author: Shea, J.

text:
    State of Connecticut v. Joseph Whelan
    (12647)
    Peters, C. J., Healey, Shea, Dannehy and F. Hennessy, Js.
    Argued June 10
    decision released August 5, 1986

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

      Jonathan C. Benedict, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Shea, J.

The defendant, Joseph Whelan, was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a (a). He was sentenced to a term of imprisonment of not less than twenty-five years nor more than life. From this judgment the defendant appeals, claiming that the trial court erred: (1) in allowing the state to cross-examine its own -witness; (2) in refusing to charge the jury, as requested, that a prior inconsistent statement of a witness was admissible only to discredit his testimony; (3) in refusing to grant his motion for a mistrial because of the prosecutor’s comments during final argument; and (4) in instructing the jury on drawing inferences from circumstantial evidence. We find error only in the instruction on circumstantial evidence and, therefore, remand the case for a new trial. We review the other claims of the defendant to the extent that they are likely to arise on retrial.

Shortly after midnight on February 24, 1980, the defendant entered a Bridgeport barroom. In the bar, the defendant and the victim, John Matulionis, became involved in a verbal altercation that developed into a fight. In the course of the fight, the defendant fatally stabbed the victim. At trial the defendant, testifying in his own behalf, acknowledged that he had stabbed Matulionis, but claimed that he had done so in self-defense. See General Statutes § 53a-19.

I

The first two claims of error are related to the use of a prior written statement given to the police by a witness called to testify for the state. We conclude that there was no error in the state’s cross-examination of the witness and that the defendant’s request for an instruction limiting the use of a prior inconsistent statement to impeachment was properly denied.

In an effort to establish that the defendant was indeed the aggressor, and thus to negate the claim that the killing was justified, the state called Louis Garassino, a patron who had been at the bar the night of the incident. He testified that he had arrived at the bar with a group of friends at about 7 p.m. and had remained there until after midnight when the stabbing occurred. When he was then asked to describe the stabbing incident, he claimed that he was unable to remember anything but that someone had been stabbed. He further claimed that he was unable to describe either of the individuals involved. The state then requested that the jury be excused from the courtroom. Outside the presence of the jury, Garassino was able to describe the two persons involved in the fight, but claimed to have no recollection of seeing the actual stabbing. In an attempt to refresh his recollection, Garassino was shown a written statement that he had given to the police soon after the incident. Although he acknowledged that he had made the statement and identified his signature thereon, he claimed that he “did not know” whether the statement refreshed his memory, because he had been intoxicated at the time and his memory of the event had deteriorated due to a recent automobile accident which had left him in a coma. He reiterated that the statement did not refresh his recollection except that he remembered the two participants were “Hells Angels” who reminded him of “Mutt and Jeff.” He also stated that he was unable to vouch for the accuracy of the statement.

Upon completion of the voir dire examination, the trial court concluded, after hearing argument on the matter, that Garassino was a hostile witness and allowed the state to cross-examine him concerning the detailed two page statement he had given to the police the night of the incident. The defendant duly excepted to the trial court’s ruling. The jury was then summoned and the state proceeded to confront Garassino with each factual assertion contained in the prior statement concerning the details of the fight. As he had responded during the voir dire examination, the witness claimed he had no recollection of virtually every assertion in his prior statement.

The defendant’s initial claim is that the court erred in declaring Garassino a hostile witness and, therefore, in allowing the state to cross-examine him regarding the prior out-of-court statement he had made to the police. This claim is based upon the common law rule which prohibits a party from impeaching his own witness, except where the party can establish the “hostility” of the witness or that he is “surprised” by the adverse testimony. State v. McCarthy, 197 Conn. 166, 177, 496 A.2d 190 (1985); State v. Mitchell, 169 Conn. 161, 164, 362 A.2d 808 (1975). The rationale behind the rule is that the party calling a witness vouches for the trustworthiness of the witness and is therefore bound by his testimony. McCormick, Evidence (3d Ed.) § 38. Recognizing that its basis has become generally eroded, we have recently abandoned this rule, and have held that a party may impeach his own witness without a showing of surprise, hostility or adversity. State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986); see State v. Rivera, 200 Conn. 44, 49, 509 A.2d 505 (1986); State v. Jasper, 200 Conn. 30, 34, 508 A.2d 1387 (1986). “ ‘Whatever validity the “voucher” rule may once have enjoyed . . . it bears little present relationship to the realities of the criminal process.’ ” State v. Graham, supra, 16, quoting Chambers v. Mississippi, 410 U.S. 284, 296, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). Because we have abrogated the common law restriction on impeachment of a witness by the party who calls him to testify, the defendant cannot prevail on his claim that the trial court erred in declaring the witness hostile.

Although it was appropriate for the court , to exercise its discretion and allow the state to cross-examine its own witness, the defendant also makes a related claim involving the jury’s use of the prior statement of Garassino. The defendant filed a timely request to charge with the court; Practice Book § 852; seeking an instruction that the prior statement be considered solely with respect to the credibility of the witness, and not as probative of the facts it contained. The court failed to grant the request and the. defendant also excepted to the charge as given. Although we recognize that “a request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given . . . .”; Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047 (1977); see State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985); we conclude that the trial court properly refused to limit the jury’s use of the prior statement solely to impeachment purposes.

Heretofore, this court has adhered to the traditional view that a prior inconsistent statement of a nonparty witness is inadmissible hearsay if offered to prove the truth of the matters asserted therein, and, therefore, is admissible only for impeachment purposes. State v. Villafane, 171 Conn. 644, 672, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977); State v. Raffone, 161 Conn. 117, 124, 285 A.2d 323 (1971); Sears v. Curtis, 147 Conn. 311, 315-17, 160 A.2d 742 (1960); Tait & LaPlante, Handbook of Connecticut Evidence § 7.24. The logic of this orthodox rule is that the prior inconsistent statement of a witness is too unreliable to be admitted as substantive evidence because the declarant was not (1) under oath and subject to punishment for perjury, (2) in the presence of the trier of fact, or (3) subject to cross-examination. See State v. Saporen, 205 Minn. 358, 361-63, 285 N.W. 898 (1939). This rule has been criticized by many legal scholars and commentators who maintain that the oath is not as strong a guaranty of trustworthiness as it once may have been, and that the requirements that the jury observe the declarant and that the defendant have the opportunity to cross-examine are met where the declarant takes the stand and is subject to cross-examination. See, e.g., McCormick, Evidence (3d Ed. 1984) § 251; 3A Wigmore, Evidence (Chadboum Rev. 1970) § 1018; Graham, “Employing Inconsistent Statements for Impeachment and as Substantive Evidence,” 75 Mich. L. Rev. 1565 (1977).

The commentators note that when the declarant is available for cross-examination the jury has the opportunity to observe him as he repudiates or varies his former statement. The cross-examination to which a recanting witness will be subjected is likely to be meaningful because the witness will be forced either to explain the discrepancies between the earlier statements and his present testimony, or to deny that the earlier statement was made at all. “If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court.” DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925); see United States v. Insana, 423 F.2d 1165 (2d Cir. 1970); United States v. De Sisto, 329 F.2d 929 (2d Cir. 1964). The jury can, therefore, determine whether to believe the present testimony, the prior statement, or neither. Moreover, prior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy. See Morgan, “Hearsay Dangers and the Application of the Hearsay Concept,” 62 Harv. L. Rev. 177, 192 (1948). Quite simply, when the declarant is in court, under oath, and subject to cross-examination before the factfinder concerning both his out-of-court and in-court statements, “the usual dangers of hearsay are largely nonexistent. . . California v. Green, 399 U.S. 149, 155 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).

Largely on the basis of this criticism, a growing number of jurisdictions have abandoned the common law rule and now allow prior inconsistent statements as substantive evidence where the declarant takes the stand and is subject to cross-examination. See Beavers v. State, 492 P.2d 88 (Alaska 1971); State v. Skinner, 110 Ariz. 135, 515 P.2d 880 (1973); People v. Freeman, 20 Cal. App. 3d 488, 97 Cal Rptr. 717 (1971); Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982); Watkins v. State, 446 N.E.2d 949 (Ind. 1983); State v. Lott, 207 Kan. 602, 485 P.2d 1314 (1971); Nugent v. Commonwealth, 639 S.W.2d 761 (Ky. 1982); State v. Provet, 133 N.J. Super. 432, 337 A.2d 374 (1975); State v. Igoe, 206 N.W.2d 291 (N.D. 1973); Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986); State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982), cert. denied, 460 U.S. 1103, 103 S. Ct. 1802, 76 L. Ed. 2d 367, reh. denied, 462 U.S. 1124, 103 S. Ct. 3099, 77 L. Ed. 2d 1357 (1983); Vogel v. State, 96 Wis. 2d 372, 291 N.W.2d 838 (1980); see generally annot., 30 A.L.R.4th 414 (1984). The orthodox viewpoint “ ‘serves only to keep relevant and reliable evidence from the jury. Its result serves no greater principle than judicial inertia ... a trial is, fundamentally, a search for an objective account of the events upon which criminal charges are based. An evidentiary rule which forces the searcher to ignore relevant clues whose reliability can be tested by cross-examination serves no purpose.’ ” Commonwealth v. Brady, supra, 131, quoting Commonwealth v. Gee, 467 Pa. 123, 146, 354 A.2d 875 (1976) (Roberts, J., dissenting).

In light of these considerations, we are persuaded that the prevailing reasons for refusing to allow any prior inconsistent statement to be used as substantive evidence are no longer valid. We believe an exception to the hearsay rule is necessary to allow the trial court to admit for substantive purposes prior inconsistent statements given under prescribed circumstances reasonably assuring reliability. This court has previously adopted exceptions to the hearsay rule “ ‘ “where the statements are made under conditions deemed to render them equal in reliability and trustworthiness” to those made under “the sanction of an oath and the test of cross-examination.” ’Cherniske v. Jajer, 171 Conn. 372, 376-77, 370 A.2d 981 (1976); General Motors Acceptance Corporation v. Capitol Garage, Inc., 154 Conn. 593, 597, 227 A.2d 548 (1967).” State v. McClendon, 199 Conn. 5, 10, 505 A.2d 685 (1986). Although we are impressed by the logic of the modern view favoring substantive admissibility for all prior inconsistent statements where the defendant is in court and subject to cross-examination, we are unwilling to abrogate, without adequate precautions, the traditional view prohibiting their substantive use. While the signed out-of-court statement in this case was made under sufficiently reliable circumstances, some out-of-court declarations lacking similar safeguards of reliability and accuracy must continue to be governed by the hearsay rule.

Substantive admissibility of prior oral statements presents a hazard of error in reporting and increases the temptation and opportunity for fabrication and distortion by witnesses called to report them. McCormick, “The Turncoat Witness: Previous Statement as Substantive Evidence,” 25 Tex. L. Rev. 573, 586-88 (1947). The trier of fact, thus, has a difficult task in determining whether to believe the present testimony of the declarant, or his prior out-of-court statement as related by another witness. Rather than entrust that responsibility solely to the trier of fact we choose to limit substantive admissibility of prior inconsistent statements to situations where the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced. Graham, supra, 1582. Further, blanket admissibility of prior inconsistent statements would also permit the substantive use of oral statements made in jest or to boast of knowledge of criminal activity in which the declarant was not actually involved. Such oral statements, especially when other persuasive circumstantial evidence of guilt exists, would be inordinately difficult for the declarant to explain and might be critical in convincing the trier of the defendant’s guilt.

We, therefore, adopt today a rule allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination. The hazard of error is greatly lessened with respect to prior inconsistent written statements signed by the declarant. Errors in transcription are rare and methods of detecting and establishing forgery or alteration are widely available. McCormick, supra, p. 588. Prior oral statements of a witness, easily manufactured and often difficult to rebut, should not be used to prove an element of a crime essential to guilt. Although the requirement that prior statements be written and signed by the declarant is not an absolute guaranty of reliability, it does provide significant assurance of an accurate rendition of the statement and that the declarant realized it would be relied upon.

After the incident which resulted in the death of the victim, Garassino gave a statement to the police, indicating that the defendant was the aggressor and instigator of the fight and that he had actually seen the defendant stab the victim. Garassino gave this statement voluntarily based upon his personal observations of the event and he signed it. The statement was given soon after the incident and long before the witness’ memory might have faded. This statement, given to a police officer, had the added assurance of reliability that, if untrue, Garassino faced prosecution for falsely reporting an incident to the police; General Statutes § 53a-180; State v. Altrui, 188 Conn. 161, 175, 448 A.2d 837 (1982); and, because the statement was also sworn, for giving a false statement to the police. General Statutes § 53a-157. The declarant testified at trial and was extensively examined by both the state and defense counsel concerning the discrepancies between the prior statement and his in-court testimony. The jury had an adequate opportunity to observe and examine the demeanor of the witness, to hear the testimony and to assess his credibility. The trial court did not err in refusing to instruct the jury that the prior statement could be used only to impeach the credibility of Garassino.

II

The dispositive issue in this appeal, raised in the defendant’s supplemental brief, involves the trial court’s instruction to the jurors that they could draw inferences from circumstantial evidence if “the inference asked to be drawn is not only logical and reasonable but is strong enough that you can find that it is more probable than not that the fact to be inferred is true.” (Emphasis added.) The defendant contends that this charge unconstitutionally diluted the state’s burden of proving the essential elements of the crime beyond a reasonable doubt. We agree.

Initially, we note that the defendant’s failure to except to this portion of the charge ordinarily would render the claim of error unreviewable on appeal. Practice Book §§ 854, 3063. As we repeatedly have said, in the absence of a timely exception, this court will not address a claim of error unless it falls within the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), where the defendant can demonstrate the deprivation of a fundamental constitutional right and a fair trial. State v. Preyer, 198 Conn. 190, 196-97, 502 A.2d 858 (1985). The defendant’s claim qualifies for Evans review because it implicates the 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). Further, the claim is basically similar to the kind of burden shifting claim on the element of intent; Sandstrom v. Montana, 442 U.S. 510, 524, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); that we have found reviewable in the absence of an exception at trial in numerous instances. State v. Williams, 199 Conn. 30, 33, 505 A.2d 699 (1986); State v. Amarillo, 198 Conn. 285, 299 n.9, 503 A.2d 146 (1986); see State v. Farrar, 7 Conn. App. 149, 153 n.3, 508 A.2d 49 (1986).

We have had two occasions to examine “more probable than not” instructions on circumstantial evidence similar to those challenged in this case. In State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986), we concluded that it was not “reasonably possible that the jury was misled by the alleged errors in the court’s instructions.” Despite the challenged language, we reasoned that the trial court’s repeated references to the burden of proof “made abundantly clear to the jury that the burden of proof as to every element of the offenses charged was on the state, and that this burden had to be satisfied beyond a reasonable doubt.” Id. In State v. Rodgers, 198 Conn. 53, 56-59, 502 A.2d 360 (1985), we concluded that a similar instruction impermissibly diluted the requirement that the state establish guilt beyond a reasonable doubt and held that “it cannot be said that the incorrect statement did not influence the jury.”

In order to address the defendant’s claim in this case, it is necessary to reconcile these two decisions. The Appellate Court recently had occasion to do just this in State v. Farrar, supra, 155, where it noted that the principal distinction between the two cases is that intent was a disputed issue in Rodgers but not in Reddick. The court reasoned that “[wjhere the principal factual issue is intent, which is characteristically proven by circumstantial evidence; see State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); the court’s instructions regarding the use of circumstantial evidence as proof of this essential element are subject to close scrutiny.” State v. Farrar, supra, 155. Alternatively, the court analyzed, “where . . . the principal factual issue is identity, which is not classically dependent upon circumstantial evidence for its proof, the trial court’s instructions may be read as a whole to determine whether it is reasonably possible that the jury was misled by an erroneous explanation regarding the use of circumstantial evidence.” Id., 155-56.

Adopting the foregoing analysis, we must resolve the defendant’s claim in his favor. As in Rodgers, “[t]he present case particularly called for a correct instruction on the meaning and utilization of circumstantial evidence in a criminal case.” State v. Rodgers, supra, 59. The primary issues before the jury in this case were whether the defendant intended to cause the death of the victim and whether the killing was justified by self-defense. The state argued zealously that the circumstances surrounding the victim’s death indicated that the defendant intended to kill the victim and did not support the defendant’s claim that the killing was undertaken in self-defense. The state also asserted that the number and severity of the stab wounds were indicative of the defendant’s intent. The court instructed the jury that the only way to determine intent was to infer it from the facts and that all inferences must be reasonable and logical. Having been told that an inference may be drawn when “it is more probable than not that the fact to be inferred is true,” the jury was, thus, permitted to draw the inference of intent, necessary to a finding of guilty, based on the erroneous probability standard. Although the court did instruct the jury on several occasions that intent must be proven beyond a reasonable doubt, it did not rectify the erroneous charge on circumstantial evidence. Because the focus of the case was intent, we conclude that it was reasonably possible that the jury was misled with respect to the state’s burden of proving intent beyond a reasonable doubt.

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

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.”

       The defendant’s claim of improper argument is twofold: (1) that the prosecutor referred to facts contained only in the questions he asked of a witness for impeachment purposes based upon a prior written statement given by the witness to the police; and (2) that, without any evidence connecting the defendant to a ear accident in which the witness was severely injured, the state had implied during cross-examination and argument that the witness had been intimidated by that incident and thus had decided not to remember facts contained in his prior statement.
      In view of our conclusion in this case that a prior inconsistent statement may be used substantively and not only for the purpose of impeachment, it would not have been improper for the prosecutor to have referred to the facts contained in the statement as evidence. The statement, however, was never introduced into evidence and, therefore, references to its contents during argument were improper. Because we order a new trial as a result of the erroneous instruction upon circumstantial evidence, however, it is unnecessary for us to consider this claim further.
      It was also improper for the prosecutor to suggest by innuendo, as he did during argument, that a car accident in which the witness was injured had effectively intimidated him from testifying truthfully. The trial court had previously indicated that any allusion to the cause of the car accident would be prejudicial. We do not anticipate that this issue will arise at the retrial we have ordered.

       Because the defendant was unable to vouch for the accuracy of the statement, it could not be admitted under the past recollection recorded exception to the hearsay rule, which this court has recognized. Papas v. Aetna Ins. Co., 111 Conn. 415, 420, 150 A. 310 (1930).

       The defendant also claims that the trial court erred in concluding that the prior statement of the witness was inconsistent with his testimony at trial. He bases this contention on the fact that the witness did not expressly contradict his prior statement, but merely claimed he had no recollection of certain facts within it. We are unpersuaded by this claim. Whether there are inconsistencies between the two statements is properly a matter for the trial court. State v. Reed, 174 Conn. 287, 302-303, 386 A.2d 243 (1978); State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Inconsistencies maybe shown not only by contradictory statements but also by omissions. In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined. State v. Piskorski, supra. “Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement . . . and the same principle governs the case of the forgetful witness.” People v. Green, 3 Cal. 3d 981, 988, 479 P.2d 998, 92 Cal. Rptr. 494 (1971). A statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus, inconsistencies may be found in changes in position and they may also be found in denial of recollection. See 3 Weinstein, Evidence (1985) § 607 (6). The trial court has considerable discretion to determine whether evasive answers are inconsistent with prior statements. United States v. Rogers, 549 F.2d 490 (1976); State v. Harris, 182 Conn. 220, 226, 438 A.2d 38 (1980). In this case, Garassino had given a sworn statement to the police concerning the incident, and yet, while testifying at trial, was unable to recall the specific details of the fight. Considering the selective memory loss of the witness, there was sufficient evidence from which the trial court could properly conclude that he, in fact, remembered the substance of the statements. See Watkins v. State, 446 N.E.2d 949 (Ind. 1983).

       The prior inconsistent statement of a party who is a witness in a proceeding has long been admissible as substantive evidence against that party. See O’Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 29-30, 119 A.2d 329 (1955); Tait & LaPlante, Handbook of Connecticut Evidence § 11.5; McCormick, Evidence (3d Ed. 1984) § 251.

       We note that because of these circumstances the United States Supreme Court has held that admission of a prior inconsistent statement for substantive purposes does not violate the confrontation clause. California v. Green, 399 U.S. 149, 165, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).

       We are aware that the United States Supreme Court has refused “to distinguish among prior inconsistent statements on the basis of the circumstances under which the prior statements were given. The subsequent opportunity for cross-examination at trial with respect to both the present and past versions of the event, is adequate to make equally admissible, as far as the Confrontation Clause is concerned, both the casual, off-hand remark to a stranger, and the carefully recorded testimony at a prior hearing.” California v. Green, 399 U.S. 149, 168, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). We distinguish the casual remark because of our concerns for the reliability of the statements, and do not rely upon a constitutional analysis.

       We note that in three recent opinions this court decided that although a party may impeach his own witness, he may not introduce evidence of a prior inconsistent statement under the guise of impeachment in the hope that the jury will consider the statement substantively. State v. Rivera, 200 Conn. 44, 49, 509 A.2d 505 (1986); State v. Jasper, 200 Conn. 30, 34, 508 A.2d 1387 (1986); State v. Graham, 200 Conn. 9, 18, 509 A.2d 493 (1986). We depart from this aspect of those cases, in order to permit only prior written inconsistent statements signed by the declarant to be used for substantive purposes. The rule prohibiting the introduction of prior inconsistent statements under the guise of impeachment in the hope that the jury will use the evidence substantively will still, however, apply to prior oral statements.

       Although we are not presented with such a situation here, we note that prior tape recorded statements possess similar indicia of reliability and trustworthiness to allow their substantive admissibility as well. See Commonwealth v. Brady, 510 Pa. 123, 133, 507 A.2d 66 (1986).

       Because of congressional concerns for reliability and trustworthiness of prior statements, rule 801 (d) (1) (A) of the Federal Rules of Evidence has only partially abolished the common law prohibition against their substantive use, providing that a prior statement is not hearsay if the declarant testifies at trial, is subject to cross-examination concerning the statement and the statement was given under oath at a trial, hearing, other proceeding or in a deposition. Thus, under the rule as enacted, a party may introduce a prior inconsistent statement as substantive evidence only if it was originally made in testimonial form. Although we have similar concern over the untrustworthiness of some prior inconsistent statements, we believe that it is unnecessary to limit substantive admissibility to only those statements made in a formal adversarial setting.

       The entire charge on circumstantial evidence was as follows: “Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied: That the inference asked to be drawn is not only logical and reasonable but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true—that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt. It is your right to draw inferences if you conclude that the facts you find proven reasonably establish other facts by reason and logic and are not the result of speculation, surmise or guesswork.”

       We note that in State v. Rodgers, 198 Conn. 53, 58 n.2, 502 A.2d 360 (1985), the court had twice given the challenged instructions to the jury, once during its general instructions on burden of proof, and again during its specific instructions on the elements of the crime. Although the challenged instruction was only given once in the present case, we see no significant distinction between the two cases. Rodgers was not decided based upon the number of improper instructions, but solely on the erroneous instruction to the jury on a principal issue in the case.


source: Caselaw Access Project

license: Public Domain

text:
    Audrey Zarrelli et al., Co-administrators (Estate of Janice Goodwin) v. Barnum Festival Society, Inc., et al.

      Patrick J. Flaherty, in support of the petition.

      Jay H. Sandak, in opposition.
    Decided May 8, 1986
   The named defendant’s petition for certification for appeal from the Appellate Court, 6 Conn. App. 322, is denied.


text:
    Rutherford P. Lilley v. Genevieve G. Lilley

      Samuel V. Schoonmaker III, in support of the petition.

      James Wu, in opposition.
    Decided May 8, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 6 Conn. App. 253, is denied.


text:
    Bette L. Ellsworth v. Whitby K. Ellsworth

      Thomas F. Parker, in support of the petition.

      Gwen B. Dreilinger, in opposition.
    Decided May 15, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 6 Conn. App. 617, is denied.


text:
    Irving H. Perlmutter v. Carol C. Johnson

      Carol C. Johnson, pro se, in support of the petition.
    Decided May 15, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 6 Conn. App. 292, is denied.


text:
    Valley Surgical Group, P.C. v. Administrator, Unemployment Compensation Act, et al.

      Joseph I. Lieberman, attorney general, and Richard T. Sponzo, assistant attorney general, in support of the petition.

      Ian Cole, in opposition.
    Decided May 15, 1986
   The named defendant’s petition for certification for appeal from the Appellate Court, 6 Conn. App. 588, is denied.


text:
    Canton Motorcar Works, Inc. v. Jack DiMartino et al.

      Lester Katz, in support of the petition..

      Stacey L. Savin, in opposition.
    Decided May 21, 1986
   The defendants’ petition for certification for appeal from the Appellate Court, 6 Conn. App. 447, is denied.


text:
    John Joseph Cimino v. Carl Robinson, Warden (Somers Correctional Institution)

      Joan A. Leonard, assistant public defender, in support of the petition.

      Brian E. Cotter, assistant state’s attorney, in opposition.
    Decided May 21, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 6 Conn. App. 680, is denied.


text:
    Gloria Duhl v. Paulo Duhl

      Daniel V. Presnick, in support of the petition.
    Decided May 21, 1986
   The plaintiffs petition for certification for appeal from the Appellate Court, 7 Conn. App. 92, is denied.


text:
    Deolinda B. Pereira et al. v. Administrator, Unemployment Compensation Act, et al.

      Joseph I. Lieberman, attorney general, and Richard T. Sponzo, assistant attorney general, in support of the petition.

      John C. Bullock, in opposition.
    Decided May 28, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 6 Conn. App. 658, is denied.


text:
    Harry Skolnick and Sons v. Samuel J. Heyman

      Jeffrey D. Ginzberg, in support of the petition.

      Stewart I. Edelstein, in opposition.
    Decided May 28, 1986
   The plaintiff’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 175, is denied.


text:
    Raymond Murteza v. State of Connecticut

      Wesley W. Horton, in support of the petition.

      James E. Kernan, in opposition.
    Decided May 28, 1986
   The plaintiff’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 196, is denied.


text:
    State of Connecticut v. Emmet Riggs

      Nicholas P. Cardwell, in support of the petition.

      Susan C. Marks, in opposition.
    Decided May 28, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 180, is denied.


text:
    Claudia Emerick v. Roger Emerick

      Roger Emerick, pro se, in support of the petition.
    Decided June 3, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 5 Conn. App. 649, is dismissed.


text:
    Robert B. Reilly, Sr., Conservator (Estate of Robert B. Reilly, Jr.) v. Carl DiBianco, Sr., et al.

      Roger J. Frechette, in support of the petition.
    Decided June 3, 1986
   The petition of the defendant Carl DiBianco, Jr., for certification for appeal from the Appellate Court, 6 Conn. App. 556, is denied.


text:
    Robert B. Reilly, Sr., Conservator (Estate of Robert B. Reilly, Jr.) v. Carl DiBianco, Sr., et al.

      Paul E. Pollack, in support of the petitions.
    Decided June 3, 1986
   The named defendant’s petitions for certification for appeal from the Appellate Court, 6 Conn. App. 556, are denied.


text:
    Hartford National Bank and Trust Company v. Paul T. DiFazio et al.

      Robert L. Hirtle, in support of the petition.

      Thelma A. Santos, in opposition.
    Decided June 3, 1986
   The defendants’ petition for certification for appeal from the Appellate Court, 6 Conn. App. 576, is denied.


text:
    John Joseph Jacobs v. Crown, Inc., et al.

      Herbert Watstein, in support of the petition.

      Maureen Danehy Cox, in opposition.
    Decided June 3, 1986
   The plaintiff’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 296, is denied.


text:
    State of Connecticut v. Thomas Farrar State of Connecticut v. Clinton Langley

      John R. Williams, in support of the petition.
    Decided June 12, 1986
   The defendants’ petition for certification for appeal from the Appellate Court, 7 Conn. App. 149, is denied.


text:
    State of Connecticut v. Jeffrey Mitchell State of Connecticut v. Howard Tinney, Jr.

      Milo J. Altschuler, in support of the petition.

      Michael E. O’Hare, assistant state’s attorney, in opposition.
    Decided June 12, 1986
   The defendants’ petition for certification for appeal from the Appellate Court, 7 Conn. App. 46, is granted.


text:
    Camille Addario et al. v. Lavin Enterprises, Inc.

      Joy Kony Peshkin, in support of the petition.

      Richard E. MacLean, in opposition.
    Decided June 12, 1986
   The plaintiffs’ petition for certification for appeal from the Appellate Court is denied.


text:
    Chester D’Agostino et al. v. City of New Britain et al.

      Joseph E. Shelly, Jr., in support of the petition.

      Harold J. Geragostan and Henry S. Zembko, Jr., in opposition.
    Decided June 12, 1986
   The defendants’ petition for certification for appeal from the Appellate Court, 7 Conn. App. 105, is denied.


text:
    John F. Carr, Jr. v. Nicholas Trotta

      Elliott B. Pollack, in support of the petition.

      Wesley W. Horton, in opposition.
    Decided June 12, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 272, is denied.


text:
    Donald J. Chairamonte v. John R. Manson, Commissioner of Correction

      Max F. Brunswick, in support of the petition.

      Julia DiCocco Dewey, assistant state’s attorney, in opposition.
    Decided June 18, 1986
   The plaintiff’s petition for certification for appeal from the Appellate Court, 6 Conn. App. 476, is denied.


text:
    Gloria Dichello Hall, Executrix (Estate of John F. Dichello) v. Dichello Distributors, Inc., et al.

      Karen Fox Tross, in support of the petition.

      John C. Yavis, Jr., and George A. Dagon, Jr., in opposition.
    Decided June 18, 1986
   The defendants’ petition for certification for appeal from the Appellate Court, 6 Conn. App. 530, is denied.


text:
    Richard Knapp v. Inland Wetlands Commission of the Town of Prospect

      Kevin M. Doyle, in support of the petition.

      Thomas W. Calkins, in opposition.
    Decided June 18, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 283, is denied.


text:
    State of Connecticut v. H. Earl Waterman, Jr.

      Sally S. King, in support of the petition.

      John M. Massameno, assistant state’s attorney, in opposition.
    Decided June 18, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 326, is denied.


text:
    Burton L. Zempsky’s Appeal from Probate

      Karen Fox Tross, in support of the petition.

      Irving H. Perlmutter and Matthew G. Galligan, in opposition.
    Decided June 18, 1986
   The plaintiffs petition for certification for appeal from the Appellate Court, 6 Conn. App. 521, is denied.


text:
    State of Connecticut v. Bernard Baldwin

      Neil A. Lieberthal, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided June 25, 1986
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 477, is denied.


author: Arthur H. Healey, J.

text:
    Town of Brookfield v. Candlewood Shores Estates, Inc.
    (12702)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued May 6—
    decision released August 12, 1986

      David S. Grossman, for the appellant (defendant).

      Paula Flanagan, for the appellee (plaintiff).
   Arthur H. Healey, J.

In June, 1984, the plaintiff town of Brookfield, a municipal corporation, commenced suit against the defendant Candlewood Shores Estates, Inc., for the collection of real and personal property taxes, interest, lien fees and attorney’s fees. On October 19, 1984, the defendant filed an answer including several special defenses as well as a counterclaim. On January 10,1985, the plaintiff filed its motion for summary judgment “on the issue of liability and damages” and attached to it two affidavits and certain other materials. At that time, however, the plaintiff had not filed its answer to the defendant’s counterclaim. On January 25, 1985, the defendant filed its counteraffidavit and other attached materials opposing the plaintiff’s motion for summary judgment. The plaintiff’s motion was set down on the short calendar of January 28,1985, as a nonarguable matter. On that date, and apparently before the 10 a.m. commencement of the short calendar, the plaintiff filed its reply to the counterclaim. The court, J. Healey, J., granted the plaintiffs motion on January 28, 1985. The court did not file a written memorandum of decision. The judgment awarded the plaintiff $227,429.28 in principal, $3500 in attorney’s fees and $329.20 in costs and ordered that interest continue to accrue at the statutory rate pursuant to General Statutes § 12-193.

The defendant appealed, claiming error in the granting of the summary judgment because: (1) the plaintiff filed its motion for summary judgment before the pleadings were closed in violation of Practice Book § 379; (2) the affidavit of Brookfield’s tax collector filed with its motion included evidence that violated the best evidence rule and would be inadmissible at a trial and was therefore in violation of Practice Book § 381; (3) a substantial portion of the debt claimed by the plaintiff is accrued interest which should not have been relied upon by the trial court because it was not supported by any statutory or computational authority or proof; and (4) there exists a genuine issue of material fact raised by the defendant in its special defenses and counterclaim and, therefore, the plaintiff was not entitled to summary judgment as a matter of law. In oral argument before us, the defendant withdrew all of the issues it had raised, including the claim that the counter-affidavit was sufficient, except those that claimed that the plaintiff’s motion was filed in violation of Practice Book §§ 379 and 381 and the so-called best evidence rule. We find error only in the award of attorney’s fees.

We turn to the defendant’s initial claim that it was error for the trial court to have granted summary judgment to Brookfield because its motion had been filed before the pleadings were closed in violation of Practice Book § 379. This claim lacks merit. Our rules of practice provide that “any party may move for a summary judgment, provided that the pleadings are closed as between the parties to that motion . . . . ” Practice Book § 379. The pleadings were not closed when the plaintiff moved for summary judgment by filing its motion on December 10,1985. There was in that sense a violation of the rule. We cannot, however, agree with the defendant that this required that the plaintiff’s motion “should not have been considered or granted.” Without condoning any such violation, we point out that when the plaintiff’s motion was filed, the court already had jurisdiction not only of the subject matter and the process but also of all the parties to this motion. See Telesco v. Telesco, 187 Conn. 715, 719-20, 447 A.2d 752 (1982); LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976). This procedural fáilure by the plaintiff did not, in any fashion, have the effect of terminating or ousting the jurisdiction of the trial court. At most, it made the trial court’s action in granting the summary judgment technically erroneous, but that error was rendered harmless by later circumstances, including the filing of the answer to the counterclaim, the lack of actual prejudice to the defendant, and the presumed consideration by the trial court, required under the circumstances, of the closed pleadings in deciding the plaintiff’s motion. See French v. Brown, 424 S.W.2d 893, 894 (Tex. 1967) (no jurisdictional flaw where court granted summary judgment prior to expiration of ten day period after filing motion). Harmless error analysis has been employed both under the Federal Rules of Civil Procedure and state rules where, in the absence of prejudice, summary judgment rules have not been followed.

In oral argument before this court, the defendant argued that because the plaintiff did not file its answer to the defendant’s counterclaim until the morning of January 28, 1985, shortly before the opening of the short calendar session on which the plaintiff’s summary judgment motion appeared, it was not known whether the court had knowledge that the answer had been filed, and thus may not have considered it in deciding the summary judgment motion. We note, however, that the judgment file, which is “the proper evidence of the rendition of the judgment and its terms”; State v. Lindsay, 109 Conn. 239, 243, 146 A. 290 (1929); Brown v. Cray, 88 Conn. 141, 146, 89 A. 1123 (1914); shows that judgment was rendered not on January 25, 1985, the date of the hearing, but on January 28, 1985.

The clerk of the Superior Court is a public officer of the state judicial department. See Morgan v. Schmid, 27 Conn. Sup. 481, 244 A.2d 824 (1965). The receipt, filing, recording and processing of pleadings in a pending matter are encompassed by his general duties under the statutes. See, e.g., General Statutes §§ 51-52, 51-52a. Public officers, acting in their official capacity, are presumed, until the contrary appears, to have acted legally and properly. Connecticut State Employees Assn. v. Board of Trustees, 165 Conn. 757, 766, 345 A.2d 36 (1974); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 568, 345 A.2d 520 (1973); see State v. Main, 69 Conn. 123, 140, 37 A. 80 (1897). This presumption has been held to apply to clerks of court. See James v. Municipal Court, 45 Cal. App. 3d 557, 560, 119 Cal. Rptr. 606 (1975); Palmer v. Emery, 91 Ill. App. 207, 214 (1900); Moreno v. Vietor, 261 Iowa 806, 813, 156 N.W.2d 305 (1968); Rim Group v. Mountain Mesa Uranium Corporation, 78 Wyo. 204, 210, 321 P.2d 229 (1958); 14 C.J.S., Clerks of Court § 46. It can therefore be presumed, since nothing on the record appears to the contrary, that the clerk took the necessary steps to make the plaintiffs answer to the defendant’s counterclaim available to the judge who acted on the summary judgment motion for his consideration in passing on that motion.

In addition, as to judges and courts, under the law of evidence, “it is presumed, unless the contrary appears, that judicial acts and duties have been duly and regularly performed, the presumption of regularity attending the acts of public officers being applicable to judges and courts and their officers . . . . ” 29 Am. Jur. 2d, Evidence § 170; Houston v. Hennessey, 534 S.W.2d 52 (Mo. App. 1975); Hamlin v. Hamlin, 302 N.C. 478, 276 S.E.2d 381 (1981); see Laundry, Dry Cleaning, Dye House Workers Union, Local 3008 v. Laundry Workers International Union, 4 Wis. 2d 542, 556, 91 N.W.2d 320 (1958); see also Cornett v. Williams, 87 U.S. (20 Wall) 226, 249-50, 22 L. Ed. 254 (1874); 29 Am. Jur. 2d, Evidence § 171. The general rule that a judgment, rendered by a court with jurisdiction, is presumed to be valid and not clearly erroneous until so demonstrated raises a presumption that the rendering court acted only after due consideration, in conformity with the law and in accordance with its duty. See Livingston v. Moore, 32 U.S. (7 Pet.) 469, 546, 8 L. Ed. 751 (1833); Ennis v. Giblin, 147 Fla. 113, 115-16, 2 So. 2d 382 (1941); Diehl v. Heimann, 248 Wis. 17, 20, 20 N.W.2d 556 (1945); 46 Am. Jur. 2d, Judgments § 28. We have said that “[a] judgment is entitled to reasonable presumptions in support of its validity.” Kelly v. New Haven Steamboat Co., 75 Conn. 42, 47, 52 A. 261 (1902); Miller v. Bridgeport Herald Corporation, 134 Conn. 198, 202, 56 A.2d 171 (1947). The correctness of a judgment of a court of general jurisdiction is presumed in the absence of evidence to the contrary. We do not presume error. The burden is on the appellant to prove harmful error. See, e.g., General Electric Supply Co. v. SNETCO, 185 Conn. 583, 603, 441 A.2d 581 (1981). The record before us is completely barren of any indication that the summary judgment rendered by the court below was infirm because of the defect suggested by the defendant on this branch of its claim.

We turn now to the defendant’s claim that the Brook-field tax collector’s affidavit supporting the summary judgment motion included, in violation of Practice Book § 381 and the best evidence rule, evidence that would have been inadmissible at trial and, therefore, should not have been considered by the trial court in deciding the motion. This claim is without merit.

The plaintiff attached to its motion for summary judgment, inter alia, the affidavit of Theresa York, the Brookfield tax collector, dated December 11, 1984. York’s affidavit, after setting out that she was “duly-sworn [and] deposefd],” recites that she was the tax collector of Brookfield and “as such, [was] familiar with the subject matter of [this] suit.” It also recites that the defendant is “presently the owner of each of those lots in Exhibit A to [the] Plaintiff’s Complaint” with the exception of certain lots described in the affidavit. In addition, it avers that “[a] complete and accurate breakdown of the taxes due and owing from the defendant ... on each lot which they own is attached [to York’s affidavit] as Exhibit A-77 inclusive. Said Exhibits include principal, interest and lien fees by year through the first half of the list of October 1,1983 with interest calculated through November 1984.” Id. There is also attached, as Exhibit B, a memorandum from York on her official stationery as tax collector giving a detailed three page recitation of the method and percentages used by her in calculating the interest figures. It concludes by reciting that interest after November 30, 1984, should continue at the statutory rate and that there exist no setoffs. Finally, the affidavit is subscribed and sworn to by York before what appears to be a proper authority.

York’s affidavit comports with the requisites of an affidavit; it is a written statement taken under oath before an authorized officer. 2A C.J.S., Affidavits § 2; 3 Am. Jur. 2d, Affidavits § 1; see generally State v. Wolfe, 156 Conn. 199, 205, 239 A.2d 509 (1968). Generally speaking, affidavits are used for, and should contain, a presentation of facts by a person having knowledge of those facts, and the facts recited must be those requisite to establish the principal facts sought to be maintained. See 2A C.J.S., Affidavits § 43. Specifically, as to summary judgment, “[supporting and opposing affidavits ‘shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’ Practice Book § 381; Citizens National Bank v. Hubney, [182 Conn. 310, 312, 438 A.2d 430 (1980)]; Evans Products Co. v. Clinton Building Supply, Inc., [174 Conn. 512, 514, 391 A.2d 157 (1978)].” Mingachos v. CBS, Inc., 196 Conn. 91, 111, 491 A.2d 368 (1985). The operative facts stated by York in her affidavit, which encompasses the exhibits attached, are matters within her personal knowledge as the tax collector of Brookfield. Her affidavit specifically recites that, as the tax collector, she is “familiar with the subject matter of [this] suit.” It is recognized that “[a]n affidavit may be used to introduce documentary or other written proof, and in that event such written materials should be attached to the affidavit or served with it” as they were in this case. 6 Moore, Federal Practice (2d Ed.) 1 56.11[l.-2], p. 56-200; see 3 Am. Jur. 2d, Affidavits § 20. If, as one court has said, “[a]n affidavit should set forth the factual picture by a person who knows the facts”; People v. Mirasola, 35 Misc. 2d 886, 887, 231 N.Y.S.2d 645 (1962); the York affidavit does so.

Moreover, these facts would be “admissible in evidence” despite the defendant’s claim that to admit them would violate the “best evidence” rule and Practice Book § 381. The defendant claims that although the tax records are matters of public record, they are still subject to the operation of the “best evidence” rule. The defendant therefore claims that either the original documents or duly certified copies are required as the best evidence of the taxes assessed and claimed by Brookfield to be owing. We do not agree.

The best evidence rule is not applicable to this case. McCormick defines the rule thus: “[I]n proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.” McCormick, Evidence (3d Ed. 1984) § 230. Most modern commentators follow Wig-more, who rejected the theory that the rule was basically aimed at the prevention of fraud, and maintain instead that the “basic premise justifying the rule is the central position which the written word occupies in the law.” McCormick, supra, § 231. It is because of this centrality, opines McCormick, that “presenting to a court the exact words of a writing is of more than average importance, particularly in the case of operative or dis-positive instruments such as deeds, wills or contracts, where a slight variation of words may mean a great difference in rights.” Id. Common sense and fairness dictate that the necessity for the production on this motion of the original records does not exist here as critically as it would with, for example, a will, a deed or a contract. Although the rule was originally perceived to be of possible application to all kinds of evidence; see Barnum v. Barnum, 9 Conn. 242, 248-49 (1832); it has tended to become “now chiefly confined to the rule that the terms of a document must be proved by the production of the document itself, unless production is not feasible: see . . . Wigmore, Evidence (2d Ed.), section 1174.” Commonwealth v. Joyce, 316 Pa. 434, 439, 175 A. 422 (1934); Commonwealth v. Krukoff, 223 Pa. Super. 395, 397, 302 A.2d 388 (1973); McCormick, supra, § 231; 32A C.J.S., Evidence § 777. In any event, the best evidence rule “at common law is a preferential, rather than an exclusionary rule.” Comment on Rule 602 Clause (a) of the Model Code of Evidence (American Law Institute) p. 301; Fauci v. Mulready, 337 Mass. 532, 540, 150 N.E.2d 286 (1958); Vreeland v. Essex Lock & Mfg. Co., 135 Vt. 1, 5, 370 A.2d 1294 (1976); see Commonwealth v. Joyce, supra, 439. In Vreeland,.the Vermont Supreme Court said: “[T]he rule is not intended as an exclusionary one; it is merely a rule of preference operating as a special exception to the rules of testimonial preference.” Vreeland v. Essex Lock & Mfg. Co., supra.

It is true that the original tax records are with the defendant’s adversary in this litigation, but no claim is made that the defendant was unable to examine them thoroughly nor did it seek any continuance to do so to assist it in resisting the plaintiff’s summary judgment motion. In addition, the general view is that courts will not require the removal of public records and documents that are required by law to be retained by their official custodian in a public office designated for their custody. McCormick, supra, § 240. While we need not decide this specific question, it is apparent that to require removal of the Brookfield tax records relevant to this motion would not only tend to disrupt the function of the tax collector’s office but might possibly result in loss or damage to such records. There is widespread authority for the view that records that are too voluminous to be produced and examined conveniently in court may be summarized and their import testified to by a witness, usually an expert, who has reviewed them in their entirety. McCormick, supra, § 233; see, e.g., Elmira Roofing Co. v. Gould, 71 Conn. 629, 42 A. 1002 (1899); State v. Schrader, 64 N.M. 100, 324 P.2d 1025 (1958); Keen v. O’Rourke, 48 Wash. 2d 1, 5, 290 P.2d 976 (1955); 66 A.L.R. 1206 (right of witness to give summary based on inspection of a number of documents); see also State v. Hayes, 127 Conn. 543, 600-601, 18 A.2d 895 (1941).

In this case, while the underlying records were not physically in court, they were subject to the defendant’s inspection as public records. At oral argument, the plaintiff’s counsel stated that that town’s tax collector’s records were maintained in ledgers and were not computerized. The record does not show that the defendant at any time sought to bring them in or offered certified copies itself nor did it move the court for an order to continue the matter so that it might examine them more closely. The method by which the plaintiff chose to present the materials on summary judgment, together with the absence of any evidence that the defendant sought to give substance to its opposition by availing itself of its access to such records, is underscored by the plaintiff’s uncontradicted representation that to require the production of certified copies would have meant obtaining approximately 800 documents in addition to the plaintiffs calculation of interest. The expertise of the tax collector in this case is not seriously questioned. Her methodical mathematical calculations, based upon public records available to the defendant, hardly bar summary judgment. Not only is her affidavit, which incorporates the materials referred to above, made on personal knowledge, but it sets forth facts that would be admissible in evidence and shows affirmatively that she is competent to testify to the matters stated. See Practice Book § 381. There was no error in the rendering of summary judgment; see, e.g., Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984); except on the award of attorney’s fees to which we now turn.

The plaintiffs attorney appended to its motion for summary judgment her affidavit in support of the claim for attorney’s fees in which she set out that she had spent “substantial time in prosecuting [the] matter.” She chronicled what she had done in this complex case and concluded the affidavit by stating: “I believe that a reasonable fee for my services in this matter is $3,500.00.” As part of its summary judgment, the trial court awarded attorney’s fees in the amount of $3500. It was error to award attorney’s fees.

In the United States, the general rule of law known as the “American Rule” is that “a prevailing litigant ordinarily is not entitled to collect a reasonable attorney’s fee from the opposing party as part of his or her damages or costs. Alyeska Pipeline [Service] Co. v. Wilderness Society, 421 U.S. 241, 247, [95 S. Ct. 1612, 44 L. Ed. 2d 141] (1975).” Watkins v. Labor & Industry Review Commission, 117 Wis. 2d 753, 758, 345 N.W.2d 482 (1984); Campana v. Muir, 615 F. Sup. 871, 873 (M.D. Pa. 1985) Oklahoma Publishing Co. v. Miskovsky, 654 P.2d 596, 599-600 (Okla. 1982); 6 Moore, supra, ¶ 54.77[n]; 7 Am. Jur. 2d, Attorneys at Law § 238. There are certain exceptions to this rule. See, e.g., Campana v. Muir, supra, 874; Philadelphia Gear Corporation v. F.D.I.C., 587 F. Sup. 294, 298 (W.D. Okla. 1984), rev’d, 476 U.S. 426, 106 S. Ct. 1931, 90 L. Ed. 2d 428 (1986); Watkins v. Labor & Industry Review Commission, supra; see also Moore, supra. In the main, exceptions are based upon statutory or contract provisions authorizing the recovery of attorney’s fees by a prevailing litigant. We have been directed to no exceptions that can fairly be said to authorize the attorney’s fees awarded nor do we perceive any authority to do so on this record. No statutory or contractual basis for such a recovery is evident. The general view appears to be that costs and fees are taxable and recoverable in proceedings to collect municipal taxes when and to the extent that that is empowered and fixed by statute or ordinance under legislative authorization. See 64 C.J.S., Municipal Corporations § 2083; see also 16 McQuillin, Municipal Corporations (3d Ed. Rev.) § 44.135e; McCormick, Damages (1935) p. 244.

This litigation was an action to collect a debt and was clearly and admittedly not a foreclosure. General Statutes §§ 12-181 and 12-182 (foreclosure of municipal tax liens). General Statutes § 12-193 permits, inter alia, that “reasonable attorney’s fees incurred by a municipality as a result of any foreclosure action brought pursuant to section 12-181 or 12-182 and directly related thereto shall be taxed in any such proceeding against any person or persons having title to any property so foreclosed.” These statutes are simply not applicable to this action. It was error to award attorney’s fees in this matter.

There is error only in the award of attorney’s fees, the judgment is set aside and the case is remanded with direction to render judgment as on file except as modified in accordance with this opinion.

In this opinion Shea, Dannehy and Santaniello, Js., concurred.

Peters, C. J., concurred in the result.

       Practice Book § 211 provides in part: “When Appearance of Counsel Is Not Required at Short Calendar”
      “(A) The court, except as hereinafter provided, will decide the following short calendar matters without oral argument and the appearance of counsel at the short calendar: . . . (10) motions for summary judgment . . . .”
      Although this rule provides that oral argument may be had at the request of a party to the motion or by the court on its own motion, there is no claim or indication that any such circumstance occurred in this case.

       Practice Book § 379 which concerns the “Scope of [the Summary Judgment] Remedy” provides:
      “In any action, except actions for dissolution of marriage, legal separation, or annulment of marriage, and except administrative appeals which are not enumerated in Sec. 257 (d), any party may move for a summary judgment, provided that the pleadings are closed as between the parties to that motion. These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action.” (Emphasis added.)

       Practice Book § 381 which concerns the “Form of Affidavits” provides:
      “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.” (Emphasis added.)

       Rule 56 (e) of the Federal Rules of Civil Procedure affords the parties a period of ten days between the service of the motion and the hearing to support or oppose the motion with suitable materials. “Even where a formal motion [for summary judgment] is madej/the trial court may not ignore the requirement that the motion be served at least 10 days before hearing, but the defect is waivable and subject to the harmless error rule.” 6 Moore, Federal Practice (2d Ed. 1986) f 56.14[1], p. 56-356; see Ikerd v. Lapworth, 435 F.2d 197 (7th Cir. 1970) (not reversible error where court entered summary judgment against appellant prior to expiration of ten day period where appellant made no claim “of any specific resulting prejudice”); Township of Benton v. County of Berrien, 570 F.2d 114 (6th Cir. 1978); Fender v. General Electric Co., 380 F.2d 150 (4th Cir. 1967) (both applying harmless error analysis to violation of ten day rule).

       General Statutes § 51-52 (c) provides: “Temporary assistant clerks shall have the same duties as clerks of court.”
      General Statutes § 51-52a (d) provides in part: “Deputy chief clerks, clerks, deputy clerks and assistant clerks shall have the same powers as chief clerks of the superior court, subject to the direction of the chief clerk . . . .”
      General Statutes § 51-52a (f) provides: “A temporary assistant clerk shall have the same powers as clerks of the court.”

       Examination of the court file discloses that there is attached to the original complaint as Exhibit A a list of 82 lots described by block location, lot number, highway name, the taxes due, the lien fee, the list number and the map book location by book and page number.

       Exhibit A1 through A77 consists of 77 pages and includes the percentage at which the interest on each lot’s taxes was computed by the affiant.

       In claiming that the best evidence rule is applicable, the defendant cites Cherniske v. Jajer, 171 Conn. 372, 370 A.2d 981 (1976), and State v. McNamara, 128 Conn. 273, 22 A.2d 10 (1941), to support its position. Neither Chemiske nor McNamara avail the defendant because of our conclusion that the best evidence rule is not applicable to this case.
      Even if it were applicable, neither case would change the result we reach. In Chemiske, which involved a will contest, the value of certain real estate was in issue. To prove the value of the land at the time of the testator’s death, the contestants offered a newspaper article which listed the previous year’s assessments of the value of area property and the new assessments made in a subsequent revaluation. In finding error on the admission of the newspaper article, we pointed out that to do so violated “the so-called best evidence rule.” Cherniske v. Jajer, supra, 377. In doing so, we stated: “As the tax assessments are matters of public record; see General Statutes § 12-55; they are subject to the operation of the best evidence rule. See 29 Am. Jur. 2d, Evidence, § 482. No valid excuse was given in this case for the failure to present the actual records or certified copies thereof. Therefore, the newspaper article was clearly inadmissible.” Id. In the case before us, unlike Chemiske, we have the safeguard of the oath on an affidavit of a public officer in which a wilful misstatement would be perjurious. In addition, it is the affidavit of the municipal official who oversees the municipal tax collection operations and who is, fairly viewed, the official custodian of such records. Her familiarity with such records insofar as this litigation is concerned is specifically sworn to by her in the affidavit. As explicated in the opinion above, unlike Chemiske, a “valid excuse” did exist for not producing the actual records. Moreover, even if the matters set out in the affidavit were hearsay in part, none of them constitutes that double-layered hearsay demonstrated by the newspaper article in Chemiske.

      In McNamara, the defendant, the Bridgeport city tax marshal who had been appointed by the tax collector, was charged with the crime of embezzlement because of felonious misappropriation of money collected by him for the tax collector. At his trial, the defendant offered into evidence through his wife, who was the deputy tax collector, four sets of papers made up in part from exhibits in evidence and in part from the rate books. The state objected to the offer on the ground that it was entitled to the original records on which the exhibits were based under Elmira Roofing Co. v. Gould, 71 Conn. 629, 42 A. 1002 (1899), and also because they were self-serving recitations of evidence. The defendant then issued a subpoena duces tecum to the tax collector. The latter reported to the court that he had not brought the books to court because “there were over one hundred and four of them, because he had not facilities for bringing them to the courthouse and because, without the books, he would have to close his office.” See State v. McNamara, supra, 279. The court absolved the tax collector of contempt and suggested to the defendant that he procure under General Statutes § 5601 (the precursor of what is now General Statutes § 52-165) certified copies of such records. The defendant did not do so.
      In McNamara, this court held that the trial court did not abuse its discretion in refusing to hold the tax collector in contempt. This is significant considering the reasons the tax collector gave the trial court in McNamara for not producing the one hundred and four tax rate books. In any event, the trial court “suggested” that the defendant procure certified copies under a statute which, parenthetically, was not the precursor of the statute, i.e., General Statutes § 12-55, referred to in Chemiske. That “suggestion” which was not followed was not a ruling that the best evidence rule applied and this court’s opinion in McNamara is no basis for saying that it did.

       At oral argument before us, we raised the question of the propriety of the award of attorney’s fees. The plaintiff’s counsel, in colloquy with the court, indicated that it was “probably true” that the award of such fees was error although she maintained that this had not been raised by the defendant as an issue. Although this matter was not briefed by the parties, we do note that the defendant’s memorandum of law filed in opposition to the plaintiff’s motion for summary judgment states: “Although the plaintiff is seeking legal fees, no statutory authority is given.” In any event, we consider the award of attorney’s fees in this case to constitute plain error. We may apply the plain error doctrine “although [such error was] unnoticed by the parties” or the trial court. Stoni v. Wasicki, 179 Conn. 372, 377, 426 A.2d 774 (1979); see also Greenwood v. Greenwood, 191 Conn. 309, 315, 464 A.2d 771 (1983).