author: Covello, J,

text:
    State of Connecticut v. Kenneth Damon
    (13672)
    Peters, C. J., Shea, Covello, Hull and Santaniello, Js.
    Argued December 13, 1989
    decision released March 6, 1990

      Mark Rademacher, for the appellant (defendant). Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Covello, J,

The defendant, Kenneth Damon, appeals from his conviction of murder in violation of General Statutes § 53a-54a (a). The dispositive issues are: (1) whether the trial court erred in denying the defendant’s motion to suppress inculpatory statements made by the defendant to the police; and (2) whether the trial court violated the defendant’s constitutional rights of confrontation, compulsory process and due process when it admitted an autopsy report into evidence, under the business record exception to the hearsay rule. We find no error.

The jury could reasonably have found the following facts: On September 9,1987, Monica Joyner was found stabbed to death in the basement of a three family dwelling in New Haven. The victim lived on the second floor with her husband and two young children. The first floor apartment was occupied by Prisilla Damon, the defendant’s mother. Prisilla Damon lived alone, but the defendant occasionally stayed overnight at her apartment. The defendant worked the noon to eight p.m. shift at Bozzuto’s Trucking Company in Cheshire. On the night of September 8, 1987, Prisilla Damon picked up the defendant at Bozzuto’s, and at midnight they returned to her apartment, where the defendant planned to spend the night.

At approximately 11:15 a.m. on September 9, Mitchell Stevenson, the owner of the building, left his third floor apartment and walked down into the basement, and there discovered the victim lying face down in a pool of blood on the basement floor. The victim’s clothing was in partial disarray. The victim had suffered multiple stab wounds to her upper body, head and face.

On the afternoon of September 9, Prisilla Damon went to the New Haven police station and gave a statement indicating that the defendant had been at her apartment that morning. Two plainclothes detectives, Francisco Ortiz and Leroy Dease, drove to Bozzuto’s, where the defendant was working. The detectives asked the defendant if he would voluntarily accompany them to the New Haven police station to be interviewed in connection with a homicide they were investigating. The detectives informed the defendant that he was not under arrest, that he did not have to accompany them, and that he was free to leave if he chose to. The defendant agreed to accompany the detectives.

The defendant was taken to the detective division and given Miranda warnings. The defendant was not handcuffed, was not told that he was under arrest, and was not told that he was a suspect. The defendant never requested that he be allowed to go home.

Between 9 and 9:30 p.m. the detectives began questioning the defendant in a conference room. The defendant initially denied any knowledge of the victim or her death. After several hours of questioning, however, at approximately 12:15 a.m. on September 10, the defendant gave a tape recorded confession in which he admitted killing the victim. The defendant claimed that he had acted in self-defense. He stated that the victim, while “high” on drugs, had knocked on the back door of his mother’s apartment at approximately 9:30 a.m. and had asked him for some cocaine. He further stated that the victim took a knife from his mother’s kitchen, then lured him down to the basement, where she attacked him with the knife. The defendant stated that during the ensuing struggle he accidentally stabbed the victim. The defendant told the police that he had wrapped the knife in a brown paper bag and had thrown it into a garbage can in front of the Dixwell Plaza shopping area.

The defendant was thereafter charged in a substitute information with murder, in violation of General Statutes § 53a-54a (a). On May 24, 1988, the defendant filed a motion to suppress the statements he had made to the police. In his motion to suppress, the defendant claimed that his statements were made without a voluntary, knowing and intelligent waiver of his constitutional privilege against self-incrimination, and that the statements were made involuntarily in violation of his constitutional rights to due process.

On November 29, 1988, the day before the trial began, the trial court conducted a suppression hearing and thereafter denied the motion to suppress. The trial court concluded that while there was no probable cause to arrest the defendant up until the time he made the inculpatory statements, the defendant had voluntarily accompanied the police to New Haven, had voluntarily remained at the police station, and was not in police custody at the time he made his incriminating statements. The trial court further found that the defendant’s statements were made with full knowledge of his Miranda rights.

On December 1, 1988, at the start of the trial, the state represented to the court that Malka B. Shah, the pathologist who performed the autopsy on the victim, was in India and was not expected back “for some period of time.” The state explained that it intended to call another pathologist from the same office, Ira Kanfer, who could properly interpret and explain the findings contained in the report.

The defendant objected to the admission of the autopsy report through Kanfer and requested three alternative rulings from the trial court. First, he requested that the court preclude Kanfer from testifying. Second, the defendant requested that the court grant a continuance until Shah returned from India. Third, the defendant requested that the court, if it denied the first two requests, grant a continuance so that he could retain his own pathologist to examine the autopsy report. Upon inquiry, the trial court established that Shah had taken a three month vacation and would not be back for two weeks. The trial court overruled the defendant’s objections and denied the requests for a continuance. The trial court ruled that the autopsy report would be admissible as a business record, regardless of Shah’s availability, if a proper foundation were laid and Kanfer could explain the report.

Upon inquiry by the trial court, defense counsel stated that he had obtained a copy of the autopsy report “two months or so before this case started.” The trial court concluded that there had been ample opportunity to review the report and to retain a pathologist to explain it from the defendant’s standpoint.

Kanfer then testified for the state. Kanfer limited his testimony to explaining the terms used in the autopsy report and describing the victim’s wounds as noted therein. He testified that the autopsy report was a standard report made by the person who performed the autopsy, that it was a report made in the regular course of business at the medical examiner’s office, that it was the regular course of business after making the report to keep it on file at the medical examiner’s office, and that the report was made soon after the autopsy was completed.

The state offered the autopsy report as a full exhibit and the defendant objected. The trial court concluded that a sufficient foundation had been laid and admitted the autopsy report. Kanfer then testified briefly concerning the four fatal stab wounds and the cause of death, reiterating the opinions of Shah as contained within the report.

On December 7,1988, the jury found the defendant guilty as charged. The defendant immediately filed a motion for judgment of acquittal and a motion for a new trial. The trial court denied both motions. On February 24, 1989, the defendant was sentenced to a prison term of sixty years. The defendant thereafter filed a direct appeal from that judgment with this court, pursuant to General Statutes § 51-199 (b) (3).

I

The defendant’s first claim is that the trial court erred in denying the defendant’s motion to suppress his inculpatory statements on the ground that he was arrested without probable cause and that therefore, the statements must be suppressed as the fruit of an illegal arrest. The gravamen of the defendant’s claim is that he was in the custody and complete control of the police. prior to and during the interview, and he was therefore “seized” and under arrest for constitutional purposes. The defendant alleges that because no probable cause existed at that time for his arrest, his confession should have been suppressed. We do not agree.

It is well settled that the fourth amendment requires that a confession which is the product of an arrest or a detention made without probable cause must be excluded from evidence. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); see also Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). We previously have held that the trial court must make two determinations in assessing the admissibility of a confession made during custodial interrogation following a claimed warrantless arrest: (1) whether or not the defendant has been seized; and (2) whether or not there was probable cause for the seizure. State v. Acquin, 187 Conn. 647, 651, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); State v. Ostroski, 186 Conn. 287, 290, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). Because the trial court expressly found that there was no probable cause for the defendant’s arrest prior to his making inculpatory statements, only the first question is at issue in this appeal.

“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); State v. Acquin, supra, 655. We have held that “ ‘[t]o constitute an arrest, there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.’ ” State v. Derrico, 181 Conn. 151, 159, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980), quoting Jenkins v. United States, 161 F.2d 99, 101 (10th Cir. 1947); see also State v. Magnotti, 198 Conn. 209, 212-13, 502 A.2d 404 (1985).

Voluntary interactions between the police and citizens do not implicate fourth amendment protections. United States v. Webster, 750 F.2d 307, 320 (5th Cir. 1984), cert. denied, 471 U.S. 1106, 105 S. Ct. 2340, 85 L. Ed. 2d 855 (1985). A person is not arrested or seized under , the fourth amendment if he freely chooses to enter into or continue an encounter with the police. United States v. Brunson, 549 F.2d 348, 357 (5th Cir. 1977), cert. denied, 434 U.S. 842, 98 S. Ct. 140, 54 L. Ed. 2d 107 (1977). Police officers do not violate an individual’s constitutional rights by approaching him, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering into evidence in a criminal prosecution his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Brown, 199 Conn. 47, 52-53, 505 A.2d 1225 (1986).

A finding of fact will not be overturned on appeal unless it is clearly erroneous. State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989); State v. Young, 191 Conn. 636, 652, 469 A.2d 1189 (1983); see Practice Book § 4061. Where a constitutional issue turns upon a factual finding, however, this court has applied a stricter standard of review of the factual finding. “The issue is factual, but our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence. Columbe v. Connecticut, 367 U.S. 568, 605, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).” State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982).

We conclude, after a scrupulous examination of the record, that the evidence presented during the suppression hearing was sufficient to support the trial court’s conclusion that the defendant was neither under arrest nor seized for constitutional purposes until after he voluntarily gave the inculpatory statements to the police. As factfinder, the trial court was entitled to accept the uncontroverted testimony of the three detectives who traveled to Bozzuto’s that the defendant was not a suspect at that time, that his decision to accompany the police was completely voluntary, that he expressed no reservations about going to the police station or answering questions about the homicide, that he was informed that he was not under arrest and could leave if and when he chose to, that before leaving Bozzuto’s he returned to his work area unescorted in order to retrieve his backpack, which the police did not search, that he traveled to New Haven in an unmarked car that did not contain a restraining cage and which could be unlocked from the inside, that he was not physically or verbally restrained or handcuffed, and that he never requested to go home. See, e.g., United States v. Mendenhall, supra.

Although the defendant was in the company of one or two detectives until midnight, when his confession was recorded, the testimony indicates that the actual interview did not begin until sometime between 9 and 9:30 p.m. and that the defendant first implicated himself shortly after 10 p.m. Also, the issuance of Miranda warnings as a cautionary measure does not mean that the defendant had been arrested. See, e.g., Government of Virgin Islands v. Commissiong, 698 F. Sup. 604, 612 (D. Virgin Islands 1988).

The trial court could reasonably have concluded that the defendant’s contact with the police was voluntary and did not amount to a seizure or arrest prior to the time he made the inculpatory statements. This conclusion is in accord with recent decisions of this court containing similar factual backgrounds. See State v. Young, supra; State v. Acquin, supra; State v. Derrico, supra.

II

The defendant next argues that his constitutional rights to confrontation, compulsory process and due process were violated when the trial court admitted the victim’s autopsy report into evidence, as a business record, through the testimony of a pathologist who was not present at the autopsy, after the trial court had denied the defendant’s request for a continuance. We do not agree.

To gain admission of a document under the business record exception to the hearsay rule, the proponent must show that (1) the document was made in the regular course of business, (2) it was the regular course of business to make such a record, and (3) the record was made when the act, transaction or event occurred, or shortly thereafter. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 383-84, 461 A.2d 422 (1983). To qualify a record as a business entry, a witness must testify to the three requirements, but the witness need not have been the entrant himself or even in the employ of the business when the entry was made. See, e.g., Baumert-Moran Sales Co. v. Red Bird Truck Rental Corporation, 149 Conn. 42, 45, 175 A.2d 189 (1961); D' Amato v. Johnston, 140 Conn. 54, 62, 97 A.2d 893 (1953).

“[T]he essential hallmark of admissibility under § 52-180 is the trustworthiness of the document . . . Jefferson Garden Associates v. Greene, 202 Conn. 128, 141, 520 A.2d 173 (1987). Kanfer testified that the autopsy report was a standard report, made in the regular course of business soon after the autopsy was completed, and that it was the regular course of business to keep the report on file at the medical examiner’s office. In light of Kanfer’s testimony and the nature of the document itself, which is a report derived from established routine procedures designed to record objective facts and observations, we conclude that the trial court did not abuse its discretion in admitting the autopsy report as a business record.

The defendant further argues, however, that even if the admission of the autopsy report complied with the statute, its admission through the testimony of Kan-fer violated his constitutionally protected confrontation rights. Although the confrontation clause and the hearsay rule protect similar values, the two are not coextensive. It is well established, however, that hearsay evidence may be admitted without violating the confrontation clause where the evidence falls within a firmly rooted hearsay exception. See, e.g., Ohio v. Roberts, 448 U.S. 56, 63-66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); State v. Cosgrove, 181 Conn. 562, 571-72, 436 A.2d 33 (1980). “Firmly rooted exceptions to the hearsay rule do not violate the confrontation clause.” United States v. Baker, 855 F.2d 1353, 1360 (8th Cir. 1988), cert. denied, U.S. , 109 S. Ct. 2072, 104 L. Ed. 2d 636 (1989). The precepts of confrontation are satisfied when an out-of-court statement complies with the conditions of a well established exception to the hearsay rule. Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987).

Other courts have specifically rejected confrontation claims involving autopsy reports in factual backgrounds similar to that presented in this appeal. See, e.g., Montgomery v. Fogg, 479 F. Sup. 363, 369-71 (S.D.N.Y. 1979); Collins v. State, 267 Ind. 233, 235-36, 369 N.E.2d 422 (1977). Also, in State v. Cosgrove, supra, we rejected similar claims in an analogous context. In Cosgrove, a toxicological report on seized marijuana was admitted as a business record. The defendant in that case argued that admission of the report violated his right of confrontation because the report contained the statements of a chemist who was not called to testify. In reaching our conclusion that no violation of the defendant’s confrontation right had occurred, we focused on whether such reports were sufficiently trustworthy and reliable to be placed before the jury without confrontation of the declarant. Id., 569-78; see also Reardon v. Manson, 806 F.2d 39 (2d Cir. 1986), cert. denied, 481 U.S. 1020, 107 S. Ct. 1903, 95 L. Ed. 2d 509 (1987); State v. King, 187 Conn. 292, 309-15, 445 A.2d 901 (1982).

The same factors that supported the reliability of the toxicological report admitted in Cosgrove are largely present in this case. An autopsy report derives from well recognized, routine procedures, and records objective facts. These procedures are performed hundreds of times each year, and in light of their frequency, are so generally considered reliable that they are normally undisputed. The pathologist performing the autopsy, Shah, had no motive to falsify her findings and owed no special allegiance to the state’s attorney. Shah, as a physician and a state employee, has a professional duty to report the results of her work in an accurate and truthful manner. See State v. Cosgrove, supra, 575-77. Like a toxicology report, an autopsy report is essentially a factual report limited to objective, physical observations. As such, it contains sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. See Montgomery v. Fogg, supra, 370.

The state was not obligated to demonstrate the unavailability of Shah. Section 52-180 expressly provides that the proponent of the business record need not produce that person who made the record or show that the person is unavailable. State v. Jeustiniano, 172 Conn. 275, 280, 374 A.2d 209 (1977). Unavailability need not always be demonstrated to satisfy the confrontation clause. State v. Vessichio, 197 Conn. 644, 657-60, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986).

Ill

The defendant’s final contention is that the trial court’s denial of his request for a continuance, until Shah returned from India or until the defendant could retain his own pathologist to examine the report, violated his rights to compulsory process or due process. The decision to grant a request for a continuance lies within the sound discretion of the trial court and will not be disturbed on appeal absent clear abuse of that discretion. State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987); State v. Stanley, 197 Conn. 309, 311-12, 497 A.2d 46 (1985). The defendant bears the heavy burden of proving that the trial court acted arbitrarily and substantially impaired the defendant’s ability to defend himself. State v. Beckenbach, 198 Conn. 43, 47-48, 501 A.2d 752 (1985).

The defendant here fails to carry this burden. There is nothing in the record to indicate that Shah would have given any testimony favorable to the defendant. See State v. Aillon, supra, 396. Kanfer, a qualified pathologist who had performed over 800 autopsies, was present in court to explain fully the meaning of the autopsy report and was subject to cross-examination by the defendant. Also, the defendant had possession of a copy of the autopsy report for more than two months and had ample opportunity to review its content and retain an expert witness to explain its content, if he so desired. Furthermore, the defendant requested the continuance one day after the start of trial. The trial court has a responsibility to avoid unnecessary interruptions, to maintain the orderly procedure of the court docket, and to prevent any interference with the fair administration of justice. See State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). Based upon the record it cannot be said that the trial court abused its discretion or deprived the defendant of his constitutional rights to compulsory process or due process of law.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

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

       The record reveals that the defendant was taken to the police station in an unmarked car driven at normal speeds, without the emergency lights or siren. The car entered the police station via an underground parking garage, which was the normal entrance into the building for detectives. The defendant was taken by public elevator to the detective division on the third floor, and then to the conference room. The conference room contained windows, and during the course of the defendant’s interview the detectives were in and out of the room. The door of the conference room remained open during the course of the interview.

       At approximately 9:30 p.m., Detective Ortiz left the conference room, leaving the defendant and Detective Dease alone. Approximately thirty minutes later Detective Anthony DiLullo entered the conference room. Shortly after DiLullo’s entrance, the defendant started shaking and crying. The defendant then admitted to the police that he had stabbed the victim. The defendant then agreed to make a taped statement of his version of the stabbing.

       Approximately three days later, Nathan Collins, a maintenance worker, found a butcher knife wrapped in a brown paper bag while he was mowing the lawn at the Dixwell Plaza. Collins threw the knife into a dumpster and the police were unable to recover it. When the police visited Prisilla Damon on September 10 and inquired if she was missing any knives, she noticed that a butcher knife she usually kept near her sink was missing.

       General Statutes § 51-199 provides in pertinent part: “(b) The following matters shall be taken directly to the supreme court . . . (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony ... for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       The fourth amendment to the United Stated Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       Testimony elicited at the suppression hearing and at trial indicates that the poliee originally suspected the landlord, Mitchell Stevenson, of the murder. Stevenson was questioned a number of times on the day of the crime, including twice at the police station, and was told that he was a suspect. He was fingerprinted, strip searched, and his apartment was searched.

       See footnote 4, supra.

       “[General Statutes] Sec. 52-180. admissibility of business entries and photographic copies, (a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.
      “(c) Except as provided in chapter 3, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to b'e recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.
      “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.”
      Autopsy reports are also admissible pursuant to General Statutes § 19a-412, which provides: “(Formerly Sec. 19-536). records as evidence. The records of the office of the chief medical examiner, or transcripts thereof certified by the chief medical examiner or his authorized representative, shall be subject to subpoena and shall be admissible in evidence in any court in the state in the same manner and subject to the same conditions as hospital records as provided in section 4-104, except that the findings or conclusions of the chief medical examiner, his deputy, an associate medical examiner or an assistant medical examiner as to the cause or circumstances of death, other than those set forth in the death certificate or the autopsy report, and statements by witnesses or other persons and conclusions upon extraneous matters shall not be admissible.”

       The sixth amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

       The factors that we identified as determinative in the question of whether a toxicological report is sufficiently reliable and trustworthy to be admitted without confrontation of the declarant included: (1) a toxicological report is the record of the results of well recognized chemical and laboratory procedures; (2) it contains a record of objective facts and not only opinion; (3) the report is the record of routine tests performed hundreds or thousands of times a year, and in light of their frequency are so generally considered reliable that they are normally undisputed; (4) the chemist reporting the facts would have no motive to falsify the records but would be under a strict duty as an employee and a scientist to make an accurate report to preserve her job and the integrity of the toxicological laboratory; (5) the chemist owes no allegiance per se to the state’s attorney; and (6) while such tests are not purely mechanical, they fall well within the category of those types of tests whose reliability has been consistently demonstrated and generally accepted, and do not contain the degree of subjectivity that would warrant production of the declarant. State v. Cosgrove, 181 Conn. 562, 575-77, 436 A.2d 33 (1980).


source: Caselaw Access Project

author: Hull, J. Shea, J., with whom Covello, J., joins,

license: Public Domain

text:
    State of Connecticut v. Douglas Johnson
    (13499)
    Peters, C. J., Shea, Covello, Hull and Santaniello, Js.

      Argued December 13, 1989
    decision released March 6, 1990

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

      Harry Weller, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Hull, J.

A jury found the defendant, Douglas Johnson, guilty of murder in violation of General Statutes § 53a-54a (a), arson in the first degree in violation of General Statutes § 53a-111 (a) (1), and larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b (a). The trial court thereupon sentenced him to a total effective sentence of eighty-five years and ninety days incarceration. On appeal from this judgment, the defendant claims that the trial court erred in: (1) admitting into evidence the testimony of five state’s witnesses whose taped statements had been destroyed by the investigating police department prior to the commencement of trial; and (2) including in its charge language that had the effect of diluting the state’s burden of proving guilt beyond a reasonable doubt. We find no error.

The jury could reasonably have found the following facts. On the night of March 6,1987, the defendant and his cousin, Edward Lambert, were having drinks at the Yale Bowl Cafe in New Haven. While there, they observed an altercation between a man, later identified as Charles Strickland, and a woman, later identified as Kelly Allen Meyer. The defendant intervened to break up the fight and ultimately escorted Strickland out of the bar. The defendant thereafter returned to the Yale Bowl Cafe and remained in the bar for one or two hours before leaving. During that time, the defendant spoke with Meyer and ultimately left the bar arm-in-arm with her at approximately 2 a.m.

Lambert, who left the bar with Meyer and the defendant, drove them to Meyer’s apartment building located two blocks from the Yale Bowl Cafe. When they arrived at the apartment building, the defendant and Meyer got out of the car and the defendant indicated to Lambert that he would walk home. Consequently, Lambert drove away. The defendant and Meyer then entered Meyer’s apartment and went into her bedroom. At' some point thereafter, the defendant repeatedly stabbed Meyer with a barbeque fork and strangled her with an antenna wire. Subsequent to Meyer’s death from these wounds, the defendant set fire to her room.

The defendant fled the scene on foot, taking with him Meyer’s purse and the barbeque fork. He either dropped or discarded some of the contents of the purse on the street as he fled in the direction of his home. He attempted to conceal the barbeque fork and the other items from Meyer’s purse in a storm drain also located along a path between Meyer’s apartment and his home. The defendant was arrested on April 6,1987.

Since certain procedural facts are significant to this appeal, we will detail those facts prior to discussing the substance of the defendant’s claims of error. During the investigation into the crimes for which the defendant was tried, statements were given to the New Haven police by Margo Hudson, Willie Kirkland, Brian Simmons, Virginia Hagberg, and Eloise Lambert. The police tape recorded these statements and then erased the recordings subsequent to their transcription. Faced with the fact that the destruction of the tapes would render impossible the state’s compliance with General Statutes § 54-86b and Practice Book § 752 et seq., the state filed a motion in limine prior to the commencement of trial. The state requested in this motion that an “evidentiary hearing be held concerning the destruction by the police department of tapes of statements by critical state witnesses” and that “a ruling [be made] as to the admissibility of trial testimony of such witnesses.”

A hearing was held on May 3, 5 and 6,1988, during which testimony was heard from the individuals who had given the tape recorded statements that had been destroyed and from the police officers who were involved in the recording and/or destruction of those tapes. The testimony concerned the making of the tape recorded statements, the adoption of the typed transcriptions of the statements by each witness, and the destruction of the tapes. After hearing the testimony, the trial court made its ruling on the admissibility of the witnesses’ testimony at trial. The court first determined that the tapes had been destroyed in “bad faith,” but that there was no basis to conclude that the “erasure . . . was maliciously motivated or directed at this defendant in particular.” Accordingly, the trial court shifted the burden to the state to establish that the defendant had not been prejudiced by the destruction and absence of the tape recorded statements. The court then concluded that while it was difficult to evaluate prejudice without the trial testimony of each witness, it was satisfied that the state had, at this preliminary stage, met its burden of proving that the defendant had not been prejudiced. The court expressed its willingness, however, to reconsider its ruling after the trial testimony of each witness, based on the state of the record at the completion of each witness’ testimony. The defendant was thus encouraged to file either a motion to strike or a motion for a mistrial after the testimony of any witness whose statements could not be produced by the state as required by General Statutes § 54-86b and Practice Book § 752. As a result of the trial court’s ruling on its motion in limine, the state called each of the five witnesses to testify at trial.

I

The defendant first claims error in the trial court’s admission into evidence of the testimony of these five witnesses. Relying on General Statutes § 54-86b and Practice Book §§ 752 and 755, the defendant contends that the admission of this testimony constitutes reversible error in that: (A) a per se rule of reversal is appropriate when a witness, whose tape recorded statement was intentionally destroyed, is permitted to testify at trial; or in the alternative (B) the destruction of the tapes so prejudiced the defendant that the state’s non-production of them cannot be rendered harmless. We conclude that under the facts here presented, reversal of the defendant’s conviction is not required.

A

We first address the defendant’s claim that the trial court’s admission into evidence of the testimony of the witnesses whose tape recorded statements had been destroyed by the investigating police department requires the application by this court of a per se rule of reversal. The defendant implores us to invoke our supervisory powers; Practice Book § 4183; in order to effectuate the provisions of General Statutes § 54-86b and Practice Book §§ 752 and 755. Under the circumstances here presented, we decline to do so.

During the pendency of this appeal, this court considered a similar claim; State v. Williamson, 212 Conn. 6, 562 A.2d 470.(1989); in which we made certain determinations that are dispositive of the defendant’s contention that a per se rule of reversal is appropriate in this case. We first determined that if a case involves intentional, but not bad faith, destruction of the statement of a state’s witness, an automatic sanction of striking that witness’ testimony is not required. Id., 15-16. Rather, in the absence of bad faith, the court “must weigh the state’s culpability against any prejudice resulting to the defendant to determine whether the trial court abused its discretion in not striking [a witness’] testimony. State v. Shaw, [185 Conn. 372, 386, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982)]; State v. Santangelo, [205 Conn. 578, 587-88, 534 A.2d 1175 (1987)] . . . . ” (Citation omitted.) State v. Williamson, supra, 16. “In the context of a § 752 violation . . . the term ‘bad faith’ connotes a deliberate act done with intent to deprive the defense of information. State v. San-tangelo, supra; see also United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971) (recognizing that ‘intentional non-preservation’ and ‘bad faith’ are not synonymous).” State v. Williamson, supra.

In the present case, the trial court specifically found that the destruction of the witnesses’ tape recorded statements was not “maliciously motivated or directed at this defendant in particular.” Therefore, under Wil liamson, the trial court’s finding indicates that the non-preservation of the investigatory tapes here involved did not constitute “bad faith” police conduct. The defendant has not challenged the trial court’s finding concerning the intent of the police in destroying the tape recorded statements. Accordingly, we conclude that the conduct of the New Haven police was not such as to require reversal of the defendant’s conviction without further inquiry into the particular facts of this case.

B

We turn, therefore, to the defendant’s alternative claim of error. The defendant contends that the trial court erred in not striking the testimony of the witnesses because the destruction of the tapes so prejudiced him that the state’s nonproduction of them cannot be rendered harmless.

Initially, we note that at trial the defendant moved to strike under Practice Book § 755 only the testimony of Brian Simmons. Practice Book § 4185 provides in part: “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 defendant argues that by articulating his objections to the witnesses’ trial testimony at the pretrial hearing on the state’s motion in limine, he sufficiently preserved his claim of error with respect to each of the five witnesses. The defendant relies on the following language of Practice Book § 4185 to support his position: “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.”

It is our view that this language of § 4185 is inapplicable to the present facts in that the trial court, on the issue of striking the witnesses’ trial testimony, issued only a preliminary ruling at the pretrial hearing, not a final adverse ruling. The court clearly stated that “even though the Court is ruling as it is now, it is in the nature of a preliminary ruling based on the state of the record at this time, and therefore the defendant will still be free to move to strike certain testimony or for mistrial, whatever he deems is appropriate, because of the failure of the State to comply with Section 755 of the Practice Book, and [General Statutes § 54-86b], by delivering the statement which obviously is not going to be delivered.” It was thus incumbent on the defendant to seek a definitive ruling on the striking of each witness’ testimony after each had testified at trial in order fully to comply with the requirements of our rules of practice for preserving his claim of error with respect to each of those witnesses.

The defendant argues that even if he did not properly preserve his claim of error with respect to four of the five state’s witnesses, review by this court under the plain error rule of Practice Book § 4185 is appropriate. We do not agree. Practice Book § 4185 provides that this court “may in the interests of justice notice plain error not brought to the attention of the trial court.” “Such 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). Under the facts here presented, we cannot say that the court’s failure to strike the testimony of the four witnesses constituted a manifest injustice to the defendant so as to impair the effectiveness or integrity of his trial. Accordingly, there is no plain error in this case.

We will therefore focus our analysis on the trial court’s refusal to strike the trial testimony of Brian Simmons. Simmons testified that on the night of March 7,1987, he was in Meyer’s apartment, babysitting for her children. He had fallen asleep, but was awakened some time between 12:30 a.m. and 2 a.m., by sounds from Meyer’s bedroom. Simmons testified that he heard Meyer crying in her bedroom and talking with a black man who had “a smooth educated voice.” He further testified that he had identified the defendant’s voice as one of two possible male voices that he had heard. Subsequent to this testimony, since the state was unable fully to comply with General Statutes § 54-86b and Practice Book § 752 et seq., the defendant moved to strike Simmons’ testimony in its entirely. The trial court denied the motion, finding that the state had established that the defendant had suffered no prejudice from the destruction of Simmons’ tape recorded statement. The defendant claims that the trial court erred in denying his motion to strike Simmons’ testimony. We do not agree.

The determinations we made in State v. Williamson, supra, provide the foundation for our analysis of the propriety of the trial court’s denial of the defendant’s motion. As stated previously, in the absence of bad faith, it is appropriate that the court weigh “ ‘the culpability of the state for its failure to make disclosable material available on the one hand, against any resulting prejudice to the defendant on the other. State v. Myers, [193 Conn. 457, 467, 469, 479 A.2d 199 (1984)]; State v. Shaw, [supra, 386].’ State v. Santangelo, supra, 587-88; State v. Mullings, [202. Conn. 1, 10, 519 A.2d 58 (1987)].” State v. Williamson, supra, 14. This approach gives broad discretion to the trial court. Id. Where, as in the present case, the destruction of a witness’ statement, although not in bad faith, is deliberate, the state properly bears the burden of establishing harmlessness. Id., 18. “[T]he proper harmless error inquiry is whether the result of the trial may have been different had the state not violated the rule.” Id., 19. Williamson did not, however, establish the appropriate standard applicable to that inquiry. We therefore turn first to determine whether, in the present case, the state must show that the nonproduction of Simmons’ tape recorded statement was harmless beyond a reasonable doubt or must show that it is more probable than not that the defendant was not prejudiced.

In Williamson, we noted that our rules contained in Practice Book §§ 752 and 755 are patterned on the Jencks Act, 18 U.S.C. § 3500, and that we consequently look to federal case law for guidance when claims are raised under these sections. Id., 13. “In general, because a Jencks violation is not of constitutional dimension; see United States v. Augenblick, [393 U.S. 348, 356, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969)]; Palermo v. United States, 360 U.S. 343, 345, 79 S. Ct. 1217, 3 L. Ed. 2d 1287 (1959); State v. Myers, supra, 469 n.7; the government is not required to establish harmlessness beyond a reasonable doubt. See United States v. Wallace, [848 F.2d 1464, 1471 (9th Cir. 1988)] .... This principle, however, is not absolute. As the court observed in United States v. Augenblick, supra, 356, ‘[i]t may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right.’ See also Palermo v. United States, supra, 362-63 (Brennan, J., concurring) .... Thus, ‘the failure to provide material to which the defendant is entitled under the Jencks Act may adversely affect a defendant’s ability to cross-examine government witnesses and thereby infringe upon his constitutional right of confrontation.’ Krilich v. United States, [502 F.2d 680, 682 (7th Cir. 1974), cert. denied, 420 U.S. 992, 95 S. Ct. 1429, 43 L. Ed. 2d 673 (1975)]. . . . ” (Citations omitted.) State v. Williamson, supra, 20-21.

In Williamson, we indicated that under the facts there presented, we would not have been unwarranted in “strictly applying” the harmless error doctrine to require the state to prove harmlessness beyond a reasonable doubt. Id., 23. We relied on several factors that indicated that Williamson’s opportunity to impeach the state’s witness was so impaired that the nonproduction of that witness’ pretrial statement violated his constitutional right to confront the witnesses against him: “This is not a case in which either the trial court or a reviewing court has access to the unproduced material. . . . Further . . . this is not a case in which the declarant read and adopted a counterpart transcript within a short time after making the statement. . . . Moreover, the defendant’s conviction obviously rested on [the testimony of the witness whose pretrial statement had been destroyed].” Id., 22-23.

The present case is clearly distinguishable from Williamson. Prior to the commencement of trial, Simmons gave two tape recorded statements to the New Haven police, both of which were subsequently transcribed. The tape of the second statement was preserved. At issue in this case, therefore, is the first tape recorded statement that was not preserved. It is significant that Simmons read and signed the transcription of his first statement only three days after he had given that statement. Cf. id., 23 (witness did not review the transcript of her statement until the first day of trial, some seven months after she had made the statement). Further, the defendant’s conviction was not based solely on the testimony of Simmons. Rather, several witnesses provided circumstantial evidence that collectively resulted in the defendant’s conviction. Cf. id. (defendant’s conviction obviously rested on the testimony of the victim-witness whose tape recorded statement had been destroyed). Under these circumstances, we conclude that the state’s failure to produce Simmons’ tape recorded statement did not rise to the level of a denial of the defendant’s right to confrontation. Accordingly, the standard to be applied to the harmless error inquiry is whether the state has met its burden of proving that it is more probable than not that the state’s nonproduction of Simmons’ statement was harmless.

In applying the balancing test set forth previously, we must weigh the state’s culpability in the destruction of Simmons’ tape recorded statement against the prejudice suffered by the defendant as a result of that destruction to determine whether the trial court abused its broad discretion in denying the defendant’s motion to strike. Id., 16; State v. Shaw, supra, 386. The New Haven police deliberately, though not in bad faith, destroyed the first tape recorded statement given by Brian Simmons. Turning to the question of prejudice, we first note that the defendant had access to numerous other sources for use during his cross-examination of Simmons. Where there are critical inconsistencies between trial testimony and prior statements, and between the prior statements themselves, a defendant may be prejudiced by the absence of the tape recording. See State v. Williamson, supra, 24-25. Where all indications are, however, that the witness has given consistent statements, we have been reluctant to find that the defendant suffered prejudice. State v. Palmer, 206 Conn. 40, 59, 536 A.2d 936 (1988); State v. Mullings, supra, 10; State v. Myers, supra, 469. The trial court in the present case found no variation in Simmons’ recollection of the events that occurred on the night of Meyer’s murder. Upon review, we likewise find no inconsistencies among the transcription of Simmons’ first statement, the transcription of his second statement for which the tape was preserved, the police report made at the time of his first statement, and his trial testimony. Cf. State v. Williamson, supra, 24-25 (numerous inconsistencies between prior statements and trial testimony was a major factor in determining that the state had not proven harmlessness of nondisclosure). We also find significant the fact that Simmons reviewed the transcript of his statement only three days after he had given the statement. See State v. Santangelo, supra, 589 (typed transcript signed five days after tape recorded statement); State v. Milum, 197 Conn. 602, 617-18, 500 A.2d 555 (1985) (typewritten copy reviewed and signed by witness shortly after tape recorded statement); cf. State v. Williamson, supra, 25 (fact that transcript of tape was not reviewed by witness-victim until several months after the alleged crime significant factor in determining that state had not proven harmlessness of nondisclosure).

The defendant does not point to specific inconsistencies, but rather argues that the trial court’s finding of no prejudice to the defendant was erroneous because: (1) Simmons was unable accurately to perceive and remember events that occurred on the night of Meyer’s murder and three days later when he attested to the accuracy of the transcription; and (2) there existed numerous blanks in the transcription of Simmons’ first statement. During cross-examination, the defendant elicited that, on the night of Meyer’s murder, Simmons was taking antabuse, a drug used by alcoholics to control their drinking. Despite warnings to the contrary, Simmons ingested at least one can of Colt 45 beer while on this medication. While we do not dispute the defendant’s claim that Simmons’ recollection of the events on the night in question might have been affected by this ingestion, his statements and trial testimony were nonetheless consistent with one another. The credibility of Simmons’ testimony, as affected by the medication and the beer, was for the jury to determine. See State v. McKnight, 191 Conn. 564, 571-72, 469 A.2d 397 (1983). Further, Simmons attested to the accuracy of the transcription of his first statement three days after he had given that statement. It was within the trial court’s broad discretion to determine that, despite the circumstances, Simmons was capable of assessing the accuracy of that transcription. As to the blanks in the transcription of Simmons’ first statement, the police officers testified at the pretrial hearing that blanks indicate either a pause or a section of tape that is inaudible and cannot be transcribed. The trial court concluded that the blank spaces did not occur at any significant locations within the context of the statement, a finding with which we do not disagree. Thus, with respect to the pauses and inaudible words, the unavailability of the tape did not prejudice the defendant. Accordingly, we conclude that the trial court did not abuse its discretion in refusing to strike the trial testimony of Simmons.

II

The defendant next claims that the court’s instructions in defining reasonable doubt were erroneous because of the inclusion of the following sentence: “What [the law] does require is that the guilt be established as charged beyond a reasonable doubt which is one founded upon the evidence, one which you as reasonable and prudent men and women would be willing to act upon in the more weightier and important mat ters relating to your own affairs." (Emphasis added.) The defendant argues that the inclusion of this language in the charge to the jury had the effect of shifting, diluting and/or reversing the state’s constitutional burden to prove a defendant guilty beyond a reasonable doubt.'

The defendant concedes that he never excepted to this portion of the charge, but seeks review of this claim pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We recently restated the Evans guidelines for dealing with alleged constitutional violations that are raised for the first time on appeal. State v. Golding, 213 Conn. 233, 238-42, 567 A.2d 823 (1989). In Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40. We conclude that the defendant’s fundamental constitutional right that the state establish his guilt beyond a reasonable doubt; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); was not violated.

This court was faced recently with this identical claim of error. State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989). In Smith, we disapproved of the instruction here at issue, but concluded that, according to federal precedent, it does not “constitute reversible error, let alone constitutional error in an otherwise adequate charge upon reasonable doubt.” Id., 150. This conclusion is dis-positive of the defendant’s claim of error. The defendant presents no other criticism of the trial court’s charge on the subject of reasonable doubt, and from our review we find it sufficient as a whole to define the standard of proof necessary for conviction in a criminal ease. Accordingly, although we disapprove of the portion of the instruction under attack, we conclude that its inclusion does not rise to the level of a constitutional violation.

There is no error.

In this opinion Peters, C. J., and Santaniello, J., concurred.

Shea, J., with whom Covello, J., joins,

concurring. Although I agree with the result reached by the majority, I continue to adhere to the view, expressed in my dissenting opinion in State v. Williamson, 212 Conn. 6, 29-30, 562 A.2d 470 (1989), that “in respect to nonconstitutional rights of an accused . . . he bears the burden of proving prejudice by showing that the outcome of the trial would probably have been different if the nonconstitutional infraction had not occurred.”

In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), reh. denied, 488 U.S. 1051, 109 S. Ct. 885, 102 L. Ed. 2d 1007 (1989), a case involving the intentional but not malicious destruction by the police of physical evidence that, if preserved, might have exonerated the defendant, the United States Supreme Court held that, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Similarly, the failure of the police in this case to preserve the tape recordings of the witnesses’ statements, even though it is possible that their contents might have deviated from the testimony at trial, is not a constitutional infringement, but is based wholly upon General Statutes § 54-86b and Practice Book § 752.

Because the failure to preserve the tapes in this case did not violate any constitutional right, we should follow the rule applied to nonconstitutional breaches of a defendant’s right to disclosure. When such a nondisclosure occurs, the defendant bears the burden of showing that the outcome of the trial would probably have been different if the undisclosed evidence had been made available. United States v. Bagley, 473 U.S. 667, 681-82,105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id., 682. There is no basis for distinguishing in respect to the burden of proving prejudice the failure to disclose tape recordings that might have been helpful to the defense from the nondisclosure of other evidence that the state should have preserved.

Accordingly, I concur in the result.

       General Statutes 5 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       “[General Statutes] Sec. 53a-111. arson in the first degree: class a felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied . . . .”

       General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.”
      General Statutes § 53a-125b (a) provides: “A person is guilty of larceny in the sixth degree when he commits larcency as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”

       “[General Statutes] Sec. 54-86b. right of accused to examine statements. (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. •
      “(b) If the prosecution fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”

       “[Practice Book] Sec. 752.--production following testimony
      “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”
      “[Practice Book] Sec. 755.--failure to comply with order
      “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”
      Practice Book § 749 defines “statement” as “(1) A written statement made by a person and signed or otherwise adopted or approved by him; or (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously -with the making of such oral statement.”

       At the time the trial court made its ruling, the most recent decision concerning police destruction of witnesses’ taped statements was State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988). The trial court thus relied on this decision in making its ruling. During the pendency of the defendant’s appeal, however, we heard on certification the appeal from the Appellate Court’s decision in Williamson. State v. Williamson, 212 Conn. 6, 562 A.2d 470 (1989), and its impact on the present case will be discussed infra.

       The following is a summary of the relevant trial testimony given by each of the five witnesses. Margo Hudson, a patron in the Yale Bowl Cafe on the night of March 6,1987, testified that the defendant spoke with Meyer in the bar on March 6,1987, and left arm-in-arm with her at approximately 2 a.m. Willie Kirkland, Meyer’s landlord, testified that he heard Meyer and an adult male walking upstairs toward Meyer’s apartment at approximately 2 a.m. He further testified that approximately one half hour later, he was awakened by a noise from Meyer’s bedroom that sounded like a body falling out of a bed. Brian Simmons, who was babysitting for Meyer’s children in her apartment, testified that, sometime between 12:30 a.m. and 2 a.m., he was awakened and heard Meyer crying in her bedroom and talking with a black man who had “a smooth educated voice.” Simmons identified the defendant's voice as one of two possible voices that he had heard. Virginia Hagberg testified that she was walking her dog at 5:15 a.m. on March 7,1987, when she found some of the contents of Meyer’s purse strewn along the street. Finally, Eloise Lambert, Edward Lambert’s wife, testified that the defendant had stated in her presence that the source of the blood stains on the t-shirt he had worn the night of the alleged crimes was a cut that he had sustained at work. The blood stains, according to forensic experts, however, were consistent with Meyer’s blood and inconsistent with that of the defendant.

       Practice Book § 4183 provides in relevant part: “The supervision and control of the proceedings on appeal shall be in the supreme court from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete, correct or otherwise perfect the trial court record for presentation to the supreme court shall be made to it. The court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal.”

       The trial court characterized the conduct of the New Haven police as “bad faith” in reliance on the definition given that term by the Appellate Court in State v. Williamson, 14 Conn. App. 108, 117, 552 A.2d 815 (1988). We altered the Appellate Court’s definition of “bad faith” in the context of General Statutes § 54-86b and Practice Book § 752 violations; State v. Williamson, 212 Conn. 6, 15-16, 562 A.2d 470 (1989); and thus the label of “bad faith” given the police conduct by the trial court is not dispositive of this issue.

       The defendant argues that plain error review is appropriate because we have in the past stated that a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures or to follow a procedural rule is plain error. State v. Pina, 185 Conn. 473, 482,440 A.2d 962 (1981). We note, however, that the express language of the disclosure provisions provides that in order for the mandates of General Statutes § 54-86b and Practice Book § 752 to apply and thereby compel discovery, the defendant must make a motion to the trial court for production of the witness’ statement.

       The defendant claims that we must also determine whether the trial court’s pretrial ruling concerning the prejudice to the defendant by the destruction of the tapes of the five witnesses was error. At the pretrial hearing, however, the witnesses testified only about the procedures involved in the making and adoption of their statements. No substantive testimony was given. Our case law clearly indicates that the substance of the witnesses’ trial testimony is crucial to the determination of whether the defendant suffered prejudice as a result of the destruction of the investigatory tapes. State v. Williamson, 212 Conn. 6, 24-25, 562 A.2d 470 (1989). The anticipated substance of the trial testimony was not presented to the court during the pretrial hearing.

         The state argues that, absent bad faith, the burden should rest with the defendant to prove the harmfulness of this error. We refuse to adopt the position espoused by the state. Given the fact that the destruction or preservation of the investigatory tapes are totally within the state’s control, we will not disturb our prior conclusion that the burden properly shifts to the state to prove the harmlessness of the state’s nondisclosure.

       We in fact did not apply the strict standard, however, because we determined that even under the more probable than not standard the state had failed to prove the harmlessness of the state’s nondisclosure. State v. Williamson, 212 Conn. 6, 23, 562 A.2d 470 (1989).

       According to the New Haven police officers who testified at the preliminary hearing, when Simmons’ first statement was recorded and transcribed, “[tjhere was more or less an informal policy that [tape recorded] statements . . . would be kept.” The officers did not know, however, if this “informal” policy had been articulated to each and every member of the police department. In any event, the taped statement given by Brian Simmons was intentionally erased so that the tape could be reused for other police business. A written policy was not produced by the department until the Appellate Court’s reversal in State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988), of a conviction based upon the department’s destruction of tapes.

       The portion of the charge defining reasonable doubt was as follows: “Now a reasonable doubt means this. It is a doubt for which a reasonable man or woman can give a valid reason. The burden of proving his guilt beyond a reasonable doubt requires the State to produce sufficient evidence to create in your minds a strong and abiding conviction of the guilt of the defendant. In other words, it is the law that the evidence must be so sufficient that it would leave no room in your minds for any reasonable hypothesis of the innocence of the accused. A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise, speculation, conjecture or an imaginary doubt. A reasonable doubt is not a captious or a frivolous doubt, nor is it a doubt which is raised by the ingenuity of counsel or by a juror and unwarranted by the evidence. Nor is it a doubt prompted by sympathy for the defendant. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or the lack of evidence. Absolute certainty in the affairs of life is almost never attainable and the law does not require absolute certainty to authorize a conviction. What it does require is that the guilt be established as charged beyond a reasonable doubt which is one founded upon the evidence, one which you as reasonable and prudent men and women would be willing to act upon in the more weightier and important matters relating to your own affairs. It is proof wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion.”

        Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 99 L. Ed. 150 (1954), reh. denied, 348 U.S. 932, 75 S. Ct. 334, 99 L. Ed. 731 (1955) (despite the trial court’s charge to the jury that reasonable doubt was “ ‘the kind of doubt . . . which you folks in the more serious and important affairs of your own lives might be willing to act upon,’ ” the United States Supreme Court concluded that “taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury”); United States v. Nuccio, 373 F.2d 168, 175 (2d Cir.), cert. denied, 387 U.S. 906, 87 S. Ct. 1688, 18 L. Ed. 2d 623 (1967) (in reviewing an instruction defining reasonable doubt in terms of acting, the Second Circuit Court of Appeals found it “impossible to believe, in the absence of any evidence such as a request for further instructions, that jurors would retain such a nuance in their minds and be significantly influenced by it”).


author: Peters, C. J.

text:
    Stephen Felia v. Town of Westport
    (13873)
    Peteks, G. J., Callahan, Glass, Covello and Hull, Js.
    Argued February 8
    decision released March 13, 1990

      Michael S. Lynch, for the appellant (defendant).

      Gerald F. Stevens, with whom was Kristin Dorney, for the appellee (plaintiff).
   Peters, C. J.

This appeal concerns the construction of that portion of General Statutes § 7-433C, the Heart and Hypertension Act, that entitles disabled members of municipal police and fire departments to receive “compensation and medical care in the same amount and the same manner as that provided under chapter 568,” the Workers’ Compensation Act. On the basis of stipulated facts, a workers’ compensation commissioner determined that the plaintiff, Stephen Felia, was entitled to an award for permanent partial impairment of his cardiovascular system. The commissioner’s determination was upheld by the compensation review division, which expressly rejected the contention of the defendant, the town of Westport, that § 7-433c precluded such an award. The defendant appealed to the Appellate Court and we transferred that appeal here pursuant to Practice Book § 4023. We find no error.

As stipulated, the plaintiff was a regular member of the paid municipal fire department of the defendant town of Westport, who had passed the requisite physical examination at the time of his employment. Because the plaintiff thereafter manifested symptoms of heart disease and hypertension, a compensation commissioner on April 29, 1985, awarded him benefits under § 7-433c and related medical expenses. Consequently, the plaintiff qualified for a disability retirement from the Westport fire department on September 1, 1985, and has received a disability pension since that time.

A further medical examination, on April 21, 1986, found the plaintiff to have a 17 percent permanent impairment of his cardiovascular system. On this basis, which the defendant did not contest factually, the compensation commissioner ordered the payment of a supplemental award, under General Statutes § 31-308 (d), of “132.6 weeks of specific benefits at his compensation rate together with any appropriate adjustments and subject to lawful limitations.” The total amount payable to the plaintiff, pursuant to this supplemental award and to his disability pension, does not exceed 100 percent of the weekly compensation being paid to comparable firefighters in the Westport fire department. See General Statutes § 7-433b (b).

In its appeal to the compensation review division, the defendant contended that § 7-433c limits the scope of a plaintiffs compensation for cardiovascular impairment to the recovery of economic loss, and thus precludes, as a matter of law, an award of special benefits under § 31-308. The review division disagreed with this contention, which the defendant renews in its appeal to this court. We find no error.

The history of § 7-433c has often been recounted and needs no further exegesis. As presently enacted, the statute entitles municipal police and fire department personnel, who develop cardiovascular disease at some time subsequent to their initial employment, to recover appropriate benefits without a showing that they incurred the disease in the line of duty. The statute expressly refers to the provisions of chapter 568, the Workers’ Compensation Act, as the procedural vehicle for the administration of § 7-433c benefits. Morgan v. East Haven, 208 Conn. 576, 580-81, 546 A.2d 243 (1988); Bakelaar v. West Haven, 193 Conn. 59, 67-68, 475 A.2d 283 (1984).

The question before us concerns the scope of the § 7-433c cross reference to chapter 568. The defendant does not contest the proposition that a worker who proves a causal connection between his cardiovascular disability and his assigned duties is entitled to special benefits in addition to pension rights. The defendant contends, however, that § 7-433c intended to confer a more limited recovery upon its beneficiaries. The relevant statutory language affords a § 7-433c claimant the right to “receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such . . . disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment.”

In construing § 7-433c, our task is to discern the apparent intent of the legislature, first by an analysis of the relevant statutory language at issue and thereafter, in the event of any latent ambiguity, by an examination of the statute’s legislative history and the purpose it was designed to serve. State v. Grullon, 212 Conn. 195, 199-200, 562 A.2d 481 (1989); Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 486, 547 A.2d 528 (1988); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). On its face, the language “compensation ... in the same amount and the same manner” suggests that, once § 7-433c coverage is established, the measurement of the plaintiff’s benefits under this statute is identical to the benefits that may be awarded to a plaintiff under chapter 568. We have regularly so held; Collins v. West Haven, 210 Conn. 423, 429-30, 555 A.2d 981 (1989); Lambert v. Bridgeport, 204 Conn. 563, 566, 529 A.2d 184 (1987); Maciejewski v. West Hartford, 194 Conn. 139, 146, 480 A.2d 519 (1984); Bakelaar v. West Haven, supra, 68-69; as has the Appellate Court. Lundgren v. Stratford, 12 Conn. App. 138, 144, 530 A.2d 183 (1987); Middletown v. Local 1703, 1 Conn. App. 58, 61, 65, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984) . Such a construction of § 7-433e is consistent with its legislative history. See especially 20 H.R. Proc., Pt. 5, 1977 Sess., pp. 1816-17, remarks of Representative Samuel Gejdenson. The compensation review division’s rejection of the defendant’s claim of error thus finds considerable support in our existing law.

To counter this plausible construction of § 7-433c, the defendant relies on the phrase “economic loss” in the statute’s preamble. The preamble notes the public interest in providing protection to municipal firefighters and police officers because of their occupational risk of developing cardiovascular disease. In light of these special occupational hazards, the preamble states the desirability of providing protection for such municipal employees “against economic loss resulting from disability or death caused by hypertension or heart disease.” According to the defendant, the preamble’s emphasis on “economic loss” is a limitation on the subsequent substantive provision, in § 7-433c, which describes the benefits it confers as “compensation . . . as provided under chapter 568.” The defendant would have us read “compensation” as “compensation against economic loss” so as to exclude all special benefits under § 31-308.

There are a number of answers to this contention. On the particular facts of this case, the “special” benefits awarded to the plaintiff were based upon § 31-308 (d). In contrast to the specific benefits of § 31-308 (b), which relate weekly benefits to the impairment or loss of designated body parts, § 31-308 (d) confers discretion on the commissioner to award “such compensation as he deems just for . . . the disabling effect of the loss of or loss of function of the organ involved and the necessity of the . . . complete functioning of the organ with respect to the entire body . . . . ” In considering “the disabling effect” of this plaintiffs 17 percent cardiovascular impairment, the commissioner may take into account the plaintiffs inability to reenter the labor market, and so may indeed be providing compensation for economic loss. See J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) p. 119. The record does not disclose how the commissioner arrived at the amount of the plaintiffs § 31-308 (d) award. The defendant has not, however, challenged either the amount of the award or the manner of its calculation, and therefore has failed to establish a record for the contention that the award is unrelated to the plaintiff’s economic loss.

Even if we were to overlook this inadequacy in the record, the defendant’s contention would be unpersuasive. It bears emphasis that all of § 31-308 is denominated “compensation,” the very term that the legislature chose as its referent for incorporating chapter 568 as the measure of the § 7-433c benefits for a heart or hypertension disability. Construing the two statutes conjointly, as we must, when they relate to the same subject matter; In re Ralph M., 211 Conn. 289, 304-305, 559 A.2d 179 (1989); Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980); we conclude that the legislature intended “economic loss” to include a diminution of earning capacity, and authorized such a diminution to be measured by the appropriate compensatory benefits provided in chapter 568. The provision for a benefits “cap” in § 7-433b (b) further supports this conclusion because, absent access to special compensatory benefits to supplement a pension, a disabled employee’s total award would be unlikely to exceed the salary of his working counterpart.

The defendant maintains, however, that we came to a contrary conclusion in footnote 13 in Morgan v. East Haven, supra, 585. We disagree. As the plaintiff notes, the issue in Morgan was whether, after the death of a § 7-433c plaintiff and his widow, their respective estates were entitled to receive the remaining weeks of compensation awarded for a 75 percent permanent cardiovascular impairment. Id., 582-83. Although we held that § 7-433c restricted coverage to the employee and his dependents, and hence did not authorize a recovery for the estates, our opinion was premised on the uncontested right of the employee himself, and of his widow, to recover precisely the kind of award that the defendant questions in this case. Id., 584-85 and n.10. Furthermore, our judgment in Morgan concurred in the construction of § 7-443c that the compensation review division had relied upon in denying recovery to the estates in that case. We conclude, in the present case as well, that the decision of the compensation review division is a reasonable construction of the relationship between § 7-433c and chapter 568 that warrants respect as the considered judgment of the governmental agency vested with primary authority for enforcing our workers’ compensation statutes. See Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599, 522 A.2d 771 (1987); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975).

There is no error.

In this opinion the other justices concurred.

       General Statutes § 7-433c provides: “benefits for policemen or firemen DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR HEART DISEASE. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       General Statutes § 7-433b (b) provides in relevant part that “the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c . . . shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement.”

       The footnote at issue states: “The other major type of economic loss is costs for medical care; see 2 F. Harper & F. James, The Law of Torts (1956) § 25.8, p. 1816; 22 Am. Jur. 2d, Damages § 1; which also are compensable under General Statutes § 7-433c. Loss of a body part, although compensable by money damages, is not an economic loss under § 7-433e.” Morgan v. East Haven, 208 Conn. 576, 585 n.13, 546 A.2d 243 (1988).


text:
    Anthony Costello, Jr. v. Town of Fairfield
    (13782)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued February 8
    decision released March 13, 1990

      Donal C. Collimore, assistant town attorney, for the appellant (defendant).

      Michael Sucoll, for the appellee (plaintiff).
   Peters, C. J.

This appeal concerns the relationship between various provisions of the Heart and Hypertension Act, General Statutes §§ 7-433c and 7-433b (b) which provide and limit the benefits available to disabled members of municipal police and fire departments. On the basis of stipulated facts, a workers’ compensation commissioner determined that § 7-433c entitled the plaintiff, Anthony Costello, Jr., to an award of “specific indemnity” for his permanent partial cardiovascular disability, despite the ceiling on pension and workers’ compensation benefits prescribed by § 7-433b (b). Upon an appeal of this determination by the defendant, the town of Fairfield, the compensation review division affirmed the commissioner’s finding and award. The defendant appealed to the Appellate Court and we transferred the appeal here pursuant to Practice Book § 4023. We find no error.

The commissioner made the following findings of fact, in accordance with the parties’ stipulation. The plaintiff was a regular member of the police department of the defendant town, and had passed the required physical examination at the time of his employment. As of November 19, 1982, however, the plaintiff had a permanent partial disability of 30 to 35 percent of his cardiovascular system. The plaintiff nonetheless returned to work as a police officer from November 19, 1982, to October 1, 1984, when he retired. During his period of reemployment, the plaintiff received his regular salary as a police officer, but no compensation for his permanent partial disability.

The plaintiff received an original award of benefits under § 7-433c on April 14,1983, that was reaffirmed on May 8, 1987. In the instant proceedings, the commissioner held that the plaintiff was entitled to a supplemental award of “specific indemnity” for the period of his reemployment, despite the provision in § 7-433b (b) that imposes limits on the total award that a § 7-433c beneficiary may receive. The defendant challenged this conclusion of law in its appeal to the compensation review division. The compensation review division affirmed the finding and award of the commissioner.

The defendant claims on appeal that the compensation review division erred because: (1) § 7-433c does not authorize an award of “specific indemnity” benefits; and (2) § 7-433b (b) imposes a ceiling on any award of benefits under § 7-433c. We decline, however, to consider the first claim, because the compensation review division expressly noted that the defendant had not preserved “any issue as to whether the trial commissioner had jurisdiction to award specific indemnity benefits under sec. 7-433c as a matter of law.” Only the defendant’s second claim is properly before us.

It is uncontested that § 7-433b (b) imposes a ceiling on a disabled policeman’s award of “specific indemnity” benefits under § 7-433c at the time of his retirement. The subsection provides, in relevant part, that “cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c . . . shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement.” The defendant argues that this subsection imposes a ceiling even on special compensation that supplements a regular salary during a period of employment, while the plaintiff contends that the subsection limits special compensation only when it is awarded to supplement a retirement pension.

In order to evaluate these disparate constructions of § 7-433b (b), it is useful to clarify what is not at issue. The plaintiffs cardiovascular disability entitles him to coverage under § 7-433c for the benefits therein conferred. In enacting § 7-433c, the legislature intended the measurement of a claimant’s benefits to be identical to the benefits that may be awarded to a claimant under chapter 568, the Workers’ Compensation Act. Felia v. Westport, 214 Conn. 181, 185-86, 571 A.2d 89 (1990), and cases cited therein. Accordingly, the use of the term “compensation” in § 7-443c, as a general matter, incorporates the compensation benefits provided in General Statutes § 31-308. Id., 187-88. Notwithstanding these general principles, in enacting § 7-433b (b), the legislature intended to limit the total payments to a retired municipal police officer to the amount that was being paid to his working counterpart. Id., 188; Lambert v. Bridgeport, 204 Conn. 563, 569, 529 A.2d 184 (1987).

The defendant argues that the benefits “cap” imposed by § 7-433b (b) includes all special indemnity benefits, regardless of the time period for which they are awarded, because subsection (b) expressly limits “the cumulative payments . . . for compensation and retirement or survivors benefits under section 7-433c” (emphasis added) to the weekly compensation of comparable police officers. The compensation review division was, indeed, mistaken when it described the ceiling on cumulative payments as limited to a claimant’s retirement and survivor benefits. In our construction of § 7-433b (b), we strive to attach independent meaning to every phrase contained in a legislative enactment. Rawling v. New Haven, 206 Conn. 100, 112, 537 A.2d 439 (1988); DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985). It is, accordingly, significant that the legislature included “compensation” as a specific component to be considered in comparing the cumulative payments of a § 7-433c beneficiary and a healthy working police officer. In determining what the legislature intended to encompass by “compensation” in § 7-433b, we are, furthermore, bound to search for a construction of that term that is consistent with its usage in § 7-433c, since both statutes relate to the same subject matter. Felia v. Westport, supra, 187-88, and cases therein cited. In Felia v. Westport, supra, 187-88, we concluded that “compensation” in § 7-433c includes special compensatory benefits, as provided in § 31-308. It follows that “compensation” in § 7-433b (b) also includes the “specific indemnity” that the plaintiff was awarded in this case.

The difficulty with the defendant’s argument arises, however, upon further examination of the comparative standard that § 7-433b invokes to determine whether a § 7-433c beneficiary has exceeded the statutory ceiling imposed by the legislature. Subsection (b) might have compared such a beneficiary’s payments with the salary actually paid to any comparable police or fire officer who was working without the handicap of a cardiovascular disability. Instead, the legislature chose a narrower basis for comparison: “the weekly compensation being paid . . . to members of such department in the same position which was held by such member at the time of his death or retirement." (Emphasis added.) Because the Heart and Hypertension Act is remedial legislation, we should not ourselves enlarge upon the limitations it imposes on recovery. See Kinney v. State, 213 Conn. 54, 59, 566 A.2d 670 (1989); Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). The legislative history of § 7-433b supports a literal construction of its limitation, because it too refers to the inequity of providing greater heart and hypertension benefits for an individual when he was “going out . . . than when he was actually working.” 20 H.R. Proc., Pt. 5, 1977 Sess., p. 1816, remarks of Representative Samuel Gejdenson; see also 20 S. Proc., Pt. 8, 1977 Sess., p. 3363, remarks of Senator James J. Murphy, Jr. The compensation review division therefore correctly concluded that the plaintiff in this case was not barred from receiving a supplemental award of “specific indemnity” benefits.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 7-433c provides: “benefits for policemen or firemen DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR HEART DISEASE. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”
      General Statutes § 7-433b (b) provides in relevant part that “the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c . . . shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement.”

       The record before us in this case does not indicate the precise statutory basis for the commissioner’s award of “specific indemnity benefits.”

       Representative Samuel Gejdenson, in explaining the purpose of Public Acts 1977, No. 77-520, § 2, later codified as General Statutes § 7-433b (b), stated that “[i]n some cases it was found that through Heart and Hypertension and retirement plan, an individual could receive more money going out on Heart and Hypertension than when he was actually working.” 20 H.R. Proc., Pt. 5,1977 Sess., p. 1816. Senator James J. Murphy, Jr., echoed this sentiment, stating that “[ujnder some plans, between Workmen’s Compensation and other programs that are available to these employees in municipalities, they receive, if they’re out on disability, more than 100 percent. This puts a cap on it . . . .” 20 S. Proc., Pt. 8, 1977 Sess., p. 3363.