to artistic effect will be final if consistent with the intent of the Contract Documents.”
      Similarly, § 2.2.12 of the contract between the parties states in relevant part: “Any claim, dispute or other matter in question between the Contractor and the Owner referred to the Architect . . . shall be subject to arbitration upon the written demand of either party. . . . When such a written decision of the Architect states (1) that such a written decision is final but subject to appeal, and (2) that any demand for arbitration of a claim, dispute or other matter covered by such decision must be made within thirty days after the date on which the party making the demand receives the written decision, failure to demand arbitration within the said thirty days’ period will result in the Architect’s decision becoming final and binding upon the owner and the Contractor.”