author: Foti, J. Daly, J., dissenting.

text:
    State of Connecticut v. Larry A. Radicioni State of Connecticut v. Linda J. Hurst
    (11776)
    (11777)
    Daly, Foti and Landau, Js.
    Argued May 3
    decision released August 3, 1993

      Michael L. Regan, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellant (state).

      Joseph F. Segal, for the appellees (defendants).
   Foti, J.

In this consolidated action, the state appeals from a decision of the trial court granting the defendants’ motions to suppress evidence obtained pursuant to a search warrant. The sole issue presented on appeal is whether the trial court improperly granted the defendants’ motions to suppress the evidence seized in the search of the defendants’ residence. We affirm the trial court’s judgment.

The defendants, Larry A. Radicioni and Linda J. Hurst, were charged with possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b), cultivation of marijuana in violation of General Statutes § 21a-277 (b), and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). On August 6, 1992, the defendants filed motions to suppress all of the evidence seized as fruits of an unlawful search. The motions were heard before the trial court, Stanley, J., on August 24,1992. The trial court granted the motions in open court on September 8, 1992, and accordingly, filed an order on that date. The informa-tions were dismissed with prejudice by the trial court Purtill, J., on September 14, 1992. On the same day, the state was granted permission to appeal.

The facts are not in dispute. Both defendants reside at 6 Faye Street, New London. On April 17,1992, an application for a warrant, including a supporting affidavit, was submitted to and signed by a judge of the Superior Court. The warrant was for the search of a single-family residence at 6 Faye Street, a black pickup truck with Connecticut registration 162-CDM, and the person of a white male named Larry Radicioni. The affi-ants were Officer Wayne E. Ego of the Waterford police department and Detective James Cash of the Connecticut state police. Both affiants were members of the eastern division of the statewide narcotics task force. On April 23,1992, the warrant was executed and resulted in the seizure of drug paraphernalia, cash, and a quantity of marijuana.

The affidavit in support of the warrant may be summarized as follows. The affiants attested that they met with a confidential informant who in the past had provided them with reliable information that had led to arrests in narcotics related incidents. The confidential informant stated that he knew of a person named Larry Radicioni who had been selling large quantities of marijuana for years. The confidential informant was unable to identify Radicioni’s specific address, but knew that his residence was near the Coca Cola Bottling Company in New London. The confidential informant further stated that marijuana could not be purchased directly from Radicioni or at his residence, but must be obtained through a buyer known to Radicioni and whom Radicioni always met at a prearranged location. The informant knew of someone who purchased marijuana from Radicioni on a regular basis. The affiants learned from the files of the Connecticut department of motor vehicles that Larry A. Radicioni of 6 Faye Street, New London, had a 1983 Ford pickup truck bearing Connecticut marker 162-CDM. The affiants further established that 6 Faye Street is near the Coca Cola bottling plant located at 951 Bank Street in New London and that Larry Radicioni also had a phone number listed to him at 6 Faye Street.

The affiants then met again with the confidential informant for the purpose of making a controlled purchase of marijuana from Radicioni through a third party-referred to in the affidavit as “the unwitting.” The informant telephoned the third party and arranged a buy at a prearranged location. Prior to that meeting, the affiants searched the person and vehicle of the confidential informant. The confidential informant met the third party who accepted the cash and then indicated that he had to leave for a few minutes to meet his supplier and would return shortly with the marijuana. The third party drove from the meeting location under surveillance.

Meanwhile, Cash was conducting a surveillance of 6 Faye Street and the Radicioni’s vehicle. Cash witnessed a white male exit 6 Faye Street and drive away in the black pickup truck with license plate number 162-CDM. The truck proceeded to the location of the third party’s vehicle, stopped for a very short time, and returned to 6 Faye Street. The third party then returned to the initial location and gave an item to the confidential informant that later tested positive for the presence of marijuana.

Approximately two weeks later, a second controlled purchase was arranged and proceeded in a fashion substantially similar to the first. On the basis of their experience and knowledge, the affiants attested that certain specific drug paraphernalia typically is needed by drug traffickers and normally is kept on their persons, in their cars, or hidden at their residences.

I

The state argues that the trial court improperly granted the defendants’ motions to suppress because the warrant affidavit set forth facts sufficient to establish probable cause. We disagree.

Article first, § 7, of the Connecticut constitution and the fourth amendment to the United States constitution guarantee the right to be free from unreasonable searches and seizures. The determination of whether a warrant affidavit established probable cause is governed by the “totality of the circumstances test” set forth by our Supreme Court in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). “When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories.” Id., 544-45; see also State v. Toth, 29 Conn. App. 843, 618 A.2d 536, cert. denied, 225 Conn. 908, 621 A.2d 291 (1993).

The state contends that the trial court, in considering the warrant, improperly conducted a de novo review of the issuing magistrate’s findings. The role of a reviewing court in assessing the validity of a warrant “ ‘is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed.’ ” State v. Toth, supra, 851. “ ‘Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.’ ” Id. In a doubtful or marginal case, the preference for warrants means that a reviewing judge should defer to the magistrate’s findings. State v. Duntz, 223 Conn. 207, 216, 613 A.2d 224 (1992).

In granting the motions to suppress, the trial court made reference to State v. Duntz, supra, and stated: “There is simply not enough in the affidavit to support the issue o[f] a civil warrant . . . [although there is an attempt to tie together circumstantially, it is not sufficient in the eyes of this Court . . . .’’As the state itself notes, the determination of probable cause is fact bound in nature. State v. Barton, supra, 538.

Our Supreme Court in State v. Barton, supra, 544, noted that, “[o]ur adoption of a ‘totality of the circumstances’ analysis does not mean . . . that a magistrate considering a search warrant application should automatically defer to the conclusion of the police that probable cause exists. Such deference would be an abdication of the magistrate’s constitutional responsibility to exercise an independent and detached judgment to protect the rights of privacy and personal security of the people of Connecticut.” Part of the function of the reviewing court is to ensure that the magistrate has fulfilled his or her role and confirmed that the warrant affidavit is sufficient to support issuance. The trial court in this matter discussed two reasons for its finding that probable cause was not established: the failure of the affidavit to detail the confidential informant’s basis of knowledge and the fact that this defect was not overcome by the “totality of the circumstances” due to the lack of sufficient corroborating evidence. The trial court properly applied a “substantial factual basis” analysis and did not conduct a de novo review.

II

Next, we address the information provided by the informant. As in State v. Barton, supra, the case at hand involved information supplied by a confidential informant. Although the totality of the circumstances test means that courts are no longer restricted to a categorical analysis of the issues, “ ‘the determination of an informant’s “veracity” or “reliability” and “basis of knowledge” remains highly relevant. . . . [State v. Barton, supra, 552].’ ” State v. Duntz, supra, 216-17. When reviewing a warrant, the court is “confined to the facts that appear on the face of the affidavit and those facts that may properly be inferred therefrom, testing those facts with common sense and reality and with great deference to the fact that the issuing magistrate found probable cause. State v. Rodriguez, 27 Conn. App. 307, 316, 606 A.2d 22 (1992).” State v. Vincent, 30 Conn. App. 249, 252, 620 A.2d 152, cert. granted, 225 Conn. 917, 623 A.2d 1026 (1993).

There is not sufficient information in the warrant affidavit from which the issuing magistrate reasonably could have inferred that the informant had sufficient personal knowledge of the defendant to attest that the defendant was engaged in criminal activity. The information in the affidavit indicates that the confidential informant knew only that he had heard that Radicioni was engaged in selling marijuana, that Radicioni lived near the Coca Cola bottling plant, and that Radicioni would sell only through a middle man. The informant did not report any direct contact with the defendant nor could he supply a specific address for or description of the defendant. The basis of knowledge detailed in the affidavit alone was insufficient to allow the issuing magistrate to credit the informant’s tip.

“[T]he deficiency in the informant’s basis of knowledge ‘may be overcome by a strong showing of the informant’s reliability.’ State v. Rodriguez, [223 Conn. 127, 141, 613 A.2d 211 (1992)].” (Emphasis added.) State v. DeFusco 224 Conn. 627, 643, 620 A.2d 746 (1993). The defendants have not contested the reliability or veracity of the confidential informant. The state,, however, contends that the informant’s reliability was adequate to allow the issuing magistrate to rely on the informant’s story.

The affidavit states that the informant "has provided the affiants with reliable information in the past that had led to the arrests of those involved and the seizures of narcotics and other narcotic related contraband.” A history of aid to the police may help to establish a confidential informant’s reliability. State v. Morrill, 205 Conn. 560, 567, 534 A.2d 1165 (1987); see also State v. Rodriguez, supra, 223 Conn. 136. Nevertheless, “[t]he affiants’ assertion that the informant was reliable does not itself give the issuing judge a basis upon which to infer reliability.” State v. DeFusco, supra, 643. Indeed, providing reliable information often in the past may serve to detract from an informant’s trustworthiness by evidencing a close association with criminal activity. Id. Confidential informants are often "criminals, drug addicts, or even pathological liars” who may have a variety of self-serving motives for supplying the police with information. State v. Duntz, supra, 218.

The issuing magistrate is still permitted to determine that the informant was reliable in view of the “totality of the circumstances.” Although our Supreme Court in State v. DeFusco, supra, noted that the issuing judge might reasonably infer reliability from an informant’s track record, that court relied on the presence of glassine bag and short straws in the defendant’s trash in finding that, “[tjaken together, under the totality of the circumstances, this information amounted to a sufficiently strong showing of the informant’s reliability and, therefore compensated for a lack of information regarding his basis of knowledge.” Id., 644.

While statements of an informant that are corroborated by the police are entitled to greater weight; see State v. Rodriguez, supra, 223 Conn. 136; the corroborating evidence in the present case was insufficient to create such a strong showing of reliability. The police officer affiants confirmed that defendant Radicioni lived at 6 Faye Street (which, as the informant indicated, was near the Coca Cola bottling plant), that he had a phone number listed in his name at that address, and that he had a pickup truck registered to the same address.

The police further corroborated some of the informant’s story by conducting two buys through a third party who was observed meeting with a white male who left the defendant’s house and drove the defendant’s pickup truck. The state contends that the issuing magistrate reasonably could have inferred that the defendant was a sophisticated dealer of marijuana who avoided detection by dealing through a specific middle man. The white male who left from 6 Faye Street was never identified as the defendant. The affidavit merely established that someone, perhaps the defendant, met with the third party. There is nothing in the affidavit to indicate that the defendant was observed in possession of, in a conversation related to, or in an exchange involving marijuana.

Further, it was not possible for the police to search the third party or his car either before or after the buy. Nothing establishes that the marijuana ultimately seized by the police from the informant came from the white male who left from 6 Faye Street rather than from the third party. The inferences the state asks us to draw from the affidavit, namely, that the white male from 6 Faye Street was the defendant, that he and the third party made an exchange involving marijuana, and that the marijuana was ultimately sold to the informant, are too tenuous to be “reasonably drawn.” Such tenuous inferences do not establish probable cause to believe that this defendant was engaged in criminal drug activity.

Even if there had been sufficient extrinsic evidence to establish reliability, demonstrating the reliability of the informant in reporting criminal activity is not by itself enough to establish probable cause for a search warrant. “Two conditions necessary for a search warrant to issue are (1) that there is probable cause to believe a crime has been committed and that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction, and (2) that there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” State v. Rodriguez, supra, 27 Conn. App. 313; see also State v. Duntz, supra, 215. Therefore, in the case at hand, the warrant affidavit must establish probable cause not only that the defendant was engaged in criminal activity, but that there was probable cause to believe that drug paraphernalia would be located at 6 Faye Street.

The only information contained in the affidavit connecting fruits of the criminal activity with 6 Faye Street is the affiants’ assertion that such items are usually concealed by traffickers of drugs in their residences. “ ‘Actual observations of illegal activity or contraband in the premises to be searched . . . are not required to establish probable cause.’ (Internal quotation marks omitted.) State v. Diaz, 27 Conn. App. 427, 432, 607 A.2d 439 (1992) [aff’d, 226 Conn. 514, 628 A.2d 567 (1993)].” State v. Toth, supra, 855. “The nexus between the items sought and the place to be searched may be inferred from the type of crime, the nature of the evidence, the extent of an opportunity for concealment and normal inferences as to where a criminal would likely hide the item. . . . The quantum of certainty required is a ‘fair probability’ that the search will yield the article specified.” (Citations omitted.) State v. Rodriguez, supra, 27 Conn. App. 313-14; State v. Vincent, supra, 257. The affiants’ assertion is dependent on the existence of probable cause to believe that the defendant was engaged in criminal activity. That did not exist in this case. Absent such, some independent nexus is needed between the criminal activity and the place to be searched.

The state cites two cases in support of the proposition that the assertion of the affiants that drug paraphernalia is frequently hidden in a drug trafficker’s residence is enough to connect the place searched with criminal activity. State v. Castano, 25 Conn. App. 99, 102, 592 A.2d 977 (1991); State v. Vallas, 16 Conn. App. 245, 62, 547 A.2d 903 (1988), aff’d, 212 Conn. 485, 563 A.2d 660 (1989). In both of those cases, however, there was additional corroborating evidence on which the judge could establish such a connection. In State v. Castano, supra, the informant stated that he had personal knowledge of large amounts of cash often being stored at the defendant’s residence. In State v. Vallas, supra, wire taps had previously established a large scale drug conspiracy and the fact that the defendants were actively involved in selling narcotics. Similarly, In State v. Diaz, supra, the court found that there was probable cause to search the defendant’s house where the informant attested in the warrant affidavit that narcotics transactions were negotiated in the defendant’s residence and that the defendant had been a conduit for the money in one of the transactions and, in two other transactions, the defendant’s conversations and contact with the informant had led to cocaine’s being brought to the defendant’s house to be purchased there.

In the present case, the information in the affidavit does not amount to anything more than “ ‘a conclu-sory statement to the effect that the affiants had probable cause,’ ” to believe that drug paraphernalia would be located at 6 Faye Street. State v. Valias, supra, 263, citing State v. DeChamplain, 179 Conn. 522, 531, 427 A.2d 1338 (1980) (no probable cause to search was established where the only nexus to the place searched was a single telephone call). The information does not constitute a substantial factual basis for a finding of probable cause to search.

Mere suspicion or even a strong reason to suspect is insufficient to establish probable cause. “Moreover, physical entry of the home is the chief evil against which the . . . Fourth Amendment is directed, and unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. ...” (Citations omitted; internal quotation marks omitted.) State v. Duntz, supra, 220. In this case, the affidavit failed to establish that the person who met with the third party was ever in possession of marijuana or that the person concealed marijuana in his place of residence.

We conclude that the trial court properly determined that there was not a substantial factual basis from which the issuing magistrate could have found that the warrant affidavit established probable cause that this defendant was engaged in criminal activity and that the fruits of that criminal activity would be located at 6 Faye Street.

The judgment is affirmed.

In this opinion Landau, J., concurred.

Daly, J., dissenting.

I respectfully dissent. The information before the issuing magistrate was sufficient to satisfy the totality of the circumstances test as enunciated in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). Hence, I would reverse the trial court’s order granting the motions to suppress.

       Because both defendants are represented by the same counsel, the issues on appeal are identical, and the motions to suppress were heard jointly, this court granted the state’s motion to consolidate the appeals on November 3, 1992.

       The parties agree that the first count of each information contains a typographical error so as to charge the defendants with a violation of General Statutes § 21-279 (b) rather than General Statutes § 2 la-277 (b).

       General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       General Statutes § 21a-267 (a) provides: “No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal, or to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance as defined in subdivision (9) of section 21a-240. Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor.”

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, or without probable cause supported by oath or affirmation.”

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       We note that although the informant’s past information had led to “arrests” in other narcotics matters, the affidavit does not mention any “convictions” resulting from those matters.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Kevin Gemmell v. City of New Haven et al.
    (11594)
    Daly, Foti and Freedman, Js.
    Argued May 11
    decision released August 3, 1993

      William B. Barnes, for the appellant (plaintiff).

      Linsley J. Barboto, assistant corporation counsel, for the appellees (defendants).
   Daly, J.

The plaintiff unsuccessfully appealed to the trial court challenging the New Haven board of fire commissioners’ decision to terminate him from his position in the New Haven fire department. The plaintiff now appeals from the trial court’s order dismissing his appeal for lack of subject matter jurisdiction after finding that he failed to exhaust his administrative remedies. We affirm the judgment of the trial court.

The trial court found the following facts, which are not disputed. On January 11, 1986, and February 8, 1986, the plaintiff took the civil service examination for the position of firefighter III. He passed the examination and was placed on the eligible list. On February 3, 1987, the plaintiff was selected from the civil service list and was assigned to attend a ten week training session at the fire fighters’ training academy. On March 27, 1987, the plaintiff injured his ankle during a training class and was therefore unable to complete the session. In June, 1987, the plaintiff underwent surgery to his ankle and his physician concluded that he would be able to attend the fire fighters’ training course commencing in March, 1988. The board permitted the plaintiff to remain on light duty at the academy until new assignments would be made to a training session.

On February 2,1988, the board decided to allow the plaintiff to participate in the March training course and extended his probationary period to one year from the commencement of the training class. The plaintiff attended the March training course until he was injured again on April 4, 1988, and his physician determined that he was physically unfit to continue training. After undergoing surgery that summer, the plaintiff was eventually determined to be fit to return to light duty beginning November 7, 1988.

At the January 23, 1989 meeting of the board, the chief of the fire department stated that due to shrinking financial resources, light duty would no longer be available. The chief pointed out that the plaintiff was not a sworn member of the fire department but an employee at will. It was under these circumstances that the board terminated the plaintiffs assignment to the training academy and notified the plaintiff of its decision.

The plaintiff appealed from the board’s decision pursuant to § 117 of the New Haven charter, which provides: “Any officer or employee aggrieved by the action of said board may make application to any judge of a court of competent jurisdiction within and for New Haven county in the nature of an appeal from such order of the board of commissioners.” In his complaint, the plaintiff alleged that he was a New Haven fire fighter and that the board improperly “terminated [him] as an employee.”

The plaintiff asserted at trial that he was a permanent employee of the New Haven fire department, that he possessed a property right to his job, and that the board illegally terminated him. Conversely, the defendants maintained that the plaintiff was not a permanent employee, and, were he a permanent employee, his failure to exhaust his administrative remedies under the collective bargaining agreement between New Haven and the fire fighters’ union deprived the trial court of subject matter jurisdiction. The trial court found that the plaintiff was a member of the fire fighters’ union at the time of his termination, had paid union dues, was on the union roster, held a union card, and had recourse to the grievance procedures for probationary employees as set forth in the contract between the city and the union. The trial court further explained that because the plaintiff did not first exhaust his administrative remedies under the grievance procedures in the contract, the appeal had to be dismissed for lack of subject matter jurisdiction. This appeal ensued.

Whether the plaintiff was a probationary or permanent employee working as a fire fighter, who was wrongfully terminated, the trial court lacked subject matter jurisdiction to hear his appeal. A party may not institute an action in the Superior Court without first exhausting available administrative remedies. Hyatt v. Milford, 26 Conn. App. 194, 197, 600 A.2d 5 (1991), appeal dismissed, 224 Conn. 441, 619 A.2d 450 (1993); Lopiano v. Stamford, 22 Conn. App. 591, 594-95, 577 A.2d 1135 (1990). If the applicable administrative remedies are not exhausted, the trial court does not have subject matter jurisdiction over the matter. Trigila v. Hartford, 217 Conn. 490, 493-94, 586 A.2d 605 (1991); Hyatt v. Milford, supra. The doctrine of exhaustion discourages piecemeal appeals from the decisions of administrative agencies thus “fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions.” Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987). Thus, the plaintiff was obliged to invoke the grievance procedures set forth in the collective bargaining agreement. His failure to do so deprived the trial court of subject matter jurisdiction over the appeal.

“Unions and their employers have broad contractual authority to provide administrative remedies for disputes arising out of the employment relationship. That authority encompasses issues of law as well as of fact. . . . Before pursuing even alleged violations of state statutory procedures and of constitutional rights to due process and equal protection, parties to a collective bargaining agreement must attempt to exhaust the exclusive grievance and arbitration procedures established in their agreement before resorting to court.” (Citations omitted; internal quotation marks omitted.) Trigila v. Hartford, supra, 494-95; Concerned Citizens of Sterling v. Sterling, supra, 556. The grievance procedure was not pursued.

Article VI, § 6.1, of the collective bargaining agreement provides: “In the event that any dispute arises between the City and the Union or any employee concerning the interpretation or application of any of the provisions of this agreement or concerning wages, hours, and conditions of employment which are provided for in this Agreement or in any statute, charter provision, ordinance regulation or policy, or concerning any matter or condition arising out of the employer-employee relationship, such difference or dispute shall be deemed a grievance and shall be settled in accordance with the process set forth herein.”

Assuming that the plaintiff achieved the status of a probationary employee or even a permanent employee, we conclude that his dispute would fall within § 24.1 of the collective bargaining agreement which states: “During the probationary period of any employee, the Board of Fire Commissioners may terminate the employment of such employee if, during this period upon observation and consideration of his performance of duty and adherence to the Rules and Regulations of the Department of Fire Service, they shall deem him unfit for such appointment. Nothing contained herein shall be used to deny any employee of any rights or any benefits to which he may be entitled under this Agreement or under the pension provisions of the City Charter concerning employees of the Fire Department, except that probationary employees shall have recourse to the grievance procedures under Article VI up through and including Step III of the Grievance Procedure.” (Emphasis added.)

The first step of the process provides for a letter of grievance to the chief of the fire department to be followed by a meeting with the grievant and the union representative and the chief or a designated representative. If the grievant is not satisfied, a written grievance may be filed with the board, which will meet with the grievant and the union to attempt to resolve the dispute. The third step provides that the grievant and union representative may meet with the director of labor relations, after presenting a written grievance and meeting with the director or a designated representative. None of these procedures was undertaken. The fourth step, arbitration, applies only to permanent employees.

The plaintiff argues that the grievance procedures were not available to him because his appeal to the trial court was grounded in a dispute relating to his initial appointment under General Statutes § 7-474 (g). Section 7-474 (g) excludes initial appointments from collective bargaining. According to the plaintiff, because this matter involves his initial appointment, the collective bargaining agreement cannot apply to this case. In essence, the plaintiff argues that because he was terminated from the position to which he was initially appointed, the grievance procedures set forth in the collective bargaining agreement were not available to him pursuant to § 7-474 (g). Consequently, the plaintiff asserts that because the grievance procedures were not available to him, he did not fail to exhaust all applicable administrative remedies, and the trial court possessed subject matter jurisdiction. We disagree.

Section 7-474 (g) applies to the process of making initial appointments and promotions. It does not preclude collective bargaining agreements from addressing proper grievance procedures for those terminated from their appointments. The cases relied on by the plaintiff do not involve the propriety of a termination, but initial appointments or promotions. See Riley v. Bridgeport, 22 Conn. App. 402, 577 A.2d 1099 (1990) (mandamus action by municipal clerk to force city to make her a permanent employee without having to take a civil service examination); D’Agnostino v. New Britain, 7 Conn. App. 105, 507 A.2d 1042, cert. denied, 200 Conn. 806, 512 A.2d 229 (1986) (mandamus action by three fire fighters to force city to promote them).

The plaintiff instituted an appeal to the trial court alleging that he was improperly terminated as a fire fighter. Thus, the present dispute involves the plaintiff’s termination, not his initial appointment. The plaintiff does not assert and did not allege before the trial court that the process by which he was appointed was improper in any manner. Rather, he alleged that his termination was illegal in that “the process by which it was accomplished was arbitrary, capricious, wrongful, contrary to statute, regulations and contract and deprived plaintiff of his right to due process of law and the equal protection of the laws.”

Therefore, steps I through III of the grievance process set forth in the collective bargaining agreement were available to the plaintiff. By not invoking these remedies before bringing an action before the trial court, the plaintiff failed to exhaust his available administrative remedies. The plaintiff’s failure deprived the trial court of subject matter jurisdiction.

We note that even if the trial court had possessed subject matter jurisdiction, the plaintiff would not have prevailed. In his complaint, the plaintiff alleged that he was a New Haven fire fighter. It was his burden of proof to establish this allegation, and he failed to do this. Szachon v. Windsor, 29 Conn. App. 791, 797, 618 A.2d 74 (1992); Janow v. Ansonia, 11 Conn. App. 1, 8, 525 A.2d 966 (1987). The trial court did not find that he was a fire fighter, but merely a probationary employee. According to the collective bargaining agreement executed by the fire fighters’ union and the city of New Haven, the term “employee” includes “any member of the Department of Fire Service with certain exceptions.” Article I, § 1.1. This definition does not indicate that the word “employee” refers specifically to one who works for the department of fire service as a fire fighter. The New Haven civil service commission rules and regulations define “permanent employee” as “an employee who has successfully completed his probationary period and has been permanently appointed to a position in the classified service by the Appointing Authority and approved by the Board of Finance.” Also, a probationary employee “is an employee who has not completed his trial service period.” Civil Service Rules and Regulations of the City of New Haven § 18.

Article XXIV, § 24.1, of the collective bargaining agreement provides: “To enable the Board of Fire Commissioners to exercise sound discretion in the filling of positions within the Fire Department, no appointment to the position of Firefighter in the Fire Department shall be deemed final and permanent until after the expiration of a period of twelve (12) months probationary service. During the probationary period of any employee, the Board of Fire Commissioners may terminate the employment of such employee if, during this period upon observation and consideration of his performance of duty, they shall deem him unfit for such appointment.”

There was no evidence demonstrating that the plaintiff had ever been sworn in as a fire fighter or that he had successfully completed his period of probation. Thus, the plaintiff failed to sustain his burden of proving that he was a fire fighter, and for this reason his appeal to the trial court must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this matter are the city of New Haven and the New Haven board of fire commissioners.

       Practice Book § 143 provides in pertinent part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter.... This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record. . . .”

       The civil service rules and regulations for the city of New Haven defines “eligible list” as “[a]n employment list established by open competitive examination.”

       Two contracts between the International Association of Firefighters, AFL-CIO, and New Haven are involved in this case. The first governs the period from July 1,1984, to June 30, 1987, while the second governs the period from July 1, 1987, to June 30, 1991. It is the latter that pertains to this dispute.

       We refer in this ease to the agreement effective July 1,1987, because the termination occurred in 1988.

       Under the agreement effective July 1, 1984, through June 30, 1987, grievance procedures were not available to probationary employees: “Nothing contained herein shall be used to deny any employee of any rights or any benefits to which he may be entitled under this Agreement or under the pension provisions of the City Charter covering employees of the Fire Department, except that probationary employees shall not have recourse under Article 6, Grievance Procedure.”

       General Statutes § 7-474 (g) provides: “Nothing herein shall diminish the authority and power of any municipal civil service commission, personnel board, personnel agency or its agents established by statute, charter or special act to conduct and grade merit examinations and to rate candidates in the order of their relative excellence from which appointments or promotions may be made to positions in the competitive division of the classified service of the municipal employer served by such civil service commission or personnel board. The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the initial appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining, provided once the procedures for the promotional process have been established by the municipality, any changes to the process proposed by the municipality concerning the following issues shall be subject to collective bargaining: (1) The necessary qualifications for taking a promotional examination; (2) the relative weight to be attached to each method of examination; and (3) the use and determination of monitors for written, oral and performance examinations. In no event shall the content of any promotional examination be subject to collective bargaining.”

       As originally enacted; Public Acts 1965, No. 159, § 8; General Statutes (Rev. to 1966) § 7-474 (g) provided in pertinent part: “The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining.”
      Before 1982, § 7-474 (g) did not exclude only “initial appointments” from collective bargaining. It excluded “appointments.” In 1982, subsection (g) was amended to ensure that promotional examinations were fairly conducted. Public Acts 1982, No. 82-212, § 1; 25 H.R. Proc., Pt. 10,1982 Sess., pp. 3082-83, 3334, 3342; 25 S. Proc., Pt. 9, 1982 Sess., pp. 2758-59, 2763-64. The word “initial” was inserted before the word “appointment” to remove any doubt that the amendment applied only to promotions and not to persons employed by the municipality for the first time. 25 H.R. Proc., Pt. 10., 1982 Sess., p. 3338.

       Indeed, Article I, § 1.1, states: “The City hereby recognizes the Union as the sole and exclusive bargaining agent for all the uniformed and investigatory positions within the Department of Fire Service, including non-uniformed personnel presently assigned to the building maintenance and apparatus maintenance . . . (Emphasis added.)


text:
    City of Bridgeport v. Connecticut Police Department Employees Local 1159, AFSCME, Council 15
    (11136)
    Daly, O’Connell and Landau, Js.
    Argued April 28
    decision released August 3, 1993

      Joseph M. Lander, for the appellant-appellee (defendant).

      Robert G. Zanesky, associate city attorney, for the appellee-appellant (plaintiff).
   Daly, J.

The defendant union appeals and the plaintiff city cross appeals from the trial court’s judgment confirming an arbitration award in favor of the defendant in all respects except the arbitration panel’s order to promote the grievant to the rank of sergeant. We reverse the judgment of the trial court in part.

The grievant in this case, Detective Nikola E. Nikola, has been a police officer in the city of Bridgeport since October 1,1969. At the time of this grievance, he was a detective in the special services division of the Bridgeport police department. On June 11,1983, the city civil service commission conducted a competitive promotional examination for the position of police sergeant. An eligibility list, based on the results of that examination, was compiled by the commission. The grievant passed the test and his name was placed on the promotional eligibility list. On October 21,1986, his name was removed from the list by the commission because it claimed he was not a bona fide resident of Bridgeport, but of Huntington, and was thus in violation of the collective bargaining agreement. The grievant’s appeal to the commission was unsuccessful. Consequently, on November 3 and 18,1986, he filed grievances through the union protesting the city’s actions in removing him from the sergeant’s promotional eligibility list and demanded that his name be restored to the list and that he be promoted to the rank of sergeant.

Arbitration ensued before the state board of mediation and arbitration. Since the parties could not agree on the submission, the arbitration panel framed the issue under § 31-91-35 of the rules of procedure. The issues were: “Did the city have just cause to remove Detective Nikola E. Nikola’s name from the Sergeant’s Eligibility List? If not, what shall the remedy be?”

The hearings commenced on November 22,1988, and the final hearing was held on April 11,1989. On January 30,1990, the arbitration panel issued its decision, holding that the grievant was a bona fide resident of Bridgeport. It was the panel’s position that by not terminating the grievant as a police officer, the city had, in effect, conceded that the grievant was a bona fide resident. Accordingly, the panel found that the commission did not have just cause to remove the grievant’s name from the promotional eligibility list. The commission was ordered to promote him immediately to the rank of sergeant. The city was also “directed to pay [the] Grievant retroactively from the date his promotion should have occurred to the date of promotion after receipt of [the arbitrators’] Award . . . [and] to restore all rights and benefits due [the] Grievant as a result of improperly denying him promotion.”

On August 7, 1990, the city moved in the Superior Court to vacate the arbitration award, claiming that the panel had exceeded its power by making an award in violation of General Statutes § 7-474 (g), which gave the civil service commission province over promotions. The city further claimed that the panel applied the law concerning bona fide residency improperly and that it exceeded its power in ordering the grievant promoted from a promotional list that had expired on or about December 26, 1986.

On February 5,1992, the trial court issued a memorandum of decision confirming the award in all respects except one. The trial court found that it was beyond the power of the panel to order the promotion from an eligibility list that had expired at the time the arbitration award was issued. This appeal followed.

The defendant union claims that the trial court improperly vacated that portion of the panel’s remedy that ordered the promotion of the grievant to sergeant. Conversely, the plaintiff city claims that the arbitrators’ definition of bona fide resident was improper and that the submission was not unrestricted. We agree with the defendant.

Arbitration awards are generally upheld and we give deference to an arbitrator’s decision since it is favored as a means of settling disputes. Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985); Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981); Board of Education v. Hartford Federation of School Secretaries, 26 Conn. App. 351, 352, 600 A.2d 1053 (1992); Board of Education v. Local 818, 5 Conn. App. 636, 639, 502 A.2d 426 (1985). The judicial review of an arbitration award is limited in scope by General Statutes § 52-418 and the terms of the parties’ contract. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 22, 453 A.2d 1158 (1983); Greater Bridgeport Transit District v. Amalgamated Transit Union, Local 1336, 28 Conn. App. 337, 341, 610 A.2d 1324 (1992); Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 212, 470 A.2d 1219 (1984) . Specifically, our review is limited to a comparison of the arbitrators’ award with the submissions, and to a determination of whether the award conforms to the submissions. Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338-39, 555 A.2d 406 (1989); Greater Bridgeport Transit District v. Amalgamated Transit Union, Local 1336, supra. The party seeking to vacate the award has the burden of demonstrating its nonconformity to the submission. Watertown Police Union Local 541 v. Watertown, supra, 339; Greater Bridgeport Transit District v. Amalgamated Transit Union, Local 1336, supra. Every reasonable presumption will be made in order to sustain an award. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 585, 440 A.2d 774 (1981); Trumbull v. Trumbull Police Local 1745, supra.

If the submission does not contain limiting or conditional language, then the submission is unrestricted. Bic Pen Corporation v. Local No. 134, supra, 584-85. If the submission is unrestricted, the award is final and binding, and cannot be reviewed for factual or legal error. Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). In addition, if the submission is unrestricted, an arbitrator is not required to decide the issues presented according to law. Bridgeport v. Bridgeport Police Local 1159, supra, 106-107; Trumbull v. Trumbull Police Local 1745, supra, 213. Thus, “[wjhere the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ...” (Citations omitted; internal quotation marks omitted.) Caldor, Inc. v. Thornton, supra, 340-41, quoting BicPen Corporations. Local No. 134, supra, 584; Trumbull s. Trumbull Police Local 1745, supra.

In the present case, the parties contractually agreed to submit their disputes concerning the interpretation and application of the collective bargaining agreement to arbitration. The parties voluntarily submitted the issue to the arbitration panel. The submission in this case did not contain limiting or conditional language restricting the powers of the arbitrators. In essence, the submission invited the arbitration panel to determine whether the city had violated the terms of the collective bargaining agreement by removing a grievant’s name from the promotional eligibility list, and, if necessary, to fashion an appropriate remedy.

The city maintains that the panel exceeded its authority in ordering the grievant’s promotion from a promotional eligibility list that expired on about December 26, 1986. The trial court, relying on State ex rel. Chernesky v. Civil Service Commission, 141 Conn. 465, 470-71, 106 A.2d 713 (1954), Winthal s. Fabirizi, 26 Conn. App. 45, 47, 596 A.2d 939 (1991), and Honis v. Cohen, 18 Conn. App. 80, 84, 556 A.2d 1028 (1989), concluded that the arbitration panel was powerless to order an appointment from an eligibility list that had expired. Chernesky, Winthal, and Honis can be distinguished, however, from the present case because the promotional lists involved in those cases had expired before any action was initiated by the aggrieved party. In contrast, the grievant here commenced the grievance procedure on November 3, 1986, prior to the expiration of the list on December 26,1986. The grievant’s actions have thus preserved the list for purposes of the remedy awarded.

By agreeing to the unrestricted submission, the city and the union authorized the arbitration panel to exercise its own judgment in resolving the dispute and granting a remedy. “If the question has been entrusted to the arbitration tribunal, then the court should not rule upon the merits of the issue and it should not usurp the function conferred upon that tribunal by the parties to the agreement.” Hartford v. Local 308, 171 Conn. 420, 424-25, 370 A.2d 996 (1976); Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 (1967); Trumbull v. Trumbull Police Local 1715, supra. A party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do. See New Britain v. Connecticut State Board of Mediation & Arbitration, 178 Conn. 557, 563, 424 A.2d 263 (1979); Trumbull v. Trumbull Police Local 1745, supra. “ ‘Having bargained for the decision of the arbitrator on the question . . . the parties are bound by it, even if it be regarded as unwise or wrong on the merits . . . .’Local 453, International Union of Electrical, Radio and Machine Workers v. Otis Elevator Co., 314 F.2d 25, 28 (2d Cir.), cert. denied, 373 U.S. 949, 83 S. Ct. 1680,10 L. Ed. 2d 705 (1963).” Bridgeport v. Bridgeport Police Local 1159, supra, 107-108. The arbitrators found that the city had violated the conditions of employment provision of the collective bargaining agreement and fashioned a remedy of restoration. It is clear that the award conformed to the submission. The arbitrators, therefore, did not exceed or improperly execute their broad powers to fashion an appropriate remedy.

The judgment is reversed in part on the appeal and the case is remanded to the trial court with direction to render judgment confirming the award in toto.

In this opinion the other judges concurred.

       The Connecticut Police Department Employees Local 1159, AFSCME, Council 15, is representing the interests of the grievant, Nikola E. Nikola, in this action.

       Article 17, § 2 (a), of the collective bargaining agreement entered into by the city and the union on November 9,1974, provides: “All current and future members of the Bridgeport Police Department, as a condition of their continued employment with the Bridgeport Police Department, must maintain a bona fide residence within the City of Bridgeport during the term of this Agreement.”

       Section 31-91-35 of the rules of procedure of the state board of mediation and arbitration provides in pertinent part that “if the parties are unable to agree upon the issue or issues to be decided, the panel shall frame the issues.”

       Article 7 of the collective bargaining agreement contains a “grievance procedure” to be utilized where “any employee, or the Union, feel aggrieved concerning their wages, hours or conditions of employment, which wages, hours or conditions of employment are controlled by this agreement, or which are provided for in any statute, Charter provision, or ordinance, rule or regulation which is not in conflict with this agreement, or concerning any matter or condition arising out of the employee-employer relationship . . . .” (Emphasis added.) The agreement provides that grievances which are not resolved by the superintendent of police or the board of police commissioners may be submitted in writing to the state board of mediation and arbitration.


author: Heiman, J.

text:
    Arthur J. Davis v. Warden, State Prison
    (11789)
    Foti, Lavery and Heiman, Js.
    Argued June 8
    decision released August 3, 1993

      William M. Bloss, for the appellant (petitioner).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (respondent).
   Heiman, J.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner asserts that the habeas court improperly found that he had received effective assistance of counsel (1) at the guilt-innocence phase of his trial in light of trial counsel’s insufficient investigation of possible defenses and witnesses and (2) at his resentencing proceedings. We affirm the judgment of the habeas court.

The following brief history of the case is necessary to a resolution of this appeal. On November 16,1966, after a trial to a three judge panel, the court found the petitioner guilty as charged on each of six counts of the indictment that alleged murder in the first degree, and, on November 17, imposed the death sentence pursuant to General Statutes (Cum. Sup. 1965) § 53-10. Our Supreme Court affirmed both the conviction and the validity of the death sentence on direct appeal. On petition for writ of certiorari, the United States Supreme Court vacated the sentence in light of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and ordered further proceedings. Davis v. Connecticut, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750 (1972). On remand from the United States Supreme Court, our Supreme Court vacated the death sentence and ordered that the petitioner be resentenced accordingly. State v. Davis, 163 Conn. 642, 316 A.2d 512 (1972). On November 16, 1972, a different three judge panel of the Superior Court sentenced the petitioner to serve six consecutive life sentences.

On April 13,1989, the petitioner brought an amended petition for a writ of habeas corpus. The habeas court heard testimony concerning the alleged failure of counsel to complete a reasonable pretrial investigation. The court made extensive factual findings concerning this claim. It rejected the petitioner’s claim that he was not a good source of information for the presentation and preparation of his defense for reasons beyond his control. The court noted that the “record clearly demonstrates that the petitioner was examined prior to his underlying criminal trial by [three doctors] and they found that the petitioner was able to understand the nature of the proceedings against him and to cooperate in the preparation of a defense.” Although the petitioner did not cooperate with defense counsel in the preparation of his defense, the court found he was capable of assisting counsel had he chosen to do so.

The habeas court made several additional findings. It found that the petitioner was represented at all times by the New Haven public defender, that the public defender had the use of a full time investigator and an assistant public defender both of whom assisted the public defender at the petitioner’s trial, and that, immediately after the petitioner’s arrest, the public defender commenced his representation of the petitioner. The court found that the public defender sent the investigator to New Jersey to assist the petitioner prior to the time the New Haven police arrived there to question him. The investigator obtained information regarding the petitioner’s intoxication at the time of his arrest. The investigator also advised the petitioner not to make any incriminating statements while incarcerated. Upon his return to Connecticut, the petitioner met with the public defender. The public defender saw all of the state’s forensic and ballistic evidence. He also viewed photographs of the crime scene and reviewed statements given by the state’s witnesses. The public defender or the investigator interviewed witnesses suggested by the petitioner and his family. Their investigation included interviews with the petitioner’s mother, brother, and the last person with the petitioner prior to the shooting. On the basis of these findings, the court concluded that defense counsel’s investigation met the performance standards mandated by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). It found that the petitioner had failed to make the required showing of either deficient performance or sufficient prejudice.

The habeas court also heard testimony that counsel failed to develop the record relating to alcohol use and its impact on the petitioner’s sanity and ability to form the specific intent to commit the murders. The court found that the petitioner failed to prove “by a fair preponderance of the evidence his claim of [the existence of] long term abuse of alcohol or his claim of alcohol related blackouts.”

The habeas court also heard testimony concerning the alleged failure of counsel to provide the petitioner with effective assistance of counsel at his resentenc-ing in 1972. The habeas court made the following findings: “After the United States Supreme Court vacated the death penalty, the procedure to be followed for those persons who have the death penalty imposed was rare and difficult for everyone to agree as to what would happen next. The Connecticut Supreme Court remanded the case to the trial court to be set down for resentencing. Resentencing was done before a different three judge panel. The petitioner has failed to prove whether the new three judge panel had been provided a transcript of the prior trial resulting in the petitioner’s conviction prior to resentencing. No witnesses were presented by defense counsel at the resentencing hearing. No new evidence was presented to the sentencing panel as there was no new evidence available.” On the basis of these findings, the habeas court found that the petitioner’s counsel’s performance was not deficient. The court stated that “the strategic choice of defense counsel to rely on oral argument was well within the range of professionally reasonable judgment.” The court also concluded that, even if counsel’s performance was deficient, the petitioner was not prejudiced. The court noted that “given the overwhelming aggravating factors, there is no reasonable possibility that the claimed omitted evidence would have changed the sentence.”

The habeas court dismissed the petitioner’s petition for writ of habeas corpus. This appeal ensued.

1

The petitioner asserts that the habeas court improperly found that at trial he had received the effective assistance of counsel guaranteed to him by both the state and federal constitutions. He posits that counsel failed to complete a reasonable pretrial investigation and to develop the record relating to alcohol use and its impact on the petitioner’s sanity and his ability to form the specific intent to commit the crime.

In a habeas appeal, we cannot and will not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993); Copas v. Warden, 30 Conn. App. 677, 682, 621 A.2d 1378, cert. denied, 226 Conn. 901, 625 A.2d 1374 (1993). We determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Siano v. Warden, supra; Copas v. Warden, supra. We do not examine the record to see if the trier of fact could have reached a contrary conclusion. Siano v. Warden, supra; Copas v. Warden, supra.

“Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. . . .” (Citation omitted; internal quotation marks omitted.) Copas v. Warden, supra. Whether the historical facts as found by the habeas court constituted a violation-of the petitioner’s constitutional right to effective assistance of counsel is subject to plenary review by this court, unfettered by the clearly erroneous standard. Siano v. Warden, supra, 96; Copas v. Warden, supra, 683.

The right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, supra; Commissioner of Correction v. Rodriquez, 222 Conn. 469, 478, 610 A.2d 631 (1992); Siano v. Warden, supra, 97; Copas v. Warden, supra, 681. This right is firmly grounded in the mandates of the sixth amendment to the United States constitution, the fourteenth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution. Siano v. Warden, supra, 96. “The right to counsel, however, is the right to effective assistance and not the right to perfect representation.” Id., 97; Commissioner of Correction v. Rodriquez, supra.

Our Supreme Court has adopted the two-pronged analysis of Strickland v. Washington, supra, to determine if counsel’s assistance was ineffective. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990). Under this analysis, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice. Bunkley v. Commissioner of Correction, supra; Hull v. Warden, 32 Conn. App. 170, 174, 628 A.2d 32 (1993); Siano v. Warden, supra.

“To satisfy the first prong, that his counsel’s performance was deficient, the petitioner must establish that his counsel made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the [petitioner] by the Sixth Amendment. . . . The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . We will indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citations omitted; internal quotation marks omitted.) Siano v. Warden, supra; Hull v. Warden, supra; Copas v. Warden, supra, 683-84.

“To satisfy the second prong, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . . . The petitioner must establish that, as a result of his trial counsel’s deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . . The second prong is thus satisfied if the petitioner can demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Siano v. Warden, supra, 98; Bunkley v. Commissioner of Correction, supra, 454-55.

The petitioner’s expert witness testified that a reasonably competent attorney in 1966 would have investigated the petitioner’s excessive use of alcohol. He testified that certain obvious witnesses were not interviewed. He also testified that an adequate investigation would have included an investigation in the streets and community. In the expert’s opinion, trial counsel’s performance was deficient. He also opined that had trial counsel conducted an adequate investigation, a reasonable possibility existed that the result of the trial would have been different.

The respondent offered his own expert testimony that the only defense available to the petitioner was the one argued by trial counsel. The respondent’s expert testified that he believed that the only theory available to the defense was that the 1966 murder was an aberration committed by an ordinary citizen. He stated that defense counsel could not be faulted for not investigating the theory of alcohol blackout. The respondent’s expert testified that trial counsel’s representation did hot fall below the standard of practice. The expert also testified that even if trial counsel did not adequately investigate the possibility of alcohol blackout, there was no reasonable possibility that the result of trial would have been different.

The habeas court heard testimony that trial counsel and the investigator spoke with the petitioner, his mother, his brother, and the last person known to have been with the petitioner prior to the murders.

The habeas court chose to credit the testimony of the respondent’s expert concerning the standard of practice in the profession for conducting pretrial investigations. Further, the trial court also credited the testimony of the witnesses who testified as to the efforts made by defense counsel and his staff in conducting the pretrial investigation.

Our review of the whole record leads us to conclude that the petitioner has failed to demonstrate that the habeas court’s factual findings are clearly erroneous. “The habeas court, as the fact finder, determines the credibility of the witnesses and the effect to be given to the testimony before it.” Siano v. Warden, supra, 104. A review of the entire record reveals that the habeas court’s factual findings are not clearly erroneous.

We also conclude that the habeas court, on the basis of its findings, could have reasonably found that the petitioner was afforded his constitutionally mandated right to the effective assistance of counsel. The record discloses that counsel, upon being advised of the arrest of the petitioner in New Jersey, promptly sent the investigator to consult with the petitioner. The record further discloses that a proper investigation was conducted into the murders and the circumstances surrounding them, and a theory of defense was formulated based on these facts. Defense counsel made certain strategic or tactical decisions in the prosecution of the defense that were reasonable and logical under the circumstances of this case. The factual history was replete with evidence of threats made by the petitioner against his common-law wife and her family. The evidence was sufficient to support inferences necessary to establish premeditation under General Statutes (Cum. Sup. 1965) § 53-9, and counsel attempted to establish as a fact those factors that would negate the element of premeditation. The historical facts demonstrated a course of conduct by the petitioner that “indicated increasing anger, resentment and animosity towards the members of [his common-law wife’s] family because they refused to inform him of her whereabouts and because he believed they were deceiving him.” State v. Davis, 158 Conn. 341, 350-51, 260 A.2d 587 (1969). The habeas court could credit the testimony of the respondent’s expert and find that trial counsel, faced with this overwhelming evidence of heinous acts of murder, raised the only possible defenses that were plausible.

Trial counsel’s decisions in the guilt phase of the trial and the investigation that was conducted in support thereof was an exercise of reasonable professional judgment made with a thorough understanding of the state’s claims and the physical evidence that supported the state’s theories. We indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Siam v. Warden, supra, 97. “Counsel’s decision therefore fell within the amorphous zone known as trial strategy or judgment calls . . . which will not be second guessed by this court.” (Citation omitted; internal quotation marks omitted.) Summerville v. Warden, 29 Conn. App. 162, 176, 614 A.2d 842, cert. granted on other grounds, 224 Conn. 918, 617 A.2d 172 (1992).

The trial court correctly determined that the performance of defense counsel in the guilt phase of the trial afforded the petitioner the effective assistance of counsel.

II

The petitioner also asserts that the habeas court improperly found that he received the effective assistance of counsel at his resentencing in 1972.

We have previously discussed the petitioner’s right to effective assistance of counsel. “A defendant has the right to counsel at every critical stage, including sentencing.” Copas v. Warden, supra, 682. Our standard of review and analysis of the petitioner’s claim for ineffective assistance of counsel at his resentencing is the same as that applicable to our review and analysis of his previous claim.

The habeas court heard the petitioner’s expert testify that the reasonable practice of a criminal lawyer in New Haven with minimal competence at a sentencing hearing in 1972 such as the petitioner’s would have been to present “quite a bit of evidence . . . [making] this sentencing hearing a major production.” He testified that the role of an attorney at a sentencing hearing in 1972 was to present to the sentencing court as much evidence as possible to support the most lenient possible sentence for the client that is realistic under the circumstances. He could conceive of no tactical reason to rely solely on oral argument and not to introduce witnesses. He testified that mitigating evidence was available to trial counsel. In his view, a skillful pitch was not enough to overcome the presumption that the sentencing court would impose the maximum possible sentence.

Trial counsel testified that the procedure for resen-tencing was rare and that it was difficult for anyone to agree as to what should occur at the hearing. The respondent’s expert stated that he believed that at the sentencing hearing in 1972, trial counsel might have attempted to present further evidence. The respondent’s expert testified, however, that in his opinion, in light of all of the evidence and especially the brutality of the crimes, the result would have been no different if additional evidence had been presented.

We need not resolve the issue of actions of counsel that implicate the resentencing procedure because we may, in an appropriate case, dispose of a claim of ineffective assistance on the basis of lack of prejudice without first resorting to an analysis of counsel's action. Mercer v. Commissioner of Correction, 31 Conn. 771, 775, 626 A.2d 831 (1993); see also Strickland v. Washington, supra, 687, United States ex rel. Smith v. Lane, 794 F.2d 287, 290 (7th Cir. 1986).

Thus, even if trial counsel’s performance was deficient, the habeas court could have credited the respondent’s expert who testified that had counsel presented additional evidence at the 1972 sentencing hearing, the resulting sentence would have not changed.

As we have previously indicated, deficient performance by counsel as well as actual prejudice must coexist. Bunkley v. Commissioner of Correction, supra, 455. To satisfy the second prong, that his counsel’s performance was so deficient that it prejudiced his defense, the petitioner was obligated to establish that the performance was so grossly deficient as to deprive the petitioner of a fair trial, that is, a trial the result of which is reliable. Id. The test simply stated is that the petitioner must “demonstrate that ‘there exists a reasonable probability that, but for counsel’s unprofessional errors, the [the new sentence] would have been different.’ ” Siano v. Warden, supra, 98.

We are also cognizant of the fact that until the death penalty statute was adopted by Public Acts 1973, No. 73-137, no procedure existed for a determination of the propriety of the imposition of variant sentences in murder cases. It was only after the proceedings in this case had been completed that a statutory scheme for the production of evidence of aggravating and mitigating circumstances was introduced to our jurisprudence. See General Statutes § 53a-46a. The procedure to be followed where a death sentence was vacated following Furman v. Georgia, supra, was created on an ad hoc basis. The habeas court was entitled to credit, as it did, the testimony of the respondent’s expert that, under the facts and circumstances of the case, any evidence produced by the petitioner would have been unavailing.

Here, the habeas court had before it evidence of the horrendous brutality of the six murders. It had before it the fact that prior to the murders the petitioner had expressed animosity toward the victims, including statements that if he had to shoot someone, he was going to take the whole lot with him, and his statement on the night of the murders that he was going to hurt someone that evening. The habeas court also had before it the fact that while three of the victims had been shot only once, the other three victims each had been shot twice. The evidence further disclosed that the petitioner fled the state after the murders. Thus, as did the trial court, the habeas court had before it sufficient evidence to find that the six murders were an atrocity and carried out after the petitioner had formulated a wilful, deliberate and premeditated intent to kill several persons.

The evidence also revealed that the same counsel, whose performance in the habeas proceeding is now attacked, was also counsel who successfully prosecuted the petitioner’s appeal to the United States Supreme Court and was responsible for the vacating of the death sentence previously imposed on the petitioner. Davis v. Connecticut, supra.

We conclude that the habeas court on the basis of all the evidence from the conviction and the other factors presented to it, applied the correct standard in its determination and that the evidence supports the trial court’s finding that the petitioner failed to establish prejudice even assuming that he had succeeded in establishing a deficient performance by counsel in the penalty phase.

The judgment is affirmed.

In this opinion the other judges concurred.

       The underlying facts of the petitioner’s conviction are set forth in State v. Davis, 158 Conn. 341, 260 A.2d 587 (1969).

       General Statutes (Cum. Sup. 1965) § 53-10 provided in pertinent part: “Any person who commits murder in the first degree . . . shall suffer death .... If the person accused elects to be tried by the court and is found guilty . . . the court may, in its discretion, imprison such person in the State Prison for life. . . .”

       The petitioner was arrested in New Jersey after he left Connecticut.

       Additional facts will be set forth where they are relevant to each issue.

       General Statutes (Cum. Sup. 1965) § 53-9 provided in pertinent part: “All murder perpetrated by means of . . . wilful, deliberate and premeditated killing . . . shall be murder in the first degree . . . .”

       The respondent’s expert testified that “[w]e are dealing with a different animal when we are dealing with a death penalty case .... When [the case] came back [in 1972] [the petitioner] had escaped the death penalty and there were three other judges of the same time frame, range and age approximately. I think they felt, well, at least if this man is not going to suffer the death penalty . . . then at least [they] would put him away for the rest of his life. So I don’t think, in my opinion, it would not have changed the result in any fashion. ... In 1972 it is my opinion that he would have gotten six consecutive sentences anyway.”


author: Schaller, J.

text:
    Henry P. Vignot et al. v. Bank of Mystic et al.
    (11823)
    Foti, Heiman and Schaller, Js.

      Argued June 2
    decision released August 3, 1993

      Eugene C. Cushman, for the appellants (defendants Richard A. Kushman et al.).

      Raymond L. Baribeault, Jr., for the appellees (plaintiffs).
   Schaller, J.

The defendants Richard A. Kushman, Kathleen Kushman, Eugene C. Cushman, and Sylvia A. Cushman (Kushmans) appeal from a deficiency judgment rendered in favor of the plaintiffs, Henry Vig-not and Marjorie Vignot. The dispositive issues on appeal are (1) whether the defendant mortgagors, after a judgment of strict foreclosure had been entered and title vested in the mortgagees, could raise a defense during the deficiency proceeding that could have been raised during the foreclosure proceeding, and (2) whether the plaintiff mortgagees can obtain a deficiency judgment against any of the defendants who were not specifically mentioned in the motion for deficiency judgment. We affirm the judgment of the trial court.

The pertinent facts of this case are as follows. The Kushmans executed a promissory note in favor of the plaintiffs, the Vignots, in the amount of $100,000. As security for the note, the Kushmans gave the plaintiffs a first mortgage on the real estate at 484 Long Hill Road in Groton. In addition, the Kushmans executed a promissory note in favor of the Bank of Mystic. The Kushmans secured that note by giving a second mortgage to the Bank of Mystic on the Groton real estate.

In July, 1991, the Bank of Mystic obtained a judgment of strict foreclosure on the Kushmans’ property. On October 8, 1991, the Vignots brought foreclosure proceedings against the defendants. All defendants were defaulted for failure to plead and for failure to disclose a defense. The trial court granted a motion for judgment of strict foreclosure on January 21, 1992. Separate law days for redemption were set for the defendants, but none redeemed.

The plaintiffs filed a motion for a deficiency judgment on March 17,1992, requesting an evidentiary hearing to determine the value of the property and a deficiency judgment. Pursuant to Practice Book §§ 121 and 122, this motion was served on the attorney who represented all four Kushmans throughout the entire foreclosure action. The plaintiffs specifically mentioned only the defendant Richard A. Kushman in their recitation of facts, but did not limit their motion to Richard A. Kushman. In addition, in their original complaint, the plaintiffs’ claims for relief included a deficiency judgment against all four Kushmans, as well as a judgment against all four Kushmans on the underlying note.

On April 1,1992, the defendant Richard A. Kushman filed a motion to dismiss the plaintiffs’ motion for deficiency judgment on the ground that the judgment of foreclosure against him was moot. The trial court denied the defendant’s motion on May 5, 1992. On May 21,1992, the defendant Richard A. Kushman then filed a special defense to the plaintiffs’ motion for deficiency judgment, claiming that the statutory time limit for a deficiency judgment had expired.

On June 22,1992, the trial court began the deficiency hearing. The court heard testimony from the plaintiffs’ appraiser, as well as argument regarding the value of the real property. The court then granted the motion for a deficiency judgment against Richard A. Kushman, Kathleen Kushman, Eugene C. Cushman, and Sylvia A. Cushman. On June 25, 1992, the trial court heard further argument on whether any or all of the Kush-mans were proper defendants at the deficiency hearing. The court found that all four Kushmans were liable for the deficiency. The court also heard argument on the exact amount of the deficiency and then ordered that counsel for the Kushmans and counsel for the plaintiffs prepare and agree to a proposed judgment for the court’s approval. Finally, on August 31, 1992, the court found a deficiency in the amount of $33,345.58. All four Kushmans appealed from the trial court judgment granting a deficiency against them.

I

The Kushmans’ claim, at the outset, that they are not liable for a deficiency in this foreclosure action because their equity of redemption and interest in the property had been extinguished in the prior foreclosure action brought by the Bank of Mystic as second mortgagee. For the following reasons we do not reach this claim.

This court has held that “[o]nce title has passed in a strict foreclosure . . . a final judgment has occurred that cannot be opened.” (Citations omitted.) Bank of Stamford v. Alaimo, 31 Conn. App. 1, 8, 622 A.2d 1057 (1993). We have observed that “ ‘the procedure used to obtain a deficiency judgment [in a foreclosure action] is also part of the main action.’ ” Id., quoting People's Bank v. Bilmor Building Corporation, 28 Conn. App. 809, 822, 614 A.2d 456 (1992). The defendant in the subsequent deficiency proceeding, however, cannot assert defenses properly addressed to the actual judgment of foreclosure. “Any claims by the defendant that were made or could have been made in the foreclosure proceeding cannot be relitigated at the deficiency hearing.” Bank of Stamford v. Alaimo, supra, 9. This view is reinforced by the limited nature of the deficiency hearing. Our Supreme Court has held that “[i]n the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and determines any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property.” First Bank v. Simpson, 199 Conn. 369, 373, 507 A.2d 997 (1986); see also Bank of Stamford v. Alaimo, supra, 7.

In light of these principles, the Kushmans cannot now prevent the plaintiffs from obtaining a deficiency judgment pursuant to the plaintiffs’ judgment of strict foreclosure. The Kushmans did not challenge the validity of the strict foreclosure proceeding, as they neither pleaded nor presented a defense. The Bank of Mystic appeared and stated that it had no defense. As a result, the court entered a default judgment of strict foreclosure against all defendants. At the hearing on the motion for deficiency judgment, the Kushmans then claimed that they were not proper parties to this action because their equity of redemption had been extinguished by the Bank of Mystic foreclosure in July, 1991. This argument, however, clearly concerns the merits of the underlying foreclosure proceeding, and properly should have been raised in the course of the foreclosure proceeding.

The Kushmans failed to object to their status as defendants in the foreclosure proceeding, and, as a result, were barred from raising that claim at the deficiency hearing. The failure of the Kushmans to raise that claim in the course of the foreclosure proceeding goes to the heart of the problem that we addressed in Bank of Stamford v. Alaimo, supra. If the Kushmans were allowed to raise the claim at the deficiency hearing that they are not proper defendants, the vesting of title that had occurred in the foreclosure judgment would not be final. Such a result clearly would prejudice the plaintiffs. At the deficiency hearing, the plaintiffs already had title to the property due to the final judgment rendered in the foreclosure proceeding. The plaintiffs should not then be forced to defend the judgment of foreclosure at the deficiency hearing. While the hearing is a part of the foreclosure action, it is intended to decide only the limited issue of the defendants’ liability beyond the amount secured by the property. We conclude that, because the Kushmans failed to raise their defense in the course of the foreclosure proceeding, the deficiency judgment is valid.

II

The Kushmans contend that, if the plaintiffs have the right to a deficiency judgment, the judgment is valid only against Richard A. Kushman, since he is the only individual named in the plaintiffs’ motion for deficiency judgment. Neither General Statutes § 49-14 nor Practice Book § 528 set out specific guidelines for the contents of a motion for deficiency judgment. Both § 49-14 and § 528 discuss the nature of a deficiency hearing. Section 49-14 requires that the motion for deficiency judgment be filed within thirty days of the judgment of foreclosure, and both § 49-14 and § 528 require that the hearing shall occur “not less than fifteen days following the filing of the motion.” The only guidance concerning the structure of the motion itself is that the motion be “written . . . setting forth the facts relied on as the basis for the judgment . . . .” Practice Book § 528. There is no mention of whom, if anyone, the plaintiff must name, when requesting a hearing for the determination of a deficiency judgment.

In their complaint, the plaintiffs named all four Kush-mans in the count seeking a deficiency judgment. After strict foreclosure was granted against all four Kush-mans and the Bank of Mystic, the plaintiffs filed a motion for a deficiency judgment, requesting that a date be assigned for an evidentiary hearing to determine the value of the real estate and any resulting deficiency. Pursuant to Practice Book § 528, the plaintiffs’ motion included a recitation of the facts that formed the background for the motion for deficiency judgment.

While the plaintiffs specifically mentioned only Richard A. Kushman by name in the body of the motion, that reference pertained to the fact that a judgment of strict foreclosure had been entered and that a deficiency hearing was then appropriate. In a subsequent paragraph, the plaintiffs also noted that “said Defendant owner [Richard A. Kushman] failed to redeem on his law day, and all subsequent encum-brancers failed to redeem. ” (Emphasis added.) Finally, the plaintiffs, having completed their recitation of facts, then actually “move[d] that an evidentiary hearing be assigned in this matter . . . .” This motion was served on the attorney who represented all four Kushmans throughout the foreclosure action. That attorney appeared at the hearing for deficiency judgment and argued the amount of the deficiency.

It follows from the general relationship between foreclosure proceedings and deficiency hearings, from the plaintiffs’ compliance with pertinent statutes and rules of practice, and from the plaintiffs’ consistency in pursuit of a deficiency from the Kushmans throughout the foreclosure action, that the plaintiffs presented their motion for deficiency judgment against all four Kush-mans. We conclude, therefore, that the trial court properly determined that all four Kushmans were liable for the deficiency judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also named the Bank of Mystic as a defendant in this action. References to the defendants hereinafter include both the Bank of Mystic and the four Kushmans. The Bank of Mystic, however, has not appealed.

       The defendants also raised the following issue. If, under General Statutes § 49-1, a second mortgagee strictly forecloses the property of the defendants, can the plaintiff first mortgagee then also strictly foreclose on the same property and obtain a deficiency judgment under General Statutes § 49-14 against the defendants. We do not reach the merits of this issue, as the case is decided on more narrow grounds.
      Because we conclude that the Kushmans failed to raise at an appropriate time the claim that they were not proper defendants in the foreclosure action, we do not decide their status in the foreclosure proceeding or in the assignment of law days.

       While the facts regarding the Bank of Mystic foreclosure are relevant to the Kushmans’ claim that they could not be the subject of a second foreclosure proceeding by the plaintiffs, as noted, we do not reach the merits of that claim.

       Practice Book § 528 provides: “Whenever a deficiency judgment is claimed in a foreclosure action, the party claiming such judgment shall file with the clerk of the court within the time limited by statute a written motion setting forth the facts relied on as the basis for the judgment, which motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.
      “Upon the motion of any party and for good cause shown, the court may refer such motion to a state referee for hearing and judgment.”