author: Arthur H. Healey, J.

text:
    State of Connecticut v. Chong Chung
    (12312)
    Peters, C. J., Healey, Shea, S. Freedman and Stoughton, Js.
    Argued October 7, 1986
    decision released January 13, 1987

      Michael R. Sheldon, with whom were Todd D. Femow and, on the brief, Steven G. Murphy, Michael A. Gailor, Mark W. Freel and Bruce A. Barket, certified legal interns, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were David Cohen, assistant state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Chong Chung, was convicted upon a conditional plea of nolo contendere to an indictment charging him with the crime of felony murder in violation of General Statutes § 53a-54c. The court sentenced the defendant to thirty years imprisonment. On appeal, the defendant claims that the trial court erred in denying his motion to suppress his statements made to the police on June 18, 1982. We find no error.

The evidence adduced before the court necessary to our disposition of the defendant’s claim is as follows: On March 23, 1982, the police in Westport received a report from the victim’s wife that the victim, the owner of a Westport restaurant, had not returned home from work as expected. When the Westport police went to the restaurant to investigate, they found the interior of the restaurant in disarray. Upon further investigation, the police discovered the body of the victim outside a side door. The victim’s throat had been cut and he had been shot twice.

A subsequent examination of the restaurant revealed that a safe and cash register had been opened and money had been removed from both. Certain items were taken from the restaurant. The victim’s wallet also was missing. Some of the missing items were later found in Fairfield in a dumpster. Fingerprints taken from the items recovered were identified as those of the defendant. On March 24, 1982, while the police were at the scene of the crime, the defendant called the restaurant, identified himself, and inquired about the condition of the victim. Later on the same day, he called the police station and made a similar inquiry. During this phone call, the defendant admitted that “around the time of the homicide,” he had been at the restaurant.

On June 18,1982, the Westport police were notified that the defendant had been apprehended in Toronto, Canada, where he was being held by the Toronto police. That day, two Westport police officers, Lieutenant Ronald Malone and Detective Donald Brown, flew to Toronto and were informed that the defendant was willing to speak to them. After the officers informed the defendant of his Miranda rights, the defendant orally indicated that he understood those rights and signed a waiver form. The officers then conducted a ninety minute interrogation of the defendant. With the defendant’s consent, the interrogation was tape-recorded. Two tape recorders were set up on the table in the interrogation room, in full view of the defendant. He was informed that the two tape recorders had been set up, “in case one [did not] work.” During the interrogation, the defendant admitted being in the restaurant on the night of the crime with his companion Jimmy. The defendant initially insisted, however, that four masked men had come into the restaurant to rob the victim and that it had been Jimmy who had shot the victim. After the officers indicated that they did not believe this rendition of events, the defendant changed his story. The defendant admitted that no masked men had come to the restaurant. He then confessed that he and his companion Jimmy had gone to the restaurant with the intent to rob the victim but stated that they had had no intention of killing him. The defendant indicated that both he and Jimmy had been armed. After detailing the events of the robbery, including his taking the victim’s wallet, credit cards and cash, the defendant stated that it was Jimmy who had actually killed the victim.

The defendant filed a pretrial motion to suppress his confession. At the May 11,1983 hearing on the motion, the defendant claimed that the state had failed to meet its burden of proving by a preponderance of the evidence that he had knowingly and intelligently waived his right to remain silent. At that hearing, Malone, Brown and the defendant testified. Additionally, the tape recordings made in Toronto were admitted as exhibits and played for the court. After the hearing, the trial court denied the defendant’s motion to suppress. On May 12,1983, the defendant entered a plea of nolo contendere to the charge of felony murder, reserving, under General Statutes § 54-94a, the right to appeal the court’s denial of his pretrial motion to suppress. The record reveals that neither the trial court nor the state objected to this procedure.

I

The threshold question on this appeal is whether the issue reserved for review by this court properly comes within the ambit of § 54-94a. General Statutes § 54-94a allows a defendant to enter a plea of nolo contendere conditional on the right to take an appeal from the trial court’s denial of a motion to suppress evidence based on an unreasonable search and seizure or from the denial of a motion to dismiss. See, e.g., State v. Telesca, 199 Conn. 591, 508 A.2d 1367 (1986); State v. Madera, 198 Conn. 92, 503 A.2d 136 (1985); State v. Delmonaco, 194 Conn. 331, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984). In this case, the defendant has reserved the question of whether his waiver of his right against self-incrimination was voluntary, knowing and intelligent. The defendant argues that his confession should have been suppressed because it was a product of misconceptions by the defendant which were induced by the conduct of the police. Such a basis for a motion to suppress, implicating the fifth and fourteenth amendments, is not included within the statutory language allowing appeals from a motion to suppress evidence obtained from an illegal search or seizure in violation of the fourth amendment. See State v. Madera, supra, 99. Moreover, the legislative history of § 54-94a does not suggest that the statute could be used to challenge a denial of a motion to suppress evidence other than that obtained contrary to fourth amendment search and seizure principles. State v. Madera, supra, 99 n.7. The question reserved by the defendant does not fall within the scope of § 54-94a.

Notwithstanding the failure of the defendant’s plea to conform to § 54-94a, both the defendant and the state urge this court to exercise our inherent supervisory authority over the administration of justice in order to review the defendant’s claim. See State v. Madera, supra, 99-100; State v. Cohane, 193 Conn. 474, 499, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984), citing United States v. Butler, 567 F.2d 885, 893 (9th Cir. 1978). Although in State v. Madera, supra, 102, this court expressed reservations concerning the use of conditional plea procedures such as the one employed in this case, we conclude that in contrast to Madera, this case is an appropriate situation for this court to exercise its inherent supervisory authority over the administration of justice to review the issue preserved by the defendant. The admissibility of the defendant’s confession is the sole question presented to this court and it properly can be reviewed on the record available. See id. In addition, at the time of the defendant’s plea, it was the clear understanding and expectation of the defendant, the prosecutor and the trial court that the court’s ruling on the defendant’s motion to suppress the confession would be appealable. Moreover, to force this defendant to go through an entire trial to preserve the right to appeal the pretrial ruling, under the facts of this case, would be a waste of judicial time and resources. We therefore will proceed to consider the merits of the defendant’s appeal.

II

The defendant claims that the trial court erred in denying his motion to suppress because his confession was made without a voluntary, knowing and intelligent waiver of his right against self-incrimination. Specifically, the defendant argues that he was laboring under “three fundamental misconceptions that prompted him to speak where he otherwise would not have done so.” These misconceptions were: (1) that verbal statements were not the equivalent of formal written statements and could not be used against him in court; (2) that, “even though all [the] evidence pointed to him as the killer,” if he had not shot the victim, he could avoid prosecution and punishment as a murderer; and (3) that if he did not talk to the police at the time they interviewed him in Toronto, he would not be able to give his side of the story later. The defendant maintains that the police not only were “fully aware” that the defendant was laboring under these misconceptions, but that the “officers reinforced [the defendant’s misconceptions] and did everything they could to create an atmosphere in which the defendant could do nothing but offer an immediate confession.” The defendant argues that his decision to speak to the officers resulted, not from an “essentially free and unconstrained choice,” but from a misunderstanding of his rights as well as “compelling pressures exerted upon him which ‘undermine[d] . . . [his] . . . will to resist and compelled] him to speak where he would not otherwise [have] do[ne] so freely.’ State v. Perry, [195 Conn. 505, 519-20, 488 A.2d 1256 (1985), quoting State v. Cydzik, 60 Wis. 2d 683, 692, 211 N.W.2d 421 (1973)].”

The state argues that only the first “misconception,” which related to the defendant’s waiver of his right to remain silent, was raised at the suppression hearing. The state maintains that the defendant’s argument as it relates to the second and third “misconceptions,” which concern the voluntariness of the confession itself, essentially alleging that the defendant’s confession was coerced by the conduct of the police, is not reviewable because no claim of coercion was raised at the suppression hearing. In making this claim, the state points out that at the suppression hearing, counsel for the defense expressly characterized the issue as “whether or not the defendant knowingly and intelligently waived [his Miranda] rights.” In his argument to the court, defense counsel contended that the defendant had not knowingly and intelligently waived his rights because he “simply did not appreciate the fact that talking is equivalent to giving a [written] statement.” At no time did counsel ask the court to consider a claim that the confession itself was not voluntary, nor did counsel present evidence that the confession was a product of police coercion. The state therefore argues that the defendant’s failure to raise a voluntariness claim which could have been raised at the suppression hearing precludes review in this court.

While we generally do not review claims of error which have not first been presented to and ruled upon by the trial court, we will review unpreserved claims of error when the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial. State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). “It is well settled that the use of an involuntary confession at trial constitutes a denial of due process. Brown v. Allen, 344 U.S. 443, 475, 73 S. Ct. 397, 97 L. Ed. 469 (1953).” State v. Smith, supra, 475-76. While the review of the voluntariness issue implicates a due process analysis, voluntariness is also relevant to the claimed waiver of the defendant’s fifth amendment privilege against self-incrimination. See, e.g., State v. Toste, 198 Conn. 573, 579-80, 504 A.2d 1036 (1986). In addition, our examination of the record in this case demonstrates that the trial judge was aware of the voluntariness component involved. See State v. Shifflett, 199 Conn. 718, 729, 508 A.2d 748 (1986). In making its ruling, the trial court said, inter alia: “So that [the defendant] knew fully what he was doing. That he voluntarily, intelligently and knowingly waived any rights that he might have.” (Emphasis added.) We therefore will review the entire scope of the defendant’s claim.

We first address the defendant’s claim that the state failed to prove that the waiver of his right to remain silent was voluntary, knowing and intelligent. In making this claim, the defendant does not argue that the police failed to give the required Miranda warnings or that the warnings given were deficient. Instead, the defendant argues that the police knew that the defendant was laboring under certain misconceptions, that the police reinforced these misconceptions, and that as a result, the waiver of his right to remain silent was not voluntary, knowing and intelligent.

“ ‘In order to show that the defendant waived his privilege against self-incrimination, the state must prove by a preponderance of the evidence that he knowingly and intelligently waived his constitutional right to remain silent. State v. Alfonso, 195 Conn. 624, 628, 490 A.2d 75 (1985); State v. Perry, 195 Conn. 505, 516 n.8, 488 A.2d 1256 (1985).’ State v. Aversa, 197 Conn. 685, 695, 501 A.2d 370 (1985); see Miranda v. Arizona, [384 U.S. 436, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]. ‘The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.’ North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); State v. Frazier, 185 Conn. 211, 226, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). ‘[T]he question of waiver must be determined on “the particular facts or circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464 [58 S. Ct. 1019, 82 L. Ed. 1461 (1938)].’ North Carolina v. Butler, supra, 374-75. The issue of waiver is factual, ‘but our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence. Culombe v. Connecticut, 367 U.S. 568, 605, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).’ State v. Frazier, supra, 219.” State v. Toste, supra, 579-80; see also State v. Gray, 200 Conn. 523, 532-33, 512 A.2d 217 (1986).

The defendant’s assertion that he misunderstood his constitutional rights in that he believed that there was a difference between a written and an oral statement, standing alone, is not enough to vitiate the court’s finding that the defendant knowingly and intelligently waived his rights. State v. Frazier, supra, 225. Whether a defendant’s waiver was knowing and intelligent depends in part “on his ability to understand and act upon his constitutional rights.” State v. Toste, supra. In Toste, we recently explained factors which the court may consider in determining whether an individual had the capacity to understand the warnings. These factors include: “[T]he defendant’s experience with the police and familiarity with the warnings; Fare v. Michael C., [442 U.S. 707, 725, 99 S. Ct. 2560, 61 L. Ed. 2d 197, reh. denied, 444 U.S. 887, 100 S. Ct. 186, 62 L. Ed. 2d 121 (1979)]; State v. Alfonso, [195 Conn. 624, 630-31, 470 A.2d 75 (1985)]; People v. Medina, 71 Ill. 2d 254, 259, 375 N.E.2d 78 (1978); his level of intelligence, including his IQ; Cooper v. Griffin, 455 F.2d 1142, 1145 (5th Cir. 1972); State v. Benoit, 440 So. 2d 129, 131 (La. 1983); Matter of Welfare of S.W.T., 277 N.W.2d 507, 512-13 (Minn. 1979); his age; Fare v. Michael C., supra; Matter of D.A.S., 391 A.2d 255, 258 (D.C. App. 1978); his level of education; Davis v. North Carolina, 384 U.S. 737, 742, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); State v. Harris, 188 Conn. 574, 581, 452 A.2d 634, cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1982); his vocabulary and ability to read and write in the language in which the warnings were given; see State v. Alfonso, supra; State v. Frazier, supra, 226; intoxication; see State v. Stankowski, 184 Conn. 121, 134-35, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); his emotional state; State v. Harris, supra, 582; and the existence of any mental disease, disorder or retardation. Henry v. Dees, 658 F.2d 406, 411 (5th Cir. 1981); People v. Watson, 75 Cal. App. 3d 384, 397, 142 Cal. Rptr. 134 (1977).” State v. Toste, supra, 580-81; see generally 1 W. LaFave & J. Israel, Criminal Procedure (1984) § 6.9 (b). The defendant argues that other factors must be considered; we will refer to these factors when appropriate to do so. The question of the credibility of witnesses is, of course, for the trial court to determine. State v. Perry, supra; State v. Hawthorne, 176 Conn. 367, 371, 407 A.2d 1001 (1978).

After reviewing the record in this case, we find that the state has met its burden of showing that the defendant’s waiver was knowing and intelligent. At the time of the confession, the defendant was twenty-eight years old. Although he had been born in China, he had lived in the United States for the previous eighteen years. He was able to read English and had passed a high school equivalency exam. The defendant did not appear to be under the influence of alcohol or drugs at the time of his questioning. See State v. Toste, supra, 581; State v. Stankowski, supra. The defendant previously had been arrested “three or four” times; he did not argue that he lacked familiarity with the criminal procedures undertaken. The defendant testified at the suppression hearing that he had previously been arrested in Utah, Massachusetts and New Jersey. State v. Alfonso, supra. Moreover, the defendant was read his rights and when asked if he understood his rights, he said that he did. In fact, Malone read the defendant his rights paragraph by paragraph; the defendant indicated that he understood each and every one. After he, too, read the waiver of rights form, he signed it. A defendant’s express written and oral waiver is “strong proof” that the waiver is valid. North Carolina v. Butler, supra; State v. Derrico, 181 Conn. 151, 164, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

The defendant asserts that he did not understand that verbal as well as written statements could be used against him and that the police reinforced this misconception by telling the defendant that he could “just talk” or “make a statement.” The defendant recognizes that, absent police inducement of this misconception, his subjective belief as to the difference between verbal and written statements was insufficient by itself to vitiate the waiver of his rights. See State v. Frazier, supra, 226. Nevertheless, he argues that under the totality of circumstances, the state has failed to prove that the defendant knowingly and voluntarily waived his rights. Our review of the record, however, reveals that substantial evidence supports the finding that the defendant understood his rights and voluntarily waived them. See State v. Toste, supra, 581-83.

There is no merit to the defendant’s claim that he did not understand that verbal as well as written statements could be used against him and that the officers reinforced this misconception. The officers’ conduct was not calculated to induce or foster the defendant’s misconception. Contrary to the defendant’s argument, the record simply does not support the defendant’s allegation that the officers led the defendant to believe that the waiver form merely represented what his appellate brief calls a “bureaucratic prerequisite to conversation” and that nothing he said would be used against him unless he signed a formal statement. We point out that the record of the interrogation does indicate the defendant’s concern about signing a written statement that implicated his accomplice, Jimmy, whom the defendant apparently feared. “It is, we think, a common experience of life that in many circumstances persons are willing to convey information orally but are reluctant to put the same thing in writing.” United States v. Cooper, 499 F.2d 1060, 1062 (D.C. Cir. 1974); United States v. Weisz, 718 F.2d 413, 430 (D.C. Cir. 1983), cert. denied, 465 U.S. 1027, 104 S. Ct. 1285, 79 L. Ed. 2d 688 (1984); State v. Frazier, supra. “ ‘[A] refusal to sign a waiver [does not mean] that the person interrogated is assuming a contradictory position with respect to his willingness to respond to oral questions, whatever may be his motive in so doing.’ ” (Emphasis added.) United States v. Foskey, 636 F.2d 517, 522 (D.C. Cir. 1980). The trial court not only heard the tape recordings and their tonal quality but heard and observed the defendant and the police officers. The record justifies the court’s conclusions including that the defendant “knew fully what he was doing.”

During the interrogation and after the defendant had related the inculpatory version of the felony homicide, he specifically admitted that he had not been “threatened or promised . . . anything” by the police. Significantly, this component of voluntariness, which implicates not only his waiver of his Miranda rights but also the voluntariness of the confession itself, was repeated by him months later when he testified at the suppression hearing. At that time, he said that neither Malone nor Brown had made any promises to or threats against him. Additionally, the defendant testified that he “voluntarily wanted to talk to [Malone and Brown].” Given his own admission that the police did not promise or threaten him and his admission that he understood his Miranda rights, including the fact that “anything I say can be used against me in a court of law,” and his failure even remotely to suggest that he misunderstood the rights of which he was carefully informed by the police, there is no error in the trial court’s finding that the defendant’s waiver was voluntary, knowing and intelligent.

We also address the defendant’s related position that the confession itself was not voluntary. In making this claim, the defendant argues that the police fostered and reinforced his misconceptions that if he had not shot the victim, he could avoid prosecution as a murderer and that if he did not talk to the police at the time they interviewed him in Toronto and “offer exculpatory evidence on his own behalf,” he would “never be able to do so again.” The defendant maintains that these actions of the police officers, coupled with his misunderstanding concerning the use of oral statements, created an atmosphere of coercion in which the defendant could do nothing but offer an immediate confession. He argues that his decision to speak resulted not from an “essentially free and unconstrained choice,” but rather from “compelling pressures exerted upon him which ‘undermine[d] . . . [his] . . . will to resist and compelled] him to speak where he would not otherwise [have] do[ne] so freely.’ ” We do not agree.

“The state has the burden of proving the voluntariness of a confession by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. DeForge, 194 Conn. 392, 397, 480 A.2d 547 (1984); State v. Stankowski, 184 Conn. 121, 131, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker. State v. Stankowski, supra, 132; State v. Staples, 175 Conn. 398, 408, 399 A.2d 1269 (1978). ‘If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process.’ Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).” State v. Smith, 200 Conn. 465, 477, 512 A.2d 189 (1986). The determination of whether a confession is voluntary must be based on a consideration of the totality of circumstances surrounding it. Id.; State v. DeForge, supra, 397; State v. Carter, 189 Conn. 611, 622, 458 A.2d 369 (1983); State v. Turcio, 178 Conn. 116, 144, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); see Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Whether a confession is voluntary and admissible is, in the first instance, a question of fact to be decided by the trial court in the exercise of its legal discretion. State v. Smith, supra, 477-78; State v. Derrico, supra, 162. “That discretion must, however, be exercised by the trial court in accordance with constitutional standards of due process. State v. Staples, supra, 408. Though the question is ultimately factual, our usual deference to factfinding by the trial court is qualified on the question of voluntariness by the necessity for an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence. State v. Toste, [supra, 576]; State v. DeForge, supra, 398.” State v. Smith, supra, 478.

During the defendant’s interrogation, which lasted about ninety minutes, the defendant first told a version of the robbery which stated that four men came into the victim’s restaurant and killed the victim. The police told the defendant they did not believe that story and urged him to tell the truth. Malone pointed out that the defendant’s story was a little different from the one that the defendant had told him on March 24, 1982, when the defendant telephoned the victim’s restaurant during the police investigation. Malone, expressing disbelief of the initial version given by the defendant, said: “I’m just telling you, that you have a chance now; it may be your first chance and your last chance to straighten it out.” Commenting that the truth “will have to go before the Court, if I [Malone] get it now,” Malone then said: “If you don’t get it out now I don’t know that you’ll have the opportunity to do it again.” In addition, and also before he gave his subsequent inculpatory version, the defendant told the police that he “[did not] see how you can get a murder case up here.” Malone then said: “Okay. Because you’re there and a crime happens, that’s all it takes for murder in Connecticut.”

These circumstances must be considered in context, especially the defendant’s statement in Toronto and months later on the witness stand, that the officers never made any threats or promises. Such subjective declarations are a telling measure of his mental state at the critical time of his confession. Encouraging a criminal suspect to tell the truth, when no promises or threats have been made, does not alone make a confession involuntary. See, e.g., State v. Perry, 195 Conn. 505, 519, 488 A.2d 1256 (1985); Harvey v. State, 272 Ark. 19, 22-23, 611 S.W.2d 762 (1981); State v. Tillery, 227 Kan. 342, 344-45, 606 P.2d 1031 (1980); State v. Theriault, 425 A.2d 986, 990 (Me. 1981); Young v. State, 670 P.2d 591, 595 (Okla. Crim. App. 1983). Similarly, police suggestions that a criminal suspect should cooperate do not, alone, render a confession involuntary. See, e.g., United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir. 1978); Perry v. State, 176 Ind. App. 120, 121-22, 374 N.E.2d 558 (1978). In United States v. Ballard, the Fifth Circuit Court of Appeals approved the practice of pointing out that such cooperation will be made known to the court. See also State v. Perry, supra. Of course, exhortations should not be cast in terms of express or implied promises that the law enforcement authorities will seek to obtain for the defendant a more favorable court disposition than if he had not cooperated. See State v. Theriault, supra. We note that when the defendant was sentenced, the trial court imposed a sentence of thirty years imprisonment and said that if it “felt that Mr. Chung was the one who committed the actual murder . . . the sentence would be far more than thirty years. It would be sixty years.” Under all the circumstances, we cannot find the inculpatory statements of the defendant to be constitutionally proscribed when no promises had been made and no threats directed to him. There were no improper inducements to confess employed by the police.

The defendant himself testified that his confession was not induced by threats or promises, thus indicating that he did not perceive the police conduct as coercive. “Without a causal relationship between the alleged [inducements] and the incriminating statements], there is no basis for excluding the statements].” State v. Perry, supra. We simply “cannot supply evidence that is lacking.” State v. Toste, supra, 585 n.5; State v. Aversa, 197 Conn. 685, 697, 501 A.2d 370 (1985). Moreover, “[t]he [United States] Constitution does not prohibit every element which influences a criminal suspect to make incriminating admissions. . . . The constitutional guarantee is only that the witness not be compelled to give self-incriminating testimony. The test is whether, considering the totality of the circumstances, the free will of the witness is overborne. Rogers v. Richmond, 365 U.S. 534, 544, [81 S. Ct. 735, 5 L. Ed. 2d 760] (1961).” (Citations omitted; emphasis in original.) United States v. Washington, 431 U.S. 181, 187-88, 97 S. Ct. 1814, 52 L. Ed. 2d 238 (1977). The defendant’s confession was not “involuntary, i.e., the product of coercion, either physical or psychological . . . .” Rogers v. Richmond, supra, 540. Its validity was not undermined so that we can fairly say that the conduct of the police, including their urging the disclosure of the truth which suggested that there might not be another opportunity to do so short of going before the court, “over[bore the defendant’s] will to resist and [brought] about [a confession that was] not freely self-determined . . . .” Rogers v. Richmond, supra, 544; State v. DeForge, supra, 397-98. The defendant’s confession was the product of an essentially free and unconstrained choice. See State v. Smith, supra; State v. Staples, supra, 408.

On the basis of the record before us, we conclude, therefore, that there was ample evidence to meet the necessary standard of proof of voluntariness.

The trial court did not err in denying the defendant’s motion to suppress.

There is no error.

In this opinion the other justices concurred.

       The defendant originally pleaded not guilty to the charge of felony murder but later changed that plea to a conditional plea of nolo contendere. See General Statutes § 54-94a. The defendant also was charged by information with the crime of robbery in the first degree in violation of General Statutes § 53a-134. The latter charge was nolled.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       See Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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

       In his brief, the defendant urges that we adopt a general practice of permitting criminal defendants to appeal from alleged nonjurisdietional defects in judgments of conviction rendered against them upon pleas of nolo contendere, where the plea is made with the explicit approval of both the trial court and the prosecution. Practice Book § 4003 (b), which became effective October 1,1986, provides: “appeals of rulings on motions to DISMISS OR SUPPRESS FOLLOWING JUDGMENTS ENTERED UPON CONDITIONAL pleas OF NOLO contendere. . . . (b) With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw his plea after the case has been remanded to the trial court. The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not have a significant impact on the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.”

       In State v. Madera, 198 Conn. 92, 101, 503 A.2d 136 (1985), we noted that “[t]he conditional plea is susceptible to abuse . . . unless its use is carefully limited to significant issues the determination of which on appeal is likely to be dispositive of the case.” Practice Book § 4003 (b) requires that the reserved issue be specified in writing. Additionally, the court may not accept a conditional plea where the record available is inadequate or where an adverse determination of the specified issue would not have a significant impact on the disposition of the case in the trial court.

       The defendant makes his claim under both the federal and state constitutions. “We have held: ‘Although the Miranda warnings were originally effective in state prosecutions only because they were a component of due process of law under the fourteenth amendment; Miranda v. Arizona, [384 U.S. 436, 463-65, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]; Malloy v. Hogan, 378 U.S. 1, 3, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); they have also come to have independent significance under our state constitution. Conn. Const., art. I, § 8; State v. Falby, 187 Conn. 6, 11 and n.l, 444 A.2d 213 (1982).’ State v. Ferrell, 191 Conn. 37, 40-41, 463 A.2d 573 (1983). The defendant, however, ‘has proferred no argument that the rights afforded to him by the federal and state constitutions are in any way distinguishable with respect to the substantive issue that he has raised. We see no reason, on the facts of this case, independently to undertake such an analysis.’ State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985).” State v. Toste, 198 Conn. 573, 576 n.3, 504 A.2d 1036 (1986).


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Ruth Ramsdell et al. v. Union Trust Company, Executor (Estate of Edna M. Swayze)
    (12700)
    Peters, C. J., Shea, Dannehy, Callahan and Brenneman, Js.

      Argued November 13, 1986
    decision released January 13, 1987

      David M. Reilly, for the appellants-appellees (plaintiffs).

      Robert W. Allen, for the appellee-appellant (defendant).
   Peters, C. J.

The dispositive issue on this appeal is whether a conflict of interest warranted the removal of the defendant, the Union Trust Company, from its position as executor of the plaintiffs’ decedent’s estate. The plaintiffs are beneficiaries under the will of the decedent, Edna M. Swayze. In 1977, the year of Swayze’s death, the plaintiffs petitioned the Probate Court to remove the defendant as executor of Swayze’s estate and to deny approval of the defendant’s inventory of the estate. The court denied the petitions, and the plaintiffs appealed. In 1982, the plaintiffs instituted a third appeal from a subsequent Probate Court order approving the defendant’s final account as executor. All of the plaintiffs’ appeals alleged misfeasance by the defendant in its dual capacity as executor of the Swayze estate and as trustee of an inter vivos trust created by Swayze some six years before her death. The appeals were consolidated for trial. The trial court, S. Freedman, J., rendered judgment for the defendant on the first two appeals, which related to the removal of the defendant as executor and the adequacy of the estate inventory. On the third appeal, however, it rendered judgment for the plaintiffs, and refused to accept the defendant’s final account. The plaintiffs appealed to this court from all three judgments, and the defendants cross appealed from the judgment on the third appeal. We find error in the plaintiffs’ appeal of the trial court judgments.

The facts of this case are undisputed. On February 1, 1971, Edna M. Swayze, as grantor, established a revocable inter vivos trust (the trust) with a corpus of approximately $365,000. The trust named the defendant and R. Schuyler Goodwin as trustees. The trust directed the trustees to make periodic payments of income “to or for the benefit of” the grantor during her life, and gave the grantor the option to direct the payment of additional sums from interest or principal to herself or another party of her election. The trust also provided: “In the event of accident or illness, or in the event the Grantor is not easily available, the Trustees are authorized in their discretion to make payments from income or principal from time to time for the benefit of the Grantor including payments for her living expenses and care.”

On July 23, 1971, the New Haven Probate Court adjudged Swayze incompetent. That court appointed Herbert W. Newton conservator of her estate. Newton obtained a $10,000 bond and, pursuant to General Statutes § 45-75, filed an inventory of the Swayze estate with the Probate Court. The inventory listed personal property in the amount of $28,527.57, but did not list the trust as an asset.

From 1971 through 1976, the defendant, as trustee, paid income and principal to Newton, as conservator, upon Newton’s oral requests for funds to an officer of the defendant. The trustees never sought permission from the Probate Court to make payments from the trust to Newton, nor did they inform the Probate Court of those payments. Newton provided no regular receipts for expenses purportedly incurred on Swayze’s behalf, and did not account to the trustees for his use of the money received from the trust. The record does not indicate that the trustees ever investigated Newton’s use of the trust funds. During Newton’s tenure as conservator, the trustees paid him approximately $360,000 from the trust. The New Haven Probate Court removed Newton as conservator, effective January 17,1977, because of his failure to provide the court with an acceptable accounting of his expenditures.

Swayze died on February 8, 1977. Pursuant to the terms of her will, the defendant was appointed executor of Swayze’s estate on February 24, 1977. On August '3,1977, the plaintiff Ruth N. Ramsdell filed an application with the Guilford Probate Court to remove the defendant as executor, alleging as grounds for removal, inter alia, a conflict of interest between the defendant’s role as executor under the will and as trustee of the inter vivos trust. Following a hearing, the Probate Court denied the application on September 8, 1977.

The defendant’s original inventory of the Swayze estate listed as an estate asset a claim of undetermined amount against Newton, the former conservator. After the plaintiffs objected to the Probate Court’s acceptance of the inventory, arguing that the defendant had failed to include a claim against the trustees of the inter vivos trust, the defendant amended its inventory to list “a possible secondary claim” against the trustees. The Guilford Probate Court accepted the amended inventory on August 10, 1977. The plaintiffs appealed the Probate Court’s refusal to remove the executor and its acceptance of the amended inventory, and also appealed the court’s subsequent order approving the defendant’s final account as executor.

While the plaintiffs’ appeals were pending, the defendant, as executor, sued Newton in Superior Court seeking, inter alia, an accounting of his expenditures as conservator. On December 4, 1980, the trial court in that action, Pastore, J., rendered judgment against Newton for a total of $69,792.40, an amount which included interest accruing from the date of Newton’s removal as conservator to the date of judgment. The executor collected all but $2593.40.

On February 1, 1985, following a trial on the plaintiffs’ consolidated appeals from probate, the trial court, <S. Freedman, J., rendered judgment dismissing the plaintiffs’ appeals from the Probate Court’s acceptance of the inventory and refusal to remove the defendant as executor, but sustaining the appeal from the acceptance of the defendant’s final account. In its memorandum of decision, the court determined that, because it was hearing the matter de novo as a Probate Court, it lacked jurisdiction to consider claims for damages and equitable relief raised in the plaintiffs’ appeals. It held, accordingly, that those claims should be brought in a court of general jurisdiction. The court, however, undertook a limited inquiry into the plaintiffs’ claims that the defendant was liable for negligence in the administration of the inter vivos trust. The court undertook this inquiry for the sole purpose of determining whether reasonable grounds existed for the plaintiffs to sue the defendant in a court of general jurisdiction. After examining the terms of the trust instrument, the court concluded that such reasonable grounds did exist, and accordingly refused to accept the defendant’s final account pending resolution of the plaintiffs’ claims against the defendant in a court of general jurisdiction. The court also determined that the defendant’s status as trustee placed it in a position of “potential conflict” with its duties as executor. The court refused, however, to remove the defendant as executor, reasoning that the parties ultimately might reconcile their differences and that “the weight of authority” favored permitting the executor to remain in office.

On appeal to this court, the plaintiffs claim that the trial court erred in: (1) failing to remove the defendant as executor; (2) approving the defendant’s inventory of the Swayze estate, despite the defendant’s failure to include in the inventory an appraisal of the claim against the trustees of the inter vivos trust; and (3) failing to surcharge the defendant as executor for litigation expenses incurred by the estate, which expenses allegedly resulted from the defendant’s negligence and misfeasance in connection with its duties as trustee. We agree with the plaintiffs’ first claim of error, and will address their additional claims in that light.

The defendant, as cross appellant, claims that the trial court erred in refusing to accept the final account of the defendant as executor, pending resolution of the plaintiffs’ claims against the defendant in a court of general jurisdiction. We disagree.

I

We turn first to the resolution of the plaintiffs’ dis-positive claim of error, that the trial court erred in refusing to order the removal of the defendant as executor, despite explicitly recognizing the possibility of a conflict of interest between the defendant’s role as executor under the will and as trustee of the inter vivos trust. The defendant does not dispute that both the Probate Court and the trial court on appeal have jurisdiction to order the removal of an executor. General Statutes § 45-263 (a); 2 W. Locke & P. Kohn, Connecticut Probate Practice (1951) § 341; see Prince v. Sheffield, 158 Conn. 286, 295, 259 A.2d 621 (1969). Rather, the defendant argues that removal is not warranted in this case because, despite its dual and potentially conflicting roles as executor and trustee, its conduct as executor was marked by the diligence and prudence required of a fiduciary. In particular, the defendant argues that it acted prudently in failing to pursue a claim against itself and the other trustee, since such an action would have been costly and probably fruitless. While the posture of this case does not require us to resolve definitively the matter of the defendant’s potential liability to the estate, we are not persuaded that the defendant’s dual roles as executor and trustee did not impair the performance of its fiduciary responsibilities as executor.

General Statutes § 45-263 (a) provides that the Probate Court, upon its own motion or upon the application of an interested party or a surety upon the fiduciary’s bond, may remove a fiduciary who “becomes incapable of executing his trust, neglects to perform the duties of his trust, wastes the estate in his charge, or fails to furnish any additional or substitute probate bond ordered by the court. . . . ” The term “fiduciary” in § 45-263 (a) includes the executor or administrator of an estate. General Statutes § 45-249a.

In the present case, there is no claim that the defendant failed to furnish any required bond. Nor do the plaintiffs claim, in their arguments in support of removal, that the defendant has wasted the assets of the estate. Thus, in order to justify removing the defendant as executor under General Statutes § 45-263 (a), the trial court was bound to consider whether, because of its dual roles as executor and trustee, the defendant became incapable of executing its fiduciary duties or neglected to perform those duties in its capacity as executor.

Whether grounds exist for an executor’s removal is a question addressed to the sound discretion of the Probate Court. Peck v. Searle, 117 Conn. 573, 583, 169 A. 602 (1933); 2 W. Locke & P. Kohn, supra. On appeal from probate, the trial court may exercise the same discretion de novo, reviewing the facts relating to the propriety of removal without regard to the Probate Court’s decision. Prince v. Sheffield, supra, 298-99. Our task, then, is to determine whether the trial court abused its discretion in refusing to remove the defendant as executor of the Swayze estate.

An important aspect of an executor’s fiduciary responsibility is the duty to maintain an undivided loyalty to the estate. Corey v. Corey, 120 Minn. 304, 310, 139 N.W. 509 (1913); In re Estate of Rothko, 84 Misc. 2d 830, 847-48, 379 N.Y.S.2d 923 (1975); Estate of Stephenson, 469 Pa. 128, 141, 364 A.2d 1301 (1976); see Phillips v. Moeller, 148 Conn. 361, 369, 170 A.2d 897 (1961). “[0]ne interested in an estate has the right to have its representative wholly free from conflicting personal interests. . . . ” Corey v. Corey, supra. When the executor of an estate places itself in a position where its interests conflict with those of the estate, the executor’s ability to represent fairly the interests of the estate is irreparably tainted. “When [such] a situation appears . . . it is the positive duty of the court to remove the executor . . . . ” Davis v. Roberts, 206 Mo. App. 125, 129, 226 S.W. 662 (1920).

In the present case, as the trial court found, the defendant’s potential conflict of interest arises from its dual roles as executor under the will and trustee of the inter vivos trust. If the estate has a viable claim against the trustees, the defendant has a fiduciary duty to bring such a claim on the estate’s behalf. See Butler v. Sisson, 49 Conn. 580, 588 (1882). Similarly, if the estate once had a viable claim against the trustees which would now fail because of the expiration of the statute of limitations, the defendant as executor might be liable to the estate for failing to prosecute such a claim in a timely fashion. In either case, the defendant has a conflict of interest with the estate. It cannot effectively perform its fiduciary duty of objectively appraising, and, if necessary, prosecuting, claims against itself which constitute potential assets of the estate. See Butler v. Sisson, supra. If valid grounds exist for bringing a claim against the defendant, in its capacity as trustee or executor, and the defendant, because of its conflict of interest, refuses to pursue such claims, the defendant is incapable of executing its fiduciary duties and should be removed. See General Statutes § 45-263 (a); In re Estate of Lucas, 38 Ill. App. 3d 1009, 1013-14, 363 N.E.2d 621 (1977); Corey v. Corey, supra.

The existence of a potential conflict of interest does not, of itself, mandate removal of the defendant as executor. Removal of an executor is an extraordinary remedy designed to protect against harm caused by the continuing depletion or mismanagement of an estate. Carroll v. Arnold, 107 Conn. 535, 542, 141 A. 657 (1928); see Phillips v. Moeller, supra, 368; Murdoch v. Elliott, 77 Conn. 247, 256, 58 A. 718 (1904); Treat’s Appeal from Probate, 40 Conn. 288, 291 (1873). In the absence of continuing harm to the interests of the estate and its beneficiaries, removal is not justified merely as a punishment for a fiduciary’s past misconduct. Carroll v. Arnold, supra, 543. Thus, in order to justify removing the defendant in this case, there must be evidence of a clear and continuing conflict of interest rendering the defendant unfit to perform its duties to the estate. The bare possibility of a cause of action on the estate’s behalf against the defendant, if such a claim were frivolous or speculative, would not warrant removal. Whether the defendant has a conflict of interest that renders it unfit to continue in the service of the estate depends, in significant part, upon whether the estate’s potential claims against the defendant have sufficient substance to warrant consideration by a successor fiduciary uninfluenced by a motive to avoid litigation.

Our review of the record indicates that the estate’s potential claims against the defendant deserve serious independent consideration. We are unpersuaded by the defendant’s claim that it would be “needless” and “futile” to sue itself as trustee. The credibility of the defendant’s present position is undermined by its own action in listing a contingent claim against the trustees in the estate’s amended inventory. The defendant now argues that this earlier acknowledgment of a potential claim against the trustees was a mistake, made in the interests of defusing the plaintiffs’ claims for removal and in expediting the Probate Court’s approval of the inventory. In view of the defendant’s clear interest in avoiding the institution of litigation against itself, we are unconvinced by this argument. See In re Estate of Lucas, supra, 1014.

In its brief, the defendant offers several substantive arguments in order to demonstrate that a claim against the trustees would be fruitless. The defendant’s essential points are that: (1) the terms of the trust instrument authorized the trustees to pay income and principal to the conservator; (2) if the trust instrument did not authorize such payments, the most prudent course, which the defendant followed, was to bring an accounting action against the conservator; and (3) the final judgment in the defendant’s action against the conservator is binding as to the amount of trust funds improperly paid, and thus has established the total possible recovery in that regard. While we make no attempt to evaluate conclusively the merits of the defendant’s arguments, we are unpersuaded that they establish that the estate’s potential claims against the defendant lack merit.

Turning to the first of the defendant’s arguments, we note that the trust instrument does not specifically authorize the trustees to pay the income or principal of the trust to anyone but the grantor herself. As the trial court observed, the trust instrument could have been drafted to make explicit provision for payments to a conservator, in the event the grantor became incompetent, by incorporating by reference the powers set forth in the Fiduciary Powers Act, General Statutes §§ 45-100d, 45-100e. Absent such a clear provision, or any other explicit authority for the trustees to pay trust assets to a third party in the event of the grantor’s incompetency, determining whether such a power existed is a matter of construing ambiguous language in the trust. We are not convinced that the construction advanced by the defendant is conclusive, or that a court properly called upon to construe the trust could not find that the trustees’ payments to the conservator violated the terms of the instrument.

The defendant’s second argument, that it acted prudently in pursuing the conservator, rather than the trustees, in order to recoup improperly applied trust assets, is equally unpersuasive. The fact that bringing suit against the conservator may have been one prudent, and ultimately fruitful, course of action does not mean that it was the only possible source of recovery available to the defendant. The trustees’ fiduciary duty to manage the trust funds carefully was entirely separate from the conservator’s duty to account for his expenditures on behalf of the grantor. If the trustees breached their fiduciary duty in paying trust assets to the conservator, their potential liability is not limited by the judgment against the conservator. Among other things, the trustees might be held liable for payment of the legal fees incurred in prosecuting the action against the conservator, which action would arguably have been unnecessary but for the trustees’ breach of duty. See Smith v. Scofield, 19 Conn. 534, 539 (1849). These potential claims against the trustees warrant independent consideration that the defendant, in its present position, cannot provide.

The defendant’s final argument, that the judgment against the conservator is “binding upon the plaintiffs” as to the amount of funds improperly accounted for by the executor, requires little discussion. As we have already noted, the duties of the conservator and those of the trustees, and the potential liabilities arising from the breaches of these duties, are completely distinct. Even if a court were to find that the plaintiffs, as representatives of the estate, are bound by the judgment against the conservator, this finding would not preclude the estate from bringing an independent action against the trustees, or against the defendant as executor for failing to sue the trustees in a timely fashion. We again emphasize that our discussion of the estate’s potential claims against the defendant is not intended as an adjudication, however tentative, of such claims. Our examination makes clear, however, that such claims, contrary to the defendant’s assertions, are not “needless” or “futile.” To the contrary, they are sufficiently colorable to create a conflict between the defendant’s interest in avoiding liability and its duties to the estate.

Whether the estate’s claims are pursued against the defendant as trustee, executor, or both, their existence places the defendant’s continued service as executor under the shadow of a conflict of interest. The trial court, while recognizing the elements of this conflict in its memorandum of decision, declined to order the defendant removed as executor. In so declining, the court appeared to anticipate alternative resolutions of the plaintiffs’ claims against the defendant that would make the defendant’s removal unnecessary. The court rendered its decision without prejudice to the plaintiffs’ subsequent renewal of the request for removal “should such an action become appropriate at a later time. . . . ” At the time of the trial court’s decision, however, the plaintiffs’ litigation against the defendant had raged for five years, during which time the defendant had adamantly refused either to pursue an action against the trustees or to resign. As hindsight confirms, the trial court’s optimism that the parties might reach a settlement was unwarranted. We conclude that the court’s failure to order the defendant removed as executor, in the face of a clear conflict of interest that rendered the defendant unable to execute its fiduciary obligations to the estate properly, constituted an abuse of discretion. Accordingly, we order this case remanded to the Probate Court with direction to remove the defendant as executor and to appoint a successor fiduciary.

Our disposition of this claim of error renders consideration of the plaintiffs’ other claims unnecessary. As to the trial court’s approval of the defendant’s inventory, any grounds for appeal are mooted by our conclusion that a successor fiduciary must be appointed. The successor fiduciary may well decide to submit a new inventory and account for the Probate Court’s approval after the claims against the defendant and the other trustee have been resolved. Our holding will similarly require the defendant, if it seeks to recover litigation expenses incurred in pursuing the claim against the conservator and in these appeals, to bring claims for them before the successor fiduciary. The plaintiffs therefore cannot claim to be harmed by the trial court’s refusal to surcharge the defendant for these expenses.

II

We now address the argument raised by the defendant in its cross appeal: that the trial court erred in failing to accept the defendant’s final account as executor. The defendant claims that the trial court: (1) improperly undertook a “probable cause” examination to determine whether the plaintiffs had reasonable grounds to sue the defendant in a court of general jurisdiction; (2) erroneously determined that such reasonable grounds existed; and (3) failed to approve the defendant’s litigation expenses, despite the plaintiffs’ stipulation that those expenses were reasonable. We disagree.

The defendant’s first claim is that the trial court exceeded its jurisdiction in determining that the plaintiffs had reasonable grounds to litigate against the defendant. The trial court correctly acknowledged, however, that its jurisdiction was limited to that conferred on the Probate Court; Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 428, 279 A.2d 726 (1971); and that the plaintiffs’ claims for money damages and equitable relief against the defendant should be brought in a court of general, rather than limited, jurisdiction. See id., 428-29; Carten v. Carten, 153 Conn. 603, 614, 219 A.2d 711 (1966); Phillips v. Moeller, 147 Conn. 482, 488-89, 163 A.2d 579 (1960). The court made its probable cause determination for the sole purpose of determining whether it should accept the defendant’s final account, or refuse to accept it pending the resolution of the plaintiffs’ claims in a court of general jurisdiction. Undoubtedly the court had jurisdiction to approve or deny the defendant’s final account. General Statutes § 45-267; see Morse v. Wand, 92 Conn. 286, 102 A. 586 (1917). Incident to that power, the court had the authority to make a nondispositive determination that the plaintiffs had reasonable grounds to sue the defendant in a court of general jurisdiction. See Chamberlin, Exr., Appeal from Probate, 70 Conn. 363, 378, 39 A. 734 (1898); G. Wilhelm, Connecticut Estates Practice (1974) § 290. While the court clearly lacked authority to render a binding interpretation of the inter vivos trust; see Phillips v. Moeller, supra, 489; its preliminary interpretation of the trust, in the limited context of its probable cause determination, was not outside the scope of its jurisdiction. Nor did the probable cause determination amount to a “command” that the plaintiff sue the defendant in its third party capacity as trustee, as the defendant contends. The trial court’s decision neither compelled a lawsuit, nor concluded the rights of the potential parties to such a suit. It simply determined that litigation was a reasonable option for the plaintiffs.

The defendant’s second claim, that the trial court reached the wrong result in its probable cause determination, requires little discussion. Since the court did not and could not reach a conclusive judgment on the merits of potential claims against the defendant in a court of general jurisdiction, we need only consider whether the court’s determination was proper for the limited purpose for which it was employed: to decide whether to accept the defendant’s account. For the reasons discussed in our discussion of the defendant’s first claim, we conclude that the probable cause determination was a reasonable exercise of the court’s jurisdiction.

The defendant’s final claim is that the trial court improperly failed to approve its litigation expenses. While it is true that the plaintiffs do not contest the reasonableness of the amount of these expenses, the trial court properly recognized that the defendant may not be entitled to reimbursement from the estate, on the theory that, but for the negligence of the trustees, the legal fees would have been unnecessary. Under our disposition of the case, moreover, the defendant may seek reimbursement for its litigation expenses by presenting a claim for them before the successor fiduciary. See General Statutes § 45-205.

There is error, the judgment of the trial court is set aside and the case is remanded to the Superior Court with direction to remand the case to the Probate Court for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       The defendant was also the administrator of a life estate under the will of Frank Swayze, Edna Swayze’s late husband, from which Edna Swayze received income. The defendant’s conduct in the administration of the life estate is not at issue in this litigation.

       The trust provided in relevant part:
      “1. The Trustees shall pay the net income to or for the benefit of the Grantor quarterly or oftener so long as she shall live.
      “2. The Trustees shall pay from the income or the principal of the Trust any amount or amounts that the Grantor may direct, such persons, corporations or associations as the Grantor may direct, and the Trustees shall transfer to the Grantor any asset or assets of the Trust at any time upon the Grantor’s request.
      “3. In the event of accident or illness, or in the event the Grantor is not easily available, the Trustees are authorized in their discretion to make payments from income or principal from time to time for the benefit of the Grantor including payments for her living expenses and care.”

       The parties do not dispute that the trial court rendered final, appealable judgments in the probate appeals. This is not a case where the trial court’s disposition of the case expressly requires further proceedings in another forum before a final disposition is reached. Cf. Schwarzchild v. Martin, 191 Conn. 316, 325, 464 A.2d 774 (1983) (order requiring arbitration not a final judgment); Burdick v. United States Finishing Co., 128 Conn. 284, 288-89, 22 A.2d 629 (1941) (judgment requiring remand to workmens’ compensation commissioner not final). In the present case, while the trial court’s refusal to accept the defendant’s final account does contemplate the possibility of future litigation between the parties, it does not require such litigation as a necessary step in the disposition of the case. The judgments rendered by the trial court were as final as the court, in view of its limited jurisdiction on a probate appeal, was able to render.

       General Statutes § 45-203 provides that an executor’s failure to file an inventory and appraisal of the estate in its charge may also be grounds for removal. While the plaintiffs acknowledge that the executor’s amended inventory did list a possible contingent claim against the trustees, they argue, as grounds for removal in this case, that the defendant failed to appraise this claim properly in the inventory. We agree with the trial court that the defendant’s failure to place a value upon the contingent claim against the trustee did not render the inventory defective, since the value of such a claim was not and has not been established. See Atwater v. Barnes, 21 Conn. 237, 243 (1851). Because the trial court did not approve the defendant’s final account, and because our disposition of this case will require the appointment of a successor fiduciary, an appraisal of the potential claims against the defendant, as trustee or executor, may properly be included in that fiduciary’s inventory.

       As the trial court noted, the statute of limitations now appears to bar an action by the executor against the trustees. See General Statutes § 52-577. It is unclear from the record whether such a suit could nevertheless be brought on the ground that the defendant, in its capacity as trustee, waived the benefit of the statute of limitations. We need not resolve this issue, because our disposition of this case requires the appointment of a new executor, who will necessarily conduct an independent evaluation of potential claims against the defendant.

       The paradoxical nature of the defendant’s position is underscored by the statements of its counsel before the Probate Court following its submission of the amended inventory listing a possible claim against the trustees: “We obviously deny any liability irrespective of what the outcome [of litigation against the conservator] may be and Pd like that clearly stated for the record.”

       General Statutes § 45-100d (c) provides in relevant part: “By an expressed intention of the testator or settlor so to do contained in a will or in an instrument in writing whereby a trust estate is created inter vivos, any one or more or all of the powers or any portion thereof enumerated in section 45-100e . . . may be, by appropriate reference made thereto, incorporated in such will or other instrument, with the same effect as though such language were set forth verbatim in such will or other instrument.”
      General Statutes § 45-100e (22) provides: “(22) Pay to or for Minors or Incompetents.—To make payments in money or in property, to or for a minor or incompetent in any one or more of the following ways: (A) To such minor or incompetent directly, if the fiduciary in its sole and absolute discretion deems such payment advisable; (B) to apply directly in payment for the support, maintenance, education, and medical, surgical, hospital, or other institutional care of such minor or incompetent; (C) to the legal or natural guardian of such minor or conservator of such incompetent; (D) to any other person, whether or not appointed guardian of the person or conservator by any court, who shall, in fact have the care and custody of the person of such minor or incompetent. The fiduciary shall not be under any duty to see to the application of the payments so made and the receipt by such person shall be full acquittance to the fiduciary.”

       General Statutes § 45-75 (a) permits a conservator to “manage all the property [of the ward’s estate] and apply so much of the net income of the property, and, if necessary, any part of the principal of the property, which is required to support the ward . . . .” The defendant does not claim that this statute confers upon the trustees any authority to pay income or principal from the trust absent a trust provision permitting such payments.

       The provision on which the defendant’s interpretation relies is paragraph 1 of the trust, providing that “[t]he Trustees shall pay the net income to or for the benefit of the Grantor . . . .” We note that the trial court construed this provision as imposing on the trustees a nondelegable duty to pay trust income “for the benefit of” the grantor in the event of her illness. Accordingly, the trial court found that the trustees improperly delegated that duty by paying money from the trust to the conservator. We also observe that the relevant provision, even if construed in the manner advocated by the defendant, does not authorize the payment of trust principal by the trustees.
      An additional claim raised by the defendant in the context of this argument is that the conservator could have successfully applied to the Probate Court to revoke the trust. Even if we were to conclude that the conservator could have prevailed in this regard, it does not follow that the trustees were, as a consequence, authorized to pay money from the trust to the conservator in the absence of specific trust language permitting them to do so.

       See footnote 5, supra.

       “[General Statutes] Sec. 45-267. jurisdiction of accounts of fiduciaries. (a) Courts of probate shall have jurisdiction of the interim and final accounts of testamentary trustees, trustees appointed by the courts of probate, conservators, guardians, persons appointed by probate courts to sell the land of minors, executors, administrators and trustees in insolvency, and, to the extent provided for in this section, shall have jurisdiction of accounts of the actions of trustees of inter vivos trusts and attorneys-in-fact acting under powers of attorney created in accordance with section 45-69o.”


author: S. Freedman, J.

text:
    State of Connecticut v. Teddy A. Drakeford
    (12673)
    Peters, C. J., Healey, Shea, Dannehy and S. Freedman, Js.
    Argued October 7, 1986
    decision released January 20, 1987

      Barbara Goren, special public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Dominick J. Galluzo, assistant state’s attorney, for the appellee (state).
   S. Freedman, J.

After a trial to a jury, the defendant, Teddy A. Drakeford, was found guilty of murder in violation of General Statutes § 53a-54a and received a sentence of thirty-five years. He appeals from that conviction. This appeal generates three issues: (1) whether the trial court erred in proceeding with jury selection in the absence of the defendant; (2) whether the trial court erred in failing to appoint new counsel; and (3) whether the trial court erred in excluding certain ballistics evidence. We find no error.

The jury could reasonably have found the following facts. The body of the victim was found on Hough Avenue in Bridgeport on October 2,1983, at approximately 4 a.m. The legs of the clothed body were wrapped in a piece of bloodstained pink foam material. The body lay about three feet behind a dump truck used by the defendant and owned by his employer. The victim had left his apartment during the early evening of October 1,1983, and was present that same evening at the Hough Avenue apartment of his friend, the defendant. An autopsy examination disclosed a shotgun wound to the back between the shoulder blades and extensive trauma to the face, including fractured upper and lower jaws, lacerations of the lip and fractured teeth. It also revealed that the body contained one hundred fifty-one shotgun pellets, pieces of shotgun wadding in the chest cavity and entrance wound, portions of a foam material containing eleven pellets, and a wooden substance in the mouth. The shotgun wound preceded the mouth injuries and was the cause of death.

The defendant shared a second floor apartment and an attic at Hough Avenue with Cynthia Jelks, Eugene Mack and Mae McArthur, and with his two children. The first floor was occupied by Benigno Torres Santiago, his wife Maria Ortiz, and a daughter, Rosemarie Avila.

Avila observed the victim arrive on his bicycle at the defendant’s apartment about 6 p.m. About 11 p.m. she heard a loud noise which seemed to shake the house. About 11:30 p.m. she heard a noise on the second floor stairs. Looking outside, she saw the defendant carrying a roll of pink foam which he deposited into the truck that he used. On a previous occasion she had seen the defendant with the same kind of foam going up to fix the attic. The next morning Avila saw dark stains on the front porch in front of the second floor apartment door and also saw the victim’s bicycle at the side of the house.

Ortiz observed the victim place his bicycle on the front porch at about 6 p.m. on October 1, 1983, and go upstairs. She later saw the victim and the defendant leave at approximately 8 p.m. and she did not see them return. Later that evening, however, she heard “a big noise” upstairs.

During the evening of October 1, 1983, Mack was awakened by “something like a big bump” from above. That evening, McArthur was awakened by a loud noise sometime after 11 p.m. Immediately after, she heard other noises that sounded like things being moved around in the attic.

On October 2,1983, Bridgeport police, after canvassing the neighborhood, executed a search warrant for the second and third floors of the Hough Avenue apartment. In the third floor attic behind a sheetrock wall they found a twenty gauge shotgun with bloodstains and negroid hair. Seized from the rafters was a piece of bloodstained foam material which appeared to “match up” with the piece of foam found on the victim’s body. The police also found two rugs on the floor. The bottom rug was blood soaked and contained negroid hairs and tooth particles. The top rug contained bloodstains and particles of negroid hair. In a backyard garbage can they found a bloodstained paper bag with negroid hairs on it and a shirt inside with bloodstains. The steps from the attic to the second floor and from the second floor to the first floor revealed drops of blood, as did the front porch.

The twenty gauge shotgun along with two shotgun shells had been given to the defendant by David D. Reed, for whom he worked. The pink foam material found on the body was consistent with the foam padding that Reed was installing in houses he was constructing, which the defendant had previously been hired to watch as a security person.

Odontological examination revealed that the tooth particles recovered from the rug in the attic matched the victim’s broken upper right bicuspid, and tooth particles recovered from the shotgun stock matched the victim’s broken upper left central incisor.

I

The defendant claims the trial court erred in proceeding with jury selection in his absence and in not delaying the trial. We cannot agree.

On October 10, 1984, after voir dire examination of a prospective juror, the defendant announced he was ready to go back to jail. Informed that the court was proceeding with the trial, the defendant told the court that he and his lawyer had had a disagreement over juror selection, a fact confirmed by his attorney. Generally complaining about his treatment, he repeatedly interrupted the trial court’s attempts to explain his rights and the court procedures, expressed displeasure with his attorney, requested a public defender, and refused to take part in jury selection. The court made it clear on several occasions that the case would continue, a directive with which the defendant took issue as he refused to quiet down and repeatedly interrupted the court. He was informed that he could leave if he wished and return if he agreed to follow the court rules. He was finally removed from the courtroom at his own request. The court then took a forty-two minute recess, after which a sheriff was sent to inform the defendant that the court was prepared to continue the trial and that the defendant was entitled to return if he agreed to conduct himself properly. The sheriff reported that the defendant declined to return to the courtroom. One juror was chosen that day after the defendant absented himself.

The following day, October 11,1984, the defendant again refused to take part in jury selection, generally continuing his outbursts of the day before. By the end of the day, seven jurors had been selected. On October 12,1984, the defendant returned to the courtroom for the remainder of the trial.

That the defendant has a constitutional right to be present at all stages of his criminal trial is not disputed. It is also clear that he may waive this right by his conduct, misconduct or his voluntary and deliberate absence from the trial without good cause. Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); Talton v. Warden, 171 Conn. 378, 384, 370 A.2d 965 (1976); 21 A.L.R. Fed., Continuing Trial-Absent Defendant, 906. The facts of this case do not rise to the level of those in Illinois v. Allen, supra, 343, where the eviction of disruptive defendants from the courtroom was approved, although it is clear that they approached triggering that response.

We have long held that the right to be present at a criminal trial may be lost by consent, waiver or misconduct. See, e.g., Talton v. Warden, supra. Waiver need not be express. It may be implied from the totality of acts or conduct of a defendant. Id.; see also State v. Parham, 174 Conn. 500, 505, 391 A.2d 148 (1978). The evidence clearly indicates that when the defendant announced his desire to return to his cell at the North Avenue jail, he unequivocally waived his right to attend jury selection, and the court properly allowed him to leave.

The defendant, however, urges us to require our trial courts to adopt, in these circumstances, the balancing test regarding suspension of trial enunciated in United States v. Tortora, 464 F.2d 1202, 1210 (2d Cir. 1972), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S. Ct. 571, 34 L. Ed. 2d 516 (1972). Essentially, that test required the trial court to weigh the likelihood that trial could soon take place with the defendant present, the administrative problems of scheduling, and the burden on the government and its witnesses. Id. We decline that invitation. The Tortora court did not set forth a géneral rule. It addressed only the exercise of the trial judge’s discretion in the extraordinary event that a defendant, after release on bail, fails to appear for trial. In this case, the defendant was not only in custody, but present in court when he voluntarily opted to leave the proceedings. Moreover, recognizing that deliberate absence without sound reason “indicates nothing less than an intention to obstruct the orderly processes of justice,” the Court of Appeals in Tortura held that “[n]o defendant has a unilateral right to set the time or circumstances under which he will be tried.” Id., 1208.

Significantly, the defendant had counsel of his own choosing available to him for legal advice. State v. Carpenter, 541 S.W.2d 340, 343 (Mo. App. 1976). Beyond this, the trial judge attempted to explain the situation to him during a prolonged colloquy in which the defendant repeatedly interrupted and impeded the judge’s efforts to advise him. Neverthless, the court made clear that the trial was continuing, that the defendant was welcome to stay if he obeyed the court rules, and that he had the right to leave if he so desired. He chose to leave. More, the court took a lengthy recess, at the end of which it sent a sheriff to inquire of the defendant whether he was willing to return to the courtroom. He refused. It is difficult to fault the actions of the trial court.

Permitting a defendant unilaterally to prevent his case from going forward would give him the license to defy the law with impunity, and in the process, to paralyze the proceedings of courts and juries. People v. Sanchez, 65 N.Y.2d 436, 443-44, 492 N.Y.S.2d 577, 482 N.E.2d 56 (1985). “We cannot permit an accused to elect to pursue one course at the trial and then . . . to insist on appeal that the course which he rejected at the trial be reopened to him .... [T]he protection which could have been obtained was plainly waived .... The court only followed the course which he himself helped to chart . . . .” Johnson v. United States, 318 U.S. 189, 201, 63 S. Ct. 549, 87 L. Ed. 704 (1943).

If a defendant deliberately leaves the courtroom after his trial has begun, he forfeits his right to be present at trial. People v. Sanchez, supra. Having forfeited that right, he cannot be allowed to claim any advantage because of his absence. People v. Owens, 102 Ill. 2d 145, 157, 464 N.E.2d 252 (1984).

While we have not required the procedure of bringing the defendant personally before the court, advising him of his right to be present, and then permitting a knowing and intelligent waiver; Taitón v. Warden, supra, 384; we do believe that a defendant should be warned of the consequences of his failure to attend trial. We conclude, however, that it is sufficient if the trial court indicates to the defendant that the trial will continue in his absence. Under the circumstances of this case, the court did not abuse its discretion in permitting the voir dire examination to continue.

II

The defendant next argues that the trial court erred by failing to inquire into the defendant’s request for new counsel, and by failing to appoint new counsel.

The defendant had retained an attorney, Ernest LaFollette, as private counsel at his employer’s suggestion. LaFollette was subsequently granted special public defender status. His appearance for the defendant was filed October 18,1983, approximately one year prior to trial. He represented the defendant at a hearing on probable cause and subsequently filed motions for disclosure, supplemental disclosure, bond reduction, compliance, taking of a deposition, erasure, suppression and sequestration. It was not until October 10, 1984, almost one year later, when jury selection had begun, that the defendant first expressed dissatisfaction with his attorney.

We must distinguish between a substantial and timely request for new counsel pursued in good faith, and one made for insufficient cause on the eve or in the middle of trial. McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982); United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S. Ct. 1357, 35 L. Ed. 2d 587, reh. denied, 411 U.S. 941, 93 S. Ct. 1891, 36 L. Ed. 2d 404 (1973); State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986).

Initially, we note that a trial judge’s failure to inquire into the defendant’s request for new counsel where the defendant has already made known the reasons for his request is not error. McKee v. Harris, supra, 933; Brown v. United States, 264 F.2d 363, 369 (D.C. Cir. 1959) (Burger, J., concurring in part). There is no doubt that the defendant utilized fully his opportunity to air his representational grievances to the court.

There is no “unlimited opportunity to obtain alternate counsel.” State v. Watson, supra. It is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel. Id. Moreover, absent a factual record revealing an abuse of that discretion, the court’s failure to allow new counsel is not reversible error. Id.; El Idrissi v. El Idrissi, 173 Conn. 295, 302-303, 377 A.2d 330 (1977).

The defendant chose his own lawyer. The court granted him special public defender status. Indeed, he represented the defendant for approximately one year. He took part in a hearing on probable cause and filed a considerable number of pretrial motions. The record discloses no evidence of difficulty between counsel and client until the trial started. While jurors were being selected, the defendant claimed a difference of opinion with his lawyer over that selection.

Differences of opinion over trial strategy are not unknown, and do not necessarily compel the appointment of new counsel. Commonwealth v. Chew, 338 Pa. Super. 472, 479, 487 A.2d 1379 (1985). A request for substitution of counsel requires support by a substantial reason, and may not be used to achieve delay. State v. Beaulieu, 164 Conn. 620, 628-29, 325 A.2d 263 (1973). In United States v. Calabro, supra, 985-86, the court cited with approval the American Bar Association Project On Standards For Criminal Justice: “[A] defendant is entitled to make the ultimate decision only in regard to whether to plead guilty, whether to waive a jury, and whether to testify; ‘all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.’ ” Standards Relating to the Prosecution Function and the Defense Function, The Defense Function § 5.2 (1971).

A defendant has no “unbridled right to discharge counsel on the eve of trial. ... In order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.” (Emphasis in original.) United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S. Ct. 118, 21 L. Ed. 2d 111 (1968). The defendant gave no substantial reason for requiring new counsel. If anything, his own unreasonable conduct caused the conflict with counsel. In view of the history of their relationship, the prior activity of the defendant’s attorney on his behalf and the timing of the request, the court did not abuse its discretion in the manner in which it discharged its duty to the defendant regarding his right to representation. The court could have made further inquiry into the matter. Under the totality of the circumstances, however, the court acted well within its discretion. Because any problem was of the defendant’s own making, we conclude that the defendant is “in no position to complain of a situation for which he was intentionally and knowingly responsible.” Id., 210.

HI

Finally, the defendant claims the trial court erred in excluding certain ballistics evidence offered by the defendant as part of his case.

Trooper Marshall Robinson, the state’s ballistics expert, testified that the one hundred fifty-one pieces of lead shot removed from the victim's body were number 7V2 shot. He also examined shotgun wadding recovered from the victim’s chest, finding it consistent in size with the wadding used in twenty gauge cartridges. He testified that the wadding had been soaked in blood causing it to swell and expand.

Subsequently, the defendant placed Tina Marie Rosa on the stand and made an offer of proof that in mid-September, 1983, she had seen a gun, which she had difficulty describing, on the first floor premises of Benigno Torres Santiago. She admitted that the gun she saw was smaller than the gun the state alleged to be the murder weapon. The court refused to allow the evidence on the basis of lack of materiality.

The evidence relative to the weapon used by the defendant was overwhelming. After review of the record, this court cannot say that the admission of evidence that a smaller gun was seen in the first floor apartment two weeks before the shooting could have reasonably affected the jury verdict. The trial court did not abuse its discretion in its ruling.

Later, the defendant offered to produce evidence from Frank Generini, whom he sought to qualify as an expert, that the buckshot was 7V2 shot and that the wadding in question was too large for a twenty gauge shell, but that a sixteen gauge shell would be closer to what was found. The court rejected the proffered testimony on the ground of immateriality.

The size of the shot had already been demonstrated by the state’s expert. Repetition of this testimony by the defendant’s witness was, at best, cumulative; State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983); and of no particular relevance. The trial court did not abuse its discretion in refusing to admit it.

The offer regarding the size of the shotgun wadding came from a witness whose expertise was not established to the court’s satisfaction. Even though it may have been error to reject the evidence, its exclusion was clearly harmless in view of the strength of the prior testimony regarding the weapon in question and its identification as the murder weapon, as well as all the other evidence in the case.

There is no error.

In this opinion the other justices concurred.

       “Mr. LaFollette [Defense counsel]: Your Honor, the problem is that my client is—wants me to reject everybody and I have to pick somebody.”

       The defendant also complained about questions asked by the assistant state’s attorney during voir dire, expressed displeasure with the towns in which the jurors resided as well as with his counsel’s desire to accept certain jurors, and complained of the length of time he had spent in jail pending trial, as well as of his general unhappiness with the court’s treatment of him.

       The defendant interrupted the trial judge on ten different occasions while the judge was attempting to explain the defendant’s situation to him.

       On October 10,1984, the court indicated that, “in the event [the defendant] had not voluntarily removed himself from the courtroom it would have been necessary for the court to remove him pursuant to [Practice Book] Section 892 in that it was obviously impossible for us to continue in anything approaching an orderly manner.”