text:
    State of Connecticut v. Francisco Artieri
    (13000)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued December 3, 1987
    decision released January 26, 1988

      Susan A. Quinn, certified legal intern, with whom were Todd D. Fernow, Robert C. Walsh, certified legal intern, and, on the brief, Michael R. Sheldon, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, was Terrence A. Sullivan, state’s attorney, for the appellee (state).
   Shea, J.

A jury found the defendant guilty of possession of a narcotic substance with the intent to sell in violation of General Statutes § 21a-277 (a). In this appeal from the judgment rendered in accordance with the verdict, the defendant claims that the trial court erred by abusing its discretion in permitting the state to introduce, as rebuttal evidence, his three 1975 convictions for sale and possession of heroin, including the facts underlying those convictions. He contends that he was thus deprived of a fair trial. We find error and remand the case to the trial court for a new trial.

From the evidence at the trial the jury could reasonably have found the following facts. On the evening of February 7, 1985, members of the statewide narcotics task force (SNTF) and of the Willimantic police department, armed with a search and seizure warrant, assembled a team of officers outside 33 Cameo Drive in Willimantic to await a shipment of narcotics, which they expected to be delivered to that address at that time in a blue Pontiac LeMans automobile. The “target vehicle” was sighted at about 10:50 p.m. by Trooper Sydney E. Luther, who was stationed nearby in a surveillance van. According to Luther, after the car had stopped near the house, both the defendant, Francisco Artieri, who was driving the Pontiac, and the passenger, Raymond Castillo, exited and went to the trunk of the car together. The defendant opened the trunk and Castillo reached in and grabbed something out of the trunk. The object removed from the trunk was described as “a dark object, plastic bag type object which was approximately no longer than a foot.” Castillo carried the package under his arm to the house and knocked on the door. The two men were then let into the house.

During the ensuing raid of the house, the police confiscated approximately 800 glassine bags of heroin, packaged in lots of 100 in larger plastic bags, which were cylinder-shaped and wrapped with masking tape. The defendant and the other occupants of the house were arrested. The police summoned a tow truck to remove the vehicle in which the defendant and Castillo had arrived. When the car had been removed, they noticed a brown plastic bag lying in the snow about one foot inside the snow track left by the vehicle on the passenger side. This item contained eleven cylinder-shaped bags wrapped with masking tape. Inside each bag were approximately 100 glassine packets of white powder, later found to be heroin.

I

The only issues in this appeal are whether the trial court erred by permitting the state to introduce during its rebuttal the defendant’s three 1975 convictions for sale and possession of heroin, and if so, whether that error was harmful.

The principal reason offered at trial for the introduction of the defendant’s prior convictions was that they allegedly contradicted testimony that he gave on his cross-examination by the state. It is well established that “[e]vidence which is inadmissible except to contradict a witness, but which contradicts nothing the witness has testified to, is inadmissible . . . ." 98 C.J.S., Witnesses § 639 (a). This court has held that it is erroneous to admit evidence that does not contradict the testimony of a witness when such evidence has been admitted ostensibly for that purpose. State v. L’Heureux, 166 Conn. 312, 323, 348 A.2d 578 (1974); State v. Hines, 163 Conn. 617, 619, 316 A.2d 392 (1972). In this case, neither the heroin convictions nor the facts underlying them contradicted any of the defendant’s testimony. The state asked the defendant a series of questions on cross-examination about whether he recognized the large cylinder-shaped plastic bags wrapped with masking tape, which contained the small glassine bags of heroin, as being a type of packaging commonly associated with heroin distribution:

“Q. You didn’t know that the package that was removed from the car contained heroin?
“A. No.
“Q. Do you know what heroin is?
“A. Yes.
“Q. Have you ever seen heroin?
“A. Yes.
“Q. Have you seen heroin packaged, put in packages?
“A. Yes, I have seen it.
“Q. How is it that you know about that subject matter, Mr. Artieri? . . .
“A. I seen—I have seen it. And I have seen the people.
“Q. Where have you seen heroin?
“A. The streets. It’s anywhere.
* * *
“Q. Okay. Thank you. Mr. Artieri, if you were to see one of these rolled up, see a whole bunch of them together, would you recognize what they were?
“A. No.
“Q. You have never seen anything like that before, have you?
“A. No.
“Q. You wouldn’t suspect at all that it contained packets of the heroin, would you?
“A. No.
“Q. Because you really haven’t had any experience in that area, have you?
“A. (No response.)
“Q. Your answer?
“A. No.”

The trial court then permitted the state to introduce the defendant’s three prior convictions apparently to contradict his testimony that he was unfamiliar with that type of packaging for heroin.

The fact that the defendant had been convicted of three offenses in 1975 for possession and distribution of heroin did not contradict his testimony that he did not recognize the large cylinder-shaped plastic bags wrapped with masking tape as being the type associated with the distribution of heroin. Detective Michael Goldstein, who had arrested the defendant for the crimes resulting in the previous convictions, testified during the state’s rebuttal that the heroin he had seized from the defendant in connection with these previous convictions was packaged in foil packets. The state presented no evidence that these three convictions had involved the use of large cylinder-shaped plastic bags wrapped with masking tape. We conclude that these convictions were not admissible to contradict the defendant’s testimony that he was unfamiliar with that variety of packaging for heroin.

The state contends that, if the convictions and the facts underlying them did not contradict the defendant’s testimony that he was unfamiliar with the manner in which the heroin found by the police had been packaged, they did refute the impression his testimony may have created that his experience with heroin was limited to having seen it on “[t]he streets. It’s anywhere.” The quoted response, however, was to the question of where the defendant had seen heroin, and cannot fairly be viewed as an attempt to minimize his experience with that substance. The defendant’s subsequent negative response to the question, “Because you really haven’t had any experience in that area, have you?” plainly related only to the defendant’s experience with the cylindrical type of packaging used for the heroin seized by the police.

The state also relies upon precedent holding that a prior conviction for sale of heroin is admissible as proof of intent to sell a substantial quantity of heroin found in the possession of an accused. “Under a charge of possession with intent to sell, the fact that in the past the defendant had been a seller of the drug would tend to characterize the nature of his possession of the drug at the time of the alleged offense.” State v. Amaral, 179 Conn. 239, 244-45, 425 A.2d 1293 (1979); see State v. Geyer, 194 Conn. 1, 17, 480 A.2d 489 (1984) (Shea, J., concurring); State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979). In Amaral, however, the quantity of narcotics consisted of ten aluminum foil bags of heroin found in the defendant’s home, an amount conceivably held for personal use of the defendant and thus not particularly indicative of an intent to sell. The “several” prior convictions for sale of heroin, therefore, had significant probative value. In the present case where 800 glassine bags of heroin packaged in lots of 100 were found in the home and 1100 bags similarly packaged were found under the car, if the defendant had knowledgeable possession of the heroin, the intent to sell or distribute was obvious. The central issue at trial, therefore, was whether the defendant actually knew what the packages handled by Castillo contained. He was charged specifically with having transported a quantity of heroin to 33 Cameo Drive, Willimantic. The gravamen of his defense was that he was unaware of the contents of the packages carried by Castillo.

Where evidence having a serious potential for prejudice is offered, the trial court must weigh its probative value against its prejudicial effect. State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). “Where the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility.” State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982). In the case at bar, the defendant was charged with virtually the same crime, possession of heroin with intent to sell, of which he had been convicted in 1975. In view of the tendency of jurors to assume that “ ‘if he did it before he probably did so this time' "; Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 88 S. Ct. 1421, 20 L. Ed. 2d 287 (1968); a conviction for a crime similar to that charged inevitably weighs heavily on the side of prejudice and is counterbalanced only if the evidence has significant probative value on an important aspect of a case.

The trial court appears to have recognized these principles in ruling that the prior convictions could not be used merely to impeach the defendant during cross-examination. In ruling upon a motion in limine before the trial began, the court had ruled that the convictions, though barred as impeachment evidence, could be admitted “for the narrow purpose of showing Mr. Artieri’s intent and knowledge in the present case.” The state, however, did not offer these convictions during its case-in-chief, presumably because the large quantity of heroin involved and the type of packaging used left no doubt whatever that it was being held for sale or distribution.

In admitting the evidence as rebuttal, the trial court did not indicate that, if the defendant was aware that he was transporting the heroin, there would be a serious dispute concerning his purpose. The court relied expressly on its construction of the defendant’s response that he had no “experience in that area” as a denial of any experience with heroin generally rather than as a denial of any experience with the method of packaging to which the inquiry related. Because the court misconstrued the defendant’s response, we cannot view the ruling admitting the prior convictions as indicating that the court had concluded that such evidence was highly probative of any significant issue in the case. On the central issue of whether the defendant knew the packages he had transported in his car contained heroin, indeed, the state has been unable to suggest how those convictions would have any probative value at all, let alone a quantum sufficient to outweigh their highly prejudicial effect. Accordingly, we find error in the ruling admitting the prior convictions.

II

The defendant does not claim that this error was of constitutional significance. When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980); State v. L’Heureux, supra. The defendant must show that it is more probable than not that the erroneous action of the court affected the result. State v. Ruth, supra; State v. L’Heureux, supra, 323-24.

The state argues that even if the trial court erred in admitting the defendant’s three 1975 heroin convictions the error was harmless in view of the overwhelming evidence against the defendant. We agree with the state that under some circumstances the erroneous admission of prior convictions, including those exactly the same as the crime charged, may be harmless if the evidence against the defendant is overwhelming. We disagree with the state’s contention that the evidence in this case was overwhelming. Castillo testified that he asked the defendant to drive him from Bridgeport to Willimantic because he did not have a motor vehicle operator’s license. On cross-examination, Castillo reiterated that the defendant “didn’t know anything about [the heroin].” The defendant consistently denied that he knew that the packages contained heroin.

The state during the trial produced some circumstantial evidence indicating that the defendant knew the packages contained heroin, but this evidence was hardly overwhelming. The state refers to the defendant’s allegedly “furtive movements” in getting out of the car and approaching the house, but this conduct is at best equivocal in establishing his knowing participation in the offense. The state also relies upon the following statement made by the defendant: “If you got to do the time, you got to do the time.” This remark, however, was made after Gilberto Quintina, arrested with the defendant at the house, asked Willimantic police officer Thomas Lombardo if they would be taken to the correctional facilities at Somers or Brooklyn, and Lombardo had responded that if they could not make bail they would probably be taken to Brooklyn. The state maintains that the defendant’s statement demonstrated that he “adopted a nonchalant attitude toward the penalty for dealing in illicit drugs,” but these remarks were hardly an admission of guilt in the present case.

The state’s case is simply not sufficiently strong to overcome the probability that the defendant’s prior convictions, when added to the state’s other evidence, were a decisive factor in the result. We conclude that the erroneous admission of the three 1975 convictions for heroin possession and distribution was likely to have affected the result of this case, and hold, therefore, that the error was harmful.

There is error, the judgment is set aside and the case is remanded to the trial court for a new trial.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 21a-277. (Formerly Sec. 19-480). penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned.”


source: Caselaw Access Project

author: Callahan, J. Arthur H. Healey, J.,

license: Public Domain

text:
    State of Connecticut v. Leonard R. Benton
    (13159)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.
    Argued November 12, 1987
    decision released January 26, 1988

      John R. Williams, with whom, on the brief, was Sue L. Wise, for the appellant (defendant).

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in an information with four counts of violating the state dependency producing drug law and one count of possession of drug paraphernalia in a drug factory situation. After the trial court denied his supplemental motion to suppress evidence, the defendant entered nolo contendere pleas to all counts of the information under General Statutes § 54-94a. In doing so, he reserved his right to appeal the trial court’s denial of his supplemental motion to suppress. The trial court entered findings of guilty on all counts and sentenced the defendant to an effective term of ten years imprisonment.

The defendant appealed to the Appellate Court, claiming that the trial court erred in failing to suppress evidence that had been gathered as a result of a wiretap on his telephones and a subsequent search of his apartment by the police. The wiretap had been authorized by an order of the wiretap panel. General Statutes § 54-41d. The search had been conducted pursuant to a subsequently issued search warrant. General Statutes § 54-33a.

On his appeal to the Appellate Court, the defendant’s principal claim was that the affidavit in support of the state’s application to the wiretap panel contained references to conversations that emanated from his apartment in a two family duplex house located at 200 Westfield Avenue in Bridgeport. Those conversations, he argued, were illegally overheard by an eavesdropping police officer in violation of the defendant’s rights under the fourth amendment to the United States constitution. He contended, therefore, that they could not be cited in the affidavit and that, without those conversations, there was insufficient probable cause to justify the issuance of the wiretap order. Information gathered as a result of the wiretap was later used as a principal component of probable cause in an affidavit employed to obtain the search warrant for the defendant’s apartment. The defendant argued that any evidence that had resulted from the wiretap and the search warrant should have been suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

The Appellate Court disagreed with the claim that there had been an illegal search, ruling that the conversations in question had not been overheard in violation of the fourth amendment. State v. Benton, 10 Conn. App. 7, 12-13, 521 A.2d 204 (1987). It held that the trial court, consequently, did not err when it denied the defendant’s supplemental motion to suppress. On petition, we granted certification limited solely to the following question: “Were the defendant’s rights under the fourth amendment to the United States constitution violated by [the trial court’s] failure to suppress statements overheard without the use of any aural enhancement device, by a police officer stationed in an apartment adjacent to that of the defendant?” We agree with the reasoning and result reached by the Appellate Court and will comment further only briefly.

The conversations in question were overheard by a detective who was assisting in an investigation of the defendant’s alleged participation in illegal narcotics activity. On the evening of January 6,1984, at the time he overheard the conversations, the detective was in the apartment adjacent to that of the defendant for the specific purpose of maintaining a surveillance of the defendant. It is unquestioned that he was there with the express permission of the tenant of that adjacent apartment. While there, intermittently, over a period of some three hours, from a distance not closer than twelve to eighteen inches to the common wall dividing the two apartments, the detective overheard incriminating conversations. It is undisputed that the detective did not employ electronic aids or sensory enhancing devices of any kind and that the conversations were heard with the “naked ear.”

The general rule is that what a government agent perceives with his or her unaided senses, when lawfully present in a place where he or she has a right to be, is not an illegal search under the fourth amendment. United States v. Mankani, 738 F.2d 538, 543 (2d Cir. 1984); United States v. Wheeler, 641 F.2d 1321, 1324 (9th Cir. 1981); United States v. Agapito, 620 F.2d 324, 330-31 (2d Cir.), cert. denied, 449 U.S. 834, 101 S. Ct. 107, 66 L. Ed. 2d 40 (1980); United States v. Jackson, 588 F.2d 1046, 1053, reh. denied, 591 F.2d 1343 (5th Cir.), cert. denied, 442 U.S. 941, 99 S. Ct. 2882, 61 L. Ed. 2d 310 (1979); United States v. Ortega, 471 F.2d 1350, 1361 (2d Cir. 1972), cert. denied, 411 U.S. 948, 93 S. Ct. 1924, 36 L. Ed. 2d 409 (1973); W. LaFave, Search and Seizure (2d Ed.) § 2.2 (a), p. 326, and § 2.3 (b), p. 390.

Since Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), it is clear that “the Fourth Amendment protects people, not places.” The protection that the fourth amendment affords “people,” however, generally requires a reference to “place” to determine what degree of privacy can be expected and whether that expectation is one society is prepared to recognize as reasonable. United States v. Mankani, supra, 542; United States v. Taborda, 635 F.2d 131, 137-38 (2d Cir. 1980); United States v. Agapito, supra, 331; United States v. Jackson, supra, 1052; United States v. Fisch, 474 F.2d 1071, 1078 (9th Cir.), cert. denied, 412 U.S. 921, 93 S. Ct. 2742, 37 L. Ed. 2d 148 (1973).

Persons, such as the defendant, residing in an apartment, or persons staying in a hotel or motel have the same fourth amendment rights to protection from unreasonable searches and seizures and the same reasonable expectation of privacy as do the residents of any dwelling. United States v. Mankani, supra, 544; United States v. Jackson, supra; Ponce v. Craven, 409 F.2d 621, 624 (9th Cir. 1969), cert. denied sub nom. Ponce v. California, 397 U.S. 1012, 90 S. Ct. 1241, 25 L. Ed. 2d 424 (1970). That right honors the justifiable expectation that if their conversations are conducted in a manner undetectable outside their room or residence by the electronically unaided ear they will not be intercepted. United States v. Burns, 624 F.2d 95, 100 (10th Cir.), cert. denied sub nom. Reynolds v. United States, 449 U.S. 954, 101 S. Ct. 361, 66 L. Ed. 2d 219 (1980). The shared atmosphere and the nearness of one’s neighbors in a hotel or motel or apartment in a multiple family dwelling, however, diminish the degree of privacy that one can reasonably expect or that society is prepared to recognize as reasonable. United States v. Mankani, supra; United States v. Agapito, supra; United States v. Jackson, supra. The occupant of any such facility who speaks in tones discernible to a neighbor or to a neighbor’s invitee who may be expected to be only inches away on the other side of a common wall does not have an objectively reasonable expectation that what is said will not fall on alien ears. United States v. Wheeler, supra, 1325; United States v. Burns, supra; United States v. Jackson, supra.

Conversations carried on in any type of residence, or anywhere for that matter, in a tone audible to the unaided ear of a person located in a place where that person has a right to be, and where a person can be expected to be, are conversations knowingly exposed to the public. United States v. Muckenthaler, 584 F.2d 240, 245 (8th Cir. 1978); United States v. Martin, 509 F.2d 1211, 1214 (9th Cir.), cert. denied, 421 U.S. 967, 95 S. Ct. 1958, 44 L. Ed. 2d 455 (1975); Ponce v. Craven, supra, 625; United States v. Llanes, 398 F.2d 880, 884 (2d Cir. 1968), cert. denied, 393 U.S. 1032, 89 S. Ct. 647, 21 L. Ed. 2d 576 (1969); see W. LaFave, supra, § 2.3 (c), p. 392. Conversations knowingly exposed to the public are not within the penumbra of fourth amendment protection. Katz v. United States, supra, 351; United States v. Burns, supra; United States v. Muckenthaler, supra. The type of dwelling is inconsequential except insofar as its physical attributes increase the vulnerability of its occupants to eavesdropping by the unaided ear. See United States v. Jackson, supra.

The simple fact is that we “do not live in a vacuum.” United States v. Mankani, supra, 542. One who is insensitive to his surroundings and indiscriminate in his conversation bears the risk of being overheard by an eavesdropper. United States v. Taborda, supra, 137-38; United States v. Jackson, supra, 1054; United States v. Llanes, supra. “ ‘It is the kind of risk we necessarily assume whenever we speak.’ ” Hoffa v. United States, 385 U.S. 293, 303, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966), reh. denied, 386 U.S. 940, 87 S. Ct. 970, 17 L. Ed. 2d 880 (1967), quoting Lopez v. United States, 373 U.S. 427, 465, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963) (Brennan, J., dissenting). “Eavesdropping from a place where [an] officer has a right to be is a long-accepted technique of crime detection, not outlawed by the Fourth Amendment. If Katz had talked loud enough to be overheard his expectation of privacy would be gone.” United States v. Martin, supra, 1214.

The defendant believes that a different rule should apply to multiple family dwellings in general and duplex apartments in particular. We find it difficult to quarrel with the overwhelming weight of authority which we think dictates a different result.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., Shea and Glass, Js., concurred.

Arthur H. Healey, J.,

concurring. I agree with the result reached and with most of the rationale for reaching this result. I write separately only to articulate briefly my view on some broad language used in the majority opinion that is sweeping with reference to the right and reasonable expectation of privacy.

In this case, the defendant, despite the fact that the statement involved was made in his own home and not in a transitory housing arrangement such as a hotel or motel, “talked loud enough to be overheard [so that] his expectation of privacy [was] gone.” United States v. Martin, 509 F.2d 1211, 1214 (9th Cir.), cert. denied, 421 U.S. 967, 95 S. Ct. 1958, 44 L. Ed. 2d 455 (1975). As the majority notes, “[o]ne who is insensitive to his surroundings and indiscriminate in his conversation bears the risk of being overheard by an eavesdropper,” so circumstanced as was the police eavesdropper in this case. The facts of this case justify the result reached.

I do not agree with the majority when it says that “[p]ersons, such as the defendant, residing in an apartment, or persons staying in a hotel or motel have the same fourth amendment rights to protection from unreasonable searches and seizures and the same reasonable expectation of privacy , as do the residents of any dwelling.” (Emphasis in original.) Other language in the opinion implies that such a grouping, i.e., hotel, motel or apartment, is constitutionally valid without any distinction as to whether it is transitory or permanent. Indeed, “it is the fact that hotels, as opposed to residences, are truly transitory places.” United States v. Mankani, 738 F.2d 538, 544 (2d Cir. 1984). But as Mankani points out: “[I]t is the transitory nature of such places [hotels and motels], commonly understood as such, that diminishes a person’s justifiable expectation of privacy in them.” Id. That the threshold for determining what is a reasonable expectation of privacy is higher, in the first instance, where one resides and where his “effects” are than in “truly transitory places” such as hotels or motels, is illustrated by precedent. For example, “the sanctity of private dwellings [is] ordinarily afforded the most stringent Fourth Amendment protection”; United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976); and the fourth amendment “was intended to protect against invasions of ‘the sanctity of a man’s home and the privacies of life.’ Boyd v. United States, 116 U.S. 616, 630 [6 S. Ct. 524, 29 L. Ed. 746 (1886)].” Warden v. Hayden, 387 U.S. 294, 301, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967).

It is not wholly correct then to say, or intimate, that the defendant, a resident in an apartment (actually “a duplex apartment in a side-by-side two-family house” in Bridgeport), or persons staying in a hotel or motel have the same reasonable expectation of privacy under the fourth amendment as “do the residents of any dwelling.” In United States v. Jackson, 588 F.2d 1046, 1053, reh. denied, 591 F.2d 1343 (5th Cir.), cert. denied, 422 U.S. 941, 99 S. Ct. 2882, 61 L. Ed. 2d 310 (1979), cited by the majority, for example, the court said that “despite the fact that an individual’s Fourth Amendment rights do not evaporate when he rents a motel room, the extent of the privacy he is entitled to reasonably expect may very well diminish.” Then again, “one’s reasonable expectation of privacy in the home is entitled to a unique sensitivity from federal courts.” United States v. Reed, 572 F.2d 412, 422 (2d Cir. 1978). In United States v. Agapito, 620 F.2d 324, 331 (2d Cir.), cert. denied, 449 U.S. 834, 101 S. Ct. 107, 66 L. Ed. 2d 40 (1980), also cited by the majority, the court acknowledges that “the reasonable expectation of privacy in a hotel room differs from those in a residence.” Because of these recognized constitutional distinctions we should carefully factor the formulation set out in Justice Harlan’s concurring opinion in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), into the “clear” statement, cited by the majority, that the fourth amendment protects persons and not “places.” Justice Harlan stated in Katz that what privacy interest of persons society is prepared to regard as reasonable often requires reference to a “place.” Id., 361. This, I suggest, has not been sufficiently stressed by the majority.

Nevertheless, I agree with the result reached. The eavesdropping officer overheard the defendant with his naked ear in a place where he was legally situated. Therefore, the defendant had effectively surrendered his fourth amendment rights.

       General Statutes (Rev. to 1983) § 21a-277 provides in pertinent part: “(Formerly Sec. 19-480). penalty for illegal manufacture, distribution, sale, PRESCRIPTION, dispensing, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance, other than marihuana, or a narcotic substance except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than three thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than five thousand dollars, or be both fined and imprisoned.
      “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a hallucinogenic substance other than marihuana, or a narcotic substance except as authorized in this chapter, may, for the first offense, be fined not more than one thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than five thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”
      General Statutes § 21a-279 provides in pertinent part: “(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.
      “(b) Any person who possesses or has under his control any quantity of a hallucinogenic substance other than marihuana or four ounces or more of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than five years or be fined not more than two thousand dollars or be both fined and imprisoned, and for a subsequent offense may be imprisoned not more than ten years, or be fined not more than five thousand dollars or be both fined and imprisoned.”

       General Statutes § 21a-277 (c) provides: “No person shall knowingly possess drug paraphernalia in a drug factory situation as defined by [subsection] (20) of section 21a-240 for the unlawful mixing, compounding or otherwise preparing any controlled substance for purposes of violation of this chapter.”

       “[General Statutes] Sec. 54-94a. conditional nolo contendere plea, appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The defendant also claimed in the Appellate Court that even if the conversations had not been obtained in violation of the fourth amendment and were properly included in the affidavit to obtain the wiretap order, the wiretap panel still had insufficient reliable information to justify the issuance of its order. The Appellate Court rejected this claim and our grant of certification did not include this issue.

       The trial court and the Appellate Court noted the distance as between one and three feet. The state and the defendant, however, appear to agree that the police officer testified that the distance was twelve to eighteen inches.

       As Judge Newman notes in his dissent in United States v. Holland, 755 F.2d 253, 258 n.2 (2d Cir. 1985), “[t]he reasoning of Justice Harlan’s concurrence has been widely followed. See, e.g., Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 1740, 80 L. Ed. 2d 214 (1984); Illinois v. Andreas, 463 U.S. 765, 103 S. Ct. 3319, 3323, 77 L. Ed. 2d 1003 (1983); United States v. Santana, 427 U.S. 38, 42, 96 S. Ct. 2406, 2409, 49 L. Ed. 2d 300 (1976); United States v. Reed, 572 F.2d 412, 422 (2d Cir.), cert. denied, 439 U.S. 913, 99 S. Ct. 283, 58 L. Ed. 2d 259 (1978).”


author: Peters, C. J.

text:
    Richard E. Rawling, Jr. v. City of New Haven
    (13251)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued December 3, 1987
    decision released January 26, 1988

      Carolyn W. Kone, assistant corporation counsel, with whom was Carolyn Spencer, for the appellant-appellee (defendant).

      Frank B. Velardi, Jr., for the appellee-appellant (plaintiff).
   Peters, C. J.

The sole issue in this case is whether the trial court erred in granting summary judgment in favor of a police officer who sought indemnity for expenses incurred in defending against criminal charges for sexual assault that were ultimately dismissed. The plaintiff, Richard E. Rawling, Jr., brought this action for indemnification against the defendant city of New Haven under General Statutes § 53-39a. The defendant has appealed from the entry of summary judgment, claiming that its opposing affidavits raise a genuine issue of material fact as to whether the plaintiff was “in the course of his duty” at the time of the alleged criminal offense. The plaintiff has cross appealed from the judgment of the trial court denying him interest on his timely offer of judgment. General Statutes § 52-192a. We find error on the defendant’s appeal and therefore need not address the cross appeal.

The following facts are undisputed: The plaintiff was on patrol on the morning of November 18, 1983, when he received a radio dispatch to investigate a citizen complaint. The complainant, D. T., told the plaintiff that he had received harassing phone calls from A. D., and that he wished to have her arrested. At about the same time, A. D. also filed a complaint with the New Haven police, charging D. T. with the same offense. While the plaintiff conducted his investigation at the D. T. residence, the police department dispatched another officer to A. D.’s home to investigate her complaint. That officer was, however, recalled at the plaintiff’s initiative. After speaking with D. T., the plaintiff went to A. D.’s home and, unaccompanied by a fellow officer, spoke with A. D., who was home alone. That evening, the plaintiff was arrested pursuant to a warrant issued on the basis of sworn statements by A. D. The plaintiff was charged with committing the crimes of sexual assault in the third degree in violation of General Statutes § 53a-72 and unlawful restraint in the second degree in violation of General Statutes § 53a-96. Roughly one year later, the criminal charges against the plaintiff, to which he had pleaded not guilty, were dismissed.

Following the dismissal, the plaintiff brought the present action against the city of New Haven for: (1) indemnification under § 53-39a for economic loss sustained by him as a result of the prosecution; and (2) interest on the judgment under § 52-192a. In support of his motion for summary judgment, the plaintiff submitted an affidavit, which essentially recounted the undisputed facts described above. In addition, however, the affidavit averred that the plaintiff, after telling A. D. that she could be arrested if the harassing phone calls continued, “immediately left” A. D.’s home.

In opposition to the motion, the defendant submitted two affidavits designed to raise a genuine issue of material fact. The principal affidavit was that of A. D., who maintained that during the plaintiff’s visit to the A. D. home he had sexually assaulted her. In particular, the affiant stated that the plaintiff had asked her to change into “sexy bras, swimsuits or underwear” so that he could see if she was bruised, grabbed her and while forcing her into his lap touched her breast, asked her if she would be embarrassed to dance nude in front of him, forced her onto a bed and asked lewd questions about her breasts, prevented her from leaving the bedroom, and repeatedly asked her if she wanted to earn $300. Before leaving her home, A. D. claimed the plaintiff warned her not to report what had happened. Finally, the affiant stated that when the criminal case against the plaintiff had been reached for trial she was nine months pregnant and therefore did not wish to testify.

The second affidavit, that of H. R. Brereton of the New Haven police department, was offered primarily to substantiate the allegations of A. D. To this end, Brereton, a sergeant who had initially investigated the sexual assault complaint of A. D. against the plaintiff, disclosed three central facts that, according to the defendant, helped to raise a genuine issue of material fact. First, the affiant stated that the plaintiff, prior to entering the A. D. home, told his dispatcher to cancel the other squad car that had been assigned to investigate A. D.’s complaint of harassing phone calls. According to a transcription appended as an exhibit to the affidavit, the plaintiff said: “Yeh, I’m gonna speak with her, I’ll solve it all.” Second, the transcription showed that the plaintiff had not clocked back into service from his squad car until forty-two minutes after he had arrived at the A. D. home, contrary to his statement that “[the investigation is] going to be settled in about a minute.” Third, Brereton’s affidavit stated that the plaintiff had violated a department order by conducting a solo interview with a female.

On the basis of the representations contained in these two affidavits, the defendant urged the trial court to deny the motion for summary judgment because there existed a genuine dispute as to whether the plaintiff was “in the course of his duty” within the meaning of § 53-39a throughout his appearance at the A. D. home. The trial court, relying on its findings that the criminal charges against the plaintiff had been dismissed and that the criminal acts were allegedly committed during the course of investigating a complaint, granted the plaintiff’s motion for summary judgment.

On appeal, the defendant claims that the trial court erroneously granted summary judgment. In reviewing this claim, we are bound by familiar rules. Summary judgment is appropriate when “the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384; Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983). The party seeking summary judgment has the burden of showing the nonexistence of any genuinely disputed material facts. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). A party opposing summary judgment must substantiate its adverse claim by presenting evidence that demonstrates the existence of a genuine issue of material fact. Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). The facts presented must be viewed in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984).

In our determination of whether the plaintiff demonstrated his entitlement to judgment as a matter of law, we must begin with the text of § 53-39a. That statute affords a police officer a right of indemnity for economic loss incurred for a prosecution “for a crime allegedly committed by such officer in the course of his duty as such” if “the charge is dismissed or the officer found not guilty.” In the present case, it is undisputed that the plaintiff has satisfied his burden of proving that the charge was dismissed. The issue before us is what meaning to attribute to “crime allegedly committed ... in the course of . . . duty.”

We approach our construction of the statutory language in § 53-39a in accordance with well established principles. Our principal objective is to ascertain the apparent intent of the legislature. Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986). “In our pursuit of that objective, we look to the language of the statute itself, its legislative history, and previous judicial construction. State v. Kozlowski, [199 Conn. 667, 673-74, 509 A.2d 20 (1986)]; DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985); State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985).” Id. Statutes that abrogate or modify governmental immunity are to be strictly construed. Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987); Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1983). This rule of construction stems from “the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.” Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975); see also Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951).

With respect to the proper construction of § 53-39a, we are guided by our decision in Link v. Shelton, 186 Conn. 623, 627-28, 443 A.2d 902 (1983). The plaintiff in Link sought indemnity after his acquittal on a charge of breach of the peace. From the summary judgment in favor of the plaintiff, the defendant city of Shelton appealed, claiming that the plaintiff had deviated from the course of his duty by reporting late to work, throwing temper tantrums and creating a disturbance in the police station waiting room. We held that these alleged facts, if true, would not suffice to preclude indemnity because, under analogous provisions of workers’ compensation law, such assaultive conduct is considered to be in the course of employment “ ‘either if the risk of assault is increased because of the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work.’” Id., 628-29, quoting 1 A. Larson, Workmen’s Compensation (1978) § 11.00. Although the holding in Link v. Shelton was that the claimant therein was entitled to indemnity, the underlying rule of that case, and its importance for the present litigation, is that any person who invokes § 53-39a must sustain a twofold burden of proof. In order to receive indemnity, a police officer must prove not only that the charges against him were dismissed, or that he was acquitted, but also that the charges arose “in the course of his duty” as a policeman.

The trial court implicitly recognized this twofold burden when, in granting the motion for summary judgment, it relied on its finding that the plaintiff had entered the A. D. home to investigate a complaint. Even if this finding is correct, we agree with the defendant that it was erroneously deprived of its opportunity to convince a trier of fact that the plaintiff deviated from the course of his duty, as defined in § 53-39a, while inside the A. D. home.

Link v. Shelton instructs us to construe the phrase “in the course of his duty” by looking to the meaning of “course of employment” under workers’ compensation law. Link v. Shelton, supra, 627. “In order to come within the course of the employment, an injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” McNamara v. Hamden, 176 Conn. 547, 550-51, 398 A.2d 1161 (1979). The defendant maintains that a genuine factual dispute exists as to whether the plaintiff has satisfied part (c) of this course of employment test.

Under the law of workers’ compensation, no bright line test distinguishes activities that are incidental to employment from those that constitute a substantial deviation therefrom. Id., 556. An employee who substantially deviates from the duties of his employment, however, forfeits his right to compensation. Woodley v. Rossi, 152 Conn. 1, 5, 202 A.2d 136 (1964). The question of deviation is typically one of fact for the trier. Labbe v. American Brass Co., 132 Conn. 606, 609-10, 46 A.2d 339 (1946). In deciding whether a substantial deviation has occurred, the trier is entitled to weigh a variety of factors, including the time, place and extent of the deviation; Herbst v. Hat Corporation of America, 130 Conn. 1, 7, 31 A.2d 329 (1943); as well as “what duties were required of the employee and the conditions surrounding the performance of his work . . . .” Farnham v. Labutis, 147 Conn. 267, 270, 160 A.2d 120 (1960). Although an assault can be shown, under certain circumstances, to have occurred in the course of employment; Link v. Shelton, supra, 628-29; an assault can also be viewed as a personal frolic unwarranted by the work environment. Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 361-62, 119 A. 653 (1938). A sexual assault is generally viewed as foreign to the scope of employment unless the work setting itself precipitates the assault. Ward v. General Motors Corporation, 431 A.2d 1277, 1280 (Del. Super. 1981); 1 A. Larson, Workmen’s Compensation (1985) § 11.22 n.69.

In this case, the defendant has made a persuasive showing, in its affidavits opposing summary judgment, that there exists a genuine issue of material fact as to whether the plaintiff was “in the course of his duty” throughout his visit to the A. D. home. Not only did A. D. attest from personal knowledge that the plaintiff had sexually assaulted her during the visit, but the affidavit of Sergeant Brereton presented three crucial assertions of fact—the violation of a department order, the delay in clocking back into service, and the radio dispatch to cancel a squad car assigned to the A. D. complaint—that support the A. D. account.

The plaintiff has proffered three reasons why we should nonetheless sustain the judgment of the trial court. First, the plaintiff claims that post hoc factual scrutiny of the “course of duty” issue is foreclosed by the criminal records erasure statute. General Statutes § 54-142a. Second, the plaintiff argues that the prior judgment of dismissal conclusively establishes that he was “in the course of his duty” throughout the A. D. investigation. Third, the plaintiff contends that he is entitled to indemnity because the risk of being accused of sexual assault is always incidental to his duties as a police officer. We do not agree with any of these claims.

The plaintiff first claims that factual consideration of the course of duty question is implicitly foreclosed by the criminal records erasure statute. General Statutes § 54-142a. This statute, the plaintiff argues, precludes any further consideration of the facts underlying the charge because, after the dismissal of criminal charges, the criminal records are statutorily erased. This statutory right of erasure is, he claims, contravened by having to relitigate, in a subsequent indemnity action, the substance of the original charges against him. We disagree. We have held that the erasure statute applies only to records of a prior prosecution, not to a victim’s memory of an assault, which is based not on records but on personal knowledge. State v. Morowitz, 200 Conn. 440, 451, 512 A.2d 175 (1986). “The statute does not and cannot insulate [a litigant] from the consequences of his prior actions.” (Emphasis in original.) Id. Accordingly, the plaintiffs claim must fail because there is no foundation for his initial premise that he has a right not to have the facts underlying an erased record disclosed.

The plaintiff next claims that the fact of dismissal of the charges in the prior criminal prosecution precludes relitigation of the question of whether his conduct was in the course of duty. He argues that because his “status” as a police officer was implicated in the criminal charges, the judgment of dismissal conclusively established that his alleged criminal behavior occurred in the course of his duty as a police officer. We decline to interpret the judgment of dismissal so broadly.

While not overtly phrasing his argument in such terms, the plaintiff essentially claims that the defendant is collaterally estopped by the judgment of dismissal from litigating the course of duty issue. Cf. State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 181, 527 A.2d 688 (1987) (treating a claim of mootness more appropriately as a claim of collateral estoppel). “Collateral estoppel, or issue preclusion, is the doctrine that bars relitigation, in a second action between the same parties brought upon a different claim, of issues already determined in the first action.” State v. Aillon, 189 Conn. 416, 424 n.8, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983); see also State v. Ellis, 197 Conn. 436, 464 n.21, 497 A.2d 974 (1985); In re Juvenile Appeal (83-DE), 190 Conn. 310, 316, 460 A.2d 1277 (1983); 1 Restatement (Second), Judgments § 27 (1982).

The present record is devoid of proof that the course of duty issue was actually litigated in the prior criminal case against the plaintiff. At oral argument before us, the plaintiff conceded that the prior criminal case did not include any adjudication on the merits of the criminal charges. The preclusive effect of a criminal judgment in a subsequent civil action “presupposes that the issue in question was actually litigated in the criminal prosecution.” 1 Restatement (Second), Judgments § 85, comment b (1982). A dismissal of charges, by definition, suggests the total absence of factual determinations. Cf. Milgrim v. Deluca, 195 Conn. 191, 196-97, 487 A.2d 522 (1985) (holding that a judgment of dismissal for failure to prosecute with diligence is not a bar to subsequent action on the same claim). As a general rule, a criminal judgment based on a plea of nolo contendere or a plea of guilty has no preclusive effect in a subsequent civil action, even though, under the law of evidence, a plea of guilty may constitute an admission against interest. 1 Restatement (Second), Judgments § 85, comment b (1982). This rule is justified because neither type of plea is the product of actual litigation. The same reasoning applies equally to a dismissal of criminal charges.

The plaintiff finally claims that § 53-39a contemplates the awarding of indemnity whenever a police officer is accused of sexually assaulting a member of the public because such accusations are always incidental to the duties of a police officer. In the absence of an explicit legislative directive, however, we reject so sweeping an interpretation of § 53-39a.

We do not doubt that police officers may be subject to baseless accusations lodged by disgruntled objects of law enforcement. An officer who is accused of committing a crime arguably within the course of duty will necessarily suffer a financial hardship in mounting an adequate defense. When the prosecution results in a dismissal or an acquittal, the legislature might reasonably have concluded that an officer should not be required to shoulder the costs of defense for conduct that solely benefited his or her employer. Cf. Norwich v. Silverberg, supra, 374-75. In order to establish a nexus between the costs of defense and a governmental employer’s receipt of the benefit of police services, the legislature expressly conditioned a right of indemnity under § 53-39a on a showing that the alleged crime was committed “by such officer in the course of his duty as such.”

We recognize that giving independent meaning to the phrase “in the course of his duty” significantly limits the scope of the remedy of indemnification. This phrase, long associated with case-by-case adjudication; Labbe v. American Brass Co., supra; imposes upon the plaintiff the burden of proving by a preponderance of evidence that the alleged criminal conduct occurred within the scope of employment. We conclude, nonetheless, as we did in Link v. Shelton, supra, that the legislature intended such a limitation. Not only do we strive to attach independent meaning to every phrase contained in a legislative enactment; DeFonce Construction Corporation v. State, supra, 187; State v. Milum, 197 Conn. 602, 619, 500 A.2d 555 (1985); we also are bound to construe narrowly any statute that modifies or abrogates governmental immunity. Ahern v. New Haven, supra. Guided by these principles, we decline to interpret § 53-39a to encompass indemnity for any and all criminal prosecutions of police officers for sexual assault.

The trial court was in error in granting the plaintiffs motion for summary judgment. The defendant is entitled to a trial on the genuine issue of material fact raised in its affidavits concerning the question whether the plaintiffs conduct in the A. D. home was “in the course of his duty” as a police officer.

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 § 53-39a provides in relevant part: “Whenever, in any prosecution of an officer of ... a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred.”

       The defendant does not concede that the plaintiff entered the A. D. home for the purpose of investigating a complaint. Instead, the city contends that its affidavits give rise to an inference that the plaintiff had the motive and purpose of sexually assaulting A. D. before and as he entered the home.

       In Link v. Shelton, 186 Conn. 623, 629, 443 A.2d 902 (1983), we also held that the law of vicarious liability is a useftd interpretative guide in construing the scope of General Statutes § 53-39a.

        In recently discussing the connection between vicarious liability and a municipal employee indemnity statute, we noted that the statute was “designed to furnish some relief for injustice that would otherwise attend our well established doctrine of sovereign municipal immunity.” Norwich v. Silverberg, 200 Conn. 367, 374, 511 A.2d 336 (1986). A similar purpose can be discerned from the enactment of General Statutes § 53-39a, which provides a “statutory analogue”; id., 375; to the right of an employee in the private sector to seek relief under a theory of respondeat superior. It is by no means clear, however, that there would be vicarious liability at common law for sexual assault. W. Seavey, Agency (1964) § 89 (c), pp. 156-58; Restatement (Second), Agency §§ 228, 245 (1958).

       At oral argument, the defendant conceded that the violation of a department order, by itself, would not suffice to deny indemnification to the plaintiff. Instead, as the defendant acknowledged, the alleged violation is relevant only in that it helps to corroborate the veracity of A. D.’s assault complaint.

       “[General Statutes] Sec. 54-142a. (Formerly Sec. 54-90). erasure of criminal records, (a) Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken. Nothing in this subsection-shall require the erasure of any record pertaining to a charge for which the defendant was found not guilty by reason of mental disease or defect or guilty but not criminally responsible by reason of mental disease or defect.
      * ** *
      “(e) The clerk of the court or any person charged with retention and control of such records in the records center of the judicial department or any law enforcement agency having information contained in such erased records shall not disclose to anyone information pertaining to any charge erased under any provision of this section and such clerk or person charged with the retention and control of such records shall forward a notice of such erasure to any law enforcement agency to which he knows information concerning the arrest has been disseminated and such disseminated information shall be erased from the records of such law enforcement agency. Such clerk or such person, as the case may be, shall provide adequate security measures to safeguard against unauthorized access to or dissemination of such records or upon the request of the accused cause the actual physical destruction of such records. No fee shall be charged in any court with respect to any petition under this section. Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”

       The present record also fails to disclose any reason why the city of New Haven, which was not a party to the prior proceeding, is necessarily bound by the determinations made therein.

       As a general rule, a judgment against the state in a criminal case has no preclusive effect in a subsequent civil action. Page v. Phelps, 108 Conn. 572, 588, 143 A. 890 (1928); 2 Restatement (Second), Judgments § 85, comment g (1982). The principal reason for denying preclusive effect is that “[t]he party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action . . . .” 1 Restatement (Second), Judgments § 28 (4). The present case does not involve this well established rule. Instead, our discussion in this case focuses on the more general principle that the doctrine of collateral estoppel applies only to issues that have been actually litigated in a prior action between the parties.


author: Hull, J.

text:
    John F. Kolenberg v. Board of Education of the City of Stamford et al.
    (13137)
    Peters, C. J., Healey, Shea, Covello and Hull, Js.

      Argued November 6, 1987
    decision released January 26, 1988

      Marshall Goldberg, for the appellant (plaintiff).

      Paul W. Orth, with whom, on the brief, was Joan C. Harrington, for the appellees (defendants).
   Hull, J.

The plaintiff, John F. Kolenberg, appeals from a decision of the trial court rejecting the report of an attorney state trial referee, revoking the reference and rendering judgment for the defendants.

The following facts are undisputed. The plaintiff was employed by the defendant, the board of education of the city of Stamford (board), as a mathematics teacher from April, 1974, to June, 1977. He was awarded tenure in March, 1977. In June, 1977, he requested a leave of absence for the 1977-78 school year. This request was granted. At the end of April, 1978, the plaintiff notified the board of his intention to return to work in September, 1978. The assistant superintendent of the board advised the plaintiff that, under the collective bargaining agreement between the board and the plaintiffs union, notification of his intention to return to work was required by February 1, 1978, and that, as a consequence of the plaintiffs failure to meet that deadline, he had lost his entitlement to reemployment. The plaintiffs teaching position was still vacant at this juncture. Throughout the summer of 1978 and thereafter, the plaintiff sought reinstatement and reemployment for all positions for which he was certified, but was unsuccessful.

In October, 1978, the plaintiff brought this action against the board, the city of Stamford, Robert W. Peebles, superintendent of schools, and James J. Morris, assistant superintendent of personnel. The first count alleged that the defendants had failed to reemploy the plaintiff following his leave of absence, in violation of General Statutes § 10-151. In the second count, the plaintiff alleged that two teachers had been hired in violation of his rights and he sought a declaratory judgment that their employment contracts were illegal and void. He also sought temporary and permanent injunctions against the defendants and the two teachers and a writ of mandamus to compel the defendants to reinstate him in his former teaching job. Thereafter, the plaintiff amended his complaint to add a third count alleging that Morris had promised him first preference for an opening for a mathematics teacher and had broken that promise, and he added to his prayer for relief a claim for back pay and benefits.

Nearly six years after commencement of the suit, the plaintiff requested permission to amend his complaint to add claims of due process violations proscribed by 42 U.S.C. §§ 1983, 1985 and 1986, and the due process and equal protection clauses of the fourteenth amendment to the United States constitution. The defendants objected to the amendment and the court, Cioffi, J., denied the plaintiff leave to amend. Earlier, the court had stricken the case from the jury docket and ordered that it be tried to the court.

In 1984, the defendants moved for summary judgment on all three counts. The court, Ryan, J., granted the motion as to counts two and three, but denied summary judgment as to count one on the ground that a factual question regarding the plaintiffs tenure status was unresolved and that there was a legal question of whether the board’s refusal to reemploy the plaintiff constituted a termination within the meaning of General Statutes § 10-151. The matter was referred to an attorney state trial referee for trial. After trial, the referee issued his report containing thirty-four findings of fact and a memorandum concluding that the plaintiff did not resign his position by failing to meet the February 1 deadline nor was he terminated by the board, and that he remained employed by the board. The referee assessed damages against the board in the amount of $116,899.88 for loss of wages and interest.

Following the denial by the referee of the defendants’ motions to correct the report, the matter came before the Superior Court for judgment. The court, Lewis, J., rejected the report, revoked the reference and rendered judgment for the defendants, holding that § 10-151 did not apply to the plaintiffs “constructive resignation” triggered by his failure to meet the February 1 deadline.

The plaintiff appeals raising as claims of error: (1) the manner in which the trial court reviewed, rejected and disposed of the referee’s report; (2) the trial court’s refusal to permit the plaintiff to amend his complaint; (3) removal of the case from the jury list; and (4) the trial court’s granting of summary judgment on count two of the complaint. We hold that the court lacked subject matter jurisdiction over counts one and two and should have dismissed the case. Accordingly, we find error only in the court’s disposing of count one by rendering judgment for the defendants and in granting the defendants’ motion for summary judgment on count two. In light of our disposition of this case, we need address only the first and fourth claims of error.

I

With respect to count one, the plaintiff contends that the court rejected the referee’s report and revoked the reference in a manner inconsistent with Practice Book §§ 440 through 443. He argues that the court erroneously acted on the report by rejecting it when there were motions to correct it still outstanding, and that, following rejection, rather than leaving the case to be disposed of by the court, as directed by Practice Book § 443, the trial court prematurely disposed of the case.

The defendants argue that the plaintiffs action was not cognizable under General Statutes § 10-151 and the court, therefore, lacked subject matter jurisdiction and appropriately rendered judgment for the defendants. We agree with the defendants that the court lacked subject matter jurisdiction.

General Statutes § 10-151, the Teacher Tenure Act, provides for continuing employment of tenured teachers, except that a teacher may be terminated for inefficiency or incompetence, insubordination, moral misconduct, medical disability, elimination of the teaching position or loss of the position to another teacher, or other due and sufficient cause. General Statutes § 10-151 (d) (1) through (6). The statute establishes procedures for notice to the teacher and hearing of the matter before an impartial panel; General Statutes § 10-151 (d); and affords the teacher the right to appeal the decision to the Superior Court. General Statutes § 10-151 (f).

Section 10-151 protects a tenured teacher from termination of employment except for cause or elimination of the teaching position. Cahill v. Board of Education, 198 Conn. 229, 240, 502 A.2d 410 (1985). We recognize that not all separations from employment as a teacher are encompassed by the statute. Since, by its terms, the statute contemplates termination initiated by the board of education, a teacher's retirement or voluntary resignation would not trigger the act’s protections. We have also noted that termination of a tenured teacher’s employment under § 10-151 “carries with it a suggestion of the teacher’s unsuitability.” Id., 241. We have acknowledged that termination for cause “may implicate a teacher’s professional standing and reputation for competence, efficiency, and integrity . . . ." Lee v. Board of Education, 181 Conn. 69, 79-80, 434 A.2d 333 (1980).

Here, the plaintiff was denied renewal of his teaching position, not for reasons related to his personal competence, but because he had failed to meet the deadline for notifying the board of his intention to return to work in the following school year. Consequently, he was not terminated for cause within the meaning of § 10-151. See Delagorges v. Board of Education, 176 Conn. 630, 635-36, 410 A.2d 461 (1979). Furthermore, access to the courts under the Teacher Tenure Act is possible only on appeal of a decision of the board of education. General Statutes § 10-151 (f). In this case, there was no appeal, nor could there have been. Therefore, the court lacked jurisdiction over the case, should not have referred it to a referee and should have dismissed the action. See Simmons v. State, 160 Conn. 492, 280 A.2d 351 (1971) (where statute upon which action is based is inapplicable, trial court is without jurisdiction and reference to referee is improper). Accordingly, it is not necessary for this court to determine whether the trial court properly followed the practice rules invoked by the plaintiff.

The plaintiff also argues, for the first time on appeal, that: (1) his tenure is a protected property right under the federal and state constitutions, violated by the non-renewal provision of the collective bargaining agreement; (2) he was not aware of the deadline because he had not been given a copy of the collective bargaining agreement, and that the failure of the board to provide him a copy was itself a violation of the agreement; (3) as a matter of contract law, the deadline provision did not make time of the essence of the contract; and (4) the board did not consistently enforce such deadlines. These issues are not properly before this court because they were not raised below, nor did they arise after trial. Practice Book § 4185. Furthermore, had they been raised below, the trial court would have lacked subject matter jurisdiction to entertain them because they would more appropriately have been advanced in the context of a grievance proceeding. School Administrators Assn. v. Dow, 200 Conn. 376, 382-83, 511 A.2d 1012 (1986).

The collective bargaining agreement between the plaintiffs union and the board delineates a formal four step procedure for filing a grievance: the matter is presented, in turn, to the teacher’s principal or immediate supervisor, to the superintendent of schools, to the board of education, and finally, to arbitration. The agreement defines “grievance” as “a claim by a unit member . . . that there has been a violation, misinterpretation or misapplication of the provisions of this Agreement or of the rules, regulations, administrative directives or policies of the Board.”

Enforcement of the arbitration provisions by the court is provided by General Statutes § 52-408. Following arbitration, the parties may apply to the court to have the award confirmed, corrected, vacated or modified. General Statutes §§ 52-417 through 52-420. Under General Statutes § 52-421, judgment may be entered upon the award, rendering it enforceable as if it had been rendered in a civil action. General Statutes § 52-423 affords a right of appeal from judgment on an arbitration award.

The Teacher Negotiation Act; General Statutes §§ 10-153a through 10-153n; and the arbitration statutes; General Statutes §§ 52-408 through 52-424; evidence a preference for resolving disputes between teachers and boards of education through contract grievance proceedings, thereby affording both union and employer an exclusive and uniform method for orderly settlement of grievances. See School Administrators Assn. v. Dow, supra, 381-82. We have held that, “as a matter of state law, parties to a collective bargaining agreement must attempt to exhaust the exclusive grievance and arbitration procedures established in their agreement before resorting to court.” Id., 382.

The grievance procedures afforded by the collective bargaining agreement were available to the plaintiff to redress the loss of his teaching position. They were an appropriate vehicle for the resolution of his claims, including his constitutional claims. Id., 382-83. In fact, the record contains evidence that a grievance proceeding had been commenced but not pursued. There was testimony that the plaintiffs formal grievance complaint was presented by the then chairman of the union’s grievance committee to Peebles who declined to discuss it on the ground that the matter was in litigation. The union proceeded no further, nor is there any evidence that the plaintiff followed up the matter with the union.

It is clear that the plaintiff failed to exhaust the grievance and arbitration procedures available to him, thereby depriving the trial court of subject matter jurisdiction. The court, therefore, should have dismissed count one.

II

We also hold that the court lacked subject matter jurisdiction over count two. In that count, the plaintiff sought a judgment declaring that the defendants had improperly and illegally awarded employment contracts to nontenured teachers while denying him reinstatement, and that those contracts were void. In granting summary judgment, the court found that the plaintiff had failed to comply with § 390 (d) of the Practice Book and that the court thus lacked subject matter jurisdiction. Section 390 (d) provides that the court will not render a declaratory judgment “unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” We have required strict adherence to this rule and have held that failure to comply with it is fatal to the court’s jurisdiction. Tucker v. Maher, 192 Conn. 460, 468-69, 472 A.2d 1261 (1984); Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980). “This rule is not merely a procedural regulation. It is in recognition and implementation of the basic principle that due process of law requires that the rights of no man shall be judicially determined without affording him a day in court and an opportunity to be heard.” Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 (1966); Tucker v. Maher, supra, 469.

The plaintiff argues that the issue of noncompliance with § 390 (d) was not before the court because it was not raised by the defendant and not briefed by either party. This contention is without merit. Since failure to comply with § 390 (d) implicates subject matter jurisdiction, it can be raised at any point in the proceedings, even on appeal, and by the court. Tucker v. Maher, supra; Manley v. Pfeiffer, 176 Conn. 540, 545, 409 A.2d 1009 (1979).

The trial court, without specifying those persons required to be joined as parties or entitled to reasonable notice of the action, stated that neither count two nor the record as a whole establishes that all persons having an interest in the subject matter of the complaint were joined as parties or notified. The record supports the court’s conclusion. Without ascertaining the identification of all persons falling within the ambit of § 390 (d), at the very least, in addition to the named defendants, the two teachers whose contracts were under attack by the plaintiff had an interest in the subject matter of the litigation and were entitled to the safeguards afforded by § 390 (d). The court, therefore, was without jurisdiction over the second count.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to dismiss both counts for lack of subject matter jurisdiction.

In this opinion the other justices concurred.

       Article 13, § II, of the agreement between the board and the Stamford Federation of Teachers, July, 1977, through July, 1980, provides in pertinent part:
      “B. VOLUNTARY LEAVE
      “1. A unit member shall be eligible for a voluntary leave of absence for a period of one school year without pay or benefits if he or she notifies the Personnel Office in writing by July 1st preceding the school year desired for leave of the intention to take leave.
      “2. Upon conclusion of said leave, the unit member shall be entitled to re-employment in the position he or she left if available or in a comparable position for which he or she is certified.
      “3. However, to be entitled as in 2 above, said unit member shall notify the Personnel Office in writing by February 1st of the year prior to expected return of intention to return. If notification is not received by said date, said unit member loses entitlement to re-employment.”

       The plaintiff asserts no claim of error with regard to the trial court’s granting of summary judgment on count three.

       “[Practice Book] Sec. 443. FUNCTION OF THE COURT
      “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the [referee] has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another [referee] for a new trial or revoke the reference and leave the case to be disposed of in court.
      “The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.”

       General Statutes § 10-151 provides in pertinent part: “(d) The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified, provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization or (B) in the absence of such agreement, a written policy of the board of education; or (6) other due and sufficient cause. Nothing in this section or in any other section of the general statutes or of any special act shall preclude a board of education from making an agreement with an exclusive bargaining representative which contains a recall provision. Prior to terminating a contract, a board of education shall vote to give the teacher concerned a written notice that termination of such teacher’s contract is under consideration and, upon written request filed by such teacher with such board within seven days after receipt of such notice, shall within the next succeeding seven days give such teacher a statement in writing of the rea- ' sons therefor. Within twenty days after receipt of written notice by the board of education that contract termination is under consideration, such teacher may file with such board a written request for a hearing. A board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated for the reasons stated in subdivision (5) of this subsection. Such hearing shall commence within fifteen days after receipt of such request, unless the parties mutually agree to an extension, (A) before the board of education or a subcommittee of the board, (B) if indicated in such request or if designated by the board before an impartial hearing panel or, (C) if the parties mutually agree, before a single impartial hearing officer chosen by both parties. If the parties are unable to agree upon the choice of a hearing officer within five days after their decision to use a hearing officer, the hearing shall be held before the board or panel, as the case may be. The impartial hearing panel shall consist of three members appointed as follows: The board of education shall appoint one panel member, the teacher shall appoint one panel member, and those two panel members shall choose a third, who shall serve as chairperson. Within ninety days after receipt of the request for a hearing, the impartial hearing panel, subcommittee of the board or hearing officer, unless the parties mutually agree to an extension, shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher. The board of education shall give the teacher concerned its written decision within fifteen days of receipt of the written recommendation of the impartial hearing panel, subcommittee or hearing officer. Each party shall pay the fee of the panel member selected by it and shall share equally the fee of the third panel member or hearing officer and all other costs incidental to the hearing. If the hearing is before the board of education, the board shall render its decision within fifteen days after the close of such hearing, and shall send a copy of its decision to the teacher. The hearing shall be public if the teacher so requests or the board, panel or subcommittee so designates. The teacher concerned shall have the right to appear with counsel at the hearing, whether public or private. A copy of the transcript of the proceedings of the hearing shall be furnished by the board of education, upon written request by the teacher within fifteen days after the board’s decision, provided the teacher shall assume the cost of any such copy. Nothing herein contained shall deprive a board of education of the power to suspend a teacher from duty immediately when serious misconduct is charged without prejudice to the rights of the teacher as otherwise provided in this section. . . .
      “(f) Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom, within thirty days of such decision, to the superior court. Such appeal shall be made returnable to said court in the same manner as is prescribed for civil actions brought to said court. Any such appeal shall be a privileged case to be heard by the court as soon after the return day as is practicable. The board of education shall file with the court a copy of the complete transcript of the proceedings of the hearing held by the board of education or by an impartial hearing panel for such teacher, together with such other documents, or certified copies thereof, as shall constitute the record of the case. The court, upon such appeal, shall review the proceedings of such hearing and shall allow any party to such appeal to introduce evidence in addition to the contents of such transcript, if it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court, upon such appeal and after a hearing thereon, may affirm or reverse the decision appealed from. Costs shall not be allowed against the board of education unless it appears to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.”

       The parties did not address the applicability of grievance proceedings to this dispute in their briefs. We have before us, among the exhibits on appeal, the collective bargaining agreement which, in Article 23, provides for resolution of employer-employee disputes through grievance and arbitration proceedings and a formal grievance declaration signed by the plaintiff. Failure to exhaust available grievance and arbitration remedies implicates the court’s subject matter jurisdiction. School Administrators Assn. v. Dow, 200 Conn. 376, 383, 511 A.2d 1012 (1986). The issue of subject matter jurisdiction may be raised at any time, even on appeal; Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987); and by the court itself. See Manley v. Pfeiffer, 176 Conn. 540, 545, 409 A.2d 1009 (1979). Once brought to the court’s attention, it must be resolved. Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985). Therefore, we decide this issue although it was not raised by the parties.

       We have before us the entire collective bargaining agreement. There is no indication that the parties did not intend the grievance-arbitration procedures to be other than the exclusive remedy for resolution of their disputes.