author: Glass, J. Peters, C. J.,

text:
    State of Connecticut v. Graylon Shannon
    (13387)
    (13388)
    Peters, C. J., Healey, Callahan, Glass and Santaniello, Js.

      Argued May 2
    decision released August 1, 1989

      A, Paul Spinella, for the appellant (defendant).

      John O’Meara, deputy assistant state’s attorney, with whom were Warren Maxwell, assistant state’s attorney, and, on the brief, John M. Bailey, state’s attorney, for the appellee (state).
   Glass, J.

The charges against the defendant, Gray-Ion Shannon, stem from the murders of Gaspar Munoz on February 27,1984, and Leon Walker on March 19, 1984. As to each of these incidents, the state charged the defendant with one count of murder in violation of General Statutes § 53a-54a, one count of felony murder in the course of committing a robbery in violation of General Statutes § 53a-54c, one count of felony murder in the course of committing a kidnapping in violation of General Statutes § 53a-54c, and one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4). After a jury trial, the defendant was found guilty on all counts in both cases, and received a total effective sentence of sixty years imprisonment.

On appeal, the defendant claims that this court should grant him a new trial on all of the convictions for the following reasons: (1) the state violated Ms constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to disclose exculpatory evidence; (2) the trial court erred in finding probable cause in light of the fact that the subsequent trial testimony of the state’s only eyewitness deviated from his probable cause testimony, and because the state failed to disclose material exculpatory evidence prior to the probable cause hearing; and (3) the trial court’s charge to the jury unfairly emphasized the state’s evidence to such a degree that there was a reasonable possibility that the jury was misled. We find no error.

In regard to the murder of Gaspar Munoz, the jury could reasonably have found the following facts. At approximately 10 p.m., on February 27, 1984, Munoz left his cousin’s home in Bloomfield. At 10:30 p.m., Munoz stopped Ms car at a Connecticut Bank and Trust office on Farmington Avenue in Hartford to use an automated teller macMne. At the same time that Munoz was using the teller machine, the defendant, Ronnie Walker, Keith Johnson and Tyrone “Cowboy” Carmichael were riding along Farmington Avenue in Ronnie Walker’s car with the avowed purpose of committing a robbery. When the occupants of the car noticed Munoz at the teller machine, the defendant told Ronnie Walker to pull over. The defendant and Carmichael then exited the car, grabbed Munoz from behind and took his money. They put Munoz in his own car and told Ronnie Walker to follow them in his car. The defendant drove Munoz to the area of Mark Twain Drive in Hartford. At tMs point, the defendant and Carmichael dragged Munoz out of his car and into a wooded area. The defendant then fatally shot Munoz in the back of the head.

In regard to the murder of Leon Walker, the jury could reasonably have found the following facts. In the early morning hours of March 19, 1984, Leon Walker was on duty as a cab driver for the Yellow Cab Company. At approximately 3:15 a.m. the company received a call from someone who wanted to be picked up at Hillside and Bonner Streets in Hartford and brought to Barbour Street in Hartford. The cab company dispatcher sent Leon Walker to respond to this call. At some point thereafter, the defendant and Johnson got into Leon Walker’s cab. Ronnie Walker followed the cab in his car as the cab proceeded to the area of Pope Park in Hartford. In Pope Park, the cab stopped, and the defendant, Johnson and Leon Walker all got out. The defendant then threw Leon Walker against the cab. Leon Walker attempted to run. The defendant chased and caught him, however, and threw him against a fence. The defendant then fatally shot Leon Walker in the back of the head. The defendant and Johnson thereafter removed a cigar box from Leon Walker’s cab, and returned to Ronnie Walker’s car, whereupon the three men drove away.

The state’s primary witnesses at trial were Edward Dailey, Michael Jiles and Ronnie Walker. Dailey testified that while he was in custody with the defendant in Hartford, in December, 1985, the defendant had told him not only that he was involved in both crimes, but that he had shot both Munoz and Leon Walker. Jiles testified that in January, 1986, while in custody in Hartford, he similarly had heard the defendant admit to his involvement in both crimes, and in particular to his shooting of both victims.

Ronnie Walker testified at trial that, on the night of the Munoz murder, he, the defendant, Johnson and Carmichael were driving in his car in Hartford for the express purpose of committing a robbery. He stated that the car’s occupants noticed Munoz at a bank teller machine on Farmington Avenue, that the defendant and Carmichael got out of his car and forced Munoz into his own car, that the cars then were driven to an area off Mark Twain Drive, and that the defendant and Carmichael dragged Munoz out of his car and into a wooded area. In regard to the Leon Walker murder, Ronnie Walker testified that the defendant and Johnson got into Leon Walker’s cab, that the cab then proceeded to an area in the south end of Hartford while he followed the cab in his own car, that the cab eventually stopped and Leon Walker attempted to run, and that the defendant chased after Leon Walker and eventually threw him up against a fence. Ronnie Walker further testified that after he had lost sight of the defendant and Leon Walker, he heard a gunshot, and the defendant then returned to view and got into his car with Johnson.

In addition, Jiles’ and Dailey’s testimony corroborated significant details described by Ronnie Walker in his trial testimony. For example, Jiles testified that the defendant stated that he and Carmichael forced Munoz into his own car and then told Ronnie Walker to follow them. Dailey testified that the defendant had told him that the cab driven by Leon Walker was driven to the area of Pope Park where the defendant thereafter shot him.

Ronnie Walker’s trial testimony, however, contained numerous inconsistencies in relation to four statements he had previously given to the police and the state’s attorney’s office, and in relation to his testimony at the probable cause hearing. At the probable cause hearing Ronnie Walker stated that the four statements he previously had given were false and that his present testimony was the truth. He also testified at that hearing that he saw the defendant shoot and kill Leon Walker. He stated that on March 19, 1984, the date of Leon Walker’s murder, he first encountered the defendant and Keith Johnson at the home of the defendant’s sister, Vicky White, on Barbour Street in the north end of Hartford, and that White called for Leon Walker’s cab from the Barbour Street address. Ronnie Walker further testified that after the defendant had entered the cab with Johnson outside the Barbour Street address, the defendant knocked out Leon Walker with a lug wrench. He stated that he followed the cab in his own car to the south end of Hartford, where he saw the defendant shoot Leon Walker after a brief scuffle in which Leon Walker had drawn a knife.

At trial, however, Ronnie Walker varied the details of his version of these events. In particular, he testified that the first time he saw the defendant and Johnson on the night of Leon Walker’s murder was upon departing from a party in the south end of Hartford. He testified that he saw the defendant and Johnson already in Leon Walker’s cab and that he followed the cab in his car to the spot where Leon Walker was killed. According to his trial testimony, however, he did not actually see the defendant pull the trigger, but instead saw the defendant and Leon Walker disappear from sight. He testified that he then heard a gunshot, that the defendant returned to view, and that the three men drove away.

Defense counsel brought out these and several other inconsistent statements on cross-examination. For example, Ronnie Walker contradicted at trial prior statements that an individual named William Johnson was involved in both murders. Regarding the Munoz murder, Ronnie Walker had stated previously that the defendant and Keith Johnson had forced Munoz into the car, rather than the defendant and Carmichael, as he testified at trial. Further, at one time he told investigators that he had actually witnessed the defendant shoot Munoz, whereas at trial he denied seeing the shooting. Regarding the Walker murder, he had previously disclosed that the call for Walker’s cab had been made from the apartment of a woman named Brenda Browning, a claim he contradicted with one story at the probable cause hearing and yet another at trial. Further, he had also told police prior to trial that he had witnessed the defendant partially undress and sexually assault Leon Walker after the shooting, although at trial he had claimed that he had not witnessed such events. In all, defense counsel placed into evidence more than fifteen inconsistent statements in regard to Ronnie Walker’s trial testimony.

In addition, the defendant called Leon Harris as a witness. Harris testified that in December, 1985, he overheard Ronnie Walker state that the defendant “didn’t know nothing about” the murders but that he was “going along with it” because the defendant had been charged with the crimes. The defense also called Carmichael, who specifically denied any involvement in the crimes as testified to by Ronnie Walker.

I

The defendant first contends that the state failed to disclose “three distinct, exculpatory sets of evidence to the defense” in violation of the defendant’s constitutional rights as set forth in Brady v. Maryland, supra, and in violation of General Statutes § 54-86c. In particular, the defendant asserts that the state withheld: (1) a statement made by John Hightower, a potential witness; (2) the dispatch records of the Yellow Cab Company from the night of Leon Walker’s murder; and (3) a police report that allegedly indicated that a man named Alvin Clark was a suspect in the Leon Walker homicide.

A

John Hightower’s statement concerns Ronnie Walker. Hightower, Ronnie Walker’s former roommate, made a statement to attorney Jacob Wieselman, counsel for one of the coparticipants, Keith Johnson. Hightower told Wieselman that Ronnie Walker had become increasingly withdrawn and erratic in his moods following the Munoz and Leon Walker homicides, and that Ronnie Walker stated that, while the defendant was actively involved in both murders, it was he who actually held the gun and shot both victims. In addition, Hightower indicated to Wieselman that he knew the location of the murder weapon and Ronnie Walker’s car.

On September 10, 1986, Wieselman reported High-tower’s statement to an unspecified assistant state’s attorney and to Superior Court Judge Herbert Barall. Thereafter, inspector Joseph E. Hammick of the Hartford state’s attorney’s office spoke with Hightower on several occasions. Hightower told Hammick that he knew the locations of the gun and car, but refused to disclose either unless the state lowered his bond on an unrelated case so that he could be released from custody and gather the evidence himself. The state refused to meet Hightower’s demand, and he thereafter refused to cooperate with the state.

Prior to trial, the defendant filed two motions for disclosure of exculpatory information. In addition, the defendant made an oral request for memos and information concerning Ronnie Walker’s previous statements. The state failed to disclose to the defense any information regarding John Hightower’s statement until March 19,1987, two weeks after the completion of the trial. Upon discovery of the Hightower statement, the defendant filed a motion for a new trial, and on March 23,1987, the trial court held an evidentiary hearing on the defendant’s motion. Hightower, Wiesel-man and Hammick testified regarding the Hightower statement. On March 24, 1987, the trial court denied the defendant’s motion. It ruled that the Hightower statement constituted cumulative impeachment evidence and therefore was not material. It found that, even if credible, the Hightower statement could only have been used to impeach Ronnie Walker’s testimony and could not have been used for the truth of the matters asserted, i.e., that Ronnie Walker shot both Munoz and Leon Walker. The trial court concluded that, given the considerable amount of impeachment testimony that the defense had already introduced, the state’s nondisclosure of the Hightower statement did not entitle the defendant to a new trial.

Under Brady v. Maryland, supra, 87, “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” To establish a Brady violation the defense bears the burden of demonstrating: “ ‘(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.’ ” Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988), quoting State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988); see, e.g., Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 33 L. Ed. 2d 706, reh. denied, 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155 (1972); State v. Monteeth, 208 Conn. 202, 213, 544 A.2d 1199 (1988); State v. Pollitt, 205 Conn. 132, 141-42, 531 A.2d 125 (1987); State v. Simms, 201 Conn. 395, 405-406, 518 A.2d 35 (1986).

It is undisputed that the state failed to disclose the Hightower statement. Regarding the issue of “favorability,” the state contends that although the Hightower statement contained exculpatory information, it also directly inculpated the defendant in the felony murder and conspiracy charges, since Hightower portrayed the defendant as being an active participant in both crimes. The state concedes, however, that the statement could have been used by the defense as impeachment evidence during cross-examination of Ronnie Walker. The United States Supreme Court and this court have both held that impeachment evidence as well as substantive exculpatory evidence falls within Brady’s definition of evidence “favorable” to an accused. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154-55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); State v. Pollitt, supra, 142. Consequently, we conclude that the Hightower statement was “favorable” to the defendant.

Regarding the third prong of the Brady criteria, the defendant asserts that the trial court erred in concluding that the Hightower statement was not material. He claims that the Hightower statement was admissible not only to impeach Ronnie Walker’s testimony, but also to establish that Ronnie Walker, and not the defendant, actually shot both victims. He also contends that the Hightower statement was material because it could have led to the discovery of physical evidence— the murder weapon and Ronnie Walker’s car—that could have proven exculpatory for the defendant. We disagree with the defendant’s arguments.

In United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), the United States Supreme Court stated that “the prosecutor will not have violated his constitutional duly of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” See State v. Pollitt, supra. Under United States v. Bagley, supra, 682, “[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” In analyzing a Brady claim, the courts “must avoid concentrating on the suppressed evidence in isolation. Rather, we must place it in the context of the entire record. Evidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory. Implicit in the standard of materiality is the notion that the significance of any particular bit of evidence can only be determined by comparison to the rest.” Trujillo v. Sullivan, 815 F.2d 597, 613 (10th Cir.), cert. denied, 484 U.S. 929, 108 S. Ct. 296, 98 L. Ed. 2d 256 (1987); see State v. Pollitt, supra, 143. Further, “[t]he determination of materiality has been said to be ‘inevitably fact-bound’ and like other factual issues is committed to the trial court in the first instance.” State v. Pollitt, supra, 147. “There is a difficulty inherent in measuring the effect of nondisclosure in the course of a lengthy trial with many witnesses and exhibits . . . this lack of certitude suggests deference by a reviewing court especially in the weighing of evidence.” Id., 149; see United States v. Kelly, 790 F.2d 130, 136 (D.C. Cir. 1986); United States v. Pflaumer, 774 F.2d 1224, 1230 (3d Cir. 1985), cert. denied, 475 U.S. 1046, 106 S. Ct. 1263, 89 L. Ed. 2d 572 (1986). Thus, the trial court’s decision regarding the defendant’s petition for a new trial as a result of a Brady violation will be overturned only upon a finding of “clear abuse of discretion.” Demers v. State, supra, 148; Wetzel v. Thorne, 202 Conn. 561, 564-65, 522 A.2d 288 (1987); Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987).

We conclude that the trial court did not abuse its discretion in determining that the impeachment value of the Hightower statement was merely cumulative. See, e.g., United States v. Jackson, 780 F.2d 1305, 1310-11 (7th Cir. 1986); United States v. McKenzie, 768 F.2d 602, 610 (5th Cir. 1985), cert. denied, 474 U.S. 1086, 106 S. Ct. 861, 88 L. Ed. 2d 900 (1986). The jury was presented with a plethora of impeachment evidence pertaining to Ronnie Walker’s credibility. Defense counsel cross-examined Ronnie Walker concerning some fifteen prior inconsistent statements. Moreover, Leon Harris testified for the defendant that Ronnie Walker previously had said that the defendant knew nothing about the two murders. Any evidence that Ronnie Walker told John Hightower yet another version of events would have presented merely one more in a string of inconsistencies of which the jury was aware. We conclude that the trial court did not clearly abuse its discretion in finding that it was not reasonably probable that the defendant’s use of Hightower’s statement to impeach further Ronnie Walker’s testimony would have affected the outcome of the trial.

We also disagree with the defendant’s assertion that the Hightower statement would have been admissible to prove that Ronnie Walker actually had shot both victims. The trial court ruled that because the Hightower statement was hearsay, it could only have been used as impeachment evidence and could not have been used for the truth of the matters asserted. Although the defendant claims that the statement would have been admissible for the truth of the matters asserted therein, he did not except to the trial court’s characterization of the statement as hearsay. Further, on appeal, he has neither challenged the trial court’s conclusion that the statement was hearsay, nor suggested any applicable exception to the hearsay rule.

Finally, we disagree with the defendant’s claim that the Hightower statement was material because he could have used it to develop other admissible evidence helpful to his defense. The defendant asserts that, had he known of the Hightower statement, he could have contacted Hightower in an effort to locate the gun used in the crimes, as well as Ronnie Walker’s car. The record clearly indicates, however, that although Hightower claimed to know the location of the gun and Ronnie Walker’s car, he refused to cooperate with the state’s investigators by disclosing the locations of either. This court has stated that the “ ‘mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial . . . does not establish “materiality” in the constitutional sense.’ ” (Emphasis in original.) State v. Pollitt, supra, 149, quoting State v. Mak, 105 Wash. 2d 692, 704-705, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986); see United States v. Agurs, supra, 109-10.

For Hightower’s statement that he knew the location of the gun and car to have aided the defendant, the following scenario would have had to have taken place. Hightower would have had to agree to tell the defense the exact location of the evidence; the gun, the car, or both would then have had to have been found; and that evidence would then have had to prove to be not only exculpatory, but material in terms of the Bagley standard. We conclude that this chain of events is so speculative that it presents only the remotest possibility that the Hightower statement would have affected the outcome of the trial. State v. Pollitt, supra. We conclude, therefore, that the trial court did not err in refusing to grant the defendant a new trial on the ground of the state’s failure to disclose the Hightower statement.

B

The defendant next claims that the prosecution also suppressed the dispatch records of the Yellow Cab Company from the night of Leon Walker’s murder. He asserts that he could have used this evidence to impeach the testimony of both Dailey and Jiles that the defendant told them that Leon Walker’s cab was called from Vicky White’s house. We conclude, however, that there was no suppression of the cab company records by the state. The state disclosed the cab company records by introducing them at trial. This court has stated that “ ‘[ejvidence . . . that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady.’ ” State v. Simms, supra, 407, quoting State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); see Demers v. State, supra, 154. Further, evidence that is equally available to the defendant, or which could have been discovered through reasonably diligent research, is not considered suppressed for the purposes of Brady. See State v. Simms, supra, 407-408; see also Lugo v. Munoz, 682 F.2d 7, 9-10 (1st Cir. 1982). In this case, the defendant was aware prior to trial that Leon Walker was working as a cab driver when he was murdered on March 19,1984. Information from the cab company concerning Leon Walker was as available to the defendant as it was to the state. We conclude, therefore, that the cab company records from the night of Leon Walker’s murder were not suppressed.

C

The defendant further claims that the state suppressed a police report that identified Alvin Clark as a suspect in the homicide of Leon Walker. As with the cab company records, however, there was no suppression of this report by the prosecution. The defense learned of this police report during the second week of jury selection. While it is true that Brady requires disclosure of exculpatory information “at a time when it can be used”; State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1 (1986); “ ‘[n]o denial of due process occurs if Brady material is disclosed . . . in time for its effective use at trial.’ ” Id., quoting United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983), cert. denied sub nom. Kemp v. United States, 464 U.S. 1048, 104 S. Ct. 725, 79 L. Ed. 2d 185 (1984). The defendant has not demonstrated any prejudice stemming from the timing of the disclosure of the police report. After disclosure of the report, the defendant did not request a continuance to investigate further Clark’s potential involvement. Additionally, the defendant presented evidence at trial based on the police report in an attempt to establish Clark as a third party suspect. The defendant argued this theory of defense to the jury, and the court instructed the jury regarding the defendant’s third party culpability evidence. We therefore conclude that the police report pertaining to Clark was not suppressed under Brady.

II

The defendant next claims that the trial court erred in finding probable cause that he had committed the offenses charged in the state’s information. He asserts that because one of the state’s key witnesses, Ronnie Walker, later “recanted” his probable cause hearing testimony at trial, and because the state suppressed, in violation of Brady, the Hightower statement, the Yellow Cab Company records, and the police report pertaining to Clark, the trial court should have found that no probable cause had existed.

“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.” State v. Mitchell, 200 Conn. 323, 335, 512 A.2d 140 (1986). The standard for determining the existence of probable cause is “ ‘whether the government’s evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime.’ ” Id., 336. “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 . . . .” Id. Applying this standard, we conclude that the trial court did not err in finding that probable cause had been established.

At the probable cause hearing, the primary evidence implicating the defendant in both crimes was the testimony of Ronnie Walker and Michael Jiles. The defendant asserts that Ronnie Walker’s trial testimony was so different from his probable cause hearing testimony that it amounted to a “recantation” of his probable cause hearing testimony. We do not agree. The main discrepancies between Ronnie Walker’s probable cause hearing testimony and his trial testimony concern: (1) where he first encountered the defendant and Keith Johnson on the night of Leon Walker’s murder; and (2) whether he actually saw the defendant pull the trigger in the Leon Walker murder. Regarding the first discrepancy, at the probable cause hearing Ronnie Walker stated that he first met the defendant and Johnson at Vicky White’s house on Barbour Street in the north end of Hartford, that White called for Leon Walker’s cab, and that the defendant and Johnson got into the cab outside of White’s house. At trial, however, Ronnie Walker testified that he first encountered the defendant and Johnson upon departing from a party in the south end of Hartford, when he saw the defendant and Johnson already in Leon Walker’s cab. Regarding the second inconsistency, at the probable cause hearing Ronnie Walker stated that he saw the defendant shoot Leon Walker. At trial on cross-examination, however, he testified that he saw the defendant and Leon Walker disappear from sight, that he heard a gun shot, and that the defendant then returned to view.

Aside from these two inconsistencies, Ronnie Walker’s probable cause hearing testimony was essentially the same as his trial testimony. Similarly, Jiles’ testimony concerning the defendant’s admission to committing both crimes and, in particular, to pulling the trigger in both crimes, was essentially the same at the probable cause hearing and at trial. Therefore, in light of the standard set forth in State v. Mitchell, supra, we conclude that Ronnie Walker’s testimony depicting the defendant as an active participant in both crimes, and Jiles’ testimony regarding the defendant’s admitting to killing both victims would have “ ‘warranted] a person of reasonable caution to believe that the accused [had] committed the crime[s].’ ” Id.

The defendant also asserts that had the three items of evidence that he claims were suppressed in violation of Brady been disclosed at the probable cause hearing, the trial court would not have found that probable cause had existed. As this court noted in State v. Mitchell, supra, 338, the state’s duty under Brady to disclose exculpatory evidence attaches to a probable cause hearing. As noted above, to prevail, the defendant must establish: “ ‘(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.’ ” Demers v. State, supra, 150, quoting State v. Milner, supra, 539-40. Further, such evidence will only be material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, supra, 682; State v. Pollitt, 205 Conn. 132, 142, 531 A.2d 125 (1987). We conclude that the nondisclosure of the three items of evidence at the probable cause hearing did not violate the Brady and Mitchell standards.

The state could not possibly have suppressed the Hightower statement during the probable cause hearing because, at the time of that hearing, the state was not aware of the Hightower statement. The probable cause hearing was held on January 21, 1986, and the state first learned of the Hightower statement on September 10, 1986. Further, the cab company records were not suppressed for the purposes oí Brady. As we indicated above, the cab records were as available to the defense as to the state, and therefore were not suppressed. See State v. Simms, supra, 407-408.

In addition, the police report pertaining to Clark, a potential third party suspect in the Leon Walker murder, was not material under the Bagley standard and therefore does not constitute a Brady violation. When examined in light of all the evidence presented at the probable cause hearing, the police report would not have warranted “ ‘a person of reasonable caution to believe that the accused, [had not] committed the crime[s].’ ” State v. Mitchell, supra, 336. Thus, the result of the probable cause proceeding would not have been different as a result of the disclosure of the police report and, therefore, the state’s failure to disclose the report is not material under Bagley and thereby not a violation of Brady.

Ill

Finally, the defendant claims that the trial court’s instructions unfairly emphasized the state’s evidence to such an extent that there was a reasonable possibility that the jury was misled. “We do not examine a challenged portion of a jury instruction in artificial isolation from the overall charge.” State v. Scognamiglio, 202 Conn. 18, 27, 519 A.2d 607 (1987); see State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Dolphin, supra, 451. “ ‘Rather, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict.’ ” State v. Scognamiglio, supra, 28; see State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982). “The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter.” State v. Mullings, 166 Conn. 268, 274, 348 A.2d 645 (1974). We hold that the trial court’s charge was fair and impartial. Considering the charge as a whole, we are persuaded that there was no reasonable possibility that the jury was misled in reaching its verdict. See State v. Scognamiglio, supra; State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

The defendant claims that portions of the trial court’s jury instructions could have misled the jury. For example, the defendant claims that the trial court “critically reviewed” the testimony of Leon Harris while not mentioning “material inconsistencies” in the testimony of the state’s witnesses. The defendant fails to describe specifically how the trial court “critically reviewed” Harris’ testimony. Moreover, the trial court read a general instruction regarding the credibility of witnesses, and properly instructed the jury on prior inconsistent statements in connection with Ronnie Walker. See State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985).

The defendant also argues that by mentioning testimony that indicated that the victims had not been sexually assaulted, the trial court effectively “directed a verdict” against him regarding his evidence implicating Alvin Clark as a third party suspect. We disagree. The trial court instructed the jury: “If you find that there is no sexual assault connotation to be drawn from the partially unclothed body of Mr. Walker or find no proof tending to connect Mr. Clark with the offense, you must not consider this theory of the case. On the other hand, if you do find such a motive and that there is evidence tending to connect Mr. Clark with Mr. Walker’s death, then you must consider this theory with all the other evidence.” We conclude that this instruction was proper and did not “direct a verdict” against the defendant on the issue of third party culpability.

Additionally, the defendant asserts that the trial court should have given a consciousness of guilt instruction based on evidence that Clark had run when first approached by the police. The defendant was not entitled to a consciousness of guilt instruction regarding Clark, however, as evidence demonstrating consciousness of guilt is only relevant where the act or statement is that of the defendant. See State v. Milner, supra, 519.

In conclusion, we are persuaded that, when examined in the context of the entire jury charge, the portions of the trial court’s jury instructions that the defendant claims could have misled the jury, did not mislead the jury.

There is no error.

In this opinion Healey, Callahan and San-taniello, Js., concurred.

Peters, C. J.,

dissenting. Although the question is admittedly a close one, in my judgment the trial court

abused its discretion in denying the defendant’s motion for a new trial. My disagreement with the majority opinion is limited to the issue of the materiality of the Hightower statement, which the state concededly suppressed, and which the trial court found to have contained impeachment evidence that the defendant could have used to his advantage at trial.

My point of departure is the state’s duty to disclose this information, both as a matter of federal constitutional law, under the fifth and fourteenth amendments to the United States constitution, and as a matter of Connecticut statutory law, under General Statutes § 54-86c (a). The state’s failure to disclose adversely implicated the defendant’s due process right to a fair trial.

I recognize that the defendant had the burden of proving the materiality of any favorable statements suppressed by the state, and that a determination of materiality is necessarily fact-bound, and thus rests initially in the trial court’s discretion. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988). The review of constitutionally significant factfinding requires, however, a heightened degree of appellate scrutiny, as we have held in a number of similar circumstances. We have, for example, conducted a scrupulous examination to review whether there is substantial support in the record as a whole for trial court rulings regarding the waiver of a defendant’s Miranda rights, a change of venue because of pretrial publicity, and the setting aside of a verdict, which implicates a litigant’s right to a jury trial. Cf. Brown v. K.N.D. Corporation, 205 Conn. 8, 11-12, 529 A.2d 1292 (1987) (independent appellate examination of the whole trial record to review threat of intrusion into constitutionally protected free speech). “No more restricted scope of review would suffice adequately to protect federal constitutional rights.” Culombe v. Connecticut, 367 U.S. 568, 605, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).

The defendant’s principal argument about the materiality of the Hightower statement is that its availability would have assisted his cross-examination of Ronnie Walker, a crucial state witness. The state maintains, and the trial court found, that Walker was so thoroughly examined about his numerous inconsistent statements that one more damaging statement would have had no more than a cumulative effect. The majority concludes that this finding was warranted.

With deference, it seems to me that this conclusion fails to assign adequate weight to the significance of a statement that implicates Walker not only as a witness but also as the perpetrator of one of the crimes with which the defendant was charged. While the majority may be correct that the “jury was presented with a plethora of impeachment evidence pertaining to Ronnie Walker’s credibility,” none of the inconsistencies that came to light at trial was as probative as the Hightower statement would have been. First, knowing of Walker’s statement to Hightower, the jury might have discredited any of his testimony incriminating the defendant on the theory that Walker was throwing up a smoke screen in order to shield himself from being brought to trial. Second, this prior inconsistent statement of Walker’s, while admittedly one of many, would certainly have been the most damning to Walker’s credibility as a witness. Even if the trial court would not have allowed the defendant to use the statement to prove that Walker had pulled the trigger, the defendant could have used it to show that he himself had not. None of Walker’s prior inconsistent statements had said anything on this issue, having focused instead on whether he had actually viewed the killings. Finally, the fact that the defendant, at trial, vigorously pursued the impeaching materials then at his disposal should not be held against him when much more probative material is belatedly disclosed.

On this record, even if the Hightower statement were inadmissible substantively,I would conclude that the impeachment value of the statement might well have proved devastating to the state’s case. It bears repeating that, if Walker had been totally discredited, the state’s case would have depended, almost exclusively, on the credibility of the testimony of two jailhouse informants against the defendant.

My conclusion concerning the materiality of the Hightower statement finds further support in the fact that, at trial, the defendant specifically requested from the state all memoranda and information that revealed inconsistencies in Walker’s prior statements. “When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” United States v. Agurs, 427 U.S. 97, 106, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). While the United States Supreme Court has held that the standard for materiality is the same for all favorable evidence, whether or not the defendant requested it, the court has also held that the “Agurs test for materiality [is] sufficiently flexible to cover the ‘no request,’ ‘general request,’ and ‘specific request’ cases of prosecutorial failure to disclose evidence favorable to the accused.” United States v. Bagley, supra, 682. As the court noted in Bagley, “the more specifically the defense requests certain evidence . . . the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist, and to make pretrial and trial decisions on the basis of this assumption. . . . [T]he reviewing court may consider directly any adverse effect that the prosecutor’s failure to respond might have had on the preparation or presentation of the defendant’s case. The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor’s incomplete response.” Id., 682-83. Applying this flexible standard, I would conclude that there is a reasonable probability that the result of the proceeding would have been different if the Hightower statement had been disclosed to the defense at trial. Id., 682.

I also think that the majority too readily discounts the real evidence that the defendant might have been able to examine after a conversation with Hightower. It is worth noting that, on this issue, the trial court expressed no opinion, and therefore its denial of the new trial motion arguably deserves no special deference on this ground. On the merits, Hightower’s failure to cooperate with the state, after his attempt at plea bargaining failed, does not prove that he would have been equally unresponsive to questioning by the defense. Had such a conversation elicited information from Hightower about the murder weapon or Walker’s car, whatever evidence was brought to light would probably have been admissible at trial. The defense should not be expected to produce hard data about possible leads that the state has precluded the defense from exploring. To dismiss the defendant’s claims as speculative, a conclusion at least equally speculative, creates a strong disincentive for state disclosure of exculpatory or impeachment evidence. Such a disincentive is inconsistent with the fair trial guarantee that underlies Brady, and inconsistent with the prosecutor’s role as “the representative not of an ordinary party to a controversy, but of a sovereignty . . . whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Id., 675; Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935).

Accordingly, I respectfully dissent.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(e) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       “[General Statutes] Sec. 53a-54e. 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.”

       “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
      “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (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.”

       In his brief the defendant asserts, as a separate issue, that the trial court erred in failing to grant his petition for a new trial pursuant to General Statutes § 52-270. The defendant conceded at oral argument, however, that this issue is indistinguishable from the Brady issue addressed above.

       On direct examination at trial Ronnie Walker testified as follows:
      “Q. Then what happened?
      “A. Then he shot him.
      “Q. Who’s he?
      “A. Graylon.
      “Q. Shot who?
      “A. Leon Walker.
      “Q. Where?
      “A. In the back of the head.
      “Q. Did you see it?
      “A. Yes.
      “Q. Did you see the gun?
      “A. No.
      “Q. Did you hear it?
      “A. Yes.”
      On cross-examination at trial Ronnie Walker testified as follows:
      “Q. And what did you do when this chase began?
      “A. I was sitting in my car.
      “Q. And did you sit in your car throughout the time that the chase took place?
      “A. Yes.
      “Q. And then you heard a shot?
      “A. Yes.
      “Q. Did you actually see the shot being fired?
      “A. No.
      “Q. Did you see Leon Walker again that night?
      “A. No.
      “Q. Did you go down and look at the body?
      “A. No.”

       “[General Statutes] Sec. 54-86c. disclosure of exculpatory information or material, (a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant.
      “(b) Any state’s attorney, assistant state’s attorney or deputy assistant state’s attorney may request an ex parte in camera hearing before a judge, who shall not be the same judge who presides at the hearing of the criminal case if the case is triéd to the court, to determine whether any material or information is exculpatory.
      “(c) Bach peace officer, as defined in subdivision (9) of section 53a-3, shall disclose in writing any exculpatory information or material which he may have with respect to any criminal investigation to the prosecutorial official in charge of such case.”
      This statute “reflect[s] the constitutional obligation of a prosecutor to disclose all material evidence favorable to an accused in his possession, an obligation that exists without statutory . . . mandates.” State v. Packard, 184 Conn. 258, 277, 439 A.2d 983 (1981). Therefore, if the state’s constitutional duty to disclose exculpatory evidence pursuant to Brady has not been violated, then neither has § 54-86c been violated.

       There is no assertion by the defendant, however, that the failure to disclose was intentional or due to any bad faith on the part of the state. During oral argument on the defendant's motion for a new trial, defense counsel stated: “I don’t think that there is for a moment, in State’s Attorney Warren Maxwell’s mentality or bearing or conduct any intentional desire to subvert the process of law, and therefore I make no such imputation.”

       Furthermore, this court has noted that “[t]here is no constitutional requirement that the prosecution . . . make a complete and detailed accounting to the defense of all police investigatory work on a case.” State v. Packard, 184 Conn. 258, 278, 439 A.2d 983 (1981).

       Given that Hightower’s condition for cooperating was that his bond be lowered so that he could gather the evidence himself, it is unlikely that he would have cooperated with the defense as the defense could not have met his condition.

       Ronnie Walker testified at the probable cause hearing as follows:
      “Q, Did you see where [the defendant] pointed the gun?
      “A. At his head.
      “Q. Front or rear?

        “A. The rear.
      “Q. Can you pinpoint any closer than just the rear of the head? What part of the rear?
      “A. Just the rear.
      “Q. Okay. And then what happened?
      “A. Then they started scuffling, threw him up against the fence.
      “Q. Did he shoot him?
      “A. Yes.”

       See footnote 5, supra.

       It makes no federal constitutional difference whether the state acted in good faith or in bad faith in suppressing this statement. United States v. Agurs, 427 U.S. 97, 104 n.10, 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). This case has been briefed and argued solely on the basis of federal constitutional principles. The defendant has not, however, pursued the possibility that different principles might flow either from our state constitution or from our supervisory authority over the administration of justice in this state. See Practice Book § 4183.

       “[General Statutes] Sec. § 54-86c. disclosure of exculpatory information or material, (a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant.”
      See also Practice Book §§ 741 (1), 755.

       “Although the issue [of waiver of Miranda rights] is . . . ultimately factual, our usual deference to factfinding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” State v. Madera, 210 Conn. 22, 48-49, 554 A.2d 263 (1989); 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); State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982).

       “Although rulings on such motions are within the trial court’s discretion . . . ‘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. Marra, 195 Conn. 421, 428, 489 A.2d 350 (1985); State v. Vitale, 190 Conn. 219, 227, 460 A.2d 961 (1983); 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).

       “Although the trial court has a broad legal discretion in this area it is not without limits; one immovable limitation is the constitutional right of trial by jury. . . . Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury . . . the court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined.” Jacobs v. Goodspeed, 180 Conn. 415, 416-17, 429 A.2d 915 (1980).

       It is not clear, on the present record, how the issue of the inadmissibility of this statement, on the various grounds alluded to in the majority opinion, would have been resolved at trial.

       As the majority recognizes, both substantive and impeachment evidence fall within the definition of “favorable evidence.” United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).

       No physical evidence was introduced at the trial that led to the defendant’s conviction.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Jacob J. Krozser, Administrator (Estate of Stephen T. Krozser) v. City of New Haven et al.
    (13589)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued May 11
    decision released August 1, 1989

      Louis M. Winer, for the appellant (plaintiff).

      Richard T. Couture, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Joseph I. Lieberman, former attorney general, for the appellees (defendant state of Connecticut et al.).
   Callahan, J.

The issue presented in this appeal is whether the trial court erred in dismissing the plaintiffs complaint for money damages against the state of Connecticut and the commissioner of correction because the suit was barred by the doctrine of sovereign immunity. The plaintiff contends that in this cause of action brought pursuant to 42 U.S.C. § 1983, the Superior Court had the authority to waive sovereign immunity and to allow an action to proceed against the state even though the claims commissioner had not authorized the suit pursuant to General Statutes § 4-160 (a). We disagree.

The plaintiff, Jacob J. Krozser, administrator of the estate of Stephen F. Krozser, filed a complaint in the Superior Court seeking damages, pursuant to 42 U.S.C. §§ 1983 and 1988, against the state of Connecticut and Raymond Lopes, in his official capacity as the commissioner of correction. The defendants moved to dismiss, claiming that sovereign immunity barred the plaintiffs action. The trial court granted the defendants’ motion concluding that (1) the doctrine of sovereign immunity barred the complainant’s claim against the state, and (2) the state is not a “person” within the meaning of 42 U.S.C. § 1983. The plaintiff appealed to the Appellate Court. Thereafter, we transferred the appeal to ourselves pursuant to Practice Book § 4023. We find no error.

On June 12, 1985, Stephen F. Krozser died while incarcerated at the New Haven Community Correctional Center. On June 10, 1986, pursuant to General Statutes §§ 4-147 and 4-165b, the plaintiff filed a notice of claim with the claims commissioner seeking permission to sue the state of Connecticut. In his notice of claim and his subsequent complaint to the Superior Court, the plaintiff alleged that while the plaintiffs decedent was incarcerated at the correctional center the defendants were deliberately indifferent to, and failed to provide for, his serious medical needs. The plaintiff further alleged that the defendants’ conduct was a violation of his decedent’s rights under the eighth and fourteenth amendments to the United States constitution and directly resulted in his decedent’s death.

For reasons that are not clear from the record, the claims commissioner never acted upon the plaintiff’s request to sue the state. Consequently, the plaintiff filed the instant action in the Superior Court, apparently because the two year statute of limitations for wrongful death, embodied in General Statutes § 52-555, was about to expire.

On appeal, the plaintiff asserts that the trial court had the authority to waive the state’s sovereign immunity in a § 1983 suit for money damages and therefore it erred when it dismissed his action. The plaintiff’s argument is three-pronged. He first contends that a complainant need not exhaust his “administrative remedies” prior to bringing a § 1983 action in the state court. He next claims that the state trial court may “borrow” applicable state law, pursuant to 42 U.S.C. § 1988, to supplement federal law. In this regard, the plaintiff argues that the Superior Court may “borrow” and apply General Statutes § 4-160 (a), which sets forth the standard to be used by the claims commissioner, to determine whether to authorize suit against the state. Finally, the plaintiff contends that chapter 53 of the General Statutes “discriminates” against the assertion of his decedent’s federal rights under 42 U.S.C. § 1983. We are unpersuaded.

“ ‘We have long recognized the common-law principle that the state cannot be sued without its consent. Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977); Textron, Inc. v. Wood, 167 Conn. 334, 339, 355 A.2d 307 (1974). We have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the- state is, in effect, against the state. Horton v. Meskill, supra; Textron, Inc. v. Wood, supra; Baker v. Ives, 162 Conn. 295, 297, 294 A.2d 290 (1972); Murphy v. Ives, 151 Conn. 259, 262, 196 A.2d 596 (1963); Anderson v. Argraves, 146 Conn. 316, 320, 150 A.2d 295 (1959). Therefore, we have dealt with such suits as if they were solely against the state and have referred to the state as the defendant. Anselmo v. Cox, 135 Conn. 78, 79-80, 60 A.2d 767, cert. denied, 335 U.S. 859, 69 S. Ct. 132, 93 L. Ed. 405 (1948); Rusch v. Cox, 130 Conn. 26, 34, 31 A.2d 457 (1943).’ (Footnote omitted.) Sentner v. Board of Trustees, [184 Conn. 339, 342-43, 439 A.2d 1033 (1981)].” Fetterman v. University of Connecticut, 192 Conn. 539, 550-51, 473 A.2d 1176 (1984).

The absolute bar of actions against the state on the ground of sovereign immunity has been modified by statute and by judicial decisions. “Sovereign immunity does not bar suits against state officials acting in excess of their statutory authority or pursuant to an unconstitutional statute. Horton v. Meskill, [supra, 624].” Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987). In addition, the state cannot use sovereign immunity as a defense in an action for declaratory or injunctive relief. Id. However, “[i]n the absence of legislative authority . . . we have declined to permit any monetary award against the state or its officials. Fetterman v. University of Connecticut, [supra, 550]; State v. Chapman, 176 Conn. 362, 365, 407 A.2d 987 (1978).” Id., 32. Further, “ ‘[statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed.’ Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979), quoting Spring v. Constantino, 168 Conn. 563, 570, 362 A.2d 871 (1975).” Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45 (1983).

When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. See General Statutes §§ 4-141 through 4-165b. The claims commissioner, if he deems it “just and equitable,” may sanction suit against the state on any claim “which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.” General Statutes § 4-160 (a). “This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions. General Statutes §§ 4-148 (b), 4-160.” Doe v. Heintz, supra, 35-36.

The plaintiff is unable to point to any statute that waives the state’s sovereign immunity in the present case. In addition, the plaintiff concedes that he has never received permission from the claims commissioner to sue the state. He argues, however, that under Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), he is not required to obtain the consent of the claims commissioner prior to bringing his § 1983 claim in the Superior Court. In Patsy, the United States Supreme Court held that “exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983.” Id., 516. Consequently, the plaintiff contends he need not obtain permission prior to proceeding against the state in a § 1983 action. We disagree.

„ Section 1983 does not abrogate the common law doctrine of sovereign immunity. “In Owen v. Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673, reh. denied, 446 U.S. 993, 100 S. Ct. 2979, 64 L. Ed. 2d 850 (1980), the United States Supreme Court stated that ‘[w]here the immunity claimed by the defendant was well established at common law at the time Section 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act, we have construed the statute to incorporate that immunity.’ Id., 638. The doctrine of sovereign immunity was well established at common law at the time § 1983 was enacted. It is supported by a strong policy reason; that is, to prevent the imposition of enormous fiscal burdens on states. As concluded by the court in Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979), Congress did not intend ‘by the general language of Section 1983 to override the traditional sovereign immunity of the States.’ Id., 341.” Fetterman v. University of Connecticut, supra, 551-52.

The plaintiff, however, contends that the trial court and the claims commissioner have concurrent jurisdiction to authorize suits against the state and therefore he should not be required to first exhaust what he denotes as his “administrative remedy” under chapter 53 of the General Statutes prior to commencing suit. We disagree. Before a claimant may pursue any monetary claim against the state, if the doctrine of sovereign immunity is applicable, the state must consent to be sued. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984); Fetterman v. University of Connecticut, supra, 550. The claims commissioner, as previously noted, may waive that immunity, pursuant to General Statutes § 4-160 (a), and consent to suit. Until that happens, however, the Superior Court has no jurisdiction to hear any such monetary claim. “ ‘A statute giving a right to costs in general terms will not be construed to include an award against the State, because the State is invested with the immunities from legal process, mesne and final, which at common law belonged to the King and there would be no power in the court to enforce its decree.’ [State v. Chapman, supra, 365]; State v. Anderson, 82 Conn. 392, 393-94, 73 A. 751 (1909). ‘[I]t is a general principle that what courts cannot enforce they cannot decree.’ State v. Anderson, supra, 393; see Pellegrino v. O’Neill, 193 Conn. 670, 683, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984).” Doe v. Heintz, supra, 32-33. “The question whether the principles of governmental immunity from suit and liability are waived is a matter for legislative, not judicial, determination. Rogan v. Board of Trustees, 178 Conn. 579, 582, 424 A.2d 274 (1979); Bergner v. State, 144 Conn. 282, 286-87, 130 A.2d 293 (1957).” Duguay v. Hopkins, supra, 228.

In keeping with that premise, the entire legislative scheme of chapter 53, which authorizes claims against the state, makes clear that it is the claims commissioner, pursuant to legislation, that can waive sovereign immunity and not the courts. The legislation pertinent to this appeal expressly provides that, “[wjhen the claims commissioner deems it just and equitable, he may authorize suit against the state”; General Statutes § 4-160 (a); and that when “any inmate of any institution of the department of correction” brings a claim against the state for an injury which results in a fatality, that claim must be heard and decided in accordance with the provisions of chapter 53. General Statutes § 4-165b. The Superior Court, therefore, has no authority to hear a claim for monetary damages against the state when the doctrine of sovereign immunity is applicable. That jurisdiction, in the first instance, resides by statute solely in the claims commissioner.

The plaintiff maintains, however, that 42 U.S.C. § 1988 confers jurisdiction on the Superior Court to waive the state’s sovereign immunity and allow it to be sued. Specifically, the plaintiff contends that § 1988 authorizes the trial court to “borrow” General Statutes § 4-160 (a) to determine whether his claim presents an issue under which the state, were it a private person, could be liable. The plaintiff claims that by thus allowing the trial court to authorize suit against the state we would be fostering the “goal of compensation” underlying § 1983. We disagree.

Section 1988 “recognizes that in certain areas ‘federal law is unsuited or insufficient “to furnish suitable remedies” federal law simply does not ‘cover every issue that may arise in the context of a federal civil rights action.’ Moor v. County of Alameda, 411 U.S. 693, 703 [93 S. Ct. 1785, 36 L. Ed. 2d 596] (1973) [reh. denied, 412 U.S. 963, 93 S. Ct. 2999, 37 L. Ed. 2d 1012 (1973), overruled on other grounds, Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)], quoting 42 U.S.C. § 1988.”Robertson v. Wegmann, 436 U.S. 584, 588, 98 S. Ct. 1991, 56 L. Ed. 2d 554 (1978). “The century-old Civil Rights Acts do not contain every rule of decision required to adjudicate claims asserted under them.” Burnett s. Grattan, 468 U.S. 42, 47, 104 S. Ct. 2924, 82 L. Ed. 2d 36 (1984). Federal courts under § 1988 may therefore look to state law to fill the void. Id., 48; Robertson s. Wegmann, supra.

“Most decisions concerning the borrowing of state law . . . have arisen from [a] need to borrow provisions, such as statutes of limitations, tolling policies, and survival rules, that serve the exclusive purpose of defining that point where the right to maintain a cause of action ends.” Brown v. United States, 742 F.2d 1498, 1505 (D.C. Cir. 1984), cert. denied sub nom. District of Columbia v. Brown, 471 U.S. 1073, 105 S. Ct. 2153, 85 L. Ed. 2d 509 (1985). Section 1988 “instructs federal courts as to what law to apply in causes of actions arising under federal civil rights acts. But . . . the section, without more, was [not] meant to authorize the wholesale importation into federal law of state causes of action—not even one purportedly designed for the protection of federal civil rights.” Moor v. County of Alameda, supra, 703-704. Section 1988 applies only when federal law is inapplicable or in some way deficient. Brown v. United States, supra, 1504. The fact that the plaintiff cannot, without consent, sue the state in an action under § 1983 for money damages is not, however, simply a matter of a deficiency in federal law. Sovereign immunity is a matter of substantive state law that has been consistently recognized as not having been abrogated by § 1983. See discussion, supra.

Next, the plaintiff claims that chapter 53 discriminates against the assertion of his federal rights. In support of his argument, the plaintiff relies primarily on the recent United States Supreme Court case of Felder v. Casey, U.S. , 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988). Felder is inapposite. The state notice-of-claim statute struck down in Felder produced “different outcomes in § 1983 litigation based solely on whether the claim [was] asserted in state or federal court . . . . ” Id., 138. Felder involved a claim under § 1983 against the city of Milwaukee and its police officers. The notice-of-claim statute in question in that case imposed restrictions on a claimant which raised a § 1983 cause of action against a municipality and its officers in the state court, but did not apply to such claims if brought by the claimant in the federal court. Id., 142-45. Consequently, the statute made it more difficult for the claimant to sue under § 1983 in the state court. The present case poses no such problem. As the plaintiff conceded at oral argument, the eleventh amendment would be a complete bar to his cause of action in the federal court. Pennhurst State School & Hospital v. Halderman, supra, 98; Fitts v. McGhee, 172 U.S. 516, 524, 19 S. Ct. 269, 43 L. Ed. 535 (1899); Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890). Likewise, the doctrine of sovereign immunity would bar the plaintiffs cause of action in the state court. The plaintiff, therefore, is treated equally in both jurisdictions, avoiding the problem addressed by the United States Supreme Court in Felder v. Casey, supra.

There is no error.

In this opinion the other justices concurred.

       Initially, the city of New Haven was named as a defendant. The suit against the city was subsequently withdrawn.

       “[42 U.S.C.] § 1983. CIVIL ACTION FOR DEPRIVATION OF RIGHTS
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

       General Statutes (Rev. to 1985) § 4-160 (a) provides in pertinent part: “authorization of actions against the state, (a) When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable. In each such action the claimant shall allege such authorization and the date on which it was granted. The state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances. . . .”

       “[42 U.S.C.] § 1988. PROCEEDINGS IN VINDICATION OF CIVIL RIGHTS; attorney’s fees
      “The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title ‘civil rights,’ and of Title ‘crimes,’ for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extented to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty. In any action or proceeding to enforce a provision of sections 1981,1982,1983,1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

       The plaintiff did not contest the trial court’s ruling that the state is not a person within the meaning of 42 U.S.C. § 1983. Since we affirmed the trial court’s ruling based upon the first ground, we did not address that issue. On June 15,1989, however, the United States Supreme Court in Will v. Michigan Department of State Police, U.S. , 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), ruled that a state or state official while acting in his official capacity is not a “person” within the meaning of § 1983.

       “[General Statutes] Sec. 4-147. notice op claim, piling fees. Any person wishing to present a claim against the state shall file with the clerk of the office of the claims commissioner a notice of claim, in duplicate, containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested, and (4) a request for permission to sue the state, if such permission is sought. A notice of claim, if sent by mail, shall be deemed to have been filed with the office of the claims commissioner on the date such notice of claim is postmarked. Claims in excess of one thousand dollars shall be accompanied by a check or money order in the sum of twenty-five dollars payable to the treasurer, state of Connecticut. Claims for one thousand dollars or less shall be accompanied by a check or money order in the sum of ten dollars payable to the treasurer, state of Connecticut. Fees may be waived by the commissioner for good cause but such action by the commissioner shall not relieve the claimant from the obligation of filing his notice of claim in timely fashion within the statute of limitations under section 4-148. The clerk of the office of the claims commissioner shall promptly deliver a copy of the notice of claim to the attorney general. Such notice shall be for informational purposes only and shall not be subject to any formal or technical requirements, except as may be necessary for clarity of presentation and facility of understanding.”
      “[General Statutes] Sec. 4-165b. claims against the state by inmates of state coeeectional and eefoematoey institutions, (a) On and after May 3,1976, any inmate of any institution of the department of correction or the department of children and youth services who suffers an injury which results in a fatality or in a permanent handicap may file a claim against the state. Such claim shall be heard and decided in accordance with the provisions of this chapter.
      “(b) All matters pending before the committee established pursuant to section 18-95 of the general statutes, revision of 1958, revised to 1975, on May 3,1976, shall be construed as pending with the same status with the claims commissioner on said date.”

       The plaintiff blames the death of the claims commissioner and the resultant delays for the lack of activity on his claim. The state claims that the plaintiffs allegation is “misleading in that it fails to disclose that the plaintiff has yet to comply with discovery requests filed by the defendants in March, 1987.”

       At oral argument, the question was posed from the bench whether the plaintiff would be barred by the statute of limitations from asserting his 42 U.S.C. § 1983 claim against the state. Neither party briefed the issue. Accordingly, we will not decide it at this time.

       Chapter 53 includes General Statutes §§ 4-141 through 4-165b.

       Moreover, this reading of the statute is consistent with our interpretation of chapter 53 in Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 489 A.2d 363 (1985). In Circle Lanes of Fairfield, Inc., we concluded that the Superior Court lacked jurisdiction to hear appeals from the claims commissioner because General Statutes § 4-164a expressly exempted the claims commissioner from the operation of General Statutes § 4-183, the provision of the Uniform Administrative Procedure Act that permits an appeal to the Superior Court. Further, when the commissioner recommends payment of a claim against the state in excess of $7500, it is the legislature, not the court, that reviews the commissioner’s decision. See General Statutes § 4-159.

       The eleventh amendment to the United States constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
      We note that in Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), the United States Supreme Court did not address whether the eleventh amendment would nevertheless bar the suit on the basis of the sovereign immunity of the state. “Nothing in this opinion precludes the Board of Regents from raising its Eleventh Amendment claim on remand.” Id., 515-16 n.19.


author: Covello, J.

text:
    John A. Sgueglia v. Milne Construction Company
    (13686)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued June 15
    decision released August 8, 1989

      William F. Gallagher, with whom, on the brief, was Evelyn A. Barnum, for the appellant (plaintiff).

      Robert G. Oliver, with whom, on the brief, was Carolyn P. Gould, for the appellee (defendant).
   Covello, J.

This is an appeal from a judgment of the Superior Court, Purtill, J., granting the defendant’s motion for summary judgment. The underlying action involves a negligence claim brought by an employee of a subcontractor against the general contractor for injuries claimed to have been sustained at a job site under the control of the general contractor. The dispositive issue is whether the trial court erred in concluding that General Statutes § 31-291 does not create an impermissible emolument in violation of article first, § of the Connecticut constitution. We con-elude that the statute does not create any such emolument, and that the general contractor, as the plaintiffs principal employer, is immune from tort liability pursuant to the statute. We therefore find no error.

On January 30,1985, the plaintiff, John A. Sgueglia, brought this action against Milne Construction Company (Milne), a general contractor. The complaint alleged that on February 24, 1983, the plaintiff was working as a laborer for D&M Masonry Company, Inc. (D&M), installing brick veneer on a mausoleum then under construction at St. Lawrence cemetery in the town of West Haven. D&M was a subcontractor of Milne, the general contractor on the project. The complaint further alleged that the plaintiff was injured when a wheelbarrow he was pushing came to a sudden stop due to Milne’s negligence in failing to maintain proper soil conditions in the area in which the defendant was working.

On March 11, 1985, D&M filed an intervening complaint claiming that, at the time of the incident, Sgueglia was a D&M employee within the scope of the Connecticut Workers’ Compensation act, and as such D&M was entitled to reimbursement for the workmen’s compensation payments it had made from any recovery.

The defendant Milne interposed a special defense claiming that it was the plaintiff’s principal employer and therefore immune from liability under General Statutes §§ 31-291 and 31-284. The plaintiff in this appeal does not dispute that Milne was the principal employer for purposes of § 31-291.

At the time the incident occurred § 31-291 provided that “[wjhen any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in . . . premises under his control, such principal employer shall be liable to pay all compensation [under the workers’ compensation act] to the same extent as if the work were done without the intervention of such contractor or subcontractor.” Thus, an employee of the subcontractor is barred from any tort action against the principal general contractor as the employer pursuant to General Statutes § 31-284 (a).

Milne contracted with D&M as the masonry subcontractor on November 15, 1982. As part of its subcontract with Milne, D&M was required to, and did, provide a certificate of insurance evidencing coverage for workers’ compensation and employer’s liability. The plaintiff admits receipt of temporary total disability payments and rehabilitation subsidy payments from his employer D&M.

Milne filed a motion for summary judgment against Sgueglia and the intervening plaintiff, D&M, claiming that Milne was a principal employer within the meaning of § 31-291. Milne claimed that Sgueglia, therefore, was barred from any action against it by virtue of § 31-284, which makes compensation under the work1 ers’ compensation act the exclusive remedy for damages on account of personal injury sustained by an employee, including employees of subcontractors.

On January 3, 1989, the trial court granted the motion for summary judgment. The court concluded that the conditions of § 31-291 were met and that as a matter of law Milne was a “principal employer” within the meaning of the statute.

In its decision, the court also considered the plaintiffs argument that to permit the defendant to assert the principal employer rule of § 31-291, in light of the operation of other workers’ compensation statutes, violated article first, § 1 of the Connecticut constitution. The plaintiff argued in the trial court that permitting Milne to take advantage of the principal employer defense would constitute granting an emolument to the principal employer lacking any public purpose. The trial court held that § 31-291 did not violate the plaintiff’s constitutional rights in the circumstances of this case. The plaintiff appealed to the Appellate Court, and we transferred the case to ourselves pursuant to Practice Book § 4023. On appeal, the plaintiff claims that to permit Milne to utilize the principal employer status created by § 31-291 would, in conjunction with the operative provisions of the second injury fund, § 31-355, grant Milne an immunity or emolument lacking any public purpose. We do not agree. No real immunity is conferred upon the defendant.

On February 24,1983, § 31-291 provided that a principal employer, such as Milne, is liable to pay workers’ compensation benefits for injuries sustained by an employee not on its own payroll, and the employee is barred from any common law action against the principal employer, just as he would be barred from suit against his immediate employer. Mancini v. Bureau of Public Works, 167 Conn. 189, 193, 355 A.2d 32 (1974); Kasowitz v. Mutual Construction Co., 154 Conn. 607, 611, 228 A.2d 149 (1967). We have consistently held that the exclusivity provisions of the Workers’ Compensation Act operate as a total bar to actions brought by employees against their employers for job related injuries. See, e.g., Sharp v. Mitchell, 209 Conn. 59, 66, 546 A.2d 846 (1988); Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 532, 494 A.2d 555 (1985); Mingachos v. CBS, Inc., 196 Conn. 91, 98, 491 A.2d 368 (1985); Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). This bar operates whether or not the employee actually collects compensation from the principal employer. Id.

The purpose of § 31-291 “ ‘is to protect employees of minor contractors against the possible irresponsibility of their immediate employers, by making the principal employer who has general control of the business in hand liable as if he had directly employed all who work upon any part of the business which he has undertaken to carry on.’ Bello v. Notkins, 101 Conn. 34, 38, 124 A. 831 [1924].” Battistelli v. Connohio, Inc., 138 Conn. 646, 648, 88 A.2d 372 (1952).

As to claimants, “the principal employer or contractor, his subcontractor, and their respective insurers, if any, are equally responsible . ... ” (Emphasis added.) Johnson v. Mortenson, 110 Conn. 221, 224, 147 A. 705 (1929); see also Cirrito v. Turner Construction Co., 189 Conn. 701, 705, 458 A.2d 678 (1983). It is only as between the principal employer and the subcontractor/immediate employer that the latter is primarily liable. Fidelity & Casualty Ins. Co. v. Sears, Roebuck & Co., 124 Conn. 227, 232, 199 A. 93 (1938); Bogoratt v. Pratt & Whitney Aircraft, 114 Conn. 126, 134-35, 157 A. 860 (1932).

Within the foregoing statutory scheme the legislature has put in place the second injury fund. See General Statutes § 31-349 et seq. These statutes provided that the fund is to pay benefits “due injured employees whose employers or insurance carriers have failed to pay the compensation, dependency allowance, and medical expenses required by this chapter [under Section 31-355] .... The assessment required by this section is a condition of doing business in this state and failure to make such payment, when due, shall result in denial of the privilege of doing business in this state or to self-insure under section 31-284.” General Statutes (Rev. to 1985) § 31-354; see also Lovett v. Atlas Truck Leasing, 171 Conn. 577, 583, 370 A.2d 1061 (1976).

The plaintiff asserts that it is General Statutes § 31-355 that gives rise to the constitutional infirmity in § 31-291 of the workers’ compensation act. Section 31-355 provides that “[t]he employer and the insurer if any shall be liable to the state for any such payments made out of said fund or which the state has by award become obligated to make from said fund, together with cost of attorneys’ fees as fixed by the court.” (Emphasis added.) General Statutes (Rev. to 1985) § 31-355. The plaintiff argues that by virtue of the potential availability of the second injury fund for payment of benefits, a principal employer such as Milne could completely avoid liability for payment of a compensation award to a claimant. This, the plaintiff argues, affords an immunity from a nonexistent liability thereby creating an impermissible emolument in violation of article first, § 1 of the Connecticut constitution. We disagree.

In the present case Milne stands in the same position as all other principal employers. It must, and did, provide workers’ compensation coverage in order to do business in this state. It is secondarily liable to make or to insure for compensation payments to employees of its subcontractors, such as the plaintiff here. It would be liable to the state of Connecticut for any payments made from the second injury fund to the plaintiff under § 31-355 in the event that neither it, the subcontractor, nor the insurance carrier had paid benefits. The plaintiff’s claim, therefore, is illusory.

It is entirely logical to conclude, as did the trial court, that the expense represented by the workers’ compensation insurance premiums paid by D&M was part of its cost of performing under the contract with Milne and that such cost was one of the factors included in the contract price. Here, Milne can hardly be said to have received an emolument or privilege, since Milne not only paid for its own coverage for the job but also, indirectly through the subcontractor’s contract price, for D&M’s as well. Thus, the principal employer/contractor is in effect a surety for the immediate employer/subcontractor, and any purported “immunity” is illusory. Clearly, Milne was not relieved of any liability or burden by virtue of the second injury fund, nor was the plaintiff deprived of any benefits. Milne did in fact obtain insurance coverage to assure that benefits would be paid to any and all of its employees and the employees of its subcontractors. Similarly, D&M also fulfilled its obligations under the act by procuring insurance coverage, and the plaintiff did receive benefits under D&M’s coverage. Accordingly, there is no benefit accruing to employers that would constitute an “emolument” under article first, § 1 of the Connecticut constitution.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1985)] Sec. 31-291. principal employer, CONTRACTOR AND SUBCONTRACTOR. When any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be liable to pay all compensation under this chapter to the same extent as if the work were done without the intervention of such contractor or subcontractor.”

       Article first, § 1 of the Connecticut constitution provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”

       “[General Statutes (Rev. to 1985)] Sec. 31-284. basic rights and liabilities. (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       “[General Statutes (Rev. to 1985)] Sec. 31-355. payments from second INJURY AND COMPENSATION ASSURANCE FUND ON EMPLOYER’S FAILURE TO comply WITH AWARD. When an award of compensation shall have been made under the provisions of this chapter against an employer who fails or is unable to pay the medical and surgical aid or hospital and nursing service required under section 31-294 or any type of compensation for disability, or both, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, dependency allowance, or any adjustment in compensation required by this chapter, hereafter referred to as ‘the compensation’ and whose insurer fails or is unable to pay the compensation, such payments shall be made and compensation provided from the second injury and compensation assurance fund established in section 31-354. Upon finding by the commissioner of such failure to pay compensation, he shall give notice to the treasurer of such award, directing the treasurer to make payment from said fund. The employer and the insurer if any shall be liable to the state for any such payments made out of said fund or which the state has by award become obligated to make from said fund, together with cost of attorneys’ fees as fixed by the court.”

       The defendant argues that the plaintiff did not raise in the trial court one of the issues he now relies upon on appeal, namely that it is the potential that a remedy would be available to injured workers through the second injury fund under § 31-855 of the General Statutes that constitutes the source of the constitutional infirmity claimed to exist in General Statutes § 31-291 and therefore he may not do so on appeal. We disagree.
      The defendant relies upon § 4185 of the Connecticut Practice Book, which requires that appellate courts not consider a claim unless it was “distinctly raised” below: “Sec. 4185. errors considered
      “The Supreme Court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.”
      In this context, “distinctly” means that the claim raised must be “ ‘ “ ‘so stated as to bring to the attention of the court the precise matter on which its decision is being asked.’ ” ’ ” Swerdloff v. AEG Design/Build, Inc., 209 Conn. 185, 188, 550 A.2d 306 (1988); State v. Utz, 201 Conn. 190, 207, 513 A.2d 1191 (1986); State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986). This rule applies as well to constitutional claims. Sands v. Sands, 188 Conn. 98, 106, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983).
      It is clear from the materials in the file that the issue was distinctly raised in the trial court. In his brief in opposition to the defendant’s motion for summary judgment, the plaintiff argued that “to permit defendant Milne to assert the principal employer rule is [a] violation of article first, [§] 1 of the Connecticut Constitution for the reason that . . . permitting Milne to take advantage of the principal employer defense would constitute the granting of an emolument without any public pulpóse.” In addition to briefing that issue, which is so tightly interwoven with the other issues raised on appeal as to be inseparable, most of the plaintiff’s oral argument at trial was devoted to the claim of the unconstitutionality of the statute, and specific reference was made to the effect of the second injury fund statute (§ 31-355) on the constitutional issue. The court was fairly apprised of the nature of the claim being asserted by the plaintiff, and any discussion of the constitutionality of § 31-291, as framed by the plaintiff before the trial court, would of necessity include consideration of the real or potential liability of employers under the statutory scheme.

       In the present case, the plaintiff has received compensation benefits under the insurance carried by D&M with the Commercial Union Insurance Company. '