text:
    Sheryl Carchidi v. Doris M. Rodenhiser, Executrix (Estate of Walter Parkins)
    (13433)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued November 8, 1988
    decision released January 3, 1989

      Roger J. Frechette, with whom was Matthew E. Frechette, for the appellant (defendant).

      Eugene K. Swain, with whom were Humbert J. Polito and, on the brief, Kerin M. Woods, for the appellee (plaintiff).
   Shea, J.

The dispositive issue in this case is whether, during closing argument, counsel may state to the jury his belief as to the pecuniary value of the plaintiff’s personal injury claim. We conclude that counsel may not, because this practice improperly influences the jury in arriving at a verdict. Accordingly, the judgment for the plaintiff in this personal injury case is set aside and the case is remanded to the trial court for a new trial.

The plaintiff, Sheryl Carchidi, brought this negligence action against the defendant, Doris M. Rodenhiser, executrix of the estate of Walter Parkins, for injuries sustained in an automobile accident. The plaintiff testified that as a result of the accident, she sustained injuries to her neck and left arm that necessitated medical treatment, that the pain and stiffness in her neck and left arm had persisted until the time of trial, and that she was unable to work for a total of forty-six days. Prior to closing arguments, counsel for the plaintiff disclosed to the trial court his intention to argue to the jury a specific amount of money, $30,000, that the jury should return as a verdict. The defendant objected to this request. The trial court ruled that the plaintiffs counsel would be permitted in closing argument to suggest specific monetary amounts to the jury, but that these suggestions could not be in combination with any mathematical formulae. The defendant took an exception to this ruling.

In closing argument, counsel for the plaintiff suggested to the jury that the plaintiff was entitled to an award of $25,000 for pain and suffering, and that, when this amount was combined with the other elements of damages, the plaintiff was entitled to a total award of $30,000. Counsel for the plaintiff also invited the defendant to suggest an alternative sum, if the defendant believed that the plaintiffs suggestion was not appropriate. Counsel for the defendant declined to suggest an alternative sum. In rebuttal, counsel for the plaintiff reiterated that he believed that $30,000 was an “appropriate amount” for a verdict, and he noted that counsel for the defendant had not told the jury “what he felt was a fair amount.” In its charge, the trial court instructed the jury that the figures suggested by the plaintiffs counsel were not evidence in the case, and that it was for the jury alone to determine the proper amount of damages, based upon the evidence presented.

The jury returned a verdict in favor of the plaintiff in the amount of $30,000. Thereafter, the defendant moved to set aside the verdict, on the ground that the court had erred in permitting counsel for the plaintiff to argue to the jury the appropriateness of a specific monetary sum for an award of damages. The trial court denied the motion. This appeal followed.

On appeal, the defendant claims that the trial court erred in (1) permitting the plaintiffs attorney to argue the amount of damages sought by the plaintiff for her personal injuries, and (2) refusing to set aside the verdict because of that claimed error. Because these two claims of error involve the same legal issue, we need address only the first claim. We find error.

The plaintiff points out that our holding in Levin v. Ritson, 179 Conn. 223, 425 A.2d 1279 (1979), expressly authorizes counsel, with the permission of the court, to argue the value of a case, and, the trial court having granted such permission, therefore, claims that her counsel properly argued how much she should receive in damages. In Levin v. Ritson, supra, 227, we stated: “If the circumstances are such that mention of an estimated value of a case does not create prejudice in the minds of a jury, the trial court, in its discretion, may allow such argument so long as the jury [is] instructed that counsel’s estimate is not evidence and that the jury’s duty is to decide the issues solely on the evidence presented. On the other hand, if the circumstances are such that mention of an expected verdict is either unfounded or based on wholly speculative factors such as those found in many mathematical formulas, or if it is a deliberate attempt by counsel to create prejudice in the minds of the jury, it would not be error for the trial court to direct that such argument not be made or to remove it from the jury’s consideration.” Thus, the determination as to whether such an argument would be permitted was left within the discretion of the trial court.

We now conclude, however, that because of the risk of improper influence upon a jury, counsel may no longer argue to a jury the amount of damages claimed to be recoverable by a client in a personal injury action. Accordingly, we overrule Levin to the extent that it leaves the decision to the discretion of the trial court, thus inviting variant rulings in the trial court under similar circumstances. Our conclusion that Levin must be overruled is consistent with the policy of promoting fair and uniform procedures and with the history of the related procedure of submitting the ad damnum clause of the complaint to the jury.

The practice in this state had long been to submit all of the pleadings and the exhibits introduced at trial to the jury for their consideration in reaching a verdict. Gimelli v. Waterbury Cadillac Co., 109 Conn. 722, 726, 145 A. 563 (1929). As part of the pleadings, the jury was permitted to view the ad damnum clause of the complaint, in which the plaintiff stated the relief to which he believed himself entitled. See General Statutes (1958 Rev.) § 52-91; Practice Book (1963) § 85. Without such a prayer for relief, a demurrer to the plaintiffs complaint could properly be sustained on the ground that the complaint did not state a cause of action. Chapin v. Chapin, 155 Conn. 691, 692, 229 A.2d 548 (1967). This court early recognized, however, that submission of the ad damnum clause to the jury brought with it the danger that the jury, in reaching a verdict, would be influenced by the amount claimed by the plaintiff. In Haight v. Hoyt, 50 Conn. 583, 585 (1883), for example, we set aside a judgment that we concluded was the result of a quotient verdict. We commented that “it [was] apparent that many of the jurors must have marked the damages at quite or nearly the sum of $10,000, the amount claimed in the ad damnum clause of the plaintiffs complaint, for the mean amount would not otherwise have been obtained. Such jurors must have been governed by some grossly mistaken view of the case, or by prejudice or partiality . . . .” Id.

The practice of submitting the ad damnum clause to the jury continued despite the inherent prejudice that it caused. To offset the prejudice, however, trial judges customarily reminded the jury that the amount claimed in the ad damnum clause was not evidence in the case, but rather, represented the ceiling on the plaintiffs recovery. See D. Wright, Connecticut Jury Instructions (2d Ed. 1970) § 597. In Cooley v. Crispino, 21 Conn. Sup. 150, 147 A.2d 497 (1958), however, former Chief Justice Cotter, while a trial judge, criticized severely the practice of submitting the ad damnum clause to the jury under any circumstances. In that case, upon the defendant’s motion, he had refused to allow the amount of the ad damnum clause to go to the jury. Thereafter, the plaintiff prevailed on the issue of liability, but claimed that the damages awarded were inadequate. In his motion to set aside the verdict, the plaintiff complained that the court’s refusal to submit the ad damnum clause to the jury lowered the amount of the verdict which would otherwise have been given. Judge Cotter denied the motion, stating that “[t]he ad damnum clause has no probative value” and that “[t]he verdict must be supported by the evidence—not upon the claims of counsel.” Id., 152. He quoted the statement in Botta v. Brunner, 26 N.J. 82, 104, 138 A.2d 713 (1958), that “[i]t is a matter of common knowledge that ordinarily the amount of damages laid in the complaint is much in excess of any sum which the plaintiff hopes to receive.” He concluded that “[t]o inform the jury of the amount sued for serves no useful purpose.” Cooley v. Crispino, supra.

The concern expressed in Cooley over the effect of submitting the ad damnum clause to the jury led eventually to the adoption of Practice Book § 313, which provides in part that “[i]n any action seeking damages for injury to the person, the amount demanded in the complaint shall not be disclosed to the jury.” This rule, read in conjunction wih Practice Book § 310, which provided in part that “[t]he complaint, counterclaim and cross complaint, and responsive pleadings thereto, shall be given to the jury at the commencement of their deliberations,” indicates a policy of keeping from the jury a plaintiffs claim as to the value of his pain and suffering. Despite this policy, however, counsel were nonetheless permitted to argue in summation the monetary value of a case, subject to the discretion of the trial court. Thus, if the trial court gave permission as well as a suitable cautionary instruction; see Levin v. Riston, supra; a plaintiff could circumvent the policy expressed in Practice Book § 313 of keeping the amount claimed as damages in a personal injury case from the jury. Further, because this determination was left to the discretion of the trial court, variant rulings have resulted. In personal injury cases where recovery for such intangible elements of damages as pain and related disability is almost invariably sought, it is difficult to find any reasonable basis for permitting such argument in one case and prohibiting it in another. Our conclusion that counsel may no longer argue the value of pain and suffering, therefore, repairs these inconsistencies in our trial procedures, by uniformly precluding a party from doing orally that which § 313 provides he may not do in writing.

The plaintiff claims that a pleading setting forth an amount demanded is different from a suggestion of the value of a case made by counsel in closing argument, and that the possibility of prejudice is much less likely where the suggestion is made in argument, rather than in writing. We conclude, however, that the plaintiffs distinctions are without substance. Stating the amount claimed, whether in summation or in the pleadings, has the effect of instilling, at least as a starting point, a specific monetary figure in the minds of the jurors. Because counsel are aware of this effect, either practice encourages exorbitant demands by counsel. Further, we are not convinced that monetary figures suggested by counsel in the drama of closing argument are necessarily less influential or prejudicial than a written demand contained in the plaintiffs complaint. See R. Cartwright", “Winning Psychological Principles in Summation,” 16 Trial Law. Q. 4 (Summ. 1984).

The plaintiff maintains that the practice of arguing the value of pain and suffering should be permitted because translating such elements of recovery in a personal injury case into dollars is the same task the jury must perform in arriving at a verdict. We reject this contention for two reasons. First, when a jury arrives at an award of damages, if any, they do so as the neutral and impartial triers of fact. Suggestions by a plaintiffs counsel, on the other hand, are statements made in the course of the zealous representation of a client’s cause, and therefore, are completely self-serving. Second, the fact that the jury is allowed to perform a particular function does not necessarily mean that counsel also should be permitted to do so. For example, the question of the credibility of witnesses is for the trier of fact to decide. Our rules of professional, conduct, however, expressly prohibit an attorney from stating “a personal opinion as to ... the credibility of a witness . . . .” Rules of Professional Conduct 3.4.

We recognize that our holding places this state with a small minority of states that prohibit counsel from commenting on the value of pain and suffering. See annot., 14 A.L.R.3d 541. We believe, however, that this is the better rule, because it establishes a uniform policy that is consistent with Practice Book § 313, and it prevents counsel from circumventing that rule of practice and thereby interfering with the “monetary evaluations of the immeasurable perturbations of the spirit.” L. Jaffe, “Damages for Personal Injury: The Impact of Insurance,” 18 Law & Contemp. Prob. 219, 222 (1953).

The measure of damages in this state for pain and suffering has long been “ ‘fair, reasonable and just compensation.’ ” Levin v. Ritson, supra, 227. This standard is employed because of the “universal acknowledgement that a more specific or definitive one is impossible.” Botta v. Brunner, supra, 92. Indeed, certain terms, of whose meaning jurors already have some notion, are best left unexplained because almost all attempted explanations and valuations create more problems than they solve. See G. Christie, “Vagueness and Legal Language,” 48 Minn. L. Rev. 885, 901 (1964). As the court stated in Braddock v. Seaboard Air Line Railroad Co., 80 So. 2d 662, 668 (Fla. 1955): “Jurors know the nature of pain, embarrassment and inconvenience, and they also know the nature of money. Their problem of equating the two to afford reasonable and just compensation calls for a high order of human judgment, and the law has provided no better yardstick for their guidance than their enlightened conscience. Their problem is not one of mathematical calculation but involves an exercise of their sound judgment of what is fair and right.”

We conclude, therefore, that the practice of mentioning the sum to be awarded to the plaintiff for pain and suffering constitutes an unwarranted intrusion into the domain of the jurors. Even with a cautionary instruction that such a sum represents only the argument of counsel, “it is extremely doubtful whether such admonitions are sufficient, to eliminate the figure from their minds as a conscious or unconscious factor in reaching their verdict.” Botta v. Brunner, supra, 104. The fact that a cautionary instruction is generally recognized as necessary when such an argument has been made to a jury is an implicit recognition of its prejudicial effect.

There is error, the judgment is set aside and the case is remanded to the trial court for a new trial.

In this opinion the other justices concurred.

       In closing argument, counsel for the plaintiff stated: “Now, because the injury she had is permanent, the judge in his charge will tell you that she’s entitled to be compensated over the rest of her life for the injuries that she had. I’m going to suggest to you that when you’re contemplating compensating her for the injuries that she’s going to have for the rest of her life over the next fifty years, that a figure that might be appropriate, the dollar amount that might be appropriate for the next fifty years is an amount of twenty-five thousand dollars, to compensate her from today’s date, ten years hence, twenty years, thirty years, thirty-five, forty and fifty years, I suggested an amount of twenty-five thousand dollars, for that intangible element of damage would be appropriate. Now, there are also tangible elements of damage that you should consider and the judge will tell you about. They are the doctor’s bills that are in evidence. ... I think if you multiply that out that will come to just a little bit over two thousand dollars, two thousand two hundred dollars, which is also an element of damage. Now, she is also entitled to be compensated for the problems that she had from November of 1985 up until today’s date, that is, both the pain of the two weeks after the accident or after the collision and then the problem that drove her to see Dr. Langoni and so on and so forth and the intermittent problems up until January, 1988. When you put them all together, I think that an area of money that would be appropriate in this particular case is in the thirty thousand dollar range and that’s what I’m going to ask you ladies and gentlemen to return to Mrs. Carchidi. Now, it will be . . . when Mr. Frechette has his turn to argue, I’m going to be looking forward to it just as much as you are, to see what he has to say. I would ask that if he doesn’t think the amount I suggested to you is appropriate, then perhaps he can share with you what he thinks would be an appropriate amount, if he chooses to do so, instead of just saying that my suggestion isn’t the right amount.”

       Counsel for the defendant stated: “I believe, in concluding, that it’s improper for me to tell you what I think the case is worth. I’m only going to comment on the evidence and I’ve told you what the evidence is.”

       In rebuttal, counsel for the plaintiff stated: “Now, I suggested to you that the amount of damages be in the neighborhood of thirty thousand dollars. I think that that is an appropriate amount. Mr. Frechette didn’t care to tell you what he felt was a fair amount. I ask you when you consider the damages over the next fifty years, that the evidence says that she will be facing these injuries, that when you arrive at a figure, if it’s around the figure that I’ve suggested to you, that you do not cut it in half and say, well, this is enough, fifteen thousand might be enough or twenty thousand might be enough, with the idea that she is going to get a half a cup of justice, if you will.”

       The trial court instructed the jury on this issue as follows: “An additional element for which the plaintiff is entitled to be compensated for is the pain and suffering that she has suffered and that she will continue to suffer as a proximate result of the negligence of the defendant. Obviously, this is a difficult item to determine because how does one measure pain and suffering in terms of dollars and cents. All the court can say to you is, you should use your own good common sense and judgment in awarding money damages for any pain and suffering that you find that the plaintiff experienced and will experience as a proximate result of negligence on the defendant. Any figure|s] suggested by counsel are just that, suggestions. They are not evidence in the case and the burden of determining the appropriate amount of damages is for you and you alone to determine, based on the evidence that you have heard.”

       In its motion, the defendant set forth several grounds for setting aside the verdict. The only ground that the defendant pursues on appeal, however, pertains to the plaintiff’s statement in closing argument as to the amount of money that the jury should return in its verdict.

       We note that the holding in Botta v. Brunner, 26 N.J. 82, 138 A.2d 713 (1958), has been modified by a New Jersey rule of practice. “Rule 1:7-1 (b) permits counsel to argue to the trier of fact the appropriateness of employing a time-unit calculation technique for fixing any element of unliquidated damages. However, this rule continues to prohibit any suggestion by counsel of specific monetary amounts either on a lump sum or time-unit basis.” Friedman v. C & S Car Service, 108 N.J. 72, 77 n.3, 527 A.2d 871 (1987).

       This Practice Book provision was adopted in June, 1973, as § 247A. We note that pursuant to General Statutes § 52-91, a plaintiff may no longer state in his complaint the specific amount of damages being sought from a defendant. He is required to specify whether the amount in demand exceeds or is less than $15,000 or $2500.

       Practice Book § 310 was repealed as of December 15,1987. This change has no effect on the policy underlying Practice Book § 313.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Gregory Pool v. Tom P. Bell
    (13497)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued November 8, 1988
    decision released January 3, 1989

      Michael D. Neubert, with whom was Elizabeth McLaughlin, for the appellant (defendant).

      Robert I. Reardon, Jr., with whom was John J. Nazzaro, for the appellee (plaintiff).
   Shea, J.

The dispositive issue in this case is whether, during closing argument, counsel may use mathematical formulae as a basis for arriving at a pecuniary value of the plaintiffs personal injuries. Consistent with our holding in Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1988), we conclude that counsel may not, because this practice improperly influences the jury in arriving at a verdict. Accordingly, the judgment for the plaintiff in this medical malpractice case is set aside and the case is remanded to the trial court for a new trial.

In this action, the plaintiff, Gregory Pool, claimed that the defendant, Tom P. Bell, a general surgeon, negligently performed a lymph node biopsy on the right side of the plaintiffs neck, in that the defendant damaged the plaintiffs long thoracic and spinal accessory nerves during the operation. The plaintiff testified that as a result of the operation, he suffered pain and stiffness in his right arm and shoulder, that his ability to perform his work as a pipefitter at Electric Boat was impaired, and that he was no longer able to participate in certain sports or to perform simple household tasks.

The trial court permitted the plaintiffs counsel in closing argument to use a blackboard to set forth a per diem mathematical formula for use by the jury in computing the damages to be awarded to the plaintiff. The defendant took an exception to this ruling. On the blackboard, counsel for the plaintiff set out six categories of damages: medical expenses, pain and suffering, mental distress, permanent disability, loss of ability to do household duties, and loss of enjoyment of activities. The plaintiffs counsel then assigned a dollar value to each item of damages and multiplied each amount, except medical expenses, by 15,178, the number of days corresponding to the period from the date of the operation to the probable date of the plaintiffs death, based upon his 37.3 year life expectancy at the time of trial. The totals for each category were then added for a grand total of $345,851, which counsel for the plaintiff told the jury was a fair amount to award the plaintiff.

The jury returned a verdict of $250,000 for the plaintiff. Thereafter, the defendant moved to set aside the verdict on the ground that the court had erred in permitting counsel to use a mathematical formula in closing argument to arrive at a specific monetary sum for an award of damages. The trial court denied the motion. This appeal followed.

On appeal, the defendant claims that the trial court erred in: (1) permitting the plaintiff’s counsel in closing argument to use a mathematical formula to arrive at a monetary value for the plaintiff’s personal injuries; (2) excluding the testimony of one of the defendant’s expert witnesses for untimely disclosure; (3) permitting one of the plaintiff’s expert witnesses to testify as to the standard of care for a general surgeon; (4) permitting the plaintiff’s medical witnesses to testify as to the plaintiff’s ability to perform his job as a pipefitter; and (5) failing to set aside the verdict as excessive. We conclude that the trial court erred in permitting the plaintiff’s counsel to use a mathematical formula in his closing argument. Accordingly, we remand the case for a new trial. We discuss the defendant’s second, third and fourth claims only for the purpose of the new trial and conclude that the trial court’s rulings were not improper. Because we set aside the judgment in this case, we need not discuss the defendant’s fifth claim.

I

The defendant claims that the trial court erred in permitting the plaintiffs counsel in closing argument to use a mathematical formula to arrive at a monetary value for the plaintiff’s personal injuries. This issue is controlled by our holding in Carchidi v. Rodenhiser, supra, which was argued on the same day as the case at hand. We find error.

In Carchidi, the trial court permitted counsel for the plaintiff to state to the jury his belief as to the pecuniary value of the plaintiff’s personal injury claim. This court set aside the verdict, because of the risk of improper influence upon the jury from this practice. “Stating the amount claimed, whether in summation or in the pleadings, has the effect of instilling, at least as a starting point, a specific monetary figure in the minds of the jurors. Because counsel are aware of this effect, either practice encourages exorbitant demands by counsel.” Id., 533. From our conclusion in Carchidi that counsel may not argue the pecuniary value of the plaintiff’s personal injuries by suggesting specific sums to be awarded for such intangibles as pain and related disability, it necessarily follows that counsel may not indicate the monetary components used to arrive at the sums suggested for such elements of damages. We note that fewer courts favor an argument based on a mathematical formula than favor a “lump sum” argument. See annot., 3 A.L.R.4th 940; annot., 14 A.L.R.3d 531, 541. Further, in Levin v. Ritson, 179 Conn. 223, 227, 425 A.2d 1279 (1979), this court drew a distinction between suggesting a sum to be awarded for pain and suffering and using a mathematical formula based on speculative factors. Because we conclude that our holding in Carchidi is applicable to both types of arguments, we need not decide whether our holding in Levin v. Ritson left the use of mathematical formulae in closing argument to the discretion of the trial court, as that question is now academic.

II

The defendant’s next claim is that the trial court abused its discretion in excluding the testimony of Richard Alessi, a neurologist, because of untimely disclosure by the defendant of his intention to use this expert witness. As with the defendant’s third and fourth claims we consider this claim only because the issue may again arise at the new trial.

The plaintiff served a set of interrogatories on the defendant on June 14, 1985, in which he asked the defendant to identify each person the defendant expected to call as an expert witness at trial. On August 9, 1985, the defendant responded “undetermined at this time,” naming no experts. On January 29, 1986, and on May 23,1986, the defendant supplemented his responses to the plaintiff’s questions, but did not name his expected witnesses.

On August 4,1986, the plaintiff filed a motion to compel disclosure of the defendant’s expert witnesses. The court, Norko, J., in an August 18,1986 ruling, ordered disclosure of the defendant’s experts within forty-five days from the date of the depositions of two of the plaintiff’s experts. This period was to expire on January 3, 1987. On December 29, 1986, the defendant disclosed Charles Polivy, a general surgeon, as his expert, but did not mention Alessi. Further, at neither the first pretrial conference on November 20,1986, nor the second on February 25,1987, did the defendant disclose Alessi as an expert.

On July 7, 1987, three weeks before the scheduled trial date, the defendant disclosed that he intended to use Alessi as an additional expert. On July 8,1987, the plaintiff filed a motion in limine to preclude Alessi from testifying, on the ground that the defendant had not complied with the court’s order to disclose experts by January 3, 1987. At the hearing on the motion, which was not transcribed, the court granted the plaintiff’s motion. At the hearing following the granting of the defendant’s motion to reargue, which was transcribed, counsel for the defendant confirmed that the defendant had been consulting with Alessi for over one year. Thereafter, the court again granted the plaintiff’s motion.

A trial court’s decision on whether to impose the sanction of excluding the testimony of a party’s expert witness rests within the court’s sound discretion. See Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978); see also Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984) (discussing sanctions pursuant to Practice Book § 231). The action of the trial court is not to be disturbed unless it has abused its broad discretion, and in determining whether there has been such abuse every reasonable presumption should be made in favor of its correctness. Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 108, 476 A.2d 1074 (1984). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972).

We conclude that the trial court could reasonably have viewed the late date at which the defendant disclosed Alessi as the sort of “cat and mouse” game that the rules of discovery and production were designed to discourage. See Sturdivant v. Yale-New Haven Hospital, supra, 106. Undoubtedly, one factor influencing the trial court was that the trial was to begin shortly, and therefore, the plaintiff would have had little time to discover and investigate properly Alessi’s opinions. We note, however, that this ruling would not be of any force at the new trial, because the element of surprise has vanished and the circumstances of the new trial may afford the plaintiff ample opportunity to prepare properly for Alessi’s expected testimony.

Ill

The defendant’s third claim is that the trial court erred in permitting John Ebersole, a neurologist, to testify as to the standard of care for a general surgeon. The defendant maintains that under the Appellate Court’s holding in Marshall v. Yale Podiatry Group, 5 Conn. App. 5, 8-9, 496 A.2d 529 (1985), Ebersole should not have been permitted to testify on this issue, because the evidence did not indicate any overlap between the specialties of general surgery and neurology or that the same standard of care is applicable to both.

“ ‘The determination of the qualification of an expert is largely a matter for the discretion of the trial court.’ ” Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964). “The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant’s conduct to those particular standards, and not to the standards of the witness’ particular specialty if it differs from that' of the defendant.” Fitzmaurice v. Flynn, 167 Conn. 609, 618, 356 A.2d 887 (1975). Without ruling on the correctness of the “overlap” standard from Marshall v. Yale Podiatry Group, supra, we reiterate that the “‘crucial question is whether . . . [the expert] knows what . . . [the standards of practice] are.’ ” Fitzmaurice v. Flynn, supra, 617, quoting Ardoline v. Keegan, 140 Conn. 552, 557, 102 A.2d 352 (1954).

Ebersole testified that because of his specialty, he is required to be familiar with the procedures that are carried out by surgeons in the performance of a lymph node biopsy. In his practice, he testified, he routinely receives referrals from surgeons and is expected to determine the cause of neurological complications of operations to assist the referring surgeon in diagnosis and treatment. Further, he testified that as a professor at the Yale School of Medicine, he instructs residents and physicians about the neurological complications of surgery. In view of this testimony, we conclude that the trial court did not abuse its discretion in permitting Ebersole to give his opinion as to the standard of care for a general surgeon performing a lymph node biopsy.

IV

The defendant next claims that the trial court erred in permitting the plaintiff’s medical experts, Charles Dyer and John Ebersole, to testify regarding the plaintiff’s ability to perform his job as a pipefitter at Electric Boat. The defendant claims that these experts’ opinions were based on speculation, because neither witness was familiar with the plaintiff’s work history. We find no error in the trial court’s ruling.

There are no precise facts that must be proved before an expert’s opinion may be received in evidence. Waldron v. Raccio, 166 Conn. 608, 614, 353 A.2d 770 (1974). Rather, it is largely a matter of judicial discretion as to whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion. Id.

Dyer testified that he had been a practicing general surgeon in New London for thirty-three years and that he was familiar with the duties of pipefitters at Electric Boat, because he had treated many of them. He further testified that a physicial examination of the plaintiff two years after the surgery revealed, in his opinion, that the plaintiffs ability to perform the duties of a pipefitter had been seriously impaired. Ebersole testified that he had interviewed, examined and tested the plaintiff on four separate occasions over a period of three years. Further, he testified that he was familiar with the work of a pipefitter and that he had determined that as a result of the plaintiffs injuries, the plaintiff would be unable to perform fully the duties of a pipefitter. In light of the testimony of Dyer and Ebersole as to their training, experience and investigation, the trial court did not abuse its discretion in admitting their opinions as to the plaintiffs ability to perform his work duties. The trial court could reasonably have concluded that this evidence was relevant to corroborate the plaintiffs claim that he feared losing his job because of his inability to perform certain tasks, a condition for which he sought compensation as part of his mental distress claim.

There is error, the judgment for the plaintiff is set aside and the case is remanded for a new trial.

In this opinion the other justices concurred.

       For example, the plaintiff assigned a value of $10 per day for future pain and suffering, $5 per day for permanent disability, and $1 per day for the loss of ability to do household duties.


text:
    Robert Cioffoletti et al. v. Planning and Zoning Commission of the Town of Ridgefield
    (13403)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.

      Argued October 13, 1988
    decision released January 10, 1989

      Melvin J. Silverman, for the appellants-appellees (plaintiffs).

      Thomas W. Beecher, for the appellee-appellant (defendant).
   Shea, J.

The plaintiffs, Robert and Catherine Cioffoletti, owners of a parcel of land in Ridgefield used for the mining and excavation of sand and gravel, appealed to the Superior Court after the defendant, the Ridgefield planning and zoning commission, acting as the town’s inland wetlands board, granted with certain modifications and conditions the plaintiffs’ application to expand their mining operation. The trial court dismissed the appeal, finding no infirmities in either the town’s regulations or the procedures that were followed. This appeal followed.

On appeal, the plaintiffs claim that the trial court erred in holding: (1) that evidence offered in support of their claim of an unconstitutional taking, as to the economic effect of the defendant’s action upon the plaintiffs was inadmissible; (2) that the plaintiffs received a fair hearing; (3) that the defendant may regulate activity in nonwetlands areas that affects wetlands areas; (4) that the defendant has the authority to require a performance bond; and (5) that the defendant’s action has not violated constitutionally protected property rights of the plaintiffs because (a) the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45, as applied by the commission, does not constitute a taking for a public purpose without just compensation; (b) the defendant’s modifications of the application as granted substantially advance a legitimate state interest; and (c) the regulations adopted by the defendant pursuant to the inland wetlands statute contain adequate standards and, therefore, comport with due process.

In its cross appeal, the defendant claims that the trial court erred in allowing the plaintiffs to amend their appeal to include additional issues. We dismiss the cross appeal because the defendant has not been aggrieved by the judgment dismissing the plaintiffs’ appeal.

We conclude that the trial court should have allowed the plaintiffs to introduce evidence of the economic impact of the defendant’s ruling. With respect to the other nonconstitutional claims of the plaintiffs, we find no error. We decline consideration of the merits of the plaintiffs’ constitutional claims at this juncture, however, because, without the excluded evidence, such consideration would be premature and is not essential to the disposition of the appeal. See Moore v. McNamara, 201 Conn. 16, 21, 513 A.2d 660 (1986). Accordingly, we remand the case to the trial court for further proceedings.

The following facts are ascertainable from the record or are undisputed. The plaintiffs are the owners of a twenty-three acre parcel of land located in Ridge-field. The premises are currently used, and have been used for many years, for the mining and excavation of sand and gravel. In November, 1984, pursuant to the Ridgefield inland wetlands and watercourse regulations, the plaintiffs applied to the defendant in its capacity as the town’s inland wetlands board, for permission to expand the mining operation within and adjacent to existing wetlands. The proposed expansion was divided into five areas, each representing proposed increments for each two of the next ten years.

The defendant referred the plaintiffs’ application to the Fairfield county soil and water conservation district, the United States department of agriculture soil conservation service, and the Connecticut department of environmental protection, all of which approved the application.

On December 18,1984, January 8,1985, and March 12, 1985, the defendant held public hearings on the application. At the hearings, various members of the public, including the plaintiffs’ neighbors, spoke out in opposition to the application. They complained of traffic and noise problems at the mining site, and they offered expert testimony and reports that reached conclusions nearly the opposite of those reached by the governmental agencies. The opponents’ expert stated, for example, that the proposed excavation would have an adverse impact on the existing flood plain portions of the wetlands. This expert further maintained that the governmental agencies had not addressed the possibility of diminished water quality that might result if oil and gasoline used to operate the mining equipment were spilled and thereafter entered the ground water system. After the March 12, 1985 hearing was terminated, the defendant approved the plaintiffs’ application but voted to reduce substantially the area upon which they sought to excavate.

On April 16,1985, the defendant issued the plaintiffs a special permit with several conditions, including a requirement that they post a $100,000 performance bond. The plaintiffs filed an administrative appeal in the Superior Court. That court rendered judgment dismissing the appeal.

I

At the trial court hearing, the plaintiffs attempted to introduce evidence as to the economic effect on their property of the defendant’s failure to grant their excavation permit in accordance with their application. The plaintiffs offered this evidence to enable the trial court to make a determination, pursuant to General Statutes § 22a-43a, as to whether the action of the defendant constituted a taking without just compensation. The trial court excluded this evidence, holding it to be inadmissible in a hearing governed by General Statutes § 4-183 (e). The plaintiffs took an exception to this ruling. The defendant maintains that the plaintiffs were precluded by our holding in Florentine v. Darien, 142 Conn. 415, 115 A.2d 328 (1955), from challenging the constitutionality of the defendant’s action in an administrative appeal. We agree with the plaintiffs that the trial court should have admitted the evidence offered.

The plaintiffs in Florentine raised in their appeal to this court the question of whether by seeking a varianee from the Darien board of appeals they would thereafter be foreclosed from challenging the constitutionality of the action of the zoning commission. We indicated our adherence to earlier decisions holding that “a party cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality.” Id., 428. We declared instead that a party should proceed with the administrative remedies available to him, and thereafter, “challenge by direct attack in an independent proceeding the constitutionality of the regulation, or indeed, of the entire ordinance or law.” Id., 430. If the view expressed in Florentine were controlling in the case at hand, therefore, the trial court would have correctly concluded that the plaintiffs were barred from challenging the constitutionality of the defendant’s action in their administrative appeal. We conclude, however, that our holding in Florentine is not applicable to an appeal from an inland wetlands agency because the legislature has provided otherwise.

General Statutes § 22a-43a (a) provides in part that “[i]f upon appeal pursuant to section 22a-43, the court finds that the action appealed from constitutes the equivalent of a taking without compensation, it shall set aside the action or it may modify the action so that it does not constitute a taking.” For such an appeal this statute modifies the procedure prescribed in Florentine for mounting a constitutional challenge. It allows a party aggrieved by the action of an inland wetlands commission to raise a takings claim in an administrative appeal rather than in an independent proceeding. Accordingly, if an aggrieved party claims that the action appealed from constitutes a taking, and offers relevant evidence to support that claim, the trial court must hear the evidence to enable it to make an informed decision. In the case at hand the trial court refused to hear the plaintiffs’ evidence on the economic impact of the defendant’s action and thus disabled itself from making the informed decision contemplated by § 22a-43a (a).

The defendant suggests that because General Statutes § 22a-43 states that the appeal from an inland wetlands commission “shall be in accordance with the provisions of section 4-183,” the trial court properly excluded the plaintiffs’ economic effect evidence. General Statutes § 4-183 (e) provides that if the court needs additional evidence to make its decision, “the court may order that the additional evidence be taken before the agency upon conditions determined by the court.” The defendant maintains that this limitation on the presentation of evidence to the trial court serves to confine the court to the evidence in the record and to prevent the court from substituting its judgment for that of the agency.

We construe the provision of § 22a-43a (a) that “[i]f . . . the court finds that the action appealed from constitutes the equivalent of a taking without compensation,” as contemplating that the trial court should decide the taking issue de novo in the light of all the evidence properly presented to it, including, but not limited to, the administrative record. (Emphasis added.) Since this court has indicated that an administrative agency is incompetent to decide certain constitutional issues; Caldor, Inc. v. Thornton, 191 Conn. 336, 344-45 n.6, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); it would make little sense for a trial court pursuant to § 4-183 (e) to remand a case to an inland wetlands commission for the purpose of hearing evidence relevant only to the issue of an unconstitutional taking, which that agency may not be empowered to resolve. Presumably the legislature was aware of this judicial limitation upon the authority of administrative agencies and, therefore, used statutory language indicating that the court should find the fact-bound takings issue. In deciding that question, the trial court should have the benefit of hearing the testimony offered rather than receiving it second-hand through the medium of a transcript of a superfluous proceeding before the agency. It would, of course, have been virtually impossible for the plaintiffs to have introduced such evidence at the original hearing before the commission, because its action in granting the application only in part, which is the basis for the takings claim, could not have been known until after the hearing.

We conclude that the trial court erred in excluding the evidence offered by the plaintiffs as to the economic effect of the defendant’s action and that the case must be remanded for further proceedings. Despite the necessity for a remand, we must consider the remaining issues. On some of these, if the plaintiffs should prevail, a different remand would be necessary.

II

The claim that the plaintiffs were denied a fair hearing before the defendant commission is based upon the alleged bias or other improprieties on the part of four of its members.

The trial court found that John Katz, the chairman of the defendant commission, had taken an active interest in not only the plaintiffs’ application but also their mining operation. Prior to the public hearings on the plaintiffs’ application, Katz regularly visited the plaintiffs’ mining site, followed trucks leaving the property, and interviewed a family for whom the plaintiffs had done construction work to ensure that the project conformed to the town’s regulations. The trial court noted that the town’s wetlands and zoning regulations do not confer upon Katz or any other commission member the authority to investigate the quality of an applicant’s work on an unrelated site or to follow his trucks to and from various places of business. The court found, however, that although Katz was “unquestionably a zealot,” his actions did not demonstrate a conflict of interest or a predetermination of the plaintiffs’ application.

The commission members discussed the plaintiffs’ application after they had terminated the March 12, 1985 public hearing. During that discussion, two members of the commission, Eda Sherman and David Huntoon, expressed their concerns about the effect of a mining operation on certain wetlands to the east of a pond that the plaintiffs wanted to excavate.

Nelson Gelfman, a member of the defendant commission, disqualified himself from all phases of the proceedings involving the plaintiffs’ application. At the January 8, 1985 hearing, however, Mary Gelfman, his wife, appeared on her own and her husband’s behalf, spoke in opposition to the plaintiffs’ application, and read into the record a letter that she had sent to the commission expressing their opposition to the proposed expansion.

The plaintiffs launch three different attacks on the fairness of the hearings on their application. These are: first, that the chairman of the commission, John Katz, was biased against them; second, that the comments made by Eda Sherman and David Huntoon demonstrated their predisposition against the plaintiffs’ application; and third, that Mary Gelfman’s statements at the January 8, 1985 hearing, on her own and her husband’s behalf, violated statutory prohibitions. The plaintiffs failed to claim the disqualification of any of these commission members until after the decision upon their application.

A

Neutrality and impartiality of members are essential to the fair and proper operation of a planning and zoning commission. Lake Garda Improvement Assn. v. Town Plan & Zoning Commission, 151 Conn. 476, 480, 199 A.2d 162 (1964). The evil to be avoided is “ ‘the creation of a situation tending to weaken public confidence and to undermine the sense of security of individual rights which the property owner must feel assured will always exist in the exercise of zoning power.’ ” Bossert Corporation v. Norwalk, 157 Conn. 279, 284, 253 A.2d 39 (1968). We have held that bias “can take the form of favoritism toward one party or hostility toward the opposing party; it is a personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess.” Anderson v. Zoning Commission, 157 Conn. 285, 290-91, 253 A.2d 16 (1968). The decision as to whether a particular interest is sufficient to disqualify, however, is necessarily a factual one and depends upon the circumstances of the particular case. Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 648, 474 A.2d 752, cert. denied, 469 U.S. 932, 105 S. Ct. 328, 83 L. Ed. 2d 265 (1984).

With respect to John Katz, there is no evidence that he had any financial interest in the outcome of the application or any disqualifying relationship with any opponent of the application. The only evidence of any personal interest on his part was his extraordinary effort to investigate circumstances related to the application before the hearing. The trial court concluded, after hearing evidence and assessing the credibility of witnesses, that Katz’s actions did not constitute a conflict of interest or a predetermination. The plaintiffs have not demonstrated that this conclusion was erroneous as a matter of law. See Practice Book § 4185.

B

The plaintiffs claim that the comments made by commission members Eda Sherman and David Huritoon during the course of the hearing and the deliberations of the commission demonstrate their partiality and predisposition against the plaintiffs’ application.

We have held that “[t]he law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true.” Furtney v. Zoning Commission, 159 Conn. 585, 594, 271 A.2d 319 (1970). As the court noted in In re J. P. Linahan, Inc., 138 F.2d 650, 651-52 (2d Cir. 1943), “[t]he human mind ... is no blank piece of paper. . . . Interests, points of view, preferences, are the essence of living. . . . An‘open mind,’in the sense of a mind containing no preconceptions whatever, would be a mind incapable of learning anything, [and] would be that of an utterly emotionless human being

Local governments, therefore, would be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official. Such a policy “would not only discourage but might even prevent capable men and women from serving as members of the various zoning authorities. Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism.” Anderson v. Zoning Commission, supra, 291.

The decisive question, therefore, must be whether Sherman and Huntoon actually had made up their minds prior to the public hearing, regardless of any arguments that might have been advanced at the hearing. Furtney v. Zoning Commission, supra, 594. This issue involves a question of fact and the burden of proving the illegality was on the plaintiffs. Id., 594-95. The plaintiffs rely solely on excerpts from the transcripts of the hearing to support their claim, as they did not call either Sherman or Huntoon as witnesses at the trial court hearing to develop their claim of partiality and predisposition, nor did they even mention either of these commission members in their pretrial brief or posttrial brief. The comments relied upon were all made during the hearings or in the discussion preceding the vote upon the application. They do not, therefore, indicate any predisposition that would have disqualified these members before the hearing. The comments made by Sherman and Huntoon were not of such a nature that the trial court was compelled to reach the conclusion that they were biased.

C

The plaintiffs’ more substantial claim is that Mary Gelfman’s remarks at the January 8,1985 public hearing, made on her own and her husband’s behalf, violated the strictures of General Statutes § 22a-42 (c). This subsection, which pertains expressly to the disqualification of inland wetlands agency members, provides in part that “[n]o member or alternate member of such board or commission shall participate in the hearing or decision of such board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.” The plaintiffs make no claim that Mary Gelfman was not entitled to speak on her own behalf at the hearing. Rather, they claim that by having his opinion voiced through his wife at the hearing, Nelson Gelfman effectively sidestepped the prohibition in § 22a-42 (c) of “participating” in a hearing from which he was disqualified.

We recognize that § 22a-42 (c) is ambiguous as to whether a disqualified commission member’s “appearance” or statements made through his wife and co-owner at a hearing constitute “participation” within the meaning of § 22a-42 (c). We conclude, however, that other statutes resolve this ambiguity.

We turn first to General Statutes § 8-11, which contains a nearly identical proscription against participation in zoning hearings by “interested” zoning commission members. Preceding that provision, § 8-11 prohibits any commission member from appearing for another party in any matter before the commission. This provision is significant, because it demonstrates that, in the zoning context, the legislature drew a distinction between participating in a hearing and appearing at a hearing. We note that § 22a-42 (c) contains no such proscription against appearing before an inland wetlands agency. Indeed, General Statutes § 22a-42a (c), which addresses public hearings on wetlands applications, states that “[a]t such hearing any person or persons may appear and be heard.” This unqualified provision in § 22a-42a (c) compels us to conclude that Nelson Gelfman’s remarks at the hearing, as voiced through his wife, did not constitute “participation,” and therefore, did not violate the prohibition in § 22a-42 (c).

Ill

The plaintiffs’ proposed excavation plan involved expanding the mining operation within, and adjacent to, wetlands areas. The plaintiffs claim that the defendant had no authority to regulate mining activity in the nonwetlands areas. If the plaintiffs were to prevail on this issue, a remand to the commission would be necessary for reconsideration of the application. We conclude, however, that the commission did not exceed its authority.

In Aaron v. Conservation Commission, 183 Conn. 532, 542, 441 A.2d 30 (1981), after a review of the inland wetlands statutes, we stated that “[a]n examination of the act reveals that one of its major considerations is the environmental impact of proposed activity on wetlands and water courses, which may, in some instances, come from outside the physical boundaries of a wetland or water course.” We held, therefore, that activity that occurs in nonwetlands areas, but that affects wetlands areas, falls within the scope of regulated activity. Our holding in Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250-51, 470 A.2d 1214 (1984), is not to the contrary. In that case, we held that the Stamford environmental protection board properly excluded evidence relating to possible air and noise pollution generated by the proposed project, concerns that concededly are not related to inland wetlands. We held that “an inland wetland agency is limited to considering only environmental matters which impact on inland wetlands.” (Emphasis added.) Id., 250. Thus, the defendant in this case acted within its authority in regulating mining and excavation in areas adjacent to the inland wetlands because there was evidence that these activities would adversely affect wetlands areas.

IY

The defendant required the plaintiffs to post a performance bond to guarantee compliance with the conditions of the special permit. The defendant found authority for its action in § 10.01 of the Ridgefield inland wetlands and watercourse regulations, which expressly authorize the defendant to require a performance bond. The special permit condition read as follows: “(4) A performance bond in the amount of one-hundred thousand ($100,000) dollars to guarantee compliance with these conditions shall be posted by the applicant prior to implementation of this permit. This bond shall remain in force for the duration of this permit, and may be claimed in part or whole if conditions of this permit are not met. This bond may be adjusted by decision of the Inland/Wetland Board upon its own motion or upon the applicants [sic] request.” The plaintiffs claim that the defendant had no statutory authority to require a performance bond. Their claim is based upon the absence of a specific reference to performance bonds in the enabling statutes.

Before we discuss the merits of the plaintiffs’ claim, we initially note that this court has long held that a planning and zoning commission may exercise only such powers as are expressly granted to the town by the legislature, or those powers that are necessary to enable it to discharge its duties and carry into effect the objects and purposes of its creation. Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 159, 479 A.2d 801 (1984). Our analysis, therefore, focuses on the language of the enabling statute and the policy that the inland wetlands legislation seeks to serve. See 2A J. Sutherland, Statutory Construction (4th Ed. Sands) §§ 56.01 and 56.02.

General Statutes § 22a-36 sets forth in great detail the purpose of our legislature in enacting this act, declaring that “[t]he inland wetlands and watercourses . . . are an indispensable and irreplaceable but fragile natural resource,” and that their “preservation and protection . . . from . . . disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state.” Section 22a-36 provides also that this legislation seeks “to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution; [and by] maintaining and improving water quality in accordance with the highest standards set by federal, state or local authority . . . . ”

In order to carry out these legislative objectives, § 22a-42 (c) expressly authorizes communities to establish inland wetlands commissions and to adopt regulations. Section 22a-42 (c) states that “[a]ny municipality, acting through its legislative body, may authorize any board or commission ... to promulgate such regulations, in conformity with the regulations promulgated by the commissioner pursuant to section 22a-39, as are necessary to protect the wetlands and watercourses within its territorial limits.” As we stated in Aaron v. Conservation Commission, supra, 541, “[i]t is this broad statutory mandate authorizing regulations on both the state and local levels, with specific legislative findings and declaration of policy, that serves as the setting in which we evaluate the claims of the parties.”

In this context, the issue before us becomes narrower. Specifically, we need decide only whether a local regulation that authorizes performance bonds is “necessary to protect the wetlands and watercourses.” General Statutes § 22a-42 (c).

The plaintiffs suggest that a performance bond requirement is not “necessary,” because such a measure is not indispensable to enable the defendant to discharge its duties. The word “necessary,” however, is a term which encompasses many gradations of necessity, from mere convenience to that which is indispensable. Indiana Broadcasting v. Star Stations, 180 Ind. App. 207, 214, 388 N.E.2d 568 (1979). Indeed, this court has long approved of giving the word “necessary,” where appropriate, a much more liberal meaning than indispensable. Bryan v. Branford, 50 Conn. 246, 253 (1882). We have held that its meaning varies depending upon the situation in which it is used and the goals to be achieved. Hooker v. Goodwin, 91 Conn. 463, 467, 99 A. 1059 (1917); see Baldwin v. Tradesmens National Bank, 147 Conn. 656, 661-62, 165 A.2d 331 (1960) (“necessary” does not restrict a surviving spouse’s allowance to bare subsistence); West Hartford v. Talcott, 138 Conn. 82, 91, 82 A.2d 351 (1951) (in eminent domain context, “necessary” means only that taking is reasonably necessary); Simmonds v. Holmes, 61 Conn. 1, 9, 23 A. 702 (1891) (in statute allowing killing of dog if necessary to prevent destruction of property, “necessary” does not mean absolutely necessary).

As we have indicated, the legislature has articulated with great clarity its intent that local authorities assume an important role in the protection of this state’s wetlands and watercourses. We believe, therefore, that the legislature intended that “necessary” should not be interpreted as meaning indispensable, but rather, as that which is reasonably designed to effectuate the stated purposes of the wetlands statutes. We conclude that the defendant, consistent with § 22a-42 (c), could properly require the plaintiffs to post a performance bond, because such a measure is reasonably designed to protect the town’s wetlands and watercourses.

Y

The remaining claims of the plaintiffs raise constitutional issues: (1) whether the inland wetlands act as applied to the plaintiffs constitutes a taking of their property; (2) whether the modifications imposed upon the application as granted substantially advance any legitimate state interest; and (3) whether the wetlands regulations adopted by the town of Ridgefield are so inadequate as to violate the due process clause of the fourteenth amendment to our federal constitution.

The exclusion of the evidence of the economic effect of the defendant’s action upon the plaintiffs’ property greatly limits the factual basis upon which the plaintiffs may presently rely in asserting their claim of a taking. Because this evidentiary ruling has necessitated a remand for further proceedings related to that claim so that the trial court may make findings related thereto, it would be inappropriate for this court to attempt to resolve the takings issue at this time on the limited record before us. We are not inclined to decide such a constitutional issue in piecemeal fashion.

The plaintiffs’ claim concerning the lack of any substantial state interest as a basis for ordering modifications in their application is intertwined with the takings issue upon which additional evidence is to be presented. We have indicated that under the closely related statutes regulating tidal wetlands, General Statutes §§ 22a-28 through 22a-35, the public interests are to be balanced against those of private landowners in determining whether a taking has occurred. Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 354, 362 A.2d 948 (1975); see Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 695, 433 A.2d 999 (1980). “Short of regulation which finally restricts the use of property for any reasonable purpose, resulting in a ‘practical confiscation,’ the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner.” Brecciaroli v. Commissioner of Environmental Protection, supra, 356. At the further proceedings in the trial court that we have ordered, evidence may be admitted that is material to the taking issue both as it relates to the plaintiffs’ financial detriment and as it relates to the advancement of the public interest.

The final constitutional issue, relating to the adequacy of the regulations in setting forth standards for a decision upon an application, constitutes the kind of general attack upon land use regulations that we have indicated should be the subject of a declaratory judgment action rather than an appeal from the denial of an application submitted pursuant to those regulations. Florentine v. Darien, supra, 428-30; National Transportation Co. v. Toquet, 123 Conn. 468, 478, 196 A. 344 (1937); see Russo v. Watertown, 184 Conn. 30, 33-35, 441 A.2d 56 (1981). The validity of the regulations is a question in which many property owners, in addition to the plaintiffs, may have an interest, and an opportunity for such persons to intervene should be afforded before any such determination should be made. National Transportation Co. v. Toquet, supra, 481-86. Although the trial court did address the issue of the sufficiency of the standards contained in the regulations, holding them adequate, it should have dismissed that part of the plaintiffs’ claim. Accordingly, we refrain from further consideration of that issue in this appeal.

There is error in part, the judgment is set aside and the case is remanded for further proceedings in respect to the takings issue.

In this opinion the other justices concurred.

       Errors claimed by a nonaggrieved party should be raised in a preliminary statement of issues under Practice Book § 4013 (a) (1), not under § 4005, which requires that the appellee be aggrieved in order to file a cross appeal. Orticelli v. Powers, 197 Conn. 9, 11 n.1, 495 A.2d 1023 (1985). Because the defendant filed a preliminary statement of issues within fourteen days from the filing of the appeal, we treat that statement as setting forth an alternate ground upon which the judgment may be affirmed. See Practice Book § 4013.
      The defendant claims in its preliminary statement and brief that the trial court erred in allowing the plaintiffs to amend their appeal. The trial court has wide discretion, however, in granting or denying amendments before, during, and even after trial. DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971). The record indicates that the plaintiffs amended their appeal nearly nine months before the hearing. Because the defendant has not demonstrated how it was prejudiced by the amendment, we hold that the trial court did not abuse its discretion.

       “[General Statutes] Sec. 22a-43a. findings on appeal, setting aside or modifying action, authority to purchase land, (a) If upon appeal pursuant to section 22a-43, the court finds that the action appealed from constitutes the equivalent of a taking without compensation, it shall set aside the action or it may modify the action so that it does not constitute a taking. In both instances the court shall remand the order to the inland wetland agency for action not inconsistent with its decision.
      “(b) To carry out the purposes of sections 22a-38, 22a-40, 22a-42 to 22a-43a, inclusive, 22a-401 and 22a-403, the commissioner, district or municipality may at any time purchase land or an interest in land in fee simple or other acceptable title, or subject to acceptable restrictions or exceptions, and enter into covenants and agreements with landowners.”

       We note that General Statutes § 4-183 (f) provides in part: “In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court.”

       David Huntoon was briefly mentioned in the last sentence of the plaintiffs’ supplemental pretrial brief. Eda Sherman was not mentioned at all in this document. This court may take judicial notice of documents in the court file. See Bialowans v. Minor, 209 Conn. 212, 219 n.3, 550 A.2d 637 (1988).

       Some portions of the plaintiffs’ brief discussing this issue appear to attack the inland wetlands statute generally, but these are combined with the argument concerning the evidence ruling under the topic heading: “The Inland Wetlands Act, as applied to the plaintiffs’ property by the defendant constitutes an unconstitutional taking of their property for a public purpose without just compensation, prohibited by the fifth amendment of the United States Constitution.”


author: Covello, J.

text:
    State of Connecticut v. Lawrence J. Pelletier, Jr.
    (13161)
    Peters, C. J., Healey, Shea, Callahan and Covello; Js.
    Argued October 6, 1988
    decision released January 10, 1989

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

      John O’Meara, deputy assistant state’s attorney, with whom, on the brief, were Walter Scanlon, chief assistant state’s attorney, and Patricia King, assistant state’s attorney, for the appellee (state).
   Covello, J.

After a jury trial, the defendant, Lawrence J. Pelletier, Jr., was found guilty of three counts of murder in the shooting deaths of three guards at the Purolator Armored Car Garage in Waterbury. The defendant appealed his conviction and we ordered a new trial. State v. Pelletier, 196 Conn. 32, 490 A.2d 515 (1985) (Pelletier I). On remand, the defendant was convicted of three counts of felony murder in violation of General Statutes § 53a-54c, and sentenced to a term of incarceration of twenty-five years to life on each count, to run consecutively, for a total effective sentence of seventy-five years to life imprisonment.

The defendant appeals his conviction claiming that the trial court erred in: (1) denying his motion to transfer the prosecution; (2) denying his motion to excuse for cause certain prospective jurors; (3) denying his motion to suppress evidence found in his home; (4) instructing the jury on alternative theories of criminal liability for which there was no evidence or insufficient evidence; (5) refusing to give his requested instruction on intoxication and lesser included offenses; (6) depriving him of his right to confrontation by admitting the hearsay statement of a codefendant; (7) refusing to allow him to present evidence of a potential third party culprit; and (8) imposing three separate punishments for three felony murder convictions based on the same underlying felony. The defendant further claims that: (9) his second trial was barred by double jeopardy because of intentional prosecutorial misconduct at his first trial; (10) the grand jury indictment was improper because of the underrepresentation of hispanics on the grand juries in the Waterbury judicial district and the presence and participation of unauthorized persons in the grand jury room during those proceedings; (11) prosecutorial misconduct in the state’s closing summation to the jury deprived him of a fair trial; and (12) he was denied his right to a speedy trial. We find no error.

I

We observe at the outset that the defendant has launched a wholesale attack on every aspect of this prosecution and some aspects of the preceding prosecution which this court has already disposed of in Pelletier I. This torrent of claimed error, including an issue that the defendant himself has directed to be argued, serves neither the ends of justice nor the defendant’s own purposes as possibly meritorious issues are obscured by the sheer number of claims that are put before us.

“ ‘Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one [issue] . . . [MJultiplying assignments of error will dilute and weaken a good case and will not save a bad one.’ Jackson, Advocacy Before the United States Supreme Court, 25 Temple L. Q. 115, 119 (1951).” Jones v. Barnes, 463 U.S. 745, 752, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).

“ ‘Most cases present only one, two, or three significant questions. . . . Usually ... if you cannot win on a few major points, the others are not likely to help. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.’ R. Stern, Appellate Practice in the United States 266 (1981).” Jones v. Barnes, supra.

II

The jury might reasonably have found that on April 16, 1979, three guards, Leslie Clark, Edward Cody and William West, were shot to death at the Purolator Armored Car garage in Waterbury. Upon investigation police found that the exterior and interior of the garage were littered with twenty-four expended .30 caliber shell casings fired from two M-l semi-automatic carbines. More than $1.7 million in cash, jewelry, food stamps and checks were missing. .During their investigation the police spoke with a witness who claimed to have purchased an M-l semi-automatic carbine for the defendant. The witness further stated that the defendant had discharged the weapon in the basement of his home at 23 Carmen Street in Waterbury. Based on this information the police obtained a search warrant for the defendant’s home. In executing that warrant the police found two cartridge cases and some literature on the M-l rifle. This material served as the basis for a subsequent search of a codefendant’s house where the police later found two M-l carbines along with the stolen property. The defendant was subsequently arrested and convicted of three counts of felony murder.

Ill

The defendant first claims that the trial court erred in denying his pretrial motion to transfer the prosecution. The defendant argues that he was denied his right to a fair trial because the publicity surrounding the case was so pervasive that it was impossible for him to empanel an impartial jury. “The determination of whether a transfer of prosecution is necessary is a matter ordinarily entrusted to the sound discretion of the trial court. Nevertheless, ‘due to the grave constitutional implications attending such pretrial rulings, “appellate tribunals have the duty to make an independent evaluation of the circumstances.” Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 16 L. Ed. 2d 600 [1966].’ State v. Piskorski, [177 Conn. 677, 685-86, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979)].” State v. Miller, 202 Conn. 463, 477, 522 A.2d 249 (1987). After a review of the record, we conclude that the publicity attending this case did not deprive the defendant of an impartial jury and a fair trial. Therefore, we find no error.

Much of the pretrial publicity was published shortly after the robbery and murders took place and before the defendant’s first trial which began on November 12, 1981. Before the start of his first trial the defendant moved to transfer the prosecution to a court location outside the judicial district of Waterbury. The trial court, Hull, J., denied this motion. The defendant did not raise the issue of the denial of this motion in the appeal from his first trial. State v. Pelletier I, supra. Now, however, the defendant claims that the publicity surrounding his first trial, along with the most recent publicity incident to his second trial, which began on January 13, 1987, has precluded him from receiving a fair trial. We disagree.

During his second trial the defendant moved to transfer the prosecution pursuant to Practice Book § 835. That section provides in part that “any pending criminal matter be transferred to any other court location: (1) If . . . a fair and impartial trial cannot be had where the case is pending . . . .” This court has stated that “ ‘[ajbsent inherently prejudicial publicity which has so saturated the community as to have a probable impact upon the prospective jurors, there must be some showing of a connection between the publicity . . . and the existence of actual jury prejudice’ ” in order to transfer a prosecution. State v. Piskorski, supra, 689, quoting McWilliams v. United States, 394 F.2d 41, 44 (8th Cir. 1968). We find that the defendant has shown neither inherently prejudicial publicity nor actual jury prejudice.

Our review of the record discloses that the pretrial publicity was extensive. The publicity involved television news reports, newspaper articles and radio broadcasts. The stories covered various aspects of the crime, the pretrial proceedings, the first trial, conviction, sentencing and appeal. The publicity also included codefendant Donald Couture’s retrial and the initiation of the defendant’s jury selection. “Nevertheless, ‘[w]e cannot accept the position that “prominence brings prejudice.” ’ ” State v. Piskorski, supra, 688, quoting Hale v. United States, 435 F.2d 737, 747 (5th Cir. 1970), cert. denied, 402 U.S. 976, 91 S. Ct. 1680, 29 L. Ed. 2d 142 (1971). While the publicity was extensive, it was neither inflammatory nor inaccurate. We are not persuaded that the news coverage created a “trial atmosphere that had been utterly corrupted by press coverage.” Murphy v. Florida, 421 U.S. 794, 798, 95 S. Ct 2031, 44 L. Ed. 2d 589 (1975). The media coverage involved “straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness.” Beck v. Washington, 369 U.S. 541, 556, 82 S. Ct. 955, 8 L. Ed. 2d 98, reh. denied, 370 U.S. 965, 82 S. Ct. 1575, 8 L. Ed. 2d 834 (1962). We conclude, therefore, that the pretrial publicity was not so inherently prejudicial as to deny the defendant his right to a fair trial.

Moreover, the defendant has failed to demonstrate actual jury prejudice. The defendant claims that the best evidence of actual prejudice is found in the results of the voir dire examination of 381 venirepersons. Of those examined, the defendant claims that 199 were excused for cause because of prior knowledge of the case. This fact alone, however, does not establish actual jury prejudice.

Each prospective juror was thoroughly and extensively examined. The parties fully explored the “level and effects of each prospective juror’s exposure to the publicity concerning the defendant.” State v. Marra, 195 Conn. 421, 431, 489 A.2d 350 (1985). While slightly more than 50 percent of the prospective jurors had prior knowledge of the case that would affect their ability to be impartial, of the twelve jurors and two alternates actually selected, none had substantial knowledge of the case or preconceived notions of the defendant’s guilt. It is clear that “ ‘[qjualified jurors need not . . . be totally ignorant of the facts and issues involved.’ ” Id., 433, quoting Murphy v. Florida, supra, 799-800. Notably, none of the jurors or alternates selected knew of the defendant’s prior conviction. We conclude that there was no connection between the pretrial publicity and actual jury prejudice and, therefore, that the trial court did not abuse its discretion in denying the defendant’s motion to transfer the prosecution.

IY

The defendant next claims that the trial court erred in denying his motion to excuse for cause eight prospective jurors thereby forcing him to expend his peremptory challenges. We find no error. The defendant argues that eight venirepersons should have been excused for cause because they had knowledge of the defendant’s prior conviction. This knowledge, the defendant argues, is so inherently dangerous to his right to an impartial jury that these prospective jurors should have been excused for cause.

We disagree with the defendant’s assertion for a number of reasons. First, an examination of the record discloses that the trial court granted the defendant almost three times the number of challenges that are prescribed by statute. The defendant’s claim, therefore, rests on the presumption that if he had not been forced to use those extra peremptory challenges on the eight prospective jurors, he might have used them to peremptorily challenge certain venirepersons who subsequently became jurors or alternates. This reasoning is speculative at best and clearly does not rise to the level of proof required to establish that the trial court abused its discretion in denying the defendant’s for cause challenges.

Second, the eight venirepersons all indicated that their knowledge of the defendant’s conviction would not affect their ability to be impartial. Throughout the voir dire the trial court excused for cause those venirepersons it believed could not be impartial. In determining the credibility of prospective jurors and their ability to be impartial, the trial court has broad discretion. State v. Ziel, 197 Conn. 60, 65, 495 A.2d 1050 (1985). While each of the eight venirepersons in issue had some knowledge of the defendant’s prior conviction, they all gave assurances that they could be unbiased and impartial. The trial court, in the exercise of its broad discretion, was satisfied with these assertions of impartiality. Under such circumstances, we are unable to find an abuse of discretion in the trial court’s failure to excuse these people for cause.

Finally, the defendant did not accept any juror or alternate whom he requested to be removed for cause. Therefore, even if those prospective jurors were biased, the defendant was not harmed because those individuals never became members of the jury.

V

The defendant next claims that the trial court erred in failing to suppress the “fruits” of an illegal search of his home. The evidence found in the defendant’s home, two cartridge cases and some literature on the M-l, served as the factual basis for the warrant issued to search the Couture home. It was there that the police found the weapons and stolen property which the court later admitted into evidence.

On April 17, 1979, the Waterbury police obtained a search warrant for the defendant’s home. Less than twenty-four hours after the crime occurred, ten to twelve officers arrived at the defendant’s home to execute that warrant. Upon arriving, a Waterbury inspector, using a bullhorn, identified himself, indicated that the police had obtained a warrant to search the house, and requested that anyone in the house come outside. The defendant came outside peaceably.

The defendant contends that although a search of his home was made pursuant to a valid search warrant, the search was nevertheless illegal because the executing officers violated the so-called “knock and announce” rule by using a bullhorn to announce their presence rather than knocking on the defendant’s door. Therefore, the defendant concludes, the “fruit” of this illegal search, i.e., the weapons and stolen property, should have been suppressed. We find no error.

“From early colonial times we, in this jurisdiction, have followed the common-law requirement . . . that, in the absence of some special exigency, before an officer may break and enter he ‘ought to signify the cause of his coming, and to make request to open the doors.’ ” State v. Mariano, 152 Conn. 85, 94, 203 A.2d 305, cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1964), quoting Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194 (1907); Read v. Case, 4 Conn. 166, 10 A. 110 (1822). The “knock and announce” rule requires that an officer identify himself or herself, announce that the purpose of his or her presence is to execute a search warrant, and wait a reasonable time for the occupier to surrender his or her privacy voluntarily. State v. Mariano, supra. An executing officer’s reasonable belief, however, “ ‘that announcement might place him or his associates in physical peril . . . constitutes exigent circumstances that justify noncompliance’ ” with the rule. (Emphasis added.) United States v. Ramirez, 770 F.2d 1458, 1460 (9th Cir. 1985), quoting United States v. Manfredi, 722 F.2d 519, 527 (9th Cir. 1983).

The trial court found that although the “knock and announce” rule was not complied with, the exigent circumstances surrounding the search excused the noncompliance. We need not determine whether the “knock and announce” rule was, in fact, complied with because we find that the exigent circumstances that existed at the time the officers executed the search warrant justified any possible noncompliance with that rule.

There are several reasons why it was reasonable for the officers to fear for their safety in executing this warrant. First, the police had not yet confiscated the weapons involved in the robbery and murders and had reason to believe that the defendant was in possession of at least one M-l semi-automatic carbine. Second, the warrant was executed less than twenty-four hours after the crime occurred. Third, the underlying crime had been committed in an especially violent manner. The police had found twenty-four expended .30 caliber shell casings from two M-l semi-automatic carbines. Finally, the police had reason to believe that the defendant had discharged the semi-automatic weapon in his home on prior occasions. We conclude, therefore, that the exigent circumstances which existed at the time the warrant was to be executed justified any noncompliance with the “knock and announce” rule which may have occurred.

VI

The defendant next claims that the trial court erred in instructing the jury on alternative theories of robbery, under General Statutes § 53a-133, and larceny, under General Statutes § 53a-119, when there was no evidence or insufficient evidence to support those theories. We find no error.

In accordance with General Statutes § 53a-133, the trial court instructed the jury that “[a] person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or engage in other conduct which aids in the commission of a larceny.”

The defendant claims that there was no evidence which would permit the jury to conclude that force was used to compel the victims “to deliver up” the property. Therefore, the defendant argues, the trial court erred in instructing the jury that “delivering up” the property was a possible element of the crime for which he was charged.

Donna Sousa, Donald Couture’s wife, testified that when the defendants arrived at the Purolator Garage they threw a cinder block through the window and told the guards to “freeze.” After the guards did not comply with this request the defendants began to shoot. The jury could reasonably have found that by throwing the cinder block through the window and ordering the victims to “freeze” the defendants were attempting to compel the victims to “deliver up” the property. Therefore, there was sufficient evidence which would let the jury reasonably conclude that the victims were forced to deliver up the property.

The defendant further claims that the trial court erred in its instruction to the jury on larceny as an element of robbery and thus an element of felony murder. The trial court instructed that “[a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.” General Statutes § 53a-119. The defendant claims that there was no evidence to support either “obtaining” or “withholding” which, he argues, are analytically distinct from a “taking.” We disagree.

In the context of this case the three words “taking,” “obtaining,” and “withholding” are inseparable. Certainly, as the defendant concedes, there was evidence of a “taking.” We cannot distinguish a difference between the defendant’s “taking” of Purolator’s property, and his “obtaining” that property. Furthermore, there is sufficient evidence that the defendant, thereafter, “withheld” that property when it was hidden in Couture’s basement. Therefore, we find no error.

VII

The defendant next claims that he was denied his constitutional right to confront the witnesses against him. U.S. Const., amend. VI. He claims that the trial court erred in admitting into evidence hearsay statements made by the codefendant, Donald Couture. We disagree.

At trial, Sousa testified that immediately after the robbery and murders, Couture and the defendant returned to the Couture home as previously planned. Sousa testified that before the defendants began unloading the truck, Couture entered the house and told Sousa about the shootings. Couture stated that one of the guards had been on his knees begging for mercy, and they had shot him.

The defendant claims that Couture’s statement about the begging victim was inadmissible hearsay and therefore violated his constitutional right of confrontation. Brutonv. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). Although Couture’s out-of-court statement was hearsay, it is well established that a coconspirator’s statement, made while the conspiracy is ongoing and in furtherance of the conspiracy, is an exception to the hearsay rule and as such, does not violate the confrontation clause. State v. Spencer, 198 Conn. 506, 513, 503 A.2d 1165 (1986); State v. Vessichio, 197 Conn. 644, 654-55, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986).

Here, the evidence reveals that the defendant and Couture conspired to steal the money, transport the money to the Couture home, and store the money in the basement. The statement in question was made before the defendants began unloading the truck and, thus, before the conspiracy was completed. Furthermore, Couture indicated that he wanted to tell Sousa about the shootings before she heard about it on the news. We view this statement as relevant to the furtherance of the conspiracy. Couture’s statement was made to lessen any emotional trauma the killings would cause Sousa, whose house was being used to hide the stolen property and whose further cooperation was obviously necessary. The clear implication is that this statement helped to maintain the cohesiveness of the conspiracy thereby furthering its purpose.

We conclude that Couture’s statement, as testified to by Sousa, was properly admitted as an exception to the hearsay rule and, therefore, did not violate the defendant’s constitutional right to confrontation. See State v. Spencer, supra.

VIII

We have examined the defendant’s further claims that the trial court erred in: refusing to give the defendant’s requested instruction on intoxication and lesser included offenses; refusing to allow the defendant to present evidence of a potential third party culprit; and imposing three separate punishments for three felony murder convictions based on the same underlying felony. We have also examined his claims that: his second trial was barred by double jeopardy; the grand jury indictment was improper because of the underrepresentation of hispanics on the grand juries in the Waterbury judicial district and the presence and participation of unauthorized persons in the grand jury room during those proceedings; he was denied his right to a fair trial because of prosecutorial misconduct in the state’s closing summation; and he was denied his right to a speedy trial. We find all of them to be without merit.

There is no error.

In this opinion Peters, C. J., Shea and Callahan, Js., concurred.

Healey, J., concurred in the result.

       The facts of this case are more fully reported in State v. Pelletier, 196 Conn. 32, 490 A.2d 515 (1985), and State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

       “The ABA Model Rules of Professional Conduct provide: ‘A lawyer shall abide'by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued. ... In a criminal case, the lawyer shall abide by the client’s decision ... as to a plea to be entered, whether to waive jury trial and whether the client will testify.’ Model Rules of Professional Conduct, Proposed Rule 1.2 (a) (Final Draft 1982) (Emphasis added). With the exception of these specified fundamental decisions, an attorney’s duty is to take professional responsibility for the conduct of the case, after consulting with his client.” Jones v. Barnes, 463 U.S. 745, 753 n.6, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). The proposed ABA rule, quoted above, has been adopted in this state. See Rule 1.2 (a) of the Rules of Professional Conduct.

       We note the proposed American Bar Association Appellate Court Standards Governing Lawyers which provide: “A lawyer shall present to the court only the most promising issues that offer a reasonable chance of success. In most cases this will mean that not more than two or three issues will be raised, and only in rare instances will more than three issues be raised. A lawyer shall not raise an issue not properly preserved except under circumstances under which the appellate court is likely to waive the failure. In a criminal appeal, a lawyer may be obligated to raise additional issues.” ABA Appellate Court Standards Governing Lawyers, Proposed Rule 3.41 (b) (9) (B) (Final Draft 1988).

       General Statutes § 54-82h provides in relevant part: “(a) In any criminal prosecution tried to a jury in the superior court if it appears to the court that the trial is likely to be protracted, the court may, in its discretion, direct that, after a jury has been selected, two or more additional jurors shall be added to the jury panel, to be known as ‘alternate jurors.’ ... [In such cases] the state and the accused may each peremptorily challenge . . . eighteen jurors if the offense is punishable by life imprisonment . . . .”

       During the course of voir dire the trial court told the parties that it “will excuse for cause any prospective juror who indicates an awareness and knowledge of the previous trial and conviction and at the same time expresses the slightest degree of uncertainty in his own mind as to how that would affect his thinking as a juror should he be selected in the present case. Should that combination of circumstances exist, the Court will exercise itself a challenge for cause and has done so already.”

       The United States Supreme Court recently addressed a similar issue and held that the erroneous denial of a charge for cause presented no federal constitutional issue. Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988).