author: Callahan, J.

text:
    State of Connecticut v. Roy A. King
    (13727)
    Shea, Callahan, Glass, Hull and Borden, Js.
    Argued September 28—
    decision released December 11, 1990

      David J. Burke, special public defender, with whom were Pamela K. Elkow and, on the brief, Peter A. Stroili, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Roy Anthony King, was charged in a substitute information with the crimes of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), arson in the first degree in violation of General Statutes § 53a-lll (a) (2), and attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a). He was found guilty by a jury of all three counts of the substitute information and was sentenced by the trial court to consecutive terms of imprisonment totaling forty years.

The jury reasonably could have found the following facts. The charges against the defendant arose out of an incident that occurred in the C cell block at the Bridgeport Community Correctional Center in the early morning hours of June 20, 1988. At about 3:10 a.m. on that date, correctional officers found cell eleven in C block ablaze and its occupant Keith Commerford on fire. The door to Commerford’s cell was tied shut with a bed sheet so that Commerford was unable to exit. As a result of the fire and his inability to escape, Com-merford sustained first and third degree burns over 60 percent of his body. The defendant occupied cell thirteen in the same cell block in which Commerford was housed.

A search of Commerford’s cell after the fire disclosed a wad of toilet paper, a partially burned matchbook and burned newspapers and clothing amongst the debris. A liquid, nonpetroleum based accelerant was used to start and fuel the fire. The defendant was familiar with the flammable potential of an aerosol spray disinfectant that was available to the inmates for cleaning purposes. This particular disinfectant had an alcohol base and, if sprayed into a container, became a liquid that, if ignited, would burn with a blue flame. The flames in Commerford’s cell were described as blue in color by the witnesses to the fire.

Just prior to the fire, the defendant was involved in a dispute with Commerford because he believed that Commerford had “snitched” to Carl Zelinsky, another inmate, that the defendant had stolen a handmade greeting card that was Zelinsky’s property. Zelinsky and Commerford confronted the defendant in his cell about the card. Thereafter, the defendant called Com-merford a “snitch,” told him to “watch his back,” and threatened to “get” him. Subsequently, the defendant told another inmate, Carl Barnes, that “he was going to bum up the [Commerford’s] cell that night . . . with toilet paper or something.”

Although the entrance to C block was locked, the individual cells were not locked and the inmates were free to use the bathroom at the end of the cell block corridor during the night. Other inmates of C block had, in fact, seen the defendant outside of his cell, in the common corridor, in the vicinity of the victim’s cell prior to the time that they heard screams and saw fire emanating from cell eleven. Commerford, himself, testified that he saw King outside his cell when he was awakened by the fire.

The defendant claims on appeal that the trial court should not have: (1) admitted evidence that the defendant was involved in a fight with a witness in the courthouse during a lunch break on the last day of the trial or instructed the jury as it did regarding evidence of the fight; (2) denied his motion to dismiss or elect counts, and his motion for a new trial, or instructed the jury as it did regarding assault in the first degree and attempted murder, all of which resulted in an inconsistent jury verdict and the denial of his right to a fair trial; (3) denied his request during the cross-examination of state police officer John J. Buturla for a copy of Buturla’s report concerning his interviews with inmates of the Fairmont cell block of the Bridgeport Correctional Center; (4) denied his motion for acquittal that was based on the claimed failure of the state to present sufficient evidence to convict; or (5) allowed the victim to exhibit his injuries to the jury.

We agree with the defendant that a new trial is necessary on the assault and attempted murder charges because the verdicts that the jury returned on those two counts are inconsistent. We also conclude that a remand is necessary in order to determine the validity of the defendant’s third claim. We find the defendant’s other claims unpersuasive.

I

The defendant first claims that the trial court incorrectly admitted evidence on rebuttal that, during the trial, the defendant had been involved in a fight with a prosecution witness in the detention area of the Bridgeport Superior Court. He also claims that the trial court improperly instructed the jury regarding this rebuttal evidence.

A deputy sheriff, who supervised the detention area at the courthouse, testified on rebuttal that on the last day of the trial, after Pedro Nunez, a correctional center inmate, had testified for the state, the defendant and another inmate had fought with Nunez in a detention cell during the luncheon recess. The avowed purpose for which the evidence was offered by the state was to demonstrate a consciousness of guilt on the part of the defendant. The defendant did not object to the admission of the testimony concerning the fight at the time of trial or question its purpose at the time it was admitted.

An objection must be made and an exception taken in order to raise an evidentiary claim as a ground for error on appeal. Practice Book § 288; Ferreira v. Storms, 159 Conn. 259, 264, 268 A.2d 657 (1970); Skinner v. Skinner, 154 Conn. 107, 110, 221 A.2d 848 (1966). Because the defendant failed to object to what is clearly a question of the admissibility of the state’s evidence, we decline to consider his evidentiary claim. To rule otherwise would amount to trial by “ambuscade” of the trial judge. State v. Siemon, 172 Conn. 19, 20, 372 A.2d 140 (1976); State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95 (1960).

The defendant also contends that, even absent an objection to the admission of the evidence of the fight, we should consider his claim as “plain error” under Practice Book § 4185. That section provides that this court “may in the interests of justice notice plain error not brought to the attention of the trial court.” However, “[s]uch 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.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); State v. Miller, 202 Conn. 463, 483, 522 A.2d 249 (1987). This is simply not one of those situations. There is no plain error.

The defendant also contends that the trial court improperly commented on the fight in its instructions to the jury. Principally, he claims that the trial court preempted the function of the jury by telling the jurors that there was evidence in the case that the defendant and another prisoner “attacked” Nunez when there was no evidence in the record to support such a comment. The sheriff had, in fact, testified that he saw the defendant and another inmate “attacking Nunez.” Since that testimony was admitted without objection, the jury could give it such weight as it saw fit; State v. Rawls, 198 Conn. 111, 118, 502 A.2d 374 (1985); and the trial court was free to comment on it as long as the court did so fairly and did “not direct or advise the jury how to decide the matter. State v. Mullings, 166 Conn. 268, 274, 348 A.2d 645 (1974).” State v. Storlazzi, 191 Conn. 453, 465-66, 464 A.2d 829 (1983); see also State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985).

In its charge the trial court emphasized to the jury that it was within the jury’s province to decide the facts and that it was for the jurors to find whether in fact the fight had occurred, and to determine what weight, if any, to give it. The instruction did not direct or advise the jury how to decide the issue and fairly presented it to the jury in such a way that no injustice was done to the defendant. State v. Storlazzi, supra, 467. We find no merit to this claim.

II

The defendant next claims that he is entitled to a new trial because the trial court should not have instructed the jury that it could find him guilty of both attempted murder and assault in the first degree in violation of § 53a-59 (a) (3). He argues that the guilty verdicts thereafter returned on those two counts were legally and logically inconsistent and deprived him of due process of law. We agree that the defendant is entitled to a new trial on those two counts of the substitute information.

The jury’s verdict of guilty on the count of attempted murder required that the jury find that the defendant acted with the intent to cause the death of the victim. General Statutes §§ 53a-49 (a) (2) and 53a-54a (a). On the other hand, the jury’s verdict of guilty on the count of assault necessitated a finding that the defendant acted recklessly, and thereby created a risk of death to the victim. General Statutes § 53a-59 (a) (3). The intent to cause death required for a conviction of attempted murder, by definition, therefore, necessitated a finding that the defendant acted with the conscious objective to cause death. The reckless conduct necessary to be found for a conviction of assault under the subsection charged, however, required a finding that the defendant acted without such a conscious objective. State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986). To return verdicts of guilty for both attempted murder and assault in the first degree, therefore, the jury would have had to find that the defendant simultaneously acted intentionally and recklessly with regard to the same act and the same result, i.e., the injury to the victim. People v. Spears, 112 Ill. 2d 396, 403-404, 493 N.E.2d 1030 (1986); People v. O’Neil, 194 Ill. App. 3d 79, 550 N.E.2d 1090, 1098, appeal denied, Ill. 2d , 553 N.E.2d 400 (1990).

As is evident, however, the statutory definitions of “intentionally” and “recklessly” are mutually exclusive and inconsistent. “Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result.” State v. Beccia, supra, 4. Therefore, the transgression that caused the victim’s injuries was either intentional or reckless; it could not, at one and the same time, be both. Id.; People v. Lucas, 132 Ill. 2d 399, 442, 548 N.E.2d 1003 (1989); People v. Gallagher, 69 N.Y.2d 525, 529, 508 N.E.2d 909, 516 N.Y.S.2d 174 (1987); People v. Robinson, 145 App. Div. 2d 184, 186, 538 N.Y.S.2d 122 (1989), aff’d, 75 N.Y.2d 879, 553 N.E.2d 1021, 554 N.Y.S.2d 473 (1990). Where a determination is made that one mental state exists, to be legally consistent the other must be found not to exist. People v. Spears, supra; People v. Hoffer, 106 Ill. 2d 186, 195, 478 N.E.2d 335, cert. denied, 474 U.S. 847, 106 S. Ct. 139, 88 L. Ed. 2d 114 (1985). “By no rational theory could the jury have found the defendant guilty of both crimes.” People v. Gallagher, supra, 530; People v. O’Toole, 138 App. Div. 2d 639, 640, 526 N.Y.S.2d 223 (1988). Logically then, the jury verdicts convicting the defendant of two offenses each of which requires a mutually exclusive and inconsistent state of mind as an essential element for conviction cannot stand. Fuller v. United States, 407 F.2d 1199, 1223 (D.C. Cir. 1967), cert. denied, 393 U.S. 1120, 89 S. Ct. 999, 22 L. Ed. 2d 125 (1969); Thomas v. United States, 314 F.2d 936, 939 (5th Cir.), cert. denied, 375 U.S. 849, 84 S. Ct. 105, 11 L. Ed. 2d 76 (1963); People v. Carter, 193 Ill. App. 3d 529, 550 N.E.2d 25, 28 (1990); annot., 18 A.L.R.3d 259, 283.

Furthermore, at this point, we have no way of knowing whether a properly instructed jury would have found the defendant guilty of attempted murder or assault in the first degree. Setting aside one of the convictions, therefore, will not cure the failure of the trial court to instruct the jury properly. Milanovich v. United States, 365 U.S. 551, 555, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961); People v. Spears, supra, 407; People v. Gallagher, supra, 531; People v. Robinson, supra, 186. Moreover, it is not for this court, on appeal, to make a factual determination as to the defendant’s mental state at the time the alleged crime was committed. State v. Pollitt, 199 Conn. 399, 415, 508 A.2d 1 (1986); People v. Gallagher, supra, 530. The inconsistent verdicts, therefore, require that we vacate the defendant’s convictions of attempted murder and assault in the first degree and remand only those two counts for a new trial. United States v. Duz-Mor Diagnostic Laboratory, Inc., 650 F.2d 223, 226 n.3 (9th Cir. 1981); People v. Hoffer, supra, 195; People v. O’Neil, supra, 1101; People v. Coleman, 131 Ill. App. 3d 76, 80, 475 N.E.2d 565 (1985). Upon a retrial, if the evidence permits, the trial court may properly submit both counts to the jury but only in the alternative. Further, the trial court must instruct the jury that, depending on its findings of fact, it may convict the defendant of one count or the other, but not of both. People v. Spears, supra, 410; People v. O’Neil, supra, 1098; People v. Gallagher, supra, 530.

Ill

The defendant next claims that the trial court should not have denied his request, made during the cross-examination of state police officer John J. Buturla, for access to a copy of Buturla’s report concerning interviews that he conducted with inmates housed in the Fairmont cell block at the Bridgeport Community Correctional Center. The subject of the Fairmont interviews apparently arose because the victim had previously been an inmate of the Fairmont unit and had been transferred from that unit to the C cell block only shortly before the fire on June 20. Buturla, in response to the defendant’s question, stated that he had interviewed Fairmont inmates who had had contact with Commerford. He further stated that he “believed” that he had made out a report concerning those interviews but that he did not “believe” he had that report with him. The basis of the defendant’s claim for procurement of Buturla’s report was the defendant’s representation that the report was germane to Buturla’s direct examination, that it was Buturla’s “statement” under Practice Book § 749, and that he was entitled to that “statement” by virtue of Practice Book §§ 752 and 753. The state objected to the defendant’s request only on the ground that the report of Buturla’s interviews with the Fairmont inmates was irrelevant. The trial court, without ordering the production of Buturla’s report, and consequently, without conducting an in camera inspection thereof, or sealing it for inclusion in the record, denied the defendant’s request for the report on the ground that the subject of the report was not within the scope of the state’s direct examination.

This court is placed in a particularly difficult position because of the procedural posture of this claim. Although at trial the state objected to the defendant’s request for Buturla’s report only on the ground of relevancy, in its brief on appeal it also appears to argue that the report is not a “statement” under Practice Book § 749. Without the report in the record, however, we are unable to answer any questions concerning it. Because the state did not claim at trial that the report was not a “statement,” and the court did not rely on § 749 for its ruling denying the defendant access to the report, we can only assume that, but for its alleged irrelevancy and inapplicability to the direct examination, the report would have been ordered produced for the defendant’s use. State v. Gonzales, 186 Conn. 426, 434, 441 A.2d 852 (1982). This situation appears to be analogous to the Gonzales case cited above. In that case the trial court also denied the defendant access to a statement requested under Practice Book §§ 752 and 753. Furthermore, as here, the trial court did not conduct an in camera inspection of the requested document nor did it order the alleged statement sealed as an exhibit. Id., 431. In Gonzales, we concluded that the very purpose of an in camera inspection is to permit the trial court to exercise its judgment as to “whether a portion of the disputed statement may be suppressed because it ‘does not relate to the subject matter of the testimony of the witness.’ ” Id., 435. Further, we held that “[t]he provision for in camera inspection is, by the express terms of § 753, mandatory.” Id.; State v. Anonymous, 190 Conn. 715, 732, 463 A.2d 533 (1983).

Until Buturla’s report is produced and is inspected in camera by the trial court, it is impossible to determine whether his report constitutes a statement under Practice Book § 749 or whether it relates to the subject matter of Buturla’s testimony on direct examination. Furthermore, whether the defendant was prejudiced by not having access to Buturla’s report cannot be ascertained by speculation about what the report contains. Nor may we speculate as to whether the jury would have convicted the defendant had Buturla’s testimony been stricken if the state had refused to produce his report in response to a court order. In other words, we cannot say on the basis of the present, almost nonexistent, record that this is a case of harmless error. State v. D’Ambrosio, 212 Conn. 50, 61-62, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990); State v. Whitaker, 202 Conn. 259, 272, 520 A.2d 1018 (1987); State v. Gonzales, supra, 435.

The trial court’s failure to order the production of Buturla’s report and to inspect that report in camera does not, however, at this point, necessitate setting aside the defendant’s conviction of arson in the first degree that has thus far survived appeal. On the assumption that Buturla’s report exists and is still available, this case must be remanded to the judge who presided at the defendant’s trial so that he can determine upon an in camera inspection whether Buturla’s report is a statement under § 749 and, if so, whether all or any portion of it should have been made available to the defendant under §§ 752 and 753. State v. Gonzales, supra, 435-36.

On remand, the trial judge must resolve three questions and report their resolution to this court. State v. Pollitt, supra, 417; State v. Lafferty, 191 Conn. 73, 77, 463 A.2d 238 (1983). He must first determine whether the report is a “statement” under § 749. If so, he must then determine whether all or any portion of the statement contains material that should have been disclosed. If it does, he must then determine whether the nondisclosure was harmful to the defendant because the defense was prejudiced by its inability to gain access to the undisclosed material. State v. Gonzales, supra, 436. If all three questions are answered in the affirmative, a new trial must be ordered as to the remaining conviction of arson in the first degree. If any of the questions are answered in the negative, a new trial on that charge is not necessary. Buturla’s report, however, must be sealed and preserved as an exhibit to enable the defendant, if he so desires, to seek further review. Id.; see Goldberg v. United States, 425 U.S. 94, 111-12, 96 S. Ct. 1338, 47 L. Ed. 2d 603 (1976); see also United States v. Peters, 625 F.2d 366, 371 (10th Cir. 1980).

IV

The defendant next claims that the evidence adduced at his trial was insufficient to sustain his convictions and that the trial court should have granted his motion for acquittal. “ ‘When a claim on appeal challenges the sufficiency of the evidence, we undertake a two-part task. “We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); see State v. McCarthy, 197 Conn. 166, 178, 496 A.2d 190 (1985).’ State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986).

“Although the jury may ‘draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture.’ State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). Each essential element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). 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). ‘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. Josephson v. Meyers, 180 Conn. 302, 313, 429 A.2d 877 (1980); State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978).’ State v. Martin, 189 Conn. 1, 8, 454 A.2d 256 [cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306] (1983).” State v. Rodriquez, 200 Conn. 685, 687-88, 513 A.2d 71 (1986).

The defendant maintains that the evidence against him was circumstantial and that much of the testimony on which the verdict was based was inconsistent and conflicting. He contends that, consequently, the jury’s verdicts were necessarily based upon speculation and conjecture, rather than upon reasonable inferences drawn from proven facts, and that his motion for acquittal should have been granted. We disagree.

“This court has repeatedly stated that ‘ “there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, supra, 227 . . . .’ State v. Braxton, supra, 691. We cannot retry the case. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). Nor can this court ‘sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.’ State v. Stepney, [supra, 255].” State v. Rodriquez, supra, 692-93.

After a review of the record we conclude that the jury could reasonably have determined that the cumulative effect of the evidence was sufficient to establish beyond a reasonable doubt that the defendant committed the crimes of arson in the first degree and either assault in the first degree under § 53a-59 (a) (3) or attempted murder under §§ 53a-49 and 53a-54a.

y

Finally, the defendant claims that the trial court should not have permitted the victim to exhibit his injuries to the jury. He argues that the seriousness of the victim’s injuries was demonstrated by medical testimony and that any probative value of a viewing by the jury was outweighed by its prejudicial effect. At trial, the court disagreed with this argument and made an explicit finding that the probative value of a jury view of the victim’s injuries outweighed any prejudice that it might engender. We agree with the trial court.

The extent of the victim’s injuries was relevant to the state’s case for at least two reasons: to prove the necessary element of serious physical injury under the assault count, and to demonstrate that the defendant had taken substantial steps to cause the victim’s death under the attempted murder count. Evidence is admissible if it has “ ‘a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787.’ State v. DeJesus, [194 Conn. 376, 381, 481 A.2d 1068 (1984)].” State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986). There is no requirement that potentially inflammatory evidence be absolutely essential to the state’s case and otherwise unobtainable in order that it be admissible; rather, “ ‘the test for determining the admissibility of challenged evidence is relevancy and not necessity. State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).’ State v. Haskins, 188 Conn. 432, 453, 450 A.2d 828 (1982) [cert. denied, 479 U.S. 1084, 107 S. Ct. 1285, 94 L. Ed. 2d 143 (1987)].” State v. Doehrer, supra, 649. The trial court has broad discretion in cases where relevant evidence is challenged as inflammatory and prejudicial, and its determination that the probative value of the evidence outweighs its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. State v. Haskins, supra; State v. Piskorski, supra, 701-702. Such an abuse of discretion has not been demonstrated in this instance.

The judgment is reversed in part, the convictions of assault in the first degree and attempted murder are vacated, and a new trial is ordered as to those counts only; the count of arson in the first degree is remanded to the trial court for further proceedings consistent with Part III of this opinion.

In this opinion the other justices concurred.

       General Statutes § 53a-59 (a) (3) provides in pertinent part: “assault in THE FIRST degree: class B felony, (a) A person is guilty of assault in the first degree when . . . (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”

       General Statutes § 53a-lll (a) (2) provides: “arson in the first degree: class a felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and ... (2) any other person is injured, either directly or indirectly.”

       “[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of CONDUCT; RENUNCIATION AS defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a), it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
      General Statutes § 53a-54a (a) provides in pertinent part: “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.”

       The defendant was sentenced to ten years for assault, ten years for arson and twenty years for attempted murder, the sentences to run consecutively for a total sentence of forty years imprisonment.

       Another inmate had previously seen King ignite the spray from the aerosol can and use the disinfectant as a “flame thrower.”

       Zelinsky, who apparently possessed some artistic talent, made greeting cards, which he sold to the other inmates for pocket money.

       “[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 any 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.”

       The defendant does not claim that this is a constitutional issue reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as indeed it is not.

       This claim was raised sufficiently at trial to alert the court to the problem of inconsistent verdicts and was consequently preserved for appeal.

       General Statutes § 53a-3 (11) defines “intentionally” as follows: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.”

       General Statutes § 53a-3 (13) defines “recklessly” as follows: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

       Our conclusion does not require that we overturn the jury’s guilty verdict as to the count of arson in the first degree in violation of General Statutes § 53a-111 (a) (2). A reversal of the verdict as to that count is not mandated because the jury could logically have found that the defendant started a fire with the intent to destroy or damage a building as required by the statute and a person was injured, regardless of whether the defendant acted intentionally or recklessly with respect to the victim. See State v. Flynn, 14 Conn. App. 10, 27, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988).

       The defendant claimed that the report would show animosity and a desire to “get” Commerford by other inmates of the correctional center housed in the Fairmont unit.

       “[Practice Book] Sec. 749. —definition of statement
      “The term ‘statement’ as used in Sec. 748 means:
      “(1) A written statement made by a person and signed or otherwise adopted or approved by him; or
      “(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       “[Practice Book] Sec. 752.--production following testimony
      “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”
      “[Practice Book] Sec. 753.--delivery and excision of statements
      “If the entire contents of a statement requested under Sec. 752 relate to the subject matter of the testimony of the witness, the judicial authority shall order the statement to be delivered directly to the defendant or his counsel for his examination and use. If the prosecuting authority claims that any statement ordered to be produced under Sec. 751 contains matter which does not relate to the subject matter of the testimony of the witness, the judicial authority shall order the prosecuting authority to deliver such statement for the inspection of the judicial authority in camera. Upon such delivery, the judicial authority shall not disclose that portion of such statement which does not relate to the subject matter of the testimony of the witness. With such material excised or obliterated, the judicial authority shall then direct delivery of such statement to the defendant or his counsel for his use. If, pursuant to this procedure, any portion of such statement is withheld from the defendant or his counsel and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be sealed and preserved as an exhibit in the case, and, in the event that the defendant appeals, it shall be made available to the appellate court and, unless for good cause the trial court orders otherwise, to counsel for the parties for the purpose of determining the correctness of the ruling of the judicial authority.”

       The defendant also claims on appeal that the refusal of the trial court to allow him the use of Buturla’s report “may” have deprived him of “possible” Brady material. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). At trial the defendant did not make this claim but relied rather on Practice Book §§ 752 and 753 to compel production. The defendant’s present claim is pure speculation on his part and is insufficient to establish a showing of materiality in the constitutional sense. State v. Shannon, 212 Conn. 387, 402, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); 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).

       The state has never claimed otherwise.

       On a retrial of the attempted murder and assault in the first degree charges, if this issue arises again, the trial court should order the production of Buturla’s report and determine whether it is a statement under Practice Book § 749. If it is, the trial court should then conduct an in camera inspection to ascertain whether the material in the report is subject to disclosure under Practice Book §§ 752 and 753.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Nicholas Wood v. City of Bridgeport et al.
    (14011)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued October 5—
    decision released December 11, 1990

      Geoffrey L. Squitiero, with whom was James J. Maher, for the appellant (defendant Citytrust Company).

      William J. Curran, for the appellee (plaintiff).
   Shea, J.

In this action for damages for personal injuries suffered by the plaintiff, Nicholas Wood, when he fell upon an icy sidewalk in front of a building on Main Street in Bridgeport, owned and occupied by the defendant, Citytrust Company, the plaintiff was awarded $400,000 by a jury. The defendant has appealed from the judgment rendered on the verdict claiming that the trial court erroneously permitted the plaintiff: (1) to reopen his case for the purpose of presenting additional testimony concerning the exact location of his fall after both parties had rested; and (2) to suggest a specific figure as an appropriate award of damages. The defendant also claims that the verdict was excessive and that its motion for a remittitur should have been granted. We affirm the judgment.

I

After the plaintiff had rested his case, the defendant, without presenting any evidence, also rested and moved for a directed verdict. One of the grounds for the motion was that the evidence was insufficient to establish whether the plaintiff had fallen on the portion of the sidewalk within the defendant’s property-line or on the public portion under the control of the city of Bridgeport. Before the trial court ruled on the motion, the plaintiff moved to reopen his case in order to present further testimony regarding the location of his fall. Over the defendant’s objection, the court granted the motion to reopen, indicating that the defendant also would be permitted to reopen its case to present additional evidence. Initially the court indicated that it would defer ruling on the motion for a directed verdict until after the plaintiff’s new evidence had been received, but, when the defendant objected to such delay, that motion was denied, the court having decided there was sufficient evidence for the case to go to the jury.

“In any ordinary situation if a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is a serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided." Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 (1940). “Whether or not a trial court will permit further evidence to be offered after the close of testimony in a case is a matter resting in the sound discretion of the court.” Toffolon v. Avon, 173 Conn. 525, 537, 378 A.2d 580 (1977); see King v. Spencer, 115 Conn. 201, 203, 161 A. 103 (1932). Such a reopening should not be permitted if it would result in substantial prejudice to a party. See Poly-Pak Corporation of America v. Barrett, 1 Conn. App. 99, 104, 468 A.2d 1260 (1983).

We have held that such prejudice has occurred when the state was allowed to introduce further testimony in order to cure its failure to introduce, during its casein-chief, any evidence upon an essential element of the crime charged, a deficiency called to its attention by the defendant’s motion for a directed judgment of acquittal. State v. Allen, 205 Conn. 370, 533 A.2d 559 (1987). In Allen, we recognized that the motion for acquittal at the close of the state’s evidence authorized by Practice Book § 883 might become a “dead letter” if such a motion were to result in affording the state another opportunity to furnish evidence essential to prove an element of the crime that had been omitted from its case-in-chief. Id., 379. A similar concern is implicated in civil cases when a motion for a directed verdict is made pursuant to Practice Book § 321. The moving party is entitled to have such a motion decided upon the basis of the evidence that has been presented at the time of the motion.

In the case before us, however, the defendant does not claim on appeal that it was entitled to a directed verdict for failure of the plaintiff to present a prima facie case before the motion was made. It is also clear that the trial court did not rely on the additional evidence of the plaintiff in ruling on the defendant’s motion, which was denied before that evidence was presented. Indeed, the defendant argues that the denial of its motion indicates that the court was satisfied that a prima facie case had been proved and, accordingly, there was no need to allow further testimony.

The only question asked of the plaintiff after the court had ruled that his case could be reopened pertained to how far he was from a path cut in the icy sidewalk in front of the defendant’s building when he slipped and fell, to which he responded, “Two feet.” He had previously testified that he was walking south on the twelve inch wide path through the ice, which was six inches from the building line, when he stepped two feet to the left of the path to allow some women walking north on the path to pass. After walking two or three more steps south on the uncleared portion of the sidewalk, he slipped and fell as he started to get back onto the path from which the ice had been cleared. This testimony, like that he gave after his case was reopened, placed the plaintiffs fall within the defendant’s property line, thus rendering his later testimony superfluous.

We agree with the defendant that it was not essential for the purpose of establishing a prima facie case to present additional testimony of the plaintiff about the location of his fall. Unfortunately, however, during the argument on the motion for a directed verdict, neither the court nor counsel for the parties could recall precisely the plaintiff’s initial testimony concerning where he had fallen. The defendant repeatedly insisted that there was no testimony indicating where the plaintiff had fallen in relation to the property line. Under these circumstances, we conclude that the court was well within its discretion in permitting additional testimony to clarify the location of the plaintiff’s fall.

II

In its second claim of error, the defendant attempts to raise the significant issue of the constitutionality of Public Acts 1989, No. 89-319, which permits counsel “to specifically articulate to the trier of fact during closing arguments, in lump sums or by mathematical for-mulae, the amount of past and future economic and noneconomic damages claimed to be recoverable.” Prior to this enactment, in Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989), and Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989), this court had disapproved such arguments. The defendant maintains that the public act, which overrules those decisions, trespasses upon the exclusive authority of the judicial branch of our state government over rules of practice and procedure. See State v. Clemente, 166 Conn. 501, 514-16, 353 A.2d 723 (1974).

The plaintiff maintains, however, that the defendant has effectively waived the issue of impropriety in the argument before the jury by failing to object thereto in the trial court and by failing to request that the arguments be recorded pursuant to General Statutes § 51-61 (a). “We have regarded the failure to request that arguments be recorded as a waiver and have frequently refused to consider claims of improper argument in the absence of a transcript or reconstruction thereof.” State v. Austin, 195 Conn. 496, 504, 488 A.2d 1250 (1985).

The defendant concedes that the closing arguments were not recorded and also admits that it did not object at trial to the argument that is the basis of its claim for reversal. “The absence of any objection or exception to improper argument . . . has also been regarded as a waiver of the right to press such a claim of error.” Id., 504-505. The defendant seeks review, nevertheless, on the theory that it has been deprived of a fundamental constitutional right and a fair trial, relying upon State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). This reliance is misplaced, however, because both these cases establish as a prerequisite to appellate review the adequacy of the record to support the claim of error. The absence of a transcript of the argument at issue, which the defendant as the appellant is obliged to provide; Practice Book §§ 4013 (a) (3) and 4019 (a); defeats the defendant’s claim that it is entitled to consideration of this constitutional issue.

Ill

In claiming that the jury verdict of $400,000 was excessive, the defendant concedes that the jury could reasonably have found from the evidence that the plaintiff had sustained a fractured skull and an epidural hematoma in his fall. The resulting injuries to his brain have caused the plaintiff to be susceptible to epileptic seizures, two of which have occurred since the accident. The evidence indicated that he will be required to take dilantin, an anti-seizure medication, for the remainder of his life. The side effects of this medication have caused the plaintiff to experience memory loss and depression.

There was also evidence that the injury to his brain resulted in a mild decrease in the plaintiff’s power to reason cognitively and to remember accurately. His intelligence quotient dropped about 9 percent. According to the plaintiff, who was fifty-three years old at the time of the acccident, his brain injury has affected his working ability by decreasing his efficiency and reducing the number of hours he can devote to his work. His fear of suffering a seizure while driving restricts his ability to travel in relation to his work.

It was stipulated that the mortality tables indicated that the plaintiff’s life expectancy at the time of trial was 19.3 years. The plaintiff testified that he has lost $10,000 in earnings as a result of the accident. The jury could reasonably have found that his medical expenses at the time of trial were $7000.

“Assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant.” Wochek v. Foley, 193 Conn. 582, 586, 477 A.2d 1015 (1984). “The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake or corruption.” Slabinski v. Dix, 138 Conn. 625, 629, 88 A.2d 115 (1952). “Evidence offered at trial relevant to damages must be reviewed in the light most favorable to sustaining the verdict.” Holbrook v. Casazza, 204 Conn. 336, 360, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). The refusal of the trial court to set aside the verdict, as in this case, is a significant factor in deciding whether it was excessive. Pisel v. Stamford Hospital, 180 Conn. 314, 343, 430 A.2d 1 (1980); Healy v. White, 173 Conn. 438, 441, 378 A.2d 540 (1977).

The defendant does not quarrel with these familiar principles but maintains, nevertheless, that an award of $400,000, when the special damages proved were only $17,000, was excessive. Admittedly, the rules we have recited, when applied to a particular case, provide little precise guidance. It is more helpful to compare the verdict challenged with verdicts in similar cases when possible. In Healy v. White, supra, 440-41, this court upheld a verdict of $350,000 for a seven year old boy who was thrown from an automobile to the pavement after a collision with a truck. The child received some rib fractures and multiple contusions and abrasions, but the major consequence was a head injury claimed to have resulted in “minimal brain dysfunction and epilepsy” and to have aggravated a learning disability existing before the accident. A separate award of $60,000 was made to the boy’s father for medical expenses and special education that would be needed in the future. Although that case differs from the present one in some respects, notably the relative ages of the injured plaintiffs, it does indicate that this court has not considered a very substantial award to be unreasonable when a permanent condition of epilepsy has been proved. The verdict in Healy of $350,000 for the consequences attending such a condition to a child is reasonably comparable to the allowance of $383,000 made to the fifty-three year old plaintiff in this case for a similar injury when inflation during the intervening period of thirteen years is taken into account. We conclude that the verdict was not excessive.

The judgment is affirmed.

In this opinion the other justices concurred.

       The original complaint included, in addition to the count directed against the defendant Citytrust Company, a count against the city of Bridgeport for failure to maintain properly the public sidewalk. The plaintiff withdrew the count against the city before trial began. We will hereinafter refer to Citytrust Company as the defendant.

       Public Acts 1989, No. 89-319, which became effective on October 1,1989, provides as follows “(a) In any civil action to recover damages resulting from personal injury or wrongful death, counsel for any party to the action shall be entitled to specifically articulate to the trier of fact during closing arguments, in lump sums or by mathematical formulae, the amount of past and future economic and noneconomic damages claimed to be recoverable.

        “(b) Whenever, in a jury trial, specific monetary sums or mathematical formulae are articulated during closing arguments as provided for in subsection (a) of this section, the trial court shall instruct the jury that the sums or mathematical formulae articulated are not evidence but only arguments and that the determination of the amount of damages to be awarded, if any, is solely the jury’s function.”

       The verdict of $400,000 must be reduced by the special damages of $17,000 in order to determine the amount allowed by the jury for noneconomic losses. Because the accident occurred prior to October 1,1987, General Statutes § 52-225d, which provides for separate findings with respect to economic damages and noneconomic damages, was inapplicable.


text:
    Board of Education of The City of Waterbury et al. v. Waterbury Teachers Association et al.
    (14066)
    Peters, C. J., Callahan, Covello, Hull and Borden, Js.

      Argued September 26—
    decision released December 11, 1990

      Ronald Cordilico, for the appellant (named defendant).

      Ralph E. Wilson, for the appellee (named plaintiff).
   Callahan, J.

This is an appeal by the named defendant, the Waterbury Teachers Association, from a judgment of the trial court vacating an arbitration award in part and confirming it in part. The court based its judgment on its conclusion that the arbitrator had exceeded his authority in ordering the named plaintiff, the Waterbury board of education, to submit the names of sixty-two teachers to the Waterbury retirement board for inclusion in the Waterbury retirement system. Because we conclude that the arbitrator did not exceed his authority, we reverse the trial court’s judgment.

The facts are not in dispute. The defendant is the exclusive bargaining agent for the teachers in the Waterbury public school system under a collective bargaining agreement with the city of Waterbury. On June 10,1987, the defendant submitted a grievance on behalf of sixty-two teachers claiming that the plaintiff had violated the collective bargaining agreement between these parties by failing to include the teachers on the membership rolls of the Waterbury retirement system.

The primary issue before the arbitrator was the interpretation of a provision of the collective bargaining agreement providing that “[tjeachers newly employed after March 1, 1970, shall not be included in the City of Waterbury Retirement System.” The teachers on whose behalf the grievance was filed had been teachers in the Waterbury school system prior to March 1, 1970, had resigned from these positions prior to March 1,1970, and had been rehired as teachers by the plaintiff after that date. At the time of their resignations, the teachers had received a refund of the amounts they had contributed to the Waterbury retirement system. On the basis of the past practice of the defendant in resolving similar claims made by three other teachers, the arbitrator concluded that the term “newly employed” did not include teachers who had been employed by the Waterbury school system prior to March 1, 1970, and who had been rehired subsequent to March 1,1970. Having concluded that the plaintiff had violated the collective bargaining agreement by failing to include the rehired teachers in the retirement system, the arbitrator ordered the plaintiff to “submit the names of the sixty-two (62) teachers ... to the Waterbury Retirement System for inclusion in accordance with whatever statutory provisions are in effect, so that these persons may make whatever payments are statutorily determined to be necessary in order to insure that they are ‘members in good standing’ of the City of Waterbury Retirement System.” (Emphasis added).

The plaintiff filed an application in the Superior Court to vacate the arbitration award pursuant to General Statutes § 52-418, and the defendant filed an application for an order confirming the award pursuant to General Statutes § 52-417. The parties thereafter stipulated that the number of teachers included within the arbitrator’s award should have been forty-eight rather than sixty-two. The trial court vacated the arbitration award in part and confirmed it in part. The court concluded that the arbitrator had exceeded his authority and declared the arbitration award void as to the Waterbury retirement board because the board was not a party to the arbitration contract and had not been given notice or an opportunity to be heard. The court ruled, however, that “the arbitration order might be read as merely requiring the [Waterbury board of education] to certify to the retirement board that the forty-eight teachers are presently employed by the [Waterbury board of education] and that aspect of the award alone is confirmed by the court.” The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

The parties agree that our recent decision in East Haven v. AFSCME, Council 15, Local 1662, 212 Conn. 368, 561 A.2d 1388 (1989), is on all fours with this case. In East Haven, a grievance was filed by a woman who had been dismissed by the East Haven police department after she had failed to pass the required number of courses for certification during her training at the Connecticut police academy. Id., 369-70. The board of arbitrators found that the grievant’s coordinator at the police academy had demonstrated a dislike for her and that her dismissal was based on sexual discrimination. Id., 370. The board ordered that the grievant be allowed to complete her training at the police academy and that she be assigned a different coordinator. Id. The plaintiff town sought to vacate the arbitration award on the ground that the board had exceeded its authority by ordering the police academy, a nonparty to the arbitration proceeding, to take certain action required to enforce its award. Id., 370-71.

We agreed with the plaintiff in East Haven that the arbitrators could not render a decision enforceable against a third party who was not a party to the arbitration. Id., 373. We upheld the arbitration award, however, by applying a presumption of validity in our interpretation of the award. “[Jjudicial review of an arbitrator’s award is limited in scope. The determination of whether an arbitration board has exceeded its authority in violation of § 52-418 (a) (4) is limited to a comparison of the award with the submission.” Id., 371.

“ ‘Every reasonable presumption and intendment will be made in favor of the award and of the arbitrator’s acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission.’ Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 585, 440 A.2d 774 (1981); Milford Employees Assn. v. Milford, [179 Conn. 678, 683, 427 A.2d 859 (1980)]; Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn. 583, 590, 392 A.2d 461 (1978). There are two possible interpretations of the award. One, suggested by the plaintiff, is that the award is an order to the academy to reinstate [the grievant] and to have someone other than [her original coordinator] act as her coordinator. This interpretation, however, is contrary to the basic principles of law governing the arbitrators’ jurisdiction as stated above. A second interpretation of the award is that it is an order to the town to make reasonable efforts to seek the reinstatement of [the grievant] in the academy and to seek to arrange for a different coordinator. This interpretation comports with the submission, collective bargaining agreement and the limits on the arbitrators’ jurisdiction. Where there are two reasonably possible interpretations of an arbitrator’s award, one upholding and the other invalidating the award, the presumption of the validity of an award requires this court to adopt the one that supports its validity. See Bic Pen Corporation v. LocalNo. 134, supra.” (Emphasis added.) East Haven v. AFSCME, Council 15, Local 1662, supra, 373-74.

The defendant in this case argues that the trial court failed to afford the arbitrator’s award the presumption of validity required by East Haven v. AFSCME, Council 15, Local 1662, supra. The defendant does not contend that the arbitrator had the power to order the Waterbury retirement board to enroll the teachers in question in the retirement system. The defendant asserts, rather, that a reasonable interpretation of the arbitrator’s award is that it requires the plaintiff to send the teachers’ names to the retirement board with a statement that “[t]he following teachers should be included in the Waterbury Retirement System.” The defendant recognizes that the actions of the retirement board would continue to be governed by § 2762 of the code of the city of Waterbury and that the board would retain its discretionary power over the enrollment of individuals in the Waterbury retirement system, including the discretionary power to deny enrollment.

The plaintiff argues that the award should be vacated even under the defendant’s proposed interpretation. The plaintiff contends that if it were to send a list of the teachers’ names to the retirement board with a recommendation that these teachers “should be included” in the Waterbury retirement system, such a directive would eliminate any discretion on the part of the retirement board to deny the teachers enrollment.

In view of the plaintiff’s concession that East Haven v. AFSCME, Council 15, Local 1662, supra, is analogous to this case, we find it difficult to understand its claim that the arbitrator’s award should be vacated. If the required presumption of validity is applied to the award, a reasonable interpretation of the award is that the plaintiff be required to make a good faith effort to seek the inclusion of the forty-eight teachers in question in the Waterbury retirement system. In using language expressly referring to the “statutory provisions in effect” as controlling the readmission of members to the retirement system, the arbitration award demonstrates that the arbitrator recognized that the retirement board retained its discretionary authority over enrollment.

We conclude, therefore, that the award in this case can reasonably be construed to require the plaintiff to notify the Waterbury retirement board that the arbitrator determined that the plaintiff had breached the collective bargaining agreement between it and the defendant when it concluded that the forty-eight teachers were newly employed for the purpose of determining their eligibility for enrollment in the Waterbury retirement system. The award can also reasonably be interpreted to require that, in conjunction with this communication, the plaintiff send the names of the forty-eight teachers to the retirement board with a recommendation that they hereafter be included in the retirement system. Because the Waterbury retirement board is not bound by the arbitrator’s award, however, it retains the discretion granted by the Waterbury city code to deny the teachers enrollment. In addition, the retirement board may insist that the teachers, to be eligible for enrollment, comply with the procedures required for applying for reinstatement in the system under § 2762 of the Waterbury city code.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment confirming the arbitration award.

In this opinion the other justices concurred.

       Because the named plaintiff and the named defendant are the only parties to this appeal, we will refer to them as the plaintiff and the defendant.

       The complete text of the arbitrator’s award states: “The Board of Education did violate the agreement by its improper interpretation of Article XXXI (A) (2), when it failed to include the sixty-two (62) teachers listed in the June 10,1987 grievance, on the membership rolls of the Waterbury retirement system. Its decision in [cases involving three similarly situated teachers] ha[s] given substance and meaning to the words of Article XXXII (A) (2) [sic], that ‘newly-employed’ does not include any teacher who is reemployed by the Waterbury school system and who had been first employed prior to March 1, 1970.
      “The Waterbury Board of Education will submit the names of the sixty-two (62) teachers on the aforementioned list to the Waterbury Retirement System for inclusion in accordance with whatever statutory provisions are in effect, so that these persons may make whatever payments are statutorily determined to be necessary in order to insure that they are ‘members in good standing,’ of the City of Waterbury Retirement System.” (Emphasis omitted.)

       General Statutes § 52-418 provides: “vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.
      “(c) Any party filing an application pursuant to subsection (a) of this section concerning an arbitration award issued by the state board of mediation and arbitration shall notify said board and the attorney general, in writing, of such filing within five days of the date of filing.”

       General Statutes § 52-417 provides: “application for order confirming award. At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       The trial court described its judgment as a modification of the arbitration award. The defendant argues that the court did not have the power to modify the award since neither party had filed an application to modify pursuant to General Statutes § 52-419. The defendant has not pursued this procedural claim, however, because it contends that the true effect of the trial court’s judgment was to vacate the arbitration award and the plaintiff had filed a motion to vacate the award pursuant to General Statutes § 52-418. In light of our disposition of the principal issue in this case, we do not need to consider this procedural question.

       The trial court interpreted the award as requiring merely that the plaintiff notify the defendant that the teachers are currently employed by the plaintiff. The defendant argues that this interpretation is inadequate because it says nothing about whether the teachers are considered “newly employed” under the terms of the collective bargaining agreement for the purpose of determining their eligibility for readmission to the Waterbury retirement system.

       “[Waterbury City Code, c. 27, div. 2] sec. 2762. reinstatement.
      “Any former participant [in the Waterbury Retirement System] who ceased to be a participant by reason of severance of service with the city may, upon again becoming an officer or employee of the city, apply to the retirement board for reinstatement. Said board may reinstate such person only upon his payment into the retirement fund of any amounts previously withdrawn therefrom and upon demonstrating to the satisfaction of the retirement board that he is in reasonably good physical condition as indicated by the results of such medical examination as said board may prescribe.”

       The plaintiff maintains this position despite its use of a similar procedure in one of the prior cases upon which the arbitrator relied in determining the meaning of the term “newly employed.” In that prior case a grievance had been filed by two teachers who had been employees of the plaintiff prior to March 1, 1970, and who were subsequently rehired by the plaintiff after March 1, 1970. The subject matter of the grievance was whether the teachers should be readmitted to the retirement system. The plaintiff voted to send a letter to the retirement board requesting “that they look favorably upon the requests being made by the grievants.” The retirement board subsequently voted to include those teachers in the retirement system.

       In concluding that the arbitrator believed that it was within his power to bind the retirement board, the trial court relied upon the language in the arbitrator’s award indicating that the plaintiff violated the collective bargaining agreement by “failing to include” the teachers in the retirement system. In light of the arbitrator’s reference in the award to the relevant statutory provisions governing the enrollment of individuals in the retirement system, this interpretation of the award fails to give effect to the presumption of validity set forth in East Haven v. AFSCME, Council 15, Local 1662, 212 Conn. 368, 561 A.2d 1388 (1989).


author: Covello, J.

text:
    Brian Morgan v. St. Francis Hosptial and Medical Center et al.
    (14060)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued October 5—
    decision released December 11, 1990

      Zbigniew S. Rozbicki, for the appellant (plaintiff).

      Louis B. Blumenfeld, with whom were William J. Scully and, on the brief, John F. Scully, for the appellee (named defendant).

      Thomas J. Groark, Jr., with whom was Ruth A. Kurien, for the appellee (defendant Alvaro Oviedo).
   Covello, J.

This is a suit seeking damages for medical malpractice. The sole issue is whether the trial court properly refused to disqualify for cause jurors who were employed by the defendants’ insurance company. We affirm the judgment of the trial court.

On August 19, 1981, the plaintiff instituted a medical malpractice action against the defendants, St. Francis Hospital and Medical Center and Alvaro Oviedo, a physician. Aetna Casualty and Surety Company (Aetna) insured both defendants. At trial, the plaintiff accepted juror Dayna Walton, a receptionist for Aetna, without challenge. After exhausting his peremptory challenges, the plaintiff’s attorney challenged for cause jurors Mary Ann Sapia, who worked at Aetna’s word processing center, and Susan Mar-tineau, an Aetna marketing analyst, and moved that the trial court exclude them because of their Aetna affiliation and Aetna’s relationship to the case. The trial court, O’Neill, J., denied the motion.

The subject of the identity of the defendants’ insurance carrier never arose during trial. An Aetna representative was present in the courtroom at various times throughout the trial, but there is no evidence that the jurors knew which insurance carrier, if any, was involved. On February 7,1989, the jury returned a verdict in favor of the defendants. The plaintiff appealed the judgment to the Appellate Court, claiming that the Aetna jurors should have been disqualified. We transferred the plaintiffs appeal to this court in accordance with Practice Book § 4023.

“In Connecticut, the disqualification of a juror may be based upon the General Statutes or upon the rules of the common law.” Johnson v. New Britain General Hospital, 203 Conn. 570, 580, 525 A.2d 1319 (1987); McCarten v. Connecticut Co., 103 Conn. 537, 542, 131 A. 505 (1925); see General Statutes § 51-217 (c) (1). In the present appeal, the plaintiff does not claim that disqualification of the jurors was required under § 51- 217 (c) (1), but rather, that it was required under common law principles.

At common law, challenges to the suitability of a juror may be either peremptory (without a stated basis) or for cause (for an articulated reason). “[A] challenge [for cause] to an individual juror for bias or prejudice can be either a principal challenge or a challenge to the favor. McCarten v. Connecticut Co., supra. A principal challenge may arise when the connection between the prospective juror and either party is of so close a nature that, when the facts concerning the relationship or interest are proven or when the prospective juror ‘has formed or expressed an opinion on the question at issue,’ the disqualification is conclusively presumed. Id.; see, e.g., State v. Kokoszka, 123 Conn. 161, 164, 193 A. 210 (1937). A challenge to the favor, on the other hand, is one where the connection, being more remote, tends to show bias but does not create a conclusive presumption of bias. McCarten v. Connecticut Co., supra, 542-43.” Johnson v. New Britain General Hospital, supra, 581-82.

Examples of a principal challenge include “relationship to either party to the suit . . . an interest in the outcome of the suit, either personal or as a member of a corporation, or the relation of master or servant . . . to either party . . . .” McCarten v. Connecticut Co., supra, 542. These relationships are “held to import absolute bias or favor and require the disqualification of the juror as a matter of law.” State v. Kokoszka, supra, 164. A challenge to the favor, however, is based on “facts and circumstances . . . such as would tend to show bias but not such as to create a conclusive presumption of disqualification.” Id., 164-65. The decision whether to disqualify a juror for a challenge to the favor “lay in the sound discretion of the court. . . .’’Id., 165.

In the present case, the plaintiff asserted a principal challenge, not a challenge to the favor, and therefore claims that the jurors in question should have been disqualified as a matter of law. The plaintiff claims that under Connecticut law an employee of a party is subject to a principal challenge because the close relationship creates a conclusive presumption of bias. See McCarten v. Connecticut Co., supra, 542. The plaintiff argues that because Aetna will be required to pay the judgment in the event of a verdict for the plaintiff, Aetna became, in effect, a party in interest to the action. Although the plaintiff concedes that we have not, in the past, adopted a rule excluding the employees of a party’s insurance company as a matter of law, the plaintiff argues that we should now do so because of the close nexus of interests between the defendants and the defendants’ insurer.

In support of his argument, the plaintiff relies upon Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549-51, 174 S.E. 131 (1934), in which it was held that an employee of the defendant’s insurer should have been disqualified as a matter of law. This argument overlooks the fact that in Connecticut, unlike Georgia, “in negligence actions, evidence that the defendant carries liability insurance is [generally] inadmissible.” Magnon v. Glickman, 185 Conn. 234, 242, 440 A.2d 909 (1981). “A challenge for principal cause is one for absolute disqualification or bias”; 47 Am. Jur. 2d, Jury § 214; and the basis of the challenge is that “the connection between the prospective juror and either party to the action is of so close a nature that . . . the disqualification is conclusively presumed to exist.” State v. Kokoszka, supra, 164. Because evidence of insurance coverage is generally inadmissible in Connecticut, there is no reason to presume that veniremen employed by the defendants’ insurer are biased. Their “judgment [will not be] affected even insensibly by a circumstance . . . the existence of which [they are] not aware.” McCarten v. Connecticut Co., supra, 546.

“This court has repeatedly stated that it ‘does not choose to create a set of unreasonably constricting presumptions that jurors be excused for cause . . . where [as here] . . . there is no showing of actual bias or prejudice.’ (Citations omitted.) State v. Clark, 164 Conn. 224, 228, 319 A.2d 398 (1973). Rather, this court adheres to the principle that ‘[t]o succeed on a claim of bias the [plaintiff] must raise his contention of bias from the realm of speculation to the realm of fact.’ ” State v. Ziel, 197 Conn. 60, 65, 495 A.2d 1050 (1985). The burden of proof in this regard rests on the plaintiff. Johnson v. New Britain General Hospital, supra, 582.

The plaintiff argues that the jurors could have been biased because a representative of the insurance company was present at trial. The plaintiff, however, offered no evidence that the jurors knew the identity of the representative. “The trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion.” State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987). As there was no evidence that the jurors were in fact biased, it cannot be said that the trial court abused its discretion in denying the plaintiff’s challenges.

“[W]e conclude that the [plaintiff] has failed to ‘raise his contention of bias from the realm of speculation to the realm of fact.’The denial of the [motion] . . . for a new trial was within the reasonable exercise of the trial court’s discretion.” Id., 91.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 51-217 (c) (1) provides: “All jurors shall be electors, or citizens of the United States who are residents of this state and listed in the records of the motor vehicle department as persons to whom motor vehicle operators’ licenses have been issued, who have reached the age of eighteen. A person shall be disqualified to serve as a juror if such person (A) is found by a judge of the superior court to exhibit any quality which will impair his capacity to serve as a juror, except that no person shall be disqualified on the basis of deafness or hearing impairment; (B) has been convicted of a felony within the past seven years or is a defendant in a pending felony case or is in the custody of the commissioner of correction; (C) is not able to speak and understand the English language; (D) is the governor, lieutenant governor, secretary of the state, treasurer, comptroller or attorney general; (B) is a judge of the superior court, appellate court or supreme court or is a federal court judge; (F) is a member of the general assembly, provided such disqualification shall apply only while the general assembly is in session; (G) is seventy years of age or older and chooses not to perform juror service; or (H) is incapable, by reason of a physical or mental disability, of rendering satisfactory juror service. Any person claiming a disqualification under subdivision (H) of this subsection must submit to the jury administrator a letter from a licensed physician stating the nature of the disability and the physician’s opinion that such disability prevents the person from rendering satisfactory juror service. In reaching such opinion, the physician shall apply the following guideline: A person shall be capable of rendering satisfactory juror service if such person is able to perform a sedentary job requiring close attention for six hours per day, with short work breaks in the morning and afternoon sessions, for at least three consecutive business days.”