author: Peters, C. J.

text:
    Convalescent Center of Bloomfield, Inc., et al. v. Department of Income Maintenance
    (13311)
    Peters, C. J., Healey, Shea, Callahan and Santaniello, Js.

      Argued May 6
    decision released July 5, 1988

      Kenneth A. Graham, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      Lewis K. Wise, with whom, on the brief, was Kenneth A. Zitter, for the appellees (plaintiffs).
   Peters, C. J.

The central issue in this appeal is whether a litigant is collaterally estopped from rearguing an issue that was adversely decided in an administrative proceeding not subject to judicial review. The plaintiffs, Convalescent Center of Bloomfield, Inc., and Maple View Manor, Inc., brought an administrative action pursuant to General Statutes § 17-314 to contest the manner in which the defendant, the department of income maintenance, had calculated their entitlement to rental reimbursement for Medicaid patients. The defendant disallowed this action as an impermissible relitigation of similar claims that the plaintiffs had previously pursued with regard to their Medicare patients. An appeal from the defendant’s decision was sustained by the trial court, which held that the Medicare ruling could not be given preclusive effect because that ruling, involving an amount less than $10,000, was afforded no judicial review under applicable federal law. The defendant appealed to the Appellate Court, and we transferred the case here. We find no error.

There is no dispute about the relevant facts. The plaintiffs operate nursing homes that are provider participants both in the Title XVIII Medicare program, administered by the United States department of health and human services, and the Title XIX Medicaid program, administered by the Connecticut department of income maintenance. The plaintiffs contend that, as a result of certain stock transfers in 1976, they became entitled to rental reimbursements for payments made to allegedly unrelated realty companies. Both the federal Medicare and the state Medicaid agencies have rejected this contention, and have limited the plaintiffs’ reimbursements, in accordance with the related party principle, to the actual costs incurred by the related organization.

The plaintiffs elected to pursue this disagreement by first seeking relief with regard to their Medicare reimbursements. Disallowance of their claims for reimbursement of rental expenses was upheld by a Medicare intermediary hearing panel and then by the Health Care Financing Administration (HCFA) of the United States department of health and human services. Because the amount in controversy was less than $10,000, the plaintiffs had no opportunity to seek judicial review of the Medicare decision. See 42 U.S.C. § 1395oo (a) (l).

After they had exhausted their federal Medicare remedies, the plaintiffs requested a rehearing on their Medicaid reimbursements for their rental expenses. The defendant refused to consider the merits of the plaintiffs’ claim, ruling instead that the plaintiffs were collaterally estopped from pursuing a Medicaid rate appeal because of the HCFA decision rendered against them in their Medicare rate appeal.

The trial court upheld the plaintiffs’ appeal from the defendant’s decision and remanded for an administrative hearing on the merits. The court concluded that collateral estoppel was inappropriate in light of the absence of an opportunity for judicial review of the HCFA decision. The validity of this conclusion is the only issue that the defendant has raised in its appeal.

I

Before we reach the collateral estoppel issue, we must decide whether this appeal is properly here. Because the trial court ordered a remand of this case for further administrative proceedings, we must inquire into the possibility that there has not as yet been a final judgment. “Under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., further appellate review of superior court rulings on administrative appeals is limited to cases in which the Superior Court has rendered a final judgment. General Statutes § 4-184. That statutory provision accords with the general proposition that, except in special cases, such as appeals upon reservations; State v. Sanabria, 192 Conn. 671, 681-85, 474 A.2d 760 (1984); or upon certification pursuant to General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984); the jurisdiction of this court is restricted to appeals from judgments that are final. General Statutes § 52-263; Practice Book § 3000 (now § 4000); Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, 520 A.2d 605 (1987); Doublewal Corporation v. Toffolon, 195 Conn. 384, 388-89, 488 A.2d 444 (1985).” Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 408-409, 521 A.2d 566 (1987).

In Schieffelin & Co., we held that administrative appeals are governed by the rule of State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), which permits the immediate appeal of interlocutory orders only “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31. Because a trial court judgment that orders further administrative proceedings has not “terminate[d] a separate and distinct proceeding,” the operative question is “whether the trial court’s order ‘so concludes the rights of the parties that further proceedings cannot affect them.’ ” Schieffelin & Co. v. Department of Liquor Control, supra, 409-10.

In resolving that question in Schieffelin & Co. v. Department of Liquor Control, supra, 410, we found it helpful to inquire into whether the administrative ruling “is in some fashion incomplete and therefore not ripe for final adjudication.” Schieffelin & Co. involved an attempt by the plaintiff to terminate liquor distributorships, in accordance with the requirements of General Statutes § 30-17 (a) (2) (B), by sending written notices setting forth “just and sufficient cause.” The administrative agency had denied the plaintiff relief on the ground that its notice was procedurally inadequate, without determining whether the plaintiff had sustained its burden of establishing good cause for the terminations. The trial court, sustaining the plaintiff’s appeal with regard to the procedural adequacy of its notice, remanded for administrative adjudication of the issue of good cause. We held that, in the absence of a complete adjudication of the plaintiff’s right to terminate the distributorships, the trial court’s interlocutory ruling was not an immediately appealable final judgment. Id., 411-12.

Schieffelin & Co. distinguished the administrative ruling that “is in some fashion incomplete”; id., 410; from one involving a final resolution of an issue that is ripe for appellate judicial review. For the latter category, we relied on Watson v. Howard, 138 Conn. 464, 469, 86 A.2d 67 (1952), which concluded that the trial court had rendered a final judgment when it ordered a new administrative hearing because of illegal procedures in the prior administrative adjudication. We also cited Santos v. Publix Theatres Corporation, 108 Conn. 159, 161, 142 A. 745 (1928), which held that appeals could immediately be taken from trial court judgments concerning awards of compensation, whether or not such judgments involved remands for further action by the compensation commissioner.

In the circumstances of the present case, we view the issue of collateral estoppel as ripe for immediate appellate review. Further proceedings on the substantive merits of the plaintiffs’ claim for rental reimbursement cannot affect the rights of the parties with respect to collateral estoppel. Indeed, to postpone appellate review and to require further exhaustion of administrative remedies would defeat the very purpose that collateral estoppel is intended to serve. “[T]he basic proposition . . . has always been essentially the same: A party should not be allowed to relitigate a matter that it already had opportunity to litigate.” F. James & G. Hazard, Civil Procedure (3d Ed. 1985) p. 589. If the defendant is correct that the plaintiffs are precluded from relitigating their entitlement to reimbursement, it would be unfair to require the defendant to expend its resources to defeat the plaintiffs’ claims on the merits. We have held an interlocutory order to be final for purposes of appeal if it involves a claimed right “ ‘the legal and practical value of which would be destroyed if it were not vindicated before trial.’ ” State v. Powell, 186 Conn. 547, 553, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982), quoting United States v. MacDonald, 435 U.S. 850, 860, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978); State v. Curcio, supra, 34. In this respect, the defense of collateral estoppel is a civil law analogue to the criminal law’s defense of double jeopardy, because both invoke the right not to have to go to trial on the merits. Like the case of a denial of a criminal defendant’s colorable double jeopardy claim, where immediate appealability is well established; State v. Curcio, supra; State v. Moeller, 178 Conn. 67, 72, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979); the present judgment denying the defendant’s claim of collateral estoppel is a final judgment.

II

Whether access to judicial review is a necessary precondition to administrative collateral estoppel is a matter of first impression. As a general proposition, the governing principle is that administrative adjudications have a preclusive effect when “the parties have had an adequate opportunity to litigate.” United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1965). That standard was met, in Utah Construction & Mining Co., because “the factual disputes resolved were clearly relevant to issues properly before [the administrative agency], and both parties had a full and fair opportunity to argue their version of the facts and an opportunity to seek court review of any adverse findings.” (Emphasis added.) Id. Subsequent cases that have relied on Utah Construction & Mining Co. to apply the doctrines of collateral estoppel and res judicata to the decisions of administrative agencies have involved parties who in fact had access to judicial review. See, e.g., University of Tennessee v. Elliott, 478 U.S. 788, 106 S. Ct. 3220, 3227, 92 L. Ed. 2d 635 (1986); Kremer v. Chemical Construction Corporation, 456 U.S. 461, 480-84, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982); Kirkland v. Peekskill, 828 F.2d 104, 109 (2d Cir. 1987); Yancy v. McDevitt, 802 F.2d 1025, 1030 n.3 (8th Cir. 1986); Plaine v. McCabe, 790 F.2d 742, 749 (9th Cir. 1986); Board of Trustees v. Universal Enterprises, Inc., 751 F.2d 1177, 1183 (11th Cir. 1985); Bowen v. United States, 570 F.2d 1311, 1315, 1322 (7th Cir. 1978); Painters District Council No. 38 v. Edgewood Contracting Co., 416 F.2d 1081, 1083-84 (5th Cir. 1969); Smith v. Nolan, 648 F. Sup. 972, 974-75 (N.D. Ill. 1986); Parker v. National Corporation for Housing Partnerships, 619 F. Sup. 1061, 1066 (D.D.C. 1985); Weed v. East Texas Motor Freight Lines, Inc., 592 F. Sup. 713, 717 (N.D. Tex. 1983); Snow v. Nevada Department of Prisons, 543 F. Sup. 752, 756 (D. Nev. 1982); Gear v. Des Moines, 514 F. Sup. 1218, 1221 (S.D. Iowa 1981); Zaika v. Del E. Webb Corporation, 508 F. Sup. 1005, 1009 (D. Nev. 1981); Moore v. Allied Chemical Corporation, 480 F. Sup. 377, 383 (E.D. Va. 1979); Cunegin v. Zayre Department Store, 437 F. Sup. 100, 103 (E.D. Wis. 1977); Campbell v. Superior Court, 18 Ariz. App. 287, 290, 501 P.2d 463 (1972); Umberfield v. School District No. 11, 185 Colo. 165, 169-70, 522 P.2d 730 (1974); Pullar v. UpJohn Health Care Services, Inc., 21 Ohio App. 3d 288, 291-92, 488 N.E.2d 486 (1984). In these cases, courts have assigned varied significance to the availability of judicial review as an element of “an adequate opportunity to litigate,” but were not faced with deciding the consequences of its unavailability as a matter of law. Presumably this indeterminacy in the case law reflects the reality that some form of judicial review has come to be the rule for almost all administrative adjudications.

The Restatement of Judgments mirrors the indeterminacy of the prevailing case law. The most directly relevant section is § 83, which provides, in the black letter, that “a valid and final adjudicative determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court.” 2 Restatement (Second), Judgments (1982) § 83 (1), p. 266. Since judicial determinations do not give rise to collateral estoppel, under § 28 (1) of the Restatement, if “[t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action”; (emphasis added) 1 Restatement (Second), supra, p. 273; it is plausible to read the same qualification into § 83. The official commentary to § 83 is, however, more ambivalent. Comment (a) states, categorically, that “[i]t is not necessary that the administrative adjudication have been reviewed and affirmed by a court.” 2 Restatement (Second), supra, p. 268. That comment may be reconciled with § 28 (1) by observing that the issue is not judicial review and affirmance as a matter of fact, but access to judicial review as a matter of law. Comment (c) to § 83 further muddies the waters in its discussion of those procedural rights that “may be regarded as essential prerequisites of conclusiveness.” 2 Restatement (Second), supra, p. 271. In that context, “[t]he right to obtain judicial review may be regarded as of . . . importance, particularly review of questions of subject matter jurisdiction, of the existence of substantial evidence to support the decision, and of the fundamental fairness of the proceeding. The fact that an agency adjudication was subjected to judicial review and was upheld is a factor that supports giving it preclusive effect.” 2 Restatement (Second), supra, p. 272. Perhaps the open-endedness of the official commentary to § 83 reflects the perception that judicial review plays a somewhat different role with respect to administrative adjudication than it does in the context of other litigation. On balance, however, we view the Restatement provisions, in their entirety, as casting at least severe doubt on the propriety of attaching preclusive effect to an administrative adjudication that, as a matter of law, permits no judicial review of any kind. See also IB J. Moore, Federal Practice (1984) § 0.416 [5].

The defendant maintains that Connecticut law has established that the availability of judicial review is not an absolute prerequisite to collateral estoppel in the analogous context of arbitration awards. The defendant reminds us that in Corey v. Avco-Lycoming Division, 163 Conn. 309, 318, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973), we declared that “a decision of an administrative board, acting in a duly authorized judicial capacity, is a prior decision within the rule of res judicata.” We agree with the defendant that Corey established the principle that an administrative adjudication may give rise to res judicata or collateral estoppel. For two independent reasons, we do not, however, agree that Corey decided that judicial review is irrelevant to administrative collateral estoppel.

We can draw only limited guidance from Corey with regard to the significance of judicial review because the arbitration decision to which Corey gave preclusive effect was not a decision entirely outside of the realm of judicial oversight. While judicial scrutiny of arbitral determinations is severely limited by the terms of General Statutes § 52-418; East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 650-56, 539 A.2d 125 (1988); O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 145-48, 523 A.2d 1271 (1987); it is not entirely nonexistent. See, e.g., Stratford v. Local 134, IFPTE, 201 Conn. 577, 585-86, 519 A.2d 1 (1986).

Even more important, the limited judicial scrutiny of arbitral awards finds its justification in the fact that arbitration is ordinarily a creature of contract. “Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator’s powers, the parties are generally bound by the resulting award. . . . Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings.” (Citations omitted.) O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 145. We have indicated that more extensive judicial review may well be appropriate for an arbitral award that stems from arbitration made compulsory by statute. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 187-88, 530 A.2d 171 (1987); Stratford v. Local 134, IFPTE, supra, 585; Carofano v. Bridgeport, 196 Conn. 623, 637-38, 495 A.2d 1011 (1985).

In this case, the plaintiffs had no choice about the administrative route that they were required to pursue in order to obtain review of their claims for Medicare rental reimbursement. That route afforded them no judicial review of any sort. Further, that route was compulsory with respect to Medicare, even though the plaintiffs had other alternatives for pursuit of their Medicaid claims; we do not agree with the defendant that this route became less compulsory because the plaintiffs might have elected first to pursue their Medicaid claims, for which judicial review is available. Finally, despite contrary intimations by the defendant, the record contains no findings that the plaintiffs were acting in bad faith in electing to litigate their Medicare claims in advance of their Medicaid claims. Viewing these circumstances in their totality, we conclude that the analogy from arbitration suggests that the adverse Medicare decision does not collaterally estop the plaintiffs from a full review of their Medicaid claim.

The defendant maintains that we should nonetheless preclude the plaintiffs from relitigating their rental reimbursement claims because the Medicare hearing, apart from the unavailability of judicial review, met the requirements of due process. The defendant reminds us that the plaintiffs have not alleged that the HCFA decision is void for lack of subject matter jurisdiction, was not based on substantial evidence or violated any procedural requirements of fundamental fairness. In effect, the defendant maintains that unless the plaintiffs are prepared to mount a collateral attack on the validity of the HCFA decision, they are collaterally estopped from relitigating the issues therein determined. We are not persuaded that this is a trade-off that serves the interests of jurisprudence.

Collateral attacks on judgments are disfavored. Department of Health Services v. CHRO, 198 Conn. 479, 487-89, 503 A.2d 1151 (1986); Cologne v. Westfarms Associates, 197 Conn. 141, 147, 496 A.2d 476 (1985); Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). Unless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs in the tribunal’s conclusive decision. Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297-98, 93 A.2d 143 (1952). A collateral attack on a judgment is a procedurally impermissible substitute for an appeal. Ames v. Sears, Roebuck & Co., 206 Conn. 16, 23-25, 536 A.2d 563 (1988); Lashgari v. Lashgari, 197 Conn. 189, 200-201, 496 A.2d 491 (1985); Morabito v. Wachsman, 191 Conn. 92, 99, 463 A.2d 593 (1983); Glemboski v. Glemboski, 184 Conn. 602, 606, 440 A.2d 242 (1981); Nikitiuk v. Pishtey, 153 Conn. 545, 551-52, 219 A.2d 225 (1966). Furthermore, principles of comity impose additional constraints on state court modification of federal adjudicatory proceedings. Gnutti v. Heintz, 206 Conn. 628, 634-36, 539 A.2d 118 (1988); Santoro v. Miklus, 199 Conn. 179, 189-90, 506 A.2d 549 (1986).

For these reasons, we conclude that it would be inappropriate to denominate a judgment as conclusive for collateral estoppel purposes and yet to invite collateral attack on the merits of such a conclusive judgment. The recurrent theme in our collateral attack cases is that the availability of an appeal is a significant aspect of the conclusiveness of a judgment. We are persuaded that, without the availability of judicial review, neither the decision of an administrative agency nor that of a court is ordinarily entitled to be accorded preclusive effect in further litigation. We do not need to decide today what forms of judicial review may suffice to provide the needed judicial scrutiny of administrative adjudications, or whether preadjudication waiver may dispense with the need for access to judicial review. See, e.g., Orselet v. DeMatteo, 206 Conn. 542, 539 A.2d 95 (1988). The circumstances of the present case persuade us, as they did the trial court, that the absence of judicial review of the plaintiffs’ Medicare claims significantly undermined the conclusiveness of that administrative adjudication and the plaintiffs therefore are not collaterally estopped from pursuing their Medicaid claims.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 17-314 provides in relevant part: “rates of payment TO CHRONIC AND CONVALESCENT HOSPITALS, REST HOMES, HOMES FOR THE AGED AND RESIDENTIAL FACILITIES FOR THE CARE OF THE MENTALLY RETARDED. REGULATIONS. RECOVERY OF EXCESS PAYMENTS, (a) The rates to be paid by or for persons aided or cared for by the state or any town in this state to licensed chronic and convalescent hospitals, rest homes with nursing supervision and to licensed homes for the aged, as defined by section 19a-490, and to residential facilities for the mentally retarded which are licensed pursuant to section 19a-467 and certified to participate in the Title XIX Medicaid program as intermediate care facilities for the mentally retarded, for room, board and services specified in licensing regulations issued by the licensing agency shall be determined annually, except as otherwise provided in this subsection, after a public hearing, by the commissioner of income maintenance, to be effective July first of each year except as otherwise provided in this subsection. Such rates shall be determined on a basis of a reasonable payment for such necessary services, which basis shall take into account as a factor the costs of such services. Cost of such services shall include (1) reasonable costs mandated by collective bargaining agreements with certified collective bargaining agents or other agreements between the employer and employees, provided ‘employees’ shall not include persons employed as managers or chief administrators or required to be licensed as nursing home administrators, and (2) compensation for services rendered by proprietors at prevailing wage rates, as determined by application of principles of accounting as prescribed by said commissioner. All such facilities shall report on a fiscal year basis ending on the thirtieth day of September. For the cost reporting year commencing October 1,1985, and for subsequent cost reporting years, facilities shall report the cost of using the services of any nursing pool employee by separating said cost into two categories, the portion of the cost equal to the salary of the employee for whom the nursing pool employee is substituting shall be considered a nursing cost and any cost in excess of such salary shall be further divided so that seventy-five per cent of the excess cost shall be considered an administrative or general cost and twenty-five per cent of the excess cost shall be considered a nursing cost, provided if the total nursing pool costs of a facility for any cost year are equal to or exceed fifteen per cent of the total nursing expenditures of the facility for such cost year, no portion of nursing pool costs in excess of fifteen per cent shall be classified as administrative or general costs. The commissioner, in determining such rates, shall also take into account the classification of patients or boarders according to special care requirements or classification of the facility according to such factors as facilities and services and such other factors as he deems reasonable, including anticipated fluctuations in the cost of providing such services. The commissioner may establish a separate rate for a facility or a portion of a facility for traumatic brain injury patients who require extensive care but not acute general hospital care. Such separate rate shall reflect the special care requirements of such patients. If changes in federal or state laws, regulations or standards adopted subsequent to June 30,1985, result in increased costs or expenditures, the commissioner shall adjust rates and provide payment for any such increased reasonable costs or expenditures within a reasonable period of time retroactive to the date of enforcement. Nothing in this section shall be construed to require the department of income maintenance to adjust rates and provide payment for any increases in costs resulting from an inspection of a facility by the department of health services. Such assistance as the commissioner requires from other state agencies or departments in determining rates shall be made available to him at his request. Payment of the rates established hereunder shall be conditioned on the establishment by such facilities of admissions procedures which conform with this section, section 19a-533 and all other applicable provisions of the law and the provision of equality of treatment to all persons in such facilities. The established rates shall be the maximum amount chargeable by such facilities for care of such beneficiaries, and the acceptance by or on behalf of any such facility of any additional compensation for care of any such beneficiary from any other person or source shall constitute the offense of aiding a beneficiary to obtain aid to which he is not entitled and shall be punishable in the same manner as is provided in subsection (b) of section 17-83L”

       The Medicare claim of the named plaintiff amounted only to $5081 and that of Maple View Manor, Inc., amounted only to $2899.

       “[42 U.S.C.] § 139500 PROVIDER REIMBURSEMENT REVIEW BOARD
      “(a) Establishment
      “Any provider of services which has filed a required cost report within the time specified in regulations may obtain a hearing with respect to such cost report by a Provider Reimbursement Review Board (hereinafter referred to as the ‘Board’) which shall be established by the Secretary in accordance with subsection (h) of this section, if—
      “(1) such provider—
      “(A) is dissatisfied with a final determination of the organization serving as its fiscal intermediary pursuant to section 1395h of this title as to the amount of total program reimbursement due the provider for the items and services furnished to individuals for which payment may be made under this subchapter for the period covered by such report,
      “(B) has not received such final determination from such intermediary on a timely basis after filing such report, where such report complied with the rules and regulations of the Secretary relating to such report, or
      “(C) has not received such final determination on a timely basis after filing a supplementary cost report, where such cost report did not so comply and such supplementary cost report did so comply,
      “(2) the amount in controversy is $10,000 or more, and
      “(3) such provider files a request for a hearing within 180 days after notice of the intermediary’s final determination under paragraph (1) (A) or with respect to appeals pursuant to paragraph (1) (B) or (C), within 180 days after notice of such determination would have been received if such determination had been made on a timely basis.”

       This distinction is emphasized in comment (a) to § 28 of the Restatement of Judgments. Comment (a) starts out by noting that “the availability of review for the correction of errors has become critical to the application of preclusion doctrine.” It goes on to state that the unavailability of judicial review has significance “only when review is precluded as a matter of law . . . [and not] where review is available but is not sought.” 1 Restatement (Second), Judgments (1982) § 28, comment (a), p. 274.

       Judicial review of adverse determinations with respect to Medicaid is provided in this state by General Statutes § 4-183, which provides: “appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”

       The holding in Johnson Co. v. Wharton, 152 U.S. 252, 256-57, 14 S. Ct. 608, 38 L. Ed. 429 (1894), upon which the defendant relied in oral argument, does not persuade us to the contrary. Subsequent United States Supreme Court cases have not relied on Johnson Co. and, in any case, it does not bind us as a matter of Connecticut law.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. Jerome Monteeth
    (13316)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued April 15
    decision released July 5, 1988

      William M. Bloss, special public defender, with whom, on the brief, was William F. Dow III, special public defender, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, was Roland Fasano, assistant state’s attorney, for the appellee (state).
   Glass, J.

The defendant, Jerome Monteeth, was charged in a substitute information with one count of first degree robbery in violation of General Statutes § 53a-134 (a) (4), and one count of criminal attempt to commit first degree robbery in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (4). After a trial to a jury, the defendant was found guilty of both charges. The defendant was sentenced by the trial court to a total effective sentence of fifteen years imprisonment, suspended after eleven years, with five years probation. The defendant appeals from the judgment of conviction.

On appeal, the defendant raises four issues, claiming that: (1) he was denied a fair trial because the procedures used to obtain his identification were unnecessarily suggestive and led to a reasonable likelihood of mistaken identification; (2) the trial court erred in refusing to permit cross-examination on the issues of the weaknesses in eyewitness identification in general, and in this case in particular; (3) the state failed to make a timely disclosure of certain exculpatory material; and (4) the destruction of notes containing exculpatory material mandated a dismissal or the striking of the testimony of Officer Joseph Redente and William Reynolds. We find no error.

The evidence adduced during the suppression hearing and jury trial reveals the following facts: On December 9,1986, the Reverend William Reynolds was conducting a bible study class at the Faith Refuge Church of Christ in New Haven. Reynolds’ wife, Lorene Reynolds, and church member Sara McFadden were present. At approximately 8:30 p.m., William Reynolds responded to a knock at the back door of the church. At the door, he encountered the defendant, who asked him to step outside, and then pulled a gun from his clothing and demanded money. Reynolds gave the defendant two one dollar bills and some loose change. He recognized the defendant as having come to the church with another man the previous week during the weekly bible class held on Tuesday evenings.

Lorene Reynolds opened the door to see why her husband had not returned inside the church. The defendant ordered her to get back inside the building. She went inside and told McFadden that a man with a gun was outside the church. The defendant then attempted to enter the Reynolds’ car that was parked in front of the church. Lorene Reynolds again opened the church door, and asked the defendant if he wanted money. The defendant followed her inside, where he saw McFadden run away from him and briefly pursued her. He then returned to where the Reynoldses were standing. Lorene Reynolds offered the defendant a check, which he refused, and then gave the defendant the keys to their car. After the defendant drove away, the Reynoldses called the police.

Officer Redente arrived at the church and was given a description of the defendant by William Reynolds, which he relayed to the police dispatcher for broadcast. The robber was described as: a black man in his twenties, about six feet, two inches tall, with a heavy build, dark skin, a mustache and a medium afro, wearing a blue jacket and blue jeans. Approximately twenty minutes later, the police found the Reynolds’ car abandoned on a nearby street. While the police were searching the car they noticed a man who fit the description of the perpetrator walking down the street toward the police and the Reynolds’ car. The police followed the man for a few minutes and then stopped him, frisked him, and placed him in the patrol car. Several minutes later William Reynolds was brought to the scene where he identified the defendant as the perpetrator.

The police then took William Reynolds to the church to pick up his wife so they could make formal statements at police headquarters. Reynolds told his wife that the police had caught the perpetrator. At the station Lorene Reynolds identified the defendant as the perpetrator in a one person show-up. The police took formal taped statements from the Reynoldses separately.

Approximately five months later, the Reynoldses individually identified the defendant in a line-up that had been requested by the defendant. Prior to trial, on motion by the defendant, the trial court held a hearing to determine whether to suppress any in or out-of-court identifications of the defendant by the Reynoldses. The defendant’s motions were denied. Both William and Lorene Reynolds identified the defendant as the perpetrator during the trial.

I

The defendant’s first claim is that the trial court erred in failing to suppress the out-of-court identification of the defendant by the witness Lorene Reynolds. The defendant contends that the identification resulted from unnecessarily suggestive police procedures, that it was unreliable, and that its admission violated his constitutional right to due process of law.

It is well settled that “ ‘ “[i]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ ” ’ ” State v. Mayette, 204 Conn. 571, 581, 529 A.2d 673 (1987); State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311 (1987); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). The state has conceded that the station house show-up where Lorene Reynolds identified the defendant as the robber was unnecessarily suggestive. The state argues, however, that an unnecessarily suggestive identification procedure may produce an identification that is sufficiently reliable to be admitted into evidence.

Thus, our inquiry is directed to the reliability of Lorene Reynolds’ identification. “ ‘In determining whether an identification is reliable in the “totality of circumstances,” the corruptive influence of the suggestive procedure is weighed against “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) ....’” State v. Mayette, supra, 583.

Under the totality of the circumstances, Lorene Reynolds’ identification of the defendant was reliable. First, she had three opportunities to view the defendant. She came to the door twice, and on the latter occasion asked him if he wanted money, and he followed her inside the church office where she offered to write him a check. She then gave him the keys to the Reynolds’ car.

The second factor is Lorene Reynolds’ degree of attention. Although she conceded in cross-examination that her attention was not focused upon the defendant during all three of the opportunities she had to view him, she did testify that she “saw him real good,” when she first viewed him at the door.

The accuracy of the witness’ prior description is the third Brathwaite factor. Lorene Reynolds’ tape recorded statement that she gave at police headquarters described the defendant as short, with a clear, smooth complexion, loose curly hair and big eyes. She stated that he was wearing a black jacket and brown pants, and noted that at the time she viewed him in the show-up, he was wearing blue pants and a blue jacket. She also stated that she recognized him as someone she had seen previously at the church. Although this description is not entirely consistent with that given by her husband, these discrepancies implicate the weight, not the admissibility of the evidence. State v. Ledbetter, 185 Conn. 607, 615, 441 A.2d 595 (1981).

The next factor is the level of certainty demonstrated at the confrontation. In this case, Lorene Reynolds viewed the defendant for one minute and then stated that he was the robber. The defendant argues that this time span indicates some uncertainty in her identification. We are not persuaded by this argument. The fact that she looked at the defendant for one minute prior to declaring that he was the robber does not necessarily mean that she was uncertain about her identification. Rather, it is equally plausible that she wanted to examine the defendant carefully before accusing him of committing a criminal act.

Finally, the short span of time between the crime and the show-up supports the reliability of the identification. These factors support the trial court’s finding that the identification of the defendant by Lorene Reynolds was reliable.

We must, however, weigh these factors against the corrupting effect of the admittedly suggestive identification. There is no question that a one man show-up was unnecessary under these circumstances, and that Lorene Reynolds may have been influenced by her husband’s statement, made in the car enroute to the police station, that the police had “caught the guy” who had robbed them. Nonetheless, we are persuaded that the identification was properly admitted into evidence. Lorene Reynolds never indicated any uncertainty in her identification of the defendant. For example, she noted that the defendant was wearing different clothes in the show-up than those he had been wearing during the robbery, indicating that she was able to make careful observations of the defendant. The trial court could reasonably have found that the influence of the show-up and her husband’s statement to her was minimal and that the identification procedure did not result in “a very substantial likelihood of irreparable misidentification.” State v. Ramsundar, supra, 13. We conclude that the trial court did not err in denying the defendant’s motion to suppress the out-of-court identification by Lorene Reynolds.

II

The defendant’s second claim is that the trial court’s refusal to permit the cross-examination of two witnesses violated his sixth amendment right to confrontation and fourteenth amendment right to due process. Specifically, he claims that the trial court erred in refusing to permit the cross-examination of William Reynolds and Officer Robert Lanza, an officer involved in the investigation, on the issue of the identification of the defendant. We disagree.

“The sixth amendment to the United States constitution confers upon a defendant the right to be confronted with the witnesses against him. A significant aspect of the right of confrontation is the cross-examination of adverse witnesses ‘ “to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the [witnesses].” ’ State v. George, 194 Conn. 361, 365, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 768 (1985); Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Because the core value protected by the confrontation clause is the enhancement of the truth-seeking process; see State v. Jarzbek, 204 Conn. 683, 692-93, 529 A.2d 1245 (1987); ‘[c]ross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.’ State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982); State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979). Where reliability is not directly implicated, however, the scope of cross-examination is within the discretion of the trial court. State v. Vitale, 197 Conn. 396, 402-403, 497 A.2d 956 (1985); State v. Gaynor, 182 Conn. 501, 510-11, 438 A.2d 749 (1980).” State v. Weidenhof, 205 Conn. 262, 270-71, 533 A.2d 545 (1987).

With respect to the testimony of William Reynolds that was disallowed by the trial court, review of the transcript of his testimony indicates that the question objected to by the state, and sustained by the trial court, was later asked in virtually the same form and was answered by the witness. Thus, the evidence sought to be elicited was cumulative and the trial court did not err in sustaining the state’s objection.

The second limitation on cross-examination occurred during the testimony of Lanza, -with respect to questions regarding his training and experience in the area of eyewitness identifications. The trial court sustained the state’s objections on the ground that the questions had no probative value. We agree with the trial court that these questions did not relate to any facts in issue at the trial.

Except for the noted exceptions, the court permitted the defendant to cross-examine the two witnesses broadly regarding the identification of the defendant. We conclude that the trial court did not abuse its discretion in ruling as it did.

Ill

The defendant’s third claim is that he was prejudiced by the state’s failure timely to disclose certain exculpatory evidence. He argues that the disclosure of a six page typed statement of Lorene Reynolds, after she had testified at the suppression hearing, but prior to the trial, violated the principles of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and constituted reversible error.

We examine this claim in the context of these additional facts: On the evening of the robbery, Lorene Reynolds gave a taped statement to the police, wherein she described the perpetrator of the robbery. At the suppression hearing, she was questioned regarding her identification of the defendant. The trial commenced on May 4,1987, with the calling of the state’s first witness, William Reynolds. Late in the day on May 4, the defendant was furnished with a copy of the statement made by Lorene Reynolds to the police on the night of the robbery. No proceedings were held on May 5. At the start of trial on May 6, the defendant moved for sanctions, pursuant to Practice Book § 747, on the ground that the statement contained exculpatory material and inconsistent statements and should have been disclosed earlier. The defendant requested that the suppression hearing be opened so that he could cross-examine Lorene Reynolds using the report, and requested that the case be dismissed or, alternatively, that the testimony of her and her husband be stricken from the record and that a one week continuance be granted to allow further preparation in light of the new material.

Following lengthy arguments by counsel, the trial court ruled that the defendant could open the suppression hearing and voir dire Lorene Reynolds prior to any in-court identification of the defendant by her. The trial court denied the defendant’s motion for a continuance, finding that he had received the statement on May 4, a Monday, and had had two days in which to consider how it would be used. After this ruling, the defendant conducted a voir dire examination of Lorene Reynolds regarding the inconsistencies between her statement to the police and her testimony at the original suppression hearing. No effort was made to open the cross-examination of William Reynolds, although the trial court ruled that the defendant was entitled to do so. The trial court again found that the identification was reliable and denied the motion to suppress. Finally, Lorene Reynolds testified at trial, and on cross-examination was questioned extensively regarding the statement she had made to the police. The statement was admitted into evidence as an exhibit and was read aloud to the jury.

The gravamen of the defendant’s claim is that he was prejudiced because he was unable to use Lorene Reynolds’ statement in interviewing witnesses and cross-examining witnesses. He claims error in the denial of his request for a continuance. The defendant characterizes the evidence in question as material falling within the purview of Brady v. Maryland, supra. Even assuming that this characterization is accurate, we find no error.

We have recently reiterated: “In Brady v. Maryland, supra, 87, the United States Supreme Court stated that ‘suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ Later, in Moore v. Illinois, 408 U.S 786, 794-95, 92 S. Ct. 2562, 33 L. Ed. 2d 706, reh. denied, 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155 (1972), the court stated: ‘[t]he heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.’ See State v. Green, 194 Conn. 258, 263, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). Impeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154-55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, supra, 87; United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir. 1986).

“In illuminating the standard of materiality that must be met, the United States Supreme Court said in United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), that ‘the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ See also State v. Pollitt, [199 Conn. 399, 412, 508 A.2d 1 (1986) (Pollitt i)]. Thereafter, in United States v. Agurs, supra, the court fashioned a two-tiered framework for determining materiality. With reference to evidence that the defense specifically requested, the standard was whether the evidence ‘might have affected the outcome of the trial.’. Id., 104. With reference to evidence requested generally or evidence not requested at all, the standard was that evidence was material if it ‘creates a reasonable doubt that did not otherwise exist.’ Id., 112. In United States v. Bagley, a divided United States Supreme Court, drawing on Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), reformulated the materiality standard. Justice Blackmun, writing for a plurality, opined that the Strickland formulation of the Agurs standard was ‘sufficiently flexible’ to encompass all three circumstances of prosecutorial failure to disclose evidence favorable to the defendant, i.e., the ‘no request,’ the ‘general request’ and the ‘specific request’ situations. United States v. Bagley, supra, 682. The Bagley standard of materiality is as follows: ‘The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ Id. Bagley thus adopted Strickland’s ‘reasonable probability’ standard to assess materiality for use in prosecutorial nondisclosure situations. Therefore, there is no need to determine whether the defendant’s request was specific because the standard for materiality would remain the same. Fairness, however, dictates that we recognize it as a specific request. See State v. Pollitt, supra, 408 n.8.” State v. Pollitt, 205 Conn. 132, 141-43, 531 A.2d 125 (1987) (Pollitt II).

Thus, examining the entire record we must determine whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id., 143. Because the defendant was given sufficient opportunity to utilize Lorene Reynolds’ statement in both the suppression hearing and at trial, and because any inconsistencies contained in the statement were fully drawn to the jury’s attention, we do not believe that if the defendant had received this statement at an earlier point in time, the outcome of the trial would have been different. The trial court did not abuse its discretion in refusing to grant a continuance.

IY

The defendant’s final claim is that the trial court erred in refusing to strike the testimony of Officer Joseph Redente and William Reynolds. Specifically, he claims that he was prejudiced by the destruction of written notes, taken by Redente, when interviewing Reynolds at the church on the night of the robbery.

Redente testified that he had taken notes of his initial conversation with Reynolds, and discarded them at the end of his shift on December 9, after using them to prepare a report regarding the robbery. At the trial, the defendant moved to strike the testimony of Reynolds and Redente for failure to preserve the notes. The trial court denied the motion. The defendant’s claim of prejudice relates to the discrepancies in the descriptions of the perpetrator of the crime, especially insofar as the length of hair is concerned.

“A defendant may, under some circumstances, obtain police officers’ records of an interview with a witness for purposes of cross-examination. Practice Book §§ 750, 752; State v. Mullings, 202 Conn. 1, 7, 519 A.2d 58 (1987); State v. Hinton, [196 Conn. 289, 299, 493 A.2d 836 (1985)]. Under Practice Book § 749, however, such disclosure is limited to the ‘statements’ of witnesses. State v. Hinton, supra, 300; State v. Myers, 193 Conn. 457, 470, 479 A.2d 199 (1984). Practice Book § 749 offers two alternate definitions of ‘statement’: ‘(1) A written statement made by a person and signed or otherwise adopted or approved by him; or (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.’ A police officer’s notes may be subject to disclosure to the defendant for use in cross-examining the interviewed witness, provided they meet either of § 749’s alternate definitions of ‘statement.’ They may also be discoverable to cross-examine the police officer if they are ‘signed or otherwise adopted’ by the officer. State v. Hinton, supra, 299-300; State v. Myers, supra; State v. Anonymous (83-FG■), 190 Conn. 715, 734, 463 A.2d 533 (1983).” State v. Williams, 203 Conn. 159, 180-81, 523 A.2d 1284 (1987).

The essence of the defendant’s argument is that Redente’s notes constitute exculpatory material to which he was entitled under Brady v. Maryland, supra. He claims that Redente’s field notes would have contained the exculpatory statements by William Reynolds that the suspect had hair much longer than the defendant’s hair. There is no evidence in the record, however, that indicates that Redente’s notes contained exculpatory material. Thus, the notes do not satisfy the Brady test, as discussed above. The defendant further claims that the state attempts to “cloud the issue” by contending that the notes destroyed by the police were not “statements” discoverable under Practice Book § 750 et seq. As made clear in Williams, however, an essential inquiry is whether the evidence constituted “statements.” This record does not support such a claim. There is no evidence to show that Reynolds signed or otherwise adopted the notes. Moreover, there is no evidence that the notes were a “substantially verbatim” account of the incident. State v. Williams, supra, 182.

There is no error.

In this opinion Shea, Covello and Hull, Js., concurred.

Arthur H. Healey, J., concurring. I join in the majority with one exception: I do not agree that the trial court properly admitted the identification testimony of Lorene Reynolds. I would rather conclude that the reliability of her identification of the defendant in the totality of the circumstances was not supported by the requisite factors set out in such cases as Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), Neil v. Biggers, 409 U.S. 188, 199-201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980), and State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987). Contrary to what the majority asserts, in my view, the inconsistencies in her identification, which included a highly impermissible show-up of the defendant, are such that they cannot in this case go to the weight of such evidence, but clearly to its admissibility. While the admission of Lorene Reynolds’ identification testimony accordingly violated the defendant’s due process rights; see State v. Theriault, supra; I conclude that its admission does not require a different result in the disposition of this appeal. This is so because the identification testimony of her husband, William Reynolds, which, in my opinion, is not at all drawn into question by Lorene Reynolds’ identification testimony, is fully independent of her testimony.

       General Statutes § 53a-134 (a) (4) provides in relevant part: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged . . . .”

       General Statutes § 53a-49 (a) (2) provides: “criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       Defense counsel asked William Reynolds: “Isn’t it possible, reverend, that your description of the person who robbed you today as you sit before our jury is influenced at least a little bit by the information you received since December 7th in viewing Mr. Monteeth? Isn’t that possible?” The state objected on the ground that the question had no probative value. Defense counsel then asked: “And would you also agree with me that under the trying circumstances of this case having seen someone that you have committed yourself to as being the perpetrator that there’s a possibility that the hair—time you has [sic] influenced what you’re telling the jury now?” Reynolds answered the question.

       The trial court sustained the state’s objections to the following questions: “And you know from your training and from your experience that eyewitness identifications in and of themselves are susceptible to problems, fair?”; “there have been occasions in your own department where you have a positive identification with a witness who’s [sic] sincere and certain and it turns out that the person was in custody so they could not possibly have committed a crime, fair?”

       With respect to the first question objected to by the state, Lanza was not qualified as an expert witness on the reliability of eyewitness identifications. Moreover, we have rejected the claim that a defendant is entitled to expert testimony on the issue of eyewitness identification. State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986). With respect to the second question objected to by the state, review of the record indicates that there was no evidence in this case that there had been a positive identification of a suspect who turned out to have been in police custody at the time the robbery occurred.

       “[Practice Book] Sec. 747. —sanctions for failure to comply
      “If the prosecuting authority fails to comply with Sec. 740, the judicial authority may, on motion of the defendant or on his own motion, grant appropriate relief, which may include one or more of the following:
      “(1) Requiring the prosecuting authority to comply;
      “(2) Granting the defendant additional time or a continuance;
      “(3) Relieving the defendant from making a disclosure required by Sec. 756, prohibiting the prosecuting authority from introducing specified evidence, or dismissing the charges; or
      “(4) Entering such other order as he deems proper.”

       I am aware that State v. Gordon, 185 Conn. 402, 420, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982), holds that harmless error analysis is not used “whenever the erroneous admission of an unnecessarily suggestive and unreliable identification has violated a defendant’s constitutional rights.” That case, however, concerned an unreliable identification by the victim, who was the sole source of identification evidence. Here, the unreliable identification is to be considered in the light of the untainted and reliable identification by William Reynolds, another eyewitness who had a better opportunity to view the defendant during the robbery and made the initial identification.


author: Callahan, J.

text:
    Adele N. Ellice, Executrix (Estate of Douglas V. Ellice), et al. v. INA Life Insurance Company of New York
    (13349)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued April 14
    decision released July 5, 1988

      David M. Reilly, for the appellant (plaintiff).

      Lawrence L. Connelli, for the appellee (defendant).
   Callahan, J.

Adele N. Ellice, individually and as executrix of the estate of her deceased husband, Douglas V. Ellice, instituted this action seeking to recover the proceeds of an accident insurance policy issued by the defendant, the INA Life Insurance Company of New York, to the plaintiffs decedent’s employer, Shear-son/American Express, Inc. The policy covered those persons listed on a schedule of insureds that included the plaintiff’s decedent. Specifically, the policy insured against loss “resulting directly and independently of all other causes from bodily injuries caused by accident occurring while this policy is in force as to such Insured.” The plaintiff alleged that the death of her decedent resulted from head injuries he sustained when he accidentally fell, after being startled, while ascending a stairway in his home at approximately 4 a.m. on October 20, 1982. The defendant, however, claimed that the death of the plaintiffs decedent resulted from an arrhythmia which caused his heart to stop, which then caused him to fall down the stairs. The defendant contended that the arrhythmia was brought about by the plaintiff’s decedent’s poor physical condition and preexisting heart disease.

A jury returned a verdict for the defendant and the court, thereafter, rendered judgment thereon. The plaintiff filed the instant appeal to the Appellate Court which appeal was then transferred to this court pursuant to Practice Book § 4023. On appeal the plaintiff argues that the trial court erred in: (1) granting the defendant’s oral motion in limine, to exclude from evidence the date and manner in which the plaintiffs decedent had fractured his left arm prior to the October 20, 1982 incident; and (2) failing to instruct the jury clearly and consistently with regard to the defendant’s liability under the policy in question.

I

The plaintiff first claims that the court erred in granting the defendant’s oral motion in limine, which ruling excluded certain evidence concerning the plaintiff’s decedent’s preexisting broken arm. She argues that the date and the details of the cause of the fractured left arm that were excluded were relevant to the following issues: (1) “the producing cause of a painful arm which rendered the plaintiff’s [decedent’s] ability to maintain balance and to withstand surprise in the middle of the night in his attempt to ascend the darkened stairway”; (2) “the defendant’s negating the causal relationship between the broken arm and any cause which would defeat recovery under the charge given”; (3) “[w]hy the plaintiff’s decedent was up at four o’clock in the morning and what medication he has been taking during those days”; and (4) “[t]he same relevance that any prior condition would have as to this case.” The plaintiff further argues that the exclusion of this evidence was prejudicial in that it raised suspicions in the jury’s mind because references to the date and cause of the broken left arm were excised from the plaintiff’s decedent’s hospital records. We disagree.

The following facts are relevant to this issue. On October 15, 1982, the plaintiff and her decedent were carrying a wheelchair down the basement stairs in their home. As they descended the stairway, the wheelchair slipped from the plaintiff’s hands and knocked the decedent to the cement floor of the basement. As a result, the plaintiff’s decedent fractured his left arm, which was later placed in a sling.

After the jury had been selected, the defendant orally moved in limine to exclude from evidence the date and cause of the plaintiff’s decedent’s fractured left arm. The defendant argued that such evidence was totally irrelevant because the plaintiff’s complaint limited the cause of the injuries and loss to the October 20, 1982 incident. In addition, the defendant asserted that such evidence had no probative value and was, in fact, prejudicial because it would confuse and mislead the jury, cause the jury to give attention to an accident that was not connected to the incident in question, and was not alleged to have caused the plaintiff’s decedent’s loss or injuries. After oral arguments by both counsel, the trial court granted the defendant’s motion in limine and ordered that related portions of the hospital records be excised. We find no error.

A

“The rules for determining the admissibility of evidence are well settled. The trial court has broad discretion to determine both the relevancy and remoteness of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987); State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); Turgeon v. Turgeon, 190 Conn. 269, 273, 460 A.2d 1260 (1983); Hughes v. Contemporary Mission, Inc., 180 Conn. 150, 153, 429 A.2d 827 (1980). Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters. State v. Fritz, supra, 167-68; State v. Boucino, supra; State v. Falcon, 196 Conn. 557, 566, 494 A.2d 1190 (1985). In considering the relevancy of evidence, we ask whether ‘it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. State v. Sharpe, [195 Conn. 651, 659, 491 A.2d 345 (1985)]; State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978).’ State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985). Because there is no precise and universal test of relevancy, however, the question must ultimately be addressed on a case-by-case basis in accordance with ‘ “the teachings of reason and judicial experience.”’ State v. Sharpe, supra, 659; Johnson v. Healy, 183 Conn. 514, 516, 440 A.2d 765 (1981); Hoadley v. University of Hartford, 176 Conn. 669, 672, 410 A.2d 472 (1979).” Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987); see also State v. Thomas, 205 Conn. 279, 283, 533 A.2d 553 (1987). Applying these principles to the case at hand we conclude that the trial court did not abuse its discretion in granting the defendant’s motion in limine.

At the outset, we note that the trial court’s ruling was very limited in scope and only prevented the plaintiff from introducing evidence to indicate that the plaintiffs decedent had fractured his left arm on October 15, 1982, while carrying a wheelchair down the basement stairs in his home. The court placed no limitation upon the plaintiff with regard to presenting evidence concerning any effect the decedent’s broken arm might have had on his fall on October 20. The court also allowed the plaintiff to testify that the fracture was a “fresh” injury and that it resulted from a previous fall. The only way in which the trial court restricted the plaintiff was that it did not allow testimony with regard to the details of the prior unrelated accident.

We find the trial court’s ruling appropriate: first, because the complaint specifically alleged that the injuries to the plaintiff’s decedent had resulted from the “accident on the 20th day of October, 1982,” and the plaintiff never sought to amend the complaint to broaden the cause of the injuries to include a prior incident or accident; and second, because the plaintiff offered no evidence to permit even a remote inference to be drawn that the two stairway incidents were in any way causally related. In fact, the uncontroverted evidence establishes otherwise. The plaintiff’s decedent fell on October 15,1982, because the wheelchair, which had slipped out of the plaintiff’s hands, had knocked him down the cellar stairs to the concrete floor. The October 20, 1982 incident, however, according to the claims of the parties, resulted either from the plaintiff’s decedent being startled or from a heart attack. We can discern no connection between the two incidents, nor has any been pointed out. Thus, we fail to see the relevancy of the date, the cause or other details of the October 15 accident to the incident in question.

Notwithstanding the plaintiff’s claims to the contrary, the trial court did not restrict the plaintiff’s ability to demonstrate: the plaintiff’s decedent’s physical and emotional condition prior to October 20,1982; the fact that he had a broken arm and that he had been taking a pain medication and a sleeping medication; and the effects that these factors may have had on his ability to maintain his balance and to ascend stairs. The trial court did not err by excluding other irrelevant evidence concerning the October 15, 1982 accident.

B

The plaintiff also claims that she was prejudiced by the trial court’s ruling on the defendant’s motion in limine by reason of the trial court’s order that excised the corresponding portions of the Yale-New Haven Hospital records relating to her decedent’s broken arm. The plaintiff argues that the excised portions raised suspicions in the jury’s mind because it was left in the dark about a “terribly mysterious event .... They said, ‘Oh, boy, what happened there.’ They might have said that maybe the plaintiff didn’t have sufficient proof to show what happened there.” We find this argument without merit. We have already concluded that the manner in which the plaintiff’s decedent fractured his left arm on October 15, 1982, had absolutely no relevance to the October 20, 1982 incident. In addition, a review of the Yale-New Haven Hospital records reveals that there were only five pages, out of approximately ninety pages, where either a word or single sentence was excised. Therefore, we are unable to discern any way in which the excised portions of the Yale-New Haven Hospital records could have adversely affected the jury or its deliberations to the prejudice of the plaintiff. The trial court did not err in ordering the references to the October 15,1982 accident of the plaintiff’s decedent to be excised.

II

The plaintiff next claims that the trial court erred by giving a confusing, misleading, erroneous and inconsistent charge to the jury regarding an insurer’s liability under a policy insuring against loss resulting “directly and independently of all other causes from bodily injuries caused by accident.” Specifically, the plaintiff claims that it was error to charge the jury that “the plaintiff must prove to you that there were no other causes contributing to [her decedent’s] death, irrespective of whether those causes were natural, were diseases, or were other conditions not a result of the alleged accident on October twentieth.” In addition, the plaintiff argues that it was error to charge that “the death must be caused directly or solely by accidental means independently of all other causes in which case the accident must be the sole cause of the insured’s event. Where disease or bodily infirmity is a concurrent proximate cause of death, recovery for the plaintiff is precluded.” The plaintiff contends that “[a] charge that the plaintiff could recover if she proved the accident was a ‘dominant’ cause of death would have been correct.” We disagree.

We begin by noting that a jury charge is to be considered from the standpoint of its effect on the jury in guiding them to a correct verdict. State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984). “A jury charge must be correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980).” State v. Hinckley, 198 Conn. 77, 88, 502 A.2d 388 (1985); see also State v. Vessichio, 197 Conn. 644, 650, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). A charge is not to be critically dissected for purposes of discovering possible inaccuracies; State v. Davis, 198 Conn. 680, 686, 504 A.2d 1372 (1986); State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); but rather, the initial charge and any supplemental charge are to be read as a whole. State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985); State v. Topciu, 183 Conn. 1, 6, 483 A.2d 803 (1981). “ ‘ “The ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.” ’ ” State v. Davis, supra.

Primarily, the plaintiff takes issue with the trial court’s charge as it relates to the following policy language: “directly and independently of all other causes from bodily injuries caused by accident.” In the past, this court has had occasion to interpret virtually the identical clause in a number of accidental death or bodily injury policies. In each instance, we have required the claimant under the policy to prove, by a preponderance of the evidence, that the insured was the victim of an accident and that the accident was the sole cause or sole proximate cause of the insured’s death or bodily injury, independently of all other causes. Where preexisting bodily disease or infirmity, independent of the accidental injury, concurred, cooperated or contributed to produce the resulting injury, death or loss, we have held that no liability exists under such policy language. See O’Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 28, 119 A.2d 329 (1955); O’Meara v. Columbian National Life Ins. Co., 119 Conn. 641, 644, 178 A. 357 (1935); Rinaldi v. Prudential Ins. Co., 118 Conn. 419, 424, 172 A. 777 (1934); Stanton v. Travelers Ins. Co., 83 Conn. 708, 710, 713, 78 A. 317 (1910). This court has also recognized, however, that the mere presence of a preexisting illness or disease does not, in and of itself, automatically preclude a recovery under the type of policy in question. Rinaldi v. Prudential Ins. Co., supra, 425; Stanton v. Travelers Ins. Co., supra; see also 43 Am. Jur. 2d 672-73, Insurance § 609.

After a careful review of the'trial court’s instructions to the jury, we find that the court properly charged in accordance with the above stated principles of law. In explaining the pertinent policy provisions the court clearly stated numerous times that the plaintiff must prove, by a preponderance of the evidence, that her decedent died directly from an injury sustained in an accident on October 20, 1982, and that there were no other causes contributing to his death. The court explained that, unlike ordinary accidental death and or injury policies that do not contain the pertinent limiting language, the accident in this case must be the sole cause of the insured’s loss and not merely the dominant cause or a concurrent proximate cause. To illustrate this point, the court stated: “The plaintiff should recover, however, if you find that the death directly resulted from accidental bodily injury notwithstanding the fact that a disease or disorder or preexisting condition existed if such disease, disorder or preexisting condition did not contribute to the death. In other words, if you believe from the evidence that Mr. Ellice died as a result of anything other than just an accident on October 20,1982, then the insurance company has no responsibility under the policy and your verdict should be for the defendant. On the other hand, if you find that the plaintiff has proved to you that Mr. Ellice died from an accident on October twentieth and that the death resulted directly and independently of all other causes from bodily injuries caused by the accident, you would then find for the plaintiff.” In addition, the court repeated the specific policy language numerous times, thus clearly directing the jury’s attention to the proper inquiry. Accordingly, we conclude that the court’s charge, as a whole, was correct as a matter of law and provided sufficient guidance for the jury.

The plaintiff has also argued that the court’s use of the terms “concurrent proximate cause” and “contributing cause” was erroneous because it interjected irrelevant issues into the case. The plaintiff asserts that the only real issue in the case was whether her decedent died as a result of injuries sustained in a fall or whether he suffered and died of a heart attack which caused him to fall on the stairs. It must first be noted that the trial court used the terms “concurrent proximate cause” only by way of background or in conjunction with its use of examples to explain further the meaning of the specific policy language in question. Thus, we do not find that the court’s use of these terms resulted in the interjection of irrelevant issues into the case. In addition, and more importantly, even assuming that the use of these terms was confusing or misleading to the jury, the trial court’s supplemental charge clearly removed these terms from the jury’s consideration. In response to the exceptions taken by both counsel to the initial charge and prior to the start of its deliberations, the trial court summoned the jury back to the courtroom and further instructed that “ [concurrent cause or dominant cause of some bodily infirmity or disease is not part of the case. The sole issue in the case ... is whether the death resulted directly and independently of all other causes from bodily injuries from the accident. And that is the focus of your concern. You shouldn’t be concerned with concurrent causes by other bodily injury or infirmity. The issue again under the language of the policy is whether the loss has resulted directly and independently of all other causes from bodily injuries caused by an accident.”

The plaintiff further claims that the court should have charged the jury that the accident had only to be the predominant cause and not the sole or direct cause of the loss. While a number of jurisdictions have interpreted similar language in accidental injury and or death policies to require that the accident must be only the “efficient” or “predominant cause” of the injury or death to the insured; see Barker v. INA Life Ins. Co., 607 F. Sup. 1075, 1077 (D.D.C. 1985); Continental Casualty Co. v. Maguire, 471 P.2d 636, 638-39 (Colo. App. 1970); Jones v. Mountain States Telephone & Telegraph Co., 105 Idaho 520, 670 P.2d 1305 (1983); Duhon v. Colonial Life & Accident Ins. Co., 277 So. 2d 234, 236 (La. App. 1973); such is not the law of this state. Therefore, the trial court properly refused to charge as requested by the plaintiff.

Accordingly, we conclude that the trial court’s charge was correct in law and was properly adapted to this case. The only issue, as presented by the parties, was whether the plaintiff’s decedent died as a result of injuries sustained in a fall down the stairs, or whether he died as a result of a heart attack which was the cause of his fall down the stairs. The trial court properly limited the jury’s deliberations to this issue.

There is no error.

In this opinion the other justices concurred.

       At trial, the plaintiffs medical expert, Paul D. Ephraim, an internist, testified that, in his opinion, the plaintiff’s decedent died after “he fell and suffered a head injury and a brain injury that resulted in probable temporary cessation in his respiration and this led to the anoxic brain damage.” He further testified that the brain damage subsequently caused other vital organs to fail, thus necessitating the cessation of resuscitative measures at the hospital.

       The defendant’s medical expert, Wayne H. Carver, a forensic pathologist, described an arrhythmia as a “disturbance of the heart rhythm leading the heart to shut down, causing poor, low quantities of oxygen to reach-the brain and the entire brain or the most sensitive cells in the brain, the neurons, the ones that actually do the work, are dying and leaving you with a coma.”

       Contrary to the opinion of Ephraim, Carver, who was the acting chief medical examiner for the state of Connecticut, testified that the “underlying cause [of the plaintiff’s decedent’s death] was heart disease, specifically cardiomegaly with fibrosis, or simply termed, enlarged heart. Probably from high blood pressure which led to an arrhythmia, which led to a stoppage of the heart, which led to the death of brain cells and then the last, from there led to the entire trail that led to the deterioration of his other organs.” Carver further testified that the arrhythmia which caused the plaintiffs decedent’s heart to stop occurred while he was on the stairs, which in turn, caused him to collapse and fall down the stairs. Carver also specifically testified that there was no evidence whatsoever to indicate that the plaintiffs decedent suffered a head injury in the fall which could have caused brain damage.

       The plaintiff also raised the following issue in.her preliminary statement of issues: “Was the trial court correct in directing a verdict in favor of the defendant as against the plaintiff estate where that estate was neither a party to nor a beneficiary under the insurance policy, and where there was no evidence that an estate existed or that Adele Ellice was an executrix of any such estate.” While there is no dispute that the trial court directed a verdict for the defendant on the plaintiff’s claim as executrix of her husband’s estate, the plaintiff failed to brief the issue and did not pursue this claim at oral argument before this court. Consequently, w’e deem the claim to have been abandoned and we decline to address it. State v. Gaines, 196 Conn. 395, 398 n.2, 493 A.2d 209 (1985); State v. Martin, 195 Conn. 166, 167 n.1, 487 A.2d 177 (1985).

       At oral argument before this court, the plaintiff also argued that evidence of the fact that the arm had been fractured five days prior to October 20,1982, is relevant to her burden of proof in that it reveals the absence of a suicide attempt and that the fall resulted from the pain in the arm, thus indicating the injuries were accidentally inflicted. Besides the fact that this argument lacks any evidentiary basis, we find it to be totally irrelevant because the record fails to reflect that the defendant ever put suicide into issue. Therefore, we decline to address the claim.

       The plaintiff testified to these facts in the absence of the jury. The jury never was told the specific cause of the plaintiffs decedent’s fractured arm.

       At various points throughout the record both the plaintiff and the defendant refer to the fact that the plaintiffs decedent died from either the head and brain injuries he sustained when he was startled and fell down the stairs, or from a heart attack he had while on the stairs that caused him to fall. It appears that both parties’ references to a heart attack are erroneous and inadvertent. Carver testified that an arrhythmia occurred which had caused the plaintiff’s decedent’s heart to stop, which caused him to collapse and fall down the stairs. Carver also went on to differentiate between an arrhythmia and a primary cardiac event such as a heart attack. Therefore, we will treat the parties’ references to a heart attack to mean an arrhythmia. It must be noted that whether he fell as a result of a heart attack or a heart stoppage brought about by an arrhythmia is of no consequence because in either case there would be no coverage under the policy.

       For similar holdings in other jurisdictions see Tschohl v. Nationwide Mutual Ins. Co., 418 F. Sup. 1124, 1126 (D. Minn. 1976); United Ins. Co. of America v. Monroe, 115 Ga. App. 747, 156 S.E.2d 99 (1967); Continental Casualty Co. v. Skaggs, 436 S.W.2d 510, 511 (Ky. 1969); Lindemann v. General American Life Ins. Co., 485 S.W.2d 477, 480 (Mo. App. 1972); Hicks v. Old Republic Life Ins. Co., 29 N.C. App. 561, 564, 225 S.E.2d 164 (1976); Dunn v. Maryland Casualty Co., 339 Pa. Super. 70, 72, 75-76, 488 A.2d 317 (1985); Connecticut General Life Ins. Co. v. Stice, 640 S.W.2d 955, 957-58 (Tex. Civ. App. 1982); Egan v. Travelers Ins. Co., 224 Wis. 596, 601-602, 273 N.W. 68 (1937); see also 43 Am. Jur. 2d 624, 671-73, Insurance §§ 556, 609; 84 A.L.R.2d 176, 185-86, § 3.