author: Santaniello, J.

text:
    State of Connecticut v. Steven Boucino
    (12068)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued December 4, 1985
    decision released March 18, 1986

      Richard T. Meehan, Jr., with whom, on the brief, was James J. Ruane, for the appellant (defendant).

      Elpedio Vitale, deputy assistant state’s attorney, with whom were Julia D. Dewey, assistant state’s attorney, and, on the brief, ArnoldMarkle, state’s attorney, and John Durham, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

After a trial by jury, the defendant, Steven Boucino, was convicted of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4), and larceny in the first degree, in violation of General Statutes § 53a-122 (a) (2). He received a total effective sentence of not less than fifteen nor more than forty years. On appeal, he raises a number of claims: (1) that the trial court erred in excluding alibi testimony for failure to comply with Practice Book § 763; (2) that the trial court erred in failing to suppress in-court and out-of-court identifications of the defendant made by two witnesses to the robbery; (3) that his conviction of both larceny and robbery violated his constitutional right to be free from double jeopardy; (4) that his constitutional right of due process was violated by the failure of the trial court to have final arguments recorded; and (5) that the trial court erred in making various evidentiary rulings. We find no error.

The jury could reasonably have found that the defendant and an accomplice entered the City Trust Bank in Cheshire on May 22, 1980, at 11:30 a.m., and robbed it of approximately $9000. The defendant was armed with a shotgun and his companion with a pistol. Both men had nylon stockings covering their faces. The defendant stood near the entrance and issued commands to the people in the bank while his companion jumped over the counter and obtained the money. The entire robbery lasted approximately ten to twelve minutes. A number of bank employees were later able to describe the two men and one, Nina Mansourian, was able to select the defendant’s photo from two arrays. A customer of the bank, Beatrice Ararat, who saw the defendant leaving the bank in his car, also identified him from two arrays. Other facts will be discussed as they become relevant to the specific claims raised.

I

The defendant’s first claim is that the trial court erred in excluding proffered alibi testimony. He argues that Practice Book §§ 762 through 767, our so-called “notice of alibi” discovery rules, are unconstitutional in two respects. First, he claims that the Practice Book provisions are facially invalid because they infringe his fifth amendment privilege against self-incrimination and his right to due process. Second, he claims that the application of the Practice Book rules by the trial court violated his sixth amendment rights to compulsory process and to present a defense. We disagree and find that, under the circumstances of this case, the trial court acted properly in excluding the alibi testimony.

Adopted on June 7, 1976, our state’s notice of alibi discovery rules are similar in scope and wording to those used in the federal system and most states. See Fed. R. Crim. Proc., rule 12.1; see generally LaFave & Israel, Criminal Procedure (1985 Ed.) § 19.4 (b). Practice Book § 763 provides that “[u]pon written demand filed by the prosecuting authority . . . the defendant shall file within ten days, or at such other time as the judicial authority may direct, a written notice of his intention to offer a defense of alibi.” The notice “shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely . . . .’’Practice Book § 763. If the defendant files notice, the state “within ten days after filing of the notice, but in no event less than ten days before the trial unless the judicial authority otherwise directs, shall file a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied upon to rebut testimony of any of the defendant’s alibi witnesses.” Practice Book § 764. Upon failure of the defendant or the state to comply with these provisions, the trial court “may exclude the testimony of any undisclosed witness . . . . ” Practice Book § 766. “For good cause shown, the judicial authority may grant an exception to any of the requirements of [§§] 763 through 766.” Practice Book § 767.

The defendant in this case concedes that he failed to comply with Practice Book § 763 and that Practice Book § 766 authorizes the trial court to exclude the testimony of undisclosed alibi witnesses. The state filed its demand for notice pursuant to § 763 on July 2,1980. The trial court granted the state’s demand on July 15, 1980. No response was filed by the defendant until August 19,1982. It came ten days after the jury selection and seven days after the state had begun to present its case. On the date of the filing, the state objected to the late notice but discussion of the issue was postponed at the state’s request until August 26. On that date, the state argued that the defendant should be precluded from calling the five alibi witnesses listed in the late notice because of the defendant’s failure to comply with the state’s demand. Defense counsel at trial admitted to the court that the filing did not comply with the Practice Book but explained that the defendant “did not want these people harrassed.” No other reason for the delay was given. No evidence was presented concerning any prejudice suffered by the state due to the delay and there was no request for a continuance to allow the state time to interview the witnesses. The court found that the defendant had “utterly failed to comply” with the applicable notice requirements and that he had not shown “good cause” why the court should grant an exception to the rule of exclusion.

The defendant claims that the Practice Book notice of alibi discovery rules are facially invalid because they restrict his privilege against self-incrimination and his right to due process. He does not question the well established rule that reciprocal alibi notice provisions are valid. See Wardius v. Oregon, 412 U.S. 470, 474-76, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973); Williams v. Florida, 399 U.S. 78, 82, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970); Mayer v. Moeykens, 494 F.2d 855, 859 (2d Cir.), cert. denied, 417 U.S. 926, 94 S. Ct. 2633, 41 L. Ed. 2d 229 (1974); State v. Villafane, 171 Conn. 644, 666-68, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977). He claims instead that Connecticut’s alibi provisions are not truly “reciprocal” because the time period for disclosure favors the state.

We do not agree that the notice provisions favor the state and we therefore reject the defendant’s fifth amendment and due process claims. The defendant argues that “[t]he state is given the entire period of from 10 days after its demand, usually right after arraignment, until 10 days prior to trial to investigate defendant’s alibi. It is not required to disclose its rebuttal to the alibi until 10 days prior to trial, and not at all if defendant has not complied with Section 762.” The defendant misinterprets the rules. Under Practice Book § 764, the state is required to file notice of its rebuttal witnesses within ten days after the defendant files his notice of alibi. The Practice Book notice provisions treat each party with an even hand and adequately implement the mandate of Wardius v. Oregon, supra, 475, that “discovery . . . be a two-way street.” And while it is true that the state’s duty to file is not triggered unless the defendant first files his notice; see State v. Burns, 194 Conn. 469, 477-79, 481 A.2d 1077 (1984); we fail to see how this unconstitutionally favors the state when the defendant can compel disclosure by his own timely action.

The defendant also claims that the sanction of exclusion imposed by the trial court under Practice Book § 766 violated his sixth amendment rights to compulsory process and to present a defense. The United States Supreme Court has yet to address the sixth amendment implications of a state’s power to enforce its discovery rules against a criminal defendant by excluding probative, relevant evidence. See Williams v. Florida, supra, 83 n.14. Other courts have held that use of such sanctions is not, per se, a violation of the sixth amendment. See, e.g., State v. Dodd, 101 Ariz. 234, 237, 418 P.2d 571 (1966); State v. Roberts, 226 Kan. 740, 744, 602 P.2d 1355 (1979); Commonwealth v. Edgerly, 372 Mass. 337, 343, 361 N.E.2d 1289 (1977); State v. Smith, 88 N.M. 541, 543, 543 P.2d 834 (1975); State v. Flohr, 301 N.W.2d 367, 371 (N.D. 1980); Commonwealth v. Vecchiolli, 208 Pa. Super. 483, 489, 224 A.2d 96 (1966); State ex rel. Simos v. Burke, 41 Wis. 2d 129, 139-40, 163 N.W.2d 177 (1968). We agree that the right to compulsory process is not absolute. The sixth amendment “does not confer the right to present testimony free from the legitimate demands of the adversary system.” United States v. Nobles, 422 U.S. 225, 241, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975). “The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system [for a notice of alibi rule] which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.” Williams v. Florida, supra, 82. The notice of alibi rules place reasonable conditions on the presentation of alibi evidence and do not impermissibly restrict a criminal defendant’s right to compel attendance of witnesses. Rider v. Crouse, 357 F.2d 317, 318 (10th Cir. 1966); Taliaferro v. State, 295 Md. 376, 389, 456 A.2d 29 (1983); State v. Smith, supra; see generally LaFave & Israel, supra, § 19.4 (j).

We recognize, however, as have most courts addressing the issue, that exclusion of alibi witnesses may not be justified in all cases where the defendant has failed to comply with the discovery rules. The trial court must weigh the need for exclusion against the defendant’s right to present a defense. See note, “The Preclusion Sanction—A Violation of the Constitutional Right to Present a Defense,” 81 Yale L.J. 1342,1353-56 (1972). The decision is within the sound discretion of the trial court and will turn on the facts of the particular case. Factors which the trial court must consider include: “whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.” Taliaferro v. State, supra, 390-91; see also United States v. Myers, 550 F.2d 1036, 1043 (5th Cir. 1977); Commonwealth v. LaFrennie, 13 Mass. App. 977, 979, 432 N.E.2d 535 (1982); People v. Merritt, 396 Mich. 67, 82-83, 238 N.W.2d 31 (1976); State v. Smith, 17 Ohio St. 3d 98, 104, 477 N.E.2d 1128 (1985).

In considering whether the trial court in this case abused its discretion in ordering exclusion, we note at the outset that the defendant’s violation was rather substantial. He filed his notice of alibi witnesses over two years late. He did so only after trial had begun and at a time when the state was close to concluding its casein-chief. It is apparent from the record that the nondisclosure was intentional and not due to inadvertence. Where disclosure is intentionally withheld, ordinarily there is no abuse of discretion in excluding proffered testimony. People v. Douthit, 51 Ill. App. 3d 751, 754-55, 366 N.E.2d 950 (1977) (defense counsel used the delay as a “tactical maneuver aimed at surprise”); State v. Smith, 17 Ohio St. 3d 98, 104, 477 N.E.2d 1128 (1985) (alibi evidence withheld “as a planned trial tactic”). As to the considerations of prejudice and the desirability of a continuance, there is very little evidence on the record to determine their applicability in this case. Neither the defendant nor the state requested an evidentiary hearing to consider the prejudice that noncompliance caused the state, or the prejudice to the defense caused by exclusion. Neither party requested a continuance to cure the prejudice caused by the delay. The defendant argues that the trial court had an independent duty to conduct an inquiry into any prejudice and to consider the alternate remedy of a continuance. The defendant further claims that failure to conduct such an inquiry constitutes an automatic abuse of discretion.

We reject the defendant’s contention that the trial court had an independent duty to inquire about the circumstances surrounding the delay. Once the state has established that the defendant has failed to comply with the Practice Book discovery rules, it is incumbent on the defendant to make a showing of good cause under Practice Book § 767 or to request a remedy other than exclusion of the alibi testimony. If a hearing is needed to establish the reasons why exclusion is not warranted under the circumstances, the defendant has the initial burden of requesting such a hearing. If the trial court in its discretion orders such a hearing, the defendant must then establish the prejudice that exclusion will cause. The state will carry the burden of showing why its case was prejudiced by the delay. The rule of Colter v. State, 297 Md. 423, 466 A.2d 1286 (1983), on which the defendant relies, does not hold to the contrary. In Colter, the Maryland Court of Appeals held that the trial court erred in applying an automatic rule of exclusion. Id., 429-31. It did not hold, as the defendant suggests, that a trial court is required to conduct an inquiry into prejudice or alternate remedies on its own accord.

On the basis of this record, we cannot say that the trial court abused its discretion in excluding the proffered alibi testimony. The defendant has failed to present us with the necessary facts to justify a finding that the sanction of exclusion was unwarranted. We refuse to require the trial court to conduct an independent inquiry into the necessity for exclusion and we will not presume that the trial court in this case abused its discretion under the circumstances. See State v. Conrod, 198 Conn. 592, 598, 504 A.2d 494 (1986).

II

The defendant’s second claim is that the trial court erred in failing to suppress in-court and out-of-court identifications of the defendant made by two witnesses to the robbery, Nina Mansourian and Beatrice Ararat. The defendant claims that the identifications were tainted by unnecessarily suggestive police procedures and were unreliable. We do not agree.

Mansourian was a teller in the bank on the day of the robbery. Upon entering the bank, the robber later identified as the defendant ordered Mansourian to lie down on the floor. She stayed there throughout the robbery and had the opportunity to view him for at least ten minutes at a distance of twenty feet. Afterwards, she described the robber to the police as about six feet tall, 165 pounds and thin, as having a mustache, dark hair and a thin face, and as wearing a baseball cap, jean-type pants and a nylon stocking over his face. She worked with a police artist but was unable to come up with an accurate composite sketch. The day of the robbery, she also informally viewed a group of six to ten photographs at the bank, but the evidence is unclear whether the defendant’s photo was among those viewed.

The police came back to the bank one week after the robbery to see if any of the employees could identify the robbers from a photographic array. Mansourian was shown a total of twenty-four photographs arranged on three photoboards. Some of the pictures were black and white and some were color. All of the pictures were of white males and fifteen of the men had mustaches. From this array Mansourian selected a photo of the defendant and said that “the individual at the bank would look like him if the face was thinner.” A week later, Mansourian went to the Cheshire police station and was shown another array. There were sixteen photos altogether, two pictures each of eight individuals. The photos were all color, were of white males with mustaches and were arranged on two photo-boards. Mansourian again selected the photos of the defendant, but stated that her “recollection is that he had dark hair, and in the picture it . . . looked blondish.” She also recalled the robber as being thinner than the man in the photo.

When the photo arrays were shown to Mansourian, the police did not in any way suggest to her which photo to select. The defendant’s photo was the only one in both arrays. The photograph of the defendant in the first array was a black and white close-up shot while the photos in the second array were color half-body shots taken from a front and side view.

Ararat, on the day of the robbery, was in her car in the bank’s parking lot when she saw the defendant. He was in the passenger seat of another car and was only six to seven feet away from her when she saw him. She later described him as about five feet seven inches to five feet eight inches tall, 30-33 years old, as having dark-blonde or light-brown hair, a slim build, and as wearing a baseball cap and a “zip-up” jacket. On the evening of the robbery the police came to her house and showed her the same three photoboards shown to Mansourian at the bank one week later. She selected the defendant’s photo from the array and said that the man in the photograph was “very much like the man” in the car but that he was thinner than in the picture. A few days after the robbery, the police showed Ararat another array of photos which was the same as the second set shown Mansourian. She again selected the defendant’s photograph and said that she had “no doubt” that the person depicted was the passenger in the car. The police did not suggest to her on either occasion which photo to select.

“We have often stated the test that governs the suppression of identification evidence derived from procedures that are challenged as violative of a defendant’s constitutional rights to due process. In order to succeed on his motion to suppress, the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances.” State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Aversa, 197 Conn. 685, 693-94, 501 A.2d 370 (1985); State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 836 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985). The defendant argued to the trial court in his motion to suppress that the recurrence of his photo in the challenged arrays was suggestive. The court held an extensive hearing on the motion and found that the procedure used by the police was not suggestive, and that, even if it had been, the identifications were reliable.

Although “we have recognized that pictorial recurrence can be suggestive in that it increases the risk of misidentification”; State v. McKnight, 191 Conn. 564, 572, 469 A.2d 397 (1983); State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981); see Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); the recurrent use of a defendant’s photo in successive arrays is not presumptively suggestive. United States v. Bowie, 515 F.2d 3, 7-8 (7th Cir. 1975); State v. Hinton, supra, 294; Commonwealth v. Paszko, 391 Mass. 164, 169-70, 461 N.E.2d 222 (1984). In State v. Hinton, supra, we held that when the initial identification is made with a high degree of assurance and the photograph of the defendant in the second array is different and more recent than that used in the first, the procedure may not be suggestive. This is especially true where “the defendant makes no claim of improper procedure such as the ‘unduly suggestive’ police comments we criticized in State v. Austin. ” Id.

The recurrent use of the defendant’s photograph in this case cannot be said to be unnecessarily suggestive. Both witnesses made positive identifications of the defendant in the first array. The defendant has not claimed that the arrays were in any way suggestive other than the fact that his photograph appeared in both series of photographs shown to the witnesses. The photographs of the defendant in the second array were wholly different from those used in the first. The photos in the second array were in color, portrayed two different angles of the defendant, showing him from the waist up and were taken a few days after the arrest. The photo in the first array was black and white, portrayed a front view of his face and shoulders, and was taken a month before the robbery. Under these circumstances, the use of the photographs in the second array could only have benefited the defendant by further testing the recollection of the witnesses. See State v. Hinton, supra. Furthermore, the fact that both witnesses commented that the defendant had been thinner at the time of the robbery is evidence that they had good recall of the crime itself and that they were therefore “unlikely candidatefs] for subliminal seductions.” State v. Perez, supra, 75, quoting State v. Ledbetter, supra, 615.

Even if we were to assume that the procedure employed by the police was unnecessarily suggestive, we agree with the trial court that the identifications were reliable. The determination of reliability is made under the totality of the circumstances. State v. Gold, 180 Conn. 619, 655, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); see also Neil v. Biggers, 409 U.S. 188, 199-201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). Factors to consider include “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. Aversa, supra, 694; State v. Hinton, supra, 295-96.

Considering the totality of the circumstances, we conclude that the identifications in this case were reliable. Both Mansourian and Ararat made their identifications within two weeks of the robbery. Both exhibited a high degree of certainty that the individual in the photographs was the person that they had seen and both gave accurate descriptions to the police. Mansourian viewed the defendant in the brightly lit bank for at least ten minutes at a distance of about twenty feet. The defendant’s face was covered with a nylon stocking at the time but Mansourian was still able to discern enough of his facial features to attempt a composite sketch. Ararat viewed the defendant in daylight while only six to seven feet away. The defendant did not have a stocking over his face at that time and the position of the cars enabled her to get a good look at him. Both witnesses also focused their attention on the defendant—Mansourian because he was in direct Anew and was issuing commands to the people in the bank, Ararat because she thought that her car had hit the defendant’s vehicle.

On the basis of this record, we conclude that the defendant has failed to meet his burden of shoAving that the pictorial arrays used by the police were suggestive and that the identifications were unreliable. The defendant also raises a claim, however, that Mansourian’s in-court identification was somehow tainted when the court allowed her to view the defendant and to look at the back of his head while making her identification. He argues that this procedure was suggestive and violated Practice Book §§ 775 through 778. This claim has no merit. The Practice Book sections referred to concern pretrial discovery and are inapplicable in this instance. Also, although an in-court viewing of the defendant by a Avitness making an identification may be suggestive; see State v. Fullwood, 193 Conn. 238, 251, 476 A.2d 550 (1984); if the identification is found to be nevertheless reliable, as here, the in-court identification need not be suppressed. The fact that the defendant was made to turn his head has no special significance. See Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).

Ill

The defendant’s next claim is that the trial court erred in refusing to compel the state to elect between trying him for robbery in the first degree and larceny in the first degree. He argues that conviction and sentencing on both counts violated his constitutional right not to be placed twice in jeopardy for the same offense.

“The double jeopardy clause of the fifth amendment prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. Frazier, 194 Conn. 233, 237-38, 478 A.2d 1013 (1984).” State v. Thompson, 197 Conn. 67, 72, 495 A.2d 1054 (1985). “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” State v. Devino, supra, 74; see Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); State v. Frazier, supra, 238. The state concedes in this case that both charges arose out of the same act. Our focus then is directed to whether the crimes are the same offense, or, in other words, whether “the proof of a violation of one statute necessarily requires proof of a violation of the other.” State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982).

A review of the relevant statutes indicates that the crimes of robbery in the first degree and larceny in the first degree require proof of distinct elements. To convict the defendant of robbery, the state had to prove that “in the course of committing a larceny, he [used] or [threatened] the immediate use of physical force upon another person for the purpose of [taking the property].” General Statutes § 53a-133. Conviction for robbery in the first degree requires proof of varying degrees of force. General Statutes § 53a-134. The state has no burden to show the value of the items seized in the robbery. See State v. Cannon, 185 Conn. 260, 267, 440 A.2d 927 (1981). To convict the defendant of larceny in the first degree, the state had to show that the defendant committed larceny and that “the value of the property . . . [exceeded] two thousand dollars.” General Statutes (Rev. to 1981) § 53a-122. Thus, while no dollar amount was needed for the robbery conviction, the state had to prove the value of the money taken from the bank in order to obtain a conviction on the charge of larceny in the first degree. Each statute requires proof of a fact which the other does not. See Blockburger v. United States, supra, 304. As a result, the defendant’s double jeopardy claim must fail.

IV

The defendant’s fourth claim is that the trial court denied him his right to a fair trial and to appellate review when it did not order the court reporter to record final arguments. He claims that the state’s attorney made improper comments to the jury and that he is precluded from raising such a claim on appeal because the arguments were not recorded. See State v. Sawicki, 173 Conn. 389, 396, 377 A.2d 1103 (1977). He concedes that no formal request for recordation was made, but argues that the trial court should, sua sponte, have ordered the arguments recorded because it “was fully aware of the potential for error.” We do not agree. A court reporter is under no obligation to record arguments of counsel unless counsel specifically request recordation. General Statutes § 51-61 (a). The burden is on a party to make a request and the court is under no independent obligation to order recordation absent such a request. That the trial court may have been aware of the “potential for error” does not relieve the defendant of his burden. If no request is made, the defendant “must be deemed to have assented to the procedure employed.” State v. Killenger, 193 Conn. 48, 59, 475 A.2d 276 (1984); State v. Vitale, 190 Conn. 219, 226, 460 A.2d 961 (1983). The defendant has thus waived his right to claim that improper comments were made to the jury. State v. Killenger, supra; see also State v. Frazier, supra, 240.

V

The defendant’s remaining claims call into question the propriety of four of the trial court’s evidentiary rulings. He argues that the trial court erred (1) in allowing an exhibit which was later excluded to be marked for identification, (2) in failing to strike the testimony of three witnesses who were unable to identify the defendant, (3) in admitting certain circumstantial evidence, and (4) in admitting a recorded statement as evidence of past recollection recorded. We are unpersuaded.

On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. State v. Sharpe, 195 Conn. 651, 658-59, 491 A.2d 345 (1985); State v. Piskorski, 177 Conn. 677, 695, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion. State v. Falcon, 196 Conn. 557, 566, 494 A.2d 1190 (1985). If the ruling is found to be erroneous and the error does not involve the violation of a constitutional right, the burden is on the defendant to establish the harmfulness of the error. State v. Gonzales, 196 Conn. 115,119, 491 A.2d 1067 (1985); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980).

The defendant claims that the trial court erred in allowing the state to mark for identification a hat allegedly worn by the defendant’s accomplice on the day of the robbery. The marking of the exhibit came during the redirect examination of a teller at the bank, Claudi DellAnno. The state’s attorney did not offer the hat as a full exhibit at that time, but displayed it to the witness as an aid in helping her recall the hat worn by one of the robbers. When the hat was later offered in evidence, it was excluded by the trial court on the ground that it was seized during the execution of an invalid search warrant. The defendant now claims that the trial court erred in allowing the exhibit to be marked, in admitting testimony concerning the hat and in failing to give a specific cautionary instruction to the jury.

“It is not error for the prosecution to lay the foundation for the introduction of evidence which is [later] excluded on objection.” United States v. Steel, 458 F.2d 1164, 1166 (10th Cir. 1972). When a party intends to offer relevant evidence as a full exhibit, the trial court should allow the exhibit to be marked for identification as a matter of course. See State v. Pepe, 176 Conn. 75, 81, 405 A.2d 51 (1978); Duncan v. McTiernan, 151 Conn. 469, 470, 199 A.2d 332 (1964); cf. State v. Schleifer, 102 Conn. 708, 722, 130 A. 184 (1925). The state in this case had the hat marked for identification in anticipation of its being offered as a full exhibit because it was relevant to the issue of identity. Under these circumstances we cannot say that the trial court erred in permitting the hat to be marked for identification or in admitting the testimony of the witnesses who viewed the hat. As to the need for a specific cautionary instruction, the defendant failed to request such a charge under Practice Book § 852 and is now precluded from raising the claim on appeal. State v. Killenger, supra, 57; see Practice Book § 315.

The defendant next claims that the trial court erred in failing to strike the testimony of three witnesses who were not able to identify the defendant from a series of photographs. He claims that under General Statutes § 54-86c and Practice Book § 741 the state was prohibited from offering the witnesses’ testimony because it had failed to make the photographs available to him. We agree with the state, however, that the photographs had in fact been made available to him and that, as a result, the witnesses’ testimony was properly admitted. The record shows that almost two years prior to trial the state had offered the photographs to the defendant. The defendant’s correspondences with the state’s attorney and the state’s responses to the defendant’s motion for discovery and inspection indicate that the photographs were available for inspection. The trial court therefore did not err in admitting the testimony of the three witnesses.

The defendant also takes issue with the trial court’s rulings admitting various items and testimony. He claims that the following exhibits and testimony were irrelevant and prejudicial: a photograph showing five one dollar bills on the front seat of the car suspected to be the one used in the robbery, a blue baseball cap and a pack of Marlboro brand cigarettes found near the bank, testimony from a forensic expert, James McDonald, that he had found Marlboro cigarette butts and a brown cloth glove next to the alleged getaway car, and testimony from McDonald that he had found a cat whisker on the baseball cap. The cigarette butts, the brown glove and the cat whisker were not introduced as exhibits because they had either been inadvertently thrown away or misplaced.

We have often stated that: “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue.” State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975); Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715 (1971). The main issue at trial was identification and the state sought to introduce the evidence in question to connect the defendant to the crime. The defendant had been linked to the getaway car by certain witnesses. The circumstantial evidence concerning the cigarettes, the glove, and the money strengthened the inference that the defendant had used the car to rob the bank. The glove matched the description of one used by a robber and the cigarette box found outside of the bank was the same brand as the cigarette butts found in the car and the same as that smoked by the defendant. It was also reasonable to infer that the money in the car was some of that stolen by the defendant. As to the cat whisker and the baseball cap, the state argued that the cap found was the one used by the defendant in the robbery and that the whisker was from his girlfriend’s cat. Set in the context of the other evidence produced at trial, we conclude that these facts tended to establish identity and to corroborate other direct evidence in the case. Thus, the trial court did not abuse its discretion in ruling that the evidence was relevant.

The defendant argues further, however, that even if the contested circumstantial evidence were relevant, it was more prejudicial than probative. As to the testimony of McDonald, he claims that the destruction of the physical evidence prejudiced his defense. As to the remaining evidence he contends that it was of a highly prejudicial character.

“In considering whether testimony concerning lost or destroyed evidence should be admitted, the trial court has to look to numerous factors including the reason for the unavailability of the evidence, the materiality of the evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, and the prejudice to the defendant caused by the unavailability of the evidence.” State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982). On these facts we cannot say that it was error to admit the testimony on the lost or destroyed evidence. McDonald had personal knowledge as to the character of the evidence, he was cross-examined by defense counsel, the evidence was not destroyed intentionally, and the defendant did not suffer prejudice as a result of its unavailability. Likewise, we cannot say that the trial court abused its discretion in ruling the other evidence admissible. See State v. Falcon, 196 Conn. 557, 565-66, 494 A.2d 570 (1985).

The defendant’s final claim is that the trial court erred in admitting a statement made by Carol Cacchillo as past recollection recorded. Cacchillo testified at trial that she saw a “mustard-colored” car on the premises where she lived. The state attempted to establish this car as the one used in the robbery. The state’s attorney asked her when she had seen the car and she responded that it was “[ajround the third week in May.” The state’s attorney asked if she knew exactly what day and she said that she did not know. She was then shown a written statement made by her to the Cheshire police department near the time of the robbery. After reviewing the statement, she testified that it was on May 17 that she saw the car. The state’s attorney attempted to elicit details about her viewing the car but she testified that she could not remember. At this point, the state’s attorney asked her a series of questions verifying the written statement and offered it into evidence as past recollection recorded.

The defendant argues that because the state’s attorney had successfully refreshed the witness’ memory, the statement was hearsay and did not qualify under the past recollection recorded exception to the hearsay rule. Generally, in order for the exception to apply, a witness must testify, inter alia, that she has no present recollection of the matter at hand. Katsonas v. Sutherland Building & Contracting Co., 104 Conn. 54, 69, 132 A. 553 (1926); Tait & LaPlante, Handbook of Connecticut Evidence (1976 Ed.) § 11.21. If it is apparent that the witness cannot presently recall detailed facts concerning certain events, previous writings can be admitted as past recollection recorded despite the witness’ general familiarity with those events. See Papalia v. United States, 243 F.2d 437, 441 (5th Cir. 1957); Fed. R. Evid., rule 803 (5) and advisory committee notes; 3 Wigmore, Evidence (Chadbourn Rev. 1970) §§ 734, 738. Reviewing the transcript of the witness’ testimony in this case, we conclude that it was reasonable to believe that the witness simply could not remember certain detailed facts about the day she saw the alleged getaway car. As such, her past recorded statement was admissible and the trial court did not abuse its discretion in so ruling.

There is no error.

In this opinion the other judges concurred.

       The so-called “right to present a defense” has its origin in a criminal defendant’s right to compulsory process under the sixth amendment to the federal constitution. Washington v. Texas, 388 U.S. 14, 18, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). This right applies in state criminal prosecutions by reason of the due process clause of the fourteenth amendment. State v. McKnight, 191 Conn. 564, 580, 469 A.2d 397 (1983).

       Practice Book § 766 provides: “Upon the failure of either party to comply with the requirements of Sec. 762, the judicial authority may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at the scene of the alleged offense. Sec. 762 shall not limit the right of the defendant to testify in his own behalf.”

       The defendant concedes technical noncompliance with Practice Book § 763 but raises two additional claims concerning his obligations under the Practice Book.
      First, he claims that the state waived its right to object to his noncompliance. Essentially he argues that the state should have objected to the defendant’s failure to file immediately after the ten day period for compliance lapsed. He also makes the argument that Judge Reynolds’ order granting the demand was open-ended and did not say exactly when the defendant had to comply. Thus, he claims, because the state did not request a specific time period, it waived its right to object. We find these arguments unper-
      suasive and see no reason why the state’s attorney had to object at any time before the defendant’s late filing.
      Second, he claims that he was not required to give the state notice of certain witnesses that were produced to rebut a state witness’ testimony that the defendant was at the bank on the morning of the robbery. However, we fail to see how these witnesses were anything but “alibi witnesses” within the meaning of Practice Book §§ 762 through 767. Therefore, the defendant was required to give the state notice of them pursuant to Practice Book § 763.

       The defendant’s attorneys on appeal were different from his counsel at trial. At oral argument before this court, defense counsel suggested that trial counsel did not understand the applicable Practice Book sections. The defendant, however, has made no claim that he was denied effective assistance of counsel and there is no evidence in the record on appeal that the late filing was anything other than intentional.

       For the purposes of analyzing the defendant’s claim, we refer only to the two arrays viewed later by Mansourian. Mansourian testified that she viewed some photographs at the bank on the day of the robbery but that she could not recall whether the defendant’s photograph was among those that she viewed. Police officers who were present at the time of the display did not know if the defendant’s photo was shown to Mansourian. One officer did testify that two photos of the defendant were among a group of photos brought to the bank, but was not certain whether these photos of the defendant were shown to Mansourian. This factual uncertainty was apparently the result of the failure of the police to keep records of the viewing. The defendant claims that his picture in all probability was among those viewed by Mansourian. If we were to accept this interpretation of the facts, the extra viewing would lend more support to the defendant’s claim that the procedure was suggestive. However, because we find that Mansourian’s identification was reliable under the totality of the circumstances, the resolution of this factual discrepancy is not necessary. Furthermore, the existence of a third array does not necessarily mean that the procedure used to obtain the identification was inherently suggestive. See Commonwealth v. LaPierre, 10 Mass. App. 641, 644, 411 N.E.2d 1314 (1980).

       General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”
      General Statutes § 53a-134 (a) provides: “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: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (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 § 53a-119 provides in part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”
      General Statutes § 53a-122 at the time of the alleged offense provided: “A person is guilty of larceny in the first degree when: (1) The property or service, regardless of its nature and value, is obtained by extortion, or (2) the value of the property or service exceeds two thousand dollars.”

       General Statutes § 54-86e (a) provides: “Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant.”
      Practice Book § 741 provides in relevant part: “Upon a written motion made by a defendant within ten days after the entry of a plea, the prosecuting authority, within the time set by the judicial authority, shall disclose in writing the existence of and allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials:
      “(1) Exculpatory information or material. . .
      “(3) Adequately identified books, tangible objects, papers, photographs, or documents which are within the possession, custody, or control of any state agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial . . . .”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Mary Petrowski v. Norwich Free Academy et al.
    (12622)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued December 10, 1985
    decision released March 18, 1986

      Wesley W. Horton, with whom were Richard D. O’Connor and Susan M. Cormier, for the appellants (defendants).

      Marvin M. Horwitz, for the appellee (plaintiff).
   Shea, J.

This is an appeal, after certification, from a judgment of the Appellate Court reversing a decision of the Superior Court, which had dismissed the plaintiffs appeal from the termination of her employment contract by the board of trustees of the Norwich Free Academy. We granted certification to review the judgment of the Appellate Court that the failure of two members of the board to disqualify themselves in the determination of the plaintiffs case, because of their inherent conflicts of interests, violated federal constitutional due process principles. We reverse the judgment of the Appellate Court.

The decision of the Appellate Court fully describes the underlying facts and procedural history. Petrowski v. Norwich Free Academy, 2 Conn. App. 551, 481 A.2d 1096 (1984); see Siegal, “Labor Relations and Employment Law Developments in Connecticut in 1984,” 59 Conn. B.J. 141,144-45 (1985). The plaintiff, a tenured teacher at Norwich Free Academy, upon receiving written notice that the termination of her contract was under consideration, requested a hearing before the board of trustees of the high school pursuant to General Statutes (Rev. to 1983) § 10-151 (b). During that hearing, she sought to have two members of the board, Wayne G. Tillinghast and James J. Dutton, disqualify themselves on the basis of their membership in a law firm that represented the academy in other unrelated legal matters. They refused to disqualify themselves and continued to participate in the proceedings. The board unanimously voted to terminate the plaintiffs employment contract. The plaintiff appealed to the Superior Court challenging the participation of the two attorneys. That court found that neither Tillinghast nor Dutton was prejudiced against the plaintiff, and that the personal interests of both in the outcome of the proceedings were too nebulous and remote to have mandated their disqualification. The court rendered judgment in favor of the defendants and dismissed the plaintiffs appeal. Thereafter, the plaintiff appealed to the Appellate Court.

The Appellate Court reversed the Superior Court’s decision, concluding that the presence of Tillinghast and Dutton on the board of trustees per se violated the plaintiffs federal due process rights because it created an appearance of impropriety. The court reached its decision by equating the due process test for disqualificaton of an administrative adjudicator with the standard for judicial disqualification. “When administrators act in a quasi-judicial capacity, as the board in this case did, their functions and that of judges most closely merge and the judicial model to test impropriety becomes an acceptable one.” Petrowski v. Norwich Free Academy, supra, 560.

The defendants’ request to this court for certification raised a single question: Is the federal due process test for disqualification of an administrative official acting in a quasi-judicial capacity the same as the test for the disqualification of a judge? The plaintiff filed a preliminary statement of issues under Practice Book § 3012 (a), in order to provide an alternative basis for affirming the Appellate Court’s decision. The relevant issue, broader in scope than that before us on certification, is: “Did the defendants violate the plaintiff’s right to due process under Connecticut General Statutes [Rev. to 1983] § 10-151 and the Fourteenth Amendment to the United States Constitution when trustees Dutton and Tillinghast participated in the hearing and decision, although they were disqualified?”

In this appeal the focus of our review is not the judgment of the Superior Court but of the Appellate Court. We do not hear the appeal de novo. The only questions we need consider are those squarely raised by the petition for certification and the appellee’s preliminary statement of issues, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court. See Practice Book §§ 3012 (a), 3154; State v. Beckenbach, 198 Conn 43, 47, 501 A.2d 752 (1985); State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).

When a school board considers terminating a teacher’s contract it is acting in a quasi-judicial capacity. Catino v. Board of Education, 174 Conn. 414, 417, 389 A.2d 754 (1978). Under our statutes, a tenured teacher has a right to continued employment except upon a showing of cause for termination or a bona fide elimination of the teaching position. General Statutes (Rev. to 1983) § 10-151 (b). Such a right is a property right protected under the due process clause of the fourteenth amendment to the United States constitution. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980). Because the legislature has afforded a teacher dismissed for cause the right to judicial review of that determination, it is our task to ensure that that right is meaningfully protected. Id., 83. Such protection necessarily includes a fair hearing by an impartial panel. Catino v. Board of Education, supra, 418.

The central issue in this case, as correctly posed by the majority opinion below, “becomes what constitutes an impartial hearing panel sufficient to satisfy constitutional due process. Due process requires a fair hearing before a fair tribunal, which principle applies with equal vigor to administrative adjudicatory proceedings. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973).” Petrowski v. Norwich Free Academy, supra, 554.

The defendants do not dispute the proposition, as stated in the dissenting opinion of the Appellate Court, that “had Tillinghast and Dutton been judges participating in a judicial proceeding, they would have been disqualified, because the relationship between their law firm and the academy would have violated the governing standard for judicial disqualification, which is the reasonable appearance of impropriety.” Petrowski v. Norwich Free Academy, supra, 566 (Borden, J., dissenting); see Papa v. New Haven Federation of Teachers, 186 Conn. 725, 746, 444 A.2d 196 (1982). The claim of the defendants is simply that the Appellate Court erred in equating the due process standards governing disqualificaton of administrative adjudicators with the principles governing judicial disqualification.

A due process analysis requires balancing the governmental interest in existing procedures against the risk of erroneous deprivation of a private interest through the use of these procedures. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Due process demands, however, the existence of impartiality on the part of those who function in judicial or quasi-judicial capacities. N.L.R.B. v. Ohio New & Rebuilt Parts, Inc., 760 F.2d 1443, 1451 (6th Cir. 1985); see, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 242-43, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980); Wolkenstein v. Reville, 694 F.2d 35 (2d Cir. 1982), cert. denied, 462 U.S. 1105, 103 S. Ct. 2452, 77 L. Ed. 2d 1332 (1983). The courts recognize the presumption that administrators serving as adjudicators are unbiased. See Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); United States v. Morgan, 313 U.S. 409, 421, 61 S. Ct. 999, 85 L. Ed. 1429 (1940). This presumption can be rebutted by a showing of a conflict of interests; see Gibson v. Berryhill, 411 U.S. 564, 578-79, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973); Ward v. Monroeville, 409 U.S. 57, 60, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972); but the burden of establishing a disqualifying interest rests on the party making the contention. Schweiker v. McClure, 456 U.S. 188, 102 S. Ct. 1665, 72 L. Ed. 2d 1 (1982). The impermissible interest asserted must be realistic and more than “remote.” Marshall v. Jerrico, Inc., supra, 250.

“ ‘The fact that [an administrative hearing officer] might have been disqualified as a judge . . . does not, either in principle or under the authorities, infect the hearing with a lack of due process.’ Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937, 944 (2d Cir. 1974).” Petrowski v. Norwich Free Academy, supra, 567 (Borden, J., dissenting); see Goldberg v. Kelly, 397 U.S. 254, 271, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). In Schweiker v. McClure, supra, the United States Supreme Court reversed a decision of the District Court which had held that the connection between an insurance carrier whose employees initially had denied Medicare claims and the hearing officers appointed by the carrier to review such denials, whose salaries were paid from federal funds, created a constitutionally intolerable risk of bias against Medicare claimants. The lower court had based its decision, in part, on the judicial canons concerning disqualification. McClure v. Harris, 503 F. Sup. 409, 414-15 (N.D. Cal. 1980); Code of Judicial Conduct 3 (C) (1) (b). The Supreme Court reversed, finding no basis for a disqualifying interest among the hearing officers and noting that the district court’s analogy to judicial canons was not “apt.” Schweiker v. McClure, supra, 197 n.11. In Florasynth, Inc. v. Pickholz, 750 F.2d 171, 173-74 (2d Cir. 1984), the Second Circuit Court of Appeals noted that although arbitrators do act in a quasi-judicial capacity, the disqualification standard for judges need not be applied. “The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator.” Id.; see Morelite Construction Corporation v. New York City District Council Carpenters Benefit Funds, 748 F.2d 79, 85 (2d Cir. 1984); International Produce, Inc. v. A/S Rosshavet, 638 F.2d 548, 552 (2d Cir.), cert. denied, 451 U.S. 1017, 101 S. Ct. 3006, 69 L. Ed. 2d 389 (1981).

In support of the proposition that due process requires that administrative adjudicators performing quasi-judicial functions be held to judicial standards of conduct, the Appellate Court relied on Withrow v. Larkin, 421 U.S. 35, 46-51, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975). The majority opinion concluded that “[t]he due process requirement of an impartial hearing body in the quasi-judicial realm is equivalent to that requirement in the judicial realm.” Petrowski v. Norwich Free Academy, supra, 560. An examination of Withrow v. Larkin, however, supports only the proposition that conduct by an administrator which would not require disqualification under judicial standards is constitutionally permissible. From this holding it is logical to deduce only that conduct complying with judicial standards also satisfies those applicable to administrative adjudicators. The conclusion of the Appellate Court, equating administrative with judicial standards, assumes that Withrow stands also for the converse proposition, that an interest disqualifying a judge would necessarily disqualify an administrator.

The applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification. Schweiker v. McClure, supra. The canons of judicial ethics go far toward cloistering those who become judges, the ultimate arbiters of constitutional and statutory rights, from all extraneous influences that could even remotely be deemed to affect their decisions. Such a rarefied atmosphere of impartiality cannot practically be achieved where the persons acting as administrative adjudicators, whose decisions are normally subject to judicial review, often have other employment or associations in the community they serve. It would be difficult to find competent people willing to serve, commonly without recompense, upon the numerous boards and commissions in this state if any connection with such agencies, however remotely related to the matters they are called upon to decide, were deemed to disqualify them. Neither the federal courts nor this court require a standard so difficult to implement as a prerequisite of due process of law for administrative adjudication.

Further, in reference to the plaintiffs broader constitutional claim raised in her preliminary statement of issues, she has simply failed to show that Tillinghast and Dutton had a disqualifying interest sufficient to overcome the “presumption of honesty and integrity” of the board of trustees. Withrow v. Larkin, supra, 47. The applicable due process standards for disqualification of officials acting in a judicial or quasi-judicial capacity are detailed in In re Murchison, 349 U.S. 133, 137, 75 S. Ct. 623, 99 L. Ed. 942 (1955). “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” Id., 136. The constitutional parameters of this standard are discussed in two United States Supreme Court cases, Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927), and Dugan v. Ohio, 277 U.S. 61, 48 S. Ct. 439, 72 L. Ed. 784 (1928). Although neither of these cases is determinative we must look to each in evaluating the case before us. See Wolkenstein v. Reville, supra, 39.

In Tumey v. Ohio, supra, the court invalidated a procedure whereby the mayor of the village assessed fines against defendants convicted of violating the state’s prohibition act. The mayor received costs, in addition to his regular salary, as compensation for hearing such cases. No costs were paid to him, however, unless the defendant was convicted. Under the state statute the village retained one half of the fines assessed in the court. The procedure was held constitutionally defective because (1) the mayor as an individual had a “direct, personal, pecuniary interest” in the costs he received, and (2) as the village chief executive he had a strong “official motive” to assess fines to improve the financial position of the village. Id., 531-35.

In Dugan v. Ohio, supra, a similar procedure was upheld. Because the mayor of the city was a salaried official and did not receive costs, the first ground of Tumey v. Ohio was inapplicable. Despite the fact that one half the fines imposed were retained by the city, the court sustained the procedure because the mayor was not, as in Tumey v. Ohio, the chief executive of the city. The mayor’s power under the city charter, as one of the five members of the city commission, was too “remote” to create a practical conflict of interests. Dugan v. Ohio, supra, 65; see also Marshall v. Jerrico, Inc., supra (child labor violations adjudicated by administrators employed by department of labor; department reimbursed for costs in assessing fines; due process claim rejected because no “reasonable possibility” that administrator’s judgment would be colored by prospect of institutional gain); Hortonville Joint School District No. 1 v. Hortonville Education Assn., 426 U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976) (teacher disciplinary proceedings conducted by seven person board; due process challenge rejected because board members had no personal or financial interest that required disqualification); Ward v. Monroeville, supra (due process violation where village received substantial portion of assessed fines and mayor had “wide executive power”); N.L.R.B. v. Ohio New & Rebuilt Parts, Inc., supra, 1451 (possibility of “performance awards” to labor adjudicators from efficient adjudication of disputes does not violate due process); Simard v. Board of Education, 473 F.2d 988 (2d Cir. 1973) (no due process violation where local board of education denied the plaintiff tenure, after the board had engaged in “heated negotiations” with the plaintiff, because the relationship established only potential, rather than actual, bias).

From the viewpoint of these guidelines, participation by Tillinghast and Dutton did not render the termination hearing defective under the federal constitution. There was no evidence that either trustee had a “direct, personal, pecuniary interest” in the termination of the plaintiff. Furthermore, since they were only two members of an eight person board of trustees, they lacked a sufficient “official motive” to render the proceeding constitutionally infirm. Dugan v. Ohio, supra, 65. Tillinghast and Dutton’s membership in the law firm that represents Norwich Free Academy on unrelated matters is too remote and tenuous a connection to have required, under due process principles, their disqualification from the board.

Quite apart from due process, the plaintiff also argues that under state law the presence of Tillinghast and Dutton on the board deprived her of a fair and impartial tribunal for her termination hearing. She relies on the principle first declared in Low v. Madison, 135 Conn. 1, 6, 60 A.2d 774 (1948), that the appearance of impropriety created by a public official’s participation in a matter in which he has a pecuniary or personal interest is sufficient to require disqualification. See General Statutes §§ 8-11 and 8-21. “This prophylactic rule serves the salutary purposes of promoting public confidence in the fairness of the decision-making process and preventing the public official from placing himself in a position where he might be tempted to breach the public trust bestowed upon him. See Thorne v. Zoning Commission, [178 Conn. 198, 203-205, 423 A.2d 861 (1979)].” Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 649-50, 474 A.2d 752 (1984). The test is not whether the personal interest does conflict but whether it reasonably might conflict. Josephson v. Planning Board, 151 Conn. 489, 493-95, 199 A.2d 690 (1964). If a member of a board of education fails to disqualify himself despite a real conflict of interests, the action of the board on which he participated is rendered invalid. See Kovalik v. Planning & Zoning Commission, 155 Conn. 497, 499, 234 A.2d 838 (1967).

Whether an interest justifies disqualification is necessarily a factual question and depends upon the circumstances of the particular case. Armstrong v. Zoning Board of Appeals, 158 Conn. 158, 171-72, 257 A.2d 799 (1969). In subjecting those circumstances to careful scrutiny, courts must exercise a great degree of caution. Dana-Robin Corporation v. Common Council, 166 Conn. 207, 214, 348 A.2d 560 (1974). Local governments and school boards would “be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a [public] official.” Anderson v. Zoning Commission, 157 Conn. 285, 291, 253 A.2d 16 (1968). Here, the Superior Court heard the evidence presented and came to the “factual conclusion” that the interests of Tillinghast and Dutton were too remote and nebulous to have required their disqualification. The evidence presented clearly supported that conclusion.

Moreover, we are constrained to point out that the plaintiff chose to have her case adjudicated by the board of trustees, rather than, as was her statutory option, by a three person “impartial hearing panel” as envisioned by General Statutes (Rev. to 1983) § 10-151 (b). Therefore, she selected as her adjudicators a group of individuals who had a pre-existing fiduciary duty, as members of the board of trustees, to act in the best interests of the academy. The effective operation of this statutory scheme necessitates an assumption that such board members, when faced with an issue of teacher termination, will put aside their general loyalty to the academy and act conscientiously. Petrowski v. Norwich Free Academy, supra, 570 (Borden, J., dissenting).

Both Tillinghast and Dutton, as well as the other six members of the board, had, by virtue of their very presence on the board of trustees, some prior association with the administration of the academy. None of the board members, including Tillinghast and Dutton, had any prior association with the plaintiff that could have amounted to a disqualifying interest. The only basis for disqualification presented by the plaintiff was their membership in a law firm that handled legal matters for the academy wholly unrelated to the controversy they were to consider. The attorney-client relationship between their firm and the academy merely created on the part of Tillinghast and Dutton a duty of loyalty to the academy essentially congruent with the fiduciary duty imposed upon them as trustees. We see no reason to presume that this additional ground for their loyalty to the academy should disqualify them any more than the other trustees, who were also obligated to act in the best interests of the institution they served. This “double-layered fealty,” as the Appellate Court characterized it, of Tillinghast and Dutton cannot reasonably be deemed to have affected their judgment upon the issues any more than the single-sourced loyalty of the other trustees. The dispute over termination of the plaintiff did not involve Tillinghast and Dutton to a greater extent than the other trustees. There was no showing of any connection between their law firm and the school officials or other persons who were advocating the termination of the plaintiff. We conclude that membership in a law firm that has handled legal matters for an institution that are wholly unrelated to the controversy to be decided or the persons involved therein, does not constitute, under the circumstances of this case, a disqualifying interest for administrative adjudicators under federal or state law.

The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to reinstate the judgment of the trial court.

In this opinion the other judges concurred.

       The Norwich Free Academy is a privately endowed secondary school which exists by virtue of a corporate charter granted by the General Assembly in 1854. 3 Resolutions and Private Acts, pp. 259-60. For purposes of General Statutes (Rev. to 1983) § 10-151 (b) which details the procedure for termination of a tenured teacher’s employment contract, the board of trustees of an endowed high school, such as Norwich Free Academy, has the same status as a board of education of a public high school. See General Statutes § 10-34. Public Acts 1983, No. 83-398, changed § 10-151 (b) to § 10-151 (d).

       In their petition for certification the defendants also claimed error in the Appellate Court’s rescript which set aside the Superior Court’s judgment and remanded the case with direction to reverse the decision of the board of trustees. Although the plaintiff conceded error in her brief and at argument, we need not address this claim in light of our disposition of the first issue.

       In her preliminary statement of alternative issues upon which the decision of the Appellate Court may be affirmed, the plaintiff refers to a violation of her “right to due process under Connecticut General Statutes § 10-151” as well as under the federal constitution. Despite the contention of the defendants to the contrary, we construe this reference as an invocation of state decisional law relating to the disqualification of administrative adjudicators. General Statutes (Rev. to 1983) § 10-151 (b) sets forth the procedure for termination of a tenured teacher, such as the plaintiff, including the righ't to a hearing before the board of education or a statutory “impartial hearing panel.” Even though the plaintiff chose not to exercise her option under this subsection to have such an “impartial hearing panel" appointed to hear her case, the statute must also be deemed to require impartiality upon the part of the trustees, acting as a board of education, to the extent demanded by our decisions relating to officials acting in a quasi-judicial capacity. Thus our discussion of the plaintiffs additional claim, which was also raised in the Appellate Court, is appropriate. State v. Torrence, 196 Conn. 430, 434, 493 A.2d 865 (1985).


author: Per Curiam.

text:
    State of Connecticut v. Keith Marshall
    (12692)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued March 4
    decision released March 25, 1986

      Louis S. Avitabile, with whom, on the brief, was Richard V. Ackerson, for the appellant (defendant).

      Marcia B. Smith, assistant state’s attorney, with whom were Patricia King, deputy assistant state’s attorney, and, on the brief, John Connelly, state’s attorney, for the appellee (state).
   Per Curiam.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted. The issues have been fully considered in the opinion of the Appellate Court; State v. Marshall, 3 Conn. App. 126, 485 A.2d 930 (1985); and it would serve no useful purpose for us to repeat the discussion therein contained.

The appeal is dismissed.


author: Peters, C. J.

text:
    Kenneth T. Cook v. Collins Chevrolet, Inc., et al.
    (12641)
    (12642)
    Peters, C. J., Shea, Santaniello, Callahan and Moeaghan, Js.
    Argued February 11
    decision released March 25, 1986

      Michael C. Jainchill, with whom was Kathryn Calibey, for the appellant (plaintiff).

      James Sicilian, with whom, on the brief, was Scott P. Moser, for the appellee (defendant American Universal Insurance Company).

      Jon S. Berk, with whom, on the brief, was Thomas P. Barrett, for the appellee (named defendant).
   Peters, C. J.

This appeal principally concerns the extent of the statutory liability of an automobile dealer and its insurer when a motor vehicle bearing a loaned dealer’s license plate becomes involved in an accident. The plaintiff, Kenneth T. Cook, brought an action in negligence against the defendants George E. Milette (hereinafter Milette) and Collins Chevrolet, Inc. (hereinafter Collins), for personal injuries sustained in a collision between the plaintiff’s motorcycle and a pick-up truck owned and operated by Milette, but bearing a dealer license plate belonging to Collins. Collins’ motion for summary judgment was granted by the trial court, Tamborra, J. Thereafter, Milette was granted permission to implead the American Universal Insurance Company (hereinafter American Universal) as a third party defendant to answer to a third party complaint for indemnification and damages. The action between the plaintiff and Milette resulted in a jury verdict in the plaintiff’s favor in the amount of $200,046. The plaintiff then sought a recovery as subrogee from American Universal, the third party defendant. In that action, the trial court, Loiselle, J., state trial referee, exercising the powers of the Superior Court, rendered judgment in favor of American Universal. The plaintiff has appealed from the judgments rendered in favor of Collins and American Universal. We find no error.

The memoranda of decision disclose the following undisputed facts. The defendant Collins sold a pick-up truck for cash to Milette on March 19, 1981. After ascertaining that Milette had liability insurance covering personal injury and property damage, Collins lent Milette a dealer plate for the truck while Milette’s registration of the truck was pending. Less than fifteen days after the sale, on March 31, 1981, while driving the truck with the Collins license plate, Milette was involved in an accident with the plaintiffs motorcycle that resulted in personal injury to the plaintiff. Milette subsequently registered the truck in his own name on April 2, 1981.

When Milette purchased the truck, and on the day of the accident, Milette was insured by Nationwide Insurance Company under an automobile liability policy providing bodily liability coverage of $25,000 per person and $50,000 per accident. Collins was then insured under a $500,000 garage policy issued by American Universal. The plaintiff, his judgment against Milette having remained largely unsatisfied, made a timely demand for payment upon American Universal, which American Universal refused.

In the plaintiffs combined appeals from the judgments rendered in favor of the defendants Collins and American Universal, the plaintiff has raised three claims of error. Two of these claims of error involve alleged misconstruction of General Statutes § 14-60 which, according to the plaintiff, imposes statutory liability upon a dealer and its insurer whenever a car bearing a license plate owned by the dealer causes injury that exceeds the automobile owner’s insurance coverage. The third claim alleges misconstruction by the trial court of the terms of the American Universal insurance policy. We find no error.

I

The plaintiff’s basic statutory claim of error is that the trial court, in granting the defendant Collins’ motion for summary judgment, misconstrued the operative terms of § 14-60. Although the plaintiff concedes that his claim against Collins is entirely statutory, and that Collins has fully complied with the requirements of § 14-60, the plaintiff nonetheless argues that the trial court erred in its judgment in favor of Collins.

This claim requires an examination of the language, history, and applicability of § 14-60. The statute, in its present form, permits an automobile dealer to lend a dealer license plate to a purchaser of a motor vehicle, for a period not to exceed fifteen days, while the purchaser’s registration is pending “provided such person shall furnish proof to the dealer . . . that he has liability and property damage insurance which will cover any damage to any person or property caused by the operation of the . . . motor vehicle on which the loaned number plate is displayed .... Such person’s insurance shall be the prime coverage. If the person to whom the dealer . . . loaned . . . the number plate did not, at the time of such loan, have in force any such liability and property damage insurance, such person and such dealer . . . shall be jointly liable for any damage to any person or property caused by the operation of . . . a motor vehicle on which the loaned number plate is displayed.” (Emphasis added.) The provision for joint liability was added to the statute in 1973. Prompted by DeRubbo v. Aetna Ins. Co., 161 Conn. 388, 394, 288 A.2d 430 (1971), to clarify the consequences of a dealer’s violation of the statute, the legislature determined that a dealer’s loan of a dealer plate to an uninsured purchaser of a motor vehicle would make the dealer jointly liable with the purchaser. Because Milette was not uninsured, and because Collins did not violate § 14-60 in any other way, the statute on its face affords the plaintiff no remedy in this case.

To avoid this logic, which the trial court understandably found compelling, the plaintiff offers an argument of statutory construction that asks us to ascribe independent meaning, for liability purposes, to that part of § 14-60 which provides, without limitation, that the purchaser’s insurance “shall be the prime coverage.” This statutory language, which antedated the provision for joint liability, must mean, according to the plaintiff, that the dealer always has an unqualified obligation to provide secondary insurance for the benefit of injured claimants. A dealer who complies with the statute, although not primarily and jointly liable with the uninsured purchaser, on this reasoning is still secondarily liable to the extent of his insurance coverage. The statute should be construed to impose such secondary liability, the plaintiff argues, for three overlapping reasons of policy: to implement the statute’s remedial purpose of protecting those injured in motor vehicle accidents involving dealer-loaned license plates; to avoid the anomaly of providing greater public protection when the statute is violated than when it is obeyed; and to preserve the symmetry of liability for dealers who lend motor vehicles and dealers who lend dealer license plates. We are unpersuaded.

The plaintiffs argument assumes that the legislative reference to “prime coverage” in § 14-60 is addressed to the question of liability. As Whitfield v. Empire Mutual Ins. Co., 167 Conn. 499, 356 A.2d 139 (1975), illustrates, that assumption is at best debatable. In Whitfield, the question was the priority of coverage under two insurance policies covering the same accident, one a policy insuring the operator of the motor vehicle, and the other insuring the dealer who had temporarily loaned the car to the operator. Despite contrary language in the policies, this court held, pp. 505-508, that the language of § 14-60 was clear and that its mandate was binding. Finding a constitutional public purpose in the legislature’s desire to eliminate confusion or uncertainty about overlapping insurance coverages, we determined that “such clarification is ‘in the interest of public convenience’ by serving to avoid the delay and expense to policyholders and, indeed, to innocent third parties and the general public, from extended litigation between insurance carriers with conflicting policy provisions.” Id., 508.

In light of the total absence of any indication that the “prime coverage” language in § 14-60 was intended to serve any purpose other than that identified in Whitfield, we decline to broaden the scope of the statutory liability it expressly imposes upon a dealer temporarily lending a dealer license plate to a purchaser of a motor vehicle. A cause of action that is solely statutory in its derivation cannot be judicially expanded to encompass grievances for which the legislature has not seen fit to provide a remedy. Under other circumstances, as for example in rentals of motor vehicles governed by General Statutes § 14-154a, the legislature has indeed imposed a heavy burden of joint liability on dealer-lessors. See Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 284-90, 472 A.2d 306 (1984). Comparison of the language of § 14-60 with that of § 14-154a makes it clear that the former imposes only limited liability. The trial court therefore correctly decided that, in the suit between the plaintiff and Collins, Collins was entitled to summary judgment because of its full compliance with the conditions of § 14-60.

II

The plaintiff’s cause of action against the defendant American Universal is based on an alleged right of subrogation, under General Statutes § 38-175, to whatever claim the purchaser, Milette, may have had against American Universal. The plaintiff’s procedural compliance with the subrogation statute is conceded. What is instead at issue is whether either the provisions of § 14-60 or the terms of the insurance policy issued by American Universal to the dealer, Collins, afford to Milette a claim to which the plaintiff can be subrogated. The trial court concluded that no such claim existed. We agree.

The plaintiff’s statutory claim has largely been answered by our discussion, in part I, of the absence of statutory liability for a dealer complying with the terms of § 14-60. As this court held in DeRubbo v. Aetna Ins. Co., supra, 394, § 14-60 imposes no direct liability upon an insurance carrier. Although the legislature subsequently amended § 14-60 to make a dealer expressly liable for noncompliance with the statute’s insurance provision, nothing in that amendment purported to give an injured party a direct cause of action against an insurer. The statutory reference to “prime coverage” does not require an insurer to provide secondary coverage that the statute does not otherwise mandate. See part I, supra. The statute addresses the liability of a dealer; when, as in this case, the dealer bears no responsibility for damages, the dealer’s insurer cannot be held liable under the statute.

The plaintiff’s contractual claim under the terms of the American Universal insurance policy is, of course, independent of his statutory claim. In his pursuit of that claim, the plaintiff urges us to find, contrary to the holding of the trial court, that the policy is ambiguous and self-contradictory in the definition of its coverage. In describing who is an insured, the policy provides coverage for a customer of the insured dealer under certain circumstances, when (1) such a customer is using a covered auto with the dealer’s permission and (2) the customer does not himself have insurance that meets local minimum mandatory requirements. On its face, this second proviso excludes Milette, whose insurance concededly met this state’s statutory minimum requirements.

The plaintiff argues, however, that the policy’s limited coverage for customers applies only to the loan of a dealer’s vehicle and not to the loan of a dealer’s license plate. The plaintiff maintains that a dealer can neither give nor withhold “permission” to use a vehicle that the dealer no longer owns. For this reason, a customer who uses a vehicle with a dealer plate does not unambiguously come within the category of “covered auto” but falls instead into the residual category of “any auto,” for which insurance coverage is allegedly provided without regard to the adequacy of the customer’s own insurance. Such a reading of the policy is supported, according to the plaintiff, by the manner in which the insurance premium is calculated, because the premium includes a separate line item for uninsured motorist insurance for twenty-seven license plates.

The plaintiffs proffered reconstruction of the American Universal policy is impossible to reconcile with the policy’s clear expression of an intent to cover customers of the insured dealer only when those customers are uninsured or have failed to carry the statutory minimum coverage. American Universal chose to define “covered autos” operationally, in conjunction with its definition of “insured.” Operationally, under Part D. 1 of the policy, that term includes not only loaned vehicles but also vehicles that, with the dealer’s permission, use a dealer’s license plate. The calculation of the insurance premium is entirely consistent with such an operational understanding of “covered autos.” Even if that operational understanding were not entirely clear, however, the policy unmistakably provides no coverage of any kind for adequately insured customers of its dealer. On that bedrock, the plaintiff’s argument of ambiguity founders.

We therefore agree with the trial court that the plaintiff has failed to establish his cause of action against the defendant American Universal. The claim to which the plaintiff was subrogated was that of Milette, and Milette had neither a statutory nor a contractual claim against this defendant.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 14-60 provides: “Sec. 14-60. use of dealers’ and repairers’ plates. No dealer or repairer shall rent or allow or cause to be rented, or operate or allow or cause to be operated for hire, or use or allow or cause to be used for the purpose of conveying passengers or merchandise or freight for hire, any motor vehicle registered under a general distinguishing number and mark. No dealer or repairer shall loan a motor vehicle or number plate or both to any person except for the purpose of demonstration of a motor vehicle, or when a motor vehicle owned by or lawfully in the custody of such person is undergoing repairs, or when such person has purchased a motor vehicle, the registration of which by him is pending, and in any case for not more than fifteen days in any year, provided such person shall furnish proof to such dealer or repairer that he has liability and property damage insurance which will cover any damage to any person or property caused by the operation of such loaned motor vehicle, motor vehicle on which such loaned number plate is displayed or both. Such person’s insurance shall be the prime coverage. If the person to whom such dealer or repairer loaned the motor vehicle or the number plate did not, at the time of such loan, have in force any such liability and property damage insurance, such person and such dealer or repairer shall be jointly liable for any damage to any person or property caused by the operation of such loaned motor vehicle or a motor vehicle on which such loaned number plate is displayed. Every dealer and repairer shall keep a record of each loaned number plate showing the date loaned, date returned and the name and operator’s license number of the person operating any vehicle with such loaned number plate. Such record shall be retained by the dealer or repairer for a period of six months from the date on which such number plate or motor vehicle or both were loaned and such record shall be available during business hours for examination by any police officer or inspector designated by the commissioner of motor vehicles. Any licensed dealer or repairer may operate or cause to be operated by a bona fide full-time employee such motor vehicle for use in connection with his business and for his personal use, or by a part-time employee for use only in connection with the business of such dealer or repairer.”

       In the trial eourt, the plaintiff alleged that Collins might be liable to him because Milette was Collins’s agent, servant or employee, or because Collins had continued to own the pick-up truck that Milette was operating. The trial court, relying on uncontroverted affidavits by Collins, determined that there was no merit to these allegations. The plaintiff’s brief in this appeal expressly abandons any argument of an agency relationship between Milette and Collins. In oral argument before this court, the plaintiff acknowledged that his only continuing claim against Collins was based upon § 14-60.

       The legislative debate accompanying the enactment of Public Acts 1973, No. 73-233, which amended § 14-60 to impose joint liability on a dealer who lends a dealer plate to an uninsured purchaser, reflects a legislative intent to impose liability on a dealer only when he violates the mandate of § 14-60 and lends dealer plates to a purchaser who is not insured. “[T]he obvious intent of this statute is to protect the public by preventing the loaning of either plates or motor vehicles when the vehicle to be operated is not insured. . . . [T]he intent is so obvious to protect the public . . . and require that in any situation where the individual who loans the plates or loans the automobile violates the law, he too shall be liable.” (Emphasis added.) 16 H. R. Proc., Pt. 8,1973 Sess., p. 3654 (remarks of Representative Samuel S. Freedman); see also 16 S. Proc., Pt. 5, 1973 Sess., pp. 2259-60 (remarks of Senator George C. Guidera).

       The legislature could, of course, have chosen to impose liability on a dealer to the extent of the deficiency in the effective insurance coverage of the purchaser. See General Statutes § 42a-2-510 (2) and (3). The language of § 14-60, however, in contrast to the explicit language of § 42a-2-510 (2) and (3), does not support a conclusion that such was the legislative intent. The mere reference to priority of insurance coverage contained in § 14-60 does not, as the plaintiff argues, compel such an interpretation in the face of the statute’s unambiguous imposition of joint liability on a dealer only when the purchaser is uninsured.

       Relevant portions of the policy issued by American Universal to Collins provide:
      “PART IV—LIABILITY INSURANCE
      “D. WHO IS AN INSURED.
      “1. For Covered Autos.
      “a. You are an insured for any covered auto.
      “b. Anyone else is an insured while using with your permission a covered auto except:
      “(1) The owner of a covered auto you hire or borrow from one of your employees or a member of his or her household.
      “(2) Someone using a covered auto while he or she is working in a business of selling, servicing, repairing or parking or storing autos unless the business is your garage operations.
      “(3) Your customers, if your business is shown in ITEM ONE of the declarations as an auto dealership. However, if a customer of yours:

        “(a) Has no other available insurance (whether primary, excess or contingent), he or she is an insured but only up to the compulsory or financial responsibility law limits where the covered auto is principally garaged.
      “(b) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered auto is principally garaged, he or she is an insured only for the amount by which the cumpulsory or financial responsibility law limits exceed the limits of his or her other insurance.
      “c. Anyone liable for the conduct of an insured described above is an insured but only to the extent of that liability. However, the owner or anyone else from whom you hire or borrow a covered auto is an insured only if that auto is a trailer connected to a covered auto you own.
      “2. For Garage Operations Other Than Covered Autos.
      “a. You are an insured.
      “b. Your employees, directors or shareholders are insureds but only while acting within the scope of their duties.”