author: Borden, J. Spallone, J.,

text:
    State of Connecticut v. Juan Tirado
    (7249)
    Dupont, C. J., Borden and Spallone, Js.
    Argued September 13, 1989
    decision released May 8, 1990

      Brian J. Farrell, with whom was Kevin D. Parsons, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21. He claims that the trial court erred (1) in admitting certain evidence of uncharged misconduct that did not occur within the applicable statute of limitations period, (2) in ruling in limine that the state could, on cross-examination, ask certain questions to impeach the defendant’s proposed character witnesses, and (3) in denying his motion for a judgment of acquittal. He also claims that General Statutes § 53-21 is unconstitutionally vague as applied to the facts of this case. We find no error.

In the first count of the amended information, the state charged that on diverse dates from approximately August 27,1982, through May, 1984, the defendant wilfully caused or permitted the victim, who was under the age of sixteen, to be placed in a situation where her morals were likely to be impaired “by kissing, the victim, exposing himself in front of the victim and requesting her to engage in sexual contact.” In the second count, the state claimed that, in the same time period, the defendant committed certain acts likely to impair the victim’s morals, namely, “having contact with the intimate parts of the victim and having the victim perform oral sex on [the defendant].”

The jury could reasonably have found the following facts. The defendant is the paternal uncle of the female victim, who was born on January 10, 1969. Between August, 1982, and May, 1984, there was a continuing course of sexual conduct between the defendant and the victim. This conduct included the defendant’s masturbating in front of the victim, making the victim masturbate him by putting her hand on his penis, forcing the victim to perform oral sex on him, and kissing and touching the victim, both with her clothes on and off. These incidents occurred in the victim’s home, where she lived with her parents and brother. The victim described her relationship with the defendant during this period of time as “incestuous.” She also testified that the defendant first began touching her sexually when she was less than nine years old, and that the sexual conduct included an act of vaginal intercourse and an act of cunnilingus. She further testified that the conduct continued until May, 1984, when she realized that she could stop the defendant, and did so.

The defendant denied that any of the conduct described by the victim took place. He testified, and introduced corroborating evidence, that during the time period in question he was unable to perform sexually due to medication he was taking for a heart condition. He also testified that the victim knew of an affair he claimed to have had with her mother between 1967 and 1980, and that her testimony was in retaliation against him for that affair.

I

The defendant first claims that the court erred in admitting evidence of uncharged sexual misconduct by him with the victim occurring prior to August 27,1982. Events occurring prior to that date would be outside the five year statute of limitations period applicable to the charges against the defendant. When the evidence was admitted, the court gave a limiting instruction. See footnote 2, infra. The defendant takes no issue with the limiting instruction given by the court. See General Statutes § 54-193 (b). Rather, the defendant claims that the court should have sustained his objections to the victim’s testimony regarding their sexual conduct that occurred prior to August 27, 1982, and that no limiting jury instruction was sufficient to overcome the prejudicial effect of this erroneously admitted evidence. We disagree.

The defendant’s claim is controlled by State v. Ouellette, 190 Conn. 84, 93-95, 459 A.2d 1005 (1983). Evidence of a defendant’s prior sexual misconduct with his victim is admissible to prove, inter alia, a pattern of criminal activity, provided that the trial court determines the probative value of such evidence outweighs its prejudicial effect, and that the court also gives an appropriate limiting instruction. Id. In this case, the evidence was highly probative of the defendant’s continuing course of sexual conduct with the victim, and the court did not abuse its discretion in finding that the probative value of the evidence outweighed its prejudicial effect. Moreover, the court appropriately instructed the jury regarding the limited purpose of the evidence, in accordance with the language approved by the court in State v. Ouellette, supra, 95, namely, that the evidence “ ‘was not to be considered as proof of offenses other than [those] charged’ ” in the information. Id., quoting State v. Sebastian, 81 Conn. 1, 4, 69 A. 1054 (1908).

The fact that the evidence related to conduct occurring beyond the statute of limitations period does not affect its admissibility under this rule. The evidence was admitted for the limited purpose of showing the defendant’s pattern of criminal sexual activity with the victim. While the statute of limitations protects the defendant against prosecution for crimes committed beyond its reach; State v. Whiteman, 204 Conn. 98, 526 A.2d 869 (1987); it does not serve as a limitation on the admissibility of otherwise admissible evidence probative of a course of criminal activity with the victim.

State v. Tinsley, 180 Conn. 167, 429 A.2d 848 (1980), on which the defendant relies, is not to the contrary. Tinsley does not hold that otherwise admissible evidence of the defendant’s prior misconduct is barred by the statute of limitations. In that case, evidence of sexual activity occurring outside the statute of limitations period was inadmissible because it did not fall within any of the limited purposes constituting exceptions to the rule barring evidence of uncharged crimes. See id., 170. The court held that the inadmissible evidence was so prejudicial that it could not be remedied by the court’s limiting instruction. Id., 171. By contrast, the challenged evidence in this case was admissible because it came within one of those exceptions, namely, to show a pattern of criminal activity.

11

The defendant next claims that the court erred in granting the state’s motion in limine regarding the cross-examination of certain proposed character witnesses for the defendant. This claim evades meaningful appellate review because the proposed cross-examination never took place, due to the defendant’s failure to call his proposed character witnesses. In the absence of both the direct and cross-examination, we have no basis on which to review on this claim. See State v. Scott, 11 Conn. App. 102, 104-108, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987) (no review of in limine ruling regarding proposed cross-examination of the defendant who chose not to testify on basis of that ruling).

Ill

The defendant next claims that the court erred in denying his motion for a judgment of acquittal. This claim is without merit.

The defendant’s claim is in two parts. He first argues that his conviction on the first count of the information cannot stand because it was based on an allegation of kissing the victim. He claims that there was evidence of only one incident of kissing, and, under State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), kissing alone cannot constitute a violation of General Statutes § 53-21.

General Statutes § 53-21 prohibits two types of behavior likely to impair the health or morals of a minor: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s health or morals; and (2) acts directly perpetrated on the minor’s person that are harmful to his health or morals. State v. Sullivan, 11 Conn. App. 80, 90, 525 A.2d 1353 (1987). In the first count of the information, the state invoked the first prohibition by alleging that the defendant wilfully or unlawfully caused or permitted “a child under the age of sixteen to be placed in such a situation that her morals were likely to be impaired by kissing the victim, exposing himself in front of the victim and requesting her to engage in sexual contact.”

It is clear that the allegation that the defendant kissed the victim was not meant to provide the sole basis for a conviction under the first count, but was intended to be part of the state’s allegation that there was a pattern of sexual conduct. That pattern also included the defendant exposing himself to the victim and requesting her to engage in sexual contact with him. It is equally clear that the state’s evidence went far beyond the sole incident of the defendant’s kissing the victim, and that the court’s jury instructions, fairly read, did not mislead the jury into believing that it could convict the defendant solely on the basis of the incident involving kissing.

In State v. Schriver, supra, 466, the court held that “grabbing the waist of a fully clothed minor while uttering a sexually suggestive remark is not the type of lewd conduct that [the impairment of morals clause of] § 53-21 proscribes/” Id. That isolated incident was the state’s sole basis for conviction. In this case, however, unlike Schriver, the defendant’s kissing of the victim was charged and proven, not as an isolated incident, but as part and parcel of a continuing course of sexual conduct likely to impair her morals.

The defendant next argues that the evidence was insufficient for a guilty verdict under both counts of the information because the victim’s testimony was vague regarding the specific dates of the defendant’s contacts with her, and because she testified that she was uncertain whether the act of vaginal intercourse took place within the applicable time frame. This claim is without merit. The victim sufficiently located the time period of the defendant’s other sexual conduct with her as between August, 1982, and May, 1984. See State v. Spigarolo, 210 Conn. 359, 385-87, 556 A.2d 112, cert. denied, U.S. , 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). With respect to the act of vaginal intercourse, because the victim could not locate that act within the time period charged in the information, any reference to it was deleted from the substituted information submitted to the jury, and the court specifically instructed the jury not to consider it as one of the facts that it could consider proven as a basis for conviction.

IV

The defendant’s final claim is that General Statutes § 53-21 is unconstitutionally vague as applied to the facts of this case because the jury could have found that some of the defendant’s conduct on which the state relied took place after the victim’s fifteenth birthday, and that she consented to it. Thus, he argues that, under State v. Perruccio, 192 Conn. 154, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984), his conviction must be set aside. We disagree.

Because he did not raise this claim at trial, the defendant seeks review of it under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). In State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), our Supreme Court held that a defendant can prevail on a constitutional error not preserved at trial only if four conditions are met. Under the Golding guidelines, we are free to respond to the defendant’s claim by focusing on that condition “most relevant in the particular circumstances.” Id., 240. We focus, therefore, on whether “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.” Id. We conclude that no such violation or deprivation occurred.

In State v. Perruccio, supra, 164-65, our Supreme Court held that General Statutes § 53-21 was unconstitutionally vague when applied to arguably consensual sexual conduct between the defendant and a fifteen year old victim. In that case, the conduct consisted of two incidents. One occurred when the male defendant brought the fifteen year old female victim to his home, where they sat on the couch together and listened to music while she drank beer, and where the defendant then kissed her, carried her into his bedroom, undressed her and had sexual intercourse with her. The second incident occurred a week later when the defendant again took the victim to his home, where both removed their own clothes and they had sexual intercourse. The defendant requested the trial court to charge the jury that consent was a defense to the risk of injury charge. The court declined, and charged that consent was not a defense. Our Supreme Court held that, because other criminal statutes permitted sexual activity with a fifteen year old, General Statutes § 53-21 would be unconstitutionally vague if applied where a fifteen year old victim consented to such activity. Id., 164-65. The court carefully limited its decision to the application of General Statutes § 53-21 to the facts of that case; see id., 164-65 n.5; and we reject any suggestion that Perruccio requires the trial court, sua sponte, to give a consent instruction whenever the victim in a risk of injury prosecution is fifteen years of age.

Perruccio is clearly distinguishable from this case. In Perruccio, the evidence was reasonably susceptible of a finding of consent by the jury, whereas in this case there is no basis in the evidence for a rational inference of consent by the victim. “Consent” means the “capable, deliberate and voluntary agreement to or concurrence in some act or purpose implying physical and mental power and free acting.” Webster, Third New International Dictionary. It is the “voluntary acceptance or allowance of what is done or planned by another.” American Heritage Dictionary of the English Language. Whether a victim of a sexual assault “should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances.” State v. Smith, 210 Conn. 132, 142, 554 A.2d 713 (1989).

There is no reasonable suggestion emanating from this victim’s testimony that she consented to the sexual acts. Unlike Perruccio, where there were two isolated instances of arguably consensual sexual conduct with a fifteen year old victim, here the sexual conduct was part of an ongoing course of conduct perpetrated on the young victim by her adult uncle. That conduct, which she described as incestuous, began when the victim was nine years old, and it ended shortly after her fifteenth birthday only when she realized that she could stop the defendant from continuing it. No reasonable person would have viewed the victim as having consented to the sexual conduct occurring after her fifteenth birthday. State v. Smith, supra.

Furthermore, in Perruccio, the defendant raised and relied on the claim that the victim consented to the sexual conduct in question. In this case, the defendant chose not to raise the issue of consent, and his testimony was wholly inconsistent with any suggestion that the sexual activity between them was consensual. His claim was that no such activity took place.

Finally, we cannot escape the strong suggestion in the record that the failure of the defendant to raise the issue of consent at trial may well have been a trial tactic. Consent as a defense under Perruecio would have applied only to that conduct of the defendant occurring after January 10, 1984, when the victim reached the age of fifteen. It would not have applied to any conduct occurring between August 27, 1982, and January 10, 1984. Thus, in order to raise consent as a defense, the defendant would have been required to present to the jury, or to request the court to present in its instructions to the jury, an alternative theory of defense—-that after January 10, 1984, the victim and he had engaged in consensual sexual activity. This would have been wholly inconsistent with his principal theory of defense, namely, that no sexual conduct occurred at all.

As the case was actually tried, the jury had two theories from which to choose: (1) based on the state’s evidence, that the sexual conduct occurred over a long period of time, including August 27, 1982, through May, 1984; and (2) based on the defendant’s evidence, that no such conduct occurred. Injecting the issue of consent insofar as it might apply to the time period between January 10,1984, and May, 1984, would have given the jury a third option, namely, that there was consensual sexual activity occurring after the victim’s fifteenth birthday. Such a suggestion, however, would have been strategically devastating to the defendant because it would have been highly probative of similar activity having taken place before that date, activity to which the defense of consent would not apply.

It is true that, as a matter of law, a defendant is entitled to raise inconsistent defenses. State v. Folson, 10 Conn. App. 643, 649-50, 525 A.2d 126 (1987). That does not mean, however, that he is required to do so. Where, as in this case, the record strongly suggests a tactical decision to forego such a course, the defendant cannot escape appellate scrutiny of that factor in our determination of whether he was deprived of a fair trial.

There is no error.

In this opinion, Dupont, C. J., concurred.

Spallone, J.,

dissenting. I cannot agree that the issue of consent was no part of this case. The court’s failure to instruct the jury on the defense of consent violated the defendant’s right of due process and put him at risk of being convicted of acts beyond the reach of the law.

At the time these events occurred, General Statutes § 53-21, despite its language, could not criminalize sexual activities with a consenting fifteen year old. State v. Perruccio, 192 Conn. 154, 166, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). Due process requires that the defendant be informed of the nature and cause of the accusation against him; State v. Newton, 8 Conn. App. 528, 536, 513 A.2d 1261 (1986); and the statute with its Perruccio gloss constituted notice of prohibited activities. I find nothing in the record, however, to show that the state prosecuted its case in compliance with the Perruccio limitation. The jury could not have known from the state’s case or the court’s instructions that consensual sexual activity on the day before the victim turned fifteen was a crime, but that the same act was no crime at all on the following day.

The state did not treat as relevant the fact that the victim turned fifteen years old on January 10, 1984, and was, therefore, for some months, old enough to consent to the sexual activities. The state could have, but did not, limit the charge to the months before January, 1984, the period during which the victim was legally incompetent to consent. The state could have, but did not, establish that even one incident occurred before January 10,1984. The victim was unable to state the dates, or even the years, of particular events and testified only that the incidents took place between August 27, 1982, and May, 1984.

Moreover, the state did not establish that any incident occurred without the victim’s consent despite evidence to the contrary. The victim admitted that she was never subjected to threats or physical force. She did not refuse the defendant’s sexual advances or call for help even when family members were nearby in the house. She willingly allowed the defendant into her house when she was home alone, and she accepted gifts of money from him after some of the incidents. The activities ended immediately once the victim “decided to put a stop” to them by objecting.

The state acknowledges that the defendant, had he so requested, would have been entitled to a jury instruction on the defense of consent! See State v. Perruccio, supra; State v. Apostle, 8 Conn. App. 216, 248, 512 A.2d 947 (1986). Although the defendant neither requested the instruction nor objected to the charge as given, the trial court must give a consent instruction when, viewed in the light most favorable to the defendant’s claim; State v. Fuller, 199 Conn. 273, 279, 506 A.2d 556 (1986); State v. Webley, 17 Conn. App. 200, 204, 551 A.2d 428 (1988); the words or conduct of the complainant under all the circumstances would justify a reasonable belief that the victim had consented. State v. Smith, 210 Conn. 132, 141, 554 A.2d 713 (1989).

If the evidence indicates that a recognized defense is available, “a defendant is entitled as a matter of law to a theory of defense instruction.” State v. Webley, supra. I find that the evidence, necessarily viewed in the defendant’s favor, raised at trial the issue of the victim’s consent. Once raised, the state bore the burden of proving lack of consent beyond a reasonable doubt; State v. Smith, supra, 141; State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985); and the court then had the obligation to instruct the jury in accordance with the statute’s limiting gloss.

The majority finds that the evidence overwhelmingly supported the verdict. Even if this were so, a review of the sufficiency of the evidence does not reach the heart of the defendant’s claim that the statute was unconstitutionally vague. A vagueness claim posits that although the jury did find sufficient evidence, the verdict is suspect because the statutory standards were overbroad. "The gist of a vagueness claim ... is that due process is violated whenever sufficient evidence of guilt is too readily found by a jury that is left to its own discretion . . . .” State v. Schriver, 207 Conn. 456, 458-59 n.3, 542 A.2d 686 (1988) (comparing vagueness and sufficiency claims).

This court should not assume that the jury’s verdict would have been the same had the questions of age and consent been clearly before it. The state’s failure to present relevant evidence and the absence of proper instructions from the court so prejudiced the defense as to call into question the fundamental fairness of the trial! See State v. Newton, supra (improper charge under § 53-21 deprived defendant of opportunity to mount defense and was due process violation). The jury here was instructed that it had to find, beyond a reasonable doubt, that the defendant committed at least one of the acts charged with a victim younger than sixteen. The jury was not instructed to consider whether that act or acts occurred when the victim was fifteen, and, if so, whether she consented. Because the jury could have impermissibly convicted the defendant for consensual sexual activities with a fifteen year old, I would find § 53-21 to be unconstitutionally vague as applied.

Accordingly, I dissent.

       The defendant was arrested on August 27, 1987.

       Before the victim testified to acts of sexual contact by the defendant occurring outside of the limitations period, the court stated: “I do want to caution the jury that you’re aware from the reading of the information that the crimes alleged therein are alleged to have occurred from approximately August 27, 1982, to and including May, 1984. Now, any evidence prior to approximately August 27, 1982, is to be—is not to be considered by you as proof of any offense other than those alleged in the information, and is put before you only for the purpose of showing a system, a general system of acts here.”
      The court gave a similar instruction later during the victim’s testimony, and during its final instructions to the jury stated as follows: “During the presentation of the evidence in this case, you have heard testimony of allegations of various acts which took place, if at all, outside of the time limits stated in the information. These dates are crucial. And to find the accused guilty, you must find that the acts alleged in the information occurred within that time frame. You may not convict the accused based on acts which took place outside of the time frame of August 27, 1982, to May 1, 1984. Evidence of those other acts outside of that time frame, even if you believe those acts took place, may only be used to find a system of criminal activity. . . . [Y]ou must confine your considerations and convict the defendant only on acts you find to have occurred within the time frame of August 27, 1982, to May 1, 1984.”

       The record indicates that the state did not realize, at least at first, that at the time of the alleged activities the age of consent was fifteen years. The original information charged the defendant with first and second degree sexual assault and with two counts of risk of injury to a child. Between October, 1987, and May, 1988, the state filed two substituted informations charging the defendant with multiple counts of first and second degree sexual assault and risk of injury. In these three informations, the state did not quote the statute in effect at the time of the incidents, wherein the age of consent was fifteen years, but quoted the current version of the second degree sexual assault statute; General Statutes (Rev. to 1985) § 53a-71 (a) (1); wherein the age of consent is sixteen years.
      One count of first degree sexual assault was dropped when the victim could not state with confidence that the attempted sexual intercourse occurred after August 27,1982. The remaining counts of first and second degree sexual assault were dismissed for multiplicity on the defendant’s motion. The third and final substituted information charges only two counts of risk of injury.
      Nothing in the record indicates when, if ever, during the trial the state realized that there existed a statutory anomaly regarding ages of consent that required the application of the Perruccio gloss to the charged crimes.

       I note that language in State v. Torrice, 20 Conn. App. 75, 564 A.2d 330 (1989), apparently provides support for the state’s contention that the trial court need not instruct the jury on a defense absent a request for a charge. “Although it is generally true that a defendant is entitled to an appropriate defense instruction when it is warranted by the evidence . . . our Supreme Court has expressly stated that the trial court does not have a constitutional duty to instruct on a defense sua sponte.” (Citation omitted.) Id., 83. This statement references State v. Preyer, 198 Conn. 190, 198 n.9, 502 A.2d 858 (1985), in which the Supreme Court imposes the limitation only on affirmative defenses. The court explicitly distinguished affirmative defenses, for which the defendant bears the burden of proof, from other defenses such as justification or self-defense. Because consent, like alibi, is not an affirmative defense under the sex offense statutes, the state bears the burden of proving lack of consent beyond a reasonable doubt whenever the issue is raised, and the court must so instruct the jury. State v. Smith, 210 Conn. 132, 140, 554 A.2d 713 (1989).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    James Hicks v. Department of Administrative Services
    (7889)
    Spallone, Daly and Norcott, Js.
    Argued January 3
    decision released May 8, 1990

      Sean G. FitzMaurice, for the appellant (plaintiff).

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, Charles Overend and Robert W. Murphy, assistant attorneys general, for the appellee (state).
   Spallone, J.

The plaintiff appeals from the decision of the workers’ compensation review division affirming the finding and award by the workers’ compensation commissioner. He claims that the review division’s affirmation was error because the commissioner (1) failed to find that the state wrongly discontinued his disability benefits, (2) denied a motion to correct findings of fact and (3) failed to award the plaintiff reasonable attorney’s fees.

The plaintiff suffered a series of compensable injuries during the course of his employment with the state of Connecticut. He injured his left elbow in 1970 and his right elbow in 1972. In November, 1974, he injured his back, right shoulder and right side. The plaintiff continued to work after this last injury until he was terminated in August, 1975, for lack of light work to which he could be assigned. He received a final disability payment in September, 1975. The plaintiff remained able to work and held a series of jobs until December, 1979, when he was rated as having a permanent partial impairment of his back.

The plaintiff sought compensation benefits for the period from August, 1975 to December, 1979. After a hearing in November, 1985, the commissioner awarded the plaintiff compensation for the period of August, 1975 through January 1, 1976. The commissioner denied the plaintiffs claim for benefits through December, 1979, denied his claim for attorney’s fees and denied his subsequent motion to correct the findings of fact. The plaintiff appealed to the compensation review division, which affirmed the commissioner’s finding and award. This appeal followed.

The plaintiff claims on appeal that he was receiving benefits from the 1972 injury and was due benefits from the 1974 injury. He contends that the state could not have discontinued his benefits as of September, 1975, without authorization from the commissioner. The plaintiff argues, therefore, that the commissioner should have found that the state failed to comply with General Statutes § 31-296, should have granted his motion to add such a finding to the record, and should have awarded him attorney’s fees. We disagree.

The plaintiff does nothing more than attack the commissioner’s findings of fact. The commissioner has the power and duty to determine the facts and his conclusions must stand unless incorrectly drawn from the subordinate facts, illegal or unreasonable. Besade v. Interstate Security Services, 212 Conn. 441, 448, 562 A.2d 1086 (1989); Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). The compensation review division must review the appeal on the record and must not retry facts. Besade v. Interstate Security Services, supra, 448-49; Castro v. Viera, 207 Conn. 420, 440, 541 A.2d 1216 (1988).

Our review of the record indicates that the compensation review division concluded that the commissioner made a reasonable finding and award based on the evidence presented. The record does not support the plaintiff’s contention that, as of September, 1975, he was receiving ongoing compensation benefits for his 1972 injury. The plaintiff concedes that the final payment in September, 1975, represented a settlement of his past claims for benefits for the 1974 injury and was merely a reimbursement for sick time used. Because no ongoing compensation was being paid, no written approval of discontinuance was required. The state’s compliance with § 31-296 was irrelevant.

The commissioner, therefore, reasonably declined to make a finding on the issue of statutory compliance, and reasonably denied the plaintiff’s motion to add such a finding to the record. Moreover, because there was no evidence that the state unreasonably contested its liability, it was within the commissioner’s discretionary authority to deny the plaintiff an award of attorney’s fees. See General Statutes § 31-300; Lamb v. Burns, 202 Conn. 158, 165, 520 A.2d 190 (1987). The commissioner was in the best position to consider the facts and circumstances of this case. Nothing in the record discloses that the factual findings of the commissioner were clearly erroneous or that his conclusions were illegal or unreasonable. The compensation review division did not err in affirming the commissioner’s findings and award.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1975) § 31-296 provides in pertinent part: “Before discontinuing payment on account of total or partial incapacity under any such agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee of the proposed discontinuance of such payments, with the date of such proposed discontinuance and the reason therefore, and, such discontinuance shall not become effective unless specifically approved in writing by the commissioner.”


author: Foti, J.

text:
    State of Connecticut v. William J. Safford
    (7867)
    Dupont, C. J., Foti and Laveky, Js.
    Argued January 12
    decision released May 8, 1990

      LeonM. Kaatz, special public defender, with whom, on the brief, were Gene Cohen and Ronald D. Peikes, for the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The defendant claims that the trial court erred in denying his pretrial motion to dismiss the jury and to select a new jury because the jurors had been told during voir dire that the defendant was charged with two separate alleged sexual assaults. This motion was made after the state chose to proceed with only one of the two charges. We find no error.

The jury could reasonably have found the following facts. On Saturday, July 18,1987, the victim was working at the Holiday Health Club in West Hartford, where she was employed as a weekend manager. She closed the facility at approximately 8 p.m. after everyone had left. After locking up, she also left the club, planning to get something to eat and then to return to do paperwork. She attempted to start her car, but discovered that it was out of gas. She tried to call a number of people for assistance and eventually contacted the defendant’s brother, John Safford, who also worked at the health club. He arrived about forty-five minutes later accompanied by the defendant, whom the victim had never met before. John Safford brought a gallon of gasoline, and the victim put it in her gas tank. At this time, the defendant and his brother left the area and the victim returned to the health club to continue her paperwork.

Approximately one hour later, the defendant and his brother returned to the health club and knocked on the front door. The victim let them in and allowed the defendant to use the whirlpool. While the defendant was using the facilities, the victim and John Safford went to the front office and the victim continued her paperwork. Sometime thereafter, the victim told John Safford to get the defendant so that she could close up and leave. She began to shut off some of the equipment. As she walked past the pool to turn off the whirlpool she passed the defendant and his brother. Both of the men were fully clothed and heading toward the front entrance. A few minutes later, when the victim proceeded to turn off the whirlpool and the lights in that area, she turned and saw the defendant standing naked in front of her. He pushed her against the door saying that he wasn’t going to hurt her. She attempted to get away but he pushed her into the steam room where she fell backward and hit her head. He then began hitting her as she continued to struggle with him. At one point, the defendant began strangling her with both hands until she could not breathe. The victim stopped struggling, saying, “Just don’t hurt me, don’t strangle me.” The defendant then proceeded to sexually assault her. At some point during the assault the victim blacked out. When she regained consciousness she saw the defendant sitting on the bench next to her. She then grabbed her clothes and ran out to the front of the health club. The defendant and his brother left the premises shortly thereafter.

In July, 1987, the defendant was arrested on two separate warrants, one for this incident and a second, with identical charges, for an incident that allegedly took place the following day at the Holiday Health Spa in Avon. The Avon and the West Hartford assaults were originally scheduled to be tried together. The defendant filed a motion to have the two cases severed. That motion was denied and on July 11, 1988, the parties began jury selection. Because the two assaults were to be consolidated for trial, the court made brief references to the fact that the defendant was being charged with two separate incidents during its preliminary instructions to the venire from which the jury was selected. Defense counsel also referred to the two incidents during his voir dire of some of the prospective jurors. After jury selection was completed, but before the jury was sworn in, the state chose not to proceed with the Avon case. The defendant then moved to dismiss the jury and to select a new one, arguing that the jury’s knowledge of the defendant’s other charges would be overly prejudicial to him. The court denied the motion and immediately instructed the jury that they should completely disregard the Avon information. The court further informed the defendant that an appropriate request to charge would be entertained by the court if he submitted one at the close of the trial.

The defendant alleges that the jury was so tainted by its knowledge of the Avon charges that he was deprived of his right to a trial by a fair and impartial jury. We do not agree.

As a preliminary matter, we note that if the jury had been sworn in when the state dropped the Avon charges, a motion for a mistrial would have been the appropriate vehicle for the defendant to raise this challenge. Practice Book § 887. Because the defendant’s motion to dismiss the jury is sufficiently analogous to that for a mistrial, however, we will employ the same standard of review as that applied to a motion for mistrial.

In light of the above, we must now determine whether the trial court abused its discretion in denying the defendant’s motion. State v. Vass, 191 Conn. 604, 613, 469 A.2d 767 (1983). The trial court possesses wide discretion in passing on such a motion; State v. Moye, 199 Conn. 389, 395, 507 A.2d 1001 (1986); State v. Jackson, 3 Conn. App. 132, 136, 485 A.2d 934 (1985); it should be granted only where it is apparent that the defendant has been deprived of the opportunity for a fair trial; State v. Gonzalez, 13 Conn. App. 40, 43, 534 A.2d 623 (1987). “The ultimate question on a [motion to dismiss the jury] is whether there was ‘substantial and irreparable prejudice to the defendant’s case.’ ” State v. Kluttz, 9 Conn. App. 686, 705, 521 A.2d 178 (1987).

We cannot conclude that the trial court’s refusal to dismiss the jury was either arbitrary or unreasonable, or that the defendant suffered substantial and irreparable prejudice by the court’s denial of his motion under these circumstances. The jury was aware that there were two separate matters, and had indicated during defense counsel’s voir dire questioning that they could keep each case separate during the deliberation process. The responses of the jurors themselves, while not determinative', are significant. Further, the trial court’s pretrial instructions to the jury included specific directions to disregard the Avon charges as well as instructions that an information was merely an allegation which had no significance in terms of the defendant’s guilt or innocence and that no inference of guilt could be drawn from the fact that the defendant had been charged on two separate informations. See State v. Hernandez, 21 Conn. App. 235, 240-41, 573 A.2d 5 (1990). Similar instructions were given by the court during its final charge.

The curative instructions, to which the defendant failed to take any exception, were given appropriately and thoroughly addressed the circumstances at hand. The court directed the jurors to disregard completely any prior references to the Avon charges originally filed against the defendant. “The jury, in the absence of a fair indication to the contrary, is presumed to have followed the instructions of the court.” State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); State v. Moye, supra, 396. There is no fair indication to the contrary-in the record. See State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989).

The defendant argues that the court should have supplemented its curative instructions with an individual voir dire to determine whether each juror could remain unbiased after the state chose not to proceed on the Avon case. The record is devoid of any indication that the defendant ever suggested such a procedure to the trial court, nor did he present an argument or attempt to show that the jurors’ indication that they could keep each case separate during deliberation was somehow unreliable.

“In appeals involving a claim that a criminal defendant’s jury was not impartial as constitutionally mandated because of some incident involving the jury, our focus is not solely on the alleged incident, but also on whether ultimately that incident generated prejudice such that the defendant was denied his right to a fair trial. ‘The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome.’ State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972); State v. Brigandi, [186 Conn. 521, 543, 442 A.2d 927 (1982)].” State v. Rodriguez, supra, 333. The trial court did not abuse its discretion in denying the defendant’s motion to dismiss the jury. This defendant received a fair trial.

There is no error.

In this opinion the other judges concurred.

       The defendant raises two additional claims that allegedly stem from the state’s choice not to proceed with the second information. First, he claims in his brief that he was denied the right to cross-examine and confront all witnesses against him. This claim is subsumed by our resolution of the primary claim. Second, the defendant claimed during oral argument that he was deprived of the opportunity to present a defense of consent. Because this argument was never briefed by the defendant, we consider it abandoned.

       The court instructed the jury as follows: “In this case you were originally told that the state was proceeding on two informations. The state is presently only proceeding on one of those informations charging the two violations of sexual assault first degree and unlawful restraint in the first degree with reference to the West Hartford case only. So you will completely disregard the fact that there was another information charging anything with reference to Avon. Put it out of your mind as though it never happened.
      “As I indicated to you in my preliminary charge to you, the purpose of an information is merely to advise a defendant of what he is charged with. It has no evidentiary effect in any way, and you are now going to have nothing to do whatsoever with that. You should disregard in any way what the reasons may have been for that decision. They are just not relevant to the decision you are going to make in this case. You are going to hear evidence with reference to an alleged incident that took place in West Hartford, Connecticut, and you will determine the guilt or innocence of this defendant solely based on the evidence you hear in this case on that incident.
      “So I don’t think I can make it any clearer to you and I think you understood originally during your questioning that even if you were to have heard more than one case together, you had to keep them totally separate. So your role is actually even easier. That was probably going to be a harder thing than what you are doing now. Just totally disregard the fact that originally the accused was charged in two informations.”

       Although the defendant did not submit a request to charge on this issue at the completion of trial, the court in its final charge stated: “In this case the defendant, as you know, was originally charged in two separate informations. Before this trial began and before you were sworn, the state made a decision to proceed on only one of those informations. You will completely disregard that decision and the fact that there was another information at the beginning of this case in arriving at your verdict in this case. You must treat it, that fact, as if it didn’t occur, and it can be given no effect, weight or inference either for or against the state or for or against the defendant. You must just put it out of your mind as though it did not happen.”


text:
    State of Connecticut v. Paul S. Sherbacow
    (7097)
    Spallone, Foti and La very, Js.
    Argued January 18—
    decision released May 15, 1990

      F. Mac Buckley, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Herbert Appleton, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, following a court trial, for the sale of cocaine by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant claims that the court erred (1) in denying his motion for judgment of acquittal, (2) in denying his motion for a new trial, (3) in failing to give him the benefit of an adverse inference, (4) in failing to find a violation of the court’s sequestration order, and (5) in failing to perform an in camera review of claimed exculpatory material, and consequently denying his motion for sanctions. We find no error.

The court, prior to rendering its judgment, placed an oral memorandum of decision on record, and concluded that the state had sustained its burden of proof as to the guilt of the defendant as charged. The court found that on November 18,1986, Thomas Cardillo, a known drug trafficker, flew from Tampa, Florida, to Bradley Airport in order to collect money due him from Charles Kehoe, a Hartford drug dealer who had purchased cocaine from Cardillo on prior occasions. There had been an ongoing arrangement between them that Cardillo would supply Kehoe with cocaine on consignment and Kehoe would pay Cardillo when he had the money. When he arrived from Florida, Cardillo had no bággage but brought a change of clothes in a plastic bag. Both Cardillo and Kehoe were under surveillance by members of the statewide narcotics task force from the time of Cardillo’s arrival at Bradley Airport until his departure the following day.

Cardillo and Kehoe met at a Hartford restaurant and then went to Kehoe’s house. Kehoe intended to pay Cardillo for prior cocaine deliveries and to get more cocaine from him that day. At Kehoe’s house, Kehoegave Cardillo at least $15,000 and possibly as much as $25,000. Cardillo placed the money in a plastic bag. While at Kehoe’s house, Cardillo called the defendant, who told him that everything was all set, that Cardillo should come to his house at 7 p.m. that evening, and that he should come alone. At approximately 6 p.m., Cardillo and Kehoe left in Kehoe’s car with the plastic bag containing the money. The pair drove to Avon where Kehoe was dropped off at a restaurant. Cardillo then drove to the defendant’s house in Simsbury. He arrived there at 7:02 p.m., parked in the driveway, and entered the defendant’s residence.

The defendant and Cardillo took two packages of cocaine to the basement where they weighed them. One package was found to weigh 300 grams and the other, 200 grams. Cardillo paid the defendant approximately $16,000 for the 500 grams of cocaine. He informed the defendant that he did not want to drive back to the restaurant to pick up Kehoe with the cocaine in the car because he had been drinking, the car’s front end was damaged and he was afraid that he would be stopped and searched.

The defendant accommodated Cardillo by putting the cocaine in a fishing tackle box, placing the box in the trunk of his car, and following Cardillo back to Avon. Cardillo and the defendant left the defendant’s house at 7:51 p.m. The defendant drove his own car and Cardillo drove Kehoe’s vehicle. At about 7:55 p.m., they arrived at a parking area adjacent to the restaurant where Kehoe had been dropped off. The defendant and Cardillo exited their automobiles and opened the trunks of the two cars. The defendant took a package out of his trunk and placed it in the trunk of Kehoe’s vehicle. Both trunks were then closed and the defendant and Cardillo spoke for a few minutes. The defendant then hugged Cardillo and drove off.

Cardillo entered the restaurant and had a drink with Kehoe, after which they both returned to Kehoe’s house where they weighed the cocaine.

On December 11,1986, law enforcement officers, acting pursuant to a warrant, searched Kehoe’s house. They discovered approximately 5.1 ounces of cocaine and $6745 in cash. Kehoe identified that cocaine as the remainder of the cocaine purchased from Cardillo on November 18, 1986.

I

The defendant first claims that the court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to sustain the court’s findings that the essential elements of identity and sale were proven beyond a reasonable doubt.

When a claim of insufficiency of evidence is made, the reviewing court must examine the record employing a standard of whether the trier of fact could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Messier, 16 Conn. App. 455, 462, 549 A.2d 270, cert. denied, 209 Conn. 829, 552 A.2d 1216 (1988). As long as the evidence presented at trial was sufficient to allow the trier of fact to reasonably conclude that the state had met its burden of proof, the judgment will be affirmed. State v. Wilson, 17 Conn. App. 97, 99, 550 A.2d 21 (1988); State v. Dumlao, 3 Conn. App. 607, 613, 491 A.2d 404 (1985). “It is axiomatic that in reviewing a claim of insufficiency of the evidence [an appellate court] construes the evidence in the light most favorable to sustaining the jury’s verdict and will affirm that verdict if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Cobbs, 203 Conn. 4, 7, 522 A.2d 1229 (1987); State v. Cates, 202 Conn. 615, 627, 522 A.2d 788 (1987). There is no legal distinction between direct and circumstantial evidence as far as probative force is concerned. State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986).” State v. Walker, 206 Conn. 300, 315-16, 537 A.2d 1021 (1988).

The state bore the burden of proving that the defendant sold a narcotic substance, cocaine, in violation of General Statutes.§ 21a-278,(b).

The state’s case was based substantially on the testimony of Cardillo, Kehoe and law enforcement officers assigned to the statewide narcotics task force who were on the surveillance team. Cardillo’s testimony regarding the entire transaction with the defendant, if believed, established that on November 18,1986, the defendant sold him approximately 500 grams of cocaine that were subsequently delivered to Kehoe. Portions of Cardillo’s testimony were corroborated by the testimony of police officers who observed Cardillo going to the defendant’s house, saw a package being placed in the trunk, and saw the defendant transferring the package to the trunk of Kehoe’s car. Kehoe’s testimony corroborated portions of Cardillo’s testimony by showing that Cardillo borrowed Kehoe’s car and left for approximately one and one-half hours. When Cardillo picked up Kehoe, the two men drove to Kehoe’s house where, as Kehoe testified, Cardillo retrieved a package from the trunk of the car and brought it into the house where it was opened and the contents, approximately 500 grams of cocaine, were weighed. Portions of Kehoe’s testimony were corroborated by police officers who had both him and Cardillo under observation. They testified that they observed Cardillo removing a package from Kehoe’s trunk and bringing it into Kehoe’s house. A few weeks later cocaine that proved to be 85.76 percent pure was seized from Kehoe’s house. Kehoe testified that it was a portion of the cocaine that Cardillo had brought to him.

Whether Cardillo was inherently incredible or whether there were contradictions in Cardillo’s testimony such that the trial court should have given no weight or less weight to that testimony than it did, were questions for that court, as trier of fact, to determine. “[W]e will not weigh the evidence nor resolve questions of credibility of witnesses, but will look to that evidence and the reasonable inferences therefrom which support the findings of the trial court. State v. Haddad, 189 Conn. 383, 389, 456 A.2d 316 (1983). The conviction will be affirmed if from that viewpoint there is evidence from which the trier of fact could reasonably have inferred that the defendant was guilty beyond a reasonable doubt. State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984).” State v. Cobbs, supra, 6-7. It is the “cumulative impact of a multitude of facts” that establishes guilt. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984).

The trial court was free to believe some, all or none of Cardillo’s testimony. Its function is to determine credibility and the effect to be given testimony. State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979). The court was fully aware of the serious drug charges facing Cardillo and that he was testifying in hope of receiving consideration. In its detailed and extensive oral memorandum of decision, the trial court reviewed the evidence and set forth its reasons in a thorough manner; it weighed the facts and gave credibility to Cardillo’s testimony, thereby accepting it.

A trial court’s findings of fact, while not conclusive, are entitled to great weight. State v. Cobbs, supra, 13. We conclude that the credible evidence in this case, as found by the trial court, is sufficient to establish the defendant’s guilt beyond a reasonable doubt.

II

The defendant next claims that the court erred in denying his motion for a new trial because the trial court applied an improper burden of proof and wrongly shifted that burden to the defendant. The defendant relies on two portions of the court’s decision, the first that the court was “unable reasonably to draw from that evidence any conclusion or hypothesis consistent with the innocence of this accused,” and the second, the court’s reliance on Hill v. State, 666 S.W.2d 130 (Tex. 1983), for the proposition that a defendant’s unexplained presence at a crime scene can be used to corroborate the testimony of an accomplice. The defendant argues that the court diluted the state’s burden to prove each essential element beyond a reasonable doubt, and placed a burden on the defendant to prove some fact, hypothesis or theory consistent with innocence. The court, however, properly stated the law in that portion of the transcript immediately preceding the court’s statement to which the defendant excepts. “To warrant a judgment of guilty the evidence must be such as to establish the guilt of the accused beyond a reasonable doubt, and any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused, must prevail.” State v. Guilfoyle, 109 Conn. 124, 139, 145 A. 761 (1929).

The trier may not reach a conclusion of guilt where the facts, established by the evidence, including those reasonably and logically inferred from the other proven facts, are naturally consistent with the innocence of the accused. State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984). A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof that precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion. Id.

The trial court quoted from State v. Guilfoyle, supra, to delineate the appropriate burden of proof, was aware of that case’s reasoning, and correctly required the state to prove the essential elements of the crime charged beyond a reasonable doubt.

The defendant also claims that the court impermissibly shifted the burden of proof to the nontestifying defendant and expected him to prove his innocence as evidenced by the court’s reliance on Hill v. State, supra. We do not agree.

The court stated in its oral memorandum of decision: “Where corroboration of accomplice testimony is required under state law sufficient corroboration may be furnished by the conduct of the accused such as being present at the scene, or in the company of an accomplice, when such conduct is coupled with suspicious circumstances such as the lack of an apparent reason for his presence. Hill v. State, [supra].” The defendant argues that this statement suggests that the trial court expected the defendant to testify on his own behalf and explain why he was there. Again, we do not agree.

The court, after reviewing the law regarding accomplice testimony, recognized that accomplice testimony comes before the trier under suspicious circumstances and noted the importance of corroboration in giving credibility to such testimony. Since the officers observed the defendant in the parking lot with Cardillo and saw him transfer a package from his trunk to the trunk of the car Cardillo was driving, the court cited Hill for the proposition that the defendant’s presence there with a confessed criminal, coupled with the surrounding suspicious circumstances, could be used to corroborate that accomplice’s version of events, if they were unexplained.

The court neither intended to shift, nor did it shift, dhe burden to the defendant, thereby requiring him to testify.

III

The defendant next claims that the court erred in failing to give him the benefit of the rule of adverse inference for the state’s failure to call Detective David Hutchinson of the Connecticut state police as a witness and also for its failure to call other officers to buttress a fellow officer’s testimony.

First, the defendant argues that the state should have produced Hutchinson, a witness the state would naturally produce and who was available, as he was the key law enforcement officer in this investigation.

Hutchinson took a sworn statement from Cardillo in March, 1987, while Cardillo was being held in Florida, spoke with Kehoe on March 6,1987, when Kehoe gave his deposition, interviewed both Cardillo and Kehoe prior to trial, authored a report on an October 21,1986 surveillance of Cardillo in which the defendant was not observed, and was an affiant on the search warrants for both Kehoe’s and the defendant’s houses. Hutchinson did not participate, however, in the surveillance of Cardillo on November 18,1986, the only incident in which the defendant was charged with selling drugs.

“Whether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a [preliminary] question of fact for the trier. . . . This court cannot reverse or modify the trial court’s determinations of fact unless they are clearly erroneous. ... A negative inference may be drawn if a party fails to produce a witness who is available and could naturally have been produced by him.” (Citations omitted.) State v. Scott, 20 Conn. App. 513, 519-20, 568 A.2d 1048 (1989). Despite his involvement in this investigation, Hutchinson was not a witness the state would naturally produce. His testimony was either cumulative, inferior to other testimony given or comparatively unimportant. See State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975). The defendant’s argument that Cardillo’s testimony compels the conclusion either that he perjured himself while testifying or Hutchinson suborned Cardillo’s perjury when taking his statement has no basis in the record.

Further, because this was a trial to the. court, the defendant cannot demonstrate that the trier of fact did not give the defendant the benefit of a negative inference as sought. Although there is no specific reference to such an inference in the oral memorandum of decision, neither was an articulation requested by the defendant. It is not impossible for the court to have given such negative inference and still have concluded as it did.

The defendant claims that a second specific failure of the court to give the defendant the benefit of the rule of adverse inference occurred as one officer testified as to the “furtive behavior” of the defendant and Cardillo after exiting their vehicles, while other officers were not asked by the state to buttress his claim, and were not asked whether that officer told them of the furtive behavior prior to trial.

Since all of the officers except Hutchinson did testify at trial, the defendant was not entitled to an adverse inference for the state’s failure to call them. See Secondino v. New Haven Gas Co., 147 Conn. 672, 674-76, 165 A.2d 598 (1960); State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989). Hutchinson, who was not part of the surveillance team on November 18, was not a witness the state would natually produce. As discussed previously, the state should not be expected to call a witness merely to buttress or to rebut a minor point.

IV

The next claim made by the defendant is that the court erred in not finding a violation of its sequestration order when Inspector Lawrence Skinner, an investigator with the state’s attorney office in Hartford, met with Cardillo for purposes of interviewing him during the trial.

Before trial began, the defendant asked that witnesses be sequestered. Skinner, who sat at counsel table with the prosecuting attorney, was excluded. The defendant sought to preclude Skinner and other investigators from speaking to either Cardillo or Kehoe. The state’s attorney indicated that he fully intended to have Skinner speak to both. The defendant’s counsel then responded that he did not feel that anyone should convey any information to these witnesses as to what was happening in court.

During the state’s case-in-chief, the testimony of several officers involved in the surveillance of Cardillo on November 18 was presented. On cross-examination one of these officers was asked about a prior surveillance of Cardillo on October 21, 1986. Cardillo’s written statement indicated that Cardillo had transacted a drug deal with the defendant on October 21. The officer admitted, however, that he did not see the defendant meet with Cardillo during the October 21 surveillance. Following that testimony, Skinner went to the correctional facility where Cardillo was being held, without the knowledge of the state’s attorney, because he wanted to ascertain whether Cardillo was certain about the October 21 date. Skinner informed Cardillo that he was not at liberty to discuss testimony with him. Skinner then asked Cardillo if he was certain about the date. Cardillo asked Skinner if there was a problem at trial and Skinner replied that he was not at liberty to discuss it. Skinner then showed Cardillo the paragraph in the Kehoe and Sherbacow search warrants detailing the surveillance on October 21 and noted that “things didn’t make sense to [him].” Cardillo then discussed the October and the alleged November drug deals.

The court found that its sequestration order had been neither directly nor indirectly violated.

Even if we assume arguendo that the court’s order of sequestration was broadened to prohibit any witness, not merely from being in the courtroom when he is not testifying, but also from discussing testimony by any past or prospective witness; State v. Scott, 16 Conn. App. 172, 182, 547 A.2d 77 (1988); it is obvious from the court’s ruling that it accepted Skinner’s testimony that he did not inform Cardillo of any evidence at trial as credible. Skinner’s testimony was uncontroverted. The record does not support the defendant’s claim of a violation of the court’s sequestration order.

V

Finally, the defendant claims that he was deprived of a fair trial because he was precluded from effectively cross-examining several key witnesses due to the court’s failure to review, in camera, Skinner’s notes of the jail interview with Cardillo and its failure to sanction the state for a Brady violation. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

The defendant does not deny that he received the claimed exculpatory material, or that the court inspected the material before turning it over to counsel, but rather alleges that it was not disclosed in a timely fashion, i.e., when first requested by defense counsel or when first reviewed by the state’s attorney.

The facts pertinent to this claim are as follows. On February 29,1988, Skinner interviewed Cardillo. The following day, the defendant was notified of the meeting, and on March 2 the state gave the defendant a copy of Skinner’s memorandum to the state’s attorney in which Skinner summarized his meeting with Cardillo. The memorandum stated that, after Cardillo was asked if he was sure of the date of the October drug transaction and he was shown a copy of the search warrant affidavit, Cardillo told Skinner that October 21 was the wrong date, and that, although he did not know the exact date, he was sure the transaction had occurred the same day that he had signed easement papers in the defendant’s office. The memorandum concluded by noting that the easement papers were located at the town clerk’s office and were signed on October 30.

The defendant asked the court to mark Skinner’s rough notes and review them in camera to see if they contained any Brady material. The state objected on the basis that the notes were privileged as attorney work product. The court denied the defendant’s request and also denied his request for access to those notes. The memorandum was admitted into evidence.

The defendant was then allowed to question Skinner in connection with his sequestration claim as discussed previously. The court ruled that Skinner’s visit to Cardillo was within the scope of his duties as an inspector. It then referred to Practice Book § 746.

Later in the trial, but before Cardillo had testified, the court ordered that Skinner’s notes be produced, marked as a defense exhibit for identification only, and sealed.

During cross-examination, Cardillo was questioned extensively on his meeting with Skinner and on the alleged inconsistencies between his March, 1987 statement and his present testimony, particularly the change in the date of the October transaction. While cross-examining Cardillo, the defendant again requested Skinner’s notes. The court ordered that the notes be unsealed and given to the defendant. The notes were marked as a defendant’s exhibit. After reviewing the notes, the defendant moved for sanctions against the state, arguing that the notes contained Brady material and should have been disclosed to him sooner, as they might have been helpful in cross-examining Kehoe. The court denied his motion, and the defendant continued his cross-examination of Cardillo.

“To come within the strictures of Brady . . . it must appear (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense and (3) that it was material.” State v. Altrui, 188 Conn. 161, 177, 448 A.2d 837 (1982); State v. Daniels, 13 Conn. App. 133, 137, 534 A.2d 1253 (1987). “Evidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady.” State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). Under the circumstances of this case, we fail to see how any of the these Brady requirements are met. Because no Brady violation occurred, the court properly denied the defendant’s request for sanctions against the state.

Even if we assume arguendo that the defendant is correct in his assertion that he should have received the notes sooner, he has not demonstrated how he was harmed by the late disclosure. He received the memorandum days before either Kehoe or Cardillo testified, and received the notes while still cross-examining Cardillo, the witness they supposedly would have impeaehed. Further, the defendant’s claim that receiving the notes late somehow interfered with his ability to impeach Kehoe on cross-examination is without merit. He did not seek to recall Kehoe or any other witness for further cross-examination.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       The oral memorandum of decision consists of a twenty-two page transcription.

       The state was not required to prove that the defendant was not a drug-dependent person at the time of the alleged offense, as the defendant presented no evidence of drug dependency, nor is the defendant making any such claim on appeal. See State v. Januszewski, 182 Conn. 142, 167, 438 A.2d 679 (1980), cert denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

       The memorandum of decision stated: “In the trial of criminal cases to the court, trial judges are subject to the same limitations, as to the determination of issues of fact, as a jury under similar circumstances. To warrant a judgment of guilty the evidence must be such as to establish the guilt of the accused beyond a reasonable doubt and any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused, must prevail. But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond any possible doubt, and a possible hypothesis or supposition of innocence is a far different thing from a reasonable hypothesis.”

       Under General Statutes § 54-85a and Practice Book § 876, any party in a criminal matter is entitled upon motion to have the witnesses sequestered.
      General Statutes § 54-85a provides: “In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.”
      Practice Book § 876 provides: “The judicial authority upon motion of the prosecuting authority or of the defendant shall cause any witness to be sequestered during the hearing on any issue or motion or during any part of the trial in which he is not testifying.”

       Practice Book § 746 provides: “Except for the substance of any exculpatory material contained herein, Sec. 740 does not authorize or require disclosure or inspection of:
      “(1) Reports, memoranda or other internal documents made by a prosecuting authority or by law enforcement officers in connection with the investigation or prosecution of the case;
      “(2) Statements made to prosecuting authorities or law enforcement officers except as provided in Sec. 748;
      “(3) Legal research;
      “(4) Records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of a prosecuting authority.”


author: Daly, J.

text:
    Brookfield Plaza Limited Partnership v. Zoning Commission of the Town of Brookfield
    (8018)
    Spallone, Daly and Foti, Js.

      Argued December 13, 1989
    decision released May 15, 1990

      Francis J. Collins, with whom was C. Anthony Vournazos, for the appellant (defendant).

      Richard A. O’Connor, with whom, on the brief, was Christopher G. Winans, for the appellee (plaintiff).
   Daly, J.

The defendant Brookfield zoning commission (commission) appeals from the judgment of the trial court setting aside its denial of the plaintiffs application for design review approval for the construction of a retail luggage store at White Turkey Plaza in Brookfield. On the plaintiffs appeal, the trial court concluded that the commission had acted illegally and arbitrarily by considering posthearing evidence in the form of a written report of the commission’s chairman, without giving the plaintiff an opportunity to be heard and to rebut the information in that report. The commission claims that the trial court erred in this holding. We agree and find error.

On or about August 7, 1985, the plaintiff applied to the commission for design review approval to permit the construction of a retail luggage store. On September 26,1985, the commission held a public hearing during which no opposition was presented.

On October 10,1985, at a regular meeting of the commission, the commission chairman, William Schappert, submitted to the commission a written report expressing his views and recommending denial of the application at issue. At that meeting, and after a full discussion by all members, the commission voted to deny the application. The commission’s reasons for denial were set forth in its decision and letter to the plaintiff. The commission concluded that the plaintiff did not satisfy the requirements for approval because the plaintiff had failed to comply with §§ 242-602G (3), 242-301C (3) (b) (5) and (10), 242-305B, and 242-301C (5) (d) of the zoning regulations that relate to (1) vehicular and pedestrian safety, (2) adequacy of erosion and sedimentation controls, (3) adequacy of site drainage, (4) reduction in the number of approved parking spaces, and (5) compatibility of the architecture and site location with the remainder of the shopping center. The plaintiff appealed to the trial court.

The trial court determined that the absence of a complete transcript made it impossible to determine whether the plaintiff had complied with the necessary regulations and was thus entitled to design review approval, which it called a “special exception.” The trial court sustained the plaintiff’s appeal, however, when it held that the commission had acted illegally and arbitrarily by basing its decision on the chairman’s report without affording the plaintiff an opportunity to be heard and to rebut the commission’s point of view, which was based in large part on the chairman’s report.

The commission claims that the trial court erred in determining that the commission acted illegally and arbitrarily when it considered the chairman’s report without providing the plaintiff an opportunity to be heard and to rebut the information in the report. We agree.

The trial court relied on three cases for its decision, all of which are factually distinguishable from the present case. The first case it relied upon was Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980). In that case, the Supreme Court upheld the trial court’s decision sustaining the plaintiff’s appeal on the denial of his application to conduct a regulated activity in an inland wetland. There were two aspects of that opinion relied on by the trial court, the first regarding the right of the plaintiff to have an opportunity to be heard and to respond to a commission’s concerns, and the second regarding the right of the plaintiff to have an opportunity for rebuttal where a commission relies on its personal knowledge in contradiction to expert testimony on technical subjects. The trial court’s reliance on that case is misplaced.

The trial court relied on the following language in Feinson when it determined that the reliance on the chairman’s report deprived the plaintiff of his opportunity to be heard. “The sparsity of reliable evidence in this record is underscored by the fact that the commission, in relying on its own knowledge and experience, acted in a manner which placed its data base beyond the plaintiff’s scrutiny. Nowhere in the public hearing, or at any time and place, was the plaintiff afforded a fair opportunity to hear the commission’s fears and to attempt to allay them.” Id., 428.

We disagree with the trial court’s conclusion that there is nothing in the record that shows that the commission expressed to the plaintiff its concerns, either before or at the public hearing. While most of the public hearing transcript was missing; see footnote 1, supra; there is some indication in the remainder of that transcript that the plaintiff was aware of the commission’s concerns, particularly those related to traffic and parking. Since there was at least one reason given by the commission that supported its action in denying the plaintiff’s application, the trial court erred in sustaining the plaintiff’s appeal. See Senior v. Zoning Commission, 146 Conn. 531, 534, 153 A.2d 415, cert. denied, 363 U.S. 143, 80 S. Ct. 1083, 4 L. Ed. 2d 1145 (1959). Further, the record indicates that the commission gave considerable time and ample deliberation to all aspects of the problems confronting it. It made a fair and full investigation of the facts, and the record demonstrates a purpose on its part to serve the public interest. Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 676, 236 A.2d 917 (1967).

The trial court also relied on the holding in Feinson for its conclusion that the plaintiff was denied an opportunity to rebut the information in the chairman’s report. In Feinson, the court determined that the conservation commission acted without substantial evidence when it based its decision on a lay member’s concern for the “technically sophisticated” subject of pollution control. Feinson v. Conservation Commission, supra, 427. Specifically, the court held that “[jjudicial review of administrative process is designed to assure that administrative agencies . . . act in a manner consistent with the requirements of fundamental fairness. . . . [Wje are compelled to conclude that a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view.” (Emphasis added.) Id., 429.

While the commission, acting in its administrative capacity, must act in a manner consistent with the due process notion of fundamental fairness, we conclude that the commission is not required to provide an opportunity for rebuttal when it relies on the knowledge and experience of one of its members on nontechnical issues. The chairman’s report was merely a summary of his personal observations of the area and of what had transpired at the public hearing, followed by a recommendation that the application be denied for not complying with the requisite regulations. Among the specific inadequacies listed in the report were problems related to pedestrian and traffic safety, clearly nontechnical subjects. As stated in Feinson, “[w]e have in the past permitted lay members of commissions to rely on their personal knowledge concerning matters readily within their competence, such as traffic congestion and street safety . . . .” Id., 427. Furthermore, “[t]he members of the commission were entitled to consider any facts, concerning the area, traffic, intersection and surrounding circumstances, which they had learned by personal observation . . . .” Forest Construction Co. v. Planning & Zoning Commission, supra, 675. Their conclusions as to the effect of the network of roads in and around the shopping center on traffic safety and as to hazards to the public could be reached without technical knowledge. See id. The trial court has mischaracterized this report and was in error in relying on the holding in Feinson.

The trial court also relied on Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974), and Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 358, 232 A.2d 916 (1967), for the principle that the plaintiffs due process rights were infringed because the commission considered information in the form of a written report submitted by the chairman of that commission, without giving the plaintiff the opportunity to inspect this information and to offer evidence in explanation or rebuttal. Again, these cases are factually dissimilar and do not warrant an extension to the facts of the present case.

In Pizzola v. Planning & Zoning Commission, supra, 208, the court held that “the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal” is a due process violation against the opponents of the application. There was no such additional evidence submitted by a party to the controversy after the public hearing in the present case, nor were there opponents to the plaintiffs application.

In Parish of St. Andrew’s Church v. Zoning Board of Appeals, supra, the court determined that the commission could not consider five letters concerning statements and opinions on behalf of the plaintiffs, who opposed the application, because these documents were submitted after the public hearing without the necessary safeguards to the applicants and the public. Again, the common thread is that it is unfair for either the applicants or the opponents to submit additional evidence to the commission without giving the other party an opportunity to respond to this additional evidence. These concerns do not exist in the present case. There was no additional evidence submitted to the commission. The report was merely a summary of what transpired at the hearing. In addition, the report was not submitted by any party, it was submitted by a commission member, who merely expressed his opinion as to whether the plaintiff had properly complied with the regulations in order to determine whether a design review approval could be granted.

Because the commission’s concerns about traffic safety are supported by the record, and because the report could be properly considered by the commission, the trial court erred in sustaining the plaintiff’s appeal.

There is error, the judgment of the trial court is set aside and the case is remanded with direction to dismiss the appeal.

In this opinion the other judges concurred.

       Part of the transcript of the public hearing was unavailable to both the trial court and this court, but the parties have proceeded on the remaining record.