author: Santaniello, J.

text:
    In re Luis R.

    (13009)
    Peters, C. J., Shea, Santaniello, Hull and Higgins, Js.
    Argued March 4
    decision released August 4, 1987

      Francis J. Carino, chief state’s advocate, for the appellant (petitioner).

      John T. Short, Jr., special public defender, with whom was Christopher Sheehan, for the appellee (respondent).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Supreme Court.
      Reporter of Judicial Decisions

   Santaniello, J.

This is an appeal by the state from an order of the trial court barring the respondent, who was adjudicated a delinquent for aiding another in committing a serious juvenile offense, from himself being charged as a serious juvenile offender.

The factual and procedural posture of this case is as follows: On November 25,1985, a fifteen year old boy was robbed at knifepoint of a radio that he was carrying. The respondent, a minor, admitted in court that he had intentionally aided another person in the commission of the robbery. On April 25,1986, the respondent was adjudicated a delinquent child for being an accessory to a robbery in the second degree in violation of General Statutes §§ 53a-135 and 53a-8. The respondent filed a motion on May 19,1986, seeking an order of the court barring his adjudication as a “serious juvenile offender” as defined in General Statutes § 46b-120. On July 1,1986, the court granted the motion and the respondent was sentenced and committed to the department of children and youth services (DCYS) for placement at the Long Lane School as a delinquent child for a maximum period not to exceed two years. This appeal was filed by the state in the Appellate Court on July 18, 1986, and on August 12, 1986, this court transferred the appeal to itself.

Initially, both parties to this action concede that there are distinct and substantial differences between being adjudicated a “delinquent” as compared to being adjudicated a “serious juvenile offender.” The consequences of the more serious designation are delineated in General Statutes §§ 46b-141, 46b-140, 46b-126, and 46b-140 (e) (2). Therefore, in view of the substantial differences of the potential penalties, the state is pursuing this appeal.

The state in its appeal, claims that the defendant should have been charged and prosecuted as a “serious juvenile offender” because the respondent had intentionally aided another who had committed a “serious juvenile offense,” as defined in General Statutes § 46b-120. It claims that under the mandate of General Statutes § 53a-8, the respondent should be “criminally liable for such conduct” and should be prosecuted and punished “as if he were the principal offender.”

The respondent, to the contrary, contends that since General Statutes § 46b-120 specifies the offenses that constitute “serious juvenile offenses” without mentioning “aiding and abetting” as defined by § 53a-8, the respondent cannot be charged as a “serious juvenile offender.” He further claims that since statutes defining juvenile delinquency, such as § 46b-120, set standards governing the deprivation of a child’s liberty, they are penal in nature and thus are to be strictly construed. State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981); State v. Tedesco, 175 Conn. 279, 291, 397 A.2d 1352 (1978).

Although the state concedes that § 46b-120 is penal in nature, and, as such, must be strictly construed, it argues that the entire scheme of the statutes must be considered as a whole, and that one who aids another in the commission of a “serious juvenile offense” may be adjudicated a “serious juvenile offender.” Strict construction does not mean that a statute must be read in isolation. “ Tn construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.’ ” State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983), citing Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). “ ‘The rule of strict construction does not require that the narrowest technical meaning be given to the words employed in a criminal statute in disregard of their context and in frustration of the obvious legislative intent.’ ” State v. Faro, 118 Conn. 267, 274, 171 A. 660 (1934), quoting United States v. Corbett, 215 U.S. 233, 242, 30 S. Ct. 81, 54 L. Ed. 173 (1909); State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); cf. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978); Evening Sentinel v. National Organization for Women, 168 Conn. 26, 31, 357 A.2d 498 (1975).

The state claims that the respondent should be charged as a serious juvenile offender because he was an accessory to robbery. Being an accessory is not a crime in and of itself, but is only another way of committing a crime. General Statutes § 53a-8 provides in relevant part that “[a] person, acting with the mental state required for the commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct . . . as if he were the principal offender.” Here, the respondent admitted in court that he had intentionally aided another person in the commission of the crime of robbery in the second degree. That crime is listed as one of the “serious juvenile offense[s]” that may, under § 46b-120, result in classification of a juvenile as a “serious juvenile offender.” Despite the omission of accessory status under § 53a-8 in the litany of crimes listed in § 46b-120, a list that specifically includes reference to “attempt” under General Statutes § 53a-49 and “conspiracy” under General Statutes § 53a-48, the state maintains that our penal code, read as a whole, does not exclude an accessory from being charged as a “serious juvenile offender.” We find the respondent’s argument that he cannot be adjudicated as a “serious juvenile offender” because § 46b-120 sets forth attempt and conspiracy as “serious juvenile offense[s]” while it fails to set forth accessorial liability as such an offense to be without merit.

We have recently addressed the differences between the crimes of attempt and conspiracy, and accessorial liability. State v. Foster, 202 Conn. 520, 522 A.2d 277 (1987). In State v. Foster, supra, 527-28, we stated that “[ajttempt and conspiratorial liability differ substantially from the liablity imposed on an accessory. . . . [B]oth attempt and conspiracy are offenses in and of themselves, while accessorial liability is not. Attempt is a distinct, inchoate offense and a defendant may be punished for attempting to commit a substantive offense without actually committing the crime. General Statutes §§ 53a-49, 53a-51; see State v. Trent, 182 Conn. 595, 600, 438 A.2d 796 (1981). Likewise, conspiracy has been recognized as being a crime distinct from the commission of the substantive offense. See General Statutes § 53a-48. ‘We have repeatedly held that conspiracy is a common-law crime and punishable as such under the statutes relating to the punishment of high crimes and misdemeanors. The commission of the substantive offense and a conspiracy to commit it are separate and distinct crimes. . . . The crime of conspiracy is dependent on clear principles, and has characteristics and ingredients which separate it from all other crimes.’ State v. Johnson, 162 Conn. 215, 218-19, 292 A.2d 903 (1972); see State v. Crump, [201 Conn. 489, 497, 518 A.2d 378 (1986)]; State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985).

“There is, however, no such crime as ‘being an accessory.’ State v. Edwards, 201 Conn. 125, 130, 513 A.2d 669 (1986); State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985); State v. Baker, supra. The defendant is charged with committing one substantive offense; ‘[t]he accessory statute merely provides alternate means by which a substantive crime may be committed.’ State v. Baker, supra; State v. Edwards, supra, 131.”

“Moreover, because accessorial liability is not a distinct crime, but only an alternative means by which a substantive crime may be committed, it would be illogical to impose liability on the perpetrator of the crime, while precluding liability for an accessory, even though both possess the mental state required for the commission of the crime. Connecticut ‘long ago adopted the rule that there is no practical significance in being labeled an “accessory” or a “principal” for the purpose of determining criminal responsibility. See State v. Gargano, 99 Conn. 103, 109, 121 A. 657 (1923); State v. Hamlin, 47 Conn. 95, 118 (1879); General Statutes (1875 Rev.) p. 545. The modern approach “is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. Such is the view taken in the Model Penal Code, which provides that a person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he solicits the other person to commit it, or aids or agrees or attempts to aid the other person in planning or committing it, or (having a legal duty to prevent the crime) failed to make the proper effort to prevent it.” LaFave & Scott, Criminal Law (1972) § 63, p. 501; see also Model Penal Code (1985) § 2.06, comment 6. Connecticut has taken the same approach through General Statutes § 53a-8. See State v. Baker, supra.’ State v. Harris, supra.” State v. Foster, supra, 532-33.

Since § 53a-8 does not define a separate distinct crime, but only describes an alternative means by which a substantive crime may be committed, the respondent may be considered a serious juvenile offender for the purposes of § 46b-120 by having intentionally aided another in the commission of a “serious juvenile offense” as defined by that statute.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 46b-120. (Formerly Sec. 51-301). definitions. The terms used in this chapter shall, in its interpretation and in the interpretation of other statutes, be defined as follows: ‘Child’ means any person under sixteen years of age; ‘youth’ means any person sixteen to eighteen years of age; ‘abused’ means that a child or youth (a) has had physical injury or injuries inflicted upon him other than by accidental means, or (b) has injuries which are at variance with the history given of them, or (c) is in a condition which is the result of maltreatment such as, but not limited to, malnutrition, sexual molestation, deprivation of necessities, emotional maltreatment or cruel punishment; a child may be found ‘defective’ who, by reason of a deficiency or defect of intelligence, which has existed from birth or from early age, requires, or will require, for his protection or for the protection of others, special care, supervision and control; a child may be found ‘delinquent’ (1) who has violated any federal or state law or municipal or local ordinance, other than an ordinance regulating behavior of a child in a family with service needs as defined in this section or (2) who has violated any order of the superior court; a child or youth may be found ‘dependent’ whose home is a suitable one for him, save for the financial inability of his parents, parent, guardian or other person maintaining such home to provide the specialized care his condition requires; a ‘family with service needs’ means a family which includes a child who (A) has without just cause run away from his parental home or other properly authorized and lawful place of abode; (B) is beyond the control of his parent, parents, guardian or other custodian; (C) has engaged in indecent or immoral conduct; or (D) has been habitually truant or who, while in school, has been continuously and overtly defiant of school rules and regulations; a child or youth may be found ‘neglected’ who (i) has been abandoned or (ii) is being denied proper care and attention, physically, educationally, emotionally or morally or (iii) is being permitted to live under conditions, circumstances or associations injurious to his well-being, or (iv) has been abused; a child or youth may be found ‘uncared for’ who is homeless or whose home cannot provide the specialized care which his physical, emotional or mental condition requires. For the purposes of this section the treatment of any child by an accredited Christian Science practitioner in lieu of treatment by a licensed practitioner of the healing arts, shall not of itself constitute neglect or maltreatment. ‘Serious juvenile offense’ means the violation by a child, including attempt or conspiracy to violate sections 53-80a, 53-390 to 53-392, inclusive, 53a-54a to 53a-57, inclusive, 53a-59 to 53a-60c, inclusive, 53a-70 to 53a-71, inclusive, 53a-72b, 53a-86, 53a-92 to 53a-94, inclusive, 53a-95, 53a-101, 53a-lll to 53a-113, inclusive, subdivision (1) of subsection (a) of section 53a-122, subdivision (3) of subsection (a) of section 53a-123, 53a-134, 53a-135, 53a-166, 53a-167c, subsection (a) of section 53a-174, 53a-196a, 53a-211, or for having without just cause run away from any secure placement other than home while committed as a delinquent child to the commissioner of children and youth services for a serious juvenile offense. ‘Serious juvenile offender’ means any child adjudicated a delinquent child for commission of a serious juvenile offense.”

       “[General Statutes] Sec. 46b-141. (Formerly Sec. 51-322). commitments to be indeterminate, extension, (a) Except as otherwise limited by subsection (e) of section 46b-140, commitment of children adjudged delinquent by the superior court to the department of children and youth services shall be for an indeterminate time up to a maximum of two years, or, when so adjudged on a serious juvenile offense, up to a maximum of four years at the discretion of the court, unless extended as hereinafter provided.
      “(b) The commissioner of children and youth services may petition the court for an extension of the commitment beyond such two-year period on the grounds that such extension is for the best interest of the child and the court shall give notice to the parent or guardian and to the child at least fourteen days prior to the hearing upon such petition. The court may, after hearing and upon finding that such extension is in the best interest of the child, continue the commitment for an additional period of not more than two years. . . .”

       General Statutes § 46b-140 (e) (1) provides: “If the delinquent act for which the child is committed to the department of children and youth services is a serious juvenile offense, the court may set a period of time up to six months during which the department of children and youth services shall place such child out of his town of residence at the commencement of such child’s commitment.”

       “[General Statutes (Rev. to 1985)] Sec. 46b-126. (Formerly Sec. 51-307). CHILD CHARGED WITH A CLASS A FELONY OR SERIOUS JUVENILE OFFENSE TRANSFERRED TO REGULAR CRIMINAL DOCKET, WHEN, (a) The court shall hold a transfer hearing to determine whether it is appropriate to transfer and may transfer from the docket for juvenile matters to the regular criminal docket of the superior court any child referred for the commission of a class A felony, or for any serious juvenile offense designated as a class B or C felony if such child has previously been adjudicated a delinquent for a serious juvenile offense, as defined in section 46b-120, provided such child has attained the age of fourteen at the time the alleged delinquent act was committed. If the child is or has been under the custody of the commissioner of children and youth services, the commissioner shall provide any relevant information concerning the amenability of the child to treatment for use at the transfer hearing. No such transfer shall be valid unless, prior thereto, the court has made written findings after a hearing, that there is probable cause to believe that (1) the child has committed the act for which he is charged; (2) the child is not amenable to treatment in any institution or state agency or other available facility designed for the care and treatment of children to which said court may effect placement of such child which is suitable for his care or treatment; and (3) the prior adjudications of the child, together with the serious and dangerous nature of the acts and the physical, mental and emotional history and condition of the child, are such that the child is a danger to society and requires more secure and longer term handling than the juvenile justice system is able to provide and the institutions to which said court may sentence a defendant sixteen years of age or over are more suitable for the care and treatment of such child. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.”

       General Statutes § 46b-140 (e) (2) provides: “If the delinquent act for which the child is committed to the department of children and youth services is a serious juvenile offense and if the child has been subject to a mandatory transfer hearing but jurisdiction was retained by the superior court, juvenile matters, the court shall impose a period of one year during which the department of children and youth services shall place such child out of his town of residence at the commencement of such child’s commitment.”

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-49 (attempt) and § 53a-48 (conspiracy) are both listed under chapter 952 of the General Statutes entitled “Penal Code; Offenses, ” (emphasis added) as “Inchoate Offenses”; whereas General Statutes § 53a-8 (accessory) is found under chapter 951 entitled “Penal Code: Statutory Construction; Principles of Criminal Liability.”


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    Marsh, Day & Calhoun v. Elisabeth Solomon
    (13083)
    Peters, C. J., Healey, Shea, Callahan and Lavery, Js.
    Argued May 13
    decision released August 4, 1987

      John Lino Ponzini for the appellant-appellee (defendant).

      Abraham I. Gordon, with whom, on the brief, were RichardS. Scab and Ronald D. Japha, for the appelleeappellant (plaintiff).
   Arthur H. Healey, J.

The plaintiff, Marsh, Day & Calhoun, brought this action against the defendant, Elisabeth Solomon, to recover legal fees for services rendered to her. The defendant filed a counterclaim alleging that, upon the termination of their attorney-client relationship, the plaintiff had wrongfully refused, despite demand, to return her files. In her counterclaim, the defendant sought damages and an order directing the plaintiff to return the files. During the trial to the jury, the trial court ruled that it would itself decide that part of the counterclaim which sought an order directing the plaintiff to turn over to the defendant the files it had retained. The trial court then ordered the defendant to file an amended counterclaim reflecting its ruling. On January 23,1986, the jury returned a verdict for the plaintiff on the complaint in the amount of $60,047.42, plus interest, and also a verdict for the plaintiff on the amended counterclaim. On the same day, the trial court filed its memorandum of decision on the matter it had heard as a court. In that memorandum, the trial court denied the defendant’s request for an order directing the plaintiff to return the files. After the trial court denied the defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict, the defendant filed an appeal and the plaintiff filed a cross appeal in the Appellate Court. Pursuant to Practice Book § 4023, this court transferred the appeal and the cross appeal to itself.

The following background facts are undisputed. The plaintiff rendered legal services as attorneys at law to the defendant between October 3, 1983, and October 10,1984. A dispute arose between the parties and the relationship ended on October 10, 1984. Despite demand by the plaintiff, the defendant failed to pay the claimed balance of $60,047.42, plus interest. On November 15, 1984, the plaintiff brought this action and obtained a prejudgment remedy of attachment on property owned by the defendant in Westport. Throughout the trial and appeal, the plaintiff has retained possession of the defendant’s files under a claim of an attorney’s lien.

On appeal, the defendant asks that the files in the plaintiff’s possession be turned over to her and seeks a new trial on the issue of the damages resulting from the allegedly wrongful retention of her files. On the cross appeal, the plaintiff alleges error in the exclusion of evidence concerning the litigation costs which it incurred in the trial below and in the trial court’s failure to charge the jury as to those costs. We find no error on the appeal or the cross appeal.

I

In her appeal, the defendant contends that: (1) Connecticut does not recognize a self-executing attorney’s retaining lien; (2) even if an attorney’s retaining lien has been recognized in the past, it should be void for public policy reasons; and (3) by securing an attachment of the defendant’s property, the plaintiff waived any right to a retaining lien.

A

The main issue on this appeal is whether Connecticut recognizes a common law, self-executing attorney’s retaining lien. An attorney’s retaining lien is a possessory lien on a client’s papers and files that the attorney holds until his fee has been paid. 7 Am. Jur. 2d, Attorneys at Law § 315; 7A C.J.S., Attorney and Client §§ 357, 358; comment, “Attorney’s Liens: A Practical Overview,” 6 U. Brpt. L. Rev. 77, 80 (1985). A retaining lien differs from a charging lien, which is a lien placed upon any money recovery or fund due the client at the conclusion of suit. 7 Am. Jur. 2d, supra, § 324. A retaining lien is a passive lien and the attorney is unable to enforce it at law or in equity. Hagearty v. Burns, 4 Conn. Sup. 505, aff’d sub nom. Hagearty v. Ryan, 123 Conn. 372, 195 A. 730 (1937); Midvale Motors, Inc. v. Saunders, 21 Utah 2d 181, 184, 442 P.2d 938 (1968); Mahomet v. Hartford Ins. Co., 3 Wash. App. 560, 567, 477 P.2d 191 (1970). A retaining lien affords only the right to retain possession until all proper charges are paid. There is no right of sale and the retaining lien’s principal value is the leverage that the lien gives to the attorney over a client who refuses to pay for services rendered. Brauer v. Hotel Associates, Inc., 40 N.J. 415, 422, 192 A.2d 831 (1963).

At common law, the existence of a retaining lien is unquestioned in both English and American courts. Pomerantz v. Schandler, 704 F.2d 681 (2d Cir. 1983); The Flush, 277 F. 25, 29 (2d Cir. 1921), cert. denied sub nom. Bulk Oil Transports v. Thompson, 257 U.S. 657, 42 S. Ct. 184, 66 L. Ed. 421 (1922). It was recognized in England as early as 1734. Ex parte Bush, 7 Viner’s Abr. 74, 22 Eng. Rep. 93 (Ch. 1734); see In re Morris, 1 K.B. 473 (1907). In McPherson v. Cox, 96 U.S. 404, 417, 24 L. Ed. 746 (1877), the United States Supreme Court pointed out that an attorney has a lien by law, apart from any express agreement, on the retained papers of his or her clients for all unpaid attorney’s fees. Federal courts of appeal have recognized the attorney’s retaining lien; Pomerantz v. Schandler, supra; The Flush, supra; Everett, Clarke & Benedict v. Alpha Portland Cement Co., 225 F. 931, 935-37 (2d Cir. 1915); as have most state courts. Annot., 3 A.L.R.2d 148, 150 (1949); see, e.g., Attorney Grievance Commmission of Maryland v. McIntire, 286 Md. 87, 96, 405 A.2d 273 (1979); Levitas v. Levitas, 96 Misc. 2d 929, 931, 410 N.Y.S.2d 41 (1978); Silverstein v. Hornick, 376 Pa. 536, 541,103 A.2d 734 (1954); but see Academy of California Optometrists, Inc. v. Superior Court, 51 Cal. App. 3d 999, 1004, 124 Cal. Rptr. 668 (1975).

Connecticut has also recognized the validity of the attorney’s retaining lien. In Gager v. Watson, 11 Conn. 168, 173 (1836), we stated: “An attorney, as against his client, has a lien upon all papers in his possession, for his fees and services performed in his professional capacity, as well as upon judgments received by him.” This quoted passage obviously refers to both retaining liens on papers and charging liens on judgments. See also Hagearty v. Bums, supra, 506. The most recent Connecticut Supreme Court case to discuss the subject of retaining liens, Andrews v. Morse, 12 Conn. 444, 446 (1838), approved of the Gager holding and stated: “We only say, that [attorneys] have, in certain cases, of which this is one, such a claim upon [judgments and papers] as courts of law and equity will protect and enforce, until their lawful fees and disbursements are paid . . . .”

The defendant argues that “[f]rom the lack of Connecticut case law on retaining liens, it is clear that they have not been viewed by the Connecticut courts as being self-executing.” Citing Andrews v. Morse, supra, the defendant asserts that Connecticut does not recognize self-executing retaining liens but only a “modified version.” The defendant claims that although Connecticut recognizes a right to a retaining lien, the lien is not self-executing but must be established by a court. The defendant argues that the words in Andrews, “courts of law and equity will protect and enforce,” indicate that only a lien enforced by a court is recognized. We disagree. Although the court in Andrews dealt with a charging lien, there is nothing in that opinion to support the defendant’s claim that only a retaining lien established by a court, as opposed to one that is self-executing, existed at common law.

The Andrews opinion also refers to a court’s protection of the attorney’s lien. The fact that protection of the lien is available in a court of law or equity does not defeat the plaintiffs claim that the retaining lien is self-executing. An attorney’s retaining lien need not be established by a court; Hagearty v. Burns, supra, 506; but it certainly can be protected by a court. The only express statement that the Andrews court made concerning a limit on an attorney’s lien is that it was not a lien similar to those of manufacturers and others. Andrews v. Morse, supra. This clearly refers to the right of a manufacturer to sell goods in its possession, a remedy not available to an attorney who has possession of a client’s papers. The Flush, supra, 30; Eiduson Fuel & Hardware Co. v. Drew, 59 App. Div. 2d 1025, 399 N.Y.S.2d 764 (1977); 7 Am. Jur. 2d, supra, § 323.

A self-executing attorney’s retaining lien is not an absolute right but is merely a method for an attorney to protect his proper fee. There are a number of exceptions to the right to impose a retaining or possessory lien. See N. Thompson, “Attorneys’ Fees and Liens,” 85 Com. L. J. 136 (1980). It cannot be utilized, for exam-pie, if the attorney has withdrawn voluntarily or has been discharged for good cause, including negligence and other misconduct. The Flush, supra, 28; 7 Am. Jur. 2d, supra, § 321. When a client has shown a need for the files, courts have ordered release upon payment or furnishing of adequate security. See, e.g., Eiduson Fuel & Hardware Co. v. Drew, supra, 1025-26; annot., supra, 152. There are only rare circumstances when the files will be released without the furnishing of adequate security. Pomerantz v. Schandler, supra, 683; see, e.g., Hauptmann v. Fawcett, 243 App. Div. 613, 276 N.Y.S. 523 (papers were needed in defense of a capital murder charge), modified, 243 App. Div. 616, 277 N.Y.S. 631 (1933). Even in Hauptmann, the files were ordered returned to the attorney after their use. Therefore, barring unusual circumstances, such as prejudice to the rights of a client, an attorney is under no obligation to release the files of a client unless there has been payment, the furnishing of adequate security or, of course, a mutually acceptable arrangement between the parties. The defendant has not identified any circumstances that would require an exception to this general rule.

B

The defendant also claims that the self-executing attorney’s retaining lien deprived her of due process of law under both the federal and state constitutions. The defendant did not raise this issue in the trial court and thus it is presented for the first time on appeal. Only in the most exceptional circumstances will this court review a claim that was not raised in the trial court. Practice Book § 4185; State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973); see Roche v. Fairfield, 186 Conn. 490, 442 A.2d 911 (1982). The exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record adequately supports a claim that a litigant clearly has been deprived of a fundamental constitutional right and a fair trial. Cahill v. Board of Education, 187 Conn. 94, 100, 444 A.2d 907 (1982); State v. Evans, supra, 70. Because neither exceptional circumstance is applicable to the facts in this case, we do not reach the issue of whéther the self-executing attorney’s lien deprived the defendant of due process of law under the state or federal constitution. See Rybinski v. State Employees’Retirement Commission, 173 Conn. 462, 466, 378 A.2d 547 (1977) (refusing to hear procedural due process claim because the lower court had no opportunity to consider the claim). In reaching this conclusion, we note that only on very rare occasions has this court, in the context of a civil case, invoked State v. Evans, supra, in order to review a claim not raised in the trial court. See, e.g., Page v. Welfare Commissioner, 170 Conn. 258, 267, 365 A.2d 1118 (1976) (state equal rights amendment had been enacted between time of trial and appeal).

The defendant also argues that the self-executing attorney’s lien is contrary to public policy because it frustrates the right of a client to change attorneys at any time and for any reason. In support of this claim, the defendant argues that “[i]f the client’s right to change attorneys is absolute, it cannot be the case that the first attorney can defeat that right, in effect, by withholding the client’s file unilaterally . . . .”

The right of unfettered discretion to change attorneys is recognized in Connecticut. Cole v. Myers, 128 Conn. 223, 229, 21 A.2d 396 (1941). It is also recognized by most other jurisdictions. Annot., supra, 151; 7 C.J.S., supra, § 109; see, e.g., Levitas v. Levitas, supra. The attorney also has a right to be paid for services rendered. Cole v. Myers, supra, 230; annot., supra, 151. The attorney’s lien is compatible with both rights. Although the client is free to change attorneys at any time, the client cannot compel the initial attorney to return the files unless that client first pays the balance owed, makes a mutually acceptable arrangement, or furnishes adequate security for the services rendered by the former attorney. This, of course, does not overlook the ethical obligation of the attorney not to exercise the lien to injure the rights of the client. Under current law, the tension between the client’s unfettered right to change attorneys and the attorney’s right to be compensated for legal services rendered is accommodated appropriately by the self-executing attorney’s retaining lien. The defendant’s public policy argument must therefore fail.

C

The final issue raised by the defendant is that the plaintiff waived its right to the attorney’s lien because it sought and obtained an attachment of $89,000, by way of a prejudgment remedy, on a parcel of real estate owned by the defendant. The plaintiff argues that this claim is not reviewable because this issue is being raised for the first time on appeal. Practice Book § 4185; State v. Evans, supra, 69.

Even if we assume that the waiver issue had been properly preserved for appeal, we note that, at oral argument, the defendant conceded that the trial court did not make a finding that the attachment of the defendant’s Westport property was adequate security for the payment of the debt claimed. Moreover, the plaintiff maintained at oral argument that in its “opinion” the attachment of the defendant’s property did not protect its money judgment because encumbrances on that property exceeded the value of the property. The defendant also conceded at oral argument that, despite her claim that there had been adequate security, she did not ask the trial court to discharge the retaining lien. If a trial court finds that adequate security has been furnished, it should exercise its discretion to order release of the files. See Eiduson Fuel & Hardware Co. v. Drew, supra. The facts of this case, however, mandate a different result.

II

The plaintiff has filed a cross appeal in this case, claiming that the trial court erred, first, in excluding evidence of damages for additional counsel fees incurred as a result of the defendant’s breach of their contractual agreement and, second, in not charging the jury as to these additional counsel fees.

A

The plaintiff offered at trial to put into evidence a bill for $23,672.50 for services rendered in connection with the prosecution of this case. The bill consisted of $3372.50 for the hourly time of David Maclay, a partner in the law firm of the plaintiff, $350 in estimated court costs, and $20,000 for estimated attorney’s fees. Upon objection by the defendant’s attorney that the bill was self-serving, irrelevant and not previously produced, the trial court ruled that it was inadmissible. The plaintiff claims that the evidence was relevant because it would have aided the jury in determining the balance owed to the plaintiff. Implicit in the plaintiff’s claim is that the attorney’s fees were damages that arose naturally and generally from the alleged breach of contract. The defendant relies on the rule that unless a contractual agreement clearly specifies payment of attorney’s fees and costs, these items may not be recovered as damages.

The defendant conceded at oral argument both the fact that there had been an agreement to pay the plaintiff for legal services rendered to her by it and that the amount owed thereunder is undisputed. The plaintiff’s use of Bradley v. Gorham, 77 Conn. 211, 213, 58 A. 698 (1904), to establish its right to damages is inapposite. There, the exclusion of the postdischarge bill was error because, first, it involved services rendered before discharge but billed after discharge and, second, the act of sending the bill was probative of the fact that the plaintiff was claiming a right to a commission for the sale that the bill described. Id. In this case, the bill covered costs incurred by the plaintiff during the course of this litigation and not for predischarge services. In addition, there is no dispute that the legal services claimed by the plaintiff had been performed. Therefore, any evidence offered by the plaintiff on the issue of predischarge services would have been irrelevant to the issue of a recovery for postdischarge services.

Nevertheless, the plaintiff insists that these attorney’s fees arise naturally and generally from the breach of contract by the defendant and that the defendant is therefore liable to pay for them. The damages claimed by the plaintiff, however, are those incurred in this litigation in which the plaintiff is attempting to enforce the fee agreement. The plaintiff’s claim, therefore, is essentially indistinguishable from an action to enforce an indemnity agreement. In an indemnity agreement, attorney’s fees are awarded for the cost of litigation arising out of the indemnity agreement but not allowed in an action to enforce the agreement itself. Burr v. Lichtenheim, 190 Conn. 351, 363, 460 A.2d 1290 (1983). The only exception is a specific contractual term to the contrary. Id., 364. The plaintiff was asked at oral argument to distinguish an indemnity agreement from the present case and it conceded that it was unable to do so.

The general rule of law known as the “American rule” is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); Fleischmann Distilling Corporation v. Maier Brewing Co., 386 U.S. 714, 717, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967). This rule is generally followed throughout the country. See 20 Am. Jur. 2d, Costs § 72. Connecticut adheres to the American rule. See, e.g., Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 14, 513 A.2d 1218 (1986); Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 140, 475 A.2d 305 (1984); Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984); Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, 75, 394 A.2d 191 (1978); Central New Haven Development Corporation v. Potpourri, Inc., 39 Conn. Sup. 132, 134, 471 A.2d 681 (1983). The only exceptions are a specific contractual term; see, e.g., Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245, 440 A.2d 306 (1982); or a statute. See, e.g., General Statutes § 52-240a (attorney’s fees may be awarded in a products liability action).

The plaintiff claims that testimony shows that the defendant agreed to pay the plaintiff’s hourly rate plus any and all costs and expenses incurred in connection with the plaintiff’s activities. The jury found that such an agreement existed and awarded $60,047.42 to the plaintiff for those services. The plaintiff, however, also asserts that the expenses of the litigation enforcing that agreement should be considered as part of the costs and expenses owed thereunder. Under the rule in Connecticut, there must be a specific contractual term that any costs include the cost of litigation to enforce the agreement. Storm Associates, Inc. v. Baumgold, supra. Here, there is no evidence of a specific contractual term, written or otherwise, that warrants the awarding of attorney’s fees for the enforcement of the fee agreement.

The agreement in this case falls within the “American rule” rather than any exception. The agreement to pay the costs and disbursements incurred by the plaintiff refers to those costs and disbursements incurred as a result of the services rendered to the defendant as her attorney, not as a party suing to enforce the agreement itself. Therefore, the trial court’s exclusion of the evidence on those additional damages was correct.

B

The plaintiff’s second claim of error is the failure of the trial court to charge the jury on the issue of the expenses incurred during the litigation below. Our determination above, that the defendant is not liable for the plaintiff’s litigation costs of this action, demonstrates that the trial court’s refusal to charge the jury on those additional damages was correct.

There is no error on the defendant’s appeal or on the plaintiff’s cross appeal.

In this opinion the other justices concurred.

       The defendant’s original counterclaim was the following: “1. On or about October, 1983, Defendant retained Plaintiff to represent her in several legal matters and Plaintiff undertook to do so.
      “2. On or about August, 1984, Defendant and Plaintiff terminated their attorney-client relationship on one such matter with a balance outstanding and an agreement relative to the conditions of paying such balance due.
      “3. On or about October, 1984, the parties terminated their attorney-client relationship on other legal matters.
      “4. Since those times Defendant has retained new counsel to proceed with these matters and Plaintiff has, despite demand, refused to turn over to Defendant or her attorneys her files in violation of the Code of Professional Responsibility, DR 9-102 (B) (4).
      “5. Defendant has paid her account on several of these files but despite this Plaintiff refuses to give Defendant her files.
      “6. In all cases, Plaintiffs actions constitute a breach of the express or implied agreement between the parties.
      “7. Further, Plaintiffs actions are an abridgement of Defendant’s rights as a matter of law.
      “8. Further, in many of these matters, Plaintiff failed to obtain the Defendant’s informed consent on the course of Plaintiffs actions on her behalf and otherwise at times acted contrary to the Defendant’s lawful instructions and wishes.
      “9. As a result, the services of the Plaintiff were not reasonably worth what Plaintiff alleges and Plaintiffs actions have damaged Defendant in proceeding with the cases which are the subject matter of this action.”
      The defendant’s amended counterclaim was the following: “1. On or about October, 1983, Defendant retained Plaintiff to represent her in several legal matters and Plaintiff undertook to do so.
      “2. On or about August, 1984, Defendant and Plaintiff terminated their attorney-client relationship on one such matter with a balance outstanding and an agreement relative to the conditions of paying such balance due.
      “3. On or about October, 1984, the parties terminated their attorney-client relationship on other matters.
      “4. Since those times, Defendant has retained new counsel to proceed with these matters.
      “5. In many of these matters, Plaintiff failed to obtain the Defendant’s informed consent on the course of Plaintiffs actions on her behalf and otherwise at times acted contrary to the Defendant’s lawful instructions and wishes.
      “6. As a result, the services of the Plaintiff were not reasonably worth what Plaintiff alleges and Plaintiffs actions have damaged Defendant in proceeding with the cases which are the subject matter of this action.”

       The defendant has not challenged the jury’s verdict that awarded damages to the plaintiff for breach of their contract for legal services.

       The defendant, at oral argument, referred to Rumrill v. Huntington, 5 Day 163, 165 (1811), which states that an attorney’s lien on papers and securities of a client may be enforced in an action of trover. The defendant maintains that this demonstrates a need for independent action by the attorney to enforce any lien, thus proving that only a charging lien existed at common law. The later case of Andrews v. Morse, 12 Conn. 444, 447 (1838), however, declared that its opinion was consistent with Rumrill. We hold that the interpretation of the Andrews court, an opinion that recognizes a self-executing attorney’s retaining lien, is controlling.

       Since we have affirmed the validity of the self-executing attorney’s retaining lien, the defendant’s claim that the plaintiff violated the Code of Professional Responsibility DR 9-102 (B) (4) fails because it is only a violation if the attorney fails to deliver properties “which the client is entitled to receive.” Because, under the circumstances of this case, the defendant is not “entitled” to the files, there is no violation of the Code of Professional Responsibility.
      Code of Professional Responsibility DR 9-102 (B) (4) provides: “preserving IDENTITY OF FUNDS AND PROPERTY OF A CLIENT ....
      “(B) A lawyer shall . . .
      “(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”
      The Code of Professional Responsibility has been superseded by the Rules of Professional Conduct, effective October 1, 1986.
      In her reply brief, the defendant refers to Ethics Opinion 84-3 of the statewide grievance committee. 48 Conn. L.J. 13, p. 15B (1986). This recent opinion, according to the defendant, mandates that certain documents be returned to the client even if the fee is unpaid. Although the grievance committee opinion is purely advisory and not binding, it should be noted that the mandatory return is called for only when “the failure to return the documents would jeopardize the client’s claim.” Id., p. 16B. The defendant in this case has made no specific showing that the withholding of her files jeopardized any of her pending claims.
      The defendant also cites Formal Opinion No. 31, The Obligation to Turn over a Client’s File and the Right to Protect an Earned Legal Fee (1978), of the Connecticut bar association, committee on professional ethics. That opinion sets out a different scenario than this case. That case involved a change of attorneys in a personal injury case where the initial attorney sought not only to protect his contingency fee but also the agreement he had made with physicians that their bills would be paid from the recovery. There, the Connecticut bar association recommended that the initial attorney relinquish the file either after an agreement with subsequent counsel is reached regarding payment or when a letter is sent from the subsequent lawyer stating he will withhold sufficient funds of the client until the initial lawyer’s bill is resolved. Id. Although this opinion is purely advisory to both the trial court and this court, the trial court found that neither alternative had been pursued by the defendant.
      The trial court’s memorandum of decision indicates that David Maclay, a partner in the plaintiff law firm, was willing to cooperate with the defendant’s subsequent attorney. The trial court’s memorandum discloses: “The plaintiffs partner testified he would cooperate with any succeeding attorney, that he wanted some arrangement reached for eventual payment for the services, suggesting a real estate mortgage to defendant at one point, and that he would ‘work something out’ with successor counsel for specific documents as needed by such successor to evaluate defendant’s claims.” The trial court found that the plaintiff had been discharged without cause and that no amicable negotiations had taken place concerning this matter. It is apparent, however, that where it is demonstrated that retention of the file by the initial attorney injures the rights of the client, potentially serious ethical problems confront the initial attorney.

       It has been said that a court has inherent power to enforce retaining liens and that such power arises out of its ability to control and protect its officers. Upgrade Corporation v. Michigan Carton Co., 87 Ill. App. 3d 662, 410 N.E.2d 159 (1980); see Leviten v. Sandbank, 291 N.Y. 352, 52 N.E.2d 898 (1943); comment, “Attorney’s Liens: A Practical Overview,” 6 U. Brpt. L. Rev. 77, 89 (1985). Acknowledging this power, the Second Circuit Court of Appeals has held that “[t]he power which the courts have summarily to enforce the performance by the attorney of his duties toward his client enables the court to protect the rights of the attorney as against the client.” Everett, Clarke & Benedict v. Alpha Portland Cement Co., 225 F. 931, 935 (2d Cir.1915). The power to enforce is not only inherent but also discretionary. See In re Long, 287 N.Y. 449, 40 N.E.2d 247 (1942). Courts have inherent power to order an attorney to release property in his possession in the interest of fairness and equity. See Upgrade Corporation v. Michigan Carton Co., supra; Steiner v. Stein, 141 N.J. Eq. 478, 58 A.2d 102 (1948); Leviten v. Sandbank, supra; Robinson v. Rogers, 237 N.Y. 467, 143 N.E. 647 (1924). One court has noted: ‘ ‘The retaining lien is a judicial device for the protection of the attorney. . . . An attorney should not be permitted to use it wantonly to injure his client.” Steiner v. Stein, supra, 480-81.

       This figure was arrived at by taking one third of the $60,047.42 recovered in the trial court that the plaintiff was claiming as its fee for the legal services it had rendered to the defendant.


author: Shea, J.

text:
    State of Connecticut v. Robert E. Richardson
    (12939)
    Peters, C. J., Healey, Shea, Cretella and Aronson, Js.

      Argued May 12
    decision released August 4, 1987

      Louis S. Avitabile, special public defender, and Denise Dishongh, with whom, on the brief, was Joshua R. Kricker, for the appellant (defendant).

      JohnH. Gorman, special assistant state’s attorney, with whom were Peter D. Markle, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Shea, J.

A jury found the defendant guilty of illegal possession of narcotics in violation of General Statutes § 21a-279 (a). In this appeal from the judgment rendered in accordance with the verdict, the defendant claims that the trial court erred: (1) in denying the defendant’s motion to disclose the informant’s identity, and in failing to hold at least an in camera hearing on his identity so the defendant could use the information to challenge the probable cause or articulable suspicion claimed to justify the stop and search; (2) in not allowing the informant’s identity to be disclosed despite the defendant’s contention that the informant was a witness to the continuing crime of possession of narcotics; (3) in denying the defendant’s motion for disclosure of the informant’s identity even after the state had introduced evidence before the jury that there had been a complaint about the defendant, and that on the basis of that complaint the detectives had initiated an investigation concerning narcotics; and (4) in failing to allow the defendant to discover whether the informant was one of four people who had had access on the day of the crime to the car in which the defendant was arrested for possession of narcotics. We find no error.

From the evidence presented at the hearing on the defendant’s pretrial motions, the court could reasonably have found the following facts. An informant saw the defendant sell a quantity of narcotics in the north end of Waterbury on May 30, 1985. Twenty minutes later the informant conveyed this information to Detectives William Howard Jones and Domingo Pietri. He also told them that the defendant had a large quantity of narcotics on his person, that he was driving a small blue vehicle bearing a specified registration number, and that he was heading to the Walnut Street area. The informant indicated that his information was based on personal observation. The detectives had known the informant for four years, and were aware that his information in the past had resulted in six arrests and convictions. Jones testified that he had known the defendant personally as a result of previous narcotics investigations and arrests.

At the trial before the jury evidence was presented of the following facts. After receiving a complaint concerning the defendant, the two officers, in an unmarked car, drove to the north end of Waterbury and observed the defendant driving a car matching the vehicle described by the informant. They began following the defendant’s car. They saw the car weave back and forth, and strike the curb of the sidewalk at least twice. The two officers also observed the defendant making fidgeting movements while he was driving in an erratic manner. After they had stopped the defendant’s ear, Pietri approached the car and saw the defendant take a plastic bag out of his right pants pocket and place it underneath the dashboard. The two detectives then arrested the defendant. The plastic bag removed from underneath the dashboard during the search of the vehicle was found to contain narcotics.

I

The defendant first claims that the trial court erred by denying his motion for disclosure of the informant’s identity. According to the defendant, this disclosure was essential to allow him to challenge the probable cause or articulable suspicion relied upon by the police for the stop and search. In the alternative, the defendant argues that a judge must at least hold an in camera hearing to verify the existence of the informant and the credibility of his information. We reject both of these contentions.

The United States Supreme Court’s decision in Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), provides a starting point for our analysis of how courts should balance the state’s interest in protecting informants against the defendant’s interest in obtaining information useful in conducting his defense. Courts have recognized an informant’s privilege. “What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” (Citations omitted.) Id., 59.

While an informant’s or government’s privilege exists, it must yield where it would interfere with a defendant’s right to a fair trial. “Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id., 60-61.

Two factors must be kept in mind in evaluating the significance of Roviaro for the claim under consideration. First, in Roviaro, the informant was a participant in the crime charged, and his testimony was sought at the trial itself rather than at a suppression hearing. Second, Roviaro involved the application of federal evidentiary rules, and the decision did not rest on constitutional grounds. State v. Harris, 159 Conn. 521, 527, 271 A.2d 74 (1970), cert. dismissed, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630 (1971).

Roviaro did not address the problem of whether courts should disclose the identity of informants who supply information to the police that ultimately results in an arrest, but who are not participants in the crime charged. The Roviaro decision, however, does offer an intellectual framework for analyzing such an issue. It suggests that the question of disclosure should be determined on a case by case basis, and advocates the use of a balancing test. “We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, and possible significance of the informer’s testimony, and other relevant factors.” Roviaro v. United States, supra, 62.

A

The claim that a defendant is entitled to the disclosure of the identity of an informant to enable him to challenge the basis for probable cause relied upon by the police in making an arrest or search has been rejected by the United States Supreme Court in McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62, reh. denied, 386 U.S. 1042, 87 S. Ct. 1474, 18 L. Ed. 2d 616 (1967). In that case the court made a sharp distinction between informants who are participants in the crime itself and whose testimony is vital at the trial in determining guilt or innocence, and those informants who merely supply information useful in establishing probable cause for an arrest or search. “What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer’s identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake.” Id., 311; State v. Conger, 183 Conn. 386, 392-93, 439 A.2d 381 (1981); State v. West, 178 Conn. 444, 445-46, 423 A.2d 117 (1979); State v. McDaniel, 176 Conn. 131, 133-34, 405 A.2d 68 (1978); State v. Harris, supra, 525-30; State v. Hall, 28 Conn. Sup. 331, 334-35, 260 A.2d 411 (1969).

In State v. Harris, supra, this court followed McCray in determining that the identity of an informant could be withheld where he was not a participant in the crime with which the defendant was charged and his testimony was not essential to assure a fair determination of guilt or innocence at the trial itself. “In the present case, in contrast to the Roviaro case, there is no suggestion that the informer was a participant in the crime with which the defendant was charged. Instead, the defendant indulges in surmises as to what information might be gleaned from an examination of the informer.” State v. Harris, supra, 529; State v. Conger, supra; State v. West, supra; State v. McDaniel, supra; State v. Hall, supra.

There are important reasons for treating a motion to disclose an informant’s identity differently at a suppression hearing than at a trial. “ ‘We must remember also that we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society’s need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment. State v. Smith, 37 N.J. 481, 416, 181 A.2d 761 (1962). If the motion to suppress is denied, [the] defendant will still be judged upon the untarnished truth.’ ” McCray v. Illinois, supra, 307, quoting State v. Burnett, 42 N.J. 377, 386-87, 201 A.2d 39 (1964).

Judge Friendly in United States v. Comissiong, 429 F.2d 834 (2d Cir. 1970), undertook a careful analysis of McCray v. Illinois, supra. He concluded: “In McCray v. Illinois, [supra], the Court dealt directly with the problem here presented. The decision at least establishes that disclosure of the identity of an informer is not constitutionally required even though his information is the sole basis for probable cause.” (Emphasis in original.) United States v. Comissiong, supra, 837; Mapp v. Warden, 531 F.2d 1167, 1173 (2d Cir. 1976).

There is even less reason to disclose the identity of informants for the purpose of a probable cause hearing where independent corroborating evidence exists. This independent evidence need not be sufficient to establish probable cause or articulable suspicion by itself. “In Comissiong, we sanctioned non-disclosure where ‘[t]he independent evidence, even though not adequate of itself to establish probable cause, constitutes a sufficient voucher against fabrication, although obviously not a complete one.’ ” United States v. Carneglia, 468 F.2d 1084, 1088 (2d Cir. 1972), cert. denied sub nom. Inzerillo v. United States, 410 U.S. 945, 93 S. Ct. 1391, 35 L. Ed. 2d 611 (1973); Mapp v. Warden, supra.

There was sufficient independent evidence in this case to protect the defendant against fabrication without disclosing the identity of the informant. The defendant contends that the informant’s tip was the sole basis for the probable cause or articulable suspicion to stop and search the vehicle. The facts do not support the defendant’s claim. Two police officers personally observed certain behavior of the defendant that independently corroborated the informant’s tip. They knew about the defendant’s prior involvement with narcotics, they saw him drive in an erratic and fast manner, and they observed his fidgety movements. Pietri watched the defendant remove the plastic bag, later found to contain narcotics, from his pocket and place it under the dashboard.

According to the United States Supreme Court in McCray v. Illinois, supra, 305, the defendant’s ability to cross-examine any police officers involved in a case, and a trial judge’s opportunity to evaluate their credibility are sufficient safeguards in a suppression hearing in which the issue is probable cause rather than guilt or innocence. “In permitting the officers to withhold the informant’s identity, the court was following well-settled Illinois law. When the issue is not guilt or innocence, but, as here, the question of probable cause for an arrest or search, the Illinois Supreme Court has held that police officers need not invariably be required to disclose an informant’s identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant. This Illinois evidentiary rule is consistent with the law of many other States.” Id.

We hold that the state is not required to disclose the identity of an informant at a suppression hearing in which probable cause or articulable suspicion is at issue, unless the trial court, in its discretion, concludes that such disclosure is necessary in order to support adequately the veracity of the police officers who profess to have relied upon the information furnished by the informant. McCray v. Illinois, supra, 305-308; United States v. Comissiong, supra, 838-39; see State v. West, supra, 445-46; State v. McDaniel, supra, 133-34; State v. Burnett, supra, 388.

B

In the alternative, the defendant claims that the trial judge should have held an in camera proceeding to determine the existence of the informant, and to examine his credibility. We disagree. Whether to conduct an in camera examination is within the discretion of the trial judge, and this procedure is not mandated whenever the informant’s identity is requested. United States v. Fixen, 780 F.2d 1434 (9th Cir. 1986); United States v. Kerris, 748 F.2d 610 (11th Cir. 1984); United States v. Alexander, 559 F.2d 1339 (5th Cir. 1977); United States v. Gonzalez, 555 F.2d 308 (2d Cir. 1977). “Nonetheless, a district court need not conduct an in camera hearing whenever the identity of an informant is requested. United States v. Kerris, [supra, 614]. Rather, it is within the judge’s discretion whether to hold such a hearing, id., and a decision denying a defendant’s request for an in camera proceeding should be overturned only if there is an abuse of discretion.” United States v. Fixen, supra, 1440.

Mere speculation that the informant’s information will be helpful to the defense is not sufficient to mandate disclosure or an in camera hearing. United States v. Kerris, supra; Lannom v. United States, 381 F.2d 858, 861 (9th Cir. 1967); State v. Johnson, 162 Conn. 215, 229, 292 A.2d 903 (1972); State v. Harris, supra; State v. Hall, supra. A judge’s denial of an in camera hearing is an abuse of discretion only when disclosure is “essential to a fair determination of a cause” at trial. Roviaro v. United States, supra, 61; United States v. Fixen, supra.

In determining whether to conduct an in camera proceeding a judge must balance the “public interest in protecting the flow of information against the individual’s right to prepare his defense.” Roviaro v. United States, supra, 62. A defendant’s interest in having a judge conduct an in camera proceeding is not of constitutional magnitude when an informant is a mere tipster who did not participate in the crime which is being charged. The state has a superior interest in protecting the identity of its informants when the truth of the testimony offered in proof of the crime itself is not implicated.

There are serious potential risks involved in conducting an in camera hearing to examine an informant. One should distinguish between in camera proceedings in which a judge merely examines documents or records, and those which require the actual physical presence of an individual. In a number of cases we have indicated that trial judges should conduct in camera hearings to determine whether confidential psychiatric or rape crisis counseling records must be disclosed to vindicate a defendant’s right of confrontation. State v. Whitaker, 202 Conn. 259, 271-72, 520 A.2d 1018 (1987); State v. Pierson, 201 Conn. 211, 225-26, 514 A.2d 724 (1986). During these in camera hearings great care is taken to protect the victim’s right of confidentiality. State v. Whitaker, supra; In re Robert H., 199 Conn. 693, 708-10, 509 A.2d 475 (1986).

Requiring an informant to attend an in camera hearing involves a substantial risk that his identity will be discovered. Such a hearing would normally require an informant to come to the courthouse. The defendant or his criminal associates may through a variety of means learn when the proceeding is taking place, and observe those who enter the courthouse at that time. Those people who attend the hearing may either intentionally or unintentionally leak information about the informant’s identity. Not only may an in camera hearing endanger the informant’s safety, but potential informants may be discouraged from revealing information if there is a significant likelihood that they must risk attending such a hearing. Many potential informants may be willing to trust one or two police officers to protect their identity but not the criminal justice system as a whole. In exercising its discretion about the need for an in camera hearing, a trial court should consider the risks that a hearing may present for an informant.

II

The defendant contends that the informant was a witness to the continuing crime of possession of narcotics and, therefore, claims that the trial court erred in not allowing the informant’s identity to be disclosed. If an informant is either a participant in or a witness to the crime charged, his identity must be disclosed. State v. Conger, supra; State v. West, supra; State v. McDaniel, supra; State v. Harris, supra, 525-30; State v. Hall, supra. The determinative issue presented by this claim is whether the informant was a witness to the crime of possession of narcotics.

The informant was not present when the police stopped and arrested the defendant and searched the car. The trial court ruled that the elements of the crime of possession committed in the presence of the officers at the corner of Camp and Orange Streets could be proved without testimony of the informant and, therefore, denied disclosure of the informant’s identity.

The defendant concedes that the informant was not present at the stop and search. He points out, however, that the substitute information charged the defendant with possession of narcotics at Waterbury, on May 30, 1985, without specifying that the crime was committed at the corner of Camp and Orange Streets. There was no bill of particulars indicating where in Waterbury the possession of narcotics had occurred. The defendant admits that the only connection of the informant to the crime was that the informant had seen the defendant in possession of narcotics in a white plastic bag twenty-five minutes before the stop and search by the police. The defendant maintains, however, that he was convicted of possessing the narcotics from the time he met the informant until he was arrested approximately twenty-five minutes later. He relies on the fact that the substitute information does not specify at what time or place the incident occurred to support his contention that he was convicted of continuous possession of narcotics for the entire twenty-five minute period of time.

The defendant urges us to rely on double jeopardy cases for our analysis of whether the offense in this case involves separate or continuous incidents. In State v. Thompson, 197 Conn. 67, 71-73, 495 A.2d 1054 (1985), we held that the state could bring separate prosecutions of a defendant in connection with two sales of narcotics which took place five days apart. We indicated that the five day interval was sufficiently long so that one could say that they constituted two separate transactions rather than a single continuous crime. Id., 73. In State v. Goldson, 178 Conn. 422, 425, 423 A.2d 114 (1979), we held that the state could not bring separate charges of being in possession of heroin, and of transporting heroin where the information and bill of particulars stipulated a single date and time for both offenses. It may be that in this case the state could not have brought one charge for possession of narcotics based on the informant’s observations, and a second possession charge based on what the police detectives saw, although we need not decide that question. It is simply irrelevant whether the twenty-five minute time period would represent a single continuous transaction under double jeopardy analysis. Absent a valid double jeopardy claim, there is no constitutional requirement that we view the twenty-five minute time period as representing a continuing crime.

Since a double jeopardy analysis of what circumstances constitute separate or continuous crimes is inapplicable here, the issue is whether the informant was a witness to the crime of which the defendant was convicted as presented to the jury. The record contains no indication that the informant observed any of the events relied upon by the state at trial to establish the elements of the offense. State v. Conger, supra, 392-93. Detective Pietri’s testimony that he saw the defendant remove a plastic bag, later found to contain narcotics, from his pocket and place it under the dashboard of his car was sufficient to establish all the necessary elements of the offense of illegal possession of narcotics. The only significant factual dispute during the trial was whether Pietri told the truth when he testified that he had seen the defendant place the plastic bag under the dashboard. Since the record does not indicate that the informant was present when the police stopped and searched the car he could shed no light on the conflict in the testimony between the defendant and Pietri. There was no plausible reason to reveal the identity of the informant in relation to the evidence presented at trial.

Ill

The defendant argues that even if the state was not initially required to disclose the identity of the informant, it had an obligation to do so once the prosecution chose to introduce evidence that the police had initiated an investigation of the defendant concerning narcotics after receiving a complaint about him.

In presenting its case at trial, the state inquired of Detective Jones whether he had received a complaint about the defendant. The officer stated that he had and that as a result of this complaint, he had conducted an investigation in regard to the defendant concerning narcotics. No mention of an informant was made and nothing relating to the substance of the informant’s communication to the detective was admitted into evidence.

The defendant contends that these questions and the answers of the police allowed the jury to infer a knowledgeable possession of narcotics by the defendant, and that, therefore, the identity of the informant ought to be disclosed. We held in State v. Conger, supra, 393, that indirect references to an informant’s tip do not necessarily require disclosure of his identity. A defendant’s right to confront his accusers remains unimpaired as long as the substance of the tip is not used in proving the offense. “But we cannot hold that this single miscue [the initial allusion to the tip which occurred during questioning by the state’s attorney] required the state, in order to vindicate the defendant’s right to confront his accusers, to disclose the informant’s identity. Nor can we conclude that this reference deprived the defendant of a fair trial. The state did not directly rely on the substance of the tip to establish an element of the offense. Under these circumstances, the court did not commit error when it declined to order the informant’s identity disclosed.” Id.

Here the state neither relied on the informant’s information to establish an element of the offense nor introduced its substance into evidence. The testimony of the police officers supplied the jury with ample evidence to infer that the defendant knowingly possessed narcotics. The officers testified to the defendant’s evasive and erratic operation of the motor vehicle, to the defendant’s fidgety upper body movements, and to the defendant’s removing the plastic bag from his right pants pocket and placing it behind the console. Any inference that the jury might have drawn from the fact that the police had received a complaint concerning the defendant and narcotics was not significantly prejudicial to the defendant. A mere reference to a “complaint” without any attempt to explore its substance or origin did not require disclosure of the informant’s identity.

IV

The final claim of the defendant is that the trial court erred in failing to allow him to discover whether the informant was one of four people who, on the day of the crime, had previous access to the automobile in which he was arrested for possession of narcotics. He contends that the refusal of the trial judge to require disclosure of the informant’s identity denied him his constitutional right to develop a defense.

The defendant maintains that Estraleita Reed, Tyrone (Akeem) Griffin, Kerry Spearman, and Jerry Grant all had access within twenty-four hours before his arrest to the automobile in which he was sitting when the narcotics were found by the police. He contends that he was entitled to know whether one of these persons was the informant, because there is a reasonable possibility that the informant planted the drugs and framed him.

The defendant had the opportunity to subpoena these four people to find out whether one of them was the informant and to determine whether one of them had framed him. Reed and Grant testified for the defendant at the trial. He could have subpoenaed Spearman, who was on probation and had pending drug cases. The defendant claimed during the trial that he had attempted to subpoena Griffin, but was unable to locate him. He failed, however, to ask the judge for a continuance to give him more time to find Griffin, and, therefore, he cannot now complain on appeal about his inability to talk with Griffin.

The defendant contends that his ability to subpoena the four people was not enough. He speculates that, if he had asked each of the four under oath whether he or she was the informant or had framed the defendant, the actual informant might have committed perjury. The state’s attorney could hardly have remained silent, however, in the event that the actual informant, whose identity was known to the police, had perjured himself on the witness stand. It would have been incumbent upon the state to ensure that a false denial of informant status by any of the four persons named by the defendant did not occur and thus to check with the police for the purpose of discovering any such false testimony. Merrill v. Warden, 177 Conn. 427, 431, 418 A.2d 74 (1979); see Rules of Professional Conduct § 3.8 (d).

Mere conjecture by the defendant that the informant might have framed him and might, when subpoenaed, have committed perjury is insufficient to meet the defendant’s burden of showing that the trial judge abused his discretion in denying disclosure of the informant’s identity. “In State v. Harris, [supra], the defendant sought to compel the state to disclose the identity of an informer who had advised the police that there were narcotics at the defendant’s home. As in the case at bar, only surmise and conjecture were suggested by the defendant as to how the informer could supply information which would be beneficial to the defendant’s case. There is nothing in the record before us to show that the informant participated in or had knowledge of the crime charged. In State v. Harris, supra, we held (p. 530) that under the circumstances there was no abuse of discretion either in the court’s refusal to compel the disclosure of the informant’s identity or in excluding testimony as to that identity. Similarly, we conclude in this case that the trial court did not abuse its discretion in ruling as it did in this regard.” State v. Johnson, supra, 229.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 21a-279. (Formerly Sec. 19-481). penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL sanctions, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years, or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       Detective Jones testified as follows:
      “Q. And, while you were at headquarters, did you receive a complaint?
      “Mr. Avitabile: Objection, your Honor, to the question because of where it’s going, based on the arguments just made off the record.
      “The Court: He can answer the question yes or no, but he can’t repeat what he has heard.
      “By Mr. Markle:
      “Q. Ask you again, just answer yes or no. Did you receive a complaint concerning Robert Richardson?

        “A. Yes, I did.
      “Mr. Avitabile: May I have an exception, your Honor.
      “The Court: Noted.
      “By Mr. Markle:
      “Q. And, as a result of that complaint, did you conduct an investigation in regards to Mr. Richardson?
      “A. Yes, I did.
      “Mr. Avitabile: Objection, your Honor, again to the question and the answer, based on the argument.
      “The Court: All right. The question was: did he conduct an investigation with respect to Robert Richardson. He can answer it yes or no.
      “By Mr. Markle:
      “Q. Again, before you answer, I will ask you: what was the purpose or objective of your investigation?
      “A. Narcotics.
      “Q. And, did you proceed to leave the police headquarters in regards to that complaint and your investigation?
      “A. Yes, I did.”
      Detective Pietri testified as follows:
      “Q. While at police headquarters that night, did you receive information concerning a—did you receive a complaint?
      “A. Yes, sir.
      “Q. And, based on the information that you received, what, if anything, did you and Detective Jones proceed to do?
      “Mr. Avitabile: Objection, your Honor, same objection as to Detective Jones’s.
      “The Court: All right. Noted. Overrule the objection. Note an exception.
      “Mr. Avitabile: Thank you, your Honor.
      “By Mr. Markle:
      “Q. Based on that information, what, if anything, did you and Detective Jones do?
      “A. We left the police station.
      “Q. And, where did you proceed to go?
      “A. We proceeded to go to the North Square area of the City of Waterbury.
      “Q. North Square area?
      “A. North end area of the City of Waterbury.
      “Q. And, who were you looking for at that time?
      “A. We were looking for Mr. Henderson.
      “Q. Okay. Did you know Mr. Richardson at that time?
      “A. Richardson.
      “Q. I’m sorry, who?
      “A. Richardson. Robert Richardson, I believe.”