source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    John J. Kelly, Chief State’s Attorney v. Freedom of Information Commission et al.
    (14352)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.
    Argued December 6, 1991
    decision released March 3, 1992

      Mary H. Lesser, assistant state’s attorney, for the appellant (plaintiff).

      Constance L. Chambers, assistant general counsel, for the appellee (named defendant).

      Barry D. Guliano, for the appellee (defendant Journal Inquirer).

      Robert H. Boone, pro se, the appellee (defendant).
   Peters, C. J.

The dispositive issue in this appeal is whether the substituted plaintiff, Richard N. Palmer, chief state’s attorney, was aggrieved by the decision of the defendant freedom of information commission (FOIC) determining that General Statutes § 1-19 (a) of the Freedom of Information Act (FOIA) requires the disclosure of an arrest report during the pendency of a criminal prosecution. The dispute underlying this appeal arose after the chief of police of the town of Windsor Locks refused to release publicly a police report concerning the arrest of two individuals. A newspaper editor filed a complaint with the FOIC seeking disclosure of the report. Although the criminal matter had been disposed of and the chief of police had released the arrest report by the time the FOIC rendered its decision on the matter, the FOIC determined that the police chief should have disclosed the arrest report when it was first requested and ordered the police department to comply fully with the disclosure requirements of § 1-19 (a) in the future. The plaintiff, who had been denied party status in the FOIC proceeding, appealed the decision to the Superior Court. The Superior Court granted the FOIC’s motion to dismiss the appeal upon concluding that the plaintiff had not been aggrieved by the FOIC decision. The plaintiff appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse.

The facts underlying the plaintiff’s appeal are undisputed. On September 12,1989, the Windsor Locks police arrested two persons who were distributing racist and anti-Semitic literature in front of a convenience store. The-police charged one with possession of a dangerous weapon, and the other with reckless endangerment. The following day, Donald Michak, a reporter from the Journal Inquirer, asked for the arrest report pertaining to this incident. Following a consultation with the local state’s attorney’s office, the chief of police advised Michak that, because the criminal case was pending, he would not release the arrest report.

On September 19,1989, Robert H. Boone of the Journal Inquirer filed a complaint with the FOIC claiming that the chief of police had violated § 1-19 (a) of the FOIA by his refusal to release the arrest report. At the March 1, 1990 FOIC hearing on the matter, the chief of police testified that his nondisclosure of the requested report was based on the need to protect witnesses and to safeguard any further investigation.

After the hearing officer issued his proposed decision requiring disclosure, the chief of police asked that the hearing be reconvened. On June 14,1990, the plaintiff filed a motion to intervene as a party before the FOIC. At its regular meeting on June 27, 1990, the FOIC voted to reconvene the hearing and granted the plaintiff intervenor status, but not party status.

At the reconvened hearing held on July 30,1990, the plaintiff claimed that the arrest report was protected from unconditional disclosure pursuant to the statutes and rules of discovery in General Statutes § 54-86b, Practice Book §§ 746, 752 and 753, General Statutes §§ 1-19 (b) (3) and (4), l-19b (b), and l-20b of the FOIA. Citing article 23 of the amendments to the Connecticut constitution and General Statutes §§ 51-276 and 51-286 (d) and (e), the plaintiff also claimed that the chief of police was acting as the plaintiffs agent.

The FOIC issued its final decision on September 19, 1990. It concluded that no agency relationship existed between the police and the plaintiff, and that arrest records in general were public records within the purview of the FOIA. The commission then concluded that, except for the names and addresses of witnesses, the arrest report at issue was not exempt from disclosure and, accordingly, that the chief of police had failed to provide the arrest report promptly as required by § 1-19 (a). The FOIC ordered the chief of police to “comply with the disclosure requirements of § 1-19 (a),” and cautioned him “to take care to comply with the law in the future or [he] may risk further consequences for [his] continuing disregard of the law.”

The chief of police and the plaintiff each filed separate appeals in the Superior Court. In his appeal, the plaintiff claimed that the FOIC had improperly denied him party status and had improperly concluded that police arrest reports were disclo sable pursuant to § 1-19 (a) of the FOIA during the pendency of a criminal case. The FOIC moved to dismiss the appeal alleging that the plaintiff lacked standing pursuant to § l-21i. The trial court conducted a hearing on the motion that focused primarily on the issue of whether the plaintiff, not having been named a party in the FOIC hearing, could appeal the decision. In its memorandum of decision, the trial court concluded that “the FOIC’s argument that [the plaintiff] lacks standing to appeal the FOIC’s order solely on the basis that he lacks ‘party status’ is unavailing on the facts of this case.” It went on, however, to conclude that the plaintiff was not aggrieved and therefore lacked standing because: (1) the prospective FOIC order was directed solely to the chief of police and thus any harm to the plaintiff was merely speculative; and (2) the plaintiff “has failed to allege facts that would, if proved, show that he is aggrieved as a matter of law.”

The plaintiff filed a motion to reconvene and to reargue maintaining that there had never been a dispute over aggrievement, and that he had not had the opportunity to present a case on that issue. The court heard argument on the motion, but declined to reconvene the case and to find aggrievement.

On appeal to this court, the plaintiff alleges that the trial court took too narrow a view of aggrievement in this case. Despite the fact that the FOIC order was both prospective and addressed to the chief of police, the plaintiff claims that he is aggrieved because: (1) the release of an arrest report potentially has a prejudicial effect on a pending criminal prosecution; (2) requiring disclosure of arrest reports pursuant to the FOIA conflicts with the rules of discovery that an arrest record is a statement of a witness that is not disclosable until the witness has testified; see State v. Cohane, 193 Conn. 474, 494 n.15, 479 A.2d 763, cert, denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); (3) the FOIC’s decision violates an exception under the FOIA for records used for strategy and negotiations in pending litigation; and (4) the decision eliminates the criminal justice division’s exemption from the FOIA. We conclude that the plaintiff is aggrieved by the FOIC order.

Aggrievement is essentially an issue of standing. Unless a plaintiff can establish that he is aggrieved by a decision of an agency, he has no standing to appeal. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978); see also Rose v. Freedom of Information Commission, 221 Conn. 217, 230, 602 A.2d 1019 (1992). In administrative appeals filed pursuant to § 1-2 li (d), we have adopted a test for aggrievement that requires a plaintiff to show: “(1) a specific personal and legal interest in the subject matter of the FOIC decision; and (2) a special and injurious effect on this specific interest.” Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 649, 556 A.2d 1020 (1989); see also Rose v. Freedom of Information Commission, supra, 230; State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 299-300, 524 A.2d 636 (1987).

This fundamental test is not to be mistaken for a formalistic and rigid formula, applied without regard to its purpose. We have consistently stated that “[standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) Rose v. Freedom of Information Commission, supra, 223; Board of Pardons v. Freedom of Information Commission, supra, 648-49. “ ‘As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great . . . .’ ” Board of Pardons v. Freedom of Information Commission, supra, 649, quoting Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981). Moreover, “[a]ggrievement is established if there is some possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Rose v. Freedom of Information Commission, supra, 230.

In numerous counts of his complaint, the plaintiff properly pleaded his claims of aggrievement. “It was the function of the trial court to determine . . . first, whether the plaintiff’s] allegations if they should be proved would constitute aggrievement as a matter of law, and second, if as a matter of law they would constitute aggrievement, then whether [the] plaintiff proved the truth of his allegations.” Nader v. Altermatt, 166 Conn. 43, 54-55, 347 A.2d 89 (1974). Aggrievement is “a question of fact for the trial court and the plaintiff has the burden of proving that fact.” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978); see also 2 F. Cooper, State Administrative Law (1965) pp. 538-41. “The conclusions reached by the trial court cannot be disturbed on appeal unless the subordinate facts do not support them.” Nader v. Altermatt, supra, 55.

The trial court found the plaintiff not to be aggrieved because the “FOIC order that is the subject of the plaintiff’s appeal is directed solely at the Chief of Police of Windsor Locks. Regardless of [the plaintiff’s] action, the Chief of Police may or may not decide to release arrest reports on his own initiative in the future. Thus, any harm that the plaintiff . . . may suffer as a result of the FOIC’s prospective order is speculative.” The court further stated that the plaintiff had “failed to allege facts that would, if proved, show that he is aggrieved as a matter of law by the FOIC’s prospective order.” It offered no additional findings in its memorandum of decision. Consequently, looking solely at the court’s written decision, it appears that the trial court found that the plaintiff had failed to satisfy the first prong of the test enunciated in Nader v. Altermatt, supra, i.e., that the allegations in the complaint, if proved, would constitute aggrievement as a matter of law.

At the two hearings conducted on this matter, however, the trial court appeared to focus its attention not on the sufficiency of the plaintiff’s allegations, but on the fact that the order was not addressed to the plaintiff and that it was prospective in nature because the arrest report at issue had already been disclosed. Nowhere in the record did the trial court (or the FOIC) question the accuracy of the facts alleged by the plaintiff in his complaint. At the hearing on the plaintiff’s motion to reconvene, the trial court, in response to the plaintiff’s allegations that the order would affect his discovery rights, concluded that “everything [the plaintiff’s attorney] says is true. That, yes, [the plaintiff is] going to have a tough time with these discovery rules under this order. The only question then becomes, is whether or not under the edicts set forth by the Supreme Court, that that is aggrievement as a matter of law.” When the plaintiff brought to the court’s attention the fact that aggrievement had not been at issue in the December 10,1990 hearing and suggested that the court allow evidence on the issue of aggrievement, the court replied, “[w]ell, there’s no dispute on the facts,” and “[s]o, there wouldn’t be any purpose for taking evidence [on aggrievement].” The trial court later stated that “I don’t think there’s any question as to what the facts are.” Because it is evident from the record that the trial court considered the facts contained in the plaintiff’s allegations of aggrievement proved, we need only consider whether these allegations constitute aggrievement as a matter of law.

In the circumstances of this case, it is inconsequential that the order was directed to the chief of police and not to the plaintiff. Aggrievement is not restricted to persons to whom the agency order is directed. A person may legitimately claim to have been adversely affected by an administrative or judicial action without having been the person to whom the order is directed. In In re Application of Pagano, 207 Conn. 336, 340-41, 541 A.2d 104 (1988), we held that any attorney who is admitted to the bar of this state, provided that he appear and participate in a suspended attorney’s proceeding for reinstatement, can be aggrieved by a court’s order of reinstatement to the bar. In State Medical Society v. Board of Examiners in Podiatry, supra, we determined that, for purposes of demonstrating aggrievement, a plaintiff physician, who was not a podiatrist, was adversely affected by a declaratory ruling of the board of examiners in podiatry regarding the scope of podiatry practice in the state. Thus, persons who have neither sought an administrative action nor benefited therefrom, and who are not the subjects of an order, may nevertheless be aggrieved. The test for aggrievement is whether personal rights are affected by an order, no matter who the addressee of that order may be. See Rose v. Freedom of Information Commission, supra (plaintiffs aggrieved by order directing board of education to disclose the substance of a recommendation to take disciplinary action against them).

While the nature of the FOIC’s order does not automatically disqualify the plaintiff from demonstrating aggrievement, the order by itself does not prove his aggrievement. The plaintiff must demonstrate his specific, personal and legal interest in the subject matter of the order. “Allegations and proof of mere generalizations and fears are not enough to establish aggrievement.” Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968); see also Caltahiano v. Planning & Zoning Commission, 211 Conn. 662, 668, 560 A.2d 975 (1989); Tucker v. Zoning Board of Appeals, 151 Conn. 510, 514, 199 A.2d 685 (1964); Joyce v. Zoning Board of Appeals, 150 Conn. 696, 698, 187 A.2d 239 (1962).

The plaintiff’s allegations in this case cannot be dismissed as “mere generalizations and fears.” The precise nature of his aggrievement is clear from the uncontroverted allegations contained in his complaint. The plaintiff alleged that, by statute, he is the person responsible for the investigation and prosecution of criminal cases throughout the state. The chief state’s attorney and the prosecutors he represents, because they are involved in the prosecution of every criminal case in this state, are uniquely interested in an order of the FOIC requiring the police to disclose arrest reports during the pendency of a criminal case. The trial court agreed, noting that “we could carry this out and [the plaintiff is] the first one, I suppose, that you could say is affected by [the FOIC order] .... He, probably more so than others.” We conclude that the plaintiff has a direct interest in this matter that is distinct from that of the public as a whole, and as such, he has satisfied the first requirement of aggrievement.

The plaintiff further alleged in his complaint that: (1) the case involved a request for release of a record that was maintained and used by the division of criminal justice to prosecute a pending criminal case, and that release of such an arrest report would have a prejudicial effect on his ability to prosecute; (2) the plaintiff’s rights, duties, interests and privileges in the prosecution of crimes were adversely affected by the FOIC’s decision; (3) the arrest report contained a narrative of the incident, witnesses’ statements, names and addresses of witnesses, victim and arrestees; (4) the arrest report was to be used in a future law enforcement proceeding and disclosure would be prejudicial to that proceeding; (5) the discovery process in criminal cases precludes the release of an arrest report; (6) the report was used in the strategy and negotiations of a pending criminal case and was exempt from disclosure; and (7) the police were acting as the plaintiffs agents in creating the report and refusing its release, and the report was a record of the plaintiff, who is not subject to the jurisdiction of the FOIC. We conclude that this complaint’s clear and specific allegations sufficiently demonstrated the plaintiffs aggrievement.

We disagree with the trial court’s conclusion that the plaintiff was not aggrieved by the FOIC order because “any harm that the plaintiff . . . may suffer as a result of the FOIC’s prospective order is speculative.” The plaintiff has demonstrated that his present right to rely on existing discovery processes is adversely affected by the order. Moreover, the plaintiff has demonstrated that his present interest in the unimpeded prosecution of criminal cases is jeopardized by the FOIC decision that arrest reports are disclosable by local and state police, in some instances, prior to trial. While the chief of police is aggrieved by virtue of the fact that he faces possible sanctions if he fails promptly to disclose arrest reports in the future; see Board of Pardons v. Freedom of Information Commission, supra, 650; the plaintiff is aggrieved because of the impact the order will have on the prosecution of future cases for which he bears statutory responsibility. Although prospective in nature, the order of the FOIC has a present chilling effect on the actions of the police that in turn affects the present discovery and prosecution practices of the plaintiff. Id., 650-51.

On this record, we conclude that the allegations contained in the plaintiff’s complaint were sufficient to establish that his specific personal and legal interests in the prosecution of criminal cases have been specially and injuriously affected. In fact, it is the plaintiff, of all the litigants in this case, who has the most at stake in its resolution, and who will provide the “hot controversy” and vigorous presentation of the issues that standing is intended to ensure. The plaintiff and the entire division of criminal justice rely upon the statutes and rules that regulate criminal discovery and they are specially interested in the proper prosecution of criminal cases. As we have previously quoted with approval, “ ‘[i]t must be borne in mind . . . that it has always been held that a professional man has standing to prevent the improper invasion of his profession.’ (Emphasis added.)” State Medical Society v. Board of Examiners in Podiatry, supra, 303, quoting Felix v. Wax, 13 Pa. D. & C. 2d 600, 604 (1958).

The question whether the FOIC correctly concluded that disclosure of arrest reports prior to trial is required by § 1-19 (a) of the FOIA involves the merits of its decision and “is an issue on which we express no opinion, for ‘[standing is an examination of the parties, not the merits of the action.’ Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 64, 441 A.2d 68 (1981).” Light Rigging Co. v. Department ofPvhlic Utility Control, 219 Conn. 168, 177, 592 A.2d 386 (1991). Having found no aggrievement, the trial court did not reach the merits. The arguments and briefs in this appeal similarly were confined to the issues of standing and aggrievement. The trial court will be required, on remand, to consider whether the order of the FOIA should be affirmed.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 1-19. access to public records, exempt records. (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the secretary of the state, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. Each such agency shall make, keep and maintain a record of the proceedings of its meetings.”

       General Statutes § 54-86b provides in pertinent part: “(a) In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use.”

       “[Practice Book] Sec. 746. [disclosure by the prosecuting authority]—information not subject to disclosure
      “Except for the substance of any exculpatory material contained herein, Sec. 740 does not authorize or require disclosure or inspection of:

        “(1) Reports, memoranda or other internal documents made by a prosecuting authority or by law enforcement officers in connection with the investigation or prosecution of the case;
      “(2) Statements made to prosecuting authorities or law enforcement officers except as provided in Sec. 748 . . . .”
      “[Practice Book] Sec. 752. [disclosure of statements—statements OF WITNESS]--PRODUCTION FOLLOWING TESTIMONY
      “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statements of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”
      Practice Book § 753 provides in pertinent part: “If the entire contents of a statement requested under Sec. 752 relate to the subject matter of the testimony of the witness, the judicial authority shall order the statement to be delivered directly to the defendant or his counsel for his examination and use.”

       General Statutes § 1-19 (b) provides in pertinent part: “Nothing in [the FOIA], shall be construed to require disclosure of . . . (3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known, (B) information to be used in a prospective law enforcement action if prejudicial to such action, (C) investigatory techniques not otherwise known to the general public, (D) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (E) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof or (F) uncorroborated allegations subject to destruction pursuant to section l-20c; (4) records pertaining to strategy and negotiations with respect to pending claims and litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled . . . .”
      General Statutes § l-19b provides in pertinent part: “(b) Nothing in [the FOIA] shall be deemed in any manner to (1) affect the status of judicial records as they existed prior to October 1, 1975, nor to affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state . . . .”
      “[General Statutes] Sec. l-20b. record of an arrest as public record. Notwithstanding any provision of the general statutes to the contrary, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-15 and subsection (a) of section 1-19. For the purposes of this section, ‘record of the arrest’ means the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested.”

       Article 23 of the amendments to the Connecticut constitution provides in pertinent part: “Article fourth of the constitution is amended by adding a new section to read as follows: There shall be established within the executive department a division of criminal justice which shall be in charge of the investigation and prosecution of all criminal matters. Said division shall include the chief state’s attorney, who shall be its administrative head, and the state’s attorneys for each judicial district, which districts shall be established by law. The prosecutorial power of the state shall be vested in a chief state’s attorney and the state’s attorney for each judicial district. The chief state’s attorney shall be appointed as prescribed by law.”

       “[General Statutes] Sec. 51-276. division established. There is hereby established the division of criminal justice within the executive department, which shall be in charge of the investigation and prosecution of all criminal matters in the superior court. The division of criminal justice shall be an agency within the executive department with all management rights except appointment of all state’s attorneys.”

       General Statutes § 51-286 provides in pertinent part: “(d) This section shall not be construed to limit the authority of the division of criminal justice to require the assistance of state and local police departments in the investigation of any matter with which the division is concerned. If any such assistance is required, the division of criminal justice shall have primacy concerning any such investigation, provided the state and local police shall maintain any investigatory authority provided by law. Any conflict between the division of criminal justice and the state and local police with respect to any such investigation shall be resolved by the chief state’s attorney.
      “(e) All state and local police, law enforcement and criminal justice agencies shall cooperate with the division in carrying out the provisions of this chapter and shall provide such information and assign such personnel as may be required.”

       General Statutes § l-19e provides that “[f]or the purposes of subsection (a) of section l-18a, the division of criminal justice shall not be deemed to be a public agency except in respect to its administrative functions.” Subsection (a) of § l-18a defines the term “public agency” within the FOIA. The plaintiffs claim, apparently, was that because the chief of police was acting as the plaintiffs agent in investigating the crime and withholding the reports, the arrest record was exempt from the FOIA pursuant to § l-19c.

       The chief state’s attorney was named a party defendant in the chief of police’s appeal, Gifford v. Freedom of Information Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-90-0385103-S.

       General Statutes § l-21i provides in pertinent part: “(d) Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183 . . . .”

       We recently held that in order to appeal a decision of the FOIC pursuant to General Statutes § l-21i (d), a plaintiff need not show that he was actually granted party status or that he was entitled as of right to be made a party to the underlying proceeding. He need show only that he has been aggrieved by a decision of the FOIC. Rose v. Freedom of Information Commission, 221 Conn. 217, 230, 602 A.2d 1019 (1992).

       The following colloquies occurred at the December 10, 1990 hearing on the FOIC’s motion to dismiss:
      “The Court: . . . Actually, the question, as I see it, though, is not whether the disclosure should or shouldn’t have been done but what is the standing here? And I don’t mean that to be the equivalent of aggrievement but the standing of the plaintiff not on the issue of aggrievement.... What I understand this is about is whether a party who is not a party but is an intervenor has the right to appeal.
      “Ms. Chambers [counsel for the FOIC]: Correct.
      * * *
      “The Court: ... I don’t think you’re seriously contesting aggrievement.
      “Ms. Chambers: I wouldn’t contest aggrievement, no.”

       The plaintiff maintained at the agency level that release of arrest reports would result in prejudicial pretrial publicity and the inability to obtain an unbiased jury. He also stated that the release of arrest reports during the pendency of an ongoing prosecution, even if witness names were redacted, could result in witness tampering or intimidation. He alleged before the trial court that disclosure of an arrest report that contains a statement of the defendant could violate a defendant’s rights.

       At the present time, the police are under orders to release any reports requested, unless disclosure would be prejudicial to a prospective law enforcement proceeding within the meaning of General Statutes § 1-19 (b) (3). The exemption from disclosure contained in § 1-19 (b) (3) does not, however, afford the plaintiff an opportunity to offer an opinion as to the prejudicial effect public disclosure would have on a pending criminal case.


author: Callahan, J.

text:
    State of Connecticut v. Tino Negron
    (14145)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued November 7, 1991
    decision released March 3, 1992

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

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

The defendant, Tino Negron, was charged in an amended information with the crimes of murder, felony murder, attempted robbery and carrying a pistol without a permit. After a jury trial he was convicted of felony murder in violation of General Statutes § 53a-54c and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). He was sentenced to a term of forty-five years imprisonment on his felony murder conviction and to a consecutive term of five years on his conviction of carrying a pistol without a permit, for a total effective sentence of fifty years imprisonment. The defendant took a direct appeal from that judgment to this court pursuant to General Statutes § 51-199 (b).

The jury could reasonably have found, from the evidence produced at trial, that the defendant shot and killed Dwayne Hollyfield on December 23, 1988, at approximately 11:30 p.m., near the intersection of Stillman and Kossuth Streets in Bridgeport. The jury also could reasonably have found that the shooting occurred while the defendant was attempting to rob Hollyfield of a microwave oven, contained in a cardboard carton, that Hollyfield was transporting in a supermarket shopping cart.

The defendant does not dispute the sufficiency of the evidence to prove his guilt. He does, however, claim that he is entitled to a reversal of his conviction and a new trial because of certain rulings of the trial court and because of comments made by the prosecuting attorney in his closing argument. We affirm the judgment.

I

The defendant first contends that the trial court improperly overruled his motion to suppress admissions that he had made to Detective David Silva of the Bridgeport police department at the Bridgeport police headquarters on the evening of December 26, 1988, shortly after he was apprehended. From the evidence adduced at a suppression hearing and at trial the court could reasonably have found the following relevant facts. The defendant, who was seventeen years old and had had prior experience with the police, was apprehended on December 26, at the home of his girlfriend. Thereafter, he was taken to Bridgeport police headquarters where he was advised of his Miranda rights by Silva, who used a standard police rights form for that purpose. At the suppression hearing Silva testified that, in his presence and that of another police officer, the defendant, after he had been advised of his rights, had executed the uppermost portion of the waiver form, had initialed each individual warning of rights and had signed the rights form at the bottom. Silva further testified that he was aware that the defendant had been advised of his rights on previous occasions and that, when advised of his rights on this occasion, the defendant appeared to understand them and had no trouble communicating or expressing himself clearly. Silva also testified that after the defendant had been advised of his rights and had executed the waiver, the defendant had said, “I will tell you about it, but I wouldn’t give a statement.” Thereafter, Silva testified, the defendant told him that he had been followed by Hollyfield, that the two had argued, and that Hollyfield had slapped him in the face, whereupon the defendant had shot him. The defendant denied that he was attempting to rob Hollyfield of the microwave oven. Silva said that he had made no record, either written or taped, of the defendant’s admissions.

A

The defendant initially argues in support of his suppression claim that his admissions should have been suppressed because they were not knowingly and intelligently made. This argument is premised on the defendant’s claim that had he fully understood the implications of his oral admissions, i.e., that they could be used against him, he would not have made them. He contends that he obviously did not intend to waive his right to remain silent because, although he agreed to tell Silva what had happened, he refused to give “a statement.” The defendant argues, therefore, that in making his oral admissions, he did not recognize the consequences of his action and, therefore, could not have acted with the “full awareness” required for a valid waiver of his right to remain silent and not to incriminate himself. He claims that, as a result, his oral admissions were not knowingly and intelligently made and should not have been admitted at trial. We disagree.

This claim of the defendant is foreclosed by our decision in State v. Barrett, 205 Conn. 437, 450, 534 A.2d 219 (1987). “In Barrett, we held that an accused had knowingly and intelligently waived his federal right against self-incrimination despite the fact that he refused to commit anything to writing and would provide only oral statements to the police.” State v. Lewis, 220 Conn. 602, 613-14, 600 A.2d 1330 (1991); see also State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983); State v. Frazier, 185 Conn. 211, 225, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). An analogous factual situation and similar reasoning also support the conclusion in the instant case that, as in Barrett, the defendant had validly waived his right to remain silent. Contrary to the defendant’s suggestion, the law does not require the police to counsel a suspect about the various modes of communication that might qualify as admissible evidence at trial, so long as the police give him appropriate Miranda warnings and ascertain his understanding that he has a right to remain silent and that anything he says can be used against him.

B

The defendant next claims that his statement should not have been admitted into evidence at his trial because it was not made voluntarily. We are unpersuaded.

“The use of an involuntary statement of a defendant in a criminal trial violates a defendant’s right to due process of law. State v. Boscarino, 204 Conn. 714, 740, 529 A.2d 1260 (1987); State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986). As a prerequisite to admissibility the state is required to prove, by a preponderance of the evidence, that under all the circumstances admissions by an accused were voluntarily made. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Chung, 202 Conn. 39, 53, 519 A.2d 1175 (1987); State v. Stankowski, 184 Conn. 121, 131, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Vollhardt, 157 Conn. 25, 34, 244 A.2d 601 (1968). The issue of whether [admissions are] voluntary and admissible is, in the first instance, one of fact for determination by the trial court in the exercise of its legal discretion. State v. Derrico, 181 Conn. 151, 162, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); see Jackson v. Denno, 378 U.S. 368, 395, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Our usual deference to the trial court’s finding on questions of this nature is qualified by the necessity for an independent examination of the entire record to determine whether the trial court’s finding of voluntariness is supported by substantial evidence. State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986); State v. DeForge, 194 Conn. 392, 398, 480 A.2d 547 (1984). State v. DeAngelis, 200 Conn. 224, 232, 511 A.2d 310 (1986); State v. Chung, supra, 54.” (Internal quotation marks omitted.) State v. Kane, 218 Conn. 151, 160, 588 A.2d 179 (1991).

An examination of the record leads us to conclude that there is substantial evidence to support the trial court’s finding that the defendant’s admissions were freely and voluntarily made. Our review clearly indicates that under all the circumstances, including the defendant’s age and experience, there was no police conduct that “was such as to overbear [the defendant’s] will to resist and bring about [a statement] not freely self-determined . . . .” Rodgers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961); State v. Boscarino, supra, 740; State v. Smith, supra, 477; State v. Shifflett, 199 Conn. 718, 727, 508 A.2d 748 (1986). This claim of the defendant is unfounded.

II

The defendant next contends that certain comments made by the prosecutor during closing argument concerned the defendant’s election not to testify and violated his constitutional and statutory right to remain silent, and thereby denied him a fair trial. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965); see also General Statutes §§ 54-84, 54-1b and 54-1c.

In a portion of his closing argument, the prosecuting attorney stated, “Now, the way the situation is worked out and the way that you heard it occurred, you know that there are only two people in the world who would tell you exactly what happened there on December the 23rd, 1988. You know one of the those people was Dwayne Hollyfield.” Then, after briefly discussing Hollyfield’s life style and importuning the jury not to let that life style diminish the seriousness of the offense, the prosecutor said, “The other person who knows exactly what happened on December 23rd, 1988, is sitting right over there next to [defense counsel].” Immediately thereafter, however, the prosecutor stated, “Y ou would not know that but for the fact that he made three—at least three very serious mistakes— serious errors in judgment after he committed the murder. [Number one] in misjudging his relationship with Zaida Figueroa and telling her what happened. [Number two,] by failing to anticipate that by telling Yen McGee, his friend, he goes over and tells Yen McGee. Somewhere down the line Mr. McGee gets put in a situation where it becomes a better idea to tell what he knows than to try to mislead the police. And perhaps his biggest mistake is not realizing the significance of telling David Silva at the police department what he told him.”

The defendant, at trial, did not object to the prosecutor’s remarks, nor did he take an exception, ask for a mistrial or a curative instruction, or otherwise indicate to the court any displeasure with the prosecutor’s argument. Because he failed to preserve his claim at trial, the defendant now requests that we review the claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). He also argues that it should be reviewed as plain error under Practice Book § 4185.

In determining whether a prosecutor’s comments have encroached upon a defendant’s right to remain silent we have espoused the following criterion. “ ‘A test for evaluating a prosecutor’s argument that has been adopted by several courts and approved by the Court of Appeals of this circuit in United States ex rel. Leak v. Follette, 418 F.2d 1266, 1269 (2d Cir.), cert. denied sub nom. Leak v. Follette, 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 [1970], seems adequate and properf, that is]: “Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” ’ ” State v. Walker, 206 Conn. 300, 307, 537 A.2d 1021 (1988).

In this case, we conclude that the prosecutor’s remarks would reasonably have been interpreted by the jury, not as a comment on the defendant’s failure to testify, but rather to have been an observation that the defendant, who knew what had happened, had informed three others that he had shot someone on Stillman Street on December 23, 1988, that the three in turn had testified as to what they had been told, and that the jury, therefore, had for its consideration the defendant’s own account of what had transpired. That, indeed, appears to be the more cogent construction to be attributed to the prosecutor’s argument. At any rate, the segment of the argument complained of was not “manifestly intended to be, [nor] was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” (Internal quotation marks omitted.) State v. Walker, supra, 307; United States ex rel. Leak v. Follette, supra, 1269. “[A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). Because there was no clear constitutional violation, and the defendant did not raise this issue at trial, we refuse to review it further. State v. Golding, supra, 240. Moreover, the failure of the trial court, sua sponte, to take action was not plain error given the interpretation that could reasonably be placed on the prosecutor’s remarks.

Ill

The defendant next claims that the trial court violated his rights to confront witnesses, to present a defense, to due process and to a fair trial when it denied him the opportunity to present extrinsic evidence that his former paramour, Zaida Figueroa, had not been truthful in her response to some questions asked of her on cross-examination.

On cross-examination, counsel for the defendant inquired extensively of Figueroa concerning her relationship with the defendant. At one point in that inquiry he asked Figueroa if she had communicated with the defendant while he had been in custody since his arrest. She denied having done so. Thereafter, when shown letters addressed to the defendant’s custodial lodging, she denied having written them.

In an effort to impeach Figueroa’s credibility by demonstrating that the facts were inconsistent with her testimony on cross-examination, the defendant attempted to enter the letters into evidence. In his effort to do so, he made an offer of proof outside the presence of the jury. That offer consisted of the testimony of Deborah Fabrizi, who had been a close friend of Figueroa. Fabrizi identified the letters as having been written by Figueroa to the defendant. She testified that she was knowledgeable as to the source of the letters because she had seen Figueroa write them; she had read some of the letters; and she recognized Figueroa’s handwriting. She described the letters as “lovey dovey” letters from Figueroa to the defendant. She also testified that she knew that the defendant had received the letters because she was aware that the defendant and Figueroa had discussed them over the telephone.

The state objected to the admission of the letters and Fabrizi’s testimony. The trial court sustained the state’s objection on the ground that the evidence was collateral and irrelevant. The defendant took an exception to the court’s ruling. He did not, however, in the trial court make any constitutional claim in conjunction with his exception. See Practice Book § 288; see also Mays v. Mays, 193 Conn. 261, 268, 476 A.2d 562 (1984). The defendant argues again, however, that we should now examine the constitutional claim he raises on appeal under State v. Evans, supra, and State v. Golding, supra. We disagree.

A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case. State v. Burns, 173 Conn. 317, 327, 377 A.2d 1082 (1977); State v. Carbone, 172 Conn. 242, 262, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977); State v. Wilson, 158 Conn. 321, 324, 260 A.2d 571 (1969). Further, the trial court has broad discretion in ruling on the admissibility of evidence and the scope of cross-examination to show contradictory statements. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Reed, 174 Conn. 287, 304, 386 A.2d 243 (1978). We will not disturb that discretion unless a clear abuse is demonstrated. State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985).

In this instance we conclude that it was within the trial court’s discretion to have made a determination that the letters and Fabrizi’s testimony were collateral to any issue linked to a proper determination of the defendant’s responsibility for Hollyfield’s death and were, therefore, not admissible. Because the court’s ruling was within its discretion, the defendant’s constitutional rights were not violated. See State v. Fullwood, 199 Conn. 281, 284, 507 A.2d 85 (1986). The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses. “ Tn the exercise of [those rights], the accused, as required of the State, must comply with the established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) . . . .” State v. Kemp, 199 Conn. 473, 479, 507 A.2d 1387 (1986); State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988).

Because the record fails to disclose that a constitutional violation clearly exists, we refuse to review further this claim of the defendant. State v. Golding, supra, 240.

IV

The defendant’s final claim is that the trial court improperly allowed the jury to hear testimony that the defendant was a sentenced prisoner. The defendant contends that divulging this information to the jury was so prejudicial that it deprived him of a fair trial and requires reversal. We disagree.

During the course of the trial, Edward Davies, the deputy warden of the Bridgeport Correctional Center, was called as a witness by the defendant. Davies, who was in possession of the defendant’s institutional records, testified as to the number of visits by Figueroa to the defendant while the defendant was housed in the Manson Youth Institution in Cheshire. During the cross-examination of Davies by the state, Davies was asked if he knew whether the defendant’s status at Cheshire had been that of a sentenced or unsentenced prisoner. The defendant objected to the question. The court thereupon told that witness that he could answer the question, “yes” or “no.” Davies, however, apparently not understanding the court’s admonition, answered, “At the time he was at Manson, he was sentenced.” The trial court immediately, sua sponte, granted an “exception” to the defendant.

The defendant did not move that Davies’ answer be stricken, nor did he move for a mistrial or request a curative instruction. Immediately after Davies’ answer, the inquiry took another tack, and there was no further exploration of the defendant’s status as a sentenced or unsentenced prisoner. No explanation was given to the jury concerning the difference between a sentenced and an unsentenced prisoner, no mention was made of any of the crimes for which the defendant had been sentenced and the state did not refer to the defendant’s status when it made its final arguments. Moreover, despite the lack of a request, the trial court incorporated a curative instruction addressing Davies’ answer in its charge to the jury. That instruction clearly informed the jury that any reference in Davies’ testimony to the defendant’s status was not to be used as evidence of guilt.

There appears to have been no justification for the admission into evidence of Davies’ answer to the prosecutor’s question and the state does not argue that the answer was admissible. The state does argue, however, that this issue has assumed an importance on appeal that it does not appear to have had at trial. We agree. At trial, Davies’ answer was not viewed by the defendant as sufficiently prejudicial to warrant a motion to strike, a motion for a mistrial, or a request for a curative instruction. When counsel does not choose to make a request for a curative instruction or a mistrial, “he presumably does not view the remarks as so prejudicial that his client’s right to a fair trial is seriously jeopardized.” State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983).

Moreover, despite the lack of a request for a curative instruction, the trial court did deliver a charge to the jury that clearly informed the jurors that they were not to consider the defendant’s status as any evidence of guilt. “The jury are presumed to follow the court’s directions in the absence of a clear indication to the contrary.” State v. Griffin, 175 Conn. 155, 160, 397 A.2d 89 (1978); State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980).

In view of the fact that Davies’ answer was solitary, was not pursued and was the subject of a curative instruction, we conclude that the inadvertent admission into evidence of that single answer, in the context of the entire trial, was harmless. See State v. Glenn, supra, 497.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       “[General Statutes] Sec. 29-35. carrying op pistol or revolver without permit prohibited, exceptions, (a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. The provisions of this subsection shall not apply to the carrying of any pistol or revolver by any sheriff, parole officer or peace officer of this state, or sheriff, parole officer or peace officer of any other state while engaged in the pursuit of his official duties, or federal marshal or federal law enforcement agent, or to any member of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2, when on duty or going to or from duty, or to any member of any military organization when on parade or when going to or from any place of assembly, or to the transportation of pistols or revolvers as merchandise, or to any person carrying any pistol or revolver while contained in the package in which it was originally wrapped at the time of sale and while carrying the same from the place of sale to the purchaser’s residence or place of business, or to any person removing his household goods or effects from one place to another, or to any person while carrying any such pistol or revolver from his place of residence or business to a place or person where or by whom such pistol or revolver is to be repaired or while returning to his place of residence or business after the same has been repaired, or to any person carrying a pistol or revolver in or through the state for the purpose of taking part in competitions or attending any meeting or exhibition of an organized collectors’ group if such person is a bona fide resident of the United States having a permit or license to carry any firearm issued by the authority of any other state or subdivision of the United States, or to any person carrying a pistol or revolver to and from a testing range at the request of the issuing authority, or to any person carrying an antique pistol or revolver, as defined in section 29-33.
      “(b) The holder of a permit issued pursuant to section 29-28 shall carry such permit on his person while carrying such pistol or revolver.”
      General Statutes § 29-37, entitled “Penalties,” provides in pertinent part:
      “(b) Any person violating any provision of subsection (a) of section 29-35 may be fined not more than one thousand dollars and shall be imprisoned not less than one year nor more than five years, and, in the absence of any mitigating circumstances as determined by the court, one year of the sentence imposed may not be suspended or reduced by the court. The court shall specifically state the mitigating circumstances, or the absence thereof, in writing for the record. Any pistol or revolver found in the possession of any person in violation of any provision of subsection (a) of section 29-35 shall be forfeited.”

       The state does not dispute that the defendant was in custody at the time he gave the statement and that the statement was in response to police interrogation.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       An express written or oral waiver is strong proof of the validity of the waiver. North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979).

       “We have noted that it is a common experience of life that in many circumstances persons are willing to convey information orally but are reluctant to put the same thing in writing. State v. Frazier, [185 Conn. 211, 225, 440 A.2d 916 (1981), cert, denied, 458 U.S. 1112,102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982)], quoting United States v. Cooper, 499 F.2d 1060, 1062 (D.C. Cir. 1974). . . (Internal quotation marks omitted.) State v. Whitaker, 215 Conn. 739, 756, 578 A.2d 1031 (1990).

       The defendant purports to rely on both the federal and state constitutions to support his claims. There is, however, no separate analysis of his state constitutional claims. We have consistently declined to consider state constitutional claims in criminal cases in the absence of an independent analysis of the particular state constitutional provisions at issue. State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991); State v. Mooney, 218 Conn. 85, 89 n.5, 588 A.2d 145, cert, denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

       The defendant argued that one of the reasons that his confession was involuntary was that he had used marihuana earlier on the day that he was apprehended. However, in response to a request during the suppression hearing to describe what effect the smoking of two marihuana “joints” was having on him at the time he was arrested, the defendant replied, “They really didn’t have no effect. All marihuana does to you is get you in a mellow mood to go to sleep.”

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

       “ ‘[Plain error review] is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).” State v. Foreshow, 214 Conn. 540, 546-47, 572 A.2d 1006 (1990).

       “[Practice Book] Sec. 288. objections to evidence
      “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”

       Even if the trial court’s ruling were incorrect, it would constitute evidentiary, not constitutional, error. “Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). Because there was substantial other evidence admitted at trial attacking Figueroa’s credibility, the defendant would be unable to sustain his burden of proving that the trial court’s ruling was harmful. State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).

       The defendant had been housed at the Manson Youth Institution prior to his transfer to Bridgeport for the trial of this matter. When he was transferred, apparently his records also were transferred.

       Prior to the time he was tried for Hollyfield’s murder, the defendant had been convicted and sentenced for other, unrelated crimes.

       The trial court’s instruction was: “Now, during the cross-examination of Deputy Warden Davies, I believe that was last Friday, the State asked a question about the defendant’s status as a prisoner. That question and the answer to it only go to the nature and the purpose of the visiting records which were placed in evidence by the defendant and I caution you it may not be used as evidence of guilt in this case.” (Emphasis added.)


author: Shea, J. Berdon, J.,

text:
    Wayne Bleau v. Kimberly Ward et al.
    (14189)
    Shea, Glass, Covello, Borden and Berdon, Js.

      Argued December 5, 1991
    decision released March 3, 1992

      Neil W. Sutton, with whom was Robert B. Adelman, for the appellant (plaintiff).

      Ralph G. Eddy, for the appellees (defendants).
   Shea, J.

The plaintiff, Wayne Bleau, has appealed to this court from a judgment confirming a jury verdict awarding him $150,000 as damages for personal injuries he suffered as a result of the negligent operation of an automobile by the named defendant, Kimberly Ward. On appeal the plaintiff has raised two rulings of the trial court as grounds for reversal: (1) its refusal to follow the dictates of General Statutes § 52-216b, which entitles counsel in personal injury or wrongful death actions “to specifically articulate to the trier of fact during closing arguments, in lump sums or by mathematical formulae, the amount of past and future economic and noneconomic damages claimed to be recoverable”; and (2) its exclusion of certain questions that the plaintiff sought to ask of prospective jurors on voir dire examination concerning their views about the amounts of jury verdicts in personal injury cases. We conclude that the failure to permit argument sanctioned by § 52-216b requires that the judgment be reversed for the purpose of a new trial. We hold, however, that the court did not abuse its discretion by excluding the voir dire questions proposed by the plaintiff.

On June 17, 1984, at approximately 11:20 p.m., the plaintiff was a passenger in an automobile owned by the defendant Richard DeForest, which was being driven by his stepdaughter, Ward. As the car proceeded south on Route 7 in the town of Wilton, it went off the road and collided with various objects, thus causing the plaintiffs injuries. The jury returned a verdict for the plaintiff against only Ward, having found the issues in favor of DeForest. The court denied the plaintiff’s motion for an additur as well as his motion to set aside the verdict.

I

The defendants filed a motion in limine to preclude the plaintiffs counsel from stating during closing arguments the amount of damages he claimed to be recoverable by articulating a lump sum or by using a mathematical formula. The motion challenged the validity of § 52-216b, which permits such arguments, on the ground that it trespassed upon the exclusive authority of the judiciary to promulgate rules of practice and procedure and thus violated the separation of powers provision of the second article of our state constitution. See Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968).

In granting the defendants’ motion, the trial court concluded that it would be fundamentally unfair to permit counsel for the plaintiff to state to the jury the specific amount of damages sought or to suggest a formula for the determination of noneconomic damages when liability is contested. The court held that the attempt by statute to require such argument to be permitted, when to do so in a particular case would be fundamentally unfair, “would interfere with the orderly performance by the Superior Court of its duties to insure a fair trial.”

The decision of this court in Bartholomew v. Schweizer, 217 Conn. 671, 587 A.2d 1014 (1991), in which we upheld the constitutionality of § 52-216b as not violative of the separation of powers principle, was published after the rendition of judgment in the present case. In that decision we construed the statute not “to abrogate the power of the court to discipline attorneys or to control their statements during oral argument as justice may require.” Id., 680. “Despite the enactment of § 52-216b, the trial court continues to have the power to monitor closing arguments in the service of justice. The statute does not purport to abrogate the power or the duty of the trial court to comment upon the propriety of counsel’s argument ... to give curative instructions if necessary after the arguments of counsel to prevent prejudice ... or to declare a mistrial or to set aside a verdict if counsel’s comments were so prejudicial that no curative instruction could preserve the parties’ right to a fair trial.” Id., 681.

In Bartholomew, we recognized that § 52-216b had been enacted in order to overrule our holdings in Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989), and Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989), that counsel would no longer be permitted to state the amount of damages claimed as compensation in a personal injury case either by specifying a lump sum or by using a mathematical formula. Our review of the legislative history of the statute referred to remarks of a legislator that its purpose was to restore the procedure that had been followed prior to those decisions, under which the propriety of such argument was left to the “broad discretion” of the trial court with regard to the argument of counsel. Bartholomew v. Schweizer, supra, 680; Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342-43, 160 A.2d 899 (1960). In Levin v. Ritson, 179 Conn. 223, 227, 425 A.2d 1279 (1979), a pre-Carchidi decision, we declared: “If the circumstances are such that mention of an estimated value of a case does not create prejudice in the minds of a jury, the trial court, in its discretion, may allow such argument so long as the jury are instructed that counsel’s estimate is not evidence and that the jury’s duty is to decide the issues solely on the evidence presented. On the other hand, if the circumstances are such that mention of an expected verdict is either unfounded or based on wholly speculative factors such as those found in many mathematical formulas, or if it is a deliberate attempt by counsel to create prejudice in the minds of the jury, it would not be error for the trial court to direct that such argument not be made or to remove it from the jury’s consideration.” In Carchidi, we concluded that this portion of Levin should be overruled because it invited variant rulings in the trial court under similar circumstances.

The defendants maintain that, in prohibiting the plaintiff’s counsel from mentioning the specific sum claimed for her injuries or referring to a mathematical formula, the trial court acted well within its discretion as delineated in Levin, after having concluded that such argument was fundamentally unfair when liability was disputed in a case. Our notation in Bartholomew of some legislative history in the enactment of § 52-216b indicating a desire to return to the preCarchidi procedure does not, however, allow us to read that statute as vesting in the trial court the virtually unfettered discretion to allow or disallow such argument, as sanctioned by Levin. Such an interpretation would ignore the statute’s plain language that counsel “shall be entitled to specifically articulate . . . the amount of past and future economic and noneconomic damages claimed to be recoverable.” (Emphasis added.) We are confident that the legislature never intended that compliance with the statute should be optional.

It is only when compliance with § 52-216b would require a trial court to disregard its constitutional obligation to guarantee a fair trial to the litigants that the statutory mandate may be deemed to be superseded by that higher law. In Bartholomew, we concluded that “the propriety of permitting counsel to argue specific monetary sums for pain and suffering is a matter of public policy, which the legislature has the authority to resolve.” Id., 682. In holding that § 52-216b did not trespass upon the authority conferred upon the judiciary as a “separate magistracy” by our state constitution to govern court procedure; Adams v. Rubinow, supra, 156; and in deferring to the legislative view of the propriety of such argument, which the opinion characterized as a matter of public policy, we implicitly decided that the mention of specific amounts claimed for damages during closing argument did not jeopardize the right to a fair trial under ordinary circumstances. We referred expressly to various measures available to a trial court to implement that right by counteracting any prejudice that might result from such argument, including the power to comment upon counsel’s argument, to give curative instructions, to declare a mistrial, or to set aside the verdict. Bartholomew v. Schweizer, supra, 681.

The trial court found it “fundamentally unfair under the facts and circumstances of this case, where the defendants did not admit liability, to force them to the choice of making no alternative suggestion as to any dollar amount or formula to influence the jury’s verdict, or making a suggestion of a sum when the theory on which the case had been tried by the defendants was that the jury should find a defendants’ verdict and award nothing.” Although Bartholomew involved a trial limited to the issue of damages following a summary judgment on liability, our opinion upholding the allowance of argument pursuant to § 52-216b did not rely on the circumstance that liability in that case was uncontested at trial. If we were to hold that, whenever liability is disputed, the kind of argument authorized by § 52-216b is “fundamentally unfair” in a constitutional sense and, therefore, must be banned in such cases, the statute would have a very limited field of operation, likely to be further narrowed by our holding in cases in which defendants would otherwise have been inclined to concede liability. Defense counsel commonly argue both liability and damages when both issues are in dispute. They are not without sufficient ingenuity and resourcefulness to respond appropriately to a plaintiff’s invitation to suggest the amount of an award when liability is disputed. We conclude that the fairness of the trial is not impaired in any constitutional sense by the necessity for compliance with § 52-216b simply because the issue of liability is disputed in a particular case.

We reaffirm our conclusion in Bartholomew that § 52-216b does not violate the separation of powers principle of article second, as amended, of the state constitution. We also hold that the statute must be followed unless, in a particular case, the argument it permits would lack any rational basis in the evidence and thus result in a constitutionally unfair trial, a situation not presented in the case before us. Accordingly, we reverse the judgment and order a new trial with respect only to Ward, for failure to comply with the statute.

II

Because the propriety of the questions the plaintiff sought to ask of prospective jurors on the voir dire is likely to arise at the new trial we have ordered, it is appropriate to resolve that issue at this time. Falby v. Zarembski, 221 Conn. 14, 26-27, 602 A.2d 1 (1992); State v. Rinaldi, 220 Conn. 345, 359-60, 599 A.2d 1 (1991). The trial court sustained the defendants’ objections to three questions the plaintiff proposed: (1) “If the law and the evidence justified your including in your verdict amounts of money for some of the things we talked about, medical expenses, pain and suffering, permanent disability and the fair, just and reasonable compensation for these elements of damages, when you deliberated with the other jurors, resulted in a verdict that was a large amount of money, would you lower that verdict just because of the amount of money involved?” (2) “Do you think there should be a dollar limit or dollar minimum on jury verdicts?” and (3) “Do you think jury verdicts in the United States have gotten too high?” One of the grounds of the defendants’ objection to these inquiries was that the plaintiff’s counsel was “prepping witnesses for a large verdict.” In its memorandum denying the plaintiff’s motion to set aside the verdict, the trial court indicated that the basis for its exclusion of these questions was that they related to the same subjects of prejudice against awarding money as compensation for personal injuries, preconceived limits upon the amount of such awards and the existence of a lawsuit crisis upon which the venireperson involved had been previously examined. The transcript supports the court’s view that these questions were largely cumulative and, therefore, were properly excluded.

“We have noted with concern increasing abuse of the voir dire process to the extent that in some instances it has taken longer to select a jury to try a case than to try the case itself. It appears that all too frequently counsel have engaged in wideranging interrogation of veniremen in a not too subtle attempt to influence the ultimate decision of a venireman if he should be selected for service or to ascertain the attitude of the venireman on an assumed state of facts.” State v. Anthony, 172 Conn. 172, 175, 374 A.2d 156 (1976). “The court has wide discretion in conducting the voir dire . . . and the exercise of that discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted.” State v. Dahlgren, 200 Conn. 586, 601, 512 A.2d 906 (1986). “[I]t is important that the trial courts, in the exercise of their discretion, be punctilious in restricting counsel’s inquiries to questions which are pertinent and proper for testing the capacity and competency of the juror . . . and which are neither designed nor likely to plant prejudicial matter in his mind.” Duffy v. Carroll, 137 Conn. 51, 57, 75 A.2d 33 (1950).

For the purpose of the new trial we should also consider the defendants’ objection concerning “prepping” the jurors, which is likely to be repeated even if the same questions are asked in a noncumulative setting. A trial court could reasonably view the first question, which hypothesizes a verdict so large that a juror might be inclined to reduce it simply because of the amount of money involved, as likely to implant in the mind of a venireperson before he had heard any evidence the notion that an exceptionally high award of damages would be warranted in the case to be tried. This was the basis of the defendants’ objection and, with respect to this question, it should be sustained. The third question, whether the venireperson considered jury verdicts in the United States to be too high, suffers from a similar vice in that it carries the implication that the reason for the question is that the case to be heard involves injuries justifying an award that some people would regard as too high. A court would not abuse its discretion by excluding this subtle kind of brainwashing.

The second question, if it had not been accompanied by the inquiries that we have concluded were objectionable, would have less potential for suggesting that the case warranted a large verdict, as it is neutrally phrased. In the context of its two companion questions, however, a trial court would be justified in excluding it. Whether this question alone should be allowed at retrial would fall within the broad discretion vested in the trial court with respect to the conduct of the voir dire.

The judgment is reversed and the case is remanded for a new trial.

In this opinion Glass, Covello and Borden, Js., concurred.

Berdon, J.,

concurring in part and dissenting in part. I agree with the majority that counsel must be allowed to argue damages by suggesting specific amounts, “lump sums or by mathematical formulae,” to the jury as provided in General Statutes § 52-216b unless the argument “would lack any rational basis in the evidence and thus result in a constitutionally unfair trial . . . .” Since the trial court failed to follow the statute, and there was no evidence that the argument would have lacked a rational basis, a new trial is required.

That new trial, however, should be limited to damages. Early on we recognized the injustice of requiring the retrial of both liability and damages when there was merely an error that affected damages. In Smith v. Whittlesey, 79 Conn. 189, 193-94, 63 A. 1085 (1906), the court held the following: “The only error apparent in the record or claimed upon appeal is one affecting the assessment of damages. Other material issues submitted to the jury have been found for the plaintiff, to wit: that while [the] plaintiff and [the] defendant were traveling the same course on the public highway, the defendant carelessly drove his vehicle against that of the plaintiff and hurled the plaintiff against the wheel of his vehicle whereby the plaintiff was severely injured; that the plaintiff as well as the defendant at the time of the injury was traveling in a vehicle for the conveyance of persons as described in . . . the General Statutes. These issues have been legally settled, and the error of the court in respect to damages may be fully corrected without a retrial of these issues. In such a case it is plain that the issues rightly settled ought not to be reopened, and this court has the power to qualify its order for a new trial by limiting the retrial to that part of the case in which alone there is any error. . . . This principle may be applied to trial by jury when its application is necessary to do justice to the parties.” (Citations omitted.) See Davenport v. Bradley, 4 Conn. 309, 311 (1822). Indeed, we have continued to remand jury cases for a new trial only on damages when the error was limited to that issue. E.g., Peck v. Jacquemin, 196 Conn. 53, 491 A.2d 1043 (1985); Ryszkiewicz v. New Britain, 193 Conn. 589, 479 A.2d 793 (1984); Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982).

The majority claims that a new trial as to liability and damages is necessary in this case because “those issues are likely to be ‘inextricably interwoven’ from the viewpoint of a jury. ’ ’ By that I take it the majority believes there is a likelihood the jury compromised the issue of liability when it reached its verdict. It is fundamental, and I have no reason to believe that it was not done in this case, that the jury is instructed that they are to determine the issues of liability first, and unless they have found those issues in favor of the plaintiff the jury may not proceed to consider damages. E.g., 1D. Wright, Connecticut Jury Instructions (2d Ed. 1970) § 222f. It is reasonable to assume that the jury followed the instructions of the trial court and did not consider damages unless it first determined that there was liability. “[J]urors are presumed to follow the instructions given by the judge.” State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987).

When there is no error in the liability portion of the case, it generally serves no purpose to retry the issue. Only in the most exceptional case should we order on remand a full trial when the only issue on appeal is a claim of error on damages. This is not such a case. The plaintiff was injured when he was a passenger in a vehicle operated by the defendant Ward that was involved in a one car collision, and there was no issue of liability raised on appeal. Indeed, in this case Ward did not request a remand for a full trial if error was found. To require the relitigation of liability would only result in unnecessary costs for the litigants and add to an overburdened judicial system.

1 also disagree with the majority that the questions the plaintiff sought to ask the prospective jurors were improper as implanting in the mind of “a venir eperson . . . the notion that an exceptionally high award of damages would be warranted . . ..” During the last decade there have been extensive national campaigns advertising that high jury awards have caused increases in the costs of automobile insurance premiums. This was a case of serious personal injuries for which a jury could award a substantial amount of damages. Indeed the plaintiff appealed from the denial of his motion to set aside a verdict of $150,000 in his favor that Ward was obviously content to pay.

These questions by the plaintiff’s counsel; see p. 339 of the majority opinion, supra; were designed to ferret out whether the prospective juror had been exposed to those advertising campaigns, and if so, to determine whether that would prevent that person from awarding substantial damages if the evidence justified such an award. They were also formulated to determine whether the prospective juror would reduce an award that was fair, just and reasonable merely because of the amount involved, or would be inclined to place artificial limits on an award. They were perfectly proper questions and are routinely allowed. Although the extent of the voir dire examination of prospective jurors rests largely in the discretion of the trial court; State v. Hernandez, 204 Conn. 377, 381, 528 A.2d 794 (1987); in exercising its discretion the trial court “should grant such latitude as is reasonably necessary to accomplish the twofold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges.” State v. Fritz, 204 Conn. 156, 161, 527 A.2d 1157 (1987). “ ‘[I]f there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. . . ” State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985).

Although the subject matters of the disallowed questions were proper, I agree with the trial court that they were adequately covered by prior questions to the prospective juror. The trial court wrote the following in its memorandum of decision on the motion to set aside the verdict: “The juror had already indicated in response to plaintiff’s counsel’s questions that had previously been permitted by the court that nothing about the concept of money damages being awarded for personal injuries bothered him; nor was he specifically troubled about compensation for medical expenses, pain and suffering or permanent disability; and had no preconceived specific dollar amount which he would not go above or below no matter what the evidence in the case showed. Counsel was also permitted to ask if the venireperson thought there was a lawsuit crisis and the venireperson replied, ‘No.’ The court is satisfied that the plaintiff had an adequate and fair opportunity to inquire of prospective jurors as to possible bias or inability to fairly serve.” It is well within the trial court’s discretion to exclude repetitious questions or questions on the subjects that were adequately explored. State v. Marsh, 168 Conn. 520, 523, 362 A.2d 523 (1975).

Not content with sustaining the trial court on the grounds that the voir dire questions were properly excluded because they were cumulative, upon which we all agree, the majority goes further and actively reaches out to hold at least two of those questions to be, as a matter of law, improper. The permissible content of the voir dire questions cannot be reduced to simplistic rules, but must be left fluid in order to accommodate the particular circumstances under which the trial is being conducted. Thus, a particular question may be appropriate under some circumstances but not under other circumstances. The majority fails to recognize this.

Accordingly, I concur with the majority regarding the right to argue monetary amounts to the jury, but I respectfully dissent to the majority’s remand that directs a retrial on the issue of liability as well as damages and to the majority’s conclusion that the subject matters of the voir dire questions were improper.

       The plaintiff appealed directly to this court pursuant to General Statutes § 51-199 (b) (2), which allows such an appeal “in any matter where the superior court declares invalid a state statute . . . .” The plaintiff claims that the trial court has effectively invalidated General Statutes § 52-216b.

       General Statutes § 52-216b provides: “(a) In any civil action to recover damages resulting from personal injury or wrongful death, counsel for any party to the action shall be entitled to specifically articulate to the trier of fact during closing arguments, in lump sums or by mathematical formulae, the amount of past and future economic and noneconomic damages claimed to be recoverable.
      “(b) Whenever, in a jury trial, specific monetary sums or mathematical formulae are articulated during closing arguments as provided for in subsection (a) of this section, the trial court shall instruct the jury that the sums or mathematical formulae articulated are not evidence but only arguments and that the determination of the amount of damages to be awarded, if any, is solely the jury’s function.”

       The plaintiff has not briefed a claim of error in the charge on the family car doctrine, which was raised in his preliminary statement of issues, and thus is deemed to have abandoned that issue.

       Article second of the constitution of Connecticut, as amended by article eighteen of the amendments provides: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. The legislative department may delegate regulatory authority to the executive department; except that any administrative regulation of any agency of the executive department may be disapproved by the general assembly or a committee thereof in such manner as shall by law be prescribed.”

       In the concluding portion of his brief, but not in his statement of issues, the plaintiff contends that, if a reversal of the judgment is warranted, the remand should be limited to a hearing in damages, since the erroneous restriction of argument did not involve the issue of liability, which the jury has determined in favor of the plaintiff against Ward. In our more recent decisions, we have ordered a new trial on both liability and damages even when the error found relates only to damages in personal injury cases tried to a jury, because we have concluded that those issues are likely to be “inextricably interwoven” from the viewpoint of a jury. Fazio v. Brown, 209 Conn. 450, 455-58, 551 A.2d 1227 (1988); Malmberg v. Lopez, 208 Conn. 675,681-82, 546 A.2d 264 (1988); see DeLaurentis v. New Haven, 220 Conn. 225, 268, 597 A.2d 807 (1991). Accordingly, we reject the plaintiff’s suggestion for a limited remand.

       I concede that in the past we have on occasion remanded the matter for a full trial on both liability and damages when there was an error on only the issue of damages. Those cases, however, involved matters in which serious issues of contested liability were raised. E.g., Fazio v. Brown, 209 Conn. 450, 451-52, 551 A.2d 1227 (1988) (“The accident occurred in the early evening hours as [the plaintiff], wearing dark clothing, and riding his motorcycle without lights, was crossing the defendants’ driveway.”).

       For example the substance of the following jury instruction is routinely given: “Now, unless or until you come to the conclusion that one or more of these defendants were negligent, and that such negligence was the proximate cause of the plaintiffs injuries, you have no occasion whatsoever to consider the question of damages. I speak of damages only because there is law in connection therewith which I must give you in the event that you get that far in your considerations. If you do come to the conclusion that any or all of the defendants were negligent, and that such negligence was the proximate cause of the injuries in the given case, then you must turn to the question of damages.” (Emphasis in original.) 1 D. Wright, Connecticut Jury Instructions (2d Ed. 1970) § 222f.