author: Arthur H. Healey, J.

text:
    State of Connecticut v. Juan Corchado
    (12603)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued May 6
    decision released July 15, 1986

      Robert A. Lacobelle, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellant (state).

      Francis T. Mandanici, special public defender, for the appellee (defendant).
   Arthur H. Healey, J.

On May 28,1980, the defendant Juan Corchado was convicted after a jury trial of the crime of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), which arose out of a shooting in Bridgeport in 1979. A sentence of not less than five years nor more than ten years was imposed. On February 25, 1981, he appealed his conviction. On December 14,1982, this court reversed his conviction because of error in the jury instructions on the law of self-defense and ordered a new trial. State v. Corchado, 188 Conn. 653, 669, 453 A.2d 427 (1982). By December 14,1982, the defendant had already been released from prison and was on parole. On May 31, 1984, the board of parole voted to “discharge [him] from further parole supervision and thereby terminate^] [his] sentence.” Prior to the start of a second trial, the defendant filed a “Motion to Note Nolle or Dismiss.” On September 20,1984, the court, Curran, J., held a hearing on the defendant’s motion, which the state opposed, and granted the motion to dismiss with prejudice. On that date, the court granted the state’s request for permission to appeal the granting of the motion.

The sole issue presented on appeal is whether the trial court erred in granting the defendant’s motion to dismiss. We find no error.

In addition to the circumstances already set out, the defendant’s motion alleged that even if he were to be reconvicted, he could not be sentenced to any additional incarceration nor could he be placed on probation or fined because any sentence that could be imposed had already been executed. The defendant’s motion also alleged that on September 21,1983, and December 19, 1983, following our decision reversing his 1980 conviction, he had twice been ordered to court to start trial and had appeared in court on both occasions prepared to start trial. His motion further stated that a retrial would prejudice him because his key witness, Luz Bosco, whose testimony was crucial to his self-defense claim, could not be located due to the passage of time. See State v. Corchado, supra, 654-56. It also asserted that a retrial would serve no legitimate state interest and would unjustly add to the full punishment that he had already undergone. The motion urged finally that a dismissal should be granted “based on [the trial court’s] supervisory powers and in the interest of judicial economy.”

The state argues, citing State v. Villafane, 164 Conn. 637, 641, 325 A.2d 251 (1973), that the trial court’s conclusions cannot stand because they “are legally or logically inconsistent with the facts found or . . . they involve the application of some erroneous rule of law material to the case.” The state does concede, however, that the defendant has served his sentence and has been discharged from parole. It also concedes that if the defendant were reconvicted after a new trial, the sentence to be imposed would have to be restricted to the sentence that had been imposed at the time of the earlier conviction, unless a harsher sentence would be justified on the basis of some conduct of the defendant after the original sentencing. See North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), and its progeny. The state did not maintain in the trial court, and does not maintain now, that it had available to it any information suggesting conduct by the defendant that would furnish a basis for a harsher sentence.

In resisting the defendant’s motion, the state also asserts that the interests of the state and society in the prosecution of serious felony matters such as manslaughter go far beyond “the mere imposition and serving of a prison sentence.” Drawing heavily upon Fitzgerald v. United States, 472 A.2d 52, 54 (D.C. App. 1984), a double jeopardy case, the state claims that significant governmental and societal interests favor “identifying those guilty of criminal activity and having valid convictions entered against them.” It postulates that the strength of such interests is “fortified by the substantial collateral consequences attending conviction for a serious crime.” Id. Here, the state refers to statutes providing for sentence enhancement for persistent dangerous felony offenders to which the defendant, if reconvicted, could be exposed if he were later found guilty of certain crimes; see General Statutes § 53a-40 (a) (1) and (2), and (f); a nonsuspendible minimum term for one found guilty of criminal possession of a pistol or revolver when one has been convicted, inter alia, of a class B felony (manslaughter in the first degree in violation of § 53a-55 [a] [1] is a class B felony); General Statutes § 53a-217; and the inability of one convicted of a felony to obtain a permit to carry a pistol or a revolver. General Statutes § 29-29. The state contends that these collateral consequences act to the detriment of persons convicted of serious crimes, even after they have served their sentences and that the state and society have a legitimate interest in seeing that such persons have valid convictions entered against them.

The question that emerges at this point is what standard should be used to evaluate the action of the trial court in dismissing this case with prejudice. Upon analysis, it becomes evident that the notion of fairness permeates the considerations to be given to the trial court’s decision in this unique case. Thus, a balancing process must occur which weighs the interests of the state and society in having the defendant again stand trial against the interest of the defendant, who has already served his sentence, in not being subjected to a new trial. Such process, with its core concern of fairness, prescribes the standard that inheres in discretionary choice—that of abuse of discretion. We need not reach any question of whether constitutional principles of due process or fundamental fairness may be the basis for the inherent judicial authority to dismiss with prejudice a criminal case in the posture of the one before us because we draw upon General Statutes § 54-56 as the basis of our disposition.

General Statutes § 54-56 provides, inter alia, that the court may dismiss an information “at any time, upon motion by the defendant . . . and order [the] defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the . . . continuing of such information or the placing of the person accused therein on trial.” The trial court in this case did not abuse its discretion because it properly found “cause” to dismiss under § 54-56 after an explicit weighing of all the competing factors proffered by both sides. 6Although we do not determine that the defendant had a specific federal or state constitutional right to a dismissal with prejudice, we do posit that the discretion to be exercised must be informed and guided by considerations of fundamental fairness that are ingrained in the concept of due process of law. See generally Moran v. Ohio, No. 45879, slip op. (Ohio App. Oct. 27, 1983), cert. denied, 469 U.S. 948, 955, 105 S. Ct. 350, 83 L. Ed. 2d 285 (1984) (Brennan and Marshall, Js., dissenting) (notions of fundamental fairness are at the heart of Anglo-American law and independently influence the construction and application of state criminal code).

Initially, we note that the trial court’s characterization of the matter for decision as a “dilemma” appears quite appropriate. It has been recognized, as was implicit in the trial court’s view, that “[pjrosecutors need not be entirely ‘neutral and detached’ ” because “[i]n an adversary system, they are necessarily permitted to be zealous in their enforcement of the law.” Marshall v. Jerrico, Inc., 446 U.S. 238, 248, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980). “The criminal justice system gives prosecutors a wide latitude and broad discretion in determining when, who, why and whether to prosecute for violations of the criminal law.” State v. Anonymous (1980-7), 36 Conn. Sup. 338, 339, 420 A.2d 910 (1980). Prosecutorial discretion, however, is not unlimited. Judge (later Chief Justice) Wynne said of what is now General Statutes § 54-56 that “[tjhe purpose of the law and the philosophy back of it was to prevent unchecked power by a prosecuting attorney.” State v. Carroll, 13 Conn. Sup. 112 (1944); see also State v. Bellamy, 4 Conn. App. 520, 527, 495 A.2d 724 (1985); State v. Reinosa, 29 Conn. Sup. 117, 118, 274 A.2d 452 (1970). The clear language of § 54-56 permits the court to act not only where it is of the opinion that there is “not sufficient evidence” but alternatively where there is not “cause.” This statutory power, which is to be exercised with great caution, necessarily implies that where the circumstances are compelling, the dismissal may be ordered with prejudice.

The court’s power to fashion that remedy in this case under § 54-56 is unquestioned. See generally State v. Carter, 64 N.J. 382, 392, 316 A.2d 449 (1974), overruled on other grounds, State v. Krol, 68 N.J. 236, 344 A.2d 305 (1975). In State v. Abbati, 99 N.J. 418, 434, 493 A.2d 513 (1985), the New Jersey Supreme Court stated: “Although [a] trial court must carefully consider [a] prosecutor’s decision to reprosecute in reaching its conclusion regarding dismissal, and defer to it when the balance does not otherwise compel dismissal, [a] prosecutor’s discretion is itself subject to the power of the court.” In this case, the trial court found “cause” not to proceed with the defendant’s trial in a combination of factors including the improbability of further incarceration, even if the defendant were again convicted, and the state’s two year delay in initiating reprosecution of the defendant. The trial court was confronted with its “dilemma” as the state was ready to proceed with the retrial on September 20,1984, almost two years after our remand for the new trial. We note that the state has not refuted the defendant’s claim that on two occasions prior to September 20, 1984, when called to court, the defendant and his counsel had been in attendance. The state offered no reason for the time lag of almost two years in starting the second trial. While there are no constitutional speedy trial issues in this case, given no explanation of the delay of almost two years by the state in putting the defendant on trial, a relevant observation is that “[t]he requirement that criminal offenses be promptly tried ‘has its roots at the very foundation of our English law heritage.’ Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 993 [18 L. Ed. 2d 1] (1967).” State v. Hicks, 285 Md. 310, 322, 403 A.2d 356 (1979) (Davidson, J., dissenting). Although the time delay factor was argued to the trial judge, it is apparent from the transcript that it was not controlling. While the court expressly alluded to “crowded dockets,” it is obvious that it considered this case “very unique” and that its consideration had to be of the “rights of the individual” in the particular case and “the rights of the state as well.” This accords with the view articulated by the New York Court of Appeals in explicating the court’s power to dismiss an information “in the interest of justice.” People v. Rickert, 58 N.Y.2d 122, 125, 446 N.E.2d 419, 459 N.Y.S.2d 734 (1983). In Rickert, the court stated that “[t]he generality and exquisiteness of the interest of justice ideal was not intended, however, to convey an untrammeled right to act on purely subjective considerations. Required, rather, was a sensitive balancing of the interests of the individual and of the People . . . People v. Rickert, supra, 126-27; see also State v. Abbati, supra.

The state, in pressing for the retrial below and before us, argued that the collateral consequences attendant upon the conviction of a serious crime as possible results of a second trial underscore the state and societal interests that require another trial of the defendant. The trial court recognized that the crime involved was serious. The court took care to point out that the defendant had not only served his sentence but had been discharged from parole without incident, that a conviction in a new trial could concededly never have resulted in incarceration and that the defendant, now fifty-three years old, had no other criminal record. The trial court, again weighing “what can be accomplished with a trial,” factored into its balancing process the state’s argument that, if the defendant were reconvicted, then that “conviction might have some future benefit to the State that [if he] were to be arrested again, that conviction might have some bearing on the amount of bail that the Court would impose or in some other ways that the conviction might have some bearing if it were a crime of the same magnitude that he would be charged as a dangerous felony offender.” The “possibility” of habitual criminal proceedings may be considered a collateral consequence of criminal proceedings after a reconviction in the retrial for which the state was pressing. See generally State v. Cameron, 30 Wash. App. 229, 233, 633 P.2d 901 (1981). The trial court was entitled to accord fair weight to the fully served sentence in its consideration of the deterrence aspect of punishment here. Moreover, we must presume that the court was also aware that “[Retribution is no longer the dominant objective of the criminal law” and that “[Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.” Williams v. New York, 337 U.S. 241, 248, 69 S. Ct. 1079, 93 L. Ed. 1337, reh. denied, 337 U.S. 961, 69 S. Ct. 1529, 93 L. Ed. 1760 (1949).

The trial court extended appropriate deference to the state’s decision to reprosecute, assessing the reasons advanced, including the seriousness of the crime which involved a death, and society’s concern for the definitive resolution of criminal prosecutions as well as the defendant’s circumstances and the impact of a retrial on the defendant. Throughout the court’s remarks disposing of the motion, its concern with fairness in the balancing process is unmistakably evident, as is its realization that the decision required a tempering accommodation between the pressing of the state to vindicate the public justice and the defendant’s protestations that justice required no more from him than had been exacted.

The power under § 54-56 to dismiss for cause should be sparingly exercised and then only with great caution and awareness of the probable consequences. We have said that “ [discretion . . . imports something more than leeway in decision-making.” State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1980). It denotes “the absence of a hard and fast rule or a mandatory procedure regardless of varying circumstances.” State v. Wallach, 353 Mo. 312, 323, 182 S.W.2d 313 (1944). It means “ ‘ “a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” ’ ” Buckley v. Warden, 181 Conn. 286, 290, 435 A.2d 348 (1980), quoting Hammerberg v. Leinert, 132 Conn. 596, 604, 46 A.2d 420 (1946); see State v. Battle, 170 Conn. 469, 476, 365 A.2d 1100 (1976).

Based upon our review of this unique case, we conclude that the trial court did not abuse its discretion in dismissing this case with prejudice. The dismissal was a reasoned and fair response to the Gordian knot-like problem presented by the competing interests which had been fully identified by both counsel.

There is no error.

In this opinion the other justices concurred.

       “Pursuant to Conn. Gen. Stat., Sec. 54-142a (c), the Defendant’s rights to due process, to a fair trial, to the equal protection of the laws, to a speedy-trial, to present witnesses, against cruel and unusual punishment, as guaranteed by Article One, Sections Eight and Nine of the Connecticut Constitution, and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, the Defendant moves the Court to note a nolle and or to enter a dismissal in this case because his above rights have been violated due to the following facts:
      “(1) He was arrested for the present matter on November 17,1979 and almost 5 years have passed since that arrest.
      “(2) He was convicted of the offense on May 28,1980 and received a sentence of five to ten years to serve.
      “(3) On December 14,1982, the Connecticut Supreme Court overturned his conviction because the jury instruction as requested by the State and given by the trial court, was unconstitutional in that it stated the Defendant had to be ‘without fault’ to raise self defense.
      “(4) The Defendant has completely served his sentence and was discharged on parole in June, 1984.
      “(5) The Court, even if the Defendant were to be reconvicted, could not give the Defendant any more time, nor put him on probation nor fine him. Any sentence the Court could give has already been served, even to the extent that there could be no parole violation because the Defendant could no longer be put on parole.
      “(6) The Defendant has no other criminal record other than the present matter.
      “(7) Subsequent to the appellate reversal, on September 21, 1983 and December 19,1983, the Defendant was ordered to Court to start his trial and appeared with counsel in Court on both occasions prepared to start trial.

        “(8) It has been almost 5 years since the Defendant’s arrest and almost 2 years since the reversal of his conviction.
      “(9) Any retrial would serve no legitimate state interest and would only be a waste of judicial resources. The Defendant has no intention of suing the State and or its agents if the charges are nolled and dismissed.
      “(10) Any retrial would be prejudicial to the Defendant because his key witness, Luz Bosco, due to the passage of time (4 years), can not be located. Her testimony is crucial to his defense as evidenced by the appellate decision and the trial transcript which shows that she substantiates his self defense claim.
      “(11) The Defendant has already been fully punished as if he committed the offense, and forcing him to endure another trial would unjustly add to that punishment he already received.
      “In addition to the above constitutional reasons for entering a dismissal, the Court should dismiss the case based on its supervisory powers and in the interest of judicial economy.”

       Unlike the case before us where double jeopardy is not an issue, the sole question presented in Fitzgerald v. United States, 472 A.2d 52 (D.C. App. 1984), was whether a criminal defendant who had been successful in having his conviction reversed on grounds of trial error and who had served the sentence imposed, would be placed in double jeopardy by a second trial on the same indictment. In Fitzgerald, the court held that double jeopardy did not bar a subsequent trial “in this case.” Fitzgerald v. United States, supra, 53.

       The state also refers to Practice Book § 666 (3) which provides: “Among the factors to be considered in determining the appropriate conditions of release and, if a bond is required, its amount, are the following . . . (3) The defendant’s record of convictions . . . .”

       General Statutes § 54-56 provides: “dismissal of information by court. All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient'evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”

       The transcript indicates that the trial court had read our opinion in State v. Corchado, 188 Conn. 653, 453 A.2d 427 (1982), just prior to the hearing on this motion and considered, inter alia, the defendant’s claim of the importance of the witness, Luz Bosco, whom the defendant claimed he could not locate because of the passage of time. Id., 654-56, 665.

       The defendant places great stress on People v. Buford, 132 Cal. App. 3d 288, 299, 182 Cal. Rptr. 904 (1982), in which the California Court of Appeals reversed the trial court’s overruling of the defendant’s challenge to the racial composition of the jury array and then, “guided by practical considerations,” ordered the prosecution terminated. That court, without persuasive analysis, did so because “[i]n view of the time that [had] elapsed, it would be unrealistic to require the prosecution now . . . since [the defendant] has already served his sentence in prison, and perhaps parole, such a procedure would be unfair to [the defendant] as well.” People v. Buford, supra, 300-301. The defendant’s stress on Buford is not wholly justified, particularly because the opinion strongly suggests that the appellate court acted sua sponte in terminating the prosecution. While Buford can fairly be said to have been disposed of on “inherent power” rationale, we do not reach any such question in our disposition.

       From the record, including the transcript, it appears that at the hearing on the defendant's motion to dismiss, the trial court, the prosecutor and defense counsel were not aware that the defendant had been convicted of a misdemeanor in 1977. This was the result of a conviction for larceny in the third degree for which the defendant had received a thirty day suspended sentence and one year conditional discharge. The defense counsel learned of the 1977 conviction shortly after the hearing and brought it to the attention of the state and the court. Although the trial court had granted the motion to dismiss on September 20,1984, a hearing concerning the 1977 misdemeanor conviction took place on October 3,1984. The trial court, however, adhered to its earlier ruling noting, inter alia, that the 1977 conviction was a misdemeanor and did not involve violence.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Patrick D. Smith
    (11693)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued March 12
    decision released July 15, 1986

      Suzanne Zitser, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in an information with robbery in the first degree in violation of General Statutes (Rev. to 1979) § 53a-134 and sexual assault in the first degree in violation of General Statutes (Rev. to 1979) § 53a-70. The charges arose out of the robbery and sexual assault of the part owner and general manager of a health foods store in Middletown at about 6:30 p.m. on February 8, 1980. The defendant was tried by a jury and found guilty of both counts of the information. The trial court sentenced him to consecutive terms of not less than ten years nor more than twenty years on each count for a total effective sentence of not less than twenty years nor more than forty years.

The defendant has appealed claiming that the trial court erred: (1) by allowing an unnecessarily suggestive in-court identification procedure; (2) by denying the defendant a continuance during the trial; and (3) by failing to suppress the defendant’s confession. We find no error.

The defendant does not dispute the sufficiency of the evidence to sustain his conviction. A brief recitation of the facts concerning the incident which the jury could reasonably have found, however, is necessary to place his claims in proper perspective. The victim was alone in her store when a partially masked white male entered, brandishing a large knife. Once inside the store he forced the victim down behind the counter and demanded the contents of the cash register and her pocketbook. He then took her outside, around the corner of the building where he made her remove her slacks and underwear and sexually molested her. After a period of time, having been frightened by a car pulling into a nearby parking area, he released the victim and fled. The Middletown police were called to the scene and the victim subsequently went to Middletown police headquarters where she gave a statement as to what had transpired.

I

The defendant’s first claim is that he was denied due process of law because the trial court allowed an unnecessarily suggestive and unreliable in-court identification procedure.

On the evening of the robbery, the victim gave the police a description of her assailant which was somewhat limited because his face was partially covered during the incident. On February 26, 1980, however, she selected the defendant’s picture from an array containing six photographs. At that time she “felt” she recognized the defendant as her assailant because of his eyes, his eyebrows and the shape of his head. She was, however, not certain of her identification. The defendant makes no claim that the photographic identification procedure at which the victim selected his picture was unnecessarily suggestive.

At trial, on direct examination, after the victim had testified concerning her selection of the defendant’s photograph from the array, the state’s attorney asked her if she would now be able to recognize her assailant. She replied that she would. The state’s attorney then requested that the defendant stand, approach the witness and speak. Defense counsel objected to this procedure. The trial court overruled the objection and required the defendant to walk to the area of the witness stand and to recite his name, address and the alphabet.

The defendant contends that the procedure employed was unnecessarily suggestive, was conducive to misidentification, and deprived him of due process of law, despite the absence of an unnecessarily suggestive out-of-court pretrial identification procedure. The defendant does not claim that all in-court identification procedures are unnecessarily suggestive. Particularly, he does not claim that what he characterizes as the “customary” identification of an accused seated at counsel table is unnecessarily suggestive. He also conceded during argument in the trial court that he could be required to stand to be identified. The defendant argues rather that the circumstances of this in-court identification, wherein he was required to approach the victim and speak, were unnecessarily suggestive and conducive to misidentification.

We fail to see how the identification procedure employed in this case has a greater tendency to suggestiveness than the identification of an accused seated or standing at counsel table. Any one-on-one in-court identification of an accused conveys the message that the state has arrested and placed on trial a person it believes has committed the crime. Baker v. Hocker, 496 F.2d 615, 617 (9th Cir. 1974). That is the factor that creates the element of suggestiveness, not the extra steps taken here to allow the victim to observe the defendant thoroughly before identifying him.

The United States Supreme Court has set standards as to when a pretrial identification must be excluded and under what circumstances an in-court identification that follows an impermissible pretrial identification must be excluded. See Neil v. Biggers, 409 U.S. 188, 200-201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Coleman v. Alabama, 399 U.S. 1, 5-6, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Foster v. California, 394 U.S. 440, 442, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Gilbert v. California, 388 U.S. 263, 272, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); United States v. Wade, 388 U.S. 218, 241, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The court, however, has not set any guidelines for in-court identification procedures or indicated that in-court identifications must be made in a way that is not suggestive. United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986). Generally, an in-court testimonial identification need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable misidentification. United States v. Domina, supra, 1368; State v. Nelson, 4 Conn. App. 514, 516, 495 A.2d 298 (1985); Fortune v. State, 549 P.2d 380, 383 (Okla. Crim. App. 1976). “The Supreme Court has not extended its exclusionary rule to in-court identification procedures that are suggestive because of the trial setting.” United States v. Domina, supra, 1369. “There is no constitutional requirement that an in-court identification confrontation be conducted as a lineup or be otherwise free of suggestion. An in-court testimonial identification must be excluded if it is the product of an out-of-court confrontation arranged by the state, which was unnecessarily suggestive and conducive to irreparable misidentification.” Commonwealth v. Wheeler, 3 Mass. App. 387, 391, 331 N.E.2d 815 (1975). “[WJithout more, the mere exposure of the accused to a witness in the suggestive setting of a criminal trial does not amount to the sort of impermissible confrontation with which the due process clause is concerned.” Middletown v. United States, 401 A.2d 109, 132 (D.C. App. 1979).

“We know of no authority which would prohibit, as unduly suggestive, an exclusively in-court identification. Mangrum v. State, 155 Ga. App. 334, 335, 270 S.E.2d 874 (1980).” State v. Nelson, supra, 516. The defendant’s protection against the obvious suggestiveness in any courtroom identification confrontation is his right to cross-examination. Laury v. State, 260 A.2d 907, 909 (Del. 1969); State v. Drew, 360 So. 2d 500, 516 (La. 1978); Cooper v. State, 599 P.2d 419, 422 (Okla. Crim. App. 1979); see Manson v. Brathwaite, 432 U.S. 98, 113 n.14, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). The innate weakness in any in-court testimonial identification is grounds for assailing its weight rather than its admissibility. In re W.K., 323 A.2d 442, 444 (D.C. App. 1974).

The manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court. United States v. Satterfield, 572 F.2d 687, 690 (9th Cir. 1978); United States v. Williams, 436 F.2d 1166, 1168 (9th Cir. 1970); United States v. King, 433 F.2d 937, 938 (9th Cir. 1970); People v. Powell, 105 App. Div. 2d 712, 714, 481 N.Y.S.2d 157 (1984); see United States v. Williams, 704 F.2d 315, 319 (6th Cir. 1983). In requiring the defendant to approach the witness stand and speak, the trial court enabled the jury to evaluate for itself the certainty of the victim’s identification. See State v. Jonas, 169 Conn. 566, 576-77, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976). The defendant’s voice and appearance were probative evidence and the trial court did not abuse its discretion or violate the defendant’s due process rights in granting the state’s request.

II

The defendant next claims that the trial court erred by refusing to grant his request for a continuance in order to arrange a less suggestive in-court identification procedure. The short answer to the defendant’s claim is that the record does not disclose that such a request was ever made. The record does reveal that the defendant objected to the identification procedure. His principal concern, however, was whether being required to speak was a violation of his fifth amendment rights and whether the state had followed proper procedures for obtaining nontestimonial evidence under the rules of practice. He was also concerned that the victim’s photographic identification of the defendant might later prove to be unnecessarily suggestive and taint her in-court identification. His request for a continuance appears to have been to allow him time to research those issues further. The trial court, however, had already recessed for almost two hours for that very purpose.

Although a trial court’s denial of a request for an alternative in-court identification procedure may be reviewed for an abuse of discretion; United States v. Brown, 699 F.2d 585, 593 (2d Cir. 1983); People v. Powell, supra, 715; there is no constitutional mandate requiring alternative in-court identification procedures. United States v. Domina, supra, 1369; Commonwealth v. Dickerson, 372 Mass. 783, 790, 364 N.E.2d 1052 (1977); Commonwealth v. Jones, 362 Mass. 497, 501, 287 N.E.2d 599 (1972); Commonwealth v. Ceria, 13 Mass. App. 230, 237, 431 N.E.2d 608 (1982). The disposition of any motion requesting alternative identification procedures lies within the sound discretion of the trial court; United States v. Domina, supra, 1369; United States v. Satterfield, supra, 689-90; Commonwealth v. Jones, supra, 501; and the decision to grant or deny a continuance lies within the sound discretion of the trial court. State v. McKnight, 191 Conn. 564, 576-77, 469 A.2d 397 (1983). Absent a clear request for a continuance to arrange a less suggestive identification procedure, we are hardly in a position to say that the trial court abused its discretion by failing to grant one.

Ill

Finally, the defendant argues that the trial court erred in several respects by failing to suppress his confession. The defendant’s confession concerning the robbery and sexual assault of the victim was made to Officer Catherine Reinholtz of the Middletown police department on February 29, 1980, in the cell area of the geographical area number nine courthouse in Middletown. The record reveals that on February 21,1980, the defendant had been arrested for another incident, a robbery, which had taken place that same day in the parking lot of Pelton’s drug store in Middletown and that Reinholtz first spoke to him on February 22, at Middletown police headquarters, while he was waiting to be transported to court for arraignment on that charge. At that time the defendant told her that he would tell her everything she wanted to know if she could guarantee him psychiatric help. Reinholtz informed the defendant that she could not guarantee or promise him anything but would note his desire in her report. At a pretrial suppression hearing Reinholtz testified that she spoke to the defendant for only about ten minutes on that occasion and did not question him concerning either the drug store parking lot robbery or the robbery and assault at the health foods store. The defendant concluded that conversation by telling Reinholtz that he would “think about it” and possibly give her a statement in the future.

On February 22,1980, the defendant was arraigned in court in geographical area number nine and a public defender, Patrick Culligan, was appointed to represent him for the robbery of February 21,1980. After being in custody for a week in lieu of bond on that charge, the defendant, on February 29, was returned to court for a hearing on a motion to dismiss filed by his court-appointed attorney. The defendant was not, at that time, arrested for, or charged with, the February 8, 1980 robbery and sexual assault.

While the defendant was at the courthouse on February 29, he was seen by his girlfriend Elaine Shackett and her friend Rosanne Abate. Later that day Shackett and Abate went to Middletown police headquarters where Shackett told Reinholtz that she thought the defendant was involved in sexual assaults and that he needed help. Reinholtz then arranged with the court officer at geographical area number nine to allow Shackett and Abate to visit with the defendant in the cell block and she accompanied them to the courthouse. The trial court found that her principal purpose in doing so was to obtain a statement.

When the three women arrived at the courthouse Shackett and Abate went into the cell block and spoke with the defendant, while Reinholtz waited in an outer room. The three conversed for about an hour during which time, Shackett testified, she tried to get the defendant to confess to anything he had done with the hope that he would get psychiatric help. The trial court found, however, that “Miss Shackett was not an agent acting in behalf of the police, that Miss Shackett was a volunteer who thought it was to the best interest of Mr. Smith that he make a clean breast of whatever he had been involved in.” There is ample evidence to support that finding.

Approximately one hour after Shackett and Abate began speaking to the defendant, attorney Culligan, the public defender, came into the cell area. The defendant requested to speak to him but Culligan told him he was busy on a long distance phone call concerning another prisoner and that he would have to talk to him later and left. Abate also left at that point. Reinholtz heard the defendant’s request and Culligan’s response. She testified, however, that at that time she did not know that Culligan represented the defendant.

About ten minutes after Culligan left the cell block Shackett, who was sitting directly opposite the defendant on the other side of the bars, called Reinholtz into the men’s cell area and said that the defendant would talk to her now. Reinholtz went to the defendant’s cell and asked him if he wished to speak to her and the defendant responded in the affirmative. Reinholtz then read the defendant his Miranda rights and the waivers concerning those rights, and asked the defendant if he understood both his rights and the waivers, and the defendant indicated that he did. Before Reinholtz could obtain his signature on a waiver form, however, the defendant commenced giving her a statement in which he confessed to the robbery and sexual assault of the victim at the health foods store on February 8, 1980. The defendant’s statement was interrupted some fifteen minutes after it had begun by Culligan’s return to the cell area and his demand that it cease.

At the conclusion of the hearing on the defendant’s motion to suppress his confession, the trial court found, in addition to the findings noted previously, that Reinholtz did not make any promises or guarantees to either Shackett or the defendant and that the reason the defendant confessed “was that he was angry with his lawyer” and that he wanted to get the assault on the victim “off his chest.” The trial court also found that “at one point in the testimony [the defendant said] that he was ready to confess to anything so that he could satisfy his girlfriend who was begging him to confess but whatever confession [the defendant] made was not a confession which had been unduly forced upon him by anything that Ms. Reinholtz or anybody in the Middletown Police Department had done.” There is no support in the record for the defendant ever having made that statement; however, it is obvious that Shackett did urge him to confess. The trial court concluded that Reinholtz had informed the defendant of his Miranda rights, that the defendant was an experienced criminal who knew his rights and police and court procedures, and that he voluntarily and knowingly had waived his rights. The trial court denied the defendant’s motion to suppress his confession.

The defendant claims on appeal that his confession was not voluntary because it was coerced by Shackett’s conduct in urging him to confess, coupled with Reinholtz’s conduct, apparently in giving Shackett that opportunity and being available to take advantage of it. The defendant concedes in his brief that this claim was not raised in the trial court. He argues, however, that it should be considered on appeal because the record adequately supports a claim that he has been deprived of a fundamental constitutional right and a fair trial. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We agree that the claim should be reviewed.

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). Because of the untrastworthy evidentiary value of an involuntary confession, it may not be used either as direct evidence or for impeachment purposes. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). A confession which is coerced violates due process and should be excluded whether it results from pressure exerted by a police officer or a private individual. People v. Whitt, 36 Cal. 3d 724, 746, 685 P.2d 1161, 205 Cal. Rptr. 810 (1984); People v. Haydel, 12 Cal. 3d 190, 197, 524 P.2d 866, 115 Cal. Rptr. 394 (1974); Kwiatkoski v. People, 706 P.2d 407, 408 (Colo. 1985); Commonwealth v. Allen, 395 Mass. 448, 455-56, 480 N.E.2d 630 (1985); Commonwealth v. Mahnke, 368 Mass. 662, 679-80, 335 N.E.2d 660 (1975); Cleveland Heights v. Stross, 10 Ohio App. 3d 246, 249-50, 461 N.E.2d 935 (1983) (Parrino, P.J., dissenting on other grounds). “We are persuaded that it should make no difference whether an involuntary statement is coerced by a police officer or a private citizen. This approach has been followed in a number of other jurisdictions. State v. Kelly, 61 N.J. 283, 294 A.2d 41 (1972); State v. Hess, 9 Ariz. App. 29, 449 P.2d 46 (1969); Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967); People v. Frank, 52 Misc. 2d 266, 275 N.Y.S.2d 570 (1966); State v. Ely, 237 Or. 329, 390 P.2d 348 (1964); People v. Berve, 51 Cal. 2d 286, 293, 332 P.2d 97, 101 (1958)." People v. Switzer, 135 Mich. App. 779, 784, 355 N.W.2d 670 (1984). “[Gjuarantees against self incrimination do not turn solely on whether interrogators are state agents. Rather, they prevent the state from using involuntary answers as evidence . . . whether obtained by government or private conduct." (Citations omitted.) In re Deborah C., 30 Cal. 3d 125, 132, 635 P.2d 446, 177 Cal. Rptr. 852 (1981); see United States v. Robinson, 439 F.2d 553, 561 n.8 (D.C. Cir. 1970). The state argues that the due process clause only applies to state action and since the trial court, in effect, found there was no state action in Shackett’s allegedly coercing the defendant’s confession, his due process rights could not have been violated. “State action enters the picture, however, when a trial court permits the prosecution at a jury trial to utilize as evidence of guilt a confession which is extracted under circumstances that so overbear the individual’s will as to render the statement involuntary, that is ‘not the product of a rational intellect and a free will.’ Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 90 L. Ed. 2d 770 (1963).” Hunter v. People, 655 P.2d 374, 376 (Colo. 1982).

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). The determination of whether a confession is voluntary must be based on a consideration of the totality of the circumstances surrounding it. 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). It is a factual determination. “The issue of whether a confession is voluntary and admissible is, in the first instance, one of fact for the determination by the trial court in the exercise of its legal discretion.” State v. Derrico, 181 Conn. 151, 162, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). 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, 198 Conn. 573, 576, 504 A.2d 1036 (1986); State v. DeForge, supra, 398.

Our examination of the record in this case reveals that there was evidence that Shackett urged the defendant to confess. In light of the totality of the circumstances surrounding the defendant’s confession, however, her conduct fell far short of creating a situation where the defendant’s will was overborne and his capacity for self-determination critically impaired. The setting was not coercive for someone of the defendant’s background and experience, and while Shackett begged the defendant to confess in order to get help, the defendant testified that because of past experiences he did not trust the authorities. Therefore, Shackett, urging the defendant to confess in order to obtain “psychiatric assistance for his behavioral problem through the criminal justice system, could hardly have raised expectations of leniency on the part of the defendant, who had previous experience with the system.” State v. Carter, supra, 639. Viewing the totality of the circumstances we cannot say that the defendant’s free will was overborne. See State v. Derrico, supra, 165. On the basis of the record before us we conclude, therefore, that there was ample evidence to meet the necessary standard of proof that the defendant’s confession was voluntary.

The defendant next claims that he invoked his right to counsel when, in the hearing range of Reinholtz, he asked to speak to Culligan. This claim also was not raised at trial. The defendant contends, however, that it too should be reviewed because the record adequately supports a claim that he was deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra, 70. We agree that the claim is reviewable, but find no constitutional error.

The record reflects that approximately ten minutes after the defendant attempted to speak to Culligan, Shackett, who was seated in the cell area with the defendant, called Reinholtz in and told her that the defendant would talk to her. Reinholtz then asked the defendant if he did wish to speak to her and he answered in the affirmative. At that point Reinholtz read the defendant his Miranda warnings and waivers which he indicated he understood and he then immediately commenced a statement concerning his involvement in the sexual assault and robbery of the victim at the health foods store.

In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981), the United States Supreme Court held that an accused having once invoked his right to counsel “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police.” (Emphasis added.) Id., 484-85; State v. Barrett, 197 Conn. 50, 58, 495 A.2d 1044 (1985). Even if we assume, arguendo, that the defendant invoked his right to counsel we are nonetheless persuaded from the evidence that he initiated the communication with Reinholtz that resulted in his confession. We are also satisfied that the “ ‘particular facts and circumstances surrounding [this] 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)”; Edwards v. Arizona, supra, 482; support the trial court’s finding that the defendant voluntarily and knowingly waived his right to counsel. An explicit or written waiver is not essential. North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); see State v. Harris, 188 Conn. 574, 580-81, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983). The defendant was not deprived of his fundamental right to counsel; he waived it.

The recently decided United States Supreme Court case of Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986), does not require a different result. In that case, the court held that, if the police initiate interrogation after a defendant has asserted his right to counsel at an arraignment or similar proceeding, any waiver of the defendant’s right to counsel is a violation of the sixth amendment and invalid. Id., 635. Initially it is doubtful whether Jackson applies to the facts of this case since the defendant’s confession did not concern the crime for which he had been arraigned and counsel appointed. In discussing an alleged sixth amendment violation, a United States Circuit Court of Appeals stated: “Massiah [v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964),] offers no immunity from liability for uncounseled, post-indictment statements that involve different criminal acts. Such statements, even though deliberately elicited by government agents after indictment and in the absence of counsel, may form the basis for a separate indictment and may be offered to prove such additional charges.” United States v. Grego, 724 F.2d 701, 703 (8th Cir. 1984); State v. Biller, 190 Conn. 594, 615, 462 A.2d 987 (1983). Further, we have indicated that the record reveals that the defendant and not the police initiated communication and the defendant thereafter waived his right to counsel.

Finally, the defendant claims that the trial court erred when it found that he understood and validly waived his right to remain silent and his right to counsel. The defendant concedes in his brief that the trial court found that he understood and waived his Miranda rights. He maintains, however, that the court’s finding was clearly erroneous.

The state bore the burden of establishing, by a preponderance of the evidence, that the defendant’s waiver was knowingly, intelligently and voluntarily made. State v. Jones, 193 Conn. 70, 83-84, 475 A.2d 1087 (1984). The knowing and voluntary nature of the defendant’s waiver was essentially a question of fact to be determined by the trial court in view of the totality of the circumstances. Id., 84. “ ‘Although the issue is therefore ultimately factual, our usual deference to the fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. . . .’State v. Harris, 188 Conn. 574, 579-80, 452 A.2d 634 (1982).” State v. Pellegrino, 194 Conn. 279, 288-89, 480 A.2d 537 (1984). On the basis of our review of the record we cannot conclude that the trial court erred in finding that the defendant voluntarily and knowingly waived his right to remain silent and his right to counsel.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1979)] Sec. 53a-134. 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: (1) Causes serious physical injury to any person who is not a participant in the crinie; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (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. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.
      “(b) Robbery in the first degree is a class B felony.”

       “[General Statutes (Rev. to 1979)] Sec. 53a-70. sexual assault in the first degree: class B felony, (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or (2) by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.
      “(b) Sexual assault in the first degree is a class B felony.”

       This case is distinguishable from State v. Alexander, 197 Conn. 180, 496 A.2d 486 (1985). There the trial court had found the defendant’s confession was voluntary and the only relevant issues on appeal were whether the civilian who obtained incriminating statements from the defendant was acting as an agent of the police so as to violate the defendant’s sixth amendment right to counsel under Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), or to require warnings under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See State v. Alexander, supra, 182-83.


author: Dannehy, J.

text:
    Daniel Masto, Jr. v. Board of Education of the Town of Hamden et al.
    (12682)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued April 3
    decision released July 15, 1986

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

      Gary S. Starr, with whom, on the brief, was Kenneth R. Plumb, for the appellee (named defendant).

      JoelM. Ellis, with whom, on the brief, was William S. Zeman, for the appellee (defendant Association of Hamden Public School Administrators, AFSA, Local No. 57).
   Dannehy, J.

The plaintiff, a teacher at Hamden high school, brought this action in two counts against the board of education of the town of Hamden (board), and the Association of Hamden Public School Administrators, AFSA, Local No. 57 (union). In the first count the plaintiff alleged that the board had wrongfully refused to reappoint him to the position of assistant principal at the high school. In the second count the plaintiff alleged that the union had breached its duty of fair representation by failing to process his grievance through binding arbitration. After a trial to the court, judgment was rendered against the plaintiff on both counts. We find no error.

The facts of this case may briefly be stated. The plaintiff has been a teacher in the town of Hamden since 1960. On July 19, 1978, he was appointed to the position of assistant principal at Hamden high school. Due to declining student enrollment, the board of education decided to eliminate several administrative positions within the school system. A restructuring of administrative personnel followed, and the plaintiff, having the least seniority within the school administration, was returned to his former position as teacher, effective June 30, 1979.

More than two years later, in December, 1981, the position of assistant principal became vacant at Ham-den high school. The board announced its intention to interview applicants, but the plaintiff claimed that he was entitled to reinstatement to his former position under the terms of the collective bargaining agreement between the union and the board which had been in effect in the 1978-79 school year. During the plaintiffs brief tenure as assistant principal, he had been a member of the defendant union of school administrators. The plaintiffs membership in the defendant union terminated on his demotion to teacher on June 30,1979. Nonetheless, the collective bargaining agreement between the union and the board provides for the recall of former school administrators, like this plaintiff, who have been demoted because of reductions in staffing. The resolution of the issues raised on this appeal depends upon the proper construction of the recall provisions contained in the collective bargaining agreement covering the 1978-79 school year. We turn now to that issue.

The collective bargaining agreement in effect when the plaintiff was demoted does not itself set forth the procedures to be followed in staff reductions and recall. Rather, article V of the collective bargaining agreement incorporates by reference the staff reduction and recall procedures set forth in the board policy manual, a separate document. Referring, therefore, to the board policy manual, we find extensive provision for the reduction of administrative staff, but only one sentence concerning recall of former administrators. That sentence provides that “[administrators shall be recalled by seniority to the first vacancy for which they are certified, qualified, and had previous experience in the Hamden Public School System.” There is no dispute that, under the literal terms of the board policy manual, the plaintiff should have been reinstated to his former position as assistant principal when that position became vacant in December of 1981. The board contends, however, and the trial court found, that the recall procedure set forth in the board policy manual, and as incorporated by reference into the collective bargaining agreement, was applicable for no longer than one year from the time of demotion. On the facts of this case we agree.

The single sentence in the board policy manual concerning recall does not by its terms limit a former administrator’s right to be recalled to any particular period of time. The evidence at trial, however, clearly establishes that the parties intended that such right be limited to one year. The board’s own policy, prior to 1978, had been to recall administrative personnel to former positions within a one year period following their removal from such positions. Thereafter, the administrator was required to apply for his former position as would any other applicant. Carmen Vegliante, who in 1978 was the chief negotiator for the union, testified that he brought up the matter of recall rights at a union meeting in the spring of 1978. Vegliante testified that most union members were not aware of the board’s one year recall policy. The union therefore had authorized Vegliante to attempt to get the board to agree to a written statement of its one year policy concerning recall. Vegliante and Donald Bonyai, the assistant superintendent of schools, agreed that the board’s one year recall policy would not be changed unilaterally. A letter from Vegliante to Bonyai, dated July 1, 1978, confirming this agreement was admitted into evidence.

The board and the union clearly incorporated the board’s policies on staff reduction and recall into article V of their collective bargaining agreement. That agreement covered the period from July 1,1978, until June 30,1980. Prior to the effective date of that agreement, the board and the union had engaged in discussions aimed at clarifying the board’s policy with respect to recall. Those discussions resulted in an express agreement between the union and the board that recall rights would be honored for one year. Both the union and the board assert that this is what was intended by their agreement. The trial court found that the parties had intended a one year limitation on recall. We find that the evidence presented fully supports the trial court’s conclusion. The plaintiff, therefore, was not entitled to be recalled to his former position as assistant principal under the terms of the applicable collective bargaining agreement.

We next consider the plaintiff’s claim against the union. When the plaintiff was informed that he would not be recalled to his former position, he asked the union to file a grievance. Although the plaintiff had not been a member of the union since his demotion to the position of teacher on June 30,1979, the union nonetheless filed a grievance seeking to determine the plaintiff’s right under the collective bargaining agreement to be recalled to the position of assistant principal. The union processed this grievance through the first three steps of the contractual grievance procedure. The grievance was denied at each step, with representatives of the board explaining that under article Y of the collective bargaining agreement, the plaintiff’s recall rights had expired on June 30,1980, one year after his demotion. The union agreed with the board, and, on the advice of its parent organization and counsel, decided not to take the matter to binding arbitration.

The plaintiff claims that the union breached its duty of fair representation when it decided not to process his grievance through binding arbitration. The trial court concluded that the union had breached no duty owed to the plaintiff, and we find no error in this conclusion. While a “union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion,” an individual employee has no “absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement.” Vaca v. Sipes, 386 U.S. 171, 191, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). In fulfilling its duty to process fairly the legitimate grievances of individual employees, the union must be given the discretion to winnow out frivolous claims “prior to the most costly and time-consuming step in the grievance procedures.” Id.

The union in this case processed the grievance through the first three steps and determined for itself that the grievance lacked merit. Without suggesting that a union must be correct in such a determination if it is later to avoid liability for failure to process a grievance; Curtis v. United Transportation Union, 700 F.2d 457, 458-59 (8th Cir. 1983); Baldini v. Local Union No. 1095, 581 F.2d 145, 151 (7th Cir. 1978); we do note that an employee has no cause of action whatsoever against his union where the employer has not breached the collective bargaining agreement. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 568-70, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976). We think that the trial court and the parties to the collective bargaining agreement have correctly interpreted its recall provisions, and therefore, the plaintiff can have no claim against the union for its failure to process his grievance through binding arbitration.

The plaintiff also claims that the trial court erred in granting the defendants’ motions to strike this case from the jury docket. The facts relating to this claim are as follows. The plaintiff initially brought this action against the board only, in a complaint dated March 23, 1982. Thereafter, on September 24,1982, the plaintiff filed a revised complaint, with the first count directed against the board, and the second against the union. The board filed its answer on November 30,1982, and the plaintiff filed his reply on December 17,1982, thus closing the pleadings between the plaintiff and the board. On the same day, December 17,1982, the plaintiff filed his claim for trial to the court.

Almost two years later, on October 10, 1984, the union, over the plaintiffs objection, was allowed to amend its answer. The plaintiff filed his reply to the amended answer on October 12,1984. At the same time the plaintiff filed a claim for a jury trial. Both defendants moved to strike the case from the jury trial list, and the motions were granted by the trial court.

It is well settled that a claim for a jury trial must be filed no later than ten days after the pleadings have been closed. General Statutes § 52-215; see Home Oil Co. v. Todd, 195 Conn. 333, 339-40, 487 A.2d 1095 (1985). The last pleading between the plaintiff and the board was filed on December 17,1982. Thus, as against the board, the plaintiff could not properly claim a jury trial after December 27, 1982. As against the union, however, it might be argued that its filing of an amended answer on October 10,1984, reopened the ten day period in which the plaintiff might claim a jury trial. This argument would have merit only if the amended answer had introduced a new issue of fact into the case. Home Oil Co. v. Todd, supra. We have compared the amended answer with the original and conclude that it merely restates in different words the very facts which already had been alleged. Moreover, as we have previously determined, the plaintiff could not have prevailed on his claim against the union unless he first established liability on the part of the board. The failure of the plaintiff to establish the board’s liability under the collective bargaining agreement requires a directed judgment in favor of the union on the charge that it breached its duty of fair representation. Since the claims against the board were properly tried to the court, what might have occurred had the claim against the union been tried to a jury becomes irrelevant, and, we think, moot. Therefore, we find no error.

There is no error.

In this opinion the other justices concurred.