author: Peters, C. J. Shea, J., Arthur H. Healey, J.,

text:
    State of Connecticut v. Jerry Mitchell
    (12484)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued April 2
    decision released July 1, 1986

      Jon L. Schoenhorn, special public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Jonathan C. Benedict, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue on this appeal is whether the trial court’s finding of probable cause that the defendant had committed the crime with which he was charged, made at a preliminary hearing mandated by article first, § 8, of the Connecticut constitution as amended, is reviewable on appeal after the defendant’s subsequent conviction. The defendant, Jerry Mitchell, was convicted of felony murder in violation of General Statutes § 53a-54c, and sentenced to imprisonment for forty years. He appeals from that judgment.

The jury could reasonably have found the following facts. During the early morning hours of June 24,1983, the victim, a thirty-four year old male, approached the defendant and three associates as they stood outside of a bar in Bridgeport. He asked them to help him locate a woman who had allegedly stolen his wallet. The four men agreed, but, when the victim went to get his car, they made plans to rob him. Subsequently, they accompanied the victim to another section of Bridgeport, where they beat and stabbed him to death. Following the attack, the four men fled the scene in the victim’s car. They later removed the tires from the car, sold them and split the proceeds. Two days afterward, the defendant was arrested and charged with felony murder in connection with this incident. A probable cause hearing was held on August 4, 1983, pursuant to article first, § 8, of the Connecticut constitution as amended and General Statutes § 54-46a. Following a finding by the trial court, Callahan, J., that the state had established probable cause to believe that the defendant had committed the offense of felony murder, the defendant was arraigned and bound over for trial.

On appeal from the judgment against him, the defendant raises two claims of error. He claims that the trial court should have dismissed the charge against him because: (1) the evidence presented at the preliminary hearing was insufficient to support the finding of probable cause; and (2) General Statutes § 54-46a (b), by prohibiting discovery motions at preliminary hearings, deprived him of his constitutional rights to due process and to confront and cross-examine the witnesses against him, and therefore vitiated the finding of probable cause. We find no error.

I

The defendant’s first claim requires us to make a threshold determination of whether the trial court’s finding of probable cause made at the preliminary hearing is reviewable on appeal after the defendant’s conviction. This is a question of first impression, requiring us to interpret the new constitutional right to a probable cause hearing that became part of our state constitution in November, 1982. Only if we decide this initial question in the affirmative need we address the defendant’s substantive claim that the evidence presented at the hearing was insufficient to establish probable cause.

A

The state contends that a finding of probable cause at a preliminary hearing should not be reviewable following conviction after trial. It argues that the probable cause hearing created by amendment to article first, § 8, of the state constitution was devised as a substitute for the simultaneously abolished indicting grand jury system. Reasoning by analogy from the well established rule barring review of the adequacy and competency of the evidence submitted to a grand jury to support an indictment, the state maintains that we should similarly foreclose review of the adequacy and competency of the evidence submitted at a probable cause hearing. In order to determine the validity of this syllogism, it is necessary for us to review briefly the genesis of the newly established probable cause hearing system and the purpose behind its creation.

Prior to November, 1982, the Connecticut constitution required a grand jury indictment as a prerequisite to the prosecution of anyone charged with a crime punishable by death or life imprisonment. This right to a grand jury determination of probable cause had its origin in our early statutory and common law and became part of our constitutional rights when the first state constitution was adopted in 1818. See State v. Sanabria, 192 Conn. 671, 674, 474 A.2d 760 (1984); Nahum & Schatz, “The Grand Jury in Connecticut,” 5 Conn. B.J. Ill, 111-21 (1931). Although originally conceived as a shielding device to protect individuals from unfounded prosecutions; State v. Menillo, 159 Conn. 264, 275, 268 A.2d 667 (1970); the grand jury system came to be widely criticized for its secret operation and its ex parte nature. See Spinella, Conn. Crim. Proc. (1985) pp. 272-73; Berdon, “Connecticut Grand Juries: The Case for Reform,” 54 Conn. B.J. 8, 9-16 (1980); Goldstein, “The State and the Accused: Balance of Advantage in Criminal Procedure,” 69 Yale L.J. 1165,1171 (1960). In Connecticut, an accused was generally permitted to attend the grand jury session and to question witnesses, but he was not permitted to have his attorney present or to present evidence in his own behalf. State v. Couture, 194 Conn. 530, 552-57, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Avcollie, 188 Conn. 626, 631-33, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. Menillo, supra, 274. In addition, in order to preserve the traditional secrecy of grand jury proceedings, the use of the transcript of the session itself was carefully limited by statute; State v. Couture, supra, 554-55; State v. Canady, 187 Conn. 281, 286-87, 445 A.2d 895 (1982); and this legislative proscription was strictly construed by this court. In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 708-709, 501 A.2d 377 (1985); State v. Canady, supra, 287. The statutory interdiction of access to the grand jury transcript meant that a person against whom an indictment had been returned was effectively precluded from obtaining a judicial review of the evidentiary basis for his indictment. State v. Vinal, 198 Conn. 644, 656, 504 A.2d 1364 (1986); State v. Morrill, 197 Conn. 507, 519, 498 A.2d 76 (1985); State v. Couture, supra, 555; State v. Canady, supra, 287.

In an attempt to correct these perceived inequities of the grand jury system and to provide expanded protections to an accused charged with a serious crime; see 24 H. R. Proc., Pt. 10, 1981 Sess., pp. 3148-50, remarks of Rep. Alfred J. Onorato; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2,1981 Sess., pp. 369-70, remarks of Rep. Richard D. Tulisano; the legislature in 1981 proposed a constitutional amendment to abolish the grand jury indictment system in Connecticut and to replace it with an open and adversarial probable cause hearing. See Substitute House Joint Resolution No. 36 (1981). This proposed amendment was approved by the electorate on November 2, 1982, and certified by the secretary of state on November 24,1982, as amendment seventeen to the Connecticut constitution. State v. Sanabria, supra, 676-77.

Amendment seventeen to article first, § 8, coupled with implementing legislation effective May 26,1983; see General Statutes § 54-46a; has created expansive new rights for an accused charged with a serious crime. In order to provide such an individual with greater protections than he was afforded under the former grand jury system; see 26 S. Proc., Pt. 4,1983 Sess., pp. 1413-14, remarks of Sen. Howard T. Owens; 26 H. R. Proc., Pt. 8,1983 Sess., pp. 2945-46, remarks of Rep. Alfred J. Onorato; 26 H. R. Proc., Pt. 10,1983 Sess., p. 3783, remarks of Rep. Alfred J. Onorato; this new provision guarantees that no one will be forced to stand trial for a serious crime unless a court has first made a finding of probable cause at an open hearing in which the accused is provided with a full panoply of adversarial rights. A judicial determination of probable cause has thus been made a constitutional prerequisite to the court’s subsequent jurisdiction to hear the trial.

The defendant claims that, in order to give meaning to this new constitutional safeguard, he must be afforded an opportunity to challenge on appeal the jurisdictional underpinnings of his conviction. Without such an opportunity for appellate review, he argues, the expanded protection envisioned by the adoption of amendment seventeen is but a hollow shell. We agree.

Appellate review of the adequacy of a constitutionally mandated determination of probable cause is required to give effect to the legislative history of amendment seventeen to article first, § 8. That history unequivocally manifests the intent of the legislature to adopt the preliminary probable cause hearing system as a constitutional safeguard to afford greater protection of an accused’s rights than the grand jury system had provided. Displacement of the indicting grand jury displaces the rationale behind our historical refusal to review grand jury proceedings. There is no further need to preserve the secrecy of the indictment process when a probable cause hearing is now conducted in public. We believe that appellate review of the determination of probable cause is essential to fulfilling the purpose of amendment seventeen.

The state argues, however, that such a reading of article first, § 8, as amended is in direct conflict with our recent holding in State v. Fleming, 198 Conn. 255, 502 A.2d 886 (1986). In that case, we held that an illegal arrest, without more, “impose[d] no jurisdictional barrier to a defendant’s subsequent prosecution” nor did it require “a voiding of the resulting conviction.” Id., 263. The state asks us to extend the principle underlying Fleming and to hold that all defects in pretrial procedures are cured by a subsequent conviction after trial and are therefore not reviewable on appeal. We believe, however, that a contrary conclusion is mandated by the significant constitutional differences between an illegal arrest and an invalid finding of probable cause at a constitutionally required preliminary hearing.

Unlike the adversarial probable cause hearing, an arrest is neither an integral part nor a critical stage of a judicial proceeding. State v. Carr, 172 Conn. 458, 472, 374 A.2d 1107 (1977); State v. Watson, 99 Idaho 694, 697, 587 P.2d 635 (1978); see Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). An arrest is simply a device which “serves to insure the presence of the accused at the proceedings which name him as a violator and to insure his presence afterward to accept the judgment of the court if he is found guilty.” State v. Watson, supra, 697. Consequently, any irregularities in the arrest procedure do not affect the subsequent jurisdiction of the court to hear the case. United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 440, 7 S. Ct. 225, 30 L. Ed. 421 (1886); State v. Fleming, supra, 262-63.

The adversarial probable cause hearing at issue here, on the other hand, is a critical stage in the prosecution; Coleman v. Alabama, 399 U.S. 1, 7, 9-10, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); and, under the express terms of article first, § 8, of our state constitution as amended, is a jurisdictional prerequisite to continuing prosecution. Accordingly, an invalid finding of probable cause at such a hearing undermines the court’s power to hear the case at trial.

In addition, we note that an individual who has been illegally arrested has civil redress in the nature of a common law tort action or an action under 42 U.S.C. § 1983. See Malley v. Briggs, 475 U.S. 335, 343-44, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986). There is no equivalent civil remedy for an invalid finding of probable cause at a preliminary hearing. Absent appellate review of the probable cause determination, therefore, there would be no recourse whatsoever for even the most blatant violation of this clear constitutional right. We agree with Justice Thurgood Marshall of the United States Supreme Court that “a right without an effective remedy has little meaning.” Guardians Assn. v. Civil Service Commission, New York City, 463 U.S. 582, 626, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983) (Marshall, J., dissenting).

In arguing for a contrary conclusion, the state refers us to several cases from other jurisdictions in which courts have refused to review after conviction the validity of a pretrial finding of probable cause. Most of these cases are inapposite because they concern defects in the arrest procedure rather than defects in probable cause hearings. See Yellen v. Nelson, 680 P.2d 234 (Colo. 1984); Ramirez v. State, 455 N.E.2d 609 (Ind. App. 1983); State v. Taylor, 422 So. 2d 109 (La. 1982); In re Harris, 38 Wash. App. 684, 689 P.2d 95 (1984). One cited case which appears at first glance to be on point is United States v. Millican, 600 F.2d 273, 277-78 (5th Cir. 1979), in which the Fifth Circuit held that the total failure to hold a probable cause hearing prior to trial, although improper, did not vitiate the defendant’s subsequent conviction. Id., 278. The state’s reliance on this case, however, is misplaced. Unlike the present defendant, the defendant in MiUican had no constitutional right to a probable cause hearing as a prelude to further proceedings. Id. 276; see Gerstein v. Pugh, 420 U.S. 103, 119-20, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). The Connecticut constitution, on the other hand, not only specifically guarantees this right to persons charged with serious crimes, it also makes such a hearing a jurisdictional prerequisite to continuing prosecution. The state has cited us to no jurisdiction, nor has our research discovered any, in which an accused enjoys the identical constitutional protection afforded by article first, § 8, of the Connecticut constitution as amended.* It is the unique nature of this express constitutional guarantee, coupled with the legislative history indicating an intent thereby to increase the protection afforded to criminal defendants, that impels us to the conclusion that appellate review of the finding of probable cause is warranted. Accordingly, we will review the evidence presented at the defendant’s preliminary hearing to determine if it was sufficient to establish probable cause to continue his prosecution.

B

The defendant claims that the evidence presented by the state was insufficient to establish probable cause that he committed the crime of felony murder. The defendant concedes that there was sufficient evidence to establish that he was present during the assault and robbery of the victim. He argues, however, that there was no evidence to support a finding that he actually participated in the crime. At the conclusion of the probable cause hearing, and again prior to trial, the defendant moved to dismiss the charge oh this ground. Both motions were denied.

In order to decide the defendant’s claim, we must examine the evidence presented at the preliminary hearing to determine whether it was sufficient to support the trial court’s finding of probable cause. See State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983). The testimony of six witnesses at the hearing established that, several days after the murder in question, the defendant had given a statement to the police in which he admitted that he had accompanied three men when they robbed, beat and stabbed the victim. Following this assault, he fled the scene with the three participants in the victim’s car, and was seen several hours later in the company of one of the attackers. The other three men each gave a statement to the police in which each admitted joining in either the attack or the robbery of the victim.

The defendant claims that, because there was no direct evidence that he had actually participated in the crime, the trial court’s finding of probable cause was erroneous. We disagree. The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial, as the defendant concedes. State v. Green, 237 Kan. 146, 148, 697 P.2d 1305 (1985); Myers v. Commonwealth, 363 Mass. 843, 850, 298 N.E.2d 819 (1973); State v. Dunn, 121 Wis. 2d 389, 396, 359 N.W.2d 151 (1984). In making its finding, the court had to “determine whether the government’s evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime.” Arenella, “Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication,” 78 Mich. L. Rev. 463, 478 (1980); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).

Using this standard, we are convinced that the trial court correctly found that probable cause had been established. Under the felony murder statute with which the defendant was charged, it was not necessary for the state to establish that the defendant had personally joined in the attack on the victim. It was sufficient to establish that he had committed the underlying felony of robbery, either as a principal or as an accessory, and that the victim had been killed as a result. General Statutes § 53a-54c. See State v. Fleming, supra, 268 n.15. The evidence before the court showed that the defendant had admitted being in the company of three participants at the time the crime was committed, and that he had further admitted fleeing the scene with them in the victim’s car. In addition, he was seen with one of the participants several hours later. Although the defendant stopped short of implicating himself in the actual commission of the crime, it was reasonable for the trial court to draw the inference that he would not have fled with the assailants and remained in their company unless he was also involved. We find, therefore, that there was sufficient evidence to support the trial court’s finding of probable cause.

II

In his second claim of error, the defendant labels unconstitutional that portion of § 54-46a (b) which prohibits discovery motions at probable cause hearings. The defendant makes no claim that he is constitutionally entitled to the broad range of discovery materials permitted by statute to a criminal defendant at trial. See General Statutes §§ 54-86a and 54-86b. He argues, however, that by barring discovery motions altogether, § 54-46a (b) prevents disclosure of even exculpatory information within the control of the prosecution, thereby impairing his constitutional rights to due process and to cross-examine witnesses effectively. At the start of the probable cause hearing, the defendant moved to dismiss the charge on the basis of the alleged unconstitutionality of § 54-46a (b). This motion was denied.

We conclude that § 54-46a (b) is constitutional when read in conjunction with the prosecution’s on-going constitutional duty to disclose exculpatory material to a criminal defendant independent of a defense motion or request. See United States v. Agurs, 427 U.S. 97, 106-107, 96 S. Ct. 2392,49 L. Ed. 2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Dolphin, 195 Conn. 444, 455, 488 A.2d 212, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Rodriguez, 180 Conn. 382, 397, 429 A.2d 919 (1980). The state has conceded that this constitutional obligation applies to the preliminary hearing stage of prosecutions, including hearings to determine probable cause, and we agree. Only recently, we noted that “[t]he unmistakable tone of Brady is that evidence required to be disclosed must be disclosed at a time when it can be used.” State v. Pollitt, 199 Conn. 399, 414, 501 A.2d 8 (1986); see also State v. Couture, supra, 557. Since the adversarial probable cause hearing at issue here is an essential part of a defendant’s criminal prosecution, the constitutional obligation to disclose exculpatory material attaches at that time. Consequently, § 54-46a (b)’s ban on defense discovery motions did not impair the defendant’s constitutional rights.

The defendant makes no claim that the prosecution failed to disclose any exculpatory material at his probable cause hearing. On the contrary, we note that the state turned the defendant’s statement to police over to the defense during that hearing, and that defense counsel subsequently used the statement in his cross-examination of a police witness. We note also that the defendant later submitted that statement to the court in an attempt to rebut its finding of probable cause. In light of this record, the defendant has established no violation of his constitutional rights.

There is no error.

In this opinion Dannehy and Santaniello, Js., concurred.

Shea, J.,

concurring. Although I agree with the result, I disagree with part IA of the opinion that holds the trial court’s finding of probable cause to be reviewable even though the sufficiency of the evidence to support the defendant’s conviction after a trial on the merits remains unchallenged. A finding by a jury that a person is guilty beyond a reasonable doubt a fortiori signifies that there is probable cause to prosecute him. Even if the evidence offered at the probable cause hearing in this case had been found inadequate by the majority to support the finding of probable cause made by the trial court, it would still make no sense to vacate the jury’s finding of guilt beyond a reasonable doubt after a fair trial in order to require the state to make an adequate showing of probable cause at this stage of the proceeding. Such an exercise in futility, which would ordinarily amount to a rerun of evidence presented at the trial that has already been determined to be adequate to support a conviction, is an utter waste of judicial resources that should be conserved for more useful purposes.

I fear that this unnecessary chore the majority has chosen to undertake will become a frequent ritual of this court in appeals from murder convictions. Henceforth the focus of our evidentiary review in murder cases will be, not the evidence at trial, which a jury found sufficient for a conviction beyond a reasonable doubt, but the evidence presented at the probable cause hearing, where the only issue to be determined is whether there is enough evidence to warrant a prosecution. In those cases where the trial court as well as the prosecutor have overlooked some essential element of the crime at the probable cause hearing, the conviction presumably will be set aside despite ample proof of such element at the trial.

Of more serious consequence than the additional burden the majority opinion casts upon the judicial system is the likelihood that in some instances murderers who have been convicted after a fair trial will escape the consequences of their crimes because of the unavailability of some witnesses for a second trial and the staleness of their recollection. Presumably the transcript of their testimony at the first trial could still be used, but its impact seldom would measure up to the impression created by the testimony of live witnesses.

“[I]t is the duty of a reviewing court to consider the trial court record as a whole and to ignore errors that are harmless, including most constitutional violations.” United States v. Hasting, 461 U.S. 499, 509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). This court has frequently applied this principle to violations of constitutional rights of an accused. State v. Shifflett, 199 Conn. 718, 508 A.2d 748 (1986) (use of photograph obtained during illegal search to obtain confession); State v. Fleming, 198 Conn. 255, 258-63, 502 A.2d 886 (1986) (illegal arrest does not void subsequent prosecution and conviction); State v. Harman, 198 Conn. 124, 131, 502 A.2d 381 (1985) (delay in appointment of new counsel to represent defendant). Not every constitutional violation requires automatic reversal. “The question is whether there is a reasonable possibility that the [violation] complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963); see Chapman v. California, 386 U.S. 18, 23-24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In no realistic sense can an erroneous finding of probable cause be said to have contributed to a conviction after a trial on the merits unless the finding in some manner has resulted in the use of prejudicial evidence at the trial.

The United States Supreme Court has held that an indictment may not be dismissed because of the inadequacy or incompetence of the evidence adduced before the grand jury to support it. Costello v. United States, 350 U.S. 359, 362, 76 S. Ct. 406, 100 L. Ed. 397 (1956); Holt v. United States, 218 U.S. 245, 247, 31 S. Ct. 2, 54 L. Ed. 1021 (1910). Even where an indictment is based on evidence obtained in violation of a constitutional right, it may stand. United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966). This court has refused to set aside convictions despite a constitutionally erroneous instruction to the grand jury on the presumption of innocence; State v. Stepney, 181 Conn. 268, 283-84, 435 A.2d 701 (1980), cert. denied, 449 U.S. 1077, 101 S. Ct. 856, 66 L. Ed. 2d 799 (1981); a recognized abuse of discretion in excluding a defendant from the grand jury hearing; State v. Avcollie, 188 Conn. 626, 633, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); and a plain violation of a rule of practice prohibiting anyone but regular members of the grand jury from being present during deliberations. State v. McGann, 199 Conn. 163, 167, 506 A.2d 109 (1986).

“It is only a violation of the most sacrosanct of constitutional rights in the indicting process, such as racial discrimination in the composition of the grand jury, that can justify the illogic of remanding a case to redetermine whether there is probable cause to prosecute a defendant whose guilt after a fair trial has been found beyond a reasonable doubt.” State v. McGann, supra, 169; see Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); Rose v. Mitchell, 443 U.S. 545, 551-59, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979). An erroneous determination of probable cause has never previously been regarded as violating such a significant constitutional right. The majority opinion cites no authority, and I am aware of none, supporting a review of a grand jury indictment following a conviction at trial for the purpose of determining whether the finding of probable cause was supported by sufficient proof. See Costello v. United States, supra, 362- 63.

There is nothing in the history of the adoption of the 1982 amendment to article first, § 8, of our state constitution to warrant the innovation sponsored by the majority in appellate treatment of findings of probable cause. The nonreviewability of such findings was never based wholly upon the traditional secrecy of grand jury proceedings, as the opinion assumes, because even errors in grand jury proceedings fully disclosed by transcripts have been held not reviewable. State v. McGann, supra, 166-70; State v. Stepney, supra, 283-84; see Costello v. United States, supra, 363- 64. The language of the amendment and its implementing legislation, General Statutes § 54-46a, contains no support for the view that appellate review of probable cause determinations is now mandated in every case. The amendment merely substituted for the phrase, “unless on a presentment or an indictment of a grand jury,” the language, “unless upon probable cause shown at a hearing in accordance with procedures prescribed bylaw.” Conn. Const., amend. XVII. General Statutes § 54-46a, which implements the amendment, prescribes a new probable cause procedure allowing a defendant to have counsel at the hearing, to present argument to the court, to cross-examine witnesses and to obtain a transcript. These modifications of our former grand jury procedure are wholly unrelated to the propriety of appellate review of the evidence offered to support a finding of probable cause. Nor do they transform deficiencies in such findings into jurisdictional flaws, as the majority opinion holds, of such significance as to require a criminal proceeding to be recommenced ab initio after a trial on the merits. The language of article first, § 8, that “[n]o person shall be held to answer for any crime, punishable by death or life imprisonment,” which is claimed to require this consequence, was not changed by the 1982 amendment. Since this court has not previously viewed that provision to create any jurisdictional barrier to a prosecution upon an indictment that is flawed for lack of evidence or for incompetent evidence, it is difficult to perceive why a change in the mechanism for determining probable cause should have this result.

Apparently the principal concern of the majority is that, unless appellate review is provided of probable cause determinations, “the expanded protection envisioned by the adoption of amendment seventeen would become a hollow shell.” The same argument can be advanced with respect to many other constitutional rights where the harmless error principle has been applied. A demonstration of prejudice, nevertheless, has been deemed essential to warrant overturning a conviction for constitutional violations equally as basic as that involved here. State v. Shifflett, supra; State v. Fleming, supra; State v. Harman, supra. It is incorrect to assume that no occasion will ever arise for review of probable cause findings made pursuant to § 54-46a. Where an erroneous determination has led the police to discover evidence used at the trial, as where a defendant has confessed during the period of confinement following the hearing, a claim of prejudice might well be justified. Just as evidence obtained as the result of an illegal arrest continues to necessitate our review of probable cause for the arrest, despite the demise of State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), the nonreviewability of probable cause found pursuant to § 54-46a, where there has been no prejudice at the trial, does not foreclose such review where prejudice can be shown. See State v. Fleming, supra, 261-63. Any concern that trial judges will feel wholly uninhibited in finding probable cause to exist unless such a finding is reviewable in every instance, regardless of any prejudice that may ensue, is unwarranted. They, no less than the members of this court, are sworn to uphold the constitution and the laws of this state. General Statutes § 1-25.

Accordingly, I concur only with the result.

Arthur H. Healey, J.,

concurring. I agree with the result reached by the majority, and although I join in the concurring opinion of Justice Shea, I choose to write separately in order to emphasize a point not made strongly enough for me in his opinion.

In our system, every criminal accused is constitutionally guaranteed a fair trial. I do not perceive any need to address a claim that a probable cause hearing now mandated by the Connecticut constitution, article first, § 8, as amended (amendment seventeen), must be reviewed by us where the record does not adequately support a claim that such a hearing flawed the trial-in-chief, the ultimate innocence-guilt proceeding, with error that violates the constitutional rights of an accused. Such a view does not make a “hollow shell” of the protection afforded by the adoption of this amendment that the majority opinion hypothesizes.

I therefore concur in the result.

       Amendment XVII to the Connecticut constitution amended article first, § 8, to read in relevant part: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

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

       The defendant has withdrawn his claim of ineffective assistance of counsel in light of our holding in State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480 (1986).

       General Statutes § 54-45a (b) limited the use of grand jury transcripts to the following: “(b) The transcript of such proceedings may not be used as evidence in any proceeding against the accused except for the purpose of impeaching a witness, attacking the credibility of a witness or proving inconsistent statements of a witness. The transcript may also be used as evidence in a prosecution for perjury committed by a witness while giving such testimony.”

       During floor debate over the proposed amendment, Representative Alfred J. Onorato made the following observations concerning the differences between the then-existing grand jury system and the proposed probable cause hearing: “Basically right now, Mr. Speaker, when an individual is arrested for the crime of murder or that particular crime which calls for life imprisonment or the death penalty, murder, kidnapping, and certain other crimes, the State’s Attorney convenes the Grand Jury. What that means is that the State’s Attorney has to call for a Grand Jury consisting of some 18 people. The 18 people then meet in the Superior Court and prepare to hear evidence on whether or not there are [evidentiary] matters to hand down an indictment. The only ones that can testify, and by the way the Grand Jury can’t ask questions at this proceeding, the only ones that can testify are obviously the state’s witnesses. No one else is allowed to testify. Most Grand Juries can be done without a State’s Attorney or without a Judge. So you have some inspector in there with the state’s witnesses going through the process, and inevitably you have an indictment that is handed down.” 24 H. R. Proc., Pt. 10, 1981 Sess., p. 3148.
      “This particular [probable cause hearing] process would protect those accused from arbitrary or unjustified use of the Grand Jury. And those who know how a Grand Jury system works, knows [sic] the abuses that are inherent to it and this would be a better process, at least if you want to see justice done.” Id., p. 3150.
      During public hearings on the proposed amendment, Representative Richard D. Tulisano made the following observation: “[T]he Grand Jury is not what it used to be, or intended to be at the time of the Magna Carta, I guess. So that if we substituted in the Grand Jury constitutionally, a preliminary hearing type system ... it would take the place of what the original purpose of the Grand Jury must have been, and it would insure that they got them in the most serious offenses.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1981 Sess., p. 370.

       “[General Statutes] Sec. 54-46a. probable cause hearing for persons CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE IMPRISONMENT. (a) No person charged by the state on or after May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”

       Under this amendment, serious crimes are considered those punishable either by death or by life imprisonment.

       During floor debates concerning Public Act 1983, No. 83-210, later codified as General Statutes § 54-46a, which established procedures for probable cause hearings, Representative Alfred J. Onorato made the following remarks: “[A]t a hearing of probable cause action, this constitutional amendment that was adopted by the citizens in 1982 takes the place of the Grand Jury system and under the Grand Jury system, the rights that are enumerated for defense in the file copy were not given to the defendants in the Grand Jury system. And what the Grand Jury system was was that any evidence that the state sought to bring in, without explanation or anything else, came in and the individual is bound over to the Superior Court.” 26 H. R. Proc., Pt. 8, 1983 Sess., p. 2946.
      “What the bill does now is set up a procedure by which hearings and probable cause shall operate for those crimes punishable by death or life imprisonment in lieu of the grand jury that was done away with by the Constitutional amendment in 1982. It explains the rights that the defendants have in this hearing that they did not have in the grand jury hearing.” 26 H. R. Proc., Pt. 10, 1983 Sess., p. 3783.
      During Senate debates, Senator Howard T. Owens made the following remarks: “This has really gone quite far because we’ve substituted this probable cause bill for a Grand Jury presentment which before we, no one could cross examine at all, so it’s a progressive step in the system of criminal justice and it certainly protects the rights of the individuals more without (inaudible) the interests of the State of Connecticut. It’s a fine piece of legislation.” 26 S. Proc., Pt. 4, 1983 Sess., p. 1414.

       In contrast to General Statutes § 54-45a, which carefully limits the use of the grand jury transcript, § 54-46a (b) expressly makes the transcript of the preliminary hearing available to defendants with no restrictions on its use.

       Under Gerstein v. Pugh, 420 U.S. 103, 112-14, 120-22, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), a criminal defendant possesses a constitutional right to a judicial determination of probable cause to arrest, either in the issuance of an arrest warrant or in an ex parte proceeding shortly after arrest. There is, however, no federal constitutional right to an adversarial probable cause hearing as a prerequisite to prosecution. Id., 120.

       Several states provide for either a grand jury indictment or a preliminary hearing to establish probable cause. See, e.g., Idaho Const., art. I § 8; N.M. Const., art. II § 14; Or. Const., art. VII § 5; Utah Const., art. I § 13. Of these states, apparently only Idaho refuses to review the preliminary hearing’s finding of probable cause on appeal after conviction. State v. Mitchell, 104 Idaho 493, 500, 660 P.2d 1336 (1983); Mascarenas v. State, 80 N.M. 537, 538-540, 458 P.2d 789 (1969); State v. Clark, 291 Or. 231, 234-35, 630 P.2d 810 (1981); State v. Anderson, 612 P.2d 778, 781-82, 787 (Utah 1980). We have discovered no state which has expressly implemented a probable cause hearing system as a total replacement for, and improvement of the grand jury.

       The concurring opinion’s analogy to the harmless error doctrine is flawed. Antecedent to a finding of harmless error is a review of the claim of error at issue. The concurring opinion’s approach would bar review of the finding of probable cause altogether. Such an extension of the harmless error doctrine is unwarranted in the face of the clear expression of intent by the people of this state to create a specific new constitutional protection for those charged with serious crimes.

       Although the defendant raised at oral argument the question of interlocutory review of the determination of probable cause, this issue was not raised either before the trial court or in the defendant’s brief. Therefore, we decline to consider it here.

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      The fourteenth amendment to the United States constitution provides in relevant part: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws.”
      Article first, § 8, of the Connecticut constitution as amended provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed.”

       Since the thesis of this concurring opinion is that an erroneous finding of probable cause is of no import once there has been a trial on the merits, it follows that review of the specific claim of error is unnecessary. Contrary to the suggestion in footnote 12 of the majority opinion, this court ordinarily does not review claims of error that must inevitably be found harmless. State v. Fleming, 198 Conn. 255, 259, 502 A.2d 886 (1986) (legality of arrest not resulting in illegally obtained evidence); Blanchard v. Bridgeport, 190 Conn. 798, 803 n.1, 463 A.2d 553 (1983) (general verdict rule); Slattery v. Maykut, 176 Conn. 147, 150 n.3, 405 A.2d 76 (1978) (ruling excluding evidence that is not material in view of trial court’s conclusions).


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    Administrative and Residual Employees Union, AFT/CSFT, AFL-CIO v. State of Connecticut
    (12724)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 8
    decision released July 1, 1986

      Robert F. McWeeny, for the appellant (plaintiff).

      Brian J. Comerford, assistant attorney general, with whom were Josephine Lauriello, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (state).
   Santaniello, J.

The sole issue on this appeal is whether General Statutes § 52-416 (a) requires that extensions of time in which an arbitrator must issue his award be in writing where the arbitration agreement fixes the time limitations and allows for oral extensions. The appeal arises out of the arbitration of an employee grievance under the collective bargaining agreement in effect between the plaintiff, the Administrative and Residual Employees Union, AFT/CSFT, AFL-CIO, and the state of Connecticut. The arbitrator issued his award two and one-half months after the arbitration hearings had been concluded. The plaintiff applied to the Superior Court to vacate the award pursuant to General Statutes § 52-418 on the ground that the arbitrator had failed to issue his award within the contractual thirty day period. The trial court denied the application and the plaintiff appeals. We find no error.

The trial court, sitting as trier of fact, could reasonably have found the following. The parties entered into a collective bargaining agreement which provided for the arbitration of employment grievances and which specifically required the arbitrator to “render his decision in writing no later than thirty (30) days after the conclusion of the hearing unless the parties jointly agree otherwise.” The arbitration hearing for the grievance in question was conducted on October 11, 1983. The parties thereafter orally agreed to extend the arbitrator’s time for issuing an award until December 14,1983. The arbitrator issued his award in favor of the state on December 12, 1983.

The plaintiff applied to vacate the award under General Statutes § 52-418 (a) which provides: “[u]pon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds . . . [that] the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” The plaintiff claimed that the arbitrator exceeded his authority under the bargaining agreement by rendering his decision more than thirty days after the hearings were conducted. The state argued that the contractual time period was extended by oral agreement, but the plaintiff countered that under General Statutes § 52-416 (a) the extension must be in writing to be valid. The trial court found the issues in favor of the state and ruled that § 52-416 (a) does not require written extensions where the parties have agreed in their arbitration contract to permit oral extensions. The court concluded that the collective bargaining agreement between the parties in this case allowed them to extend the thirty day time limitation orally and accordingly denied the application.

On appeal, the plaintiff does not question the trial court’s factual finding that the parties orally agreed to extend the time period to December 14, 1983, nor does it contest the court’s interpretation of the collective bargaining agreement that the contract permits oral extensions. The sole question presented is whether General Statutes § 52-416 (a) requires that agreements to extend the time in which an arbitrator must render his decision be in writing where the parties have agreed to their own time limitations and have allowed for oral extensions. Section 52-416 (a) provides: “If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed .... An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.” The plaintiff argues that the statute requires extensions to be in writing regardless of whether the parties provide otherwise in their arbitration agreement. We disagree.

“Arbitration is the voluntary submission, by the interested parties, of an existing or future dispute to a disinterested person or persons for final determination.” Gores v. Rosenthal, 150 Conn. 554, 557, 192 A.2d 210 (1963). It is a creature of contract; Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Waterbury v. Waterbury Police Union, 176 Conn. 401, 403, 407 A.2d 1013 (1979); and the parties are free to limit the arbitrator’s powers. Board of Education v. AFSCME, 195 Conn. 266, 269, 487 A.2d 553 (1985); Conn. Union of Telephone Workers v. So. N.E. Telephone Co., 148 Conn. 192, 197, 169 A.2d 646 (1961). The arbitration agreement and the submission constitute “the charter of the entire arbitration proceedings”; Gores v. Rosenthal, supra, 557-58; and define the powers of the arbitrator and the issues to be decided.

The plaintiff urges upon us a construction of General Statutes § 52-416 (a) that would eclipse the right of parties to define contractually the role that arbitration will play in the resolution of their disputes, but we reject this suggestion. The statute begins with the condition: “[i]f the time within which an award is rendered has not been fixed in the arbitration agreement . . . .” We construe this proviso as making the application of the entire section, including the requirement that extensions be in writing, conditional upon the parties having not agreed otherwise. This reading is consistent with our general policy of construing our arbitration statutes liberally to encourage the use of arbitration as an alternate form of dispute resolution. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68-69, 82 A.2d 345 (1951).

The plaintiff relies on our decision in Marsala v. Valve Corporation of America, 157 Conn. 362, 254 A.2d 469 (1969), where we held that § 52-416 invalidated an award because it was not rendered within the statutory period. Marsala, however, involved arbitration under a collective bargaining agreement which had no provision governing the time limitations on the arbitrator to render his award and was a case where the parties did not agree either orally or in writing to extend the time limitation. Id., 369-70. The case is therefore inapposite. We also point out that in Marsala, we invalidated the award only grudgingly and commented that “we find nothing to commend in this plaintiffs conduct in seeking to have the award vacated under § 52-416.” Id., 369. Arbitration is a favored means of settling differences and an arbitration award will be upheld unless it clearly falls within the proscriptions of General Statutes § 52-418. Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977); International Union v. Fafnir Bearing Co., 151 Conn. 650, 653, 201 A.2d 656 (1964). “ ‘Every reasonable presumption and intendment will be made in favor of the award and of the arbitrators’ acts and proceedings. . . . ’ Gary Excavating Co. v. North Haven, 160 Conn. 411, 413, 279 A.2d 543 (1971).” Board of Education v. AFSCME, supra, 270-71.

It is our conclusion that General Statutes § 52-416 (a) does not invalidate the arbitration award issued in this case and that the trial court did not err in denying the plaintiffs application.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-416 (a) provides: “If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.”


author: Callahan, J.

text:
    State of Connecticut v. William Evans
    (12545)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued April 9
    decision released July 1, 1986

      Perry C. Buddington, special public defender, with whom, on the brief, was James L. Radda, special public defender, for the appellant (defendant).

      Irving L. Aronson, assistant state’s attorney, with whom, on the brief, was Richard A. Schatz, former assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, William Evans, was charged in a substitute information with the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and with being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a). A jury found the defendant guilty of both crimes. On appeal, the defendant claims that the trial court erred: (1) in permitting testimony at trial concerning a pretrial photographic identification and in refusing to suppress the pretrial identification as unnecessarily suggestive and unreliable; and (2) in denying the defendant’s motion to dismiss the substitute information as violative of his equal protection rights under article first, § 20 of the Connecticut constitution. We find no error.

The record reveals that at approximately 2 p.m. on September 30,1983, a robbery occurred at the courtesy booth at the Finast supermarket in the New London Shopping Center. The robber had a brown paper bag and demanded that the bag be filled with money. Pat Philburn, a store employee, placed $1950 into the bag. At trial she testified that the robber was a black male with no facial hair, approximately six feet tall, weighing two hundred pounds, about thirty-six years old, wearing a blue baseball cap with the letter “B” on it. Karen Neilon, another store employee, testified at trial that she saw the robber place a gun on the counter. She further testified that the robber was a black male, approximately six feet tall, medium to large frame, with no facial hair and a fairly dark complexion, in his thirties. Neither Philburn nor Neilon was able to identify the defendant as the robber at trial or when they viewed a photographic array containing a picture of him soon after the robbery.

The only other person who claimed to have viewed the robber was Old Lyme Constable Bernard Douton. On September 30,1983, Douton, while in his patrol car, received a description, over his police radio, of an automobile allegedly involved in the robbery. It was described as a large yellow vehicle with a white top and reportedly was being operated by a black male with a purple shirt. At approximately 2:15 or 2:30 p.m. that day, Douton observed, on 1-95, a large yellow automobile being driven by a black male. Because the vehicle had a black, rather than a white top, however, he did not stop it immediately but pulled alongside it and observed the driver for thirty or thirty-five seconds during most of which time the driver was facing him. Douton then signalled the driver to pull over and the driver stopped his vehicle about ten feet ahead of Douton’s patrol car. At that point the driver began to exit his vehicle and, while doing so, looked back toward Douton for about five seconds. Douton told the man to get back in the car, remain stationary, and place his hands on the dashboard. The driver instead re-entered his automobile and drove away. Douton pursued him in his patrol car and the driver eventually lost control of his vehicle and it struck a stone wall. The driver then ran from the vehicle and Douton continued the pursuit on foot. During the chase the suspect tripped and fell to the ground, then got up, looked at Douton for “less than five seconds,” implored him not to shoot and started running again. Shortly thereafter, he stopped, turned to Douton and shouted, “Don’t shoot. Don’t shoot. I give up.” This encounter consumed “less than five seconds” before the suspect turned away from Douton and ran through a backyard and over a stone wall. Douton at that point terminated the pursuit and returned to his vehicle. The closest Douton was to the suspect during the chase was ten or fifteen feet, but he had a clear field of vision during the entire pursuit. Douton was able to describe the suspect to the New London police department as a clean-shaven black male, approximately six feet tall, 35 to 40 years old, medium build, and wearing a purple shirt.

The day after the robbery, at New London police headquarters, Douton viewed an array of five or six black and white photographs of black males for approximately fifteen or twenty minutes. He did not identify any of the photographs in the array as that of the man he had chased. One of the photographs, however, did in fact depict the defendant but with a full beard and a large bandage covering his forehead. Later that same day at Old Saybrook police headquarters Douton was shown a single color photograph of the defendant taken by the Old Saybrook police. He positively identified the man portrayed in that photograph as the man he had chased the previous day.

The defendant’s first claim is that the trial court erred in permitting testimony at trial of the pretrial photographic identification and in refusing to suppress the identification as unnecessarily suggestive and unreliable. The defendant asserts that the identification procedure used by the police violated his due process rights. “A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). This court has consistently maintained that “ ‘[i]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on the “totality of the circumstances.” ’ State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 836 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).” State v. Davis, 198 Conn. 680, 682, 504 A.2d 1372 (1986).

Although we have recognized that pictorial recurrence can be suggestive because it increases the risk of misidentification; State v. McKnight, 191 Conn. 564, 572, 469 A.2d 397 (1983); State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981); we find that Douton’s earlier viewing, in the array, of a photograph of the defendant, which he did not identify, did not make the identification procedure unnecessarily suggestive. Where a witness views a photograph of a defendant which does not resemble the defendant but later identifies the defendant based on a different photograph, viewing of the earlier photograph does not taint the latter photographic identification. United States v. Brown, 461 F.2d 134, 144 (D.C. Cir. 1972). The first photograph of the defendant shown to Douton was markedly different from the second photograph. In the first photograph, the defendant had a full beard, and a large bandage covered most of his forehead. In the second photograph, the defendant was depicted with only a moustache. Douton testified that, when he identified the second photograph as that of the man he had chased, he did not recognize it as depicting an individual of whom he had seen a photograph earlier that day in the photographic array.

Although the earlier viewing of a different photograph of the defendant did not result in an unnecessarily suggestive identification procedure, we nevertheless find that the viewing of the single color photograph of the defendant was itself unnecessarily suggestive. The danger of misidentification of a suspect by a witness is increased where the photograph of an individual is in some way emphasized. Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Gold, 180 Conn. 619, 655, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); State v. Hafner, 168 Conn. 230, 238, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975). Showing a witness a single photograph rather than an array of photographs obviously emphasizes that photograph. Additionally, this single photograph was further emphasized because it was the only color photograph shown Douton. Any one-to-one type confrontation between a witness or victim and a person whom the police present to him as a suspect must necessarily convey the message that the police have reason to believe that person guilty. State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976). We conclude that in the present case the pretrial identification procedure was unnecessarily suggestive because it consisted of a showing of only a single color photograph rather than an array of photographs.

Even though we find that showing the witness a single color photograph was unnecessarily suggestive, “[o]ne-man confrontations do not per se constitute a denial of due process of law. ... A determination as to whether there has been a violation of due process rights in an identification procedure ‘ “depends on the totality of the circumstances surrounding it.” Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 [1967].’ State v. Hafner, 168 Conn. 230, 235, 362 A.2d 925 [1975] and cases cited therein.” (Citations omitted.) State v. Middleton, supra, 606-607.

We conclude that, despite the unnecessarily suggestive pretrial identification procedure, the witness’ identification of the defendant was nevertheless reliable based on the totality of the circumstances. “ ‘The constitutional test for reliability requires the trial court to consider “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Theriault, 182 Conn. 336, 371-72, 438 A.2d 432 (1980).’ State v. Hinton, supra, 295-96.” State v. Davis, supra, 683-84.

The identification was made the day following the robbery. On the day of the robbery, Douton had four separate opportunities to view the defendant. He observed the defendant’s face for twenty to thirty seconds as he drove alongside of his automobile on 1-95 subsequent to the robbery. He again saw the defendant’s face when he stopped the defendant’s automobile on 1-95. He further viewed the defendant’s face on two occasions when he chased the defendant on foot. He testified that on each of those occasions he had a clear view of the defendant’s face and sufficient time to observe it. Based on his observations, Douton was able to give the police an accurate description of the defendant. When he identified the photograph of the defendant as that of the person he had chased, he was extremely certain of his identification. The totality of the circumstances indicates, therefore, that the identification was reliable even though the identification procedure was unnecessarily suggestive. The trial court did not err in permitting testimony of the pretrial identification or in not suppressing that identification.

The defendant’s second claim is that the trial court erred in denying the defendant’s motion to dismiss the substitute information because the defendant’s prosecution for robbery in the first degree violated his right to equal protection under the state constitution. The defendant was convicted of the class B felony of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) which provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . . ” The defendant asserts that, given the evidence presented in the state’s case-in-chief, the defendant “just as easily” could have been charged with the class C felony of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2) which states: “A person is guilty of robbery in the second degree when he commits robbery and ... in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.” The defendant argues that in the present case there is no rational basis for charging him with robbery in the first degree rather than with robbery in the second degree. He maintains, therefore, that charging him with robbery in the first degree constitutes selective and discriminatory prosecution in violation of his equal protection rights under article first, § 20 of the Connecticut constitution.

We have recognized that “[t]he equal protection clauses of both the United States and Connecticut constitutions having a like meaning, the decisions of the United States Supreme Court defining federal constitutional rights are, at the least, persuasive authority, although we fully recognize the primary independent vitality of the provisions of our own constitution.” Horton v. Meskill, 172 Conn. 615, 641, 376 A.2d 359 (1977).

In United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979), a claim similar to the defendant’s was expressly addressed under the federal equal protection clause. The United States Supreme Court rejected the view that the defendant is now arguing. The court held that there was no equal protection violation even where the statutes prohibit exactly the same conduct. United States v. Batchelder, supra, 126. That court reasoned that “[it] had long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. . . .” Id., 124-25. “The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. . . . Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution neither is he entitled to choose the penalty scheme under which he will be sentenced.” (Citations omitted.) Id., 126.

If we were to adopt the rationale of the United States Supreme Court as expressed in Batchelder, there would be no equal protection violation even if we were to find that the statutes in question prohibit exactly the same conduct. Upon examination of General Statutes §§ 53a-134 (a) (4) and 53a-135 (a) (2), however, we find that there is a significant difference between the two statutes. This court has said previously that “[i]t is clear that the essential difference between §§ 53a-134 (a) (4) and 53a-135 (a) (2) is the type of weapon used. The former is limited to firearms; the latter includes firearms but is not limited to them.” State v. Kolinsky, 182 Conn. 533, 543, 438 A.2d 762 (1980), cert. denied, 451 U.S. 973, 101 S. Ct. 2054, 86 L. Ed. 2d 354 (1981). See State v. Hawthorne, 175 Conn. 569, 573, 402 A.2d 759 (1978). This difference indicates a clear legislative intent to impose a greater penal sanction where robbery is committed with the representation of the use of a firearm. Because the statutes do not prohibit exactly the same conduct there is no reasonable basis for a finding that the equal protection clause of the Connecticut constitution, article first, § 20 has been violated. We need not therefore address whether Connecticut will adopt the same reasoning as that of the United States Supreme Court in Batchelder. The trial court was correct in denying the defendant’s motion to dismiss the substitute information.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-134 (a) (4) provides: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       General Statutes § 53a-40 (a) provides: “(a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in the first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes: (A) The crimes enumerated in subdivision (a), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1,1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) or (2).”

       We find that a discussion of pictorial recurrence is appropriate. Although this point was not specifically raised in the defendant’s brief, it was raised in oral argument.

       The defendant has made no claim of prosecutorial abuse of discretion or prosecutorial vindictiveness.


author: Peters, C. J.

text:
    Omer Duhaime v. American Reserve Life Insurance Company
    (12808)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued April 29
    decision released July 1, 1986

      Ronald E. Cassidento, with whom, on the brief, was Eric Carlson, law student intern, for the appellant (plaintiff).

      SharonS. Tisher, with whom was Kim M. Cooke, for the appellee (defendant).
   Peters, C. J.

The dispositive issue in this case is whether a litigant, after a final judgment on the merits of his contractual claim against an insurance company, is barred, by the principles of res judicata, from thereafter pursuing a second cause of action against the same insurance company under the Connecticut Unfair Trade Practices Act (CUTPA). In the present cause of action, the plaintiff, Omer Duhaime, alleged that the defendant, American Reserve Life Insurance Company, had violated CUTPA by its wrongful refusal to pay the plaintiff moneys to which he was entitled under a disability insurance policy issued by the defendant. In the trial court, the defendant successfully moved for summary judgment on the ground of res judicata, and the plaintiff has appealed from this judgment. We find no error.

The facts are undisputed. On March 14, 1978, the plaintiff obtained a disability insurance certificate from the defendant for indemnity payments in the event that the insured became totally disabled. The insurance policy had a clause excluding coverage for a preexisting disability. A few days prior to the issuance of the policy, the plaintiff had stopped working because of a chronic respiratory ailment. He became totally disabled as a result of an accidental fall on September 22,1978.

The defendant denied payment of the plaintiffs claim under the insurance policy. The defendant maintained that it was not obligated to indemnify the plaintiff under its disability policy because the defendant had already become totally disabled, by virtue of his respiratory ailment, prior to the effective date of his insurance coverage.

In the plaintiff’s first cause of action, he sued the defendant for wrongful denial of insurance benefits in breach of the terms of the insurance contract. That case, which was tried to the court, Bar all, J., resulted in a judgment on the merits for the plaintiff, the trial court therein having determined that the plaintiff was not totally disabled until he injured his back when he fell on September 22,1978. The trial court awarded the plaintiff $2380.28, which the defendant paid.

In the plaintiff’s second cause of action, he sued the defendant under CUTPA, alleging that the defendant’s refusal to honor its obligations under its disability insurance policy was wholly “without good faith or valid defense” and hence an unfair trade practice in violation of General Statutes § 42-110b. This cause of action had precisely the same factual predicate as did the first cause of action. In response to questioning at a deposition taken to investigate the basis for the second cause of action, the plaintiff consistently reverted to the fact of the defendant’s erroneous reliance on the insurance policy’s preexisting disability clause. He proffered no other factual allegations to support his claims that the defendant’s conduct manifested lack of good faith, absence of a valid defense, or fraud. In his opposition to the defendant’s motion for summary judgment on the CUTPA cause of action, the plaintiff relied on the unsupported assertion that “it would have been inappropriate for [the] plaintiff to bring the present CUTPA action as part of the earlier litigation on the contract.” In contravention to the requirements of Practice Book § 380, the plaintiff submitted no affidavits, documents or exhibits to support his objection to the defendant’s motion.

The trial court, M. Hennessey, J., concluded that the defendant was entitled to summary judgment because of res judicata. The court held that the plaintiff’s CUTPA claim arose out of the same facts litigated in the plaintiff’s first action, and that the CUTPA claim might appropriately have been joined with the plaintiff’s previously litigated claim for breach of contract. Accordingly, the court ruled that the plaintiff’s present action was barred and that the defendant’s motion for summary judgment should be granted. We agree.

Our rules of res judicata are based on the public policy that “a party should not be allowed to relitigate a matter which it already has had an opportunity to litigate.” In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983); Corey v. Avco-Lycoming Division, 163 Conn. 309, 316-17, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973). “[T]he purpose of a law suit is not only to do substantial justice but to bring an end to controversy.” James & Hazard, Civil Procedure (3d Ed. 1985) § 11.2, p. 590.

The principles that govern res judicata are described in Restatement (Second), Judgments (1982). The basic rule is that of § 18, which states in relevant part: “When a valid and final personal judgment is rendered in favor of the plaintiff: (1) [t]he plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment . . . .” As comment (a) to § 18 explains, “[wjhen the plaintiff recovers a valid and final personal judgment, his original claim is extinguished and rights upon the judgment are substituted for it. The plaintiff’s original claim is said to be ‘merged’ in the judgment.” Our recent case law has uniformly approved and applied the principle of claim preclusion or merger. See Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983); Corey v. Avco-Lycoming Division, supra, 317.

Because the operative effect of the principle of claim preclusion or merger is to preclude relitigation of the “original claim,” it is crucial to define the dimensions of that “original claim.” The Restatement (Second), Judgments provides, in § 24, that “the claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a ‘transaction’, and what groupings constitute a ‘series’, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” In amplification of this definition of “original claim,” § 25 of the Restatement (Second) states that “[t]he rule of § 24 applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1) [t]o present evidence or grounds or theories of the case not presented in the first action, or (2) [t]o seek remedies or forms of relief not demanded in the first action.”

The transactional test of the Restatement provides a standard by which to measure the preclusive effect of a prior judgment, which we have held to include “any claims relating to the cause of action which were actually made or might have been made.” Corey v. Avco-Lycoming Division, supra, 317; Gagne v. Norton, supra, 32. In determining the nature of a cause of action for these purposes, we have long looked to the “group of facts which is claimed to have brought about an unlawful injury to the plaintiff”; Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778 (1952); and have noted that “[e]ven though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action.” Id.

Application of a transactional test requires the conclusion that the plaintiff’s CUTPA claim is barred by res judicata. The plaintiff has consistently complained of the defendant’s wrongful failure to honor its obligation to make payments in accordance with the terms of the disability insurance policy issued to the plaintiff. The plaintiff now claims a lack of good faith in the defendant’s reliance on the policy’s preexisting injury clause as a defense to its liability under the policy. This claim, like the earlier claim that has merged into the plaintiff’s judgment, turns on only one event: the defendant’s refusal to pay in accordance with the terms of the disability insurance policy. It is of no moment that the plaintiffs original claim, on the insurance contract, alleged the breach of a common law duty, while the present CUTPA claim invokes an alleged right to statutory relief. Burgess v. Vanguard Ins. Co., 192 Conn. 124, 126-27, 470 A.2d 244 (1984). In effect, the plaintiff is seeking to relitigate a single claim under a new theory in order to obtain an additional remedy, and this he may not do. State v. Aillon, 189 Conn. 416, 426-27, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983); Bridgeport Hydraulic Co. v. Pearson, supra, 198; see also Lesley v. City of Montgomery, 485 So. 2d 1088 (Ala. 1986); Miller v. Lunnon, 703 P.2d 640, 643 (Colo. App. 1985); Wing v. Hulet, 106 Idaho 912, 915-17, 684 P.2d 314 (1984); Dill v. Avery, 305 Md. 206, 502 A.2d 1051, 1052-55 (1986); Mackintosh v. Chambers, 285 Mass. 594, 596-97, 190 N.E. 38 (1934); Anderson v. Werner Continental, Inc., 363 N.W.2d 332, 334-35 (Minn. App. 1985); Smith v. Russell Sage College, 54 N.Y.2d 185, 192-94, 429 N.E.2d 746, 445 N.Y.S.2d 68 (1981); Troutman v. Erlandson, 287 Ore. 187, 201-207, 598 P.2d 1211 (1979); DePratt v. West Bend Mutual Ins. Co., 113 Wis. 2d 306, 310-13, 334 N.W.2d 883 (1983); Rialto Theatre, Inc. v. Commonwealth Theatres, Inc., 714 P.2d 328, 335-38 (Wyo. 1986).

There is no error.

In this opinion the other justices concurred.

       The Connecticut Unfair Trade Practices Act (CUTPA) is contained in General Statutes §§ 42-110a through 42-110q inclusive.

       General Statutes § 42-110b provides: “unfair trade practices prohibited. legislative intent, (a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.
      “(b) It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. 45 (a) (1)), as from time to time amended.
      “(c) The commissioner may, in accordance with chapter 54, establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive in violation of subsection (a) of this section. Such regulations shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act.
      “(d) It is the intention of the legislature that this chapter be remedial and be so construed.”

       “[Practice Book] Sec. 380.—proceedings upon motion
      “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the court otherwise directs. The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”