author: Santaniello, J. Covello, J., with whom Hull, J.,

text:
    State of Connecticut v. Freddy Payne
    (13998)
    Peters, C. J., Covello, Hull, Borden and Santaniello, Js.

      Argued February 19
    decision released May 21, 1991

      Donald D. Dakers, public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant appeals from the judgment of conviction of the crimes of burglary in the third degree with a firearm in violation of General Statutes § 53a-103a (a), robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), larceny in the first degree in violation of General Statutes § 53a-122 (a) (2), and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). The defendant claims that the trial court improperly: (1) allowed the state, in its case-in-chief, to introduce evidence of the defendant’s commission of a subsequent crime in order to prove identity; (2) allowed one of the victims, Allyson Brownlow, to testify as to her pretrial identification of the defendant while he was being arraigned on unrelated charges; (3) prohibited the defendant from cross-examining Allyson Brownlow on the effect that her observation of photographs of the defendant, mailed to her by the defendant prior to trial, had on her in-court identification of the defendant; (4) excluded the testimony of Michelle Gary as to incriminating statements made to her by the defendant’s brother, Donald Payne; and (5) excluded evidence that a third party committed the crimes charged. We conclude that the trial court improperly allowed evidence of the defendant’s commission of a subsequent crime in order to prove identification, and that this improper admission constituted harmful error. As to the other issues, we affirm the trial court’s rulings. Accordingly, we reverse the conviction, and remand the case for a new trial.

The jury might reasonably have found the following facts. On November 20,1988, the victims, Allyson and James Brownlow, resided in a single family, three story house located at 683 Prospect Street in New Haven. At approximately 6 a.m., they were awakened by two black men with guns who had burst through their bedroom door and turned on the lights. The first man went to Mr. Brownlow’s side of the bed and pointed a gun at him, while the second man, identified as the defendant, went to Mrs. Brownlow’s side of the bed and pointed a gun at her. The Brownlows were ordered to roll over onto their stomachs in bed. As she lay on her stomach, Mrs. Brownlow’s face was turned so that she could observe the defendant. The defendant kept his gun pointed at Mrs. Brownlow while he rifled through the dresser drawers on her side of the bed and removed various pieces of jewelry. During part of this time, the defendant was a foot to a foot and a half away from Mrs. Brownlow. During the entire time spent in the Brownlows’ bedroom, the defendant wore a fiberglass painter’s mask covering his mouth and the lower part of his nose. At one point, when the defendant’s partner became agitated because the Brownlows did not have enough cash in the house, Mrs. Brownlow sat up in bed, took off her engagement ring and handed it to the defendant to try to calm the partner. Mrs. Brown-low got a “very good look” at the defendant as she handed the ring to him, and then she lay on her side and continued to observe him. After ten to fifteen minutes had elapsed, the defendant and his partner left the victims’ second floor bedroom, went downstairs and left the house through the kitchen door. Mr. Brown-low phoned the police. After the police arrived, it was discovered that a locked kitchen window on the first floor had been forced open.

The jury found the defendant guilty of the crimes charged, and he was thereafter sentenced to a total effective term of twenty-five years imprisonment. The defendant appealed to this court pursuant to General Statutes § 51-199 (b) (3).

I

The defendant first claims that the trial court improperly permitted the state, in its case-in-chief, to introduce evidence of the defendant’s commission of a subsequent crime in order to prove identity. We agree that the admission of this evidence was both improper and harmful.

The rules governing the admissibility of evidence concerning the defendant’s commission of a subsequent unconnected crime are well established. Such evidence is inadmissible to prove the defendant’s bad character or propensity for criminal behavior. State v. Crosby, 196 Conn. 185, 190, 491 A.2d 1092 (1985); State v. Carsetti, 12 Conn. App. 375, 380, 530 A.2d 1095, cert. denied, 200 Conn. 809, 537 A.2d 77 (1987). “ ‘ “Evidence of other misconduct, however, ‘may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity’; State v. Ibraimov, [187 Conn. 348, 352, 446 A.2d 382 (1982)]; or an element of the crime. State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982).” State v. Braman, 191 Conn. 670, 675-76, 469 A.2d 760 (1983); State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980).’ State v. O’Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986).” State v. Sierra, 213 Conn. 422, 428-29, 568 A.2d 448 (1990). “To be admitted under one of these exceptions, the evidence must satisfy a two-pronged test: ‘ “First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions.” State v. Braman, [supra, 676]. Second, the probative value of the evidence must outweigh its prejudicial effect. Id.’ State v. Mandrell, 199 Conn. 146, 151, 506 A.2d 100 (1986).” State v. Sierra, supra, 429.

Outside the presence of the jury, the state offered the testimony of Detective Frederick Hurley of the New Haven police department concerning his December 16, 1988 arrest of the defendant for attempted burglary. The trial court overruled the defendant’s objection to Hurley’s testimony and permitted him to testify before the jury. Hurley testified that on December 16, 1988, at approximately 3 a.m., he and his partner were on surveillance in the vicinity of 470 Prospect Street and were dispatched to that address to investigate a report of a burglary in progress. Upon arriving at the scene, Hurley observed two black males huddled together on the front stoop of an apartment, with their backs to the street, directing their attention to the inner front door while the outer screen door was propped open by their bodies. The two men were identified as the defendant and Douglas Antrum. The defendant had in his possession a Playtex dishwashing glove, a white sock and an empty knife case. A knife was found next to the stoop. Antrum had in his possession a screwdriver and the right half of a toy pistol. Hurley found pry marks on the door frame around the lock. The occupants of 470 Prospect Street informed the police that they had been awakened by the sounds of their doorbell ringing and the front door knob being jiggled and shaken and, after looking outside and seeing the two men on the front stoop, they had called the police. Hurley testified that 470 Prospect Street is approximately two blocks from the Brownlow residence. He further testified that 470 Prospect Street is a two story apartment that is part of a “row house” consisting of approximately ten apartments connected in a row.

The trial court found that the proffered testimony of Hurley was “extremely material to the issue of identification.” The state has the burden to prove identity as one element of the crime alleged. State v. Perry, 195 Conn. 505, 521, 488 A.2d 1256 (1985). “ ‘The first threshold for the use of evidence of other crimes or misconduct on the issue of identity is that the methods used be “sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other.” [State v. Ibraimov, supra, 354].’ State v. Crosby, [supra, 190]. ‘ “Much more is required than the fact that the offenses fall into the same class. ‘The device used must be so unusual and distinctive as to be like a signature.’ ” State v. Ibraimov, supra, 354.’ State v. Mandrell, supra, 151-52. In order to determine if this threshold criterion for admissibility was met, we must examine the proffered evidence and compare it to the charged offenses.” State v. Sierra, supra, 430.

In making this comparison, the features common to both crimes must be sufficiently distinctive to warrant a belief that the same person committed both. State v. Ibraimov, supra. There should not be significant differences in the context and modus operandi of the crimes. See State v. Howard, 187 Conn. 681, 686, 447 A.2d 1167 (1982).

Hurley’s testimony reveals the following common features: both crimes involved burglaries, although the second one was an unsuccessful attempt; the Brownlow residence and the site of the second crime were approximately two blocks apart; private residences were involved in each burglary, although one was a single family home and the other was an apartment in a row house; both crimes were committed in the early morning hours, 3 a.m. and 6 a.m. respectively; the crimes occurred twenty-seven days apart; both crimes involved forced entry through a locked opening; and the defendant was described as wearing two layers of outerwear by witnesses to both crimes. Finally, both crimes were committed in such a manner, and at such a time, that confrontation with the home’s occupants would be likely. It is only this last common feature that can in any reasonable way be characterized as unique or distinctive, but we are not persuaded that this fact alone raises these two crimes to the level of uniqueness required by law. See State v. Murrell, 7 Conn. App. 75, 82, 507 A.2d 1033 (1986).

Even if we consider all the common features together, the pattern that emerges is not such a distinctive combination of circumstances and actions that a “signature” or “criminal logo” can be discerned. This is particularly true when the significant differences between these two crimes are recognized. In the Brownlow burglary, both perpetrators were armed with handguns. In the subsequent burglary, one perpetrator had one half of a toy gun, and the defendant may have had a knife. In the Brownlow burglary, the house was entered through a rear window facing a wooded back yard. In the subsequent burglary, entry was attempted through the front door, which was thirty feet away from and in plain view of Prospect Street. In the Brownlow burglary, the perpetrators adeptly managed to break in and remove numerous items from the downstairs without awakening the occupants. In the subsequent burglary, the perpetrators ineptly awakened the occupants by ringing their door bell and rattling their front door before they gained entry. In the Brownlow burglary, the defendant wore a fiberglass painter’s mask and his partner wore sunglasses. In the subsequent burglary, neither the defendant nor Antrum wore masks or concealed their facial features in any way, or carried any provisions for doing so. Mrs. Brownlow testified that, during the burglary, the defendant was not wearing noticeable gloves, although she could not tell if he was wearing “sheer” gloves. During the subsequent burglary, the defendant had in his possession a Playtex dishwashing glove.

The existence of significant differences between the two crimes, in combination with the fact that only one of the features common to both crimes, the confrontational nature of them, can be described as unique or distinctive, negates the inference that the person who committed one also committed the other. Consequently, the evidence of the subsequent burglary was not relevant to proving the defendant’s identity as the person who committed the Brownlow burglary. Such evidence was improperly admitted.

Our inquiry does not end, however, with the determination that the evidence was improperly admitted. The state argues that any error in the admission of this evidence of a subsequent crime was harmless. We disagree.

The defendant objected at trial to the admission of this evidence, but did not articulate any constitutional basis for his objection. “ ‘Because the defendant did not claim at trial that the error deprived him of a constitutional right, he bears the burden of proving its harmfulness.’ [State v. Conroy, 194 Conn. 623, 627, 484 A.2d 448 (1984)].” State v. Murrell, supra, 91. “ ‘ “The defendant must show that it is more probable than not that the erroneous action of the court affected the result. [State v. Ruth, 181 Conn. 187,196-97, 435 A.2d 3 (1980)]; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).” State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).’ State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988).” State v. Sierra, supra, 436-37.

In State v. Murrell, supra, the defendant was arrested for breaking into an automobile and removing a radio. At the trial, the state was permitted to present evidence of the defendant’s prior misconduct for the limited purpose of proving identity and common scheme. Although the Appellate Court concluded that it was error to have allowed this evidence for either purpose, it nonetheless held that this error was harmless, in light of the “otherwise substantial case upon which the jury could conclude that the defendant was the perpetrator of these offenses.” Id., 91.

The other evidence considered by the jury in Murrell included the testimony of the police officer who found the defendant holding the car stereo speakers and who chased the defendant for a brief period of time. The officer testified that he was able to see the defendant’s face several times at close range before and during the chase. Id. Furthermore, after the chase, the officer stopped a passing police cruiser and radioed a description of the suspect, including his height and clothing. Id., 77. Finally, the officer positively identified the defendant at trial. Id., 91. The defendant was apprehended only a short time after the incident in question, and the police then found the knobs from the stolen radio in the defendant’s jacket pocket. Id.

In the present case, by contrast, the other evidence upon which the jury could have concluded that the defendant was the perpetrator of the crimes was less substantial. In the absence of the subsequent crime evidence, the case turned upon the in-court and pretrial identifications of the defendant by Mrs. Brownlow, and the testimony of Mr. Brownlow regarding some gestures allegedly made by the defendant at the arraignment.

At trial, Mrs. Brownlow made an in-court identification of the defendant as the second man who had entered her bedroom and pointed a gun at her face. She testified that, during the twelve to fifteen minutes that the defendant was in the bedroom, she was “fixated on him” and that she was “extremely certain” that the defendant was the person in her bedroom, holding a gun to her face and rifling through her dresser. She testified that, during the time he was in her bedroom, she was able to get a very good look at the defendant’s eyes, cheekbones, the shape of his face, hair, ears and the general shape of his body.

Mrs. Brownlow testified that, at the time of the burglary, she noticed two distinctive features of the defendant, namely his pointed “widow’s peak” hairline and swollen eyelids. Unlike Murrell, however, these specific features were not described to the police in the initial description. On the contrary, Mrs. Brownlow told the police that she did not think she would be able to pick out either of the burglars from photographs and also that she “didn’t know if [she] wanted to pick him out at that time.”

The state further presented the testimony of Mr. and Mrs. Brownlow and Detective Leroy Dease of the New Haven police department concerning Mrs. Brownlow’s pretrial identification of the defendant at an arraignment approximately three weeks after the burglary. From that testimony, the jury reasonably could have found that on December 17,1988, Mrs. Brownlow identified the defendant while he was being arraigned on unrelated charges. On that date, Mr. and Mrs. Brown-low were brought to a courtroom by Dease to “see if they could identify” the person who committed the burglary. Approximately fourteen men, at least nine of whom were black, were brought into the courtroom at one time to be arraigned, and Mrs. Brownlow identified the defendant as soon as she saw him come into the room. She testified that the defendant “looked startled to see me” and that he had pointed at her. In addition, she stated that on that day in the courtroom, she was “extremely certain” that the defendant was the person who had been in her bedroom. Finally, although she did not mention the distinctive facial features of the defendant to Dease at the arraignment, she had mentioned them to her husband at that time.

The only corroborating evidence in support of Mrs. Brownlow’s in-court and pretrial identifications is Mr. Brownlow’s testimony that at the arraignment he saw the defendant point to Mrs. Brownlow, to his eye and then to himself, and that he saw the defendant mouth the words “she saw me” to a young black woman sitting near the door to the courtroom. Nevertheless, Mr. Brownlow did not actually hear the defendant speak these words. Furthermore, although Dease testified that the defendant gestured and said something to a young lady sitting near the courtroom door, he had no knowledge of what had been said. There is no physical evidence linking the defendant to the burglary at the Brownlow’s residence, such as the radio knobs in Murrell. On the contrary, although the police were able to lift six identifiable fingerprints from several areas in the home touched by the intruders, none of the fingerprints were those of the defendant.

Based on the lack of other substantial evidence implicating the defendant in the crime, we cannot say that the admission of the subsequent crime evidence in this case amounted to harmless error. Rather, it is more probable than not that it influenced the jury to believe that the defendant was predisposed to commit the crimes charged. “ ‘ “ ‘Any improper evidence that may have a tendency to excite the passions, awaken the sympathy, or influence the judgment, of the jury, cannot be considered as harmless.’ ” ’ State v. Onofrio, [179 Conn. 23, 32, 425 A.2d 560 (1979)], quoting State v. Loughlin, 149 Conn. 21, 26, 175 A.2d 367 (1961).” State v. Sierra, supra, 437. The defendant, therefore, is entitled to a new trial.

Because, the remaining claims of the defendant are likely to be repeated at a retrial of the case, we shall consider them. See State v. Ibraimov, supra, 355.

II

The defendant next argues that the trial court improperly denied his motion to suppress the testimony of Allyson Brownlow regarding her pretrial identification of the defendant at his arraignment on unrelated charges. He argues that the procedure used was unnecessarily suggestive and unreliable, and claims a deprivation of his due process rights.

“ ‘ ‘ “A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” ’ . . . ” ’ State v. Cubano, [203 Conn. 81, 93, 523 A.2d 495 (1987)]; State v. Hinton, [196 Conn. 289, 293, 493 A.2d 836 (1985)]; State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984).” State v. Mayette, 204 Conn. 571, 581, 529 A.2d 673 (1987). “ ‘ “In determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ ” ’ State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311 (1987), quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); see also State v. Cubano, [supra]; State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986); State v. Hinton, [supra, 292-93].” State v. Mayette, supra.

We have considered the suggestiveness of arraignment identifications in State v. Hinton, supra, and State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981). In both cases, we recognized that an arraignment identification may be suggestive. State v. Hinton, supra, 295; State v. Ledbetter, supra. “The mischief involved in the arraignment observation is the real possibility that the victim of one crime, armed with the knowledge that the suspect is being charged with another crime, possibly of the same character, is more likely to leap to the conclusion that the person being arraigned in front of him committed both crimes.” State v. Ledbetter, supra.

Although we recognize the potential for suggestiveness inherent in an arraignment identification, we do not believe that the procedure involved here was unnecessarily suggestive. Mrs. Brownlow testified that Dease informed her and her husband that the police had caught two burglars breaking into a neighborhood residence and requested that they go to the arraignment to try to identify the persons who had been in their bedroom. The defendant entered the arraignment courtroom with approximately thirteen other men, at least eight of whom were black. At no time did Dease describe the two suspects, give their names, or in any way suggest whom should be picked out. He simply brought the Brownlows into the courtroom, had them sit down, told them that if they recognized the persons who burglarized their house to tell him, and then sat away from them on the other side of the courtroom.

Even if we were to assume that the procedure used was unnecessarily suggestive, the defendant has not met his burden of proving that, under the totality of the circumstances, this identification was so unreliable as to be inadmissible into evidence. See State v. Mayette, supra; State v. Ramsundar, supra. “ ‘In determining whether an identification is reliable in the “totality of the circumstances,” the corruptive influence of the suggestive procedure is weighed against “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) State v. Cubano, supra, 95; State v. Collette, supra, 311 n.3; State v. Hinton, supra, 295-96.” State v. Mayette, supra, 583.

Under the totality of the circumstances, Mrs. Brown-low’s identification of the defendant was reliable. She had ample opportunity to view the defendant during the crime and was paying a high degree of attention to the defendant during the time he was in her bedroom. A victim of a crime “ ‘is apt to be a more reliable source of identification than is a mere spectator to the incident.’ Willin v. Ajello, [496 F. Sup. 804, 808 (D. Conn. 1980)].” In re Juvenile Appeal (83-EF), 190 Conn. 428, 437, 461 A.2d 957 (1983). Immediately after the burglary, Mrs. Brownlow gave a general description of the defendant to the police. The defendant does not challenge the accuracy of the description, only its lack of specificity. We are concerned, for these purposes, only with accuracy. At the suppression hearing, Mrs. Brownlow testified that she was “very certain” when she made the identification at the arraignment that the defendant was the person who had been in her bedroom. The length of time between the crime and the identification was less than one month. We conclude that the trial court’s denial of the defendant’s motion to suppress was proper.

Ill

The defendant argues that the trial court improperly prohibited him from cross-examining Mrs. Brownlow as to the effect that her examination of photographs of the defendant had on her in-court identification of him. He claims that he was denied his constitutional right of confrontation. This constitutional claim was not raised at the trial.

“[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. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis omitted.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

We note, however, that although this issue was presented on appeal under Golding by way of an unpreserved constitutional claim, we review it only because it is likely to arise on retrial, and we assume that the objection will be properly made and preserved at the retrial. A Golding analysis is therefore inappropriate. Rather, the traditional analysis of a cross-examination claim is required.

“While ‘ “ ‘[c]ross-examination is the principal means by which the believability of a witness and the truth [or reliability] of his testimony are tested [;]’ Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982) [;]” ’ State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985); a defendant’s right to cross-examination ‘is not absolute and is subject to reasonable limitation by the [trial] court.’ State v. Thompson, 191 Conn. 146, 147-48, 463 A.2d 611 (1983); see also State v. Jackson, 198 Conn. 314, 318-19, 502 A.2d 865 (1986); State v. Vitale, [197 Conn. 396, 401, 497 A.2d 956 (1985)]. ‘The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge. This discretion comes into play, however, only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. State v. Castro, 196 Conn. 421, 424, 493 A.2d 223 (1985); State v. Gaynor, 182 Conn. 501, 508, 435 A.2d 1022 (1980). The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness. United States v. Vasilios, 598 F.2d 387, 389 (5th Cir.), cert. denied, 444 U.S. 967, 100 S. Ct. 456, 62 L. Ed. 2d 380 (1979), reh. denied, 444 U.S. 1049, 100 S. Ct. 742, 62 L. Ed. 2d 737 (1980), and cert. denied sub nom. Alexander v. United States, 444 U.S. 932, 100 S. Ct. 277, 62 L. Ed. 2d 190 (1979); State v. Castro, supra, 425.’ State v. Vitale, supra, 402; see also State v. Weidenhof 205 Conn. 262, 270, 533 A.2d 545 (1987); State v. Milum, supra, 609; State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985); State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).” State v. Milner, 206 Conn. 512, 524-25, 539 A.2d 80 (1988); see also State v. Moye, 214 Conn. 89, 94-95, 570 A.2d 209 (1990).

In applying these principles to the case at hand, we conclude that the trial court did not violate the defendant’s right to confrontation by prohibiting him from cross-examining Mrs. Brownlow as to the effect that her examination of photographs of the defendant had on her in-court identification of him.

The defendant cross-examined Mrs. Brownlow at length about her out-of-court identification of the defendant and the statement she gave to the police after the burglary. In particular, the defendant’s cross-examination revealed that Mrs. Brownlow had not mentioned the defendant’s distinctive facial features to the police and had told the police she did not think she could identify either of the burglars from photographs. The defendant had ample opportunity to impeach the reliability of the witness’ identification of the defendant. We are not convinced that this foreclosure of this avenue of questions attempted by the defendant rises to the level of a sixth amendment violation. Rather, the denial of this line of inquiry was within the trial court’s discretion. “ ‘The trial court has broad discretion to determine both the relevancy and remoteness of evidence. . . . Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters.’ Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987).” State v. Ireland, 218 Conn. 447, 452, 590 A.2d 106 (1991).

On the record before us, we cannot say that the trial court abused its discretion by restricting the scope of cross-examination on this subject.

Finally, we note that we read the trial court’s ruling prohibiting this line of inquiry as resulting from a balancing of the various factors surrounding the photographs. We are not adopting a prophylactic rule of law that holds that in situations of this nature, the defendant can never question the witness regarding the potential effect that the viewing of the photograph had on the witness. Rather, a balancing of all the factors involved is required by the trial judge, and the final decision rests within the sound discretion of the trial court.

IY

The defendant claims that the trial court improperly excluded the testimony of Michelle Gary, the defendant’s girlfriend, as to certain incriminating statements made to her by the defendant’s brother, Donald Payne.

At a lengthy offer of proof outside the presence of the jury, the court heard testimony from Gary, Donald Payne and the defendant. The defendant sought to have Gary testify that: in November and December, 1988, Donald Payne had been committing burglaries on Prospect Street; late one night Donald Payne came to the defendant and Gary’s house and invited the defendant to commit a burglary with him, but the defendant declined; the next morning, Donald Payne came to their house again and bragged about the burglary he had just committed with another person, where they had awakened people in their bedroom and robbed them; on that same morning, Donald Payne tried to get Gary to purchase a diamond ring that he had in his possession; several weeks later, after the defendant had been arrested, Gary was riding in a car with Donald Payne when he pointed out a house on Prospect Street and said, “that is the house . . . that Freddie is being blamed in jail for right now,” and then he bragged about how he had committed that burglary.

“At the outset, we note that ‘[t]he determination [of] whether a third party declaration against penal interest is trustworthy lies in the sound discretion of the trial court. State v. DeFreitas, [179 Conn. 431, 452, 426 A.2d 799 (1980)].’ [State v. Bryant, 202 Conn. 676, 693, 513 A.2d 66 (1987)]. Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. See State v. Martin, 170 Conn. 161, 166, 364 A.2d 104 (1976).” State v. Hernandez, 204 Conn. 377, 390, 528 A.2d 794 (1987).

“ ‘In State v. DeFreitas, [supra, 450-51], we adopted a rule, consistent with Chambers v. Mississippi, [410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)], and in accord with rule 804 (b) (3) of the Federal Rules of Evidence, which provides that trustworthy third party statements against penal interest which are exculpatory to the defendant, are admissible if the declarant is unavailable.’ State v. Bryant, 202 Conn. 676, 692, 523 A.2d 451 (1987); see also State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980); State v. Gold, 180 Conn. 619, 630, 430 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980).” State v. Mayette, supra, 576.

“In determining the trustworthiness of a third party declaration against penal interest, this court has set forth four general considerations: (1) the time the declaration is made and the party to whom it is made; (2) the existence of corroborating evidence; (3) the extent to which the statement is really against the declarant’s penal interest; and (4) the availability of the declarant as a witness. State v. Bryant, supra, 693, and cases cited therein; State v. Gold, supra, 633; State v. DeFreitas, supra, 451.” Id., 577.

It is uncontested that Donald Payne was unavailable as a witness because he invoked his fifth amendment right against self-incrimination. See id., citing (State v. DeFreitas, supra, 441. Additionally, it is undisputed that Donald Payne’s statements, as reported by Gary, were against his penal interest. Thus, our examination is limited to the time of the declarations and the party to whom they were made, and the evidence corroborating the statements.

As to the first element, the trial court found that the long-standing relationship between the defendant and Gary would not lead to a conclusion of trustworthiness. The trial court analogized this case to the situation in State v. Sanchez, 200 Conn. 721, 726, 513 A.2d 653 (1986), where we found that the witness’ intimate relationship with the defendant was a factor “coloring” the trustworthiness of the proffered statements. We agree with the trial court’s conclusion.

As to the second element, the trial court found that there was no evidence corroborating these statements. Since Donald Payne refused to answer any questions directly related to this incident, his testimony provided no corroboration and the defendant’s testimony during the offer of proof in fact contradicted Gary’s testimony as to the content of the conversations between Donald Payne and the defendant.

Given the lack of corroborating evidence, the nature of the relationship between Gary and the defendant, and the defendant’s own testimony contradicting that of Gary regarding Donald Payne’s purported statement, we conclude that the trial court did not abuse its discretion in prohibiting Gary’s testimony.

V

The defendant’s final claim on appeal is that the trial court improperly prohibited him from: (1) presenting evidence that his brother, Donald Payne, committed this crime; and (2) calling Donald Payne as a witness so that the jury could observe the physical similarities between the defendant and his brother. The gravamen of this third party culpability defense was the testimony of Gary, discussed in part IV, supra, concerning Donald Payne’s declarations against penal interest, and evidence that Donald Payne committed a burglary similar to this one six months after it.

As discussed in part IV, supra, the testimony of Gary concerning Donald Payne’s declarations against penal interest was properly excluded.

“We have considered on several occasions the admissibility of evidence offered to inculpate a person other than the accused in the commission of the crime. See, e.g., State v. Milner, 206 Conn. 512, 517, 539 A.2d 80 (1988); State v. Echols, 203 Conn. 385, 392-93, 524 A.2d 1143 (1987); State v. Burge, 195 Conn. 232, 252, 487 A.2d 532 (1985); Siemon v. Stoughton, 184 Conn. 547, 555, 440 A.2d 210 (1981); State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981); State v. Gold, [supra, 645-46]; State v. Kinsey, 173 Conn. 344, 347-48, 377 A.2d 1095 (1977). ‘ “Ordinarily, evidence concerning a third party’s involvement is not admissible until there is some evidence which directly connects that third party with the crime.” (Emphasis added.) State v. Kinsey, [supra, 348]. “The defendant can always show that some other person and not the defendant committed the crime; however, it is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.” ’ State v. Giguere, supra, 405; see also State v. John, 210 Conn. 652, 670, 557 A.2d 93 (1989).” State v. Delossantos, 211 Conn. 258,270, 559 A.2d 164, cert. denied, 493 U.S. 866,110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). The trial court’s ruling on the relevancy of third party inculpatory evidence will be reversed on appeal only if the court has abused its discretion or an injustice appears to have been done. Id., 271.

The trial court found that there was no reliable evidence directly linking Donald Payne to this crime and, therefore, the proffered evidence of Donald Payne’s commission of a similar crime was inadmissible. We agree.

Further, because of this lack of a direct link to this crime, the trial court ruled that the defendant could not call Donald Payne as a witness to answer non-privileged questions in order to permit the jury to observe the physical similarities between him and the defendant. In State v. Bryant, supra, 687, we reiterated that the defendant may not call a third party who the defendant maintains committed the crime simply to have him invoke his fifth amendment privilege in front of the jury. The defendant may, however, call the third party to testify as to those questions that he had willingly answered at the voir dire, so long as that testimony is relevant. Id. At the voir dire, Donald Payne testified that in November and December, 1988, he lived one street over from his brother, the defendant; that he saw a lot of his brother during that time; that he lived with Claudia Payne at this time; that he knew of his brother’s arrests and incarceration at the Whalley Avenue jail; that he did not visit his brother at that jail; that his brother was living with Gary during this time; and that he knew Russell Brantley, the person whom Gary claimed to have committed this crime with Donald Payne. None of Donald Payne’s testimony directly linked him to this crime. As such, the trial court’s decision to prohibit Donald Payne’s testimony as irrelevant was not an abuse of discretion. Without a direct link to the crime charged, the parading of lookalikes in front of the jury would “simply afford a possible ground of possible suspicion against another person” and would be improper. See State v. Delossantos, supra, and cases cited therein.

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

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

Covello, J., with whom Hull, J.,

joins, dissenting. I do not believe that the defendant has shown that it is more probable than not that the introduction of the “subsequent crimes” testimony influenced the trial’s outcome. I would therefore not order a new trial.

“ When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).’ State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).” State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988). Thus, in the context of this case, with the overwhelming evidence of the defendant’s identity, the defendant must demonstrate, therefore, that the introduction of the “subsequent crimes” testimony, despite the court’s careful limiting instruction, improperly influenced the verdict.

The majority overlooks the cumulative effect of: (1) the terrifyingly specific circumstances under which Mrs. Brownlow had an opportunity to form a specific and lasting impression of the defendant; (2) the positive and certain manner in which she thereafter recalled him; (3) the defendant’s own reaction when he again observed Mrs. Brownlow; and (4) the trial court’s very specific limiting instructions concerning the “subsequent crimes” evidence.

The jury learned that as the Brownlows lay asleep, at approximately 6 a.m., they were awakened when their bedroom door burst open, the lights were turned on and two black men with guns entered the room. The lights in the bedroom were very bright. The first man who entered proceeded to James Brownlow’s side of the bed and held a handgun to his head. The second man, identified as the defendant, followed the first man into the room and pointed his handgun at Mrs. Brown-low’s head. The man identified as the defendant, wore a fiberglass painter’s mask that covered the lower part of his nose and mouth. While pointing his weapon at Mrs. Brownlow, the defendant rifled through the dresser drawers on her side of the bed. When the defendant’s partner became agitated at the apparent lack of valuable goods, Mrs. Brownlow sat up, took off her engagement ring, and gave it to the defendant. When she gave her ring to him, she got a very good look at his face. She then laid on her side and continued to watch the defendant who was, for the most part, no more than two or three feet from her throughout the entire fifteen minutes the incident lasted.

Although initially uncertain of her ability to identify either burglar, Mrs. Brownlow described the defendant as “a dark-complexioned black male with short hair, approximately 5’10” or 11” tall, with a muscular build. He was wearing a sweatshirt under a medium length dark gray or black coat. She later stated that the defendant’s facial features (his prominent widow’s peak and his swollen eyes), were very distinctive and told the jury that she was “extremely certain” as to his identification. When asked to identify the defendant in a lineup of others, Mrs. Brownlow was “very certain” as to her identification and made it while the defendant was being brought into the courtroom with the other prisoners. It was at this time that the defendant appeared to tell someone nearby, “She saw me.”

Further, in connection with the other crimes evidence, the trial court specifically charged the jury: “[I]f you do not believe [the evidence offered of a separate crime] or even if you do, if you find that it does not logically, rationally, and conclusively support the issues or the element for which it is being offered by the State, namely identity, then you may not consider that testimony for any purpose. The danger of receiving evidence of prior misconduct, even for the limited purpose of attempting to prove identity, is that it may predispose your mind uncritically to believe the defendant may be guilty of the offense here charged merely because of the alleged prior misconduct.”

“The jury is presumed, in the absence of an indication to the contrary, to have followed the instructions of the trial court.” State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986). If the evidence of the separate crime was not “ ‘sufficiently distinctive to support a reasonable belief that the same person committed both’[;] State v. Ibraimov, [187 Conn. 348, 354, 446 A.2d 382 (1982)]”; State v. Braman, 191 Conn. 670, 681, 469 A.2d 760 (1983); it must be presumed that the jury followed the trial court’s instructions and concluded that the evidence did not “logically, rationally and conclusively” support the issue of identification and therefore, could “not Poe] considered] ... for any purpose.”

Accordingly, I dissent.

       “[General Statutes] Sec. 53a-103a. burglary in the third degree WITH A FIREARM: CLASS D FELONY: ONE YEAR NOT SUSPEND ABLE, (a) A person is guilty of burglary in the third degree with a firearm when he commits burglary in the third degree as provided in section 53a-103, and in the commission of such offense, he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, rifle, machine gun or other firearm. No person shall be convicted of burglary in the third degree and burglary in the third degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       “[General Statutes] Sec. 53a-122. larceny in the first degree: class B FELONY, (a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds ten thousand dollars.”

       “[General Statutes] Sec. 53a-92. kidnapping in the first degree: class A felony (a) A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to . . . (B) accomplish or advance the commission of a felony.”

       General Statutes § 51-199 (b) (3) provides: “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, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years.”

       Hurley testified that it is “rare” and “uncommon” for burglars knowingly to take the risks that accompany entry of a house at a time when, in all probability, the occupants will be at home.

       Hurley testified that residential burglaries involving bodily force to gain entry are “quite common” in New Haven, and that most burglaries are committed in conjunction with another person. Further, Hurley testified that there had been a rash of burglaries occurring in the Prospect Street area at this time.

       The testimony of Hurley established only that the defendant had an empty knife case in his possession, and that a knife was found next to the stoop.

       Having found that the proffered evidence of the subsequent crime was not relevant or material to proving identity, we need not address the second prong of the test, which is that the probative value of the evidence must outweigh its prejudicial effect. See State v. Sierra, 213 Conn. 422, 429, 568 A.2d 448 (1990).

       In State v. Hinton, 196 Conn. 289, 295, 493 A.2d 836 (1985), we found that although arraignment identifications may be suggestive, under the circumstances of that case, the procedure used was not “so suggestive as to be constitutionally infirm.” This determination was based on the fact that the victim had made two positive photographic identifications of the defendant prior to the arraignment. Id. That fact is not present in this case.

       At the hearing on the defendant’s motion to suppress, Mrs. Brown-low testified that the defendant was in her bedroom for approximately eight to fifteen minutes and that she was observing him the entire time. She further testified that at one point he was less than a foot away from her for approximately one minute, and at other times was between two and eight feet away from her. Although the defendant wore a fiberglass mask covering his mouth and lower nose, she could observe his cheekbones, Ms forehead and the side of his face. There was a bright overhead light on at all times.

       At the suppression hearing, Mrs. Brownlow testified that she was keeping a watch on what was going on because she “didn’t just want anything to happen spontaneously and startling.” Considering that the defendant was pointing a gun at her, it is a safe assumption that Mrs. Brownlow was paying close attention to the defendant. A further indication of the level of her attention is that, in giving her initial description to the police, she used her two children and their differences in size and build as a reference, and noted that the two men in her bedroom were similar to her two children.

       Mrs. Brownlow’s professed certainty is supported by the facts that she identified the defendant immediately, as soon as she saw him enter the courtroom, and that the defendant had distinctive features (eyes, hairline and cheekbones) that she recognized.

       Outside the presence of the jury, it was disclosed that the defendant sent to Mrs. Brownlow a letter dated February 21,1990, accompanied by two color Polaroid photographs of him. Defense counsel sought to cross-examine Mrs. Brownlow as to whether her in-court identification of the defendant was affected by her viewing those photographs, to which the state objected. After balancing the reliability of Mrs. Brownlow’s identification, which the court found “extremely reliable” based on the relevant factors, against the manner in which this situation was created, the court sustained the state’s objection. The court held: “I think it’s fundamental that the Court cannot allow a witness to be placed in an impeachable situation by [the defendant’s] own actions post arrest and incarceration . . . . [B]ased on the other factors that have been brought up, which I have indicated strengthen the reliability of the identification, I see very little relevance at all to these photos . . . .”

       Out of the presence of the jury, the court questioned Mrs. Brownlow, whose veracity was not impeached, about whether she had based her identification of the defendant on those photographs. Mrs. Brownlow replied, “It has nothing to do with that picture. In fact, I thought the picture was a trick because the color photograph makes him so much lighter.”

       During the offer of proof, Gary testified that as of December, 1988, she had been living with the defendant for over one year and was in love with him.

       In particular, the defendant testified that Donald Payne did not admit that he committed this burglary and that the ring Donald offered to sell to Gary was one he had purchased for his fiancee.

       The defendant did testify before the jury that he was home on the night of this burglary; that he was visited by his brother Donald and Donald’s friend late that night; that Donald and his friend returned early the next morning; and that Donald then had in his possession a gold ring with a clear stone in it. This testimony was admitted for the purpose of establishing an alibi.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Town of Greenwich et al. v. Department of Public Utility Control et al.
    (14039)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued March 20
    decision released June 4, 1991

      James R. Hawkins II, with whom, on the brief, was Kathleen Stone, for the appellants (named plaintiff et al.).

      Roberts. Golden, Jr., assistant attorney general, with whom was Tatiana D. Sypko, assistant attorney general, for the appellee (named defendant).

      Joseph C. Lee, with whom were Marshall J. Touponse and, on the brief, Judith A. Ravel, for the appellee (defendant Connecticut-American Water Company).

      Richard L. Barger, for the appellee (defendant town of Stonington).
   Covello, J.

This is an appeal from a decision of the Superior Court dismissing the administrative appeals from two rate determinations of the defendant department of public utility control (DPUC). The issues on appeal are: (1) whether the DPUC may establish rates that do not precisely correlate with the cost of water service in a given district in order to equalize rates between two water districts; (2) whether the DPUC may reopen a rate proceeding on its own motion; and (3) whether the DPUC was required to notify Greenwich ratepayers about proceedings for approval of the acquisition of a water company when the costs associated with the acquisition were later shared in part by the Greenwich ratepayers.

The defendant Connecticut-American Water Company (company) is a public service utility company regulated by the DPUC pursuant to General Statutes § 16-1 et seq. The company was created in 1977 by a merger of the Mystic and Noroton water companies with the Greenwich Water Company. The company as merged provides service to approximately 24,000 customers in two distinct geographic districts. The Greenwich district includes the town of Greenwich and the Noroton section of Darien, while the Mystic district includes the towns of Stonington and Groton.

On December 16, 1986, the company applied to the DPUC for a “Phase I” rate increase and for permission to amend its rate schedules pursuant to General Statutes § 16-19. The company claimed that the amended rates were necessary to cover increased costs, maintenance and improvements. The DPUC held public hearings during March and April, 1987. On June 2, 1987, the DPUC issued a decision finding that customers in the Mystic district were paying 128 percent more than Greenwich-Noroton customers for the same volume of water and authorizing a 7 percent overall rate increase that was to be generated solely by an 8.8 percent increase in the Greenwich district rates. The Mystic rates were to remain unchanged. The DPUC denied the company’s requested “Phase II” rate increase but indicated that it “would entertain a request to re-open this [June 2,1987] Decision” and, if the company did not request a reopening, the DPUC stated that it would reopen the decision on its own authority.

The plaintiffs appealed this decision to Superior Court. On January 4, 1988, the DPUC, on its own motion, reopened its June 2,1987 decision. The DPUC again conducted public hearings and, on April 19,1988, authorized the company to institute a new rate schedule that was higher than the “Phase I” schedule.

On May 16,1988, the plaintiffs appealed the second DPUC decision to Superior Court claiming that the equalization plan was improper, that the rate increases were arbitrary and capricious, that the DPUC lacked the authority to reopen a prior decision on its own authority, and that the DPUC had failed to provide proper notice to Greenwich customers of the company’s plans to acquire the Mystic water company. The trial court consolidated the appeals from the first and second DPUC decisions. On May 2, 1990, the trial court rendered judgment sustaining the decision of the DPUC on all issues and dismissing the appeals. The plaintiffs appealed to the Appellate Court. We thereafter transferred the appeal to ourselves in accordance with Practice Book § 4023 and now affirm the trial court’s judgment.

I

The plaintiffs’ first claim is that the DPUC was without statutory authority to initiate a rate equalization plan, between the Greenwich and Mystic districts, permitting the company to raise selectively the rates of discrete classes of customers. The gravamen of the plaintiffs’ claim is that the authority of the DPUC, as an administrative agency, is limited to those powers expressly granted it by statute. State v. White, 204 Conn. 410, 418-19, 528 A.2d 811 (1987). Because the statutes do not expressly permit the DPUC to equalize rates between different districts served by one company, the plaintiffs argue that the agency’s action was in excess of its statutory authority and therefore invalid. The plaintiffs also argue that the general policy underlying the enabling statute, and reflected in the prior practice of the DPUC, is to require customers to pay only the costs associated with the services provided to them and to provide a reasonable rate of return on the owners’ capital investment, not to equalize rates between different districts.

General Statutes § 16-19a states, in pertinent part, that the DPUC shall “determine whether the rates of each . . . company are unreasonably discriminatory or more or less than just, reasonable and adequate, or that the service furnished by such company is inadequate to or in excess of public necessity and convenience . . . .” General Statutes § 16-19e (a) (4) states, in part, “that the level and structure of rates [shall] be sufficient, but no more than sufficient, to allow public service companies to cover their operating and capital costs, to attract needed capital and to maintain their financial integrity, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable.” The authority of the DPUC thus described is consistent with the expression of legislative intent found in General Statutes § 16-11, which states: “The general purposes of . . . [section] 16-19 . . . are to assure to the state of Connecticut its full powers to regulate its public service companies, to increase the powers of the department of public utility control and to promote local control of the public service companies of this state, and said [section] shall be so construed as to effectuate these purposes.”

The DPUC’s enabling statute thus evinces a legislative intent to rely on the DPUC to regulate and supervise public utilities, and to establish rates that are not unreasonable. The legislature, however, has not imposed upon the DPUC any specific formula or policy to use in setting rates. In view of the remedial purpose of the statute, the lack of an express statutory formula and the evident legislative intent to rely on the DPUC’s expertise, we conclude that the language of the enabling statute is sufficiently flexible to permit the DPUC to create necessary policies, including rate equalization, to guide its rate-making decisions.

The plaintiffs claim, however, that rate equalization is arbitrary, unreasonable and contravenes the statute because it is inherently discriminatory and because the statute requires that rates be set only with regard to the cost of service and the need to attract capital. We disagree.

The plaintiffs argue that equalization is arbitrary and discriminatory because it unfairly imposes a disproportionate rate increase on a given district without regard to the cost of service to that district. A decision to establish any rate in a multi-service environment inevitably results in the same rate for different ratepayers whose actual costs of service may differ. For example, in a single community there will inevitably be differences in the cost of service to ratepayers on different streets or in different residences. Furthermore, the statute nowhere requires that the DPUC base its cost analysis at the city or district level. The DPUC relying upon its expertise and after a thorough review of the evidence, has decided to equalize rates between districts. We conclude that there is nothing in the statute to compel the conclusion that equalizing rates at this level is unreasonably discriminatory as a matter of law and we are therefore unwilling to disturb the decision of the DPUC.

II

The plaintiffs next argue that the DPUC exceeded the scope of its authority in reopening the rate hearings to consider the company’s “Phase II” request. In the June 2,1987 decision regarding the “Phase I” rate request, the DPUC said that it would “entertain a request to reopen” the decision and, in the absence of such a request, would reopen the decision on its own motion. On November 19, 1987, the company made such a request, to which the plaintiffs objected. The DPUC thereafter decided, upon its own motion, to reopen the hearings. The plaintiffs argue that it is beyond the powers set out to the DPUC in General Statutes § 16-19h to reopen a decision in this manner.

General Statutes § 16-19h provides, in pertinent part, that the DPUC may reopen a proceeding on a proposed rate amendment “to reflect the increased cost of (1) water purchased from another such water company or a municipal utility furnishing water, if such increased cost results from the approval by the department or the legislative body of the municipality . . . [or] (2) electricity purchased from an electric public service company or a municipal utility furnishing electricity, if such increased cost results from the approval by the department or the legislative body of the municipality . . . .” The plaintiffs argue that when a statute thus lists specific circumstances under which an action may be taken, there is an implied prohibition against taking the action under other circumstances.

Section 16-19h, however, governs only the reopening of rate proceedings involving companies “which [supply] water to not more than two hundred fifty service connections or one thousand persons . . . .’’The trial court found that the company here supplies water to 80,000 people in the state. By its terms, therefore, the statute does not apply to this case. Because “it is not the province of a court to supply what the legislature chose to omit”; Federal Aviation Administration v. Administrator, 196 Conn. 546, 550, 494 A.2d 564 (1985); we decline to interpret § 16-19h as a limitation on the general power of the DPUC to reopen rate cases not otherwise subject to § 16-19h.

Further, General Statutes § 16-9 provides in part that the DPUC “may, at any time, for cause shown, upon hearing had after notice to all parties in interest, rescind, reverse or alter any decision, order or authorization by it made.” (Emphasis added.) This statute explicitly gives the DPUC significant discretion in deciding when and how to modify its orders. Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 366 n.20, 363 A.2d 170 (1975). Because the statute expressly permits the DPUC to modify or alter prior decisions “at any time, for cause shown,” and because there is no express limitation on the power of the DPUC to reopen rate cases upon its own motion, we decline independently to restrict the power of the DPUC to reexamine utility rates in a subsequent proceeding.

The plaintiffs claim, however, that even if the “Phase II” application was properly reopened, the DPUC acted contrary to law in approving it. The plaintiffs state that the DPUC’s first or “Phase I” decision required that only those costs associated with already completed construction be included with the “Phase II” rate application, and that when the application was reopened construction had not yet been completed. The plaintiffs also claim that the application should have been rejected because the company did not amend its application following the completion of construction pursuant to § 16-1-58 of the Regulations of Connecticut State Agencies.

Section 16-1-58 of the regulations, however, applies to the amending of a pending rate application before the DPUC has issued a decision and not to the reopening of an existing DPUC decision. The regulation is, therefore, inapplicable. Further, the first or “Phase I” decision of the DPUC stated only that the DPUC would reconsider permitting a rate increase “upon completion of the Phase II construction.” Although the case was reopened before the completion of construction, the DPUC decision permitting the rate increase was not issued until after construction was completed and therefore the terms of the initial decision were met.

Ill

The plaintiffs’ final claim is that the DPUC failed to give the town of Greenwich notice of the 1986 hearing at which the company was given permission to purchase the failing Lebanon Water Company. Pursuant to the DPUC order, the Lebanon company was merged into the Mystic district. As a result of the equalization order, Greenwich is now paying some of the costs of absorbing the failing water company. The plaintiffs argue that General Statutes § 16-19 mandates that the DPUC provide customers with notice and an opportunity to be heard at any acquisition hearing that may adversely affect their utility rates.

The gravamen of the plaintiffs’ claim is that the failure of the DPUC to give notice to Greenwich customers pursuant to § 16-19 constitutes a jurisdictional defect. Section 16-19, however, applies only to hearings involving rate increases. General Statutes §§ 16-262o through 16-262q control the acquisition and disposition of failing water companies. Nothing in these sections requires the DPUC to notify customers in the event of such an acquisition. In the absence of an express jurisdictional notice requirement mandated by the législature, we decline to add one and conclude, therefore, that the DPUC was under no statutory obligation to provide notice to Greenwich customers.

The judgment is affirmed.

In this opinion the other justices concurred.

       “Phase I” and “Phase II” refer to the company’s two stage construction and implementation plan.

       While not expressly stated in the plaintiffs’ brief, we note that review of administrative appeals is governed by the Uniform Administrative Procedure Act, General Statutes §§ 4-166 through 4-189. Specifically we construe the plaintiffs’ claims as based upon § 4-183 © (2), which provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ... (2) in excess of the statutory authority of the agency.” Furthermore, “[although the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts ... it is for the courts, and not-for the administrative agencies, to expound and apply governing principles of law.” Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 138-39, 425 A.2d 581 (1979).

       This grant of power is consistent with the principles underlying the subject of rate regulation as a whole. “Courts have frequently observed that the task of rate-making require[s] expertise, technical skill, and constant attention and that it [is] obvious that legislatures were unable to discharge this obligation directly.” 1J. Sutherland, Statutory Construction (4th Ed. Sands) § 4.20. As a result, enabling statutes have been construed as an expansive grant of authority to administrative agencies, and have been interpreted in a manner that allows the agencies significant latitude in setting rate policies. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 600-602, 615, 64 S. Ct. 281, 88 L. Ed. 333 (1944); see also Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 93, 291 A.2d 721 (1971); Connecticut Co. v. Norwalk, 89 Conn. 528, 533, 94 A. 992 (1915).

       “[R]ate-making bodies [are not bound] to the service of any single formula or combination of formulas. Agencies to whom this legislative power has been delegated are free, within the ambit of their statutory authority, to make the pragmatic adjustments which may be called for by particular circumstances.” Power Commission v. Pipeline Co., 315 U.S. 575, 586, 62 S. Ct. 736, 86 L. Ed. 1037 (1942).

       The plaintiffs also claim that the DPUC has opposed rate equalization in the past. The defendants vigorously deny this. Regardless of whether the DPUC in fact has opposed equalization in the past, we have held that an agency is permitted to change position in the face of changed circumstances. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988); see also NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-67, 95 S. Ct. 959, 43 L. Ed. 2d 171 (1975). Furthermore, the fact that the DPUC may have opposed equalization in the past does not imply that it lacked the statutory power to apply rate equalization.

       The plaintiffs also argue that the legislature has authorized rate equalization in the context of satellite management programs; General Statutes § 16-262r (d); and that the failure of the legislature to provide for rate equalization in other contexts indicates a legislative intent to prohibit equalization. We disagree. Section 16-262r (d) is a specific provision addressing a narrow range of programs and it is entirely consistent for the legislature to describe more precisely the powers of the DPUC in this regard. As has been noted above, however, General Statutes § 16-19 is a general grant of power to the DPUC to establish rate schedules and, by its very terms, indicates a legislative intent not to restrict the DPUC to any particular formula or policy.
      The plaintiffs further argue that the legislature has previously considered and declined to permit equalization. We note, however, that “unsuccessful attempts at legislation are not the best of guides to legislative intent.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381-82 n.11, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969).

       This decision comports with the overarching purpose of General Statutes § 16-1 et seq., to allow the DPUC to supervise and validate rates charged by the state’s utilities. This clearly expressed legislative purpose could be compromised by limiting the authority of the DPUC to reconsider utility rates on its own motion.

       The plaintiffs also claim that, pursuant to § 16-1-54 of the Regulations of Connecticut State Agencies, an application for a rate increase must contain data from the “most recent twelve-month period available,” which was not done in this case. We conclude that because the second DPUC decision involved a reopening of an existing rate increase decision, and not an application for a new rate decision, § 16-1-54 does not apply and the plaintiffs’ claim is without merit.

       General Statutes § 16-19 provides in pertinent part: “Each public service company shall notify each customer who would be affected by the proposed amendment, by mail, at least one week prior to the public hearing thereon, that an amendment has been or will be requested. Such notice shall also indicate (1) the department of public utility control telephone number for obtaining information concerning the schedule for public hearings on the proposed amendment and (2) whether the proposed amendment would, in the company’s best estimate, increase any rate or charge by twenty per cent or more, and, if so, describe in general terms any such rate or charge and the amount of the proposed increase, provided no such company shall be required to provide more than one form of the notice to each class of its customers.”

       General Statutes § 16-262o through 16-262q provide: “Sec. 16-262o. ACQUISITION OF WATER COMPANY. RATES AND CHARGES. RECOVERY OF acquisition costs, (a) The department of public utility control, in consultation with the department of health services, upon a determination that the costs of improvements to and the acquisition of the water company are necessary and reasonable, shall order the acquisition of the water company by the most suitable public or private entity. In making such determination, the department shall consider: (1) The geographical proximity of the acquiring entity to the water company, (2) whether the acquiring entity has the financial, managerial and technical resources to operate the water company in a reliable and efficient manner and to provide continuous, adequate service to the persons served by the company and (3) any other factors the department deems relevant. Such order shall authorize the recovery through rates of all reasonable costs of acquisition and necessary improvements. A public entity acquiring a water company beyond the boundaries of such entity may charge customers served by the acquired company for water service and may, to the extent appropriate, recover through rates all reasonable costs of acquisition and necessary improvements.
      “(b) Notwithstanding the provisions of any special act, the department of public utility control shall extend the franchise areas of the acquiring water company to the service area of the water company acquired pursuant to this section.
      “(c) In the case of a public entity acquiring a water company beyond its boundaries, the rates charged the customers of the acquired water company shall be subject to the approval of the department of public utility control, upon petition by such customers.
      “(d) On and after December 1,1989, in the case of any proposed acquisition of a water company for which the department of public utility control has provided notice of a hearing pursuant to section 16-262n, the department may, to encourage and facilitate such acquisition, and shall, if it orders such acquisition, permit the acquiring water company to implement, and revise quarterly thereafter, a rate surcharge applied to the rates of the acquired water company or of both the acquiring water company and the acquired water company, as determined by the department, that would recover on a current basis all costs of such acquisition and of needed improvements to the acquired water company’s system. Such surcharge may be designed to recover one hundred per cent of the revenues necessary to provide a net after-tax return on investment actually made in the acquisition and improvement of the acquired water company, at a rate of return equivalent to that authorized for the acquiring water company in its last general rate proceeding. The department shall, not later than December 1,1989, adopt regulations, in accordance with chapter 54, to carry out the purposes of this section.”
      “Sec. 16-262p. improvements by acquiring entity. Any recipient of an order pursuant to section 16-262o shall make the necessary improvements to assure the availability and potability of water and the provision of water at adequate volume and pressure to the persons served by the water company. The water company shall immediately take the steps necessary for the transfer of the company to the acquiring company, municipal water authority, municipality or other public or private entity.”
      “Sec. 16-262q. COMPENSATION FOR ACQUISITION OF WATER COMPANY. Compensation for the acquisition of a water company pursuant to section 16-262o shall be determined by the procedures for determining compensation under section 25-42 or by agreement between the parties, provided the department of public utility control in consultation with the department of health services, after a hearing, approves such agreement.”


author: Per Curiam. Shea, J., with whom Covello, J.,

text:
    Basma Shaham v. John Capparelli et al.
    (14165)
    Peteks, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued April 25
    decision released June 4, 1991

      Neil W. Sutton, for the appellant (plaintiff).

      Raymond J. Plouffe, Jr., for the appellees (defendants).
   Per Curiam.

In this personal injury action, we granted the plaintiffs petition for certification in order to consider whether the Appellate Court correctly sustained a ruling of the trial court precluding the plaintiff from offering certain rebuttal evidence. Shaham v. Capparelli, 23 Conn. App. 468, 470-73, 581 A.2d 1065 (1990). The Appellate Court, considering this issue among others, affirmed the judgment of the trial court that the plaintiff, Basma Shaham, was not entitled to set aside or to have an additur to enhance a jury verdict that had awarded her $11,300 in damages for injuries allegedly sustained as a result of a fall on premises owned by the defendants, John Capparelli and Robert Mendola.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we conclude that the appeal in this case should be dismissed on the ground that certification was improvidently granted. As the Appellate Court correctly noted, the admission of rebuttal evidence ordinarily rests within the sound discretion of the trial court. State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982); Toffolon v. Avon, 173 Conn. 525, 537, 378 A.2d 580 (1977); DiMaio v. Panico, 115 Conn. 295, 298-99, 161 A. 238 (1932); 1 B. Holden & J. Daly, Connecticut Evidence (1988) § 11, pp. 64-66; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.3.2, pp. 41-42. The issue on appeal is not whether any one of us, sitting as the trial court, would have permitted the disputed evidence to be introduced. The question is rather whether the trial court, in the absence of any claim of inadvertence, mistake or surprise, in a case in which the plaintiff had withdrawn any claim for loss of earnings, abused its discretion in not allowing rebuttal testimony to corroborate the plaintiffs version of the origins of a federal income tax statement nominally attributing certain contested earnings to the plaintiff. Because the present proceeding does not afford us an opportunity to reexamine the standards governing the order of the presentation of evidence at trial, our grant of certification was improvident. See Lawler v. Lawler, 212 Conn. 117, 561 A.2d 128 (1989).

The appeal is dismissed.

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

joins, dissenting. I disagree with the dismissal of this appeal on the ground that certification was improperly granted. The majority relies upon the principle that “the admission of rebuttal evidence ordinarily rests within the sound discretion of the court.” Under the circumstances of this case, that familiar bromide cannot be relied upon to excuse the failure to admit rebuttal testimony that would have gone far to rehabilitate the plaintiff’s credibility concerning the consequences of her injury, which lay in shambles at the conclusion of her testimony after she was called as a witness during the presentation of the defendant’s case.

In January, 1983, the plaintiff fell on ice inside the defendants’ premises and injured herself. During her case-in-chief, the plaintiff testified about the facts surrounding her fall and also about her injuries and the consequences thereof, including her pain and suffering, the effect of the injuries on her daily activities, and her reduced ability to engage in them. She was vigorously cross-examined about these matters.

During the presentation of the case for the defendants, the plaintiff was called as their witness. She was asked whether she had ever worked for American Steak House, a restaurant. She testified that she had not. She was then confronted with a 1988 W-2 form of American Steak House, which indicated that she had worked for that employer and had earned $21,700 in 1988. The plaintiff explained that, although the form bore her name, it actually reflected the earnings of her two children at the restaurant, which had been put in her name so that she could control it for them. In the face of this extraordinary explanation, defense counsel repeated his question concerning whether the plaintiff had worked for the restaurant in 1988. The plaintiff again replied that she had not. After this testimony, the defense rested its case.

The plaintiff then called as a rebuttal witness the owner of American Steak House. The defendants objected to such rebuttal testimony. The plaintiff indicated that this witness would testify, contrary to the W-2 form, that she had not worked at the restaurant. The trial court sustained the objection, ruling that the rebuttal witness would merely corroborate the plaintiff’s denial of her employment at the restaurant and that such testimony was, therefore, cumulative. The Appellate Court, in sustaining this ruling, took a similar view and the majority opinion reaches the same conclusion in holding that certification was improvidently granted.

The policy behind restrictions on the presentation of rebuttal testimony is that a plaintiff is not entitled to a second opportunity to present evidence that should reasonably have been included in his case-in-chief. 6 J. Wigmore, Evidence (4th Ed.) § 1873. Thus, on rebuttal, a plaintiff “is confined to testimony which is directed to refuting the evidence of the defendant, unless the court in its discretion permits him to depart from the regular order of proof.” C. McCormick, Evidence (3d Ed.) § 4. Apart from the general principle of trial court discretion to allow deviations, “the usual rule will exclude all evidence which has not been made necessary by the opponent’s case in reply.” (Emphasis in original.) 6 J. Wigmore, supra, § 1873, p. 672.

“For matters properly not evidential until the rebuttal, the proponent has a right to put them in at that time, and they are therefore not subject to the discretionary exclusion of the trial court. Matters that should have been put in at first may by that discretion be refused later, because this is but the denial of a second opportunity. But matters of true rebuttal could not have been put in before, and to exclude them now would be to deny them their sole opportunity for admission. Hence, while the trial court’s determination of what is properly rebutting evidence should be respected, yet, if its nature as such is clear, the proponent does not need the trial court’s express consent to admit it as involving a departure from the customary rule.” (Emphasis in original.) 6 J. Wigmore, supra, § 1873, p. 678.

The rebuttal evidence excluded by the trial court in this case, falls into Professor Wigmore’s category of “true rebuttal” that a plaintiff has a right to present, because there had been no prior opportunity to present it. She made no claim for lost earnings at trial. Until she was called to testify as part of the defendants’ case and was confronted with the W-2 form, which belied her denial of having worked at the American Steak House restaurant as well as her testimony about the effects of her injury, she had no reason to anticipate any need to introduce testimony of another witness that she had never worked there. The sole purpose of such evidence was to confirm her own testimony and thus restore her credibility. Indeed, this evidence would have been irrelevant during her case-in-chief and was not properly admissible before rebuttal.

Our decisions have recognized that rehabilitation of the credibility of a witness who has been subject to impeachment is an appropriate purpose for rebuttal testimony. Smirnoff v. McNerney, 112 Conn. 421, 423, 152 A. 399 (1930); Smith v. Hall, 69 Conn. 651, 665, 38 A. 386 (1897). In DiMaio v. Panico, 115 Conn. 295, 298, 161 A. 238 (1932), we adopted Professor Wigmore’s view that rebuttal evidence is admissible when, “on any issue whatever, facts discrediting the proponent’s witnesses have been offered.” See 6 J. Wigmore, supra, § 1873, p. 672.

In accordance with these principles, I conclude that the trial court erroneously excluded the rebuttal testimony offered by the plaintiff. This evidence could not reasonably be viewed as “cumulative” simply because it supported the testimony during the defendants’ case that was used to impeach her credibility. Rebuttal evidence offered to rehabilitate a witness by its nature is inevitably cumulative in that sense. Particularly in this case, when the impact of the exclusion was to make it impossible for the plaintiff to buttress the unusual explanation she gave to the jury for the impeaching W-2 form or to vindicate her denial of its import, this rebuttal testimony should have been admitted. Without it there is a great likelihood that the plaintiff’s explanation appeared so unworthy of belief to the jurors that her credibility with respect to her injury and its consequences was substantially undermined. I would reverse the judgment of the Appellate Court affirming this ruling.

Accordingly, I dissent.

       The certified issues were: “1. Did the Appellate Court properly determine that the evidence offered in rebuttal was properly excluded by the trial court? 2. If not, did the ruling of the trial court constitute grounds for reversal?” Shaham v. Capparelli, 217 Conn. 801, 583 A.2d 132 (1990).

       “At trial, the plaintiff was questioned about her 1987 federal income tax return and a 1988 W-2 form from an alleged employer, the American Steak House. She explained on three occasions during the trial that it was her children who had worked at the steak house, and that the tax documents were prepared in her name so she could gain control over her children’s income. After both parties rested, the plaintiff called the owner of the American Steak House as a rebuttal witness. The plaintiff sought to show through the owner’s testimony that she never had worked at his restaurant. The court disallowed this testimony, ruling that it was not proper rebuttal, and that it was cumulative.” Shaham v. Capparelli, 23 Conn. App. 468, 470, 581 A.2d 1065 (1990).