text:
    State of Connecticut v. Lawrence J. Miller, Jr.
    (12490)
    Peters, C. J., Healey, Shea, Callahan and Novack, Js.

      Argued November 6, 1986
    decision released March 10, 1987

      Richard Emanuel, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom were JohnM. Massameno, assistant state’s attorney, and, on the brief, Walter D. Flanagan, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in an information with two counts of the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). After a jury trial, he was found guilty of both counts and sentenced to consecutive terms of imprisonment.

He has appealed claiming that: (1) his statutory and constitutional rights were violated by the administration of defective oaths to the voir dire panel and to the petit jury; (2) the trial court erred in denying his motion to suppress identification evidence; (3) his right to be tried by an impartial jury was violated by the denial of his motion to transfer the prosecution; (4) the trial court erred by admitting irrelevant evidence; (5) his rights were violated by the exclusion of the results of a polygraph examination from evidence; (6) the evidence was insufficient to establish his guilt beyond a reasonable doubt; and (7) his constitutional rights were violated by the trial court’s instructions on circumstantial evidence. We find no error.

The jury could reasonably have found the following facts. On the evening of August 20, 1981, at approximately 8:30 p.m., fifteen year old Elizabeth, and a sixteen year old male friend, William, were viciously assaulted behind the United Methodist Church on Clapboard Ridge Road in Danbury. The assault took place in an area used as a gathering place by neighborhood youths. Their assailant was a white male whom the couple encountered as they were leaving the area to walk to Elizabeth’s house a short distance away. When he approached the young people, the assailant, who was wearing a bandana across the lower portion of his face, grabbed William’s arm, displayed a handgun and identified himself as a police officer.

The couple was forced at gunpoint to walk to a grassy area where William was made to kneel. The assailant produced handcuffs and, using one hand, quickly handcuffed William’s wrists behind his back. William was instructed to lie on his stomach and the assailant removed his own belt, and bound William’s ankles. He then grabbed Elizabeth’s arm and pulled her down an embankment out of William’s sight. She was ordered to remove her jacket and, when she refused, a struggle ensued. During the struggle, the girl punched and scratched her assailant, and the man struck her several times on the head with the gun. In the course of the struggle with Elizabeth, the bandana, which the assailant had been wearing, came off his face. Thereafter, Elizabeth stumbled, fell to the ground and lost consciousness. When she revived, the man, his face uncovered, was crouched a few feet from where she lay. He then grabbed her foot and began dragging her further down the embankment. While he was doing so, Elizabeth’s sneaker came off. She recovered it and threw it at her assailant, striking him in the crotch area. This precipitated another struggle during which the assailant kicked Elizabeth in the stomach, and repeatedly struck her about the head with the gun until she again lost consciousness.

Approximately five or ten minutes after pulling Elizabeth down the embankment the man returned to William. He removed the belt from around William’s ankles and placed it around William’s chin. The assailant then pulled on the belt and shoved the gun in William’s mouth, injuring him. The belt was then slipped around William’s neck and tightened, strangling him until he lost consciousness. When William regained consciousness, the man was gone and William made his way to Elizabeth’s house where he alerted her parents and help was summoned. A search was immediately launched and Elizabeth was found lying in the area behind the church in a semiconscious state, partially naked and covered with blood.

Both victims were taken to the Danbury Hospital that night. Elizabeth’s injuries consisted of a laceration of the liver, a fractured jaw, fractures of her hands, and numerous head and facial lacerations. She required surgery, and was hospitalized for a period of three to four weeks, a portion of which she spent in intensive care. William’s injuries included multiple head and facial lacerations, and a laceration of the soft palate caused when the barrel of the assailant’s gun was jammed into his mouth. He was confined to the hospital for a week.

At trial Elizabeth made a “positive” in-court identification of the defendant as her assailant. She also testified that she had made an out-of-court photographic identification of the defendant, at Danbury police headquarters on April 1,1982. She further testified that she had positively identified the defendant as her assailant at a chance meeting in the area of the checkout counters at the Bradlees Department Store in Danbury on July 12,1982. It is undisputed that the meeting at Bradlees was inadvertent and that it was not arranged by the police. William, who never saw his assailant without the bandana covering the lower portion of his face, was unable to make an identification of the defendant.

The defendant, who was employed at the time of the crime as a correction officer at the federal correctional institution in Danbury, testified at his trial. He denied his involvement in the incident, offered an alibi defense and testified that at the time of the crime, he was visiting at the home of his sister in Brewster, New York. His testimony was supported by the testimony of his sister, his mother, his wife and a friend of the defendant’s sister.

I

The defendant first claims that his statutory and constitutional rights were violated by the administration of defective oaths to both the voir dire panel and the petit jury. Practice Book § 847 states in pertinent part that “[t]he judicial authority shall cause prospective jurors to be sworn or affirmed in accordance with Gen. Stat., §§ 1-23 and 1-25.” General Statutes § 1-25 sets forth the forms of oaths for, inter alia, voir dire and for petit jurors in a criminal cause. In administering the voir dire oath, the trial court omitted the “well and truly” language of the oath, and in administering the jury oath, the phrase “by the name of the ever-living God” was omitted. Although the defendant acknowledges that he did not object to the defective oaths at trial, he seeks review of his claims pursuant to (1) State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), which permits review of newly raised claims of error “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial,” and (2) Practice Book § 4185 (formerly § 3063), which permits this court “in the interest of justice [to] notice plain error not brought to the attention of the trial court.” We conclude that neither one of these exceptions to our rule against appellate review of unpreserved claims of error applies to the circumstances of this case.

First, the defendant puts a constitutional tag on a nonconstitutional claim by asserting that the deviation from the statutory form for oaths constitutes a deprivation of a fundamental constitutional right. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). We are unaware of a constitutional right to any particular form of an oath. The defendant also suggests that he was deprived of a fundamental constitutional right because the defective oaths impaired his right to a “meaningful voir dire” by frustrating his opportunity to elicit grounds for challenge for cause and by inhibiting the intelligent exercise of his right to peremptory challenges. We disagree. The record does not support the assertion that the oaths administered in this case resulted in any impairment of the voir dire process. As we stated in State v. Gooch, supra, “the Evans trial court bypass to this court is a narrow constitutional path and not the appellate Champs-Elysees.” The defendant’s reliance on Evans is without foundation.

Nor does the defendant’s claim warrant review under the plain error doctrine, because we cannot conclude that the trial court’s administration of the defective oaths resulted in any manifest injustice in this case. See State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” Id. This is not such a case. Cf. State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980). We conclude, therefore, that the defendant’s acquiescence throughout trial constituted a waiver of any objection to the trial court’s deviation from the statutory language governing the administration of oaths. See State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379 (1960); cf. State v. Hoyt, 47 Conn. 518, 528-29, 36 A. 89 (1880).

II

The defendant next claims that his federal and state constitutional rights to due process of law were violated by the trial court’s denial of his motion to suppress both the out-of-court and in-court identifications of him made by Elizabeth. As previously noted, at trial she made a “positive” in-court identification of the defendant as her assailant, and also testified that she had selected his photograph from an array on April 1, 1982, and had identified him at a chance meeting in Bradlees Department Store in Danbury on July 12, 1982.

“A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). “ Tn determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the “totality of the circumstances.” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).’ ” State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985). Only if the procedures used to identify the accused are unnecessarily suggestive are we required to analyze the factors that determine the reliability of an identification for due process purposes. United States v. Amrine, 724 F.2d 84, 87 (8th Cir. 1983); United States v. Hurt, 476 F.2d 1164, 1168 (D.C. Cir. 1973); State v. Amarillo, 198 Conn. 285, 294, 503 A.2d 146 (1986). In this case the trial court found that the identification procedures employed “were not at all suggestive.” We agree.

The evidence adduced at a hearing on the defendant’s motion to suppress identification and at trial revealed that from the date of the assault on August 20, 1981, until April 1,1982, Elizabeth viewed approximately 400 photographs of white males without making an identification. On April 1,1982, at the request of the Dan-bury police, she went to police headquarters and viewed an array of seven color photographs of similar subjects. This array included a photograph of the defendant that had been taken the previous day. Elizabeth selected the defendant’s photograph from the array as depicting her assailant, and indicated she was 99 percent sure of her identification, but she could not be more definite unless she saw the subject of the photograph in person.

The defendant first argues that the procedure and the photographs utilized in obtaining the identification on April 1,1982, were in themselves unnecessarily suggestive. A review of the testimony concerning the presentation of the array and the photographs included in it, however, demonstrates that the April 1, 1982 identification procedure was conducted fairly and was not in the least suggestive. See United States v. Amrine, supra; State v. McKnight, 191 Conn. 564, 571, 469 A.2d 397 (1983). The defendant contends, however, that even if the procedure employed on April 1,1982, was not itself unnecessarily suggestive, what had transpired previously caused it to be so, and required the trial court to suppress not only the photographic identification secured on that date, but also the subsequent corporeal identification at Bradlees and the in-court identification. We disagree.

The defendant’s argument is premised principally on the state’s response to a motion for disclosure filed prior to trial in which it was disclosed that Elizabeth had, at some time prior to making the identification of April 1,1982, viewed three “old photographs” of the defendant. It is undisputed that one of those “old photographs” was shown to her in January or February, 1982, as part of an array of six small black and white photographs contained in a manila folder. It is impossible to decipher from the record exactly when, or if in fact, the other two “old photographs” were seen by Elizabeth. The defendant theorizes that they were shown to her in September, 1981, when she was at home recuperating from her injuries. The state appears to agree that, if they were shown to her at all, it was at that time when the bulk of the approximately 400 photographs were shown to her. There were undoubtedly two “old photographs” of the defendant in the possession of the Danbury police showing him in casual poses with another person. The two police officers primarily responsible for conducting the identification procedures with Elizabeth, however, deny ever having shown them to her. We will credit the state’s response to the defendant’s motion for disclosure and the defendant’s theory as to when these two “old photographs” of the defendant were shown, and assume, arguendo, as does the state in its brief, that they were, in fact, viewed by Elizabeth in September, 1981. It is undisputed that Elizabeth made no identification prior to trial as a result of viewing any of the three “old photographs.”

We have recognized that pictorial recurrence can be suggestive because it increases the risk of misidentification. State v. Hinton, 196 Conn. 289, 292-93, 493 A. 2d 836 (1985). We conclude, however, that, under the circumstances of this case, the viewing by Elizabeth of the three “old photographs” of the defendant, prior to her selection of the defendant’s photograph on April 1, 1982, did not taint her identification on that date or render the identification procedure suggestive. We come to this conclusion because all three of the “old photographs” allegedly viewed by Elizabeth prior to April 1, 1982, were dissimilar to each other and depicted the defendant as appearing substantially different than he did in the photograph she selected on that date. The “old photographs” have to be studied together with the April 1,1982 photograph before a connection can be made between them, and even then it is not apparent. Therefore, even though at trial Elizabeth indicated that one of the “old photographs” of the defendant in a casual pose depicted her assailant, it is almost inconceivable that a viewing of that photograph some seven months previous, at a time when she viewed approximately 400 other photographs, influenced her selection of the recent photograph of the defendant on April 1, 1982. The time lapse, the dissimilarity of the photographs viewed, and the difference in appearance of the defendant in the April 1,1982 photograph, militate against a conclusion that the “old photographs” influenced her subsequent identifications.

The recurrent use of a defendant’s photograph in successive arrays is not presumptively suggestive. United States v. Bowie, 515 F.2d 3, 7-8 (7th Cir. 1975); State v. Boucino, 199 Conn. 207, 219, 506 A.2d 125 (1986). When a witness first views a photograph in which an accused bears little resemblance to his appearance in another photograph subsequently selected by the witness, the viewing of the earlier photograph does not taint the later photographic identification. United States v. Brown, 461 F.2d 134, 144 (D.C. Cir. 1972); State v. Evans, 200 Conn. 350, 355, 511 A.2d 1006 (1986).

Since the initial identification of the defendant on April 1,1982, was not the result of a suggestive identification procedure, there was no constitutional infirmity in the identification process. It is therefore unnecessary to consider the factors which the defendant claims render the initial identification, the subsequent identification at Bradlees and the in-court identification unreliable. “If an identification procedure is not impermissibly suggestive, the inquiry is ended.” State v. Freeman, 313 N.C. 539, 544, 330 S.E.2d 465 (1985).

The defendant argues that even if we should conclude that the identification procedure was not suggestive, we should, nonetheless, inquire into the reliability of Elizabeth’s identifications. He urges us to employ a test limited to a single inquiry, that being the reliability of the identification, and abandon our present two-pronged inquiry. See State v. Austin, supra, 499. The defendant cited no authority for the adoption of such a position and to adopt it would preempt the traditional role of the jury. Absent an unconstitutional procedure, “evidence with some element of untrustworthiness is customarily grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” Manson v. Brathwaite, supra, 116.

The United States Supreme Court decision in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), set forth the factors to be considered in making a determination of reliability. These “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Id., 199-200. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. After a careful review of the record in light of these factors, we conclude that even if the identification procedure employed was unnecessarily suggestive, Elizabeth’s out-of-court and in-court identifications were sufficiently reliable under the “totality of the circumstances” to be admissible at trial.

Ill

The defendant next claims that the trial court’s denial of his motion to transfer prosecution violated his right to a fair trial by an impartial jury, and his right to due process of law, as guaranteed by the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. His claim is premised on the prejudicial effect of the pretrial publicity, and particularly a newspaper article published during trial which, he claims, resulted in unconstitutional unfairness as to the method of jury selection and as to the jurors actually chosen. After a review of the record in this case, we conclude that the publicity attending this case did not deprive the defendant of an impartial jury and a fair trial.

The defendant filed a pretrial motion for transfer of prosecution. An evidentiary hearing was held by the trial court during which the following circumstances were disclosed. The area in which the crimes occurred is served by several newspapers, including the Danbury News-Times (News-Times). The court reporter for the News-Times testified that she had written many of the articles pertaining to the assaults, and that the incident was not treated any differently from other serious crimes that had been reported in the newspaper.

Although the News-Times had published approximately forty news articles and two editorials pertaining to this crime, the majority of these articles had appeared during the time between the date of the offense and the defendant’s arrest in July, 1982. The articles described the circumstances of the assaults, contained descriptions of the assailant, and discussed a reward fund. The media accounts of the crimes were derived substantially from court proceedings and interviews with individuals familiar with the events, including one brief interview with the Danbury state’s attorney. Concluding that there was insufficient evidence that the publicity had affected any of the potential jurors, the trial court denied the defendant’s pretrial motion.

The defendant points to only one specific instance of media coverage that he claims exemplifies the prejudicial nature and effect of the pretrial publicity surrounding this case. On November 1, 1983, after voir diré had commenced, one of the jurors who had been selected to serve on the jury panel, informed the court that the names of the jurors chosen for the panel had appeared in the newspaper. She indicated that she had become apprehensive about serving on the jury because of the article, and that she wished to be excused. The defendant at that point renewed his motion for a transfer of prosecution, but the motion was denied by the trial court.

On the basis of the above, the defendant argues that the pretrial publicity in this case was “inherently prejudicial,” or, in the alternative, “identifiably prejudicial” so as to render the trial court’s denial of his motion to transfer prosecution constitutional error.

At the outset, we note that, when requesting a transfer of prosecution, the defendant bears the burden of showing that he could not receive a fair and impartial trial. State v. Piskorski, 177 Conn. 677, 685, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Rogers, 143 Conn. 167, 172, 120 A.2d 409, cert. denied, 351 U.S. 952, 76 S. Ct. 850, 100 L. Ed. 1476 (1956). The determination of whether a transfer of prosecution is necessary is a matter ordinarily entrusted to the sound discretion of the trial court. Nevertheless, “due to the grave constitutional implications attending such pretrial rulings, ‘appellate tribunals have the duty to make an independent evaluation of the circumstances.’ Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 16 L. Ed. 2d 600 [1966].” State v. Piskorski, supra, 685-86.

“ ‘[T]he general rule is that on appeal a defendant has the burden of proving actual jury prejudice if a conviction is to be reversed on grounds of prejudicial publicity . . . .’ ” State v. Marra, 195 Conn. 421, 428, 489 A.2d 350 (1985). “There is no need to show actual prejudice in the jury box ‘in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. See Estes v. Texas, 381 U.S. 532, 542-43, 85 S. Ct. 1628, 14 L. Ed. 2d 543 [reh. denied, 382 U.S. 875, 86 S. Ct. 18, 15 L. Ed. 2d 118] (1965).’ Colley v. Callaway, 519 F.2d 184, 204 (5th Cir.), cert. denied [sub nom. Calley v. Hoffman], 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 [1976].” State v. Piskorski, supra, 686. Our decision in Piskorski contained a comprehensive analysis of those United States Supreme Court cases in which prejudice was presumed. Id., 686-89; see Sheppard v. Maxwell, supra; Estes v. Texas, supra; Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963). Unlike those cases discussed in Piskorski, the record in this case fails to indicate that either the nature or the extent of the publicity approached the level where prejudice could be presumed.

The publicity surrounding this case was far from inflammatory and there is no showing that the trial proceedings were conducted in an atmosphere “utterly corrupted by press coverage.” Murphy v. Florida, 421 U.S. 794, 798, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); see Sheppard v. Maxwell, supra, 354, 356-57; Estes v. Texas, supra, 536-38. The record indicates that the articles were “straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness.” Beck v. Washington, 369 U.S. 541, 556, 82 S. Ct. 955, 8 L. Ed. 2d 98, reh. denied, 370 U.S. 965, 82 S. Ct. 1575, 8 L. Ed. 2d 834 (1962); State v. Piskorski, supra, 688. Moreover, there was a significant delay between the majority of the publicity and the time of trial, which lessens the likelihood of jury bias. Murphy v. Florida, supra, 802; see Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 814 (1984). Only a small minority of the potential jurors had anything more than a passing familiarity with the news accounts of the crimes. Cf. Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). It is also noteworthy that none of the articles published prior to trial reported any pretrial confessions or information pertaining to the defendant’s guilt or innocence. Cf. Rideau v. Louisiana, supra, 724. We conclude, therefore, that the pretrial publicity in the present case was not inherently prejudicial so as to deny the defendant his right to a fair and impartial trial.

Absent inherently prejudicial publicity, the defendant must show some connection between the publicity in question and the existence of actual jury prejudice. State v. Marra, supra, 430; State v. Piskorski, supra, 689. “This claim requires us to examine the record to determine whether there was ‘constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected.’ Dobbert v. Florida, 432 U.S. 282, 303, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977).” State v. Marra, supra, 430-31.

The defendant’s claim of actual prejudice is largely premised on the circumstances surrounding the publication of five of the jurors’ names in an October 29, 1983 news article. He argues that since some of the jurors were aware that their names had appeared in the newspaper, they must have ignored the judge’s admonition not to read any media accounts. This he claims, in combination with the other inflammatory circumstances of this case, demonstrates that the defendant’s jury was not fair and impartial. We disagree.

The record in this case reveals that the voir dire examination of individual jurors was extensive and thorough. It was necessary for the parties to question only thirty-five veniremen over a three day period to select the six jurors and two alternates. Only one of the jurors selected to serve on the panel recalled any news accounts concerning the assaults. Once the court was informed that the jurors’ names had been published, it questioned each of the jurors individually, and three were excused when they expressed some apprehension about the article. The other two jurors remained on the panel after indicating that the publication of their names would have no effect on their partiality.

The trial court also raised the issue of the article with the full panel of prospective jurors. Eight of the twenty-seven potential jurors indicated that they had not read or heard about the article. The entire panel then indicated to the court that neither the article, nor any discussion concerning it, had influenced them. The court also instructed the prospective jurors that if any of them had heard about the case through the October 29 article, they could report to the judge in his chambers. Of the six jurors who did speak with the judge, only one indicated any uncertainty as to whether the publication of his name might affect his impartiality. He was excused from the panel.

Thereafter, the trial court allotted the defendant and the state three additional peremptory challenges to compensate for the three jurors who were excused as a result of the article. The remaining jurors then were selected. The defendant had ample opportunity to question the prospective jurors on any bias that may have resulted from the publication of the jurors’ names. The defendant’s satisfaction with the jury panel is evidenced by his failure to exhaust all the peremptory challenges allotted to him. See Dobbert v. Florida, supra, 302; State v. Vitale, 190 Conn. 219, 224-25, 460 A.2d 961 (1983).

The defendant has failed to direct this court to any portion of the voir dire examination which would require a conclusion of constitutional unfairness as to the method of jury selection or as to the jurors actually chosen. We conclude that the trial court did not err in concluding that the defendant was able to obtain a fair trial by an impartial jury in Danbury.

IY

The defendant next claims that the trial court erred in two evidentiary rulings during the course of the testimony of a witness for the state. The witness, James Rimel, was the civilian provost marshall for the department of defense supply depot in Mechanicsburg, Pennsylvania. The defense depot supplied, among other equipment, handcuffs to the defense department, justice department and federal correctional institutions. Rimel testified that the particular set of handcuffs removed from William’s wrists the night of August 20, 1981, had been purchased from Peerless Manufacturing Company and had been received by the defense depot in Mechanicsburg in 1977. He also testified that the federal correctional institution in Atlanta, Georgia, was one of the institutions supplied with handcuffs by the defense depot in Mechanicsburg. On cross-examination, he testified that he did not know when, or to what governmental agency or institution the particular set of handcuffs involved in the incident had been shipped.

During the course of the trial, evidence was elicited that the defendant was employed from December, 1977, to July, 1978, at the federal correctional institution in Atlanta and, at the time of the assault on Elizabeth and William in August, 1981, was employed as a correction officer in the federal correctional institution in Danbury.

At trial the defendant objected to Rimel’s testimony on the ground that it was too “remote and speculative” to prove that the particular handcuffs in question had been supplied to a federal correctional institution where the defendant may have had access to them, and that therefore, Rimel’s testimony was irrelevant. The trial court overruled the defendant’s objection, and the defendant duly excepted to the trial court’s ruling. We find no error.

The trial court has broad discretion in ruling on the admissibility of evidence. State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985); State v. DeForge, 194 Conn. 392, 396, 480 A.2d 547 (1984). “The determination of the relevancy and remoteness of evidence is within the sound discretion of the trial court.” State v. Maldonado, 193 Conn. 350, 365, 478 A.2d 581 (1984). This court will not disturb the trial court’s ruling on evidence unless a clear abuse of discretion is shown. State v. Parker, supra. Evidence is not inadmissible because it is not conclusive; it is admissible if it has a tendency to support a fact relevant to the issues if only in a slight degree. State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985).

Under the circumstances, where there was evidence that the defendant was employed at federal correctional institutions, testimony that handcuffs of a particular manufacture were supplied to those institutions had some tendency to prove that the defendant may have had access to handcuffs of that brand name. We cannot say that the evidence is so remote that the trial court abused its broad discretion in allowing Rimel’s testimony. The defendant’s objection goes to the weight of the evidence rather than to its admissibility.

The defendant also claims that Rimel’s testimony was inadmissible hearsay because it was based on communications and records from Peerless Manufacturing Company, and that he had no personal knowledge concerning the history of the handcuffs. The defendant acknowledges that he took no exception to the trial court’s ruling overruling his hearsay objection to Rimel’s testimony, but he urges this court to review his claim as plain error under Practice Book § 4185. We invoke the power to review a ruling of the trial court as plain error only in extraordinary circumstances “where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

In overruling the defendant’s hearsay objection, the trial court may have been of the opinion that there was a reasonable necessity for Rimel’s testimony and that because it relied on business records, it was supported by guarantees of reliability and trustworthiness equivalent to evidence admitted under the traditional hearsay exceptions. State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985). If that were the case the admission of Rimel’s testimony would not have been error at all. Id., 666. We cannot characterize as plain error an evidentiary ruling of the trial court, which may or may not have been correct. In the absence of an exception, we will not further review the trial court’s ruling. See Practice Book §§ 288, 3060F (now § 4065); State v. Orsini, 187 Conn. 264, 269, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); State v. Miller, 186 Conn. 654, 672, 443 A.2d 906 (1982).

V

The defendant next claims that the trial court erred in excluding the results of the defendant’s polygraph examination. He acknowledges, as he must, that this court consistently has held polygraph evidence to be inadmissible. State v. Saia, 172 Conn. 37, 42, 372 A.2d 144 (1976); State v. Mitchell, 169 Conn. 161, 169, 362 A.2d 808 (1975); Molino v. Board of Public Safety, 154 Conn. 368, 376-77, 225 A.2d 805 (1966). He argues, however, that prior decisions of this court that address the admissibility of polygraph evidence left open the possibility for a “re-evaluation” or “alteration” of this rule in an appropriate case; State v. Saia, supra; State v. Mitchell, supra; and that this is such a case. We disagree.

We recently noted in Moore v. McNamara, 201 Conn. 16, 30, 513 A.2d 660 (1986), a case which involved the admissibility of human leucocyte antigen test (HLA) results to establish paternity, that “[t]he prevailing standard for judicial recognition of the probative value of scientific evidence has been carefully delineated in Frye v. United States, 293 F. 1013 (D.C. App. 1923): ‘Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ Id., 1014. This court has used the Frye standard in appraising the admissibility of evidence derived from innovative scientific techniques. See, e.g., State v. Tomanelli, 153 Conn. 365, 370, 216 A.2d 625 (1966) (‘general scientific acceptance of the Doppler-shift principle upon which police radar operates’); cf. Molino v. Board of Public Safety, [supra, 376] (‘unreliability of the polygraph test has resulted in its universal rejection’).”

Despite this recent statement by this court, the defendant argues that the modern trend is away from the Frye test toward a “substantial acceptance” test, which would permit the trial judge to exercise discretion in admitting polygraph evidence. While it is true that a number of jurisdictions, both federal and state, permit such discretion in admitting polygraph results pursuant to a stipulation; see, e.g., Brown v. Darcy, 783 F.2d 1389, 1394 (9th Cir. 1986); United States v. Black, 684 F.2d 481, 482-84 (7th Cir.), cert. denied, 459 U.S. 1043, 103 S. Ct. 463, 74 L. Ed. 2d 613 (1982); United States v. Alexander, 526 F.2d 161, 170 (8th Cir. 1975); State v. Bullock, 262 Ark. 394, 397, 557 S.W.2d 193 (1977); the defendant concedes that only a small number of jurisdictions have permitted such discretion in the absence of a stipulation between the parties. See, e.g., United States v. Webster, 639 F.2d 174, 186 (4th Cir. 1981); United States v. Glover, 596 F.2d 857, 867 (9th Cir.), cert. denied, 444 U.S. 860, 100 S. Ct. 124, 62 L. Ed. 2d 81 (1979); State v. Dorsey, 88 N.M. 184, 185, 539 P.2d 204 (1975); cf. Commonwealth v. Vitello, 376 Mass. 426, 427-57, 381 N.E.2d 582 (1978). The traditional rule, as the state points out, however, is that polygraph results are per se inadmissible when offered by either party, either as to substantive evidence or as related to the credibility of the witness. See, e.g., United States v. Hilton, 772 F.2d 783, 785 (11th Cir. 1985); United States v. Nelson, 606 F. Sup. 1378, 1384-85 (S.D.N.Y. 1985); Pulakis v. State, 476 P.2d 474, 479 (Alaska 1970); People v. Anderson, 637 P.2d 354, 358 (Colo. 1981); Guesfeird v. State, 300 Md. 653, 658, 480 A.2d 800 (1984); Commonwealth v. Rodriguez, 343 Pa. Super. 486, 495, 495 A.2d 569 (1985); Sabag v. Continental South Dakota, 374 N.W.2d 349, 352 (S.D. 1985); State v. Dean, 103 Wis. 2d 228, 263-80, 307 N.W.2d 628 (1981); see C. McCormick, Evidence (3d Ed.) § 206, pp. 628-29 n.44.

“The questionable accuracy of polygraph examinations is the most persuasive reason for excluding polygraph evidence.” Brown v. Darcy, supra, 1395; see generally C. McCormick, supra, § 206, pp. 626-27. The overall reliability of such evidence is still widely debated; C. McCormick, supra; and we see no reason to depart from the rule first announced in Molino v. Board of Public Safety, supra, that polygraph evidence is inadmissible.

VI

The defendant next claims that the evidence was insufficient to establish beyond a reasonable doubt that he committed the crimes charged. He contends, therefore, that the trial court erred when it denied his motion to dismiss at the end of the state’s case, and when it denied his motion for a judgment of acquittal notwithstanding the verdict.

“When a verdict is challenged because of insufficient evidence, the issue is whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980). In reviewing the sufficiency of the evidence supporting a jury verdict, this court must construe that evidence in the most favorable manner reasonably possible to support the jury verdict. State v. Rodriquez, 200 Conn. 685, 688, 513 A.2d 71 (1986). “The relevant question in our review ‘ “ ‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)].’ (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).” State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985).’ State v. Brown, 199 Conn. 14, 23, 505 A.2d 690 (1986).” State v. Rodriquez, supra.

In this case, the eyewitness’ identification of the defendant as the assailant, if believed by the jury, was sufficient to support the jury’s verdict. In addition to her testimony, however, the jury could reasonably have found that the following circumstantial evidence linked the defendant to the crimes. The handcuffs used were of a brand name supplied to federal correctional institutions, and the defendant in August, 1981, was employed at the federal correctional institution in Danbury, and had formerly been employed at the federal correctional institution in Atlanta, Georgia. The handcuffs were placed on William’s wrists very quickly by an assailant who used only one hand to accomplish the task, and the defendant was very familiar with the use of handcuffs. The defendant reported for work the night of the assault with abrasions across his knuckles and on the back of his hands, and with scratch marks on his arms, neck and face. The assailant initially identified himself as a policeman, the type of occupation in which the defendant was employed from 1968 to 1973. Also, an anonymous telephone call was placed the night of the crimes to the New York state police substation in Brewster, New York, by a man who said he had just killed two people behind the church on Clapboard Ridge Road in Danbury. The Brewster state police substation serves Patterson, New York, where the defendant resided. Further, on the occasion when Elizabeth recognized the defendant in Bradlees it appeared as though he was attempting to avoid being seen. Finally, the defendant admitted being familiar with the area where the assaults had occurred.

In view of the eyewitness identification and the circumstantial evidence adduced at the trial, we cannot say that the jury could not reasonably have concluded that the cumulative effect of the evidence was sufficient to prove beyond a reasonable doubt that the defendant was the perpetrator of the assaults in question. See State v. Rodriquez, supra, 692-93.

The defendant also claims that the state failed to prove beyond a reasonable doubt that the injuries suffered by William in the assault constituted “serious physical injury.” The state was required to prove William sustained “serious physical injury” in order to obtain a conviction of assault in the first degree on the second count of the information. See General Statutes § 53a-59 (a) (1). “Serious physical injury” is defined in General Statutes § 53a-3 (4) as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”

There was evidence before the jury that William had been strangled until he lost consciousness, that he was bloody and delirious, and that he had severe lacerations on his face. A physician, who had examined William in the emergency room, testified that William had mulitiple abrasions and contusions, that his face and neck were suffused purple, that the area around his eyes was swollen, and that “the white part around his eye was totally red, filled with blood.” In addition, he suffered a laceration of the soft palate, which required surgical repair. William spent a week at Danbury Hospital as a result of his injuries. Further, a plastic surgeon testified that, in his opinion, the injuries to William could cause serious disfigurement and serious impairment of health.

Whether William suffered a “serious physical injury” was a question of fact for the jury. State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978); State v. Jeustiniano, 172 Conn. 275, 281, 374 A.2d 209 (1977); State v. McCulley, 5 Conn. App. 612, 615, 501 A.2d 392 (1985). In reviewing the sufficiency of the evidence concerning this element of assault in the first degree, our task is to construe the evidence in the light most favorable to sustaining the jury’s verdict, and then to determine whether any rational trier of fact could have found that the harm suffered rose to the level of a “serious physical injury” under the statute. State v. Rossier, supra; State v. Jeustiniano, supra, 281-82; State v. McCulley, supra. We cannot substitute our judgment for that of the jury. State v. Rodriquez, supra, 693. Despite the difficulty of drawing a precise line as to where “physical injury” leaves off and “serious physical injury” begins, in light of the evidence concerning the extent of William’s injuries, we cannot say as a matter of law that the jury could not reasonably have found that he suffered “serious physical injury.” State v. Rossier, supra; State v. Jeustiniano, supra, 282; State v. McCulley, supra.

VII

Finally, the defendant claims that the trial court’s instructions concerning circumstantial evidence “impermissibly diminished or diluted the requisite constitutional standard of proof of guilt beyond a reasonable doubt.” Initially, we note that ordinarily the defendant’s failure to except to this portion of the court’s charge would preclude review. Practice Book §§ 854, 4185 (formerly § 3063). We will review his claim, however, because it implicates the fundamental constitutional right that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Whelan, 200 Conn. 743, 755-56, 513 A.2d 86, cert. denied, 479 U.S. , 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The trial court instructed the jury that it could draw inferences provided: “First, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable [doubt], and secondly, that the inference asked to be drawn is not only logical and reasonable but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.” This instruction is virtually identical to the jury instruction which resulted in reversible error in two cases recently decided by this court. State v. Whelan, supra, 755-58; State v. Rodgers, 198 Conn. 53, 56-59, 502 A.2d 360 (1985). In both Rodgers and Whelan, however, the disputed and decisive issue at trial was intent, an element of the crimes charged, and an element characteristically proven by circumstantial evidence. State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); State v. Farrar, 7 Conn. App. 149, 155, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986). This court concluded that the jury, having been told that an inference may be drawn when “it is more probable than not that the fact to be inferred is true,” was permitted to draw an inference of intent, the ultimate fact in issue, and an element of the crime charged, by the erroneous probability standard. State v. Whelan, supra, 758.

In this case, on the other hand, as in State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986), and State v. Farrar, supra, where similar instructions did not result in reversal, the only real question at trial was the identity of the perpetrator of the crimes charged. The state’s case, while bolstered by circumstantial evidence, was based primarily on the eyewitness identification of the defendant as the assailant by one of the victims of the assault. Identity, not intent, was the disputed issue in the case. State v. Reddick, supra, 133. The trial court’s instructions must be read with reference to the factual issues in the case. State v. Farrar, supra.

On the issue of identity the court instructed the jury: “I again emphasize that the burden of proof on the prosecutor extends to every element of the crime charged and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged in each count.” The trial court also charged several times that the defendant was presumed innocent and it was the state’s burden to prove all the elements of the crimes charged beyond a reasonable doubt.

Reading the trial court’s instructions as a whole, it is not reasonably possible that the jury was misled to believe that they were to apply any standard other than that of “beyond a reasonable doubt” in determining the guilt of the accused. State v. Reddick, supra, 132. Any error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Smith, 201 Conn. 659, 674, 519 A.2d 26 (1986).

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-59 (a) (1) provides in pertinent part: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       “[General Statutes] Sec. 1-25. FORMS OF oaths. The forms of oaths shall be as follows, to wit:
      * ** *
      “FOR PETIT JURORS IN CRIMINAL CAUSES.
      “You solemnly swear by the name of the ever-living God, that you will, without respect of persons or favor of any man, well and truly try, and true deliverance make, between the state of Connecticut and the prisoner at the bar, whom you shall have in charge, according to law and the evidence before you; your own counsel, and your fellows’, you will duly observe and keep; you will speak nothing, to any one, of the business or matters you have in hand, but among yourselves, nor will you suffer any one to speak to you about the same, but in court; so help you God.
      “voir dire.
      “You solemnly swear that you will well and truly answer such interrogatories as shall be put to you, under the direction of the court, not immediately relating to the merits of the cause now in question; so help you God. . . .”

       At trial Elizabeth testified that the person depicted in one of the “old photographs” of the defendant, which showed him in a casual pose standing with another person, was the man who had attacked her. She also testified that she had seen the photograph at some prior time, which she believed to be after April 1, 1982. This is apparently not the case, however, since there was no evidence that she viewed any photographs after April 1,1982. She also testified that she did not recognize the man depicted in the other “old photograph” of the defendant, which also showed him in a casual pose, and that she had no recollection of ever having seen the photograph before.

       The “old photograph” viewed by Elizabeth in January or February as part of a six photograph array portrays the defendant as radically different in appearance from the April 1,1982 photograph. Even at trial, with the defendant in the courtroom, Elizabeth was unable to select his photograph from that array.

       “In the meantime if anybody has heard about this case in the manner in which I just explained I would be glad to see you individually in my chambers, and I will have both counsel with me and the court reporter. That is because during a trial a judge cannot meet alone with any jurors for any reason. Okay.
      “I think that the first way, rather than have somebody get up and say something in front of 25 people, I think you might be a little more relaxed when you come in my chambers. Please, when you come in my chambers be candid with me. There is nothing formal about it. Just be yourself. . . .”

       “[Practice Book] Sec. 4185 (formerly Sec. 3063). 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. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving his objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”

       “Now, proof beyond a reasonable doubt does not mean that you have to have direct evidence supporting a fact, you may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied. First, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable [doubt], and secondly, that the inference asked to be drawn is not only logical and reasonable but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.
      “It is your right to draw inferences if you conclude that the facts you find proven reasonably establish other facts by reason and logic and are not the result of speculation, surmise or guesswork. If from the facts you find proven you reasonably do infer other facts you may then use the fact so inferred as a basis for a further inference that other facts exist, including facts going to establish the guilt or innocence of Mr. Miller.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Hartford Principals’ and Supervisors’ Association v. Mark R. Shedd, Commissioner of the Department of Education, et al.
    (12697)
    Peters, C. J., Healey, Shea, Callahan and F. Freedman, Js.
    Argued December 9, 1986
    decision released March 10, 1987

      William S. Zeman, with whom was Joel M. Ellis, for the appellant (plaintiff).

      Laurie Adler, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (named defendant).

      H. Maria Cone, assistant corporation counsel, with whom, on the brief, were Richard H. Goldstein, corporation counsel, and Anna V. Crawford, legal intern, for the appellee (defendant city of Hartford).

      Patrice A. McCarthy filed a brief for the Connecticut Association of Boards of Education as amicus curiae.
   Shea, J.

The dispositive issue in this appeal is whether mediation and binding arbitration procedures under the Teacher Negotiation Act are available to resolve contractual disputes between a school board and an employees’ union arising during the term of an existing contract. The plaintiff, Hartford Principals’ and Supervisors’ Association, unsuccessfully appealed to the Superior Court a declaratory ruling on two petitions it had filed with the commissioner of education in which the commissioner held that the mediation and arbitration provisions of the act apply only to the process of bargaining for a new contract. The plaintiff has filed a combined appeal from the judgments of the trial court affirming the ruling on each petition. We find no error.

The defendant Hartford Board of Education (board) and the plaintiff Hartford Principals’ and Supervisors’ Association (union) entered into a collective bargaining agreement effective July 1,1975, to June 30,1978. During the term of the agreement, David Mulholland, a Hartford school principal, complained that the board had unilaterally assigned him additional duties on a long-term basis that modified his basic job responsibilities. The union sought to negotiate additional pay for Mulholland under article IV, § 12, of the collective bargaining agreement, which provided that “[w]henever the Superintendent or the Board of Education modifies the basic job responsibilities and duties of a unit position on a regular, long-term basis, in excess of 10 consecutive working days, the [union] shall have the right to negotiate and re-evaluate the grid placement of that position.” The board declined this request. On August 15, 1978, the state board of labor relations termed the board’s refusal to negotiate a breach of contract and ordered collective bargaining to begin immediately in accordance with the contract. The parties then negotiated for approximately one month without reaching agreement. Early in the term of the subsequent collective bargaining agreement in effect from July 1,1978, to June 30,1982, the same parties again engaged in mid-term bargaining without resolution concerning a list of nine matters that allegedly involved changes in the conditions of employment of school administrators.

In an attempt to resolve both bargaining impasses, the union, in October, 1979, and again in November, 1979, requested the defendant state department of education to begin the process of mediation and binding arbitration, invoking General Statutes § 10-153Í of the Teacher Negotiation Act. General Statutes §§ 10-153a through 10-153n. A designee of the defendant commissioner of education (commissioner) refused, asserting that the impasse resolution procedures available under § 10-153Í do not apply to mid-term disputes. The union then filed for each mid-term dispute a petition for a declaratory ruling with the state department of education, seeldng a contrary determination. Following the commissioner’s declaratory ruling on both disputes that “midstream” negotiations are not within the purview of the mediation and arbitration provisions of § 10-153f, the union appealed the ruling in each instance separately to the Superior Court, which, on February 5, 1985, upheld both rulings. A combined appeal from the judgments was filed.

I

A

Before reaching the merits of the union’s appeal from the judgments of the trial court, we note that the collective bargaining agreements under which both midterm disputes arose have since expired and have been succeeded, in 1982 and again in 1985, by new contracts. Hence, we consider, at the outset, the threshold question of whether the present appeal is moot. See Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979). “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Connecticut State Employees Assn. v. AFSCME, 188 Conn. 196, 199, 448 A.2d 1341 (1982); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 440 A.2d 310 (1982).” State v. Macri, 189 Conn. 568, 569, 456 A.2d 1203 (1983); see also Shays v. Local Grievance Committee, 197 Conn. 566, 571-74, 499 A.2d 1158 (1985). Although not raised by any party to this appeal, the issue of jurisdiction may be examined by this court on its own motion. Practice Book § 3110 (now § 4056); Kulmacz v. Kulmacz, 177 Conn. 410, 412, 418 A.2d 76 (1979); LaReau v. Reincke, 158 Conn. 486, 494, 264 A.2d 576 (1969).

“The law recognizes that the actions of parties themselves, by settling their differences, can cause a case to become moot.” Waterbury Hospital v. Connecticut Health Care Associates, supra, 251. “The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect .... It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court . . . to grant [the plaintiff] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.” Mills v. Green, 159 U.S. 651, 653, 16 S. Ct. 132, 40 L. Ed. 293 (1895); see Kulmacz v. Kulmacz, supra; Water bury Trust Co. v. Porter, 130 Conn. 494, 498, 35 A.2d 837 (1944); cf. D. Kates & W. Barker, “Mootness in Judicial Proceedings: Toward a Coherent Theory,” 62 Calif. L. Rev. 1385, 1403 (1974).

It might have been possible for the union to seek a resolution of its claim for mid-term dispute negotiations by seeking a provision specifically allowing negotiation and ultimate arbitration of mid-term disputes in contracts following those that have expired under which the disputes presently involved have arisen. We were assured at oral argument however that no such provision has been included in successor contracts. The failure of a party to pursue alternative means of dispute resolution does not render moot the issues raised in a legal action, though it may be of concern in deciding whether he is entitled to pursue that action. In any event, the issue of the construction of General Statutes § 10-153Í, under which the union claims a statutory right to mediation and arbitration of mid-term disputes, would not have been resolved during such bargaining.

We conclude that even if we were to regard the viability of the present claim as having been affected by the expiration of the collective bargaining agreement, this case presents a situation “capable of repetition, yet evading review.” See Waterbury Hospital v. Connecticut Health Care Associates, supra, 253; Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981). In Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975), the United States Supreme Court, citing its review of the historical development of the mootness doctrine in Sosna v. Iowa, 419 U.S. 393, 397-403, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975), concluded that “in the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was reasonable expectation that the same complaining party would be subjected to the same action again.” See Connecticut Foundry Co. v. International Ladies Garment Workers Union, supra, 20-21.

The present case satisfies both elements. That midterm disputes between the union and the board are likely to arise again is not an unreasonable assumption. See, e.g., L. Bingham, “Mid-Term Bargaining Disputes and Binding Interest Arbitration For Public Sector Employees,” 17 Conn. L. Rev. 365, 366 n.7 (1985); but cf. Connecticut State Employees Assn. v. AFSCME, supra, 200-201; Waterbury Hospital v. Connecticut Health Care Associates, supra, 253-55. A bargaining agreement of the usual two or three year duration would probably expire before any claims engendered by such mid-term disputes had been fully litigated. Because the question before this court is therefore not “purely academic”; Delevieleuse v. Manson, supra, 436; Connecticut Foundry Co. v. International Ladies Garment Workers Union, supra, 19; we decline to dismiss the present appeal because of mootness.

B

A further issue that we similarly consider sua sponte; Practice Book § 3110 (now § 4056); is whether the union’s failure to exhaust available remedies under the grievance procedures of the collective bargaining agreement deprives us of jurisdiction over the subject matter. See School Administrators Assn. v. Dow, 200 Conn. 376, 382-83, 511 A.2d 1012 (1986); Cislo v. Shelton, 35 Conn. Sup. 645, 650, 405 A.2d 84 (1978). The agreement between the board and the union provided, in artiele V, § C, that “[i]n the event a grievance involving the application or interpretation of the specific provisions of this Agreement shall not have been settled . . . the [union] may submit such grievance to the American Arbitration Association for arbitration.” It is arguable, therefore, that the union should more properly have submitted its mid-term disputes to the contractually permitted grievance procedure.

We recently adopted the federal rule that “ ‘the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement’ before resorting to the courts.” School Administrators Assn. v. Dow, supra, 381, quoting Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Republic Steel Corporation v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965). We observed that the general assembly in enacting the Teacher Negotiation Act “clearly intended that it is ‘not only permissible but desirable’ for grievances between employees . . . and the employer ... to be settled through contract grievance-arbitration procedures.” School Administrators Assn. v. Dow, supra. While adhering to this reasoning, we nevertheless decline to dismiss this appeal for lack of subject matter jurisdiction.

In School Administrators Assn. v. Dow, supra, 382, the plaintiffs sought to enjoin the defendant officials from discharging certain school administrators, alleging that the defendants had acted unfairly, and had violated the bargaining agreement, state statutory procedures and certain of the plaintiffs’ constitutional rights. We noted that “the complaint is not unlike those usually brought for employee grievances and essentially seeks relief for harms occurring in the context of an employer-employee relationship. See Cahill v. Board of Education, 198 Conn. 229, 236-39, 502 A.2d 410 (1985). Given the broad wording of the grievance provisions of the collective bargaining agreement, we have no doubt that the relief requested in this case is within the scope of the contractual remedies available.” School Administrators Assn. v. Dow, supra, 382-83. The action in the present case, by contrast, is a petition for a declaratory ruling interpreting a state statute and seeks no relief for individual members of the union.

We said in School Administrators Assn. v. Dow, supra, 383 n.5, that “[t]he plaintiffs’ action could be maintained if the agreement did not make the grievance-arbitration process the exclusive remedy for the parties. Republic Steel Corporation v. Maddox, [supra, 657-58].” As stated above, grievances under the parties’ contract in the present case were arbitrable when they involved “the application or interpretation of the specific provisions of this Agreement . . . The agreement defined “grievance,” however, in article V, § 1, to mean not only a complaint that “there is a misinterpretation or misapplication of the specific provisions of the manual or of this Agreement,” but also a complaint “by an employee that he/she has been subjected to arbitrary, capricious or discriminatory policy or practice or that his/her rights under the specific language of the manual or this Agreement have been violated.” If mediation and arbitration under the act were available to the union as a method of resolving the mid-term disputes that have arisen, the union would be entitled to pursue issues beyond those involving interpretation of the contract language or relating to claims that an employee has been subjected to some “arbitrary, capricious or discriminatory policy or practice,” thus falling within the definition of “grievance.” Although the dispute involving Mulholland that arose under the 1975-1978 contract may well qualify as a grievance, as it appears to involve primarily issues of contract interpretation, the remaining disputes under the 1978-1982 contract cannot readily be classified as “grievances” within the contract definition on the basis of the record available to us. We conclude that the union is not barred from pursuing this action because it has failed to resort to the contract grievance procedure.

II

We now turn to the merits of the union’s claim that the trial court, Corrigan, J., erred in dismissing its appeal from the declaratory ruling by the commissioner that mid-term disputes were not covered by the mediation and arbitration provisions of General Statutes § 10-153Í of the Teacher Negotiation Act. The union contends that because “ ‘arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself’ Policemen’s & Firemen’s Retirement Board v. Sullivan, 173 Conn. 1, 9, 376 A.2d 399 (1977), quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); the duty to negotiate as defined by General Statutes § 10-153e (d) includes the duty to arbitrate. We are not persuaded by this argument.

The fallacy underlying the union’s position is the assumption that the “duty to negotiate with respect to salaries and other conditions of employment” imposed by § 10-153d (b) is an equivalent to the duty “to negotiate in good faith,” which is broadly defined in § 10-153e (d). The former is the avenue to the ultimate resolution of unsettled differences concerning a new collective bargaining agreement by binding arbitration pursuant to § 10-153Í, while the latter describes the duty “to negotiate in good faith,” the breach of which is a prohibited practice under § 10-153e (b) and (c) but does not trigger arbitration.

Section 10-153e (d) defines the term “to negotiate in good faith” as “the performance of the mutual obligation of the board of education or its representatives or agents and the organization designated or elected as the exclusive representative for the appropriate unit to meet at reasonable times, including meetings appropriately related to the budget-making process, and to participate actively so as to indicate a present intention to reach agreement with respect to salaries and other conditions of employment, or the negotiation of an agreement, or any question arising thereunder . . . . ” The Teacher Negotiation Act “is essentially patterned on the National Labor Relations Act so that federal judicial interpretations of the federal act are of great assistance and persuasive force in the interpretations of it. West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 578-79, 295 A.2d 526 (1972).” Board of Education v. Connecticut State Board of Labor Relations, 190 Conn. 235, 241, 460 A.2d 1255 (1983). The United States Supreme Court has asserted that under the federal act “the duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labor-management relations during the term of an agreement.” NLRB v. Acme Industrial Co., 385 U.S. 432, 436, 87 S. Ct. 565, 17 L. Ed. 2d 495 (1967). The definition of the duty “to negotiate in good faith” contained in § 10-153e (d), which obligates the parties to negotiate on the subject of not only a new collective bargaining agreement but also “any question arising thereunder,” the very phrase in the federal act upon which the United States Supreme Court focused in Acme; see 29 U.S.C. § 158 (d); warrants a similar interpretation where that definition is applicable.

The duty to negotiate mid-term disputes with the attendant consequence of binding arbitration pursuant to § 10-153Í, however, is another matter. It would be inconsistent with the provision of § 10-153e (d) that the obligation to negotiate in good faith “shall not compel either party to agree to a proposal or require the making of a concession” to hold that the duty to negotiate under § 10-153d (b), which entails the consequence of compulsory arbitration if no contract settlement is reached, is congruent with the definition of good faith negotiation in § 10-153e (d). Section 10-153e (d) expressly restricts the application of its definition of “to negotiate in good faith” to “this section, sections 10-153a to 10-153c, inclusive, and section 10-153g . . . .” The sections of the Teacher Negotiation Act that deal with mediation and binding arbitration, §§ 10-153d and 10-153Í, are excluded from the purview of § 10-153e (d) and do not refer to a duty “to negotiate in good faith.” Rather, § 10-153d (b) states that the board and the union “shall have the duty to negotiate with respect to salaries and other conditions of employment about which either party wishes to negotiate.” Language that would suggest a duty to negotiate a midterm “question arising thereunder” is conspicuously absent from § 10-153d. “The meaning to be given a statute is determined by legislative intent and that legislative intent must be determined by language actually used in the legislation. Knoll v. Kelley, 142 Conn. 592, [596], 115 A.2d 678 [1955].” Eason v. Welfare Commissioner, 171 Conn. 630, 634, 370 A.2d 1082 (1976), cert. denied, 432 U.S. 907, 97 S. Ct. 2953, 53 L. Ed. 2d 1079 (1977). Thus, the subject matter of the negotiations mandated by § 10-153d, which prescribes arbitration if the legislative body of the local or regional school district rejects the contract resulting from such negotiations; General Statutes § 10-153d (b) and (c); does not expressly include mid-term disputes.

Section 10-153Í sets forth the mechanics of the mediation and arbitration procedures under the Teacher Negotiation Act. It provides a timetable based entirely on the municipality’s budget submission date. Negotiations over-salaries and other conditions of employment must begin “not less than one hundred eighty days prior to the budget submission date.” General Statutes § 10-153d (b). If the parties have been unable to reach an agreement, they must initiate mediation at least 110 days prior to that date. General Statutes § 10-153Í (b). On the fourth day following the end of mediation, or on the eighty-fifth day before the budget submission date, whichever is sooner, the parties must either report their settlement to the commissioner or enter binding arbitration. General Statutes § 10-153Í (c) (1); see General Statutes § 10-153Í (c) (4). Further, a written notice of the date, time and place of the arbitration hearing must be sent by the arbitration panel not only to the parties, but also “to the fiscal authority having budgetary responsibility or charged with making appropriations for the school district.” General Statutes § 10-153Í (c) (2).

The plaintiff argues that the legislature designed a timetable for mediation and arbitration merely “to secure order, system and dispatch in [the] proceedings . . . . ” “Legislative provisions designed to secure order, system and dispatch in proceedings are ordinarily held to be directory where, as here, they are stated in affirmative terms or, to express it differently, are unaccompanied by negative words.” Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956). “Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.” Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970).

We agree with the defendants’ response that if the time limits in the act were intended solely to move the dispute resolution process along, there would be no need to refer to the budget submission date. The legislature could simply have provided that failed negotiations would be followed within a specified period by mediation, and similarly that arbitration would have to begin within a certain time frame thereafter. If we were to adopt the union’s interpretation, we would be compelled to impute to the legislature the needless step of incorporating a meaningless phrase, “the budget submission date.” “This we cannot do. No word in a statute should be treated as superfluous, void or insignificant unless there are impelling reasons, not here discernible, why this principle cannot be followed.” General Motors Corporation v. Mulquin, 134 Conn. 118, 126, 55 A.2d 732 (1947). A reasonable interpretation of § 10-153Í that accounts for the significance of linking the mediation and arbitration of disputes to the budget submission date is that such disputes are intended to be limited to those naturally arising around the time of budget submission such as those pertaining to new collective bargaining agreements.

Section 10-153Í (b) states that if, on the 110th day prior to the budget submission date, “the parties have not reached agreement and have failed to initiate mediation, the commissioner shall order the parties . . . to commence mediation.” (Emphasis added.) Subsection (c) (1) of § 10-153Í continues that in the event no settlement is reached through mediation, the commissioner “shall” order the parties to designate an arbitrator within four days or on the eighty-fifth day prior to the budget submission date, whichever is sooner. This use of the word “shall,” “considered in conjunction with the use of the word ‘may’ in other sentences of the same statutory section, supports the conclusion that the legislature acted with complete awareness of their different meanings. Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978).” Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 505, 503 A.2d 1161 (1986). “Although the use of the word ‘shall’ does not invariably create a mandatory duty, because statutes must be construed as a whole to ascertain the legislative intention”; id., 505-506; we are persuaded that the time requirements of § 10-153Í, linked to the budget submission date, went to the essence of that provision’s purpose and were intended to be mandatory. See Zoning Board of Appeals v. Freedom of Information Commission, supra, 503-504; Gallup v. Smith, 59 Conn. 354, 358, 22 A. 334 (1890). The Teacher Negotiation Act thus provides mediation and binding arbitration only in accordance with mandatory time sequences related to the budget submission date. We conclude that our legislature did not intend mid-term disputes to be within the purview of such impasse resolution procedures.

The legislative history of the act buttresses our conclusion. In the debate over No. 76-403 of the 1976 Public Acts, the Connecticut Education Association advocated the adoption of binding arbitration provisions; see Conn. Joint Standing Committee Hearings, Education, Pt. 3, 1976 Sess., pp. 696-705, statement of Thomas Mondani, Executive Director, Connecticut Education Association; but at no point suggested that the proposed procedures would apply to disputes other than those involving new contracts. The amended bill that passed in both houses of the General Assembly provided for mediation and advisory arbitration only. Representative Howard Klebanoff explained the amended bill thus: “The bill does not provide final offer binding arbitration. It does define such things as budget submission day, and it does provide, therefore, various time tables for the parties to come together to try to arrive at a contract both for mediation and arbitration. Another thing it does is it requires, for example, members of the Boards of Education to meet and confer with the fiscal authority of their town before negotiations begin to develop an understanding of the town’s fiscal situation.” 19 H.R. Proc., Pt. 8, 1976 Sess., pp. 3205-3206; see generally P. Adomeit, “The 1976 Amendments to the Act Governing Collective Bargaining Between Teacher Organizations and Boards of Education in Connecticut: An Appraisal,” 9 Conn. L. Rev. 545, 558-62 (1977).

Number 79-405 of the 1979 Public Acts incorporated “last best offer interest arbitration” into the act. One commentator noted that “all testimony was limited to the problem of impasse in contract negotiations .... The clear intent of the legislature was to give teachers binding arbitration in lieu of the right to strike .... [NJeither proponents nor opponents ever suggested that these impasse resolution procedures would be available to resolve a dispute that did not concern the negotiation of a full collective bargaining agreement.” L. Bingham, “Mid-term Bargaining Disputes and Binding Interest Arbitration for Public Sector Employees,” 17 Conn. L. Rev. 365, 372-76 (1985). For example, Senator Lawrence DeNardis, referring to teachers, stated that the proposed bill “evens their hand with respect to this important process that occurs once every year or once every two or three years.” 22 S. Proc., Pt. 8, 1979 Sess., p. 2732.

The mediation and arbitration procedure provided in § 10-153f applies only when any local or regional board of education “cannot agree with the exclusive representatives of a teachers’ or administrators’ unit after negotiation concerning the terms and conditions of employment applicable to the employees in such unit.” General Statutes § 10-153Í (b). In West Hartford Edu cation Assn., Inc. v. DeCourcy, supra, 587, this court interpreted the identical language of General Statutes (Rev. to 1972) § 10-153f as concerning “the making of a contract between the board of education and the teachers’organization . . . .” In the present case, the commissioner relied in part on this dictum from our decision in DeCourcy in his declaratory ruling that the arbitration procedure prescribed by § 10-153f “is limited to negotiations of contracts.” This is not an appropriate case for applying an exception to the well established principle that courts should “accord great deference to the construction given the statute by the agency charged with its enforcement.” Corey v. Avco-Lycoming Division, 163 Conn. 309, 326, 307 A.2d 155 (1972) (Loiselle, J., concurring), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); Board of Education v. Connecticut State Board of Labor Relations, 190 Conn. 235, 241, 460 A.2d 1255 (1983). The trial court was correct in dismissing the plaintiff’s appeal from the declaratory ruling of the commissioner of education.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 10-153Í provides in part: “(b) If any local or regional board of education cannot agree with the exclusive representatives of a teachers’ or administrators’ unit after negotiation concerning the terms and conditions of employment applicable to the employees in such unit, either party may submit the issues to the commissioner for mediation. On the one hundred tenth day prior to the budget submission date, the commissioner shall order the parties to report their settlement. If, on such one hundred tenth day, the parties have not reached agreement and have failed to initiate mediation, the commissioner shall order the parties to notify the commissioner of the name of a mutually selected mediator and to commence mediation. . . .
      “(c) (1) On the fourth day next following the end of the mediation session or on the eighty-fifth day prior to the budget submission date, whichever is sooner, the commissioner shall order the parties to report their settlement of the dispute or, if there is no settlement, to notify the commission of the name of the single arbitrator mutually selected by them or shall notify the commissioner of the name of the arbitrator selected by each of them. . . .
      “(2) The chairperson of the arbitration panel or the single arbitrator shall set the date, time and place for a hearing to be held in the school district between the seventh and fifteenth day, inclusive, after such chairperson or such single arbitrator is designated. At least five days prior to such hearing, a written notice of the date, time and place of the hearing shall be sent to the board of education and the representative organization which are parties to the dispute, and, if a three-member arbitration panel is selected or designated, to the other members of such panel. Such written notice shall also be sent to the fiscal authority having budgetary responsibility or charged with making appropriations for the school district, and a representative designated by such body may be heard at the hearing as part of the presentation and participation of the board of education. . . .
      “(3) The hearing may, at the discretion of the arbitration panel or the single arbitrator, be continued but in any event shall be concluded within twenty-five days after its commencement.
      “(4) After hearing all the issues, the arbitrators or the single arbitrator shall, within twenty days, render a decision in writing, signed by a majority of the arbitrators or the single arbitrator, which states in detail the nature of the decision and the disposition of the issues by the arbitrators or the single arbitrator. The written decision shall include a narrative explaining the evaluation by the arbitrators or the single arbitrator of the evidence presented for each item upon which a decision was rendered by the arbitrators or the single arbitrator. . . . The decision of the arbitrators or the single arbitrator shall be final and binding upon the parties to the dispute. The decision of the arbitrators or the single arbitrator shall incorporate those items of agreement the parties have reached prior to its issuance. At any time prior to the issuance of a decision by the arbitrators or the single arbitrator, the parties may jointly file with the arbitrators or the single arbitrator, any stipulations setting forth contract provisions which both parties agree to accept. The factors to be considered by the arbitrators or the single arbitrator in arriving at a decision shall include: (A) The negotiations between the parties prior to arbitration; (B) the public interest and the financial capability of the school district; (C) the interests and welfare of the employee group; (D) changes in the cost of living; (E) the existing conditions of employment of the employee group and those of similar groups and (F) the salaries, fringe benefits, and other conditions of employment prevailing in the state labor market. The parties shall submit to the arbitrators or the single arbitrator their respective positions on each individual issue in dispute between them in the form of a last best offer. The arbitrators or the single arbitrator shall resolve separately each individual disputed issue by accepting the last best offer thereon of either of the parties, and shall incorporate in a decision each such accepted individual last best offer. . . .”

       Although not raised in this appeal, the issue of mootness was litigated in the trial court upon the defendants’ motions to dismiss. The defendants contended that because the union had the right but failed to negotiate and arbitrate during new contract negotiations both the disputes that remained unresolved as well as a clause allowing midstream arbitration, it had waived its claims, effectively rendering its appeal from the commissioner’s declaratory ruling moot. The trial court, Hammer, J., denied the defendants’ motions, stating: “It is only where there is no possibility that a party has suffered or will suffer injury from the ruling which is the subject of his appeal that the court should not entertain it.” See Waterbury Trust Co. v. Porter, 130 Conn. 494, 499, 35 A.2d 837 (1944).

       “In last best offer interest arbitration, parties to a dispute submit their proposals as contract language and present evidence of past practice, comparability with surrounding towns, the cost of living, and the employer’s ability to pay for proposed wage and benefits improvements. A single arbitrator or a tripartite panel then decides which party’s proposal will become part of the contract. The arbitrator’s decision is final. Appeal is available only on very narrow grounds.” L. Bingham, “Mid-term Bargaining Disputes and Binding Interest Arbitration for Public Sector Employees,” 17 Conn. L. Rev. 365, 366 n.ll (1985).