author: Arthur H. Healey, J.

text:
    Christine A. Cologne et al. v. Westfarms Associates et al.
    (12100)
    (12152)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 12
    decision released August 6, 1985

      Victor J. Dowling, with whom was Victor J. Dowling, Jr., for the appellants (defendants).

      Martha Stone, with whom was Shelley Geballe, for the appellees (plaintiffs).
   Arthur H. Healey, J.

This appeal involves proceedings subsequent to a March 2, 1983 trial court judgment that enjoined the defendants from prohibiting the plaintiffs access, for certain political purposes, to a privately owned shopping mall. See Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984). The trial court, on April 22, 1983, found the defendants Victor J. Dowling, Richard W. Sheehan, and Joseph P. Vetrano in contempt for refusing to comply with its injunction and imposed a coercive order of compliance subject to certain penalties. The plaintiffs were allowed access to the mall on April 23, 1983. The defendants Dowling and Sheehan have appealed from the judgment of contempt. We find error.

The following pertinent background is supported by the record. On March 2,1983, the trial court issued its order enjoining the defendants from denying the plaintiffs limited access to the defendants’ mall property for the purpose of political canvassing. Id., 52-53. Both the plaintiffs and the defendants appealed from that judgment. See id.

On March 22, 1983, the trial court considered the plaintiffs’ “motion for contempt and/or motion to vacate stay.” Attorney Paul Rufo, who represented the Westfarms Associates partnership and the three partners who resided outside of Connecticut, appeared at this session. Rufo argued to the trial court that, under the existing version of Practice Book § 3065, the trial court’s order of March 2 was automatically stayed pending the defendants’ appeal of that judgment. Counsel for the plaintiffs countered that, in accordance with General Statutes § 52-477, the trial court’s injunctive order had not been stayed unless the trial court specifically entered a stay pursuant to an application therefor by the defendants. The trial court granted the plaintiffs’ motion to vacate any stay that might have existed under Practice Book § 3065 and further found that the defendants were not entitled to any stay under General Statutes § 52-477. There is no indication in the record whether the defendants Dowling and Sheehan had received notice of the March 22 proceeding.

On March 24, 1983, the plaintiffs secured from the trial court an order to show cause why the defendants should not be found in contempt of court. Because service of this order had “not been effectuated” upon the defendants, the trial court, on March 25, declared the show cause order “a nullity.” At the March 25 proceeding, the trial court orally reaffirmed its March 22 order and also cited General Statutes § 52-478 as an additional statutory ground for dissolving any stay of its March 2 judgment that might have otherwise existed. Again, the defendants Dowling and Sheehan were not directly represented at this proceeding, although counsel for the partnership and the out-of-state partners were present in court. The defendants thereafter filed with this court a motion for review of the trial court’s orders of March 22 and 25.

While this motion for review was pending, a further proceeding was held by the trial court on April 12,1983. At this proceeding, the defendant Dowling, who is an attorney, appeared on behalf of himself, Sheehan, and Vetrano; Attorneys Rufo and Robert M. Dombroff appeared on behalf of the out-of-state defendants. Although all counsel present addressed the court, the record reveals that no testimony was given under oath nor was any other evidence presented at the April 12 proceeding. The trial court, however, found that service of process had been properly made upon all the defendants and that the defendants were in contempt for failing to comply with the court’s March 2 order. At that time, the trial court imposed conditional fines that would be triggered if the defendants refused to comply with the orders and also assessed legal fees and costs payable to the plaintiffs by the defendants. From this April 12 order, the defendants filed both an appeal and a motion with this court for a stay.

The final trial court proceeding pertinent to this appeal was held on April 22, 1983. Although counsel for the defendant partnership and the out-of-state defendants was present, the individual defendants Dowling, Sheehan and Vetrano were neither present nor directly represented at this proceeding. No testimony was given under oath at this proceeding. The trial court heard representations by the plaintiffs’ counsel that, subsequent to the April 12 proceeding, Dowling would not permit the plaintiffs access to the mall as required by the court’s orders. The court next inquired of Lynn Taborsak, then the president of the state chapter of the National Organization for Women, who was present in the courtroom but had not been administered the witness’ oath or affirmation, as to the accuracy of the representations of the plaintiffs’ counsel; Taborsak responded in the affirmative. No other “evidence” was presented. The counsel for the out-of-state partners then stated that his clients were amenable to complying with the trial court’s orders. On that basis the trial court purged the contempt orders against those defendants. The trial court then found that service had been sufficiently made upon the other defendants, Dowling, Sheehan and Vetrano, and that they were in violation of the court’s April 12 order. Dowling, Sheehan, and Vetrano were adjudged in civil contempt, and the trial court levied penalties against them, including a sixty day prison sentence, a $10,000 fine payable to the plaintiffs, and an assessment of other fees and costs.

The plaintiffs were granted access to the mall the next day, April 23,1983. Cologne v. Westfarms Associates, supra, 54. On April 27, 1983, we denied the defendants’ motions for stays of execution of the contempt judgments, and we also granted the defendants’ motion for review of the trial court’s oral order of March 25, which had amended the March 22 order, but denied the relief sought in that motion. Thereafter, in Cologne v. Westfarms Associates, supra, this court held that the trial court erred in directing “that the rights of free speech and petition in our state constitution may be exercised upon private property consisting of a large regional shopping center, contrary to the wishes of its owners.” Id., 50. Thus, the defendants prevailed on the merits in their appeal from the March 2 judgment ordering an injunction against them.

On appeal from the judgments of contempt, the defendants Dowling and Sheehan claim essentially that the trial court erred: (1) in that the acts for which these defendants were held in civil contempt did not and could not constitute a contempt; (2) in finding them in civil contempt without notice and without the presentation of any evidence under oath; and (3) in that it, for various reasons, lacked jurisdiction to consider the plaintiffs’ motions for contempt.

We address first the defendants’ claim that the acts for which they were held in civil contempt “did not and could not constitute a contempt.” Specifically, they contend that, because the injunction upon which their contempt was based was held in Cologne v. Westfarms Associates, supra, to have been erroneously issued, the court could not hold them in contempt for failing to obey its injunctive order. We do not agree.

“The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril.” United States v. United Mine Workers, 330 U.S. 258, 303, 67 S. Ct. 677, 91 L. Ed. 884 (1947). “[A]n order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.” Id., 293; see also W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766-67, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983); DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 276-77, 471 A.2d 638 (1984). The duty to obey the injunction exists “however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming but void law going to the merits of the case.” United States v. United Mine Workers, supra, 293-94, quoting Howat v. Kansas, 258 U.S. 181, 189-90, 42 S. Ct. 277, 66 L. Ed. 550 (1922); see also Maness v. Meyers, 419 U.S. 449, 458-59, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975); Cox, “The Void Order and the Duty to Obey,” 16 U. Chi. L. Rev. 86 (1948); 17 Am. Jur. 2d, Contempt §§ 43, 47. Most certainly, “this is not a case where the injunction was transparently invalid or had only a frivolous pretense to validity.” Walker v. Birmingham, 388 U.S. 307, 315, 87 S. Ct. 1824, 18 L. Ed. 2d 1210, reh. denied, 389 U.S. 894, 88 S. Ct. 12, 19 L. Ed. 2d 202 (1967). We agree that “[i]t would be a disservice to the law if we were to depart from the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. The procedure to enforce a court’s order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience.” Maggio v. Zeitz, 333 U.S. 56, 69, 68 S. Ct. 401, 92 L. Ed. 476 (1948); see generally note, “Developments in the Law: Injunctions,” 78 Harv. L. Rev. 994, 1077-80 (1965). Although the defendants argue that they were simply exercising “their constitutionally guaranteed rights,” it must be remembered that “respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.” Walker v. Birmingham, supra, 321. The defendants’ claim that the subsequent reversal on appeal of the trial court’s judgment entering the permanent injunction validates any action taken by them contrary to the trial court’s orders is therefore without merit.

We emphasize again that the court orders must be obeyed; there is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid. Particularly is this true of attorneys. We agree with the United States Court of Appeals for the Ninth Circuit when it said: “An attorney who believes a court order is erroneous is not relieved of the duty to obey it. The proper course of action, unless and until the order is invalidated by an appellate court, is to comply and cite the order as reversible error should an adverse judgment result. Maness v. Meyers, 419 U.S. 449, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975).” Chapman v. Pacific Telephone & Telegraph Co., 613 F.2d 193, 197 (9th Cir. 1979); see Barnd v. Tacoma, 664 F.2d 1339, 1342 (9th Cir. 1982).

The defendants’ next major claim involves the nature of the April 22, 1983 hearing during which they were found in contempt by the trial court. They claim that the trial court’s finding of contempt in the absence of any sworn testimony constituted reversible error. In response, the plaintiffs argue that representations by counsel to the trial court as well as the in-court statements by Lynn Taborsak were sufficient to support the finding of contempt. In order to address this claim, we initially examine the nature of the defendants’ actions that constituted the alleged contempt and the scope of the hearing that was accorded the defendants when they were found in contempt of court.

The trial court found the defendants in civil contempt for wilful violation of its injunctive orders. The alleged conduct of the defendants that the trial court found contemptuous occurred on Saturday, April 16,1983, at the Westfarms Mall. That conduct occurred, therefore, outside of the presence of the court.

As we have often recognized, contempts may be characterized as civil or as criminal. Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977); McTigue v. New London Education Assn., 164 Conn. 348, 352-55, 321 A.2d 462 (1973); State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960); Welch v. Barber, 52 Conn. 147, 156-57 (1884); Dobbs, Remedies (1973) § 2.9; Goldfarb, The Contempt Power (1963) pp. 49-67. In the present case, the trial court characterized the alleged contempt as “civil” and the parties do not dispute that characterization. The sanctions imposed by the trial court — a sentence of imprisonment for a period of sixty days and fines in the amount of $10,000 for each separate violation of the order — fall within the scope of possible sanctions that the court may order for civil contempt. See, e.g., DeMartino v. Monroe Little League, Inc., supra, 278-80; Board of Education v. Shelton Education Assn., supra.

Contempts of court may also be classified as either direct or indirect, “the test being whether the contempt is offered within or outside the presence of the court.” 17 Am. Jur. 2d, Contempt § 6; see also Goldfarb, supra, 67-77. A refusal to comply with an injunctive decree is an indirect contempt of court because it occurs outside the presence of the trial court. Note, 78 Harv. L. Rev., supra, 1086; see Deming v. Bradstreet, 85 Conn. 650, 658, 84 A. 116 (1912). The question then becomes how conduct, alleged to be in contempt of a court order, that occurred outside of the trial court’s presence is proved to be a contempt. Established principles of both constitutional and common law, we note, are implicated in this question.

We recognize that there are constitutional safeguards that must be satisfied in indirect contempt cases. It is beyond question that “due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.” In re Oliver, 333 U.S. 257, 275, 68 S. Ct. 499, 92 L. Ed. 682 (1948); Sodones v. Sodones, 366 Mass. 121, 127, 314 N.E.2d 906 (1974); see Harris v. United States, 382 U.S. 162, 166 n.4, 86 S. Ct. 352, 15 L. Ed. 2d 240 (1965); Cooke v. United States, 267 U.S. 517, 536-37, 45 S. Ct. 390, 69 L. Ed. 767 (1925). “ ‘If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires . . . that the accused be accorded notice and a fair hearing . . . .’”Johnson v. Mississippi, 403 U.S. 212, 215, 91 S. Ct. 1778, 29 L. Ed. 2d 423 (1971), quoting In re Oliver, supra, 275-76. Due process requires, therefore, that one accused of indirect contempt be accorded a “fair hearing,” and this includes the presentation of competent evidence in order to prove as a fact the occurrence of the alleged contemptuous conduct. Fisher v. Marubeni Cotton Corporation, 526 F.2d 1338, 1342 (8th Cir. 1975); see Groppi v. Leslie, 404 U.S. 496, 502-503, 92 S. Ct. 582, 30 L. Ed. 2d 632 (1972).

Further, at common law a charge of indirect contempt of court, in the absence of an admission of contempt, had to be proved by sufficient competent evidence, including testimony under oath. See Savin, Petitioner, 131 U.S. 267, 277, 9 S. Ct. 699, 33 L. Ed. 150 (1889); Potter v. Board of Selectmen, 174 Conn. 195, 197, 384 A.2d 369 (1978); Masti-Kure Products Co. v. Appel, 161 Conn. 108, 114, 285 A.2d 346 (1971); Gorham v. New Haven, 82 Conn. 153, 155-56, 72 A. 1012 (1909); Church v. Pearne, 75 Conn. 350, 355, 53 A. 955 (1903); Baldwin v. Miles, 58 Conn. 496, 498, 20 A. 618 (1890); Welch v. Barber, 52 Conn. 147, 156-58 (1884); Huntington v. McMahon, 48 Conn. 174, 196 (1880). Therefore, if the conduct alleged to be contemptuous occurred outside of the court’s presence, as it did in this case, the court can only act upon evidence properly taken that proves the act of contempt. 17 C. J.S., Contempt § 84 (4) and cases cited therein; 17 Am. Jur. 2d, supra, §§ 83, 88, 95 through 99; Dobbs, supra, § 2.9. As we have stated: “Where the alleged contempt does not occur in the presence of the court and is thus defined and punishable under the common law, ‘process is required to bring the party into court, and the acts or omissions constituting the offense are to be proved as in ordinary cases.’ Huntington v. McMahon, [supra], 196. Under the circumstances alleged in the present case, the court could not on its own motion, upon facts within its own knowledge, render judgment against the defendant; the evidence necessary to constitute the alleged contempt must have been established by sufficient proof in the trial court. Baldwin v. Miles, [supra], 498; Welch v. Barber, supra.” Potter v. Board of Selectmen, supra, 197. Under our rules of practice, moreover, a witness must be administered the oath or affirmation prior to testifying. Practice Book § 286. “From ancient times it has ever been held essential that witnesses in court proceedings swear or affirm before giving evidence. Curtiss v. Strong, 4 Day 51, 56 [1809]; State v. Dudicoff, 109 Conn. 711, 716, [145 A. 655 (1929)].” State v. Salafia, 29 Conn. Sup. 305, 310, 284 A.2d 576 (1971). In light of these settled principles of law, we survey the evidentiary basis upon which the trial court found these defendants in contempt of court.

At the April 22 hearing, the plaintiffs’ counsel represented by her statements to the trial court that the defendants, specifically the defendant Dowling, would not allow the plaintiffs to enter the mall on the previous Saturday for the purpose of conducting activities within the scope of the March 2 order. Counsel for the plaintiffs stated that “[a]t that time, Mr. Dowling met them and informed them that they would not be allowed in last Saturday and would not be allowed in any Saturday until the Connecticut Supreme Court ruled.” This “testimony” was not given under oath and was hence not subject to any cross-examination. Moreover, the record is barren of any indication that the plaintiffs’ counsel herself had directly observed the conduct of the defendant that was purported to constitute contempt. As such, the counsel’s representations did not constitute competent evidence upon which a finding of contempt could have been based. These representations of the plaintiffs’ counsel are not “evidence” and certainly not “proof.” See Celentano v. Zoning Board of Appeals, 135 Conn. 16, 18, 60 A.2d 510 (1948). Fairly stated, evidence legally is the means by which alleged matters of fact are properly submitted to the trier of fact for the purpose of proving a fact in issue. On the other hand, “proof” is the result or the effect of such “evidence.” Moreover, these representations were not “testimony,” which, in turn, when given under oath or stipulated to, is a species of “evidence.” It is well settled that representations of counsel are not, legally speaking, “evidence.” See, e.g., Curtis v. Rives, 123 F.2d 936, 941 (D.C. Cir. 1941); Dunn v. Stewart, 235 F. Sup. 955, 964 (S.D. Miss. 1964); Celentano v. Zoning Board of Appeals, supra; American National Bank & Trust Co. v. Long, 281 Ala. 654, 656, 207 So. 2d 129 (1968); Sloan v. Sloan, 393 So. 2d 642, 644 (Fla. App. 1981); Davis v. Independence, 404 S.W.2d 718, 720 (Mo. 1966); Wilson v. Motors Ins. Corporation, 349 S.W.2d 250, 254 (Mo. App. 1961) (statements of unsworn attorney do “not prove themselves or constitute evidence”); O’Hearn v. O’Hearn, 55 App. Div. 2d 766, 767, 389 N.Y.S.2d 651 (1976). We note that, had the trial court relied entirely upon unsworn statements of the plaintiffs’ counsel at the April 22 proceeding, the due process rights guaranteed the defendants as enunciated by the United States Supreme Court in In re Oliver, supra, may well have been violated. See Sodones v. Sodones, supra.

At the April 22 proceeding, after the plaintiffs’ counsel made her unsworn statements about the incident in question, the trial court made the following inquiry:

“The Court: Was the President of NOW, Lynn Taborsak, with them?

“Ms. Stone: Yes, Your Honor. She was there, and she’s in Court.

“The Court: Is Lynn Taborsak in Court?

“Ms. Stone: Yes, Your Honor, she’s in Court today.

“The Court: Miss Taborsak, would you rise?” The record indicates that Lynn Taborsak then stood up in court, but that no oath or affirmation was administered to her as required pursuant to Practice Book § 286. The following colloquy then occurred:

“The Court: Have you heard the representations made by Attorney Stowe — Stone relative to what resulted at the Westfarms Mall on Saturday last, April 16th, whereby you were denied access by Victor Dowling?

“Ms. Taborsak: Yes, I have.

“The Court: Is that a correct statement?

“Ms. Taborsak: Yes, it is.

“The Court: All right. Thank you, Miss Taborsak. Were you advised, Miss Taborsak, by Mr. Dowling that you would be denied access also on Saturday, April 23?

“Ms. Taborsak: Is that this Saturday?

“The Court: Yes.

“Ms. Taborsak: Yes, I was.”

Although the record reveals that Lynn Taborsak as a “witness” had direct knowledge of the incident, we cannot countenance a finding of contempt based upon unsworn “testimony.”

In sum, we are compelled to affirm the established principle of law that a finding of indirect civil contempt must be established by “sufficient proof” that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure “as in ordinary cases.” Potter v. Board of Selectmen, supra, 197, quoting Huntington v. McMahon, supra, 196. This rule must be given full effect especially when, as in this case, the defendants are subject to substantial fines and to a possible loss of liberty. “We cannot uphold an adjudication of contempt in the total absence of evidence upon which such a finding could be based.” Commonwealth v. Kreplick, 379 Mass. 494, 497, 399 N.E.2d 9 (1980).

The actual predicate necessary for finding the defendants in contempt was not established; the trial court’s traditional and required factfinding function in that regard was not fulfilled. These are not mere technical matters. It is clearly necessary to base a finding of contempt on competent evidence. Due process “implies the right not to be deprived of one’s property or liberty without evidence having been offered against him in accordance with the established rules . . . .’’Collins v. Superior Court, 145 Cal. App. 2d 588, 594, 302 P.2d 805 (1956); see Ransom v. Superior Court, 262 Cal. App. 2d 271, 275, 68 Cal. Rptr. 507 (1968). Full constitutional protections were not afforded these defendants. “ ‘Certainly the history of contempt litigation . . . prescribes extreme care and insistance on the full indicia of due process in contempt cases . . . ” (Citations omitted.) Fisher v. Marubeni Cotton Corporation, supra, 1342. In this case, a proper proceeding for determining the existence of a contempt must be conducted within the framework of substantive and procedural rules prescribed by law for the circumstances and the parties. “The law of the land” requires this. See In re Oliver, supra, 278. This was not done. In light of what we have said on this vital issue, the trial court’s determination of contempt constitutes error cognizable under our rules of practice. Practice Book § 3063; see, e.g., Batick v. Seymour, 186 Conn. 632, 640-41, 443 A.2d 471 (1982); State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980). Accordingly, the finding of these defendants in contempt cannot stand because it was based upon “testimony” that was given contrary to our rules of practice and very probably in violation of constitutional principles guaranteeing fundamental fairness.

We further note that the plaintiffs were allowed access to the mall on April 23, the day following the proceeding during which these defendants were found in contempt until the direct appeal was decided. Cologne v. Westfarms Associates, supra, 54. “To effectuate the purpose of civil contempt, the contemnor should be able to obtain release from the sanction imposed by the court by compliance with the judicial decree. United States v. United Mine Workers, supra, 331-32; McTigue v. New London Education Assn., supra, 353; Rogers Mfg. Co. v. Rogers, [38 Conn. 121,] 123 (1871).” Connolly v. Connolly, 191 Conn. 468, 482-83, 464 A.2d 837 (1983). Because these defendants have complied with the March 2 order from the period beginning April 23, 1983, through the date that our decision in the direct appeal was announced, the ultimate purpose of finding them in civil contempt has been satisfied, and, therefore, we need not direct any further proceedings in this matter under such circumstances.

There is error, the judgment finding the defendants Sheehan and Dowling in contempt is set aside and the matter is remanded with direction to dismiss the order to show cause.

In this opinion the other judges concurred.

       The defendant Joseph P. Vetrano withdrew his appeal on November 3, 1983.

       For a full text of this March 2, 1983 order, see Cologne v. Westfarms Associates, 192 Conn. 48, 52-54 n.2, 469 A.2d 1201 (1984).

       The appeals of the defendants Westfarms Associates, A. Alfred Taubman, Richard Kughn, and Sidney Unobsky were withdrawn on January 17, 1985.

       At that time Practice Book § 3065, “[Stay of Execution] — In General,” provided in part: “In all actions, except criminal actions and actions concerning child neglect brought pursuant to chapter 37, proceedings to enforce or carry out the judgment shall be stayed for twenty days; if the time in which to take an appeal is extended under Sec. 3097 such proceedings shall be stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause; and, if the case goes to judgment in the supreme court, until ten days after the decision is announced; but if the judge who tried the case is of the opinion that the extension is sought or the appeal is taken only for delay or that the due administration of justice requires him to do so, he may at any time, upon motion and hearing, order that the stay be terminated. . . .”
      Effective January 1,1985, Practice Book § 3065 was amended to eliminate conflicts with statutes that involve stays. See footnote 5, infra; cf. Hartford, Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 7, 469 A.2d 778 (1984).

       General Statutes (Rev. to 1983) § 52-477 provides: “When judgment has been rendered for a permanent injunction ordering either party to perform any act, the court, upon an application similar to that mentioned in section 52-476, shall stay the operation of such injunction until a final decision in the supreme court, unless the court is of the opinion that great and irreparable injury will be done by such stay or that such application was made only for delay and not in good faith.” That provision was amended in special session by Public Acts 1983, No. 83-29, § 49, to accommodate the establishment of the new Appellate Court.

       The plaintiffs’ counsel Martha Stone did not represent that she had directly observed the occurrences at the mall on April 16,1983. A fair reading of the transcript shows that the plaintiffs’ counsel merely related to the trial court what had been told to her by Lynn Taborsak.

       The transcript indicates, however, that no mittimus was issued on April 22, 1983.

       The trial court, Spada, J., rendered the original March 2, 1983 judgment while sitting in the Superior Court for the judicial district of Hartford-New Britain at Hartford. The subsequent proceedings described in this decision above were held in front of Judge Spada when he was sitting in the Superior Court, located in Rockville, for the judicial district of Tolland. The defendants on this appeal claim that the trial court, Spada, J., sitting in Rockville erred in hearing these post trial proceedings because venue had not been transferred to that court pursuant to General Statutes § 51-347b. Judge Spada had apparently been transferred to the Superior Court in Rock-ville at the time the proceedings on the plaintiffs’ postjudgment motions The defendants had not raised this issue below and in light of our disposition of this case we need not address it.

       Although we have not specifically labeled in-court contempts as “direct” and out-of-court contempts as “indirect,” we have recognized both the distinctions between these types of contempts and the process due the alleged contemnor on the basis of those distinctions. See, e.g., Potter v. Board of Selectmen, 174 Conn. 195, 384 A.2d 369 (1978); Whiteside v. State, 148 Conn. 77, 167 A.2d 450 (1961); State v. Jackson, 147 Conn. 167, 158 A.2d 166 (1960); Welch v. Barber, 52 Conn. 147 (1884); accord School Committee of New Bedford v. Dlouhy, 360 Mass. 109, 116-17, 271 N.E.2d 655 (1971).

       The Oliver court further noted: “The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent ‘demoralization of the court’s authority’ before the public.” In re Oliver, 333 U.S. 257, 275, 68 S. Ct. 499, 92 L. Ed. 682 (1948); see State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960).

       We note that in the federal system the burden of proof in civil contempt cases is the “clear and convincing evidence” standard. See Oriel v. Russell, 278 U.S. 358, 362, 49 S. Ct. 173, 73 L. Ed. 419 (1928); In re Irving, 600 F.2d 1027, 1037 (2d Cir.), cert. denied, 444 U.S. 866, 100 S. Ct. 137, 62 L. Ed. 2d 89 (1979); Goldfarb, Contempt Power (1963) p. 251; see generally note, “Procedures for Trying Contempt in the Federal Courts,” 73 Harv. L. Rev. 353 (1959).

       “[Practice Book] Sec. 286. administering oath.
      “The oath or affirmation shall be administered by the court, the clerk or a clerical or administrative assistant if so authorized by the chief clerk, deliberately and with due solemnity, to each witness as he takes the stand. The reporter shall note by whom it was administered and furnish a certified list of the witnesses sworn each day to the clerk, who shall record the same.” See General Statutes § 1-25.
      In Welch v. Barber, 52 Conn. 147, 158 (1884), this court disapproved the admission into evidence of affidavits for the purpose of establishing contumacious conduct. See 17 Am. Jur. 2d, Contempt § 97; cf. annot., 41 A.L.R.2d 1263; annot., 2 A.L.R. 225.

       That the defendants were not present at the April 22 proceeding does not alter this analysis. Had they been present or had they been represented by counsel, it is unlikely that the plaintiffs’ counsel would have been subject to cross-examination, a right that this court has recognized, at least since Welch v. Barber, 52 Conn. 147 (1884), is available to one accused of indirect contempt.

       Under the circumstances of this case where the alleged contempt did not occur in the presence of the court, it was necessary for the plaintiffs to establish it “by sufficient proof.” Potter v. Board of Selectmen, 174 Conn. 195, 197, 384 A.2d 369 (1978). This threshold burden is quite different from the circumstance where inability to comply is claimed by a defendant when the burden of proving such inability lies with the delinquent party. See Leslie v. Leslie, 174 Conn. 399, 403, 389 A.2d 747 (1978).

       We need not, therefore, address any other claims raised by the defendants.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    State of Connecticut v. Thomas N. Parmalee
    (11596)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued May 1
    decision released August 6, 1985

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, weré Austin J. McGuigan, chief state’s attorney, JohnDropick, assistant state’s attorney, and Jeffrey Somers, legal intern, for the appellee (state).
   Santaniello, J.

The defendant, Thomas Parmalee, was convicted by a jury of second degree arson in violation of General Statutes (Rev. to 1981) § 53a-112. At the time of the offense the statute provided that a person is guilty of second degree arson when he starts a fire “(1) [wjith intent to destroy or damage a building ... to collect insurance for such loss; and (2) such act subjects another person to a substantial risk of bodily injury or another building to a substantial risk of destruction or damage.” General Statutes § 53a-112 (a). At trial, the state introduced evidence that the fire started by the defendant subjected neighboring buildings to risk of damage. The defendant claims on appeal that the state failed to prove beyond a reasonable doubt that these buildings were exposed to a “substantial risk.”

The jury could reasonably have found the following facts: The defendant intentionally set fire to his home in New Milford on February 19,1981. At the time, the defendant was unemployed and faced possible foreclosure on the property. He had recently taken out fire insurance on the home and had asked a friend how to start a fire without anyone detecting that it was arson. The town fire marshal concluded that the fire was caused by arson. An eyewitness saw the defendant leaving his home while smoke was coming from the house.

Because the fire was reported soon after it was lit and the fire department was able to respond quickly, the fire was extinguished before it engulfed the entire house. The fire was effectively confined to the kitchen-dining area. Stuart Abseck, an expert in fire investigations, testified at trial that if the fire had not been quickly contained, the house would have burned easily because of its wood frame construction. The defendant’s house was in a residential neighborhood and was surrounded by three other wood frame dwellings at distances of 102, 109 and 232 feet away. There was also an apartment house with a brick facade and a conventional roof seventy-eight feet away.

At trial, the state relied on Abseck’s testimony to prove that the fire set by the defendant posed a substantial risk to surrounding structures. During direct examination by the state, Abseck testified in part as follows:

“Q. Based on your observations, the distances between the buildings and the materials of construction, the nature of the fire, your observations at the scene and your experience, do you have an opinion as to whether or not the fire in Mr. Parmalee’s premises posed a substantial threat to the other structures surrounding him?

“A. Yes.

* * *

“Q. What is your opinion, sir?

“A. My opinion is that that building posed a hazard if it were involved in fire.

“Q. Was it a substantial threat, sir?

“A. Yes.”

The defendant’s claim on appeal is that Abseck’s testimony was insufficient to support a conviction for arson in the second degree because the state failed to show through the testimony that the fire posed a substantial risk to other buildings.

The defendant claims that General Statutes § 53a-112 requires the state to prove beyond a reasonable doubt that the fire posed not only a potential threat, but an actual threat to surrounding buildings. The defendant argues that because Abseck’s testimony does not establish that there was an actual risk to the surrounding structures, there was insufficient evidence to convict him under the statute. Section 53a-112 requires that another building be exposed to a “substantial risk” but does not define the phrase. The dispositive question is not whether the statute requires proof of actual or potential risk but rather at what time the degree of risk is measured.

“It is a fundamental principle of statutory construction that statutes are to be construed so that they carry out the intent of the legislature.” State v. Campbell, 180 Conn. 557, 561, 429 A.2d 960 (1980); 2A Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. In construing a statute, this court will consider its plain language, its legislative history, its purpose and the circumstances surrounding its enactment. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Dukes v. Durante, 192 Conn. 207, 214-15, 471 A.2d 1368 (1984). Identifying the societal problems which the legislature sought to address may be particularly helpful in determining the true meaning of the statute. State v. Campbell, supra, 562. Each word used by the legislature should be given effect and, as far as possible, the entire enactment is to be harmonized. State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978); Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 355-56, 402 A.2d 332 (1978).

First, the legislature has clearly indicated that it is the very act of starting a fire which is criminal under General Statutes § 53a-112. The statute provides that a person is guilty of arson in the second degree when “he starts afire ... (1) [w]ith intent to destroy or damage a building . . . and (2) such act subjects . . . another building to a substantial risk of destruction or damage.” (Emphasis added.) General Statutes § 53a-112 (a). Liability is not predicated on how far the fire spreads before being extinguished; the statute looks only to the moment the fire was set to determine the criminality of the act. If the legislature had meant to say that it is the fire which actually develops which must pose a “substantial risk,” the legislature might have used the words “and (2) such fire subjects . . . .” From the actual language used, we can infer that the second element of the offense is satisfied if, at the time the fire was set, a reasonable person could have foreseen that the risk to another building was substantial. See People v. Davis, 89 Misc. 2d 535, 539, 392 N.Y.S.2d 195 (1977). Thus, even though the fire was put out before it could reach its full potential and ultimately posed no actual danger to surrounding buildings, the act of setting the fire placed another building at “substantial risk” within the meaning of § 53a-112.

Second, the statutory scheme and relevant legislative history of General Statutes §§ 53a-lll through 53a-114 demonstrate that the legislature sought to proscribe not only arson that places others in actual danger but also arson that gives rise to potential danger. Our arson statutes are based on parallel provisions of the New York Revised Penal Law and the Model Penal Code and similarly define the various grades of arson in terms of the degree of risk to human safety. Report of the Commission to Revise the Criminal Statutes (1965) pp. 3,13-14. Section 53a-lll (arson in the first degree) was aimed at penalizing those who create serious, actual risks to the life or safety of others. See Commission to Revise the Criminal Statutes, Connecticut Penal Code Comments (West 1972) p. 37. Section 53a-112 was specifically directed to situations where a person intentionally burns another’s building or where the actor burns his own building in order to collect insurance. “In either case ... an essential element is danger to another person or another building. This requirement stems from the basic rationale behind the law of arson: protection of human life and safety. The inclusion of danger to another building (even if owned by the actor) is justified by the fact that buildings typically contain human beings, and thus danger to another building is likely to endanger another person’s life or safety.” Id. In § 53a-112, a lesser degree of risk is involved and it is apparently the creation of potential for harm that is sanctioned. The purpose of § 53a-113 (arson in the third degree) was to penalize those who actually damaged another’s property through recklessness, and the purpose of § 53a-114 (arson in the fourth degree) was to penalize those who endanger another’s property through recklessness. Id. The overall statutory scheme is plain: different degrees of punishment are imposed according to the different degrees of criminality involved. If we were to adopt the defendant’s position and measure the degree of risk at the time a fire is actually extinguished, this scheme would not be effectuated and the differences between §§ 53a-lll and 53a-112 would be blurred. To keep § 53a-112 consistent with the legislature’s overall statutory scheme, we hold that the size of the conflagration and the actual harm involved have no bearing on the arsonist’s culpability under the section. The very act of setting the fire and placing others at substantial risk triggers liability under § 53a-112.

Furthermore, we note that if there are two possible interpretations of a statute and one alternative proves unreasonable or produces the possibility of bizarre results, then the more reasonable alternative should be adopted. State v. Campbell, supra. The law favors a rational statutory construction and we presume that the legislature intended a sensible result. Peck v. Jacquemin, supra, 66. The defendant’s interpretation of General Statutes § 53a-112 would condition liability under the statute on such factors as the efficiency of the area fire department, the fire’s proximity to the firehouse, the speed at which the fire was reported and the weather. But the legislature did not intend that the crime of arson be dependent on such conditions. It would be bizarre to relieve an arsonist of liability because of the hard work and skill of those who put the fire out. It is more reasonable to conclude that the legislature intended arsonists to be held culpable under § 53a-112 for creating substantial risks to other buildings, regardless of how close such risks come to being fulfilled.

The expert testimony that the possibility of full involvement of the house and fire posed a substantial threat to the other buildings was thus sufficient to support the defendant’s conviction. See State v. Banks, 194 Conn. 617, 621 484 A.2d 444 (1984).

There is no error.

In this opinion the other judges concurred.

       “[General Statutes (Rev. to 1981)]. Sec. 53a-112]. ARSON IN the SECOND DEGREE: CLASS B FELONY, (a) A person is guilty of arson in the second degree when he starts a fire or causes an explosion: (1) With intent to destroy or damage a building, as defined in section 53a-100, (A) of another, or (B) whether his own or another’s, to collect insurance for such loss; and (2) such act subjects another person to a substantial risk of bodily injury or another building to a substantial risk of destruction or damage.
      “(b) Arson in the second degree is a class B felony.”
      This section was substantially amended in 1982 by Public Acts 1982, No. 82-290, and again in 1984 by Public Acts 1984, No. 84-4. Reference to the section in this opinion will be to the 1981 version.

       The defendant initially raised three other issues in his brief concerning the sufficiency of the information charging him with arson. These claims, however, were subsequently withdrawn.

       This issue was raised but was not decided in State v. Banks, 194 Conn. 617, 619, 484 A.2d 444 (1984). In Banks, we held that there was sufficient evidence to find that the fire was a substantial risk to surrounding structures under General Statutes § 53a-112. We found the evidence sufficient even though the fire was extinguished before it spread to the adjoining structure. In Banks, however, we reserved judgment on the question to be decided today. Id., 619 n.5.

       The legislative commission which drafted the statute stated in its committee notes that under General Statutes § 53a-112 “the actor is guilty of arson even though the fire is extinguished before anything burns.” (Unpublished notes from the state library archives.)

       The commission to revise the criminal statutes has stated in its commentary to the arson provisions that “the primary rationale of these sections is the protection of human life or safety. Thus, the various grades of arson differ depending on the degree of risk to human life.” Commission to Revise the Criminal Statutes, Connecticut Penal Code Comments (West 1972) p. 36.

       “[General Statutes (Rev. to 1981)] Sec. 53a-lll. ARSON IN THE FIRST degree: class a felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.
      “(b) Arson in the first degree is a class A felony.”

       Although we use the commission’s commentary here as a guide for determining the intention of the legislature, the commentary was not officially adopted by the General Assembly and is not determinative.

       “[General Statutes (Rev. to 1981)] Sec. 53a-113. arson in the third degree: class c felony, (a) A person is guilty of arson in the third degree if he recklessly causes destruction or damage to a building, as defined in section 53a-100, of his own or of another by intentionally starting a fire or causing an explosion.
      “(b) Arson in the third degree is a class C felony.”

       “[General Statutes (Rev. to 1981)] Sec. 53a-114. reckless burning: class D felony, (a) A person is guilty of reckless burning if he intentionally starts a fire or causes an explosion, whether on his own property or another’s, and thereby recklessly places a building, as defined in section 53a-100, of another in danger of destruction or damage.
      “(b) Reckless burning is a class D felony.”

       In his brief the defendant refers to a passage from the report of the commission to revise the criminal statutes and uses it in support of his argument that the legislature intended to require that actual risk be proved. The passage essentially states that the commission opted for the phrase “substantial risk” over the phrase “reasonable possibility that such act might endanger” because the later standard was too low. The “reasonable possibility” standard was adopted in a New York proposal. The commission evidently felt that “almost any fire or explosion involves a ‘reasonable possibility’ of danger, since most fires attract bystanders.” Report of the Commission to Revise the Criminal Statutes (1965) p. 14. While it is true that the legislative commission adopted the higher standard of “substantial risk,” it does not follow that they intended to equate “substantial risk” with “actual risk.”


author: Dannehy, J.

text:
    State of Connecticut v. John J. McCarthy, Jr.
    (12069)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued April 30
    decision released August 6, 1985

      Bruce L. Levin, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, Judith Rossi, special assistant state’s attorney, and Raymond J. Doyle, Jr., assistant state’s attorney, for the appellee (state).
   Dannehy, J.

The defendant was convicted by a jury of six counts of burglary in the third degree, four counts of larceny in the second degree, one count of larceny in the third degree, and one count of larceny in the fourth degree. On appeal he claims that (1) the trial court erred in denying his motion to dismiss pursuant to General Statutes § 54-82c, (2) the trial court erred in allowing evidence of insurance payments to establish the value of the stolen property, (3) he was denied effective assistance of counsel, (4) the trial court erred in admitting the hearsay testimony of two police officers and the written statement of an accomplice, and (5) there was insufficient evidence to sustain the verdict. We disagree and find no error.

Between June 5, 1980, and June 19, 1980, eight homes in affluent sections of the town of Ridgefield were burglarized. Taken from those homes was an assortment of silverware, jewelry, cash, and other items. In August, 1980, a police investigation led to the arrest of David Basque. Basque admitted to having driven the defendant to several homes in Ridgefield during the span of a few days in order to burglarize them with the intent to sell the items stolen to purchase drugs. On the basis of Basque’s confession, the defendant was arrested.

Prior to the commencement of trial, the defendant moved to dismiss all of the charges against him, claiming that he had been denied his right to a speedy trial pursuant to § 54-82c of the General Statutes. After a hearing, the trial court denied the motion. On appeal, the defendant claims that the trial court erred in denying his motion when the defendant did all that was required of him under § 54-82c.

The stipulated facts relating to this claim are as follows. On June 5,1981, the defendant sent to the warden of the institution where he was incarcerated an undated “written notice of the place of his imprisonment and his request for final disposition ... of the . . . information.” General Statutes § 54-82c (a). On June 5, 1981, the warden forwarded the defendant’s request together with the required certificate to the appropriate court, which acknowledged receipt of the request on June 11,1981. General Statutes § 54-82c (b). The office of the state’s attorney, however, did not receive the defendant’s request for disposition until September 3, 1982. The trial began on December 1, 1982, eighty-nine days after the receipt of the defendant’s request by the state’s attorney but almost eighteen months after the defendant first submitted his request to the warden.

Under General Statutes § 54-82d, if a criminal case is not assigned for trial within the statutory period of 120 days fixed under § 54-82c, the case must be dismissed. The defendant does not dispute that our holding in State v. Springer, 149 Conn. 244, 178 A.2d 525 (1962), is controlling. There, we held that “[ujnder [§ 54-82c], the act required to be done in order to start the running of the period of 120 days is the delivery of the prisoner’s request, accompanied by his custodian’s certificate, to the prosecuting official of the county and the appropriate court. Obviously, a prisoner confined in a penal or correctional institution could not be required to make personal delivery. The General Assembly has therefore provided that the prisoner initiate the request for a trial, has required further that his custodian supply information concerning the prisoner’s confinement to the prosecuting official and the court, and has then prescribed the procedure to effect the actual delivery of both. It is the completed delivery of both the request and the supplemental information which starts the running of the period of 120 days within which the prisoner must be brought to trial. Subsection (b) makes this clear in that the prisoner’s written notice and request is required only to be ‘given or sent' to the custodial official, but the latter’s transmittal must be ‘by registered or certified mail, return receipt requested.’ The return receipt furnishes ample means of fixing the date from which the 120 days is to be computed. No provision is made, however, for fixing the date on which the notice and request is ‘given or sent’ by the prisoner to his custodian.” Id., 249-50.

Admittedly, the defendant was brought to trial within 120 days of the receipt of his request by the state’s attorney. The defendant urges us, however, to create an implied exception to our interpretation of when the 120 day period begins to run where a defendant has done “all things required of him to secure his right to a speedy trial under § 54-82c” and where the only failure to comply with the statute has been on the part of the warden who, due to inadvertence or malfeasance, has failed to notify the appropriate officials of the defendant’s request.

On the basis of this record, the defendant has failed to provide us with any evidence to indicate that the delay between June 5, 1981, and September 3, 1982, was caused by the “inadvertence or malfeasance” of the warden in violation of the warden’s statutory duty “promptly [to] forward” the defendant’s request. General Statutes § 54-82c (b). At the hearing on his speedy trial motion, the defendant not only failed to call the warden to testify but he offered no evidence concerning the cause of the delay. In the absence of any evidence to the contrary, it is presumed that the warden properly performed his duty. Parham v. Warden, 172 Conn. 126, 134, 374 A.2d 137 (1976); State v. Lenihan, 151 Conn. 552, 555, 200 A.2d 476 (1964). We cannot conclude, as the defendant argues, that the only reasonable inference for the cause of the delay in this case was that the warden simply failed to forward the defendant’s request to the state’s attorney.

The defendant next claims that the trial court erred in overruling his hearsay objections to the state’s use of evidence of insurance payments to establish the value of the property taken from two of the burglarized residences.

To prove the value of the items stolen, the state offered the testimony of the victim-owners. The first victim testified that her losses included several antique sterling silver serving pieces and some gold and silver jewelry. She stated that she initially estimated the value of these items at approximately $2000. The state then asked her whether she had been reimbursed by her insurance carrier for the loss. She replied in the affirmative. When asked how much she had received, the defendant objected on the ground of hearsay. The trial court overruled the objection and the defendant duly excepted. The victim then testified that she had received $4000 from her insurance company.

The next victim-owner called by the state testified that several pieces of jewelry, some camera equipment, and a silver candy dish were taken from her home. She Stated that, in her opinion, the value of the stolen items was approximately $2000. She further testified, over the defendant’s renewed hearsay objection, that she had received a $1200 reimbursement from her insurance company.

The jury returned verdicts of guilty of larceny in the second degree with respect to the burglaries of these two residences. General Statutes (Rev. to 1981) § 53a-123 provides: “(a) A person is guilty of larceny in the second degree when ... (2) the value of the property or service exceeds five hundred dollars . . . .” General Statutes (Rev. to 1981) § 53a-121 (a) provides in pertinent part: “[T]he value of property . . . shall be ascertained as follows: (1) . . . value means the market value of the property ... at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property . . . within a reasonable time after the crime.”

The law in this state is well settled as to the competency of the owner of property to testify as to its value. “Our cases have ruled that the competence of the witness to testify to the value of property may be established by demonstrating that the witness owns the property in question. . . . The rule establishing an owner’s competence to testify reflects both the difficulty of producing other witnesses having any knowledge upon which to base an opinion especially where the stolen items are never recovered . . . and the common experience that an owner is familiar with her property and knows what it is worth. . . . This rule is applicable in criminal as well as civil cases.” (Citations omitted.) State v. Baker, 182 Conn. 52, 60-61, 437 A.2d 843 (1980); State v. Gabriel, 192 Conn. 405, 424, 473 A.2d 300 (1984). We do not understand by what reason the defendant can claim prejudicial error with respect to the admission of the evidence of insurance payments where each owner first testified as to her opinion of the value of the stolen property.

This court recently approved without discussion the admission of evidence of insurance proceeds to establish the value of stolen property. State v. Taylor, 196 Conn. 225, 229, 492 A.2d 155 (1985). While payment by an insurer might be considered an implied hearsay assertion of its belief as to market value, both the Federal Rules of Evidence and the Uniform Rules of Evidence do not regard nonverbal conduct as falling within the definition of hearsay unless it is intended as an assertion. Fed. R. Evid., rule 801 (a); Unif. R. Evid. (1974 Rev.), rule 62 (1). Evidence of nonassertive conduct by persons not in privity with the parties is not violative of modern conceptions of the hearsay rule and, in the context of this case, had significant probative value and inherent guarantees of trustworthiness without attendant prejudice to the defendant. See State v. Sharpe, 195 Conn. 651, 664-66, 491 A.2d 345 (1985).

The defendant further claims that his right to effective assistance of counsel was violated because the performance of his trial counsel was neither “ ‘ “reasonably competent [n]or within the range of competence displayed by lawyers with ordinary training and skill in criminal law.” ’ ” Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981). This claim is specifically based on his trial counsel’s conduct with respect to the evidentiary issues raised by the defendant in his fourth claim of error.

The state’s principal witness against the defendant was David Basque. On direct examination, Basque testified that on August 2,1980, he had identified for the Ridgefield police several houses which he and the defendant had burglarized in June of that year. Two police officers had taken him for a ride through certain sections of Ridgefield. When he recognized a house that he and the defendant had burglarized, Basque pointed out that house to the police. At trial, he could not remember details about the houses nor could he recall from memory the names of the owners which the police disclosed to him after he had pointed out a house that had been burglarized. To refresh his recollection, Basque had to refer frequently during his direct examination to the written statement he had given to the police on August 2, 1980.

On cross-examination, Basque completely repudiated his direct testimony. He testified that on August 2, 1980, he was experiencing drug withdrawal and that, in desperation, he was willing to “do anything” to get drugs. He stated that “in exchange for” his confession, the police promised him that he would not go to jail and that he would receive some methadone. With respect to his written statement, he claimed that it had not been written by him, that he had never read it, that he had not known what he was signing, and that he would have signed anything given his desperate state of mind. He further testified that he could not be certain that he had really recognized the houses which he had pointed out to the police and that he might even be confusing the burglaries in this case with other burglaries that he had committed alone. He had identified those homes, he continued, “[bjecause I had to cooperate with the police at that time.”

On redirect examination, the state attempted to rehabilitate its witness, but Basque’s testimony was equivocal and he continued to maintain that he was uncertain about the houses he had identified on August 2,1980.

The state then introduced the testimony of the two police officers to whom Basque had pointed out the houses and given his written statement. Their testimony essentially described Basque’s conduct, his physical and mental state on the day in question, the circumstances surrounding the confession and the procedure used for determining the identification of the burglarized residences. It was also brought out that the police had provided Basque with his daily dose of methadone before he identified the houses and signed his statement. The defendant’s objections to portions of this testimony as hearsay were overruled. No exceptions were taken.

The defendant, during the presentation of his case, called Basque as a witness. When asked why Basque’s testimony was “different today from what you told the police on August 2nd,” Basque replied, “I’m under oath. I have to tell the truth, sir.” During cross-examination by the state, the witness maintained that he signed the statement only because he was promised by the police that he would not go to jail and that he would get his methadone, if he cooperated. He also denied receiving the methadone until he had agreed to sign a statement. At this time, the state, without objection, introduced into evidence the signed statement of Basque.

The defendant contends that the introduction into evidence of the testimony of the two police officers and the written statement of Basque constituted hearsay. Although these claims were not properly preserved at trial, because they implicate the defendant’s sixth amendment right to effective assistance of counsel we review them under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

To succeed in his claim of ineffective assistance of counsel, the defendant must show that his attorney’s performance was not “reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law”; State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975); and further, that this “ ‘lack of competency contributed to the conviction.’ ” State v. Clark, supra; see also State v. Gregory, 191 Conn. 142, 143-44, 463 A.2d 609 (1983); State v. Scielzo, 190 Conn. 191, 206, 460 A.2d 951 (1983); State v. Chairamonte, 189 Conn. 61, 63, 454 A.2d 272 (1983). “If the evidence upon which the [defendant] bases his claim of ineffective assistance was properly admissible, he cannot sustain even the first part of this dual burden since the failure to object to admissible evidence cannot be considered conduct falling below the level of reasonably competent representation.” Williams v. Manson, 195 Conn. 561, 564, 489 A.2d 377 (1985).

The testimony of one witness of a party may be contradicted by the testimony of any other witness offered by that party. Delfino v. Warners Motor Express, 142 Conn. 301, 307, 114 A.2d 205 (1955). Such contradiction, however, must take the form of factual evidence and no witness can be impeached by contradicting his testimony as to a collateral matter. State v. Wilson, 158 Conn. 321, 324, 260 A.2d 571 (1969). A contradiction is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict the witness. Id.

Obviously, the accuracy and voluntariness of the confession made by Basque were material issues in this case. The testimony of the police officers was introduced to contradict the implications raised by Basque’s testimony during his cross-examination by the defendant. The officers’ testimony was offered to show that the identification procedure used was neutral and unintimidating, that they made no threats or promises with regard to incarceration or sentencing, and that Basque was supplied with his daily dosage of methadone prior to the time he identified the houses and signed the written statement. These factual assertions were elicited to contradict the defendant’s version of the circumstances surrounding his confession. Any reference by the police officers to the incriminating statements made by Basque were merely reiterative of the testimony given by Basque during his direct examination by the state. The testimony of the officers, therefore, was properly admitted.

As a general rule, a party cannot impeach the testimony of its own witness by a prior inconsistent statement. Delfino v. Warners Motor Express, supra, 307. “An inconsistent statement, although offered by the party calling the witness who is claimed to have made it, may be admitted where hostility, surprise or deceit is disclosed.” Liebman v. Society of Our Lady of Mount St. Carmel, Inc., 151 Conn. 582, 588, 200 A.2d 721 (1964). “ ‘[I]f the witness fails to testify in substantial accord with his prior statement, the court has discretion to permit the admission of the inconsistent statement, even though surprise, in the full sense of the word, is lacking.’ ” (Citations omitted.) State v. Roberson, 173 Conn. 97, 100, 376 A.2d 1089 (1977).

In this case, it is fair to assume that, had the defendant objected to the admission of the statement, the trial court would have admitted it as a prior inconsistent statement. At an earlier stage of the trial, the trial court remarked, during an evidentiary ruling, that “I think the question is appropriate until there’s a determination made as to whether or not it’s [Basque’s] recollection or whether or not he’s hostile.” Similarly, in its charge to the jury, the trial court properly instructed the jury that Basque’s statement was to be considered “not to prove the truth of the facts contained” therein but for the purpose of impeachment only. A ruling admitting the statement, therefore, would have been discretionary and could properly have been made under the circumstances. Because we find that the evidence upon which the defendant bases his claim of ineffective assistance was properly admitted, we cannot hold, on the basis of this record, that his trial counsel’s performance fell below the level of “reasonably competent representation.” Williams v. Manson, supra, 564.

Finally, the defendant contends that the evidence adduced at trial was insufficient to sustain the verdict. When the sufficiency of the evidence supporting a verdict is challenged, we must determine whether the trier of fact “ ‘could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt . . . .’ ” State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). In so doing, we construe the evidence in a manner most favorable to sustaining the verdict. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984).

From the evidence presented, the jury could reasonably have found the following facts. In June of 1980, Basque drove the defendant to Ridgefield on several occasions for the purpose of committing burglaries in order to obtain money for drugs. After his arrest on August 1, 1980, in Bridgeport on unrelated charges, Basque admitted to having committed several burglaries in Ridgefield. He offered the police information definitively linking himself and the defendant to at least one known burglary in Ridgefield. Because he had informed the police that he was being treated in a methadone maintenance program and required a daily dose of methadone, the police, on the morning of August 2, 1980, obtained the drug for Basque. After taking the methadone, Basque was driven by the police around Ridgefield past “hundreds” of homes, out of which he identified eight as those which he and the defendant had burglarized. Although he did not know the names of the owners of the eight homes, Basque was able to give details such as points of entry and items stolen from each house to corroborate his identifications. The police told Basque the owners’ names to correlate with his identifications.

During the drive, passing by hundreds of houses, Basque at times spontaneously and immediately recognized a house; at other times he asked the police to drive past a certain house again. Throughout the identification procedure, Basque was somewhat anxious but not overwrought, and he spoke with the police in normal, conversational tones. When the identification procedure was completed, the police wrote down in narrative form the information gleaned from Basque. After he read the statement, including the provision regarding the penalty for perjury, Basque signed the written statement.

In reviewing the allegation of insufficient evidence, this court will not reweigh the evidence nor resolve questions of the credibility of witnesses, but will look to that evidence and the reasonable inferences drawn therefrom which support the findings of the jury. State v. Haddad, 189 Conn. 383, 389, 456 A.2d 316 (1983). The record is replete with evidence from which the jury could have reasonably concluded that the crimes of burglary and larceny as charged in the information were committed. The defendant pleaded not guilty. He denied any connection with the crimes charged. The evidence linking him with the crimes was the testimony of his alleged accomplice, David Basque. The credibility of Basque was a matter exclusively for the jury. If the jury believed Basque’s initial testimony and disbelieved his later attempt to repudiate his confession, the jury could have reasonably concluded that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. Such questions are left to the jury. State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980). That being so, our review is at an end.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 54-82c. (Formerly Sec. 54-139). prisoner’s right TO speedy trial ON pending CHARGES, (a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden, community correctional center administrator or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.
      “(b) The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, community correctional center administrator or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
      “(c) The warden, community correctional center administrator or other official having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof.
      “(d) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in subsection (a) hereof shall void the request.”

       “[General Statutes] Sec. 54-82d. (Formerly Sec. 54-140). DISMISSAL OF CHARGES ON FAILURE TO GRANT PRISONER SPEEDY TRIAL. If an action is not assigned for trial within the period of time as provided in section 54-82c, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment or information be of any further force or effect, and the court shall enter an order dismissing the same.”


author: Peters, C. J.

text:
    State of Connecticut v. Wayne B. Alexander
    (10342)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued June 12
    decision released August 6, 1985

      JeanE. Blue, special assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Susan C. Marks, special assistant state’s attorney, with whom, on the brief, were Harry S. Gaucher, Jr., state’s attorney, and John M. Massameno, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this case is whether a private citizen was acting as an agent of the police when he engaged the defendant in conversations in the course of which the defendant made incriminatory statements. The defendant, Wayne B. Alexander, was charged by indictment with having committed the crime of murder in violation of General Statutes § 53a-54a. A jury found the defendant guilty as charged and the trial court rendered judgment in accordance with the jury verdict. The defendant appeals from the judgment of conviction.

The jury could reasonably have found the following facts. The victim, Vern Alan Cook, and the defendant were scheduled to appear in court at Rockville in January of 1979 to answer to criminal charges of larceny in the third degree. In the early morning of the date on which they were to appear, the courthouse was seriously damaged by fire, and their court appearances were continued to February 6, 1979. On February 5, 1979, the victim made arrangements with his mother for a ride to court on the following day, but he failed to meet his mother as planned, and never appeared in court.

The defendant admitted to the police, on March 9, 1979, that he had set the Rockville courthouse fire and he implicated the victim as his accomplice in the arson. As a consequence of these admissions, he was arrested and incarcerated at the Hartford correctional center. At his own request, he was there visited on several occasions by James Papagolas, who had befriended both the defendant and the victim. On March 19,1979, the defendant acknowledged to Papagolas that he had killed the victim. Papagolas immediately informed the police about his conversation with the defendant. In part because Papagolas’ driver’s license had been suspended and his car was out of order, the police thereafter drove Papagolas to the correctional center whenever he paid further visits to the defendant. On March 29, 1979, the defendant told Papagolas where the victim’s body had been buried. Papagolas led the police to the wooded area that the defendant had described, where they found the body.

The defendant raises two issues in his appeal from his conviction for murder. He claims that the trial court erred: (1) in refusing to suppress the testimony of James Papagolas concerning the incriminatory statements made to him by the defendant; and (2) in refusing to dismiss the grand jury indictment against him.

I

In the defendant’s challenge to the admissibility of testimony concerning his incriminating statements, the defendant relies upon his constitutional rights under the fifth and sixth amendments to the United States constitution. He maintains that he was unconstitutionally interrogated in violation of his privilege against self-incrimination under the fifth amendment because he did not receive the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), before he made the statements to Papagolas. Alternatively, he argues that he was unconstitutionally interrogated in violation of his rights under the sixth amendment because his conversations with Papagolas took place in the absence of his counsel, in contravention of the rule of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). As the defendant concedes, however, a necessary predicate to both constitutional claims is a determination that the incriminating statements to Papagolas that the defendant seeks to suppress were in fact elicited from the defendant as a result of interrogation by Papagolas acting as a police officer or as an agent of the police. See United States v. Henry, 447 U.S. 264, 269-70, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980) (sixth amendment); State v. Zeko, 176 Conn. 421, 424, 407 A.2d 1022 (1979) (fifth amendment). In order to prevail on these claims, therefore, the defendant must persuade us that the trial court erred in its conclusion, after a suppression hearing, that “[t]he incriminating statements challenged were made by the defendant to a private citizen, not a ‘police agent or informer.’ ” We are unpersuaded and accordingly find no error.

There is no bright line test for determining when a private citizen is acting as an agent of the police. Thomas v. Cox, 708 F.2d 132, 136 (4th Cir.), cert. denied, 464 U.S. 918, 104 S. Ct. 284, 78 L. Ed. 2d 262 (1983). Courts in various jurisdictions considering the question of agency, primarily in the context of a claimed right to counsel under the sixth amendment, have sought guidance from the United States Supreme Court’s opinion in United States v. Henry, supra. In Henry, the court held that the government had “deliberately elicited” incriminating statements from an incarcerated defendant in violation of his sixth amendment right to counsel when it placed a paid undercover informant in close proximity to the defendant. United States v. Henry, supra, 270, 276. Although Henry did not specifically address the question of agency, the court’s opinion identified some of the basic characteristics of the agency relationship. “In Henry, the Court considered it critical that the informant, previously in the government’s paid employ in similar missions, was specifically contacted by the government and given his charge respecting the procurement of possibly incriminating information from Henry. Also important to the Henry Court was the fact that the informant’s mission was on a ‘contingent-fee’ basis, Henry, 447 U.S. at 270, 100 S. Ct. at 2187, thereby demonstrating a formal ‘prearrangement,’ id. at 273, 100 S. Ct. at 2188, between state and informant .... From these circumstances the Court in Henry was able to characterize the informant as a ‘Government agent expressly commissioned to secure evidence,’ id. at 273; 100 S. Ct. at 2188, from the accused.” Thomas v. Cox, supra, 135.

The existence of an agency relationship thus turns upon a number of factual inquiries into the extent of police involvement with the informant. Those inquiries include the following: whether the police have promised the informant a reward for his cooperation or whether he is self-motivated; see Thomas v. Cox, supra, 135; Lightbourne v. State, 438 So. 2d 380, 386 (Fla. 1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1330, 79 L. Ed. 2d 725 (1984); whether the police have asked the informant to obtain incriminating evidence and placed him in a position to receive it; see United States v. Brown, 466 F.2d 493, 495 (10th Cir. 1972); People v. Odierno, 121 Misc. 2d 330, 334, 467 N.Y.S.2d 968 (1983); and whether the information is secured as part of a government initiated, pre-existing plan. See United States v. Panza, 750 F.2d 1141, 1152 (2d Cir. 1984); Thomas v. Cox, supra, 136.

The issue of agency, even in a constitutional context, is primarily a question of fact; see Thomas v. Cox, supra, 135; State v. Brooks, 38 Wash. App. 256, 261-62, 684 P.2d 1371 (1984); cf. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982); and ordinarily we defer to factual findings made by the trial court. When, however, a defendant raises a question of this nature that is vitally affected by trial court factfinding, in a setting in which the credibility of the witnesses is not the primary issue, our customary deference to the trial court is tempered “by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. State v. Frazier, [185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 1375 (1982)].” State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983); cf. State v. Ostroski, supra, 291-92.

Examination of the record before us in this case reveals that there was substantial evidence for the trial court’s conclusion that Papagolas was not acting as an agent of the state in his conversations with the defendant. Although the police may have supported and even encouraged Papagolas’ efforts to obtain information from the defendant, their involvement was not so extensive as to create an agency relationship.

The police did not seek out Papagolas and were not involved in his initial decision to visit the defendant. Rather, Officers John Jacewicz and John Rearick first encountered Papagolas by chance on March 14,1979, as he was cleaning out the defendant’s car. Papagolas informed the police that he was visiting the defendant at the defendant’s request, had seen the defendant earlier that day and would be visiting him again. The three discussed the disappearance of Yern Cook and Papagolas agreed to contact the police if he heard anything about the victim. A similar conversation occurred at a meeting arranged by Papagolas on March 16,1979. Without notifying the police, Papagolas again visited the defendant on March 19,1979. He asked the defendant whether he had killed Cook and the defendant answered in the affirmative. At the time he elicited this confession, Papagolas had had only minimal contact with the police and it is clear that he was acting by himself and on his own initiative. The police had simply asked him to let them know if he heard anything; that request alone did not create an agency relationship. See Thomas v. Cox, supra, 137.

Following the confession, police involvement increased. After Papagolas left the jail, he called Jacewicz, told him what he had learned, and arranged a meeting. He also told the police that, at the defendant’s request, he was planning to return to the jail for a visit later that day. The police, who had discovered that Papagolas did not have a driver’s license, agreed to drive Papagolas to the jail. Rearick and Jacewicz transported Papagolas to the jail that evening and on two subsequent occasions. On each occasion the police waited for Papagolas outside the jail and, on the ride home, he told them what he had learned. His final visit occurred on March 22, 1979, when the defendant revealed the location of the body.

The transportation service provided by the police is the strongest evidence of a possible agency relationship. In addition there was evidence indicating that, by the time of his final visit, Papagolas was motivated, at least in part, by a feeling of responsibility toward the police. There was also conflicting testimony about whether Rearick and Jacewicz ever asked Papagolas to go to the jail to get information as opposed to simply supporting his own decision to go there. Balanced against these factors, which tend to show police involvement, is the fact that the police neither initiated contact with Papagolas nor directed his activities. Papagolas had no previous affiliation with the police and was neither rewarded monetarily nor promised any favors in return for his cooperation.

In sum, the record before us supports the trial court’s conclusion that police involvement was not so extensive as to create an agency relationship between Papagolas and the police. The trial court was correct in its decision to admit the defendant’s incriminating statements into evidence.

II

The defendant challenges the validity of the grand jury indictment against him on two grounds: (1) the defendant’s involuntary absence from the grand jury proceedings; and (2) the state’s attorney’s submission, to the grand jury, of a list of potential witnesses and their anticipated testimony. It is undisputed that the defendant, then incarcerated in connection with the pending arson charges, received no notice of the grand jury proceedings and was totally excluded from participating therein. It is equally uncontested that the state was permitted to present to the grand jury a list of witnesses that included detailed information about the connection of each potential witness with the crime. In the trial court, the defendant’s unsuccessful motion to dismiss the indictment relied on these facts to raise constitutional claims of due process and of the right to confrontation. In this court, the defendant claims instead that the nature of the grand jury proceedings in this case violated the express and the implied requirements of the Practice Book. We find no error.

The state argues that the defendant’s challenge to the grand jury proceedings is not properly before this court. We agree. The constitutional claims that the defendant raised at trial have not been briefed here, and are therefore deemed to have been abandoned. No other claims having been distinctly presented to the trial court, the defendant’s present arguments will ordinarily not be considered on appeal unless they fall within the narrow exception of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Under Evans, newly raised claims that do not implicate newly discovered constitutional rights are entitled to appellate review only “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id. The defendant’s complaints about the grand jury proceedings that led to his indictment cannot meet this threshhold test. See State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985).

The defendant’s claim of error with regard to his exclusion from the grand jury proceedings turns on Practice Book § 609 (4), which, at the time of those proceedings, allowed a defendant to be present while a grand jury heard evidence “within the discretion of the judicial authority.” The present record does not demonstrate in what manner any judicial authority exercised the discretion contemplated by this provision of the Practice Book. In the absence of such a record, the defendant cannot show the deprivation of a fundamental constitutional right. See State v. Couture, 194 Conn. 530, 554, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

The defendant’s claim of error with regard to the state’s allegedly over-intrusive witness list is claimed to violate the accepted grand jury practice forbidding the state’s attorney to question witnesses before the grand jury. State v. Stepney, 181 Conn. 268, 273, 435 A.2d 701 (1980), cert. denied, 449 U.S. 1077, 101 S. Ct. 856, 66 L. Ed. 2d 799 (1981); State v. Menillo, 159 Conn. 264, 274, 268 A.2d 667 (1970). The record before us fails, however, to establish how the use of such a list interfered with the independence of the grand jury. Cf. State v. Couture, supra, 555 n.11.

There is no error.

In this opinion the other judges concurred.

       Although in the trial court the defendant adverted to his rights under the Connecticut constitution as well as to his rights under the United States constitution, he has not on this appeal proffered any argument that the rights afforded to him by the federal and state constitutions are in any way distinguishable. In the absence of such an argument, in our discussion of the constitutional claims raised herein we will, in the circumstances of this case, deem the defendant’s rights under the state constitution to be coextensive with his rights under the federal constitution.

       Our disposition of this threshold issue obviates the necessity of considering other possible impediments to the defendant’s constitutional claims under either the fifth amendment; see United States v. Henry, 447 U.S. 264, 272, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980); State v. Vollhardt, 157 Conn. 25, 36-37, 244 A.2d 601 (1968); State v. McDonald, 387 So. 2d 1116, 1120 (La. 1980); or the sixth amendment. See State v. Biller, 190 Conn. 594, 615-16, 462 A.2d 987 (1983).

       At trial, before Papagolas took the stand, the court reconsidered and again denied the defendant’s motion to suppress. The defendant subsequently made motions to strike Papagolas’ testimony, and for a mistrial, both of which the court denied.

       The defendant claims that Papagolas cooperated with the police because he hoped to be rewarded in a variety of ways, including not being fined for driving without a license, obtaining a recommendation to the Florida state police, and receiving a film projector. He points to no evidence, however, indicating that the police offered Papagolas any of these rewards in exchange for obtaining incriminating evidence from the defendant.

       Practice Book § 609 was repealed as of October 1, 1984.