text:
    State of Connecticut v. George Silveira
    (12063)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued November 15, 1985
    decision released January 28, 1986

      Louis S. Avitabile, for the appellant (defendant).

      John F. Droney, Jr., special assistant state’s attorney, with whom were Bradford J. Ward, assistant state’s attorney, Thomas Farrell, certified legal intern, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Dannehy, J.

The defendant was tried by a jury, convicted of manslaughter in the first degree with a firearm, in violation of General Statutes § 53a-55a, and committed to the custody of the commissioner of correction for a term of eight to sixteen years. He claims on appeal that the trial court erred: (1) in refusing his request to charge on the defense of mistake of fact; (2) in charging incorrectly on self-defense and defense of others; and (3) in restricting the defendant’s direct testimony as to his state of mind at the time of the shooting. We agree with the defendant only as to his third claim of error, but conclude that the error was harmless and had no significant effect in bringing about the verdict. Thus, we affirm his conviction.

It appears from the evidence that on March 21,1981, shortly after 2 a.m., the defendant and several companions drove to a place called the Standing Room Only Bar in Waterbury. They had heard that some of their friends were in trouble inside the bar, and had come to assist them. Upon their arrival, the group of approximately six young men got out of their automobiles and stood across the street from the Standing Room Only Bar. Two of them, Americo Magalhaes and Carlos Montiero, entered the bar to check on their friends. They found that their information was incorrect and that their friends were not in trouble. Montiero went back outside to inform the others while Magalhaes remained in the bar to drink and talk with a friend.

The defendant and his companions waited for Magalhaes to leave the bar. Soon they noticed Clint Flammia walking toward the bar entrance. There was testimony that the defendant’s group knew Flammia from a previous incident. Flammia and the defendant’s group began to trade insults across the street. Before long an object, possibly a bottle, was hurled in Flammia’s direction. After Flammia entered the bar, Peter Francisco, who had driven the defendant to the Standing Room Only Bar, moved his car to ensure that “in case of a quick getaway I’d be able to get out of there fast.”

Meanwhile, Flammia, Bob Perugini and about ten other young men came through the front door of the bar and started crossing the street toward the defendant and his companions. The defendant was armed with “nunchackus,” a martial arts weapon consisting of two wooden sticks joined by a metal chain. The defendant shouted at the advancing group to halt. He then produced a handgun and fired two shots over their heads in order to scare them. Perugini told Flammia that the defendant was only shooting blanks, and, as the crowd continued to advance, the defendant and his friends quickly retreated to their automobiles. The defendant, Montiero and Francisco got into Francisco’s car and locked the doors. They then noticed Magalhaes, who had left the bar, trying to make his way through the crowd toward them. When Magalhaes reached Francisco’s car he was surrounded by Flammia, Perugini and several others, who began to punch and beat him about the face and body. When Magalhaes fell to the ground his assailants continued to kick and stomp on his ribs, head and back.

The defendant, Montiero and Francisco decided to assist Magalhaes. Montiero got out of the car and immediately was struck on the head with a thick stick, and went running down the street. The defendant, concerned for Magalhaes’ safety and seeking an immediate end to the beating being administered to him, again produced his handgun. The defendant testified that he fired a single shot at close range one to one and one-half feet to the right of the victim, Greg Lavorgna, who was standing with his back to the defendant on the extreme right of the group which tightly encircled Magalhaes. The defendant further testified that he did not intend to hit anybody, but considered it necessary to aim his gun closely enough to allow Magalhaes’ assailants to hear the bullet whiz by, so that they would realize that he was not merely firing blanks. According to the defendant, just as he was about to pull the trigger, the victim moved slightly to his right and into the path of the bullet. Pathological examination of the victim established that the bullet entered his body through the right shoulder blade, lodging in his heart, and causing death. Additional relevant facts adduced at trial will be discussed as we consider the various issues raised by the defendant.

I

We first address the defendant’s claim that the trial court erred by refusing his request to charge the jury on the defense of mistake of fact under General Statutes § 53a-6 (a) (1) and (3). That statute provides, in pertinent part, that “[a] person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense . . . or (3) such factual mistake is of a kind that supports a defense of justification.” We find this claim to be without merit.

We begin by noting that the defendant was charged with manslaughter in the first degree with a firearm. General Statutes § 53a-55a. That statute incorporates the provisions of General Statutes § 53a-55 (a), which contains three subsections. Because the jury returned a general verdict of guilty against the defendant, we must analyze the defendant’s claim with respect to each of the subdivisions of General Statutes § 53a-55 (a) under which he might have been convicted. See State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984); State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983). We may eliminate completely from our consideration subdivision (2) of General Statutes § 53a-55 (a), because the trial court did not instruct the jury under that subdivision and thus there is no possibility that the defendant was found guilty under it. Therefore, we consider the defendant’s claim that he was entitled to an instruction on mistake of fact only insofar as it relates to his possible conviction under subdivisions (1) and (3) of General Statutes § 53a-55 (a).

General Statutes § 53a-55 (a) provides, in pertinent part, that “[a] person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person . . . or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” Our statutes provide by definition that “[a] person acts ‘recklessly’ with respect to a result . . . when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur .... The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .” General Statutes § 53a-3 (13).

A

The defendant posits two factual theories which he claims entitled him to an instruction on mistake of fact. We consider each separately. He predicates his first claim on General Statutes § 53a-6 (a) (1) which provides for the defense of mistake of fact where “[sjuch factual mistake negates the mental state required for the commission of an offense.” The defendant admits that he fired a shot less than two feet to the right of the victim, who stood on the extreme right of the group of men attacking Magalhaes. The defendant argued at trial that he intended only to scare the attackers away, and that he did not intend to hit any of them. He claims, however, that he did not know, when he fired the fatal shot, that the victim would move slightly to his right and into the path of the bullet which struck him. In essence, the defendant’s first claim of mistake of fact, under General Statutes § 53a-6 (a) (1), is premised on his mistaken belief that the victim would stand still.

A mistake of fact results “when one makes an erroneous perception of the facts as they actually exist.” State v. Gonzales, 99 N.M. 734, 737, 663 P.2d 710, cert. denied, 464 U.S. 855, 104 S. Ct. 173, 78 L. Ed. 2d 156 (1983). The defense arises only where the defendant misperceives an objective state of existing fact, and does not apply to the defendant’s erroneous suppositions as to the unformed intentions of another. A fact is that which has taken place, not something that might or might not take place in the future. See generally State v. Bougneit, 97 Wis. 2d 687, 294 N.W.2d 675 (1980). We do not attempt to delineate the many situations where an instruction on mistake of fact might be appropriate under General Statutes § 53a-6 (a) (1). We only hold that the type of “mistake” alleged here is not among them.

Almost any accident may broadly be viewed as having been caused by a mistake of one form or another. It might be said of an individual struck by lightning that he made a “mistake” in positioning himself where he did. The defendant’s claim to a mistaken belief that the victim would stand still is merely a sophistic way of saying that he did not intend to commit the crime with which he was charged. “Instead of speaking of ignorance or mistake of fact or law as a defense, it would be just as easy to note simply that the defendant cannot be convicted when it is shown that he does not have the mental state required by law for commission of that particular offense.” LaFave & Scott, Criminal Law § 47, pp. 356-57; see State v. Tedesco, 175 Conn. 279, 288, 397 A.2d 1352 (1978). The defendant’s claim that he did not know beforehand that the victim would unexpectedly cross into his line of fire is more appropriately addressed to the question of his intent to cause serious physical injury under General Statutes § 53a-55 (a) (1). This claim, very much like the defense of accident, “is not a justification for a crime. Unless the state has met its burden of proving each element of the crime beyond a reasonable doubt, no finding on the issue of justification is necessary.” State v. Miller, 186 Conn. 654, 665, 443 A.2d 906 (1982).

We have held that when a defendant “admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate.” State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979). In the present case, the defendant’s claim of an innocent intent, if accepted by the jury, would negate an essential element of the crime and mandate a verdict of not guilty. This defense is intrinsically factual, however, and not of the type which we have held to require a distinct instruction as part of the trial court’s charge. A general “claim of innocence or a denial of participation in the crime charged is not a legally recognized defense and does not entitle a defendant to a theory of defense charge.” Id. A theory of defense instruction is appropriate, upon proper request; State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985); only when evidence supporting a “legally recognized defense” is placed before the jury. State v. Cassino, 188 Conn. 237, 243, 449 A.2d 154 (1982); State v. Rosado, supra; see State v. Harris, 189 Conn. 268, 274, 455 A.2d 342 (1983). The defendant’s claim, although fashioned in terms of mistake of fact, is in reality nothing more than a denial of the intent to cause serious physical injury required for conviction under General Statutes § 53a-55 (a) (1). Because this is not a “legally recognized defense” under our law, the trial court did not err in denying his request to charge on mistake of fact under General Statutes § 53a-6 (a) (1).

We also consider briefly the defendant’s claim as it applies to subdivision (3) of General Statutes § 53a-55 (a). That subdivision proscribes reckless conduct “which creates a grave risk of death to another person” under circumstances “evincing an extreme indifference to human life.” The intent to cause serious physical injury is not an element of subdivision (3), and therefore, the defendant’s claim that he did not intend to shoot the victim would not be a defense to a prosecution under that subdivision. We conclude that, insofar as the defendant may have been found guilty under General Statutes § 53a-55 (a) (3), the trial court did not err in refusing to charge the jury on mistake of fact in accordance with the defendant’s theory advanced under General Statutes § 53a-6 (a) (1).

B

We next address the defendant’s claim that the trial court erred in refusing to instruct the jury on mistake of fact under General Statutes § 53a-6 (a) (3). That statute provides: “A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless . . . (3) such factual mistake is of a kind that supports a defense of justification.” In this regard, defense counsel argued that the defendant would have been justified under General Statutes § 53a-19 in using deadly physical force against the victim if he reasonably believed that the victim was part of a crowd that was inflicting or about to inflict great bodily harm on Magalhaes. The state’s attorney had contended that the defense of justification by defense of others would not be applicable in the case because no evidence had been introduced that the victim had actually inflicted bodily harm on Magalhaes. Defense counsel correctly maintained that the issue under General Statutes § 53a-19 (a) was whether the defendant reasonably believed that the victim was one of the attackers, and, thus, that the defendant would not lose the benefit of justification by defense of others merely because no direct evidence had been introduced that the victim had actually inflicted bodily harm on Magalhaes. In this context, counsel requested a theory of defense instruction, under General Statutes § 53a-6 (a) (3), that a reasonable mistake as to whether the victim was one of Magalhaes’ assailants would not deprive the defendant of his defense of justification under General Statutes § 53a-19 (a).

The trial court, attempting to clarify counsel’s argument, expressed the opinion that any mistake in this context was necessarily included within the purview of General Statutes § 53a-19 (a), which provides, in pertinent part, that “a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

We agree with the trial court that General Statutes § 53a-19 (a) embraces a reasonable mistake of fact of the type asserted by the defendant in this claim of error. The trial court charged, in reference to the defendant’s belief in the necessity of using deadly physical force: “Now he may be wrong in such belief, but if it has a reasonable basis, if he has a reasonable basis to believe that an assault against himself or against Mr. Magalhaes was about to take place and that the actors were about to use deadly physical force or force capable of inflicting great bodily harm, he is justified in using deadly physical force . ...” We believe the trial court’s charge was correct in law, adapted to the issues and sufficient for the guidance of the jury. There is no error in the refusal to charge on mistake of fact under General Statutes § 53a-6 (a) (3).

II

We next consider the defendant’s various claims that the trial court erred in its instructions to the jury on the issue of justification. The defendant, in his written request to charge, requested the trial court to instruct the jury: (1) on self-defense and defense of others as provided in General Statutes § 53a-19 (a); (2) on the duty to retreat as provided in General Statutes § 53a-19 (b); and (3) on the law relating to provocation and aggression as provided in General Statutes § 53a-19 (c). While not adopting verbatim the defendant’s requests, the court charged on the statutory elements of the defense of justification by self-defense and defense of others. Thereafter, the jury, during its deliberations, requested the trial court to reread the portion of its charge concerning justification. At this point, defense counsel asked the court to instruct the jury to disregard the theory of self-defense, and to modify its charge with respect to defense of others. The defendant claims error in the trial court’s refusal to comply with these requests.

A

The defendant’s claim that the trial court erred in refusing his belated request to reinstruct the jury that self-defense should no longer be considered is without merit. While recognizing that instructions that misstate the statutory defense of self-defense may “unconstitutionally implicate a defendant’s due process right to establish a defense”; State v. Preyer, supra, 198; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1983); we have held that “error induced by an appellant cannot be a ground for reversal and will not be reviewed. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Kish, 186 Conn. 757, 769, 443 A.2d 1274 (1982).” State v. Hinckley, 198 Conn. 77, 81 n.2, 502 A.2d 388 (1985). We are particularly ill-disposed to find harmful error where the trial court instructs the jury in the language of the applicable statute and in substantial conformity with the defendant’s request to charge.

In this case the trial court, over the state’s objection, charged the jury on self-defense as requested by the defendant. The court expressed its doubt that such a defense was supported by the evidence, instructing the jury: “Now, it will of course be up to you to determine whether [the defendant] himself at any time during the confrontation was under attack or threat of attack by deadly physical force which would have justified his use of deadly physical force to protect his own safety. The evidence to substantiate that he himself was confronted by deadly physical force would appear to be, to the Court, to be lacking or to be minimal at least, but this will be for you to decide.” We might consider the defendant’s claim of error had the trial court, in the absence of a request to charge, undertaken sua sponte to instruct the jury on self-defense and thereupon misstated the elements of General Statutes § 53a-19. State v. Preyer, supra; State v. Corchado, supra; see State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985). Here, however, the court’s charge mirrored the statutory language. Moreover, the trial court clearly informed the jurors that they were free to accept or reject the defense of self-defense as they found the evidence warranted. We do not believe that the defendant suffered any prejudice as a result of this additional, albeit superfluous, defense being placed before the jury. We conclude that it is not reasonably possible that the jury could have been misled by the court’s instruction on self-defense. State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); State v. Smith, 194 Conn. 213, 219, 479 A.2d 814 (1984).

B

The defendant also claims error in the trial court’s refusal to modify its charge on defense of others. As noted, the jury, during its deliberations, asked the court to reread its charge on justification. Defense counsel then requested that the court modify its charge by instructing the jury that the exceptions to defense of others, as set forth in General Statutes § 53a-19 (c), must be considered from the perspective of the defendant.

Subsection (c) of General Statutes § 53a-19 provides in pertinent part: “Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor . . . or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.” Subsection (a), in setting forth the general rule when the use of force is justified, does not textually differentiate between self-defense and defense of others. Consequently, by the terms of the statute, the use of force in self-defense or defense of another is never justified where the conditions set forth in subsection (c) are found to exist.

The defendant acknowledges that the exceptions of provocation, aggression and combat by agreement as specified in General Statutes § 53a-19 (c) may properly deprive a defendant of the right to rely on self-defense. He contends, however, that those exceptions are wholly inapplicable, under the common law as well as under the statute, to defense of others. State v. Shaw, 185 Conn. 372, 379, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982). We do not agree. Subsection (a) of General Statutes § 53a-19 begins with the proviso “Except as provided in subsections (b) and (c)” and then proceeds to set out' the standard by which the use of force may be justified. We read this proviso to make subsection (a) expressly subject to subsections (b) and (c). Moreover, as if the proviso in subsection (a) were not sufficient to convey this idea, the legislature chose to begin both subsections (b) and (c) with the additional proviso, “[notwithstanding the provisions of subsection (a),” before setting forth the conditions where the use of force would not be justified. We find it difficult to conceive what more the legislature could have done to manifest its intent that the use of force in self-defense or defense of another, as provided in subsection (a), is not justified where a defendant has engaged in the conduct described in subsection (c). The issue under subsection (c) is not whether the defendant reasonably believed that he provoked the use of force, or that he was the initial aggressor, or that there existed an agreement to engage in combat. The issue, rather, is whether the defendant did provoke the use of force, or was the initial aggressor, or did agree to engage in combat. The trial court did not err in refusing to instruct that the exceptions of provocation, aggression and combat by agreement must be considered from the perspective of the defendant.

c

The defendant also claims that the trial court should not have instructed the jury on the exception of combat by agreement, as provided in General Statutes § 53a-19 (c). His claim is based on the fact that all of the witnesses who testified at trial specifically denied that there had been an agreement between the defendant, his companions and their adversaries to engage in combat on the evening of the incident in question. He concludes that the denial by the actual participants of any agreement precludes a jury finding that such agreement may, in fact, have existed. We do not agree.

The agreement required by General Statutes § 53a-19 (c) (3) need not be formal or express. The defendant himself testified that he and his companions went to the Standing Room Only Bar on the evening of this incident to assist friends who they had heard were in trouble. There was testimony that the defendant’s group, while congregated in front of the bar, became embroiled in an altercation with Flammia. Other testimony indicated that the defendant’s group had been involved with Flammia before. In apparent response to this altercation, Flammia entered the bar and returned shortly with companions of his own. Flammia’s crowd then proceeded to converge on the defendant’s group, with the resulting acceleration of hostilities which culminated in this tragic incident. While direct evidence of agreement may have been lacking, we find the evidence sufficient to support a reasonable inference that the physical force employed by the defendant “was the product of a combat by agreement not specifically authorized by law.” General Statutes § 53a-19 (c) (3). There is no merit in this claim of error.

Ill

We next address the defendant’s claims that the trial court erred in two interrelated rulings on the admissibility of evidence. We agree with the defendant that the trial court erred in both rulings. We will first consider each claim separately, identifying the specific error committed. Because the errors are so closely related, however, we treat them together in assessing their effect on the fairness of the defendant’s trial, and in determining whether reversal is required.

A

The defendant’s first evidentiary claim must be placed in context. The defendant testified on direct examination that while he and his companions waited outside the bar for Magalhaes to join them, Flammia arrived and an altercation ensued. Flammia entered the bar and returned shortly, accompanied by Perugini and approximately ten other men. As this group advanced toward the defendant and his companions, the defendant testified that he fired two warning shots over their heads. Defense counsel then asked the defendant what happened next. The defendant replied, “Mr. Perugini said something to me.” Outside the presence of the jury the defendant was allowed to testify, for the record, as to the content of Perugini’s statement. According to the defendant, after he fired the two warning shots over the crowd, Perugini told him: “If you shoot me you better kill me.” The trial court disallowed this statement on the grounds that it was hearsay.

On redirect examination, defense counsel renewed his efforts to introduce Perugini’s alleged statement. He specifically alerted the trial court that the statement was not being offered to prove the truth of the matter asserted, but rather, to show its effect on the defendant. He further referred the trial court to the correct page and section of a well known work on Connecticut evidence. Tait & LaPlante, Connecticut Evidence (1976) § 11.3 (d). The assistant state’s attorney persisted in his objection that “it’s clearly hearsay.” Again, the objection was sustained.

We recognize that the hearsay rule and the proper application of its many exceptions have long been the source of confusion among judges and lawyers alike. Nonetheless, the basic definition of hearsay is not difficult to understand. “An out-of-court statement is hearsay when it is offered to establish the truth of the matters contained therein.” State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); State v. Randolph, 190 Conn. 576, 584, 462 A.2d 1011 (1983); State v. DeFreitas, 179 Conn. 431, 439-40, 426 A.2d 799 (1980); State v. Barlow, 177 Conn. 391, 396, 418 A.2d 46 (1979). A statement offered solely to show its effect upon the hearer is not hearsay. Counsel on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 200, 476 A.2d 1041 (1984); State v. Zdanis, 173 Conn. 189, 192 n.1, 377 A.2d 275 (1977). The defendant in this case clearly did not offer Perugini’s statement in proof of the matter asserted, i.e., that if he shot Perugini, he had better kill him. Perugini’s statement was in the nature of a threat, or an expression of hostility, and as such, bore directly on the reasonableness of the defendant’s subsequent actions. A similar rationale applies to “proof by the defendant, in cases of assault or homicide, of communicated threats made to him by the [victim]. If offered to show his reasonable apprehension of danger it is not offered for a hearsay purpose; its value for this purpose does not depend on the truth of the statement.” McCormick, Evidence (3d Ed. 1984) § 249, p. 734. We find that the trial court erred in its refusal to allow the defendant to testify to Perugini’s statement, “If you shoot me you better kill me.”

B

Shortly after the objection to the admission of Perugini’s statement had been sustained, defense counsel, still on direct examination, asked the defendant about his state of mind when he fired the fatal shot. The following transpired:

“Mr. Avitabile: What was your feeling or your intention or your state of mind when you fired that shot?

“Mr. Ward: Objection, self-serving, it’s the same question previously asked.

“The Court: Objection is sustained.

“Mr. Avitabile: As to what, repetitious?

“The Court: As to what you asked.

“Mr. Avitabile: You’re not going to allow me to ask what his state of mind was when he fired the shot, that’s what I’m asking.

“The Court: His state of mind when he fired the gun?

“Mr. Avitabile: Yeah.

“Mr. Ward: It’s clearly self-serving, your Honor.

“The Court: That’s the problem with it.”

There is no rule in this jurisdiction which prevents a witness from testifying to relevant facts within his personal knowledge merely because his testimony may be self-serving. Such an extraordinary rule presumably would disqualify as witnesses most parties in civil suits as well as the defendant in a criminal case. General Statutes § 52-145 (a) expressly provides that a “person shall not be disqualified as a witness in any action because of, (1) his interest in the outcome of the action as a party or otherwise . . . .” We have repeatedly upheld against constitutional challenge an instruction that the jury in weighing the credibility of an accused’s testimony may consider his interest in the outcome of the case. State v. Wright, 198 Conn. 273, 280, 502 A.2d 911 (1985); State v. Frazier, 194 Conn. 233, 239, 478 A.2d 1013 (1984); State v. Maldonado, 193 Conn. 350, 366-67, 478 A.2d 581 (1984). This instruction is presupposed by our recognition and acceptance of the fact that the testimony of an accused may be self-serving. It is the task of the cross-examiner to discredit a witness by exposing his motive or interest in testifying. See, e.g., State v. Ortiz, 198 Conn. 220, 502 A.2d 400 (1985); State v. Milum, 197 Conn. 602, 608-609, 500 A.2d 555 (1985). The ultimate issue, credibility, is for the jury, not the court, to decide.

The governing principle with respect to this issue is that relevant evidence is admissible unless excluded for some reason of policy. “Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent.” State v. Sharpe, supra, 659; State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975). The defendant was charged with intentional manslaughter and reckless manslaughter, in violation of General Statutes § 53a-55a. His state of mind when he fired the fatal shot was relevant to his guilt under both of those subsections. Evidence of the defendant’s state of mind was also relevant to the jury’s resolution of his claim of justification. The “test for the degree of force in self-defense [and defense of others] is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant’s belief ultimately must be found to be reasonable.” State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984); State v. Croom, 166 Conn. 226, 229-30, 348 A.2d 556 (1974). The defendant’s testimony as to his actual belief would be relevant to this determination. We have consistently held that mental condition is a fact, and, where relevant to an issue in the case, the witness concerned may testify directly to it. Horowitz v. F. E. Spencer Co., 132 Conn. 373, 379, 44 A.2d 702 (1945); see State v. Periere, 186 Conn. 599, 605-606, 442 A.2d 1345 (1982); State v. Savage, 161 Conn. 445, 447, 290 A.2d 221 (1971). The defendant’s testimony as to his prior mental condition was not hearsay because it concerned a fact within his own personal knowledge. His testimony with regard to this fact was no more and no less self-serving than his testimony with regard to any other fact. The trial court erred by excluding it on the ground that it was self-serving.

C

Our determination that the trial court erred in excluding Perugini’s statement and in disallowing the defendant’s testimony as to his state of mind when he fired the fatal shot does not necessarily require reversal. The defendant claims that the erroneous rulings deprived him of his state constitutional right to testify under article first, § 8, of the Connecticut constitution; State v. King, 187 Conn. 292, 303-304, 445 A.2d 901 (1982); as well as his due process right to present an effective defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Preyer, supra; State v. Corchado, supra, 660.

With respect to the state constitutional right to testify, we recently stated that State v. King, supra, where that right was mentioned, “did not effect any fundamental change in the law.” State v. Wright, supra, 280. We therefore consider the harmfulness of the erroneous rulings under the due process clause. Our inquiry, under the due process clause, is whether the erroneous exclusion of evidence “was so prejudicial to the rights of the defendant as to deprive him of a fair trial. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). Stated another way, the question is ‘whether the claimed erroneous action of the court would have been likely to affect the result.’ State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).” State v. Talton, 197 Conn. 280, 289, 497 A.2d 35 (1985). Because both of the trial court’s erroneous rulings resulted in the exclusion of evidence tending to reflect on the defendant’s state of mind at the time he fired the fatal shot, we believe that the question whether the defendant received a fair trial must be answered in light of the evidence relating to that issue which was admitted at trial.

The defendant testified in great detail to the events immediately preceding the fatal shooting. He related how Flammia, Perugini and approximately ten others exited the Standing Room Only Bar and began to advance on him and his companions. He testified that some of the crowd members were armed with sticks, bottles and chains, and that he believed that “they wanted to hurt us.” On cross-examination the defendant was questioned extensively concerning the warning shots he fired over the crowd. He later testified that his “purpose” in firing the warning shots was “to make them go away.” The jury heard that the crowd did not disperse, that the defendant and his companions retreated to their cars, and that the crowd thereafter began to batter Magalhaes.

With regard to Magalhaes’ attackers, the defendant was allowed to testify that “I thought they were going to kill him.” The defendant claimed throughout his testimony that he did not intend to shoot any of Magalhaes’ attackers, and that he aimed one to one and one-half feet to the right of them. According to the defendant, he wanted to “scare them” away, and that if “they heard the bullet whiz by them they would believe they were live rounds instead of blanks.” The testimony proceeded as follows:

“Mr. Ward: So the third shot you fired you claim that you were going to make believers out of them, is that right?

“The defendant: No, I don’t claim that at all.

“Mr. Ward: You wanted them to hear the whiz of the bullet, didn’t you?

“The defendant: Yeah.

“Mr. Ward: Or the whistling of the bullet?

“The defendant: Yes.

“Mr. Ward: Wasn’t that your goal?

“The defendant: No, my goal was to get them off [Magalhaes].

“Mr. Ward: And how were you going to do that, by killing them all?

“The defendant: No.

“Mr. Ward: By making them hear the whiz of the bullet?

“The defendant: Correct.”

We have considered this and other evidence offered at trial. Given the totality of the evidence, the jury was furnished an ample basis from which to draw its conclusions about the events that transpired on the evening in question, and how those events were perceived by the defendant. The ultimate issue before the jury was whether the defendant’s actions were reasonable under the circumstances. In light of the additional evidence pertaining to the defendant’s state of mind that was placed before the jury, we do not believe that the erroneous exclusions of evidence deprived the defendant of either his state constitutional right to testify or his federal constitutional right to present an effective defense. Because the erroneous exclusions of evidence do not amount to a constitutional violation, it is the defendant’s burden to show that the errors were harmful. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. Gordon, 185 Conn. 402, 419, 441 A.2d 119 (1981); State v. Ruth, supra. In this case we find that this burden has not been met.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] See. 53a-55a. manslaughter in the first degree with a firearm: class b felony: one year not suspendable. (a) A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.
      “(b) Manslaughter in the first degree with a firearm is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”
      “[General Statutes] Sec. 53a-55. manslaughter in the first degree: class B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.
      “(b) Manslaughter in the first degree is a class B felony.”

       The state’s attorney argued as follows:
      “Yes, if your Honor please, the evidence as I recall it revealed that [the victim] was in a motor vehicle operated by Ferrare when it passed the scene and saw Flammia and Peragini in the road and went up to the cemetery and the three men exited the vehicle, one was [the victim], one of them was Dufour and one of them was Murray. Ferrare subsequently stayed in the cemetery and went back to his car. There is no evidence at all from any of the witnesses, your Honor, that indicates that [the victim] had any weapon of any kind in his hand. Indeed many of the witnesses said they didn’t even know who [the victim] was after his body was discovered on the church lawn. In addition, your Honor, Mr. Magalhaes did not say that [the victim] kicked or hit him in any fashion. He identified Mr. Perugini and somebody else identified Mr. Flammia as having hit Mr. Magalhaes but in any event no one identified [the victim] as having hit, struck Mr. Magalhaes, including Mr. Magalhaes which I think is very important. Secondly, your Honor, the Defendant’s claim that he saw a group at or near or around Magalhaes and he said [the victim] must have been kicking him and then on further questioning: well, did you see him? No, I didn’t see him, he must have been. How do you know he must have been? Well, he was standing there. So it’s a strict guess, conjecture, assumption on his part that [the victim] was a possible attacker of Mr. Magalhaes.”

       Defense counsel claimed: “The mistake of fact is that there is no evidence here besides the Defendant’s testimony that [the victim] was or was not acting in such a manner, so what the mistake of fact does is if the jury finds that, one, there were one or more persons who were actually inflicting or about to inflict bodily harm on Mr. Magalhaes and, two, that it reasonably appeared to the Defendant that [the victim] was one of those persons who were inflicting or about to inflict great bodily harm on Mr. Magalhaes, then the Defendant because of the combination of mistake of fact and [defense of another] would be entitled to shoot one to one and a half feet to the right of [the victim]. ...”

       In argument before the trial court, defense counsel appeared to recognize clearly that General Statutes § 53a-19 (a) embraced a reasonable mistake as to whether the victim was one of Magalhaes’ assailants. He argued, however, that notwithstanding General Statutes § 53a-19 (a), the defendant was entitled to an additional instruction under General Statutes § 53a-6 (a) (3), by virtue of its having been enacted. The colloquy follows:
      “Mr. Avitabile: [General Statutes § 53a-19 (a) provides in pertinent part] that deadly physical force may not be used unless the actor reasonably believes that such other person is using or about to use deadly physical force or is inflicting or about to inflict great bodily harm. That statute does not say unless such other person is using, it says the actor or defendant reasonably believes that he is using. That statute in itself makes room for mistake of fact. Then when you read that in combination with 53a-6 they have to be worked in combination because you can’t say that the legislature passed that statute for no reason.
      * ** *
      “The Court: Doesn’t this argument you’re talking about go to justification rather than mistake?
      “Mr. Avitabile: If your Honor would turn —
      “The Court: They are going to determine whether or not he is credible, number one, and number two, what his reasonable belief was.
      “Mr. Avitabile: There is a problem, though, tell me why, turn to 53a-6 (3) and tell me why that’s there in the statute.

        “The Court: 53a-6.
      “Mr. Avitabile: 53a-6 (a) (3), tell me why that’s there in the statute, your Honor.
      “The Court: Wait a minute, let me look at it first.
      “Mr. Avitabile: Just because there is no law on it, it doesn’t mean it isn’t there for a purpose.” (Emphasis added.)
      Defense counsel also argued to the trial court: “[The defendant] said things on direct examination, he said things on cross-examination, but the result of what he said was, when I fired a shot it appeared to me, I assumed, it appeared to me that he, he described all of the action that took place before he fired the shot, which we won’t go into with Mr. Monteiro getting hit, I’ll go into that in front of the jury, he described all of the action that took place, that he saw at that point, he said he fired a shot because of what he saw and he had seen people kicking him, legs going in the air, he assumed they were all doing the same thing and the jury has to decide whether he was reasonable in assuming that and if he was reasonable in assuming that one or more of them were . . . inflicting or about to inflict great bodily harm he’s got a defense to the case whether you call it self defense, defense of others, mistake of fact, he is certainly entitled to that defense. I’m just pointing out the specific statute that says that any mistake of fact which tends to support justification relieves one of criminal liability.” (Emphasis 'l

       “[General Statutes] Sec. 53a-19. use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The defendant does not claim error in the trial court’s charge with respect to the duty to retreat set forth in General Statutes § 5Sa-19 (b). See footnote 5, supra. We recognize that our disposition of the defendant’s claims regarding the exceptions enumerated in subsection (c) may be understood to apply as well to the duty to retreat set out in subsection (b). We caution that our holding is strictly limited to the facts of this case. An interpretation of subsection (b) requiring a defendant acting in defense of another to retreat, without regard to the ability to retreat of the person defended, would be inconsistent with the general right to defense of others set forth in subsection (a). In this case the trial court interpreted the phrase “with complete safety,” as employed in subsection (b), to include the safety of the person defended.

       See footnote 1, supra.

       Cf. footnote 6, supra, and accompanying text. The primary determination of reasonableness under subsection (a) is made from the perspective of the defendant. The applicability of the exceptions contained in subsection (c), however, must be determined from all the facts in evidence and is not to be viewed from the perspective of the defendant.

       The prosecutor and the trial court may have been confused by the rule of evidence which bars admission by a party of his own hearsay declarations, because, inter alia, they are self-serving. State v. McDowell, 179 Conn. 121, 125, 425 A.2d 935 (1979); State v. Penn, 144 Conn. 148, 154, 127 A.2d 833 (1956); State v. Goldberger, 118 Conn. 444, 455, 173 A. 216 (1934); but cf. State v. Anonymous (83-FG), 190 Conn. 715, 728-29, 463 A.2d 533 (1983), and State v. Dolphin, 178 Conn. 564, 567-71, 424 A.2d 266 (1979). In this case, however, the defendant sought to testify to a fact within his personal knowledge. His testimony, while perhaps self-serving, was clearly not hearsay, and should not have been excluded.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Department of Health Services v. Commission on Human Rights and Opportunities ex rel. Antoinette Mason
    (12677)
    (12678)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.

      Argued December 4, 1985
    decision released February 4, 1986

      Donald C. Pogue, with whom, on the brief, was Gregg D. Adler, for the appellant (defendant Antoinette Mason).

      Phillip A. Murphy, Jr., with whom was Raymond P. Pech, for the appellant (named defendant).

      Stanley K. Peck, special assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (department of health services).

      Richard R. Brown, for the appellee (plaintiff Janet Kapish).
   Peters, C. J.

This case concerns the scope of a trial court’s authority to modify, in contempt proceedings, a final remedial order enforcing an administrative determination that the alleged contemnor has engaged in a pattern of discriminatory conduct. The present proceedings began with a complaint by the defendant Antoinette Mason to the defendant commission on human rights and opportunities (hereinafter the CHRO) pursuant to General Statutes § 31-127 (now § 46a-82). The complainant charged that the plaintiff department of health services (hereinafter the DOHS) had deprived her of a promotion because of racial discrimination in violation of General Statutes § 31-126 (a) (now § 46a-60 [a] [l]) and had engaged in wrongful retaliation in violation of General Statutes § 31-126 (d) (now § 46a-60 [a] [4]). The CHRO found in favor of the complainant and ordered the DOHS to appoint her to a specifically designated laboratory position to which the DOHS had appointed another person. On appeal by the DOHS to the Superior Court, the CHRO order was upheld, and this court subsequently denied certification. Thereafter, the DOHS reorganized its laboratories and appointed the complainant to a position other than that designated in the CHRO order. Alleging that this DOHS appointment constituted noncompliance with its order, the CHRO filed a motion asking that the DOHS be held in contempt. The trial court denied this motion and the defendants have appealed. We find error.

The underlying facts are undisputed. On June 14, 1977, Antoinette Mason filed a complaint of racial discrimination with the CHRO. After an investigation and a hearing, the CHRO hearing tribunal determined, on January 31,1980, that the DOHS had engaged in a pattern and practice of racial discrimination against Mason and had unlawfully denied her a promotion in favor of a less qualified white person, Janet Kapish. To remedy this history of discrimination, the CHRO ordered that Mason be appointed to the position of assistant director, health laboratory division (public health chemistry and biophysics section). Recognizing that Kapish was an innocent and good faith beneficiary of the discriminatory practices engaged in by the DOHS, the CHRO order instructed the DOHS to transfer Kapish to another available position at the same salary and with the same benefits that she would have received as assistant director. The DOHS appealed the decision and order of the hearing tribunal to the Superior Court, and the CHRO cross-petitioned for enforcement of its order. On September 30,1982, the Superior Court, Barry, J., entered a decree enforcing the hearing tribunal’s order and directing DOHS “to comply with said.order in all respects.” A petition for certification filed by the DOHS was denied on December 7, 1982.

The specific position to which Mason became entitled by virtue of the court order was that of assistant director, health laboratory division (public health chemistry and biophysics section). While judicial proceedings were pending, the title of this position, then held by Kapish, was changed to assistant director, health laboratory division (environmental chemistry section). The DOHS then created a new position denominated assistant director, health laboratory division (organic chemistry section) for Mason. As a result of this reorganization dividing up the work of the prior public health chemistry and biophysics section, Mason was placed in a position which did not include all of the responsibilities and duties included in the prior laboratory section at the time of the court order. The DOHS created the two new assistant director positions for two reasons: to carry out the court order of appointment for Mason while continuing Kapish in an available position with the same salary and benefits as an assistant director, and to improve working procedures within the laboratory in response to expansion in its work load and areas of responsibility.

During the contempt proceedings, in which Kapish was given intervenor status, the defendants sought to prove that the DOHS reorganization did not comply with the court order of September, 1982. The trial court, Kremski, J., concluded, however, that the DOHS was not in contempt. Acknowledging that the DOHS reorganization placed Mason in a position with fewer responsibilities and duties than the position described in the court order, the court nonetheless viewed the reorganization as consistent with its own interpretation of the court order. That order, according to the court, imposed on the DOHS a dual obligation: to appoint Mason to an assistant directorship in the laboratory and to appoint Kapish to a position comparable in responsibility to her previous position. In discharging its obligation, the DOHS properly implemented a reorganization that not only responded to its legal obligation under the court order but also took into account the present needs of a department whose work load had significantly expanded since the inception of this litigation in 1977. In effect, the court held that substantially changed circumstances required a modification of the court order directing the DOHS to appoint Mason to the position of assistant director, health laboratory division (public health chemistry and biophysics section) because that position no longer existed.

The CHRO and Mason, who filed separate appeals to this court, urge us to overturn the judgment of the trial court on a number of grounds. Both appellants maintain that the trial court erred : (1) in its construction of the September, 1982 court order; (2) in its factual findings about the appropriateness of the positions offered to Mason and to Kapish, and in the subsidiary evidentiary and procedural rulings that led to these factual findings; and (3) in its conclusion that the reorganization of the DOHS precluded appointment of Mason to the position specified in the 1982 court order. Mason argues, in addition, that the trial court erred in permitting Kapish to intervene as a party plaintiff. In light of our disposition of the case, these issues need not be specifically addressed.

The determinative question in this case is the scope of the trial court’s authority, in contempt proceedings, to modify a specific and final remedial order resulting from an administrative finding that the alleged contemnor has engaged in a pattern of discriminatory conduct. In contempt proceedings involving family matters, “[b]y virtue of General Statutes § 46b-8 and Practice Book § 464 (a), a trial court is authorized to grant the affirmative relief of modifying an order for support and alimony to one who is in contempt of such an order.” Greenwood v. Greenwood, 191 Conn. 309, 314, 464 A.2d 771 (1983); Sanchione v. Sanchione, 173 Conn. 397, 403, 378 A.2d 522 (1977). A similar view prevailed at common law. Lasprogato v. Lasprogato, 127 Conn. 510, 513, 18 A.2d 353 (1941). Furthermore, in dealing with judgments that decree injunctive relief, we have held that “courts have inherent power to change or modify their own injunctions where circumstances or pertinent law have so changed as to make it equitable to do so.” Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969); Collens v. New Canaan Water Co., 155 Conn. 477, 494, 234 A.2d 825 (1967). That power must, however, be exercised in a manner consistent with “ 'the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. . . .’ Maggio v. Zeitz, 333 U.S. 56, 69, 68 S. Ct. 401, 92 L. Ed. 476 (1948).” Cologne v. Westfarms Associates, 197 Conn. 141, 148, 496 A.2d 476 (1985). The question is the applicability of these principles, enunciated in cases in which trial courts had plenary authority to fashion the underlying decrees, to the enforcement of final remedial orders that result from administrative proceedings. Although this issue is one of first impression, we believe that the deference to administrative decision making that is reflected in our Uniform Administrative Procedure Act counsels against judicial modification of administratively derived remedial orders in contempt proceedings.

Our starting point must be the well established principle that, even “[w]hen agency action is overturned . . . because of invalid or insufficient findings ... a court must ordinarily remand the matter under consideration to the agency for further consideration. Hartford v. Hartford Electric Light Co., 172 Conn. 71, 73, 372 A.2d 131 (1976); Bogue v. Zoning Board of Appeals, 165 Conn. 749, 753-54, 345 A.2d 9 (1974); Watson v. Howard, 138 Conn. 464, 470, 86 A.2d 67 (1952).” Feinson v. Conservation Commission, 180 Conn. 421, 429-30, 429 A.2d 910 (1980); see also Konigsberg v. State Bar of California, 366 U.S. 36, 43-44, 81 S. Ct. 997, 6 L. Ed. 2d 105 (1961); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 145, 60 S. Ct. 437, 84 L. Ed. 656 (1940). Remand for agency consideration is particularly appropriate, we have held, when the issue before the court is one raising important considerations of policy that the agency has not previously had the opportunity to consider. See Fellin v. Administrator, 196 Conn. 440, 450, 493 A.2d 174 (1985).

It is the CHRO that is charged with the primary responsibility of determining whether discriminatory practices have occurred and what the appropriate remedy for such discrimination must be. When a remedial order of the CHRO has been tested and validated through the judicial process, we hold today that such an order cannot be collaterally modified at the instance of a party resisting judicial enforcement of that order. Undeniably, a court adjudicating contempt proceedings must retain the authority to decide whether a remedial order is so vague and unclear that it is inappropriate to impose sanctions for disobedience of the order. See Adams v. Vaill, supra, 485-86; Labbadia v. Bailey, 147 Conn. 82, 86, 157 A.2d 237 (1959). The problem in this case, however, is not ambiguity. At the heart of the controversy that divides the parties is the exactitude of the remedial order that Mason be appointed to a specifically designated assistant directorship in the DOHS laboratory. Judicial authority to deal with ambiguity does not encompass judicial reconsideration of clear and unequivocal remedial orders, even on the ground of a substantial change of circumstances, when those remedial orders represent the culmination of fully litigated administrative proceedings.

Because the trial court’s decision that the DOHS was not in contempt resulted from an erroneous view of its authority to modify the express terms of the remedial order of September, 1982, its judgment cannot stand. We have often looked to federal employment discrimination law for guidance in enforcing our own anti-discrimination statute. See Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 230, 487 A.2d 201 (1985); Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982); Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, 170 Conn. 327, 331, 365 A.2d 1210 (1976). The federal case law recognizes that appellate courts must inquire into the interpretative reasoning that led a trial court to conclude that a remedial order had not been violated. N.L.R.B. v. Warren Co., 350 U.S. 107, 110-13, 76 S. Ct. 185, 100 L. Ed. 96 (1955); Eaton v. Courtaulds of North America, Inc., 578 F.2d 87, 90-92 (5th Cir. 1978). When, as here, the trial court’s reasoning was erroneous, its conclusion that the questioned conduct did not constitute a contempt is equally erroneous and must be overturned despite the narrow scope of appellate review of contempt proceedings; see Potter v. Board of Selectmen, 174 Conn. 195, 197, 384 A.2d 369 (1978); Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974). In accordance with the principles we have set out above, the case must be remanded to the CHRO to determine whether a substantial change in circumstances requires modification of its earlier remedial order. See Civil Service Commission v. Commission on Human Rights & Opportunities, supra, 231.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to remand the case for further consideration by the commission on human rights and opportunities.

In this opinion the other judges concurred.

       At the time the complaint was filed, June 14, 1977, General Statutes § 31-127 (now amended as § 46a-82) provided: “Sec. 31-127. procedure. Any person claiming to be aggrieved by an alleged unfair employment practice may, by himself or his attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unfair employment practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission. The commission, whenever it has reason to believe that any person has been engaged or is engaged in an unfair employment practice, may issue a complaint. Any employer whose employees, or any of them, refuse or threaten to refuse to comply with the provisions of this chapter may file with the commission a written complaint under oath asking for assistance by conciliation or other remedial action. The submission of a claim to the arbitration process shall not bar a person from filing a complaint under this chapter and, in considering such claim, the commission and the hearing tribunal may admit in evidence any decision resulting from such arbitration and accord it such weight as may be appropriate under the facts and circumstances of the case. After the filing of any complaint, the chairman of the commission shall refer the same to a commissioner or investigator to make investigation of such complaint and, if such commissioner or investigator determines after such investigation that there is reasonable cause for believing that an unfair employment practice has been or is being committed as alleged in such complaint he shall endeavor to eliminate the unfair employment practice complained of by conference, conciliation and persuasion. In the conduct of such investigation the commission may issue subpoenas requiring the production of employment records relating to the complaint under investigation. No commissioner or investigator shall disclose what has occurred in the course of such endeavors, provided the commission may publish the facts in the case and any complaint which has been dismissed and the terms of concilation when a complaint has been adjusted. In case of failure to eliminate such practice, the investigator or investigating commissioner shall certify the complaint and the results of his investigation to the chairman of the commission and to the attorney general. The chairman of the commission shall thereupon appoint a hearing tribunal of one member of the commission or one hearing examiner to hear such complaint and shall cause to be issued and served in the name of the commission a written notice, together with a copy of such complaint, as the same may have been amended, requiring the person, employer, labor organization or employment agency named in such complaint, hereinafter referred to as the respondent, to answer the charges of such complaint at a hearing before such tribunal, at a time and place to be specified in such notice. The place of any such hearing may be the office of the commission or another place designated by it. The case in support of the complaint shall be presented at the hearing by the attorney general, who shall be counsel for the commission, or the counsel appointed under the provisions of section 31-125a, as the case may be; and no commissioner who previously made the investigation or caused the notice to be issued shall participate in the hearing except as a witness, nor shall he participate in the deliberations of the tribunal in such case. Any endeavors or negotiations for concilation shall not be received in evidence. The respondent may file a written answer to the complaint and appear at such hearing in person or otherwise, with or without counsel, and submit testimony and be fully heard. The tribunal conducting any hearing may permit reasonable amendment to any complaint or answer and the testimony taken at such hearing shall be under oath and be transcribed at the request of any party. If, upon all the evidence, the tribunal finds that a respondent has engaged in any unfair employment practice, it shall state its findings of fact and shall issue and file with the commission and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice and further requiring such respondent to take such affirmative action, including, but not limited to, hiring or reinstatement of employees, with or without back pay, or restoration to membership in any respondent labor organization, as in the judgment of the tribunal will effectuate the purpose of this chapter, provided, liability for back pay shall not accrue from a date more than two years prior to the filing or issuance of such complaint and, provided further, interim earnings, including unemployment compensation and welfare assistance or amounts which could have been earned with reasonable diligence on the part of the person to whom back pay is awarded shall be deducted from the amount of back pay to which such person is otherwise entitled. If, upon all the evidence, the tribunal finds that the respondent has not engaged in any alleged unfair employment practice, it shall state its findings of fact and shall similarly issue and file an order dismissing the complaint. The commission shall establish rules of practice to govern, expedite and effectuate the foregoing procedure. Any complaint filed pursuant to this section must be so filed within one hundred and eighty days after the alleged act of discrimination.”

       At the time the complaint was filed, General Statutes § 31-126 (a) (now amended as § 46a-60 [a] [1]) provided: “Sec. 31-126. unfair employment practices. It shall be an unfair employment practice (a) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, because of the race, color, religious creed, age, sex, marital status, national origin, ancestry or physical disability, including, but not limited to, blindness of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against him in compensation or in terms, conditions or privileges of employment.”

       At the time the complaint was filed, General Statutes § 31-126 (d) (now amended as § 46a-60 [a] [4]) provided: “Sec. 31-126. unfair employment practices. It shall be an unfair employment practice . . . (d) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any unfair employment practice or because he has filed a complaint or testified or assisted in any proceeding under section 31-127.”

       Although the remedial order included provisions in addition to Mason’s designation as assistant director, laboratory division (public health chemistry and biophysics section), these other aspects of the remedial order are not before us on the present appeals.

       Relevant sections of the order dealing with the respective positions of Mason and Kapish provide:
      “1. The complainant, Mrs. Mason, shall be appointed to the position of Assistant Director of the Laboratory Division (Public Health, Chemistry Biophysics Section). . . .
      “8. In the event the respondent can properly transfer Ms. Kapish (if she is still employed by them) to a position of equal pay they shall do so except that at the respondents [sic] option it may continue Ms. Kapish at any other available position at the salary and with the benefits she would have received as assistant director.”

       The defendants offered evidence of a substantial lack of equivalence between Mason’s new assistant directorship and the position to which she was to have been promoted. Because of objections by the plaintiff, the defendants were unable to offer evidence about alternate positions in the DOHS to which Kapish might have been appointed.

       It is doubtful that, in the absence of a valid reorganization, the DOHS could have relied on the desirability of providing an appropriate position for Kapish as a defense in contempt proceedings for its failure to appoint Mason to the assistant directorship specifically designated in the September, 1982 court order. Although we held in Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 230, 487 A.2d 201 (1985), on a direct appeal of a remedial order, that the victim of a discriminatory practice is not entitled to relief at the expense of innocent incumbent employees, that holding furnishes no basis for a collateral attack on a final judgment. Even if the original remedial order had erroneously failed to reconcile the designated position for Mason with its announced concern for Kapish, the DOHS was obligated to obey the order as specifically written, just as it would have been obligated to obey any other injunctive order issued by a court with jurisdiction over the subject matter and the parties. Cologne v. Westfarms Associates, 197 Conn. 141, 147, 496 A.2d 476 (1985).


author: Santaniello, J.

text:
    State of Connecticut v. Louis Gaston
    (11323)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued December 5, 1985
    decision released February 4, 1986

      JohnF. Kavanewsky, Jr., for the appellant (defendant).

      DavidS. Shepack, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Kevin McMahon and Carl Schuman, assistant state’s attorneys, for the appellee (state).
   Santaniello, J.

The defendant, Louis Gaston, was arrested on July 23,1979, and charged in a three count information with committing the crimes of robbery and larceny. Count one alleged that the defendant had committed robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), count two, that he had committed larceny in the second degree, in violation of General Statutes (Rev. to 1979) § 53a-123 (a) (1), by the theft of an automobile, and count three, that he had committed larceny in the second degree, in violation of General Statutes (Rev. to 1979) § 53a-123 (a) (2), by theft of property valued in excess of $500. After trial, the jury found the defendant guilty on the first and third counts and acquitted him on the second. The defendant received a total effective sentence of not less than six nor more than twelve years. He appeals, claiming that the jury verdict was inconsistent and that the trial court should have granted a mistrial. We find no error.

The jury could reasonably have found the following facts. On June 29,1979, at 9:30 p.m., the victim, Mark Kraczkowsky, was in his car at the Fred Locke Stereo store in Wethersfield when the defendant came up to the driver’s side door. The defendant pointed a gun at Kraczkowsky and told him to hand over his wallet, which contained eight or nine dollars. The defendant then opened the car door, pressed the gun against Kraczkowsky’s side and ordered him into the passenger’s seat. After the defendant got into the car, Kraczkowsky gave him his wallet. The defendant then forced the victim out of his car and drove away. The car was found two hours later about two hundred yards from the scene of the robbery. Both doors were open and two pieces of car stereo equipment were gone.

Kraczkowsky gave a detailed description of the defendant to the police that night. The next morning, a Wethersfield detective, James Cetran, noticed a man who fit the defendant’s description registering at a motel on the Berlin Turnpike about one and one-half miles from the scene of the robbery. The man was investigated and turned out to be the defendant, but no arrest was made at that time. Kraczkowsky later identified the defendant from a photographic array. On July 23,1979, the defendant was arrested by warrant.

The defendant first argues that the trial court erred in failing to set aside the verdict because the jury could not consistently find him guilty on counts one and three and not guilty on count two. The defendant concedes that he failed to raise this claim in the trial court but seeks appellate review under the second “exceptional circumstance” recognized in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). In Evans, we held that we will review only those claims raised below, but we created an exception for those instances where the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial. Id., 70. The claim that inconsistent verdicts must be set aside is not one of constitutional dimension. United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); see Harris v. Rivera, 454 U.S. 339, 346-47, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981). Thus, we do not review this claim.

The defendant’s primary claim on appeal is that the trial court erred in denying his motions for a mistrial. He argues that inadmissible evidence twice came before the jury, that the evidence was severely prejudicial and that, as a result, he was denied his right to a fair trial. We disagree.

During its case-in-chief, the state called Jay Tilly as a witness. Tilly had been one of the Wethersfield police officers who was involved in the arrest of the defendant. At the time of trial he was living and working in Massachusetts, and it was a significant hardship for him to travel to Connecticut. He first testified as to the details surrounding the investigation of the robbery. He was then asked by the state’s attorney about a conversation he had had with the defendant at the time of the arrest. Defense counsel objected and the jury was excused. The state’s attorney argued to the court that the defendant’s statement to Tilly was admissible as an admission and, due to the difficulties surrounding Tilly’s attendance, was admissible as an early rebuttal to the defendant’s anticipated alibi defense. The state made an offer of proof outside of the presence of the jury in which Tilly testified that the defendant said he “didn’t do it,” that he “was drank at the time of the incident,” and that he “didn’t drive and that he was either at the Traveler’s Motor Lodge in Rocky Hill or at a motel in Windsor, Connecticut.”

On the basis of the offer of proof, the court ruled that the question could be asked in the presence of the jury on the ground that the testimony was admissible as a rebuttal to the alibi defense even though out of order. As the proffered testimony was more exculpatory than inculpatory, defense counsel agreed to the admission of Tilly’s testimony. The court instructed the witness to restrict his testimony before the jury to what he had said during the offer of proof. When the jury was brought in, it was told that the testimony was to be taken out of turn. The state’s attorney asked the following question: “Mr. Tilly, going back to just prior to when the jury was excused, you were testifying to the facts that occurred at the Wethersfield Police Department on July 23rd when Louis Gaston surrendered himself and was arrested and advised of his rights. I ask you now, what did Mr. Gaston specifically say to you at the Wethersfield Police Department?” And Tilly responded: “Mr. Gaston said, T did not do it. I do not remember where I was. I was drunk.. I was either at Travelers—’ ” Defense counsel cut him off before he could finish and objected claiming that the response “I do not remember where I was” was not part of the testimony previously agreed to be admissible. Counsel also moved for a mistrial arguing that the evidence, taken out of turn, had damaged the alibi defense. The court ruled that the statement might be material later on in the trial but instructed the jury to ignore it for the present time. The court also denied the motion for a mistrial.

The defendant later took the stand and asserted an alibi defense. During cross-examination the state’s attorney asked: “Do you recall saying to Officer Tilly that you did not recall your whereabouts on June 29th?” Before the defendant could answer, defense counsel objected and moved for a mistrial alleging prosecutorial misconduct. The state withdrew the question and the trial court ruled that the unanswered question was not sufficiently prejudicial to warrant a mistrial. No cautionary instruction was given at that time. Later, the court charged the jury to disregard the testimony and questions that were stricken from the record.

“The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); see Practice Book § 887.” State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984), quoting State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 462 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). The trial court has great latitude in ruling on motions for mistrial; State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); State v. Perez, 181 Conn. 299, 310, 435 A.2d 334 (1980); thus, the question before us on appeal “ ‘is not, primarily, whether the remarks in question were proper or improper, but it is whether the action of the trial court in refusing to grant a new trial on account of them, in the exercise of its discretion, so far exceeded or abused the discretion committed to it in a matter of this kind as to warrant us in granting a new trial.’ State v. Laudano, 74 Conn. 638, 646, 51 A. 860 (1902).” State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). The burden is on the defendant to show that the challenged remarks were prejudicial in light of the entire proceedings. State v. Binet, supra.

The defendant first claims that Tilly’s testimony as to the defendant’s statements was clearly inadmissible and that it prejudiced the jury toward his alibi defense. On the basis of the record, however, we cannot agree that the testimony was prejudicial in light of the entire proceedings. While it is true that Tilly was cautioned to tell the jury exactly what he told the court in the state’s offer of proof, and that he failed to do so, the court twice instructed the jury to disregard the defendant’s response. See State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982). The court told the jury to ignore the statement immediately after it was made and again in its charge told the jury to consider only evidence that had been admitted. We are convinced that these cautionary instructions adequately cured any prejudice that Tilly’s statements may have caused. See State v. Piskorski, 177 Conn. 667, 720-21, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Thus, the trial court did not abuse its discretion in refusing to declare a mistrial at this point.

It is also claimed that the state’s attorney further prejudiced the jury as to the alibi defense by asking the defendant on cross-examination about the statements made to Tilly. The defendant argues that the state’s attorney deliberately introduced evidence which was clearly inadmissible and that a mistrial was thereby warranted. We are unpersuaded. First, it was reasonable for the state’s attorney to assume that the defendant’s statements to Tilly were admissible at that point in the trial. The trial court had left the issue open when making its earlier ruling. Also, the question was never answered, it was withdrawn by the prosecution and the defendant never requested a curative instruction. Furthermore, the trial court’s charge to the jury specifically cautioned them not to infer anything from a question whose answer was stricken. On the whole, therefore, we cannot say that the defendant was deprived of the opportunity for a fair trial or that the trial court abused its discretion in denying the motion for mistrial. See State v. Turcio, supra, 143-44.

There is no error.

In this opinion the other judges concurred.

       Furthermore, even if the claim were properly raised below or reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), we ordinarily will not question a jury’s decision when the claim is that its verdict is inconsistent. “As Justice Holmes long ago observed in the case of Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932): ‘ “The most that can be said in such cases [i.e., of inconsistent verdicts] is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” [Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925)]. . . . That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.’ ” State v. Rosado, 178 Conn. 704, 709, 425 A.2d 108 (1979); State v. Martin, 189 Conn. 1, 6, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983). The United States Supreme Court has recently reaffirmed the principles set out in Dunn v. United States, supra, and held that inconsistent verdicts “should not be subject to review.” United States v. Powell, 469 U.S. 57, 66, 105 S. Ct. 451, 83 L. Ed. 2d 461 (1984); see also Harris v. Rivera, 454 U.S. 339, 346, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981). We agree and conclude that, in cases such as this, the jury’s verdict must stand.

       The trial court did not rule the testimony inadmissible per se, but instead kept it out because it was introduced out of sequence. As such matters are within the sound discretion of the trial court; Shulman v. Shulman, 150 Conn. 651, 659, 193 A.2d 525 (1963); depending on the circumstances of the case, the court could have allowed the testimony in at the time Tilly testified or could have made the state wait until a point later on. The statements were hearsay, but were allowable as a party admission. See State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982).

       After the close of evidence, the court charged the jury: “If some evidence or testimony was given that was stricken from the record or some evidence was offered and refused, you must not consider it and you must dismiss it from your minds, even though there may have been some reference to such stricken testimony in the course of the trial from counsel or otherwise. Nor should you draw any inference from any question whose answer was stricken.”