author: Freedman, J.

text:
    State of Connecticut v. James Fleming, Jr.
    (11816)
    Landau, Hennessy and Freedman, Js.

      Argued October 24, 1994
    decision released January 10, 1995

      Shannon O. Louden, special public defender, with whom, on the brief, were Linda L. Morkan and Barbara J. Jacobs, special public defenders, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from a judgment of conviction, following a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-48. The defendant claims that the trial court improperly (1) admitted the prior statement of a witness for substantive purposes, (2) admitted evidence that was more prejudicial than probative, and (3) gave a “missing witness” instruction under the Secondino rule. The defendant additionally argues that there was insufficient evidence to establish the essential elements of conspiracy. Finally, the defendant urges us to repudiate the Secondino rule as applied to criminal cases. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 17, 1991, at approximately 1:10 a.m., the victim, Christian Prince, was found lying on the sidewalk in front of St. Mary’s Church on Hillhouse Avenue in New Haven. He was transported to Yale-New Haven Hospital at 1:43 a.m., where it was discovered that he was suffering from a gunshot wound to the chest. Despite attempts to resuscitate the victim, he was pronounced dead at approximately 2:06 a.m. An autopsy revealed that a single, small caliber bullet had been fired into the victim’s chest, causing his death.

On February 27, 1991, Randy Fleming and Andre Edwards, two of the state’s witnesses, were arrested on unrelated drug charges. Subsequently, both Fleming and Edwards gave statements to the police implicating the defendant in the shooting of the victim. The defendant was later charged, by substitute information, with felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a, attempted robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). The defendant was found guilty of conspiracy to commit robbery in the first degree and not guilty of murder; a mistrial was rendered on the felony murder and attempted robbery charges, as the jury was unable to reach a verdict on those counts.

Additional facts will be discussed where relevant to a specific claim made by the defendant.

I

The defendant first argues that the trial court improperly admitted Fleming’s statement into evidence for substantive purposes. The following additional facts are necessary for a proper resolution of this issue.

At trial, the state called Fleming as a witness. Fleming testified that he saw the defendant at around 11:30 p.m. on the night of February 16, 1991, at the Oasis Lounge. Fleming testified that the defendant was at the Oasis Lounge for “at least half an hour, forty-five minutes.” He stated that he saw the defendant leave the Oasis Lounge with an individual named Money Russ at around midnight. According to Fleming’s testimony, after the defendant left the bar, he remained outside in front of his house for a while, and then went inside his house at around 12:15 a.m., because he had a 12:30 a.m. curfew. Fleming testified that he next saw the defendant the following day.

The state then marked for identification a thirty-one page statement given by Fleming on May 10,1991, to Detectives Vincent Raucci and Mel Cartocetti of the New Haven police department. Fleming conceded that the facts to which he testified at trial were entirely different from the facts given in the statement to the police but he repeatedly stated that he was forced to make the prior statement to the police. The statement and the tape recording from which it was transcribed were then admitted as full exhibits pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

The statement given to the police contains the following version of the incident in question. Fleming and the defendant, along with Robert Newton and Robert Jones, were riding around on the night of the shooting in a white Nissan Sentra automobile. The defendant was driving. The defendant told Fleming that he wanted to stick up a “cracker,” i.e., a white person. The defendant showed Fleming that he had an automatic weapon. When they approached the victim, the defendant put on a ski mask that covered his face, crossed the street to confront the victim, and demanded money. The victim gave the defendant his wallet without a struggle. The defendant pistol-whipped the victim and fired five shots. Fleming saw the victim fall sideways after being shot. The defendant then got back into the car and stated that he had dropped the wallet.

According to Fleming’s statement, after the shooting, they drove to 575 Winchester Avenue. Jones went home and the defendant, Fleming and Newton went inside. Fleming and Newton told Andrew Fairweather and Andre Edwards what had occurred. The next day, the defendant and Fairweather agreed that Fair-weather would destroy the gun. Fairweather, however, eventually gave the gun back to the defendant, who put it in a bookbag on a shelf in the house. The day after the shooting, after the defendant learned that the victim had died, Fleming saw the defendant stuffing a pipe down the barrel of the gun so that the police would be unable to trace it.

The defendant argues that (1) the prior statement was unreliable because three months had elapsed between the incident and the interrogation, (2) the statement was not given under circumstances that indicate reliability, (3) the witness was responding to leading questions, and (4) there was no other evidence corroborating the statement. The defendant also argues that the admission of the statement was harmful error.

“Prior inconsistent statements of nonparty witnesses are hearsay and, generally, inadmissible to prove the truth of the matters they assert.” In re Bassel C., 33 Conn. App. 90, 94, 633 A.2d 733 (1993). In State v. Whelan, supra, 200 Conn. 753, our Supreme Court adopted an exception to the hearsay rule allowing the substantive use of a prior inconsistent statement of a nonparty witness under certain prescribed circumstances reasonably assuring reliability. State v. Woodson, 227 Conn. 1, 20, 629 A.2d 386 (1993). Such a statement is admissible substantively “if the declarant: (1) signed the statement ... (2) had personal knowledge of the facts set forth in [his] statement; and (3) testifies at trial and is subject to cross-examination.” State v. Borrelli, 227 Conn. 153, 158-59, 629 A.2d 1105 (1993); see also State v. Williams, 231 Conn. 235, 249, 645 A.2d 999 (1994); In re Bassel C., supra, 94. This exception applies to tape-recorded as well as written statements. State v. Woodson, supra, 21.

“[A] prior inconsistent statement ha[s] to be given under circumstances ensuring its reliability and trustworthiness in order to be admissible.” State v. Grant, 221 Conn. 93, 100, 602 A.2d 581 (1992) The admission for substantive purposes of a prior inconsistent statement is limited “ ‘to situations where the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced.’ ” Id., quoting State v. Whelan, supra, 200 Conn. 753. “It is the trial court’s responsibility to weigh the reliability of each statement on a case-by-case basis.” (Internal quotation marks omitted.) State v. Borrelli, supra, 227 Conn. 161.

The defendant first argues that Fleming’s statement was unreliable because three months had elapsed between the incident and the interrogation. “Whether a statement is made within a short time after the crime occurred has . . . been considered in determining reliability.” State v. Wager, 32 Conn. App. 417, 428, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993); State v. Buster, 224 Conn. 546, 557-58, 620 A.2d 110 (1993); State v. Grant, supra, 221 Conn. 100-101; State v. Alvarez, 216 Conn. 301, 314, 579 A.2d 515 (1990); State v. Whelan, supra, 200 Conn. 750. This is because “prior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy.” State v. Whelan, supra, 750.

In State v. Wager, supra, 32 Conn. App. 428, we noted that there is no requirement that a statement be signed at any particular time. Similarly, there is no specific time when a statement becomes unreliable due to the length of time between the commission of the crime and the making of the statement. Rather, the court considers whether the statement was made “long before the witness’ memory might have faded.” State v. Whelan, supra, 200 Conn. 754; State v. Borrelli, supra, 227 Conn. 160; State v. Alvarez, supra, 216 Conn. 314. There is nothing in the record to indicate that Fleming’s memory had faded at the time he gave the statement to the police. We therefore conclude that the statement was not unreliable simply because it was made three months after the crime occurred.

The defendant next argues that Fleming’s prior statement did not meet the “criteria for ensuring reliability” established by State v. Grant, supra, 221 Conn. 93, and State v. Borrelli, supra, 227 Conn. 153, and therefore should not have been introduced for substantive purposes. We note, however, that neither Grant nor Borrelli established “criteria” that need to be satisfied before an inconsistent statement may be admitted for substantive purposes. In both cases, our Supreme Court noted that certain facts supported the trial court’s finding of reliability. In the present case, there are likewise sufficient indicia of reliability in the circumstances surrounding Fleming’s statement to uphold its admission for substantive purposes.

As a threshold matter, the prior statement satisfies the criteria established by Whelan to admit the statement for substantive purposes. Fleming signed the statement and initialed each of its thirty-one pages. He further swore to its truth and accuracy. Fleming indicated in the statement that he was present at the time of the murder; therefore, it was based on personal knowledge. Fleming also testified and was subject to cross-examination at trial. “Therefore . . . the jury had the opportunity to observe [the witness’] demeanor and assess his credibility at trial. . . . The jury in this case could determine whether to believe [the witness’] prior . . . statement, his trial testimony, or neither.” (Citations omitted.) State v. Wager, supra, 32 Conn. App. 429.

As in State v. Grant, supra, 221 Conn. 100-101, there was a contemporaneous tape recording of the interview with the witness. Fleming could have been subjected to criminal prosecution for making false statements to the police. General Statutes §§ 53a-157 and 53a-180. See State v. Grant, supra, 101. Fleming confirmed at trial that the words in the statement were the words he had spoken to Cartocetti and Raucci. See State v. Borrelli, supra, 227 Conn. 160. We therefore find that the statement was given under circumstances that indicate reliability.

The defendant also argues that the statement should not have been admitted because the witness was responding to leading questions. The record reveals that although some leading questions were asked, Fleming was asked numerous questions intended to elicit narrative responses, including a request to describe what happened on the night of the shooting. On the basis of the record before us, we cannot conclude that the statement was unreliable because it was made in response to leading questions.

Finally, the defendant argues that the statement was unreliable because there was no other evidence corroborating the statement. We conclude, however, that the statement was supported by corroborating evidence. Cartocetti testified at trial that at one point, the officers and Fleming went out and the officers bought Fleming lunch. While out with the officers, Fleming took them to the location where he personally observed the shooting of the victim and pointed out the location where the victim’s wallet was found. Edwards testified at trial that, on the night in question, he overheard the defendant asking Fairweather for guns “to do some stickups” and that he saw Fairweather give guns to the defendant.

On the basis of the foregoing, we conclude that the trial court properly admitted Fleming’s prior statement as substantive evidence.

II

The defendant next argues that the trial court should not have admitted certain evidence that he claims was more prejudicial than probative. Specifically, the defendant argues that because he was charged with conspiracy to commit first degree robbery, the state was required to prove that he had the specific intent to commit robbery while armed with a deadly weapon. The defendant argues that the state failed to meet this burden and, in fact, was allowed to introduce a .22 caliber revolver into evidence without establishing its connection to the defendant.

“Evidence is not rendered inadmissible simply because it is not conclusive. It is admissible if it tends to support a relevant fact even in a slight degree, so long as it is not prejudicial or merely cumulative.” State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985). “ ‘[A] trial court has broad discretion in determining whether the probative value of proffered evidence is outweighed by the prejudice that is likely to result from its admission. . . . We will not overturn the court’s determination of this issue absent an abuse of discretion.’ ” State v. Payne, 31 Conn. App. 370, 374, 625 A.2d 231, cert. denied, 227 Conn. 901, 630 A.2d 73 (1993), quoting State v. Busque, 31 Conn. App. 120, 128-29, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994). We conclude that the trial court’s ruling in the present case was well within its discretion.

At the trial, the state offered for identification, over the defendant’s objection, three guns that had been obtained at a raid on 575 Winchester Avenue on February 27, 1991. One of these weapons, a .22 caliber revolver, was later introduced, over defendant’s objection, as a full exhibit. The defendant argues that the admission of the .22 caliber revolver was unduly prejudicial to him because it was not established that it was in the defendant’s possession at the time of the incident, nor was it connected to the bullet found in the victim’s body. In support of this argument, the defendant points out that his fingerprints were not found on the gun and he was not tested for gunpowder residue. He also notes that he did not reside at 575 Winchester Avenue and was not present when the guns were seized. The defendant also relies on the testimony of Edward McPhillips from the firearms section of the state police forensic laboratory. McPhillips testified that in March, 1991, he received the bullet that was taken from the victim and was asked to examine several weapons to determine whether the bullet was fired from any of them. He testified that because of the bullet’s condition, he could not tell whether it was fired from the .22 caliber revolver. He further acknowledged that, according to a report by the Federal Bureau of Investigation, the bullet could not have come from the .22 caliber revolver. Finally, the defendant refers to the testimony of Fleming acknowledging that he had told the police that he had seen the defendant with a .25 caliber weapon on the night of the shooting.

Although the testimony relied on by the defendant supports his position that the weapon was not connected to him, the record reveals additional testimony that identifies the .22 caliber revolver as the weapon used by the defendant to shoot the victim. As noted earlier, Edwards testified that he overheard a conversation between Fairweather and the defendant in which the defendant requested guns. Fairweather obtained several guns and gave them to the defendant. Edwards then identified two guns, including the .22 caliber revolver, as having been guns given to the defendant by Fairweather on the night in question. Edwards further testified that the defendant returned the guns two days later. James Harris, an inspector in the state’s attorney’s office, testified that Fairweather told him that he had given a .22 caliber revolver to the defendant, and that the defendant had returned it after a concert that had been performed on the night of the shooting. Fairweather testified that, sometime prior to the shooting, the defendant asked him for a gun and Fairweather gave him a loaded .22 caliber revolver.

We conclude that the trial court did not abuse its discretion in admitting the .22 caliber revolver into evidence. There was sufficient evidence connecting the defendant to the weapon and to the shooting of the victim. Therefore, it was relevant. We further conclude that the court correctly concluded that the probative value of the evidence was not outweighed by any prejudicial impact to the defendant.

Ill

The defendant next argues that the court improperly delivered a missing witness instruction with regard to the failure of the defendant’s mother to testify. Specifically, the defendant argues that the state did not prove that his mother was available, nor did it prove that she was a witness that the defendant would naturally produce. We disagree with the defendant, and conclude that the court properly delivered the requested instruction.

“The missing witness rule was stated in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). That rule provides that ‘[t]he failure of a party to produce a witness who is in his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ Id., 675. Two requirements must be fulfilled before a party is entitled to a Secondino charge: the witness must be available, and he must be a witness whom the party would naturally produce. Id. . . .” (Citation omitted.) State v. Charlton, 30 Conn. App. 359, 370, 620 A.2d 1297, cert. denied, 225 Conn. 922, 625 A.2d 824 (1993); see State v. Grant, supra, 221 Conn. 105.

With regard to availability, the defendant argues, citing State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988), and Shelnitz v. Greenberg, 200 Conn. 58, 74-75, 509 A.2d 1023 (1986), that the state did not present any evidence that the defendant was able to produce his mother as a witness in court. The defendant makes this argument despite the testimony of his sister that his mother lived with her in New Haven and could testify. We conclude, on the basis of the testimony of the defendant’s sister, that the evidence established the requisite availability. See State v. Daniels, 180 Conn. 101, 110, 429 A.2d 813 (1980) (defendant’s testimony that missing witness was “home, I guess” provided jury with sufficient evidence to support showing of availability); but see State v. Wood, supra, 140 (availability of missing witness for deposition but not for in-court appearance did not show that party was able to produce witness’ presence in court).

The defendant further argues that because his mother’s testimony would have been cumulative of the testimony provided by the other three alibi witnesses, she was not a witness whom the defendant would naturally produce. He therefore argues that the court should not have given the missing witness instruction. As the court stated in State v. Grant, supra, 221 Conn. 106, however, “[t]he testimony of several witnesses in support of an alibi defense can hardly be characterized as unimportant or cumulative.” See also State v. Ruiz, 202 Conn. 316, 324-25, 521 A.2d 1025 (1987). We therefore reject the defendant’s claim that his mother’s testimony would have been merely cumulative.

IV

The defendant next argues that the evidence was insufficient to establish the essential elements of conspiracy to commit first degree robbery pursuant to §§ 53a-134 (a) (2) and 53a-48. Specifically, the defendant argues that the state failed to prove the existence of an agreement, one of the essential elements of the crime of conspiracy.

“When we are called upon to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. ... We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Patterson, 35 Conn. App. 405, 412-13, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994).

“ ‘To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy. State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987); State v. Estrada, 28 Conn. App. 416, 420, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992). The state is also obligated to prove that the accused intended that conduct constituting a crime be performed. State v. Rouleau, supra [258]; State v. Channer, 28 Conn. App. 161, 168, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992).’ State v. Hooks, 30 Conn. App. 232, 241-42, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993).” State v. Jones, 35 Conn. App. 839, 846-47, 647 A.2d 43 (1994).

In the present case, the defendant was charged with conspiracy to commit robbery in the first degree, by agreeing with Fleming, Jones and Newton to engage in or cause the performance of conduct constituting that crime. The overt act alleged was that “[t]he accused and coconspirators drove around parts of New Haven in the early morning hours of February 17,1991, looking for a person to rob.” The defendant argues, however, that the facts as presented to the jury “indicate that only the defendant was armed and only the defendant confronted the victim. Although, according to [Fleming’s] recanted statement, everyone in the car knew of the defendant’s pursuit, there is no evidence to demonstrate that there was an agreement that the purpose of riding in the car was to locate a victim.”

“The existence of a formal agreement between the parties . . . need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. . . . Consequently, it is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words‘we have an agreement.’ . . . Indeed, a conspiracy can be inferred from the conduct of the accused.” (Citations omitted.) State v. Boykin, 27 Conn. App. 558, 564-65, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

From the evidence presented at trial, the jury reasonably could have found that the defendant had entered into an agreement with the occupants of the vehicle to rob someone. The defendant is correct in his assertion that mere presence at the scene of the crime, even coupled with knowledge of the crime, is not sufficient to establish guilt of a conspiracy; rather, evidence tending to show knowing participation in a conspiracy is also needed. State v. Stellato, 10 Conn. App. 447, 454, 523 A.2d 1345 (1987). Such evidence is present here.

The jury had before it the statement given by Fleming to the police, in which he stated that everyone in the car on the night in question knew that the defendant was going to rob someone and that they all remained in the car while the defendant confronted the victim. Furthermore, according to the statement, after the defendant returned to the car, Fleming asked him why he shot the victim when he had the wallet.

Construing the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt of conspiracy to commit first degree robbery.

V

The defendant’s final argument is that there are compelling policy reasons for repudiating the Secondino rule as applicable in a criminal case. This argument warrants little discussion. The Supreme Court has stated that “[t]he Secondino rule applies to criminal prosecutions.” State v. Ross, 230 Conn. 183, 209, 646 A.2d 1318 (1994). “This court will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide.” State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       Randy Fleming is unrelated to the defendant. We refer in this opinion to James Fleming, Jr., as the defendant and to Randy Fleming as Fleming.

       Fleming acknowledged, however, that he did not see the defendant actually go inside his house and that the last time he saw him, the defendant was standing outside in front of his house.

       In State v. Grant, supra, 221 Conn. 100-101, the court noted that “the statements were contemporaneous tape recordings of the entire interview with each witness. The interviews were conducted only a few days after the shooting. The testimony of the police officers to whom the statements were given indicated that they did not initiate either inquiry regarding [the crime]. Moreover, making false statements to the police could have subjected [the witnesses] to criminal prosecution. General Statutes §§ 53a-157 and 53a-180 .... Finally, both witnesses were subject to cross-examination . . . .” (Citation omitted.)
      In State v. Borrelli, supra, 227 Conn. 160, the victim of a crime reported the incident to the police and later recanted her statement. The court noted that “the victim gave her statement to a police officer on the day of the incident described in the statement. . . . She also signed the statement after reading it, and swore to its accuracy under oath. She confirmed at trial that the words in the statement were the words that she had spoken to [the police officer].” Id. The court further noted that the victim’s statement was not made in response to leading questions and there was ample corroborative evidence that supported the information contained in the prior statement. Id., 160-61.

       “While it is not necessary for a written, signed statement to be sworn in order for it to be admitted under the Whelan doctrine; State v. Almeda, 211 Conn. 441, 452, 560 A.2d 389 (1989); it certainly is a circumstance that adds to the reliability of the statement.” State v. Borrelli, supra, 227 Conn. 160 n.6.

       For example, the statement contains the following exchange:
      “Q. Okay and when [the defendant] got out of the car did he have to cross the street to get to the student?
      “A. Yes.
      “Q. Okay when he got up to the student, could you see what he was doing?
      “A. I heard him yelling.
      “Q. Okay you could hear it?
      “A. Yeah.
      “Q. What did he say?
      “A. ‘Get me your wallet. Give me your money.’
      “Q. Did you hear what the student said?
      “A. ‘Here, take the money.’ He said ‘Here take the money.’ Then he said, T should shoot you. Should shoot this cracker man. I should shoot this cracker.’
      “Q. Okay from where you were, could you see the student hand him the wallet?

        “A. He went like this. Yes he went like this. He handed him the wallet. And then [the defendant] said, T should shoot this cracker,’ and then he just started — I just heard him fire shots. Then I seen [the defendant] running back to the car and then he said, T dropped the wallet, I dropped the wallet.’ ”

       In light of this conclusion, it is unnecessary for us to consider the defendant’s claim that the trial court’s improper admission of that evidence was harmful.

       Fleming also denied that this statement was truthful.

       Fairweather further testified that the defendant returned the gun to him prior to the night of the shooting.

       The defendant’s sister testified that on the night in question, the defendant came home at around 1:15 a.m. She further testified as follows:
      “Q. Who else was home at the time?
      “A. Me, my two kids, and my mother.
      “Q. And what was your mother doing?
      “A. She was in her living room watching TV.
      “Q. So, she would have seen him come in too, wouldn’t she?
      “A. Yeah, she had to let him in the house.
      “Q. And she still lives with you?
      “A. Yes, she does.
      “Q. And she’s around, you saw her today, in fact?
      “A. Yes, I did.
      “Q. So, she can testify that it was 1:15 also?
      “A. Yes, she was there.”

       The defendant refers to the testimony of Pamela Swint, a “friend-acquaintance,” and Mary Martin, an acquaintance and bartender at the Oasis Cafe on the night in question. Both witnesses testified that they saw the defendant at the Oasis Cafe on the night of the shooting. The defendant also refers to the testimony of his sister, Tonya Fleming, who stated that the defendant came home at approximately 1:15 a.m., and that at that time, their mother was at home watching television.

       In light of this conclusion, it is unnecessary for us to consider the defendant’s claim that the trial court’s error in giving the charge was harmful.


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    State of Connecticut v. Scott Graham
    (12611)
    Schaller, Spear and Hennessy, Js.
    Submitted on briefs October 27, 1994
    decision released January 10, 1995

      Eugene Callahan, state’s attorney, and James M. Ralls and Phillip D'Eramo, assistant state’s attorneys, filed a brief for the appellant (state).

      Lawrence Getter filed a brief for the appellee (defendant).
   Schaller, J.

The state appeals from the judgment rendered upon the trial court’s granting the defendant’s motion in arrest of judgment based on State v. Patterson, 31 Conn. App. 278, 624 A.2d 1146 (1993), rev’d, 230 Conn. 385, 645 A.2d 535 (1994), which held that it was per se reversible error for a judge to be absent from the courtroom during jury voir dire in a criminal trial. The sole issue is whether the judge’s absence from voir dire is per se reversible error and whether the defendant’s right to have the judge present during voir dire is not waivable.

After the trial court in this case granted the defendant’s motion in arrest of judgment, our Supreme Court in State v. Patterson, supra, 230 Conn. 385, held that a defendant may waive both his own right to have the judge physically present during the voir dire and his right to assert a juror’s interest in the continuous presence of a judge at a criminal voir dire. The trial court, therefore, improperly granted the motion in arrest of judgment. In the exercise of its supervisory powers, the Supreme Court also determined that, in the future, a trial judge is required to remain on the bench throughout the voir dire of a criminal trial and that this requirement cannot be waived.

The state claims that the defendant waived his right to have the judge present during voir dire. We agree. In Patterson, the Supreme Court stated that “[i]n some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made. ... In other circumstances, waiver can be implied. . . . We conclude that the waiver of judicial supervision of the entire voir dire in a criminal case need not be more deliberately expressed than the waiver of rights under Batson v. Kentucky, [476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)]. The waiver can be made by counsel, and it will ordinarily be inferred from the absence of an objection.” (Citations omitted.) State v. Patterson, supra, 230 Conn. 396.

As in Patterson, the record in this case indicates that a valid waiver occurred. The defendant was represented by counsel and had had prior experience with the criminal justice system. The transcript of the voir dire reveals that the defendant acquiesced when the judge left the courtroom. The state’s attorney and defense counsel then proceeded expeditiously to select six jurors and one alternate without requesting that any judicial determinations be made. “This behavior demonstrates that the defendant considered the judge’s presence to be essential only [in the event of] contested portions of the voir dire. During the uncontested portions of the voir dire, the defendant was satisfied with the judge’s being absent and available, and with the proceedings being recorded on a tape cassette.” Id., 39.7.

The judgment dismissing the information is reversed and the case is remanded with direction to render judgment of guilty in accordance with the jury verdict.

In this opinion the other judges concurred.

       “Because we conclude that the defendant waived any right to continuous judicial supervision over the voir dire, and therefore that there was no error arising out of the judge’s absence during the voir dire, we need not address whether such absence may be harmless error and whether it was harmless in this case.” State v. Patterson, supra, 230 Conn. 397 n.11.


author: Foti, J.

text:
    State of Connecticut v. Harry J. Brunson
    (12082)
    Foti, Landau and Spear, Js.
    Argued October 25, 1994
    decision released January 10, 1995

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, and Gregory Takacs, certified legal intern, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Pepper, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant received a total effective sentence of twenty years imprisonment, suspended after sixteen years, followed by five years probation. On appeal, he claims (1) that the trial court improperly denied his motion to suppress statements made by him, and (2) that there was insufficient evidence to sustain a conviction under General Statutes § 29-35. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 19, 1991, just prior to midnight, in the vicinity of Newhall and Lilac Streets in New Haven, Shawn Williams was the victim of a gunshot wound. The bullet entered his chest and exited his back. He sustained substantial blood loss and was rushed to Yale-New Haven Hospital where surgery was performed. Thereafter, he told Detective Leroy Dease of the New Haven police department that he was shot by someone he knew as “Fat Harry.” Several months before the shooting, Williams had had a fight with this person while in jail. Williams related that he was standing at the corner of Newhall and Lilac Streets, arguing with someone, when his assailant walked up to him and shot him in the chest.

Dease left the hospital and returned later that day with ten photographs of black males, one of which depicted the defendant. Williams identified the photograph of Harry Brunson, the defendant, as being a photograph of the man who had shot him. On the basis of Williams’ identification, Dease applied for and received an arrest warrant for the defendant.

I

The defendant first claims that the trial court improperly denied his motion to suppress certain statements that he had made to Dease. The following additional facts are relevant to the resolution of this claim. On December 31, 1991, officers from the Hamden police department arrived at the defendant’s home to arrest him on the New Haven warrant. The defendant was not at home, but his mother was advised of the outstanding warrant. Thereafter, the defendant, accompanied by his parents, presented himself at the New Haven police station. Dease met them in the lobby and escorted them to his office. In the defendant’s presence, his mother had a conversation with Dease concerning why the police wanted to arrest her son. During this conversation, the defendant stated that he did not shoot anyone. A conversation between the detective and the defendant’s parents, unrelated to the incident, then took place. Dease asked the defendant’s parents to leave the room. After they left, he obtained a copy of the arrest warrant and advised the defendant of the charges against him. Dease then read the defendant his Miranda rights. The defendant indicated that he understood his rights and, without being questioned further, immediately stated that he did not shoot Williams. He stated that he had been present at the time of the shooting but he did not know who had shot Williams.

In denying the defendant’s motion to suppress the statements made by him after the Miranda warnings, the trial court found that the defendant was in custody at the time and that the state had sustained its burden of showing that he had voluntarily and intelligently waived his rights. The court also found that the statements made after the Miranda warnings were given were spontaneous and not made in response to interrogation.

The defendant asserts that the trial court’s finding that the state proved by a preponderance of the evidence a knowing and voluntary waiver by the defendant of his Miranda rights is clearly erroneous. The defendant argues that he was never asked whether he wanted to waive his rights, nor was he asked to sign a written waiver. He claims that the trial court’s only stated justification for finding a voluntary and intelligent waiver was that “the defendant understood his rights . . . [and] had prior experience with having been arrested, having been advised of rights both by police and by the courts . . . prior to December 1991 . . . .” We need not consider this argument because the trial court specifically found that there was no interrogation, that is, that the statements made by the defendant were spontaneous and not in response to a question.

Our Supreme Court has consistently held that “two conditions must exist before a criminal suspect is entitled to Miranda warnings: (1) the defendant must be in the custody of law enforcement officials; and (2) the defendant must be subjected to interrogation. State v. Burak, 201 Conn. 517, 531, 518 A.2d 639 (1986); State v. Doehrer, 200 Conn. 642, 646, 513 A.2d 58 (1986); State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986).” State v. Copeland, 205 Conn. 201, 206, 530 A.2d 603 (1987). The state concedes that the defendant was in custody at the time that the statements were given. The sole issue for our determination is whether the defendant was subjected to interrogation when he made the statements in question.

The term “interrogation” under Miranda refers both to express questioning and to any words or actions on the part of the police that they should know are reasonably likely to elicit an incriminating response. State v. Jackson, 28 Conn. App. 721, 725, 613 A.2d 846, cert. denied, 224 Conn. 904, 615 A.2d 1045 (1992). “A statement which is not elicited as a result of interrogation, but is given freely and voluntarily without any compelling influence, is admissible in evidence.” State v. Copeland, supra, 205 Conn. 207. The burden rests upon the defendant to show that he was interrogated. State v. Doehrer, supra, 200 Conn. 647.

The trial court found the defendant’s statements to be spontaneous, and not a result of interrogation. The record supports the court’s determination in that the statements seem to have been made immediately after the defendant told Dease that he understood his rights. There appears to have been no time for Dease to have asked a question. Our review of the record indicates that the defendant did not sustain his burden of showing that he was interrogated, and we think that the trial court reasonably concluded from the evidence presented that the defendant’s statements were spontaneous.

While the defendant bears the burden of proving that an interrogation took place, it is the state’s burden, irrespective of Miranda warnings, to prove the statements were voluntary. There is no direct claim here that the statements were made other than voluntarily. The defendant’s claim on this issue was that the evidence was insufficient for the court to have found a waiver of his Miranda rights. The defendant, while noting that “the trial court is in a unique position to judge the credibility of witnesses,” does argue, however, that it “strains credibility” to find that the statements were spontaneous. This issue, while not articulated fully, warrants review on appeal.

The determination of voluntariness is a question of fact. 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). “Ultimately, the test of voluntariness is whether an examination of the totality of the circumstances shows that the police action . . . ‘was such as to overbear the defendant’s will to resist and bring about [statements], not freely self-determined.’ State v. Gonzalez, 206 Conn. 213, 221-22, 537 A.2d 460 (1988).” State v. Jackson, supra, 28 Conn. App. 726-27.

On the basis of the record before us, we conclude that there was sufficient evidence to allow the trial court to find that the defendant’s statements were voluntarily given.

II

The defendant next claims that the evidence was insufficient to sustain a conviction of carrying a pistol without a permit pursuant to General Statutes § 29-35. Section 29-35 prohibits the carrying of a pistol beyond a person’s dwelling or place of business without a permit issued in accordance with General Statutes § 29-28. Section 29-28 allows a local authority to issue a permit to an applicant who lives or has a place of business within that jurisdiction. A permit authorized under § 29-28 allows a person to carry a pistol only within the boundaries of that jurisdiction. A necessary element of the crime of carrying a pistol without a permit is proof that the defendant had not been issued a valid permit to carry the firearm. See State v. Anonymous, 179 Conn. 516, 427 A.2d 403 (1980). The defendant contends that although the state proved that he did not have a permit either in New Haven, where the shooting took place, or in the state of Connecticut, it failed to prove that he did not have a permit in Hamden, his place of residence. The defendant argues that by failing to prove that he did not have a permit in Hamden, the state failed to prove a necessary element of the crime charged.

The defendant’s argument is based on his interpretation of §§ 29-35 and 29-28. He claims that § 29-35 incorporates by reference those provisions of § 29-28 that authorize various officials to issue a permit to carry a weapon, but not the provisions of § 29-28 that provide for geographical limitations on such permits. The defendant argues that the plain language of § 29-35 does not allow the extension of criminal liability from the prohibition on the carrying of a weapon without a local or state issued permit, to a prohibition on the carrying of a weapon beyond the jurisdictional limitation of the issuing authority.

The facts relevant to this claim are not disputed. The defendant, at the time of his arrest, lived in Hamden with his parents. The shooting took place in New Haven. The state did not prove that the defendant did not have a permit to carry a pistol in Hamden. The state argues that requiring proof that the defendant did not have a permit from Hamden would have been irrelevant, since a permit issued under § 29-28 from Ham-den would not have authorized the defendant to carry a pistol in New Haven, where the shooting took place. We agree.

Sections 29-35 and 29-28 must be read together so as not to lead to a bizarre result. We do not read statutes in a vacuum. State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994); Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 303, 622 A.2d 1005 (1993). Thus, we conclude that § 29-35 incorporates, by reference, both the authority to issue a permit and the geographical limitations found under the provisions of § 29-28. Given our reading of the statutes, the state is correct in asserting that if a permit had been issued in Hamden, it would only have allowed the defendant to carry a pistol locally in the town of Hamden. What was relevant here was whether the defendant had a New Haven permit or a state issued permit. Only those permits would have allowed the defendant to carry a pistol in the jurisdiction of New Haven. The state’s evidence demonstrated that the defendant did not possess either of those permits. We find that the evidence presented at trial was sufficient to support the defendant’s conviction under § 29-35.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 provides in pertinent part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ft

       General Statutes § 29-35 provides in pertinent part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       During oral argument, the defendant, through counsel, claimed that only the statements made by him after he was given Miranda warnings are relevant to this appeal. Therefore, this statement is not at issue.

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

       The trial court, after making specific findings of fact in an oral decision, denied the defendant’s motion to suppress. The transcript of the findings is not signed by the judge, as is required by Practice Book § 4059. It is the appellant’s burden to have the transcript signed, consistent with his responsibility of providing an adequate record. State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). Although not fully complying with Practice Book § 4059, we will nonetheless review the defendant’s claim in this case because the trial court made adequate findings on the record. See Fiddelman v. Redmon, 31 Conn. App. 201, 209 n.6, 623 A.2d 1064 (1993).

       While not obliged to review the transcripts of the evidentiary portion of the motion to suppress, and while such a review is not necessary for the determination of this issue, we have done so. We find that the court’s conclusion that there had been a voluntary and intelligent waiver, based on a consideration of the surrounding circumstances, was supported by substantial evidence. The court heard testimony from Dease, the defendant, and both of the defendant’s parents. WTiile the court did not articulate all of the bases for its conclusion, the record is clear that along with the defendant’s prior experiences and familiarity with police procedures, the court had evidence of his age, his ability to communicate and to answer questions in more than a monosyllabic fashion, his appearance and relative level of intelligence during his testimony, the fact that he did not seem either intoxicated or under the influence of any other drug at the police station, and that he at no time made a claim of mental or physical impairment. If called upon to do so, we could not conclude that the court’s action was clearly erroneous.

         See footnote 2.

       General Statutes § 29-28 (a) provides in pertinent part: “Upon the application of any person having a bona fide residence or place of business within the jurisdiction of any such authority . . . such chief of police . . . may issue a permit to such person to carry a pistol or revolver within the jurisdiction of the authority issuing the same . . . . Said commissioner [of public safety] may, upon application, issue, to any holder of any such permit, a permit to carry a pistol or revolver within the state. . . .”


author: Heiman, J.

text:
    Stephen Massad et al. v. City of New London et al.
    (13037)
    Lavery, Heiman and Spear, Js.
    Argued December 6, 1994
    decision released January 17, 1995

      Stephen Massad, pro se, and Terry Brennan, pro se, the appellants (plaintiffs) filed a brief.

      Marguerite C. Driscoll, for the appellees (defendants).
   Heiman, J.

The plaintiffs appeal from the action of the trial court taken on cross motions for summary judgment. The trial court rendered summary judgment in favor of the defendants and denied the plaintiffs’ motion. On appeal, the plaintiffs claim that the trial court incorrectly determined that the defendants’ actions did not violate the equal protection clauses of the fourteenth amendment to the United States constitution and article first, § 20, of the constitution of Connecticut. We affirm the judgment of the trial court.

The facts that generated this action and underlie this appeal are undisputed. The plaintiffs are nonresident owners of property in the city of New London and pay property taxes to the city. On June 15,1992, the New London city council approved á budget and tax rate ordinance for the city pursuant to the provisions of the city charter. On June 29,1992, petitions were filed with the city clerk by a group of nonresident taxpayers, including the plaintiffs, requesting a repeal of the ordinance, or, in the alternative, that the ordinance be submitted to referendum. On June 30, 1992, the city council voted to submit the ordinance to referendum on August 11, 1992.

On July 7, 1992, the plaintiffs sought to register to vote on the referendum. Their petition was denied by the registrar of voters because of the requirement in the New London city charter that all electors be residents of the municipality.

On October 26, 1992, the plaintiffs commenced this action. They sought injunctive relief, prohibiting the city from proceeding with any referenda until the plaintiffs were admitted as electors and permitted to vote in all referenda. In addition, the plaintiffs sought declaratory relief that the actions of the defendants were contrary to General Statutes § 7-6 and the city charter and denied them their constitutional rights to equal protection.

Practice Book § 384 requires that summary judgment “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.” The plaintiffs do not quarrel with the finding by the trial court that no issue of material fact exists, rather, they contend that the trial court failed to apply the proper legal principles to the undisputed facts.

We have carefully reviewed the entire record, briefs, and the oral argument of the attorney for the defendants and are satisfied that the trial court correctly rendered summary judgment in the defendants’ favor and that the judgment should be affirmed. We have also carefully reviewed the trial court’s memorandum of decision. Massad v. New London, 43 Conn. Sup. 297, 652 A.2d 531 (1993). That memorandum of decision accurately reflects the Connecticut law governing this action. Nothing would be accomplished by our recitation of what the trial court has already so ably stated.

Accordingly, we adopt the well reasoned memorandum of decision of the trial court as a statement of the facts and the law applicable to the proper resolution of this case. See, e.g., In re Emmanuel M., 35 Conn. App. 276, 278, 648 A.2d 881, cert. denied, 231 Conn. 915, 648 A.2d 151 (1994); Forge Square Associates Ltd. Partnership v. Construction Services of Bristol, Inc., 33 Conn. App. 669, 673, 638 A.2d 606, cert. denied, 229 Conn. 913, 642 A.2d 1207 (1994).

The judgment is affirmed.

       The fourteenth amendment to the United States constitution provides as follows: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       The constitution of Connecticut, article first, § 20, provides as follows: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”

       The plaintiffs failed to appear at oral argument.


text:
    Transportation General, Inc. v. Insurance Department of the State of Connecticut et al.
    (12944)
    O’Connell, Foti and La very, Js.
    Argued October 28, 1994
    decision released January 17, 1995

      Richard P. Weinstein, with whom, on the brief, was Gail P. Ferris, for the appellant (plaintiff).

      William J. Prensky, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).

      Kathleen N. Dondero, with whom, on the brief, was Daniel L. FitzMaurice, for the appellees (defendants New Hampshire Insurance Company et al.).
   Foti, J.

The plaintiff, Transportation General, Inc., doing business as Metro Taxi, appeals from the judgment rendered by the trial court affirming the decision of the insurance commissioner who, in turn, had affirmed the decision of the Connecticut Automobile Insurance Assigned Risk Plan (CAIARP) canceling the commercial automobile liability insurance policy issued to the plaintiff by New Hampshire Insurance Company. On appeal, the plaintiff claims (1) that the trial court improperly applied a lower standard of conduct to administrative hearing officers than to judges and (2) that, even pursuant to the lower standard of conduct, there was sufficient evidence to show bias and prejudgment on the part of the insurance commissioner. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff is a taxi cab company the vehicles of which were insured by New Hampshire Insurance Company, through the CAIARP. On October 16, 1991, New Hampshire Insurance Company issued a notice of cancellation of the plaintiffs policy due to nonpayment of premiums. After receiving the notice of cancellation, two principals of the plaintiff taxi cab company, along with their attorney, met with the insurance commissioner. The purpose of this meeting, which took place on October 30,1991, was to work out a temporary solution to prevent the cancellation of the plaintiffs insurance. The insurance commissioner recommended a settlement of the dispute between New Hampshire Insurance Company and the plaintiff over the amount of premium due. The proposal was not acceptable to the plaintiff and the meeting ended without an agreement.

On November 1,1991, the plaintiff formally appealed the cancellation of its policy to the governing committee of the CAIARP. The committee affirmed the cancellation and the plaintiff appealed to the insurance commissioner pursuant to General Statutes § 38a-329 (a). The issue raised by the plaintiff in this appeal was whether the CAIARP’s sustaining of the cancellation of the plaintiffs policy was predicated on a validly calculated premium. An evidentiary hearing was conducted by the insurance commissioner and a decision was issued on June 17, 1992. The plaintiff had requested, at the opening of this hearing, that the commissioner recuse himself on the basis of his prior involvement in the case. He refused to do so. In his decision, the insurance commissioner sustained the cancellation of the plaintiffs insurance policy. In doing so, however, he made several modifications to the calculation of the plaintiffs premium, thereby benefiting the plaintiff by decreasing the amount owed. Nevertheless, the insurance commissioner found that there was an annual premium in the amount of $613,200 due and unpaid, and that the cancellation was justified.

The plaintiff appealed the insurance commissioner’s decision to the Superior Court. The sole basis of the plaintiff’s appeal was that the insurance commissioner had denied the plaintiff a fair hearing because he had developed a bias against the plaintiff prior to the hearing. The plaintiff also alleged that the insurance commissioner had improperly received ex parte evidence in violation of General Statutes § 4-181. The trial court held an evidentiary hearing on the issues raised by the plaintiff’s claim of bias. At this hearing, the plaintiff claimed that the insurance commissioner had displayed an appearance of bias at the October 30 meeting in that he had prejudged what the appropriate premium should be and, in subsequent correspondence, he displayed his anger that the plaintiff had refused to accept his recommendation. The plaintiff also alleged that the insurance commissioner had improperly relied on certain ex parte communications when making his final decision. The trial court found that “the commissioner was not biased against the plaintiff prior to the administrative hearing nor had he prejudged the issues to be considered there. . . . [FJurther . . . the ex parte communications received by the commissioner after the hearing did not prejudice the plaintiff.” The trial court affirmed the decision of the insurance commissioner and dismissed the plaintiff’s appeal. The plaintiff now appeals that judgment of dismissal.

I

The plaintiff first claims that the trial court’s application of a lower standard of conduct to administrative hearing officers than to judges was improper. We disagree.

The trial court was asked to review the actions of an administrative hearing officer whom the plaintiff had accused of bias. The plaintiff argued that there were clear indications of bias and prejudgment on the part of the insurance commissioner. The trial court, after weighing all the evidence and determining the credibility of the witnesses, found that “the plaintiff has not sustained its burden of proving that, prior to the administrative hearing, the commissioner had become biased against it and had prejudged the factual issues which were to be considered at that hearing.” The plaintiff argues that, in reaching this conclusion, the trial court improperly applied a lower standard of conduct to administrative hearing officers than to judges. The plaintiff argues that its due process rights under the Connecticut and United States constitutions are implicated in that due process requires an impartial decision maker for quasi-judicial, as well as for judicial, proceedings. Simard v. Board of Education, 473 F.2d 988, 993 (2d Cir. 1973). The plaintiff argues that the standard of impartiality should be at least as high, if not higher, for an administrative hearing officer as for a judge.

The canons of judicial ethics for disqualifying a judge for bias or prejudgment do not apply to administrative hearing officers. Clisham v. Board of Police Commissioners, 223 Conn. 354, 361, 613 A.2d 254 (1992); Petrowski v. Norwich Free Academy, 199 Conn. 231, 238, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986). “ ‘The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator.’ ” Rado v. Board of Education, 216 Conn. 541, 556, 583 A.2d 102 (1990). The test for disqualification has been succinctly stated as being whether “ ‘ “a disinterested observer may conclude that [the board] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.” ’ ” Clisham v. Board of Police Commissioners, supra, 362.

Attempting to overturn this line of authority, the plaintiff argues that the differing rules for judges and administrative hearing officers lack a rationale. A clear rationale, however, is that administrative agencies serve roles other than the purely adjudicatory function of the courts. An administrative official must be able to function in the community and to respond to problems under his or her aegis. Petrowski v. Norwich Free Academy, supra, 199 Conn. 237. Our Supreme Court has held that “[t]he applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification. . . . Such a rarefied atmosphere of impartiality cannot practically be achieved where the persons acting as administrative adjudicators, whose decisions are normally subject to judicial review, often have other employment or associations in the community they serve. . . . Neither the federal courts nor this court require a standard so difficult to implement as a prerequisite of due process of law for administrative adjudication.” Id., 238.

While due process does require that a hearing officer be impartial and unbiased; id., 235; the standard for recusing an administrative hearing officer for bias is not identical to the high standard applicable to judges. The trial court correctly relied on the established standard governing the bias and recusal of administrative hearing officers when it found that the appearance of bias displayed by the commissioner did not so taint the process as to render it unconstitutional. Due process safeguards were afforded to the plaintiff in this case.

II

Next, the plaintiff claims that even pursuant to a lower standard of conduct, there was sufficient evidence to show bias and prejudgment on the part of the insurance commissioner. The plaintiff claims that the trial court incorrectly found that it had failed to meet its burden of proving such bias and prejudgment. We disagree.

At the trial, the plaintiff presented evidence allegedly demonstrating the prejudgment and bias of the commissioner. First, the plaintiff alleged that certain comments made by the commissioner at the October 30 meeting demonstrated that he had formed an opinion about what was fair to the plaintiff long before the administrative hearing was held. It was alleged that the commissioner stated that his interim proposal was the best deal the plaintiff could expect to get and there was nothing to gain from demanding a hearing. The trial court heard conflicting evidence on this point. The commissioner denied making- such statements. Ultimately, the trial court believed the commissioner and made the following finding of fact. “The court does not find that the commissioner threatened the plaintiff by explicitly stating that the plaintiff would not obtain a lower rate than the settlement proposal even after a formal hearing.”

The plaintiff also presented a letter written by the commissioner on November 18,1991. The letter, which predated the plaintiffs appeal to the commissioner, was addressed to the plaintiffs counsel and discussed the plaintiffs rejection of the commissioner’s solution to the pending cancellation of its insurance. The plaintiff alleged that specific phrases in the letter demonstrated that the commissioner was biased and had prejudged the merits of its case. The trial court had the opportunity to evaluate the November 18 letter and to hear the commissioner’s testimony. It held that “[although the commissioner obviously felt frustrated ... at what he perceived as the plaintiff’s ‘irrationality’ in rejecting his earlier proposal, the court finds that these feelings did not taint the fact finding process that the commissioner followed at the administrative hearing .. . .”

The plaintiff also relied on a letter that the commissioner received after the administrative hearing. This letter, from the underwriting manager of New Hampshire Insurance Company, contained New Hampshire’s recalculation of the plaintiff’s premium. The commissioner attached the letter to his decision. At trial, the plaintiff alleged that this was an ex parte communication, which the commissioner improperly relied on in formulating his final decision as to the amount of premium due. The plaintiff alleged that this reliance on the ex parte communication was prejudicial to the plaintiff and was evidence of the commissioner’s bias. The trial court found that the letter was an ex parte communication under General Statutes § 4-181 (c) and noted that whenever a violation of that statute is shown to have occurred, a presumption of prejudice arises, and the agency has the burden of disproving such prejudice. See Henderson v. Dept of Motor Vehicles, 202 Conn. 453, 457-60, 521 A.2d 1040 (1987). The trial court heard testimony that the commissioner had already determined the correct modification factor on the basis of evidence adduced solely at the administrative hearing. Once that determination was made, the actual premium calculation, as was contained in the ex parte letter, was a routine arithmetic task, which involved no further judgment or discretion on the part of the commissioner. The court concluded that “the commissioner and the insurance department have sustained their burden of proving that the plaintiff was not prejudiced by the ex parte communication.”

There is no question that a petitioner before an administrative agency is entitled to have his petition heard and determined by an impartial and unbiased agency. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987). Connecticut law recognizes a presumption that agency administrators who serve as adjudicators are unbiased. Clisham v. Board of Police Commissioners, supra, 223 Conn. 362; Petrowski v. Norwich Free Academy, supra, 199 Conn. 236. This presumption can be rebutted by a showing of a conflict of interest, but the burden of establishing a disqualifying interest rests on the party making the contention. Petrowski v. Norwich Free Academy, supra, 236. The impermissible interest asserted must be realistic and more than remote. Id. “To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias . . . unless the circumstances indicate a probability of such bias ‘too high to be constitutionally tolerable.’ ” Rado v. Board of Education, supra, 216 Conn. 556.

To prove bias as a ground for disqualification of the hearing officer, the moving party must show more than an adjudicator’s announced position about law or policy. Clisham v. Board of Police Commissioners, supra, 223 Conn. 362. The showing must disclose that the adjudicator has prejudged facts that are in dispute. Id.

Our Supreme Court has stated that “[wjhether an interest justifies disqualification is necessarily a factual question and depends upon the circumstances of the particular case. Armstrong v. Zoning Board of Appeals, 158 Conn. 158, 171-72, 257 A.2d 799 (1969).” Petrowski v. Norwich Free Academy, supra, 199 Conn. 242. After hearing the evidence, it is for the trier of fact, not an appellate court, to sift and weigh the evidence. State v. Jones, 22 Conn. App. 665, 668, 578 A.2d 667 (1990). A determination by the trial court that the evidence produced by the party claiming actual bias does not establish such bias “cannot be overturned, unless the subordinate facts found or the admitted or undisputed facts would require a different conclusion as a matter of law.” Rado v. Board of Education, supra, 216 Conn. 561.

Where the factual basis of the trial court’s decision is challenged, an appellate court must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and pleadings in the whole record, those facts are clearly erroneous. Season-All Industries, Inc. v. R. J. Grosso, Inc., 213 Conn. 486, 498, 569 A.2d 32 (1990); Fortier v. Newington Group, Inc., 30 Conn. App. 505, 509, 620 A.2d 1321, cert. denied, 225 Conn. 922, 625 A.2d 823 (1993).

On the basis of our review of the entire record, we conclude that the trial court’s finding that the plaintiff had not sustained its burden of proving bias was not clearly erroneous. The trial court allowed the plaintiff to introduce evidence in support of the allegations of bias and prejudgment. After hearing that evidence, the court came to the “factual conclusion” that the commissioner’s interests did not justify disqualification. There was ample evidence before the trial court to support its finding. Deference to the trial court’s fact-finding is especially appropriate in this case, where the dispute involved the assessment of the credibility of the witnesses.

The judgment is affirmed.

In this opinion the other judges concurred.

       The CAIARP is a residual market mechanism established by the state insurance commissioner pursuant to General Statutes § 38a-329 (a). This statute directs the commissioner to “establish and approve a reasonable plan ... to provide insurance coverage for applicants for such property and casualty policies who are in good faith entitled to but unable to procure such policies through ordinary methods.” Automobile insurance is covered under the CAIARP. See General Statutes §§ 38a-329 and 38a-337.

       The plaintiffs premium was experience rated. An experience rated premium has two components, the manual, or base, rate and the loss experience of the particular insured. The manual rates are based on the past history of all available claims for a particular type of risk. The frequency, variety and total dollar amount of claims are used by the CAIARP to develop a base rate. The base rate is filed with the state insurance commissioner pursuant to General Statutes § 38a-676 (a). The second component, losses actually experienced by the particular insured over a finite period, is composed of several elements in addition to the amount of claims paid. See General Statutes § 38a-686 (b) (1). An insured’s loss experience is reduced to an experience rating modification factor. The modification factor is applied to the base rate to achieve the actual premium for the particular insured. See Century Cab, Inc. v. Commissioner of Insurance, 327 Mass. 652, 100 N.E.2d 481 (1951) (explaining experience rating under similar commercial insurance plan).

       General Statutes § 38a-329 (a) provides in relevant part: “Any applicant for any such policy, any person insured under any such plan and any insurance carrier affected may appeal to the insurance commissioner from any ruling or decision of the . . . committee designated to operate such plan. . . .”

       The insurance commissioner found that a decreased modification factor should have been employed and that various losses should have been excluded from the premium calculation formula.

       The plaintiffs claim arises -under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. The reach of the two is the same. See Leib v. Board of Examiners for Nursing, 177 Conn. 78, 81-82, 411 A.2d 42 (1979).

       The plaintiff focused on the following language in the November 18 letter: “Since your client’s decision not to go along with the interim proposal seems so irrational, I can only infer that it couldn’t fund the proposal . . . .”

       General Statutes § 4-181 (e) provides in part that “no party ... in a contested case . . . shall communicate, directly or indirectly, in connection with any issue in that case, with a hearing officer or any member of the agency . . . without notice and opportunity for all parties to participate in the communication.”

       The CAIARP and New Hampshire Insurance Company argue that the plaintiff has not challenged the trial court’s ruling on the nonprejudicial effect of the ex parte communication. They argue that the plaintiff has abandoned this claim by not raising it on appeal. We find this argument to be without merit. The plaintiff has properly briefed this issue and provided us with a complete analysis for review.


author: Per Curiam.

text:
    Kenna D. Brown v. William B. Brown
    (12588)
    O’Connell, Heiman and Spear, Js.
    Argued November 28, 1994
    decision released January 17, 1995

      Kenna I. Daly, pro se, the appellant (plaintiff).

      C. Ian McLachlan, with whom, on the brief were William H. Narwold and Laura W. Ray, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from a postjudgment order rendered in her dissolution of marriage action.

The record discloses that the parties’ seventeen year marriage was dissolved on November 3, 1989. There are three minor children of the marriage. Since the dissolution, there have been numerous postjudgment motions related to visitation. The plaintiff is a practicing attorney who represented herself in the postjudgment proceedings. She lives with the children in the marital residence in Avon. The defendant lives in West-port and works in New York City.

On February 17,1993, the trial court heard argument on the plaintiff’s motion for an order protecting the physical and emotional health of the minor children. At the conclusion of the hearing, the trial court issued an order concerning the defendant’s Christmas visitation with the children and denied most of the relief requested by the plaintiff. The plaintiff then filed a motion for reconsideration and reargument, which was denied on June 9, 1993.

The plaintiff appeals from the initial order of February 17,1993, and the June 9,1993 denial of her motion for reconsideration. Although the plaintiff raises eight separate issues, which essentially chronicle the relief she requested in her initial motion, the gravamen of her appeal is that the trial court proceedings were tainted by pervasive gender bias on the part of the trial court. She also claims abuse of discretion by the trial court.

The defendant responds that the issue of bias was not presented to the trial court and that the trial court did not abuse its discretion in its substantive rulings.

We commence our analysis by observing that the plaintiffs claim of gender bias was not raised in the trial court. It is axiomatic that this court, with certain exceptions not relevant here, will not consider claims that were not distinctly raised in the trial court. “[T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 741, 631 A.2d 288 (1993). Our role on review is to decide whether the trial court’s decision is clearly erroneous in view of the evidence and pleadings in the record. Housatonic Valley Publishing Co. v. Citytrust, 4 Conn. App. 12, 15, 492 A.2d 203 (1985). Accordingly, we do not consider the gender bias issue.

In five of her claims, the plaintiff charges that the trial court abused its discretion. An appellant who seeks to reverse the trial court’s exercise of judicial discretion assumes a heavy burden. State v. Carey, 228 Conn. 487, 495, 636 A.2d 840 (1994). In family matters, a trial court is vested with broad discretion. Sontz v. Sontz, 25 Conn. App. 810, 811, 593 A.2d 523 (1991). Appellate review of the exercise of that discretion is limited to determining (1) whether the trial court correctly applied the law, and (2) whether the trial court could reasonably have concluded as it did. Duve v. Duve, 25 Conn. App. 262, 266, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992). Every reasonable presumption must be given to support the correctness of the judgment. Brash v. Brash, 20 Conn. App. 609, 613-14, 569 A.2d 44 (1990). Decision making in family cases requires flexible, individualized adjudication of the particular facts of each case. Yontef v. Yontef, 185 Conn. 275, 278, 440 A.2d 899 (1981).

Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. Weinstein v. Weinstein, 18 Conn. App. 622, 625, 561 A.2d 443 (1989). This court may not substitute its own opinion for the factual findings of the trial court. Hill v. Hill, 35 Conn. App. 160, 166, 644 A.2d 951, cert. denied, 231 Conn. 914, 648 A.2d 153 (1994).

The ultimate question on appellate review is whether the trial court could have concluded as it did. Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982). Examination of the record, the appellate briefs and consideration of the parties’ oral arguments does not persuade us that the trial court abused its discretion.

The judgment is affirmed.

       The plaintiffs claims are as follows:
      “L The trial court abused its discretion and was gender biased in denying plaintiff custodial mother any visitation with the minor children on Christmas every third year where said custodial mother has 100% of the obligations for three minor children with no help from defendant and where defendant admitted it was in the children’s best interest to spend time with their mother at Christmas.
      “II. The trial court erred, abused its discretion and was gender biased in prohibiting the introduction of or use of evidence to challenge defendant’s credibility where the hearing relied heavily on facts and where the evidence would have shown defendant lied under oath multiple times and in preventing plaintiff from completing offers of proof and marking documents.
      “HI. The trial court erred, was gender biased and abused its discretion where it failed to order defendant to obtain child care and award the mother all costs and expenses incurred when defendant cancels visitation leaving her without child care, causing stress and financial burden on an overburdened post-divorce family and distress to the children.
      ‘TV. The trial court was gender biased and abused its discretion when it permitted defendant who is a joint legal custodian to leave out of visitation minor children who are ill requiring parental care or who have school activities necessitating parental support, leaving distressed children and an overburdened custodial mother who works full time outside the home with additional work which should be shared by defendant father.
      “V. The trial court was gender biased where on a motion filed by a female plaintiff, the trial court jumped to conclusions based upon gender stereotypes before the facts were presented, looked to defendant’s male counsel for confirmations of ‘facts’ and recognized male counsel to address the motion.
      “VI. The trial court abused its discretion and was gender biased where it made assumptions based on gender stereotyping and where it prohibited the children from testifying on a motion for reconsideration.
      “VII. The trial court erred, violated the custodial mother’s due process rights and was gender biased when the court, among other actions, prevented her from making or completing arguments, prevented her from preserving a record, questioning a witness and upon the custodial mother’s motion for reconsideration, prevented her from telling the court why a rehearing was requested, what evidence was to be presented, prevented her from addressing other issues in the motion and prevented her from making a statement on the record after the court’s ruling.
      “VIII. The trial court’s decisions were materially affected by gender bias in the court and influenced by gender stereotype statements proffered by the defendant and which decisions were based in part on gender stereotypes and not on the facts, all to the detriment of the custodial mother, and such gender bias is error and abuse of discretion by the trial court.”