author: Santaniello, J.

text:
    Francis T. Zappone Company v. Joan M. Mark et al.
    (12337)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued March 14
    decision released August 27, 1985

      Ross T. Lessack, with whom, on the brief, was Edward T. Dodd, Jr., for the appellant-appellee (defendant Howard T. Brennan).

      Richard Bruno, for the appellee-appellant (plaintiff).
   Santaniello, J.

The defendant Howard T. Brennan, having been found jointly liable with the defendant Sara Kramer to the plaintiff in the amount of $30,000 pursuant to a promissory note between the parties, has appealed to this court. On appeal he claims that the court erred in concluding that: (1) the promissory note, executed to secure a real estate commission, was enforceable without the written listing agreement being produced at trial; (2) the mere execution of a bond for deed without transfer of title entitled the plaintiff to a real estate commission; and (3) the plaintiff produced an able buyer thereby entitling the plaintiff to a real estate commission. The plaintiff has cross appealed from the trial court’s failure to award attorney’s fees.

The underlying facts, set forth in the trial court’s memorandum of decision, are essentially undisputed. The plaintiff, Francis T. Zappone Company, is a Connecticut corporation located in Waterbury. It performed services as a real estate broker. The defendant Brennan hired the plaintiff to act as broker for a sale of his property located in Waterbury. The plaintiff negotiated a sale of the building to the defendants Mark and Kramer for a purchase price of $286,000. Brennan agreed to pay a real estate commission of $28,000 on the sale and paid $8000 towards the commission. The buyers, Mark and Kramer, became jointly liable with Brennan for the commission owed to the plaintiff. Brennan gave Mark and Kramer a bond for deed which provided that the seller would give the buyers a warranty deed when the buyers had fully performed the sales agreement. Mark and Kramer paid $1000 to Brennan on delivery of the bond for deed, and all three signed a note to the plaintiff for $20,000, which represented the balance of the broker’s commission due.

The listing agreement was not offered in evidence or made available to the trial court until after the trial. The plaintiff testified that there was a listing agreement setting forth the terms of the transaction. Brennan acknowledged the existence of the listing agreement and that it called for the plaintiff to produce a ready, willing and able buyer. The court found that an enforceable agreement had been entered into between Brennan, Mark and Kramer, and found for the plaintiff on the note in the sum of $20,000 plus interest. Brennan thereupon moved to open the judgment and offered the listing agreement as a supporting exhibit. The trial court accepted the listing agreement as an exhibit and thereafter the court refused to open the judgment further so as to allow Brennan to reargue his position including the amount of the commission.

Brennan’s first claim on appeal is that the trial court erred in concluding that the promissory note, executed to secure a real estate commission, was enforceable without production of the written listing agreement at trial. “[A]n action to recover a commission arising out of a real estate transaction cannot be maintained unless there is a written contract or authorization expressing the underlying agreement.” Seaman v. King Arthur Court, Inc., 35 Conn. Sup. 220, 222-23, 404 A.2d 908 (1979); see General Statutes § 20-325a (b). Brennan concedes that there was a listing agreement, properly executed, which complied with all the formal requirements of General Statutes § 20-325a (b). He contends that, because the listing agreement upon which the note was based was not introduced at trial, the court erred in finding the note valid. The court made a finding of fact that there was an enforceable agreement entered into by and between all three original defendants. Although the agreement was not offered in evidence or made available to the court during the trial, it was made an exhibit by Brennan before the conclusion of the case when he filed a motion to open the judgment. This introduction of the listing agreement as an exhibit cured any defect that may have existed as a result of the plaintiffs failure to introduce the agreement at the actual trial.

Brennan’s second claim is that the trial court erred in concluding that the execution of a bond for deed, without the actual passing of title, entitled the plaintiff to a real estate commission. “ ‘Under the doctrine of equitable conversion . . . the purchaser of land under an executory contract is regarded as the owner, subject to the vendor’s lien for the unpaid purchase price, and the vendor holds the legal title in trust for the purchaser. 55 Am. Jur. 782 [Vendor and Purchaser § 356]. The vendor’s interest thereafter in equity is in the unpaid purchase price, and is treated as personalty; Bowne v. Ide, 109 Conn. 307 [147 A. 4 (1929)]; while the purchaser’s interest is in the land and is treated as realty. 18 C.J.S. 49 [Conversion § 9].’ Cooper v. Polayes, 19 Conn. Sup. 353, 354-55, 113 A.2d 599 (1955).” Society for Savings v. Bragg, 38 Conn. Sup. 8, 13-14, 444 A.2d 919 (1981). “A broker has fully performed his task when he brings the parties to an enforceable agreement.” Walsh v. Turlick, 164 Conn. 75, 80, 316 A.2d 759 (1972). If, “without any fraud, concealment, or other improper practice on the part of the broker, the principal accepts the person presented . . . upon the terms . . . proposed . . . and enters into a binding and enforceable contract with him for the purchase of the property, the commission is fully earned.” Meagher v. Reeney, 96 Conn. 116, 118, 113 A. 169 (1921).

In this instance, the plaintiff was retained by Brennan to seek out and find a purchaser for his property. It satisfactorily performed the contract by producing the prospective purchasers Mark and Kramer. A purchase price and real estate commission were fully agreed upon by all the defendants. At that time, a bond for deed was entered into by and between all the defendants setting forth the respective obligations of each party and establishing the plaintiff company’s real estate commission, upon which a down payment of $8000 was paid, leaving a balance of $20,000 due and payable.

Brennan claims that there was no transfer of the property entitling the plaintiff to its commission because the listing agreement states that a commission is due “upon the sale, exchange or transfer, or upon the exercise of any option to purchase ...” and none of the conditions of that specific agreement has been fulfilled. We disagree. A binding sales agreement such as a valid bond for deed passes equitable title, under the doctrine of equitable conversion, upon its execution. Cooper v. Polayes, supra. The parties are bound from that instant and the formal transfer of “paper” title can occur at some future date.

Brennan’s third claim is that the trial court erred in concluding that the plaintiff produced an able buyer, thereby entitling the plaintiff to a real estate commission. The plaintiff brought together all the defendants to discuss the terms and conditions of the proposed sale. All parties had equal access to information regarding the buyers’ financial ability. Both the buyers and the seller were represented by legal counsel who furnished legal advice to their clients on the basis of the same information available to the plaintiff. There is nothing in the record that indicates any fraud by the plaintiff in its representation of the buyers’ finances. On the basis of all of the information before the parties, and after being advised by counsel, the defendants entered into a bond for deed. Thereafter, the buyers took control of the property, managed it, made policy decisions, advanced mortgage payments, and generally exercised dominion and control over it for approximately thirteen months. It was then that the buyers decided that they would be unable to succeed financially in their investment and returned the keys to the building to Brennan. Taking into consideration all factors revealed prior to sale, the legal representation afforded to Brennan, and the willingness of the buyers to undertake the apparent challenge of managing the subject property towards profitability, the trial court was correct in finding that there was a valid bond for deed entered. The record is devoid of any evidence to support Brennan’s contention that the buyers, at the time of the sale, were unable to perform. The burden of proof in this instance is on the party affirmatively alleging lack of financial ability. Walsh v. Turlick, supra, 82. Brennan has failed to meet this burden.

On October 23, 1978, Brennan filed a cross complaint asking for the return of the $8000 which he had previously paid to the plaintiff. In view of our conclusion that the plaintiff is entitled to receive the entire broker’s commission, the judgment of the trial court in favor of the plaintiff on the cross complaint is affirmed.

The plaintiff has cross appealed from the trial court’s failure to award attorney’s fees. There was an allegation in the complaint that “there is presently due and owing the sum of $20,000 together with interest, costs and reasonable attorneys fees.” However, there was no specific claim for attorney’s fees in the prayer for relief. In addition no evidence was produced at the hearing. The plaintiff did not request attorney’s fees during the trial or during the postjudgment hearing. It made no attempt to bring the issue before the trial court. In the absence of any claim for attorney’s fees in the prayer for relief, and without any offer of evidence during the trial, the trial court did not err in not making such an award.

There is no error on either appeal.

In this opinion the other judges concurred.

       The plaintiff’s claim against the defendant Joan Mark was barred by virtue of the fact that Mark was discharged in bankruptcy on April 11, 1980.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Kenny v. Civil Service Commission et al.
    (12006)
    Shea, Dannehy, Santaniello, Spada and O’Neill, Js.

      Argued March 15
    decision released August 27, 1985

      Martin S. Echter, deputy corporation counsel, with whom, on the brief, was Alvin M. Murray, assistant corporation counsel, for the appellants-appellees (defendants).

      Anthony J. Lasala, with whom was Barbara E. Crowley, for the appellee-appellant (plaintiff).
   Santaniello, J.

This is an appeal by the defendants from an adverse trial court judgment awarding the plaintiff, Joseph Kenny, compensatory and exemplary damages for discrimination and wrongful termination of employment. The plaintiff has cross appealed from the trial court’s refusal to reinstate him. We find error on the appeal and no error on the cross appeal.

The basic facts underlying this appeal are not in dispute. In 1971, the plaintiff was appointed director of planning and budgeting for the New Haven police department. The plaintiff had worked for the department at various times, in differing capacities, since 1955. In August, 1972, the plaintiff passed a civil service exam and became certified for the director’s position. His responsibilities as director of planning included, among other things, coordination of the various units within the police department, management of the department’s information system, and preparation of the department’s budget. In his capacity as director of planning, the plaintiff reported solely to the chief of police. In 1978, Police Chief Edward Morrone directed an extensive internal reorganization of the New Haven police department. He structured the department into a cabinet of five directors, each of whom headed one of five newly created units. Planning and evaluation was one of the units created.

The city of New Haven operates on the basis of a civil service system. The city’s charter and civil service rules and regulations establish specific, mandatory procedures for the hiring, promotion, or termination of municipal employees. The applicable civil service rules provide that openings in higher positions in the classified service of the city are to be filled, in the first instance, by promotion from lower classes on the basis of competitive tests, and then by administration of competitive exams to any qualified persons. Civil Service Rules and Regulations, Rule X.

Following the reorganization, Morrone, acting in violation of these regulations, filled the new directorships without the administration of competitive exams and without first making the positions available to employees already working in the civil service system. Morrone appointed the defendant Paul Guidone director of the planning unit and reassigned the plaintiff to the subordinate position of commander of planning.

The trial court found that the plaintiffs new position, although subordinate to Guidone’s, involved no cut in pay and that initially his duties and responsibilities remained the same as those of his previously held position. The court determined, however, that from shortly after his appointment as commander until his termination in 1980, the plaintiff was the victim of “a long standing pattern of administrative discrimination.” Testimony at trial indicated that during that period of time Paul Guidone took over most of the plaintiff’s duties, until the plaintiff was left with responsibility for only one major project. “[The plaintiff] was no longer invited to attend Chief Morrone’s staff meetings. His car was taken away. His parking spot was taken away. His secretary was moved from outside his office to outside Paul Guidone’s office. He was ordered to report to [Guidone] rather than directly to Chief Morrone. His staff people reported to Paul Guidone rather than to him, leaving him one by one. Officers who formerly accompanied him on federally funded field trips were unable to do so because of pressing duties elsewhere.” The trial court concluded that the plaintiff had “suffered a period of heavy-handed, unsubtle, administrative discrimination resulting in his virtual isolation and culminating in his termination.”

On July 1, 1980, the New Haven board of finance eliminated the position of commander of planning and terminated the plaintiff’s employment. Although the board claimed that the plaintiff was terminated for “budgetary reasons,” the trial court found that “the elimination of the plaintiff’s position for fiscal reasons was a subterfuge,” designed solely to “get rid of the [plaintiff].” Immediately following his termination the plaintiff obtained new employment as chief of planning for the Comprehensive Employment Training Act (CETA).

On the basis of its conclusions that the plaintiff had been wrongfully denied the appointment as director of planning, and that the commander of planning position had been unlawfully eliminated, the trial court awarded the plaintiff $18,025 in compensatory damages. The court reached this figure by subtracting the plaintiff’s earnings for the period from 1978 to 1982 from Guidone’s salary for the same period. The trial court additionally found the defendants liable for exemplary damages “in an amount which will compensate [the plaintiff] to the extent of his expenses of litigation, including attorney’s fees, less taxable costs.”

The defendants have appealed the judgment, claiming that the trial court erred (1) in its computation and award of compensatory damages, and (2) in its conclusion that the plaintiff is entitled to exemplary damages. On the cross appeal, the plaintiff claims error in the trial court’s refusal to order reinstatement. We find error on the appeal and affirm the judgment on the cross appeal.

I

We are mindful, in our analysis of the claims presented in this case, of the familiar principle that “[t]his court may reverse or modify the decision of the trial court [only] if the decision is clearly erroneous in view of the evidence and pleadings in the whole record.” CEUI v. CSEA, 183 Conn. 235, 251, 439 A.2d 321 (1981).

The defendant’s first claim, which questions the propriety of the compensatory award, must be analyzed in two parts: pretermination compensation and post-termination compensation. The trial court found that, since the plaintiff was wrongfully denied promotion to Guidone’s position, he was entitled to be compensated in the amount of Guidone’s salary for the years Guidone illegally held the position. In our view, the finding of wrongful denial of promotion is clearly erroneous.

The civil service rules and regulations for the city of New Haven provide specific procedures to be followed in filling vacancies within the service: “Vacancies in higher positions in the classified service of the City shall as far as practicable be filled by promotion from lower classes upon the basis of competitive tests including a consideration of service ratings, provided that in case no persons in the classified service meet the necessary qualifications or it is deemed to the best interests of the City, the Civil Service Board may direct that such position be filled by competitive tests open to any qualified persons.” Civil Service Rules and Regulations, Rule X. The appointments made during the Morrone reorganization violated the civil service rules because they occurred without administration of any competitive exams. They were declared null and void by this court in New Haven Police Local 530 v. Logue, 188 Conn. 290, 292-94, 449 A.2d 990 (1982). However, the trial court’s conclusion that, but for the illegal appointment of Guidone, the plaintiff would have received the director’s position is unsupported by the evidence.

The most that can be said of the plaintiff’s status at the time of Guidone’s appointment is that he was entitled to compete for the position of director against other similarly qualified candidates. While the plaintiff’s prior experience as director of planning and evaluation and his rank within the civil service system made him a leading candidate for Guidone’s job, he was not the only candidate. At the time Guidone was hired the plaintiff had the right to compete for the promotion, and nothing more. Such a right is clearly not one upon which an award of compensatory damages can be properly based. It is our conclusion, therefore, that the trial court erred in using Guidone’s salary as the figure from which to measure the plaintiff’s compensatory damages. With this in mind, we proceed to an analysis of the compensatory damages award.

The purpose of compensatory damages is to restore an injured party to the position he or she would have been in if the wrong had not been committed. See 1 Minzer, Nates, Kimball, Axelrod & Goldstein, Damages in Tort Actions (1985) § 3.00; McCormick, Damages (1935) § 137. We have concluded that, during the three years preceeding his termination, the plaintiff was not entitled, as a matter of right, to be appointed director of planning. He therefore suffered no compensable injury during those years, and the trial court’s award of $8125 in back pay is clearly in error.

With regard to the period following the plaintiffs termination, the trial court found that the commander’s position was eliminated solely to get rid of the plaintiff, and that the manner of termination violated civil service regulations. These conclusions are substantially supported by the evidence. In order to recover post-termination compensatory damages, however, the plaintiff must show, in addition to wrongful termination, that he sustained a specific, resulting injury. To determine whether the plaintiff has suffered any post-termination damages, we compare, on a year by year basis, the plaintiff’s earnings prior to termination with the salary he received in subsequent employment. See Schlei & Grossman, Employment Discrimination Law (2d Ed. 1983) p. 1445; cf. Labor Board v. Seven-Up Co., 344 U.S. 344, 348, 73 S. Ct. 287, 97 L. Ed. 377 (1953). Any loss of earnings suffered as a result of the termination is properly compensable.

After his termination in 1980, the plaintiff obtained employment with CETA. His final salary as commander of planning was $22,400, and it is from this figure that we measure any loss of earnings suffered in subsequent years. In 1981 he earned $22,000 with CETA. He therefore suffered a compensable loss of $400 in that year. In 1982 he received $24,000 from CETA. Since the plaintiff realized a gain in salary in 1982, he is entitled to no compensatory damages for that year.

II

The defendants’ second claim is that the trial court erred in awarding the plaintiff exemplary damages. The defendants argue that the acts against the plaintiff do not rise to the level of “wilful and malicious” discrimination upon which an award of exemplary damages can be based, and that since the plaintiff offered no evidence of the cost of the litigation at trial, attorney’s fees are not recoverable.

The rules in this state regarding the award of common law punitive damages are well established. “ ‘Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights. . . . If awarded, they are restricted to cost of litigation less taxable costs of the action being tried . . . .’ Vandersluis v. Weil, 176 Conn. 353, 358-59, 407 A.2d 982 (1978).” Alaimo v. Royer, 188 Conn. 36, 42, 448 A.2d 207 (1982). “[T]he extent to which exemplary damages are to be awarded ordinarily rests in the discretion of the trier of the facts.” Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn 280, 295, 472 A.2d 306 (1984).

In the present case, the trial court found that the plaintiff “suffered a period of heavy-handed, unsubtle, administrative discrimination resulting in his virtual isolation and culminating in his termination.” The court also found fraud in the plaintiffs discharge from employment as commander of planning. The defendants have presented no evidence to refute these findings, and in fact stated at oral argument that they specifically were not challenging the trial court’s determination that the plaintiff had been the subject of discrimination. The evidence supports a finding of reckless disregard and wilful violation of the plaintiff’s rights sufficient to sustain an award of exemplary damages.

The trial court, in its memorandum of decision, awarded the plaintiff exemplary damages “in an amount which will compensate him to the extent of his expenses of litigation, including attorney’s fees, less taxable costs.” At trial, the court took no evidence as to the actual costs of the litigation, and no post-trial hearing in damages was ever held. Consequently, the exact monetary cost of the litigation has never been determined. The defendants claim that, because the plaintiff offered no evidence of actual attorney’s fees at trial, the award of exemplary damages must be reversed. While it concededly is true that “ ‘[n]o award for an attorney’s fee may be made when the evidence is insufficient’ Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982); it is equally clear that liability for attorney’s fees can be placed in the absence of any evidence of the cost of the work performed. In this case the trial court found the defendants liable for exemplary damages based on sufficient evidence of discrimination. It merely failed to set the amount of the award. The proper remedy under these circumstances, and the one which we order, is that the case be remanded to the trial court for a hearing to determine the amount of exemplary damages awarded.

III

Lastly, we address the plaintiffs claim on the cross appeal that the trial court erred in refusing to order his reinstatement. Generally, where an employee has been unlawfully terminated from employment, the remedy of reinstatement is to be applied by the court whenever possible. A court is not, however, obligated to order reinstatement where the position from which the employee was terminated no longer exists. See Brown v. Colman-Cocker Co., 16 F.E.P. 1046, 1051 (W.D.N.C. 1975). Shortly after this court declared the Morrone appointments illegal and ordered the positions refilled in accordance with civil service regulations; see New Haven Police Local 530 v. Logue, supra; the police department was again reorganized under the direction of a newly appointed chief of police. Each position for which the plaintiff might otherwise be eligible by virtue of his civil service status now carries the additional requirement that applicants be presently sworn members of the police force. Since the plaintiff is not a sworn police officer, it would be futile for this court to order his reinstatement. We therefore affirm the trial court’s finding on the cross appeal.

There is error in the trial court’s determination that the plaintiff is entitled to $18,025 compensatory damages, the judgment ordering the defendants to pay this amount is set aside, and the case is remanded with direction to render judgment ordering the defendants to pay the plaintiff $400 compensatory damages; there is no error in the trial court’s determination that the plaintiff is entitled to exemplary damages and the case is remanded for further proceedings to determine the amount of such damages; there is no error on the cross appeal.

In this opinion Shea, Dannehy and Spada, Js., concurred. O’Neill, J., concurred in the result.

       The plaintiff brought suit against the state civil service commissioner, the New Haven board of police commissioners, the New Haven board of aldermen, the New Haven department of police services, and Paul Guidone, a police department employee.

       The Morrone reorganization was challenged in the Superior Court by several members of the New Haven police department. The trial court found that the newly created directors positions had been illegally filled in violation of the New Haven charter and the established civil service rules. It declared the appointments null and void and ordered that the positions be refilled in compliance with the applicable civil service procedures. On appeal by the defendants, we affirmed the decision of the trial court. New Haven Police Local 530 v. Logue, 188 Conn. 290, 294, 449 A.2d 990 (1982).

       This case differs from our decision in Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 231, 487 A.2d 201 (1985), wherein we held that an employee denied a promotion solely on the basis of age is entitled to be awarded as damages the salary he would have received if he had been appointed to the job.


author: Dannehy, J.

text:
    State of Connecticut v. Napier Talton
    (11473)
    Peters, C. J., Healey, Shea, Dannehy, and Santaniello, Js.
    Argued June 4
    decision released August 27, 1985

      John R. Williams, with whom, on the brief, were Sue L. Wise and Beth Merkin, legal intern, for the appellant (defendant).

      Christopher Malcmy, special assistant state’s attorney, with whom were Julia D. Dewey, assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, for the appellee (state).
   Dannehy, J.

The defendant was charged in the first part of an indictment with the crime of sexual assault in the first degree in violation of § 53a-70 of the General Statutes. He was tried by a jury and found guilty. The defendant was also charged in the second part of the indictment with being a persistent dangerous felony offender under § 53a-40 of the General Statutes. The subsequent court trial on that charge also resulted in a conviction. No claims of error are directed against this conviction under the second part of the indictment apart from those relating to the predicate offense in the first part of the indictment. After his post-trial motions were denied, the defendant was sentenced to the custody of the commissioner of correction for a term of not less than twenty-five years nor more than life.

The defendant did not testify at the trial. The complainant testified that at approximately 6 p.m. on February 13, 1981, she and a neighbor were together at her apartment in New Haven. They heard a knock on the door. The neighbor opened the door and a man whom the complainant identified as the defendant entered the room. After the neighbor left, the defendant made sexual advances toward the complainant. She demanded that he leave. At this point she was grabbed by the defendant, thrown onto a bed and forced to engage in sexual intercourse. When the defendant released her, she ran to her neighbor for refuge. The neighbor saw the defendant leave the complainant’s apartment. Police officers took the complainant to a hospital where a vaginal smear was taken. The laboratory tests indicated the presence of sperm. The defendant denied having intercourse with the complainant on that occasion, although he sharply questioned her on the issue of forcible compulsion, so that the case was in large part one of credibility.

It is unnecessary to elaborate the facts further. Indeed, the evidence unquestionably was sufficient to sustain the charge made in the first part of the indictment. This appeal is based upon a series of questions that raise four main issues: (1) whether the trial court’s exclusion of any evidence regarding the determination of paternity of the child allegedly conceived during the rape of which the defendant was accused violated his state and federal constitutional rights to cross-examine witnesses and to establish a defense; (2) whether the trial court erred by permitting the state to show in its case in chief that the defendant had lied when he stated, during police interrogation that followed Miranda warnings, that he had never before been arrested; (3) whether the trial court denied the defendant assistance of counsel and due process of law in violation of the fifth and fourteenth amendments by permitting the state to present evidence that the defendant had refused to answer a question during police interrogation; and (4) whether the trial court erred and denied the defendant effective assistance of counsel, the right to present his defense, and the right to compulsory process in violation of the sixth and fourteenth amendments and article first, § 8, of the Connecticut constitution by refusing to call to the stand an available witness who assertedly would have presented evidence material and favorable to the defense. Additional facts will be discussed as may be necessary to place these issues in appropriate context.

I

The defendant first contends that the trial court’s exclusion of any evidence regarding the paternity of a child allegedly conceived during the sexual assault violated his state and federal constitutional rights to cross-examine witnesses and to establish a defense. We disagree.

Prior to trial, the defendant requested that the trial court order the complainant and her child to submit to a blood test “for the purposes of determining paternity.” The defendant’s request was based on the complainant’s grand jury testimony that she believed, from what she had been told in the hospital, that whoever assaulted her on the night in question was the father of her child. The defendant claimed that medical evidence establishing that he was not the father of the child “would be strong exculpatory evidence . . . that he was not the individual who committed the offense.” The trial court, correctly noting that it could not make substantive use of the complainant’s grand jury testimony; see General Statutes § 54-45a (b); denied the motion on the ground of relevance but indicated that it would reconsider the request at a later stage in the trial, if a proper factual foundation could be established.

At the conclusion of the complainant’s direct testimony, the defendant renewed his request for blood testing and moved that he be allowed to cross-examine the complainant concerning the paternity issue. The trial court expressed strong concern that, on the state of the record as developed to that point, the issue of paternity appeared to be irrelevant. The defendant was allowed, however, in the absence of the jury, to question the complainant extensively in order to explore this issue. The defendant apparently advanced various theories as to the relevance of the paternity issue but he was unable to establish any causal connection between the sexual assault and the child’s paternity. Eventually, defense counsel himself conceded that “the issue as far as the law is concerned, is, of course, not relevant. . . .” The trial court then remarked that it would not “allow this case to be turned into some type of paternity proceeding” and ultimately ruled that “the inquiries with respect to the paternity or lack of paternity of a child born some nine and a half months later on the state of this record, are irrelevant.” The defendant objected and properly excepted.

“The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). The cross-examination of a witness in an effort to show his or her motive, interest, bias, or prejudice against a party is a matter of right, although the extent of such cross-examination is within the judicial discretion of the court. State v. Tropiano, 158 Conn. 412, 426, 262 A.2d 147 (1969), cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970); State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959). “It is a reasonable exercise of judicial discretion to exclude questions which would introduce issues foreign to the case; State v. Dortch, 139 Conn. 317, 325, 93 A.2d 490 [1952]; or evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case. State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473 [1964].” State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969). We have reiterated that evidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978).

On appeal, the defendant’s claim of relevance appears to be limited to only one of the theories advanced at trial; that is, if it were shown that the defendant did not father the child, then the credibility of the complainant’s entire testimony could have been destroyed. This argument hinges on our holding in State v. Mastropetre, supra, which was controlling at the time of trial. There, we noted that, as a general rule, “evidence of prior sexual relations cannot be introduced to impeach a complaining witness’ credibility.” Id., 518. The defendant argues that, under the exception to the general rule enunciated in State v. Rivers, 82 Conn. 454, 458, 74 A. 757 (1909), and distinguished in Mastropetre, he should have been allowed to explore the issue of paternity by questioning the complainant about her prior sexual conduct. The defendant, however, misconstrues the rule in State v. Rivers, supra, wherein we held that “courts may properly . . . permit the accused to inquire on cross-examination as to particular acts of immorality and unchastity of the complainant either before or after the date of the alleged assault” when the complainant has made a claim of chastity on direct examination. Id. In this case, the complainant testified on direct examination that she had not had sexual relations with any other person for “three or four days or a week” prior to February 13,1981, or during the twenty-one day period after February 25,1981, and that she had not seen the defendant at any time subsequent to the alleged sexual assault except in the courthouse. She never made any claims of chastity nor did she make any claim at trial that the defendant was the father of her child. In light of this testimony the trial court was understandably skeptical about the defendant’s ability to demonstrate the relevance of his claim. The trial court did provide the defendant with ample opportunity to establish a link between the paternity issue and the sexual assault. The defendant’s offer of proof demonstrated the link was missing.

The issue in this case was whether this defendant sexually assaulted the complainant. The complainant’s subsequent pregnancy was irrelevant as to whether a sexual assault had occurred. The areas that the defendant sought to explore were plainly collateral in nature. Under the facts of this case, the pregnancy of the complainant had no bearing whatever upon the identity of the person who sexually assaulted her. The fact of the complainant’s pregnancy did not tend to prove or to disprove that the defendant committed the crime. This case is clearly distinguishable from those cases, relied upon by the defendant, such as State v. Rivers, supra, where the complainant testified that the sexual assault was the only act of intercourse in which she had engaged. See also People v. Bynon, 146 Cal. App. 2d 7, 303 P.2d 75 (1956); People v. Washburn, 75 Misc. 2d 1088, 349 N.Y.S.2d 978 (1973); State v. Lawson, 267 S.E.2d 438 (W. Va. 1980).

Evidence of acts of sexual conduct which tend to show that the defendant did not commit the sexual assault may be admissible. State v. Mastropetre, supra, 519-21; cf. General Statutes § 54-86f. Admitting such evidence for the limited purpose of denying the act charged when its probative value outweighs any prejudicial effect on the victim is consistent with both our policy of encouraging sexual assault victims to come forward and an accused’s fundamental right to present a defense under both the sixth amendment to the federal constitution and article first, § 8, of the Connecticut constitution. The defendant was given wide latitude by the trial court to attempt to demonstrate the relevance of the paternity evidence. He was unable to show any relevancy. In the absence of any connection between the issue of paternity and the sexual assault, the defendant’s state and federal constitutional rights to cross-examine were not infringed upon by the trial court’s rulings excluding the evidence of paternity.

II

The defendant next claims that the trial court erred in permitting the state to show in its case in chief that the defendant had lied when he stated, during custodial interrogation, that he had never before been arrested. We agree.

During its case in chief, the state introduced the testimony of the two police officers who conducted the sexual assault investigation and who eventually arrested the defendant. In the absence of the jury, each officer testified that the defendant, after being advised of his Miranda rights, was asked whether he had been arrested before. He replied that he had not. The defendant, in fact, had been incarcerated on a prior manslaughter conviction. The defendant objected to the admission of this testimony. The state claimed that the evidence was admissible to indicate consciousness of guilt and the trial court initially agreed that the evidence was admissible on that ground. Reserving all of his appellate rights as to the admissibility of the arrest evidence, the defendant agreed to a procedure whereby the trial court, at the appropriate point in the police officers’ testimony, would advise the jury that the defendant had stipulated that he had not answered truthfully when he told the police that he did not have a prior arrest record.

Both officers were then permitted to testify in the presence of the jury. The trial court did not instruct the jury on the doctrine of consciousness of guilt. Instead, immediately following each officer’s statement with regard to the defendant’s denial of an arrest record, the trial court gave the following limiting instruction: “Now, I wish to caution you merely because the defendant had been previously arrested, that fact does not mean that he is guilty of this charge. The only reason that is admitted is to demonstrate the fact that when he was questioned by the police at the time the officer is talking about, he did not respond truthfully to the officer’s questions, and I will explain when I give you the instructions what the probative meaning is with respect to that, but that is the purpose for which this has been admitted. It is not admitted to show that he had been previously arrested and, therefore, since he had been previously arrested, he must be guilty of this charge. That is not the purpose for which it was admitted.”

At the close of all of the evidence, the trial court again refused to charge the jury, as the state requested, on the theory that the defendant’s false denial of an arrest record was probative of consciousness of guilt. The trial court reasoned that there was no basis upon which to conclude that this particular falsehood was made as a result of, and in an attempt to, avoid detection for the alleged criminal act. See State v. Banks, 194 Conn. 617, 621-22, 484 A.2d 444 (1984). Instead, in its charge, the trial court instructed the jury, over the defendant’s objection and exception, that it might consider the evidence only “as bearing on credibility of the defendant insofar as the other statements made to the police by the defendant which included among various other statements, a claim that he and the victim had not had any sexual relations that night.”

The general rule is that evidence of the commission of other crimes or specific acts of misconduct is inadmissible to prove that a defendant is guilty of the crime charged against him. See State v. Periere, 186 Conn. 599, 610, 442 A.2d 1345 (1982), and cases cited therein. One recognized exception is that such evidence may be used, under certain circumstances, to impeach the credibility of an accused who takes the stand in his own defense. See State v. Marquez, 160 Conn. 47, 52-53, 273 A.2d 689 (1970). In this case, however, since the defendant did not testify at trial, the issue of his credibility was not properly before the jury. This being so, we hold that it was error for the trial court to admit the evidence of the defendant’s false statement with respect to his prior arrest record.

Our inquiry does not end with the conclusion that the admission of this testimony was erroneous. We now consider whether the admission of the testimony was so prejudicial to the rights of the defendant as to deprive him of a fair trial. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). Stated another way, the question is “whether the claimed erroneous action of the court would have been likely to affect the result.” State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).

Generally, “the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” State v. Periere, supra, 611, quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1222 (7th Cir. 1974). Although the defendant’s claim is based on an evidentiary ruling, making it incumbent upon him to demonstrate the harmfulness of the error; see State v. Januszewski, 182 Conn. 142, 174, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); he argues that the prejudicial impact of the trial court’s ruling deprived him of a fair trial.

In support of his position, the defendant relies on State v. Ferrone, 97 Conn. 258, 116 A. 336 (1922), wherein this court held that the defendant was denied a fair trial when a police officer testified that the defendant, during a custodial interrogation, said that he had never been arrested when in fact he had just spent “seven years in Sing Sing.” The court reasoned that this evidence “was obviously intended for the purpose of picturing the accused as a notorious criminal”; id., 267; thereby prejudicing the jury against him.

This case is clearly distinguishable from Ferrone. As evidenced by the procedure stipulated to by the parties, the trial court used extreme caution in shielding the defendant from any undue prejudice by avoiding the mention of any details of the defendant’s prior conviction. The jury was informed only that when “the defendant told Detective Cartoceti on February 13, 1981, that he had not been previously arrested, that that was, in fact, not true,” and, “that at that point in time, he had been previously arrested and he knew he had been previously arrested.” Thus, the jury was exposed to a mere reference to a prior arrest without any indication of a conviction, much less a long term of imprisonment. Further, neither the specific nature of the charge nor the underlying facts were put before the jury. We cannot say that the evidence of the defendant’s denial of a prior arrest record, without more, tended “to prove that [the defendant] was a notorious criminal” and, thus, so prejudiced the jury as to deny him a fair trial. State v. Ferrone, supra, 268.

Our conclusion that it is not likely that the error involved here deprived the defendant of a fair trial rests upon several additional factors. The principal factor is the overwhelming nature of the evidence which corroborated the complainant’s testimony. The complainant’s neighbor testified that she was visiting the complainant on the evening in question. The witness stated that a man, whom she subsequently identified as the defendant, came to the front door. She sat with the defendant for a few minutes and then returned to her apartment. Some twenty minutes later, the complainant ran to her neighbor’s apartment. As the neighbor opened the door in response to loud, repeated knocking, the complainant screamed she had just been raped by the man the neighbor had earlier met in the complainant’s apartment. She was described by the neighbor as upset, crying, with her clothing disarrayed. The neighbor saw the defendant step out of the complainant’s apartment and walk away “in a hurry.” The neighbor then proceeded to call the police and, upon their arrival, the complainant gave her statement.

At the trial, the two police officers who investigated the incident related in detail the description of the assault which the complainant had given to them. This description was virtually identical to the complainant’s testimony at trial.

Additional corroboration was adduced by the testimony of four medical and forensic expert witnesses. After the assault, the complainant was taken to Yale-New Haven Hospital where she told the counselor of the rape crisis team that she had been sexually assaulted. She was examined by a gynecologist whose findings were consistent with recent and forcible vaginal intercourse. Extensive physical evidence corroborating the fact of a forcible sexual assault was admitted into evidence.

One of the defendant’s own witnesses testified that the complainant had come to her with the police shortly after the assault and had told her that she had been raped by the defendant. The complainant had asked this witness where the defendant lived. The defendant admitted that he had been in the complainant’s apartment on the evening of February 21, 1981, but he denied having sexually assaulted her.

We also base our conclusion on the following additional factors. The reference to the defendant’s false denial of an arrest record constituted only an isolated incident in a long trial. Moreover, as previously discussed, the reference was made to the mere fact of a prior arrest; no mention was made of a conviction. Finally, the jury was cautioned that the fact of a prior arrest was not to be considered as proof of present guilt.

All of these factors lead us to the conclusion that the trial court’s error was not likely to have affected the result and did not, therefore, deprive the defendant of a fair trial. Each witness was able to corroborate completely the complainant’s testimony. On the basis of our review of the record, we find that the erroneously admitted evidence, and any possible prejudice resulting therefrom, did not affect the verdict.

Ill

The defendant next claims that the trial court erred in permitting the state to present evidence that the defendant refused to answer a question during police interrogation. Detective Mel Cartoceti, one of the officers who arrested the defendant, testified that the defendant, after having received Miranda warnings, related the following information to him: On the evening in question, the defendant had been at the complainant’s apartment. He had engaged in sexual relations with her in the past but not on that particular evening. In fact, on that evening, he had had sexual relations with a female friend.

Cartoceti testified that he tried to verify this story by asking the woman’s name. As Cartoceti began to explain that the defendant had declined to answer this question, the defendant objected and the jury was excused.

On interlocutory examination, Cartoceti testified that the defendant’s precise response was “I’d rather not tell you. I don’t want to tell you.” The defendant had then proceeded to answer other questions. Cartoceti stated that the defendant did not ask that police questioning cease.

The defendant contended that his refusal to answer a specific question constituted an invocation of his right to silence. The state argued that if the witness was not allowed to answer, the jury might be misled into thinking that “the police never bothered to inquire who [the woman] was or to investigate that.” The trial court explicitly found that the defendant had not invoked his right to silence; “[h]e just chose not to give that information.”

The defendant then requested a cautionary instruction to the effect that the jury was not to draw any unfavorable inference from the defendant’s failure to answer any police questions. The trial court reluctantly agreed to “act in extreme caution,” and the jury was properly instructed on the limited use to be made of this evidence. If the defendant wished for more specific instructions on this point, he should have asked for them. It clearly appears from the record that no further instructions were requested.

When direct examination resumed, Cartoceti testified that the defendant declined to give the female friend’s name. The additional information elicited from Cartoceti was that the defendant claimed to have had sexual relations with the complainant at an apartment off Chapel Street on a prior occasion. The police had investigated, but were unable to locate the apartment. Neither in closing argument nor in the charge to the jury was any further reference made to the defendant’s failure to answer a question while in custody.

It is well established that it is constitutionally impermissible for the “court or prosecutor to comment on the defendant’s silence in the face of in-custody accusations or interrogation. State v. Bates, 140 Conn. 326, 99 A.2d 133 [1953]; State v. Ferrone, 97 Conn. 258, 116 A. 336 [1922]; see Miranda v. Arizona, [384 U.S. 436, 468 n.37, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)].” State v. Ralls, 167 Conn. 408, 430, 356 A.2d 147 (1974). In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the United States Supreme Court explained: “The warnings mandated by [Miranda], as a prophylactic means of safeguarding Fifth Amendment rights . . . require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights.” Id., 617. The court reasoned that Miranda warnings contain an implied assurance that a defendant’s silence “will carry no penalty.” Id., 618. As such, silence following Miranda warnings is “insolubly ambiguous” because it may constitute a reliance upon those rights rather than a tacit admission that the accused has an insufficient defense or explanation for his conduct. Id., 617.

The Doyle decision, however, is not applicable to the facts of this case. The crucial distinction is that, here, the defendant did not remain silent after he was arrested and advised of his rights. After being given Miranda warnings, the defendant clearly chose to forego his right to remain silent. Once an arrestee has waived his right to remain silent, the Doyle rationale is not operative because the arrestee has not remained silent and an explanatory statement assuredly is no longer “insolubly ambiguous.” By speaking, the defendant has chosen unambiguously not to assert his right to remain silent. He knows that anything he says can and will be used against him and it is manifestly illogical to theorize that he might be choosing not to assert the right to remain silent as to part of his exculpatory story, while invoking that right as to other parts of his story. While a defendant may invoke his right to remain silent at any time, even after he has initially waived his right to remain silent, it does not necessarily follow that he may remain “selectively” silent.

We need not, however, in this case, decide the boundaries of intermittent assertion of the right to remain silent because, as the trial court found, the defendant’s expression of a disinclination to answer one question was not tantamount to any assertion of his fifth amendment right. The defendant talked freely with the two officers who arrested him. In response to their questions, he voluntarily discussed with them his version of the events of the evening in question. In refusing to divulge the name of his alleged companion, he merely said “I’d rather not tell you. I don’t want to tell you.” He did not ask that the interrogation be ended or indicate reluctance to answer other inquiries. Under these circumstances, because the defendant failed to invoke his fifth amendment right to remain silent, the evidence was neither impermissibly elicited nor improperly admitted.

IV

Finally, the defendant claims that he was denied effective assistance of counsel when the trial court refused to call to the stand, at the defendant’s request but contrary to defense counsel’s judgment, a witness who assertedly would present testimony favorable to the defendant. The defendant claims also that he was thereby denied his right to present a defense and his right to compulsory process in violation of the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution.

Throughout the trial, the defendant and his counsel were constantly at odds over trial tactics. The trial court thoroughly considered the numerous requests of the defendant either to dismiss defense counsel or to allow the defendant to be made “cocounsel,” all of which were eventually denied after the trial court made an explicit finding that the defendant did not wish to proceed pro se.

During the trial, the defendant and his counsel disagreed over whether or not to call, as a defense witness, the brother of the complainant. The defendant claimed that this witness would provide favorable and material evidence in support of his claim of innocence. Defense counsel claimed that he had interviewed the witness and the witness was not willing to testify.

On the day after the close of the evidence and the summations of the parties, the defendant represented to the trial court that he had spoken to the witness in question and that that witness would testify “in complete contradiction of everything his sister already stated to the Court.” Defense counsel argued that it would be tactically unwise to call this witness as any such testimony would be inconsistent with the witness’ prior statements to defense counsel and, as such, “would be very damaging to the defendant.” The trial court denied the defendant’s request to open the evidence and the defendant himself took an exception to the ruling. At no time during this discussion did the defendant either request to represent himself or renew his motion to be made cocounsel.

“The test that measures ineffective assistance of counsel requires a defendant to make two showings, that trial counsel’s performance was not reasonably competent or within the range of ordinary training and skill in the criminal law, and that trial counsel’s lack of competence contributed to the defendant’s conviction. State v. Tirado, 194 Conn. 89, 91-92, 478 A.2d 606 (1984); State v. Gregory, [191 Conn. 142, 143, 463 A.2d 609 (1983)]; State v. Chairamonte, 189 Conn. 61, 63, 454 A.2d 272 (1983); see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” State v. Rivera, 196 Conn. 567, 570, 494 A.2d 570 (1985).

The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.

On this record, we can only speculate why defense counsel chose to conduct the defendant’s defense as he did. State v. Rivera, supra, 575. We need only reiterate that the appropriate vehicle for review of a claim such as this is a request for postconviction relief. State v. Tirado, supra, 93. An evidentiary hearing will provide the trial court with the necessary evidence to evaluate the competency of the defense and the harmfulness of any incompetency. Id.

We turn now to the defendant’s remaining claim that, as a result of the trial court’s denial of his request to open the evidence, he was denied his constitutional rights to present a defense and to compulsory process. This claim of trial court error is inextricably intertwined with the defendant’s ineffectiveness claim. To analyze one claim is to analyze the other. We believe that a ruling regarding the defendant’s claim of trial court error would unduly prejudice a later presentation of the ineffectiveness claim. We therefore decline to reach the merits of this remaining claim.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: glass B felony: ONE YEAR NOT suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person. ...”

       “[General Statutes] Sec. 53a-40. persistent offenders: definitions; DEFENSE; AUTHORIZED sentences, (a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in the first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the . . . crimes enumerated in subdivision (1). ...”

       At the time of the defendant’s trial, General Statutes § 54-86f, Connecticut’s rape shield law, was not in effect.

       We note that the defendant was not precluded from cross-examining the witness with respect to any areas other than the paternity issue. Although the defendant chose not to pursue these areas, “[t]he test is whether the opportunity to cross-examine existed, not whether full use of such opportunity was made. ’ ’ (Emphasis in original.) State v. Mastropetre, 175 Conn. 512, 522, 400 A.2d 276 (1978).

       The trial court conducted a suppression hearing with respect to the voluntariness of the admissions made by the defendant while in custody. The trial court found that the defendant had been advised of and properly understood his Miranda rights and that he had waived them when he responded to police questioning. The defendant has not, on appeal, challenged this finding.


author: Callahan, J.

text:
    State of Connecticut v. Rick A. Miner
    (11733)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued June 5
    decision released September 3, 1985

      Monte P. Radler, special public defender, for the appellant (defendant).

      John F. Cocheo, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Rick A. Miner, was convicted by a jury of first degree sexual assault, in violation of General Statutes § 53a-70, and of unlawful restraint in the first degree, in violation of General Statutes § 53a-95. He was sentenced to an effective term of eighteen years, suspended after fifteen years, and five years probation. The defendant appeals from the judgment of conviction claiming that (1) the state’s failure to make a timely disclosure of allegedly exculpatory identification information deprived him of his constitutional rights to due process and a fair trial, and (2) his trial counsel’s failure to seek sanctions or pursue further investigation upon the untimely disclosure of this information denied him the effective assistance of counsel. We find no error.

From the evidence adduced at trial, the jury could reasonably have found the following facts: On the evening of April 17, 1982, the complainant and her husband went to Danny’s Cafe in Niantic, where they played pool with some friends and other customers, including the defendant. The complainant and her husband left the cafe at about 1:30 a.m. and went to the Lyme Tavern. About an hour later, after an argument with her husband, the complainant left the tavern to walk home alone. The tavern was approximately one mile from where she lived.

While walking along route 156, the complainant saw the defendant standing in a lighted parking lot. Minutes later, she saw him hitch a ride from a passing car. As the complainant approached the intersection of route 156 and Fairhaven Road, she again observed the defendant. He approached her on foot and, after a brief conversation in which the defendant expressed his desire for her and the complainant warned him to leave her alone, he pulled her into the bushes alongside the road. There was a struggle, during which the defendant overpowered the complainant, throwing her to the ground and sexually assaulting her.

The complainant eventually broke free and ran away, naked from the waist down. She ran up Fairhaven Road to a lighted house nearby. She told the occupants of the house that she had been raped and they took her in, gave her aid and called the police. Meanwhile, two of the men who were at the house, Robert Llewellen and James Suprenant, proceeded to the area where the complainant said the rape had occurred. In the illumination of a street light, Llewellen observed a man, clad only in his shirt and underwear, running from the spot the complainant had identified as the scene of the assault. Although Llewellen was able to see the man’s face clearly, Suprenant was looking in a different direction and caught only a quick glimpse of the running man. Suprenant and Llewellen chased the man but were unable to catch him.

Both Llewellen and Suprenant testified at trial. Llewellen made a positive in-court identification of the defendant as a man he had seen earlier that evening at Danny’s Cafe, and as the individual he had observed running from the scene of the crime. Suprenant, who had also been at Danny’s Cafe earlier that night, could not identify the defendant at trial.

The complainant made an unequivocal in-court identification of the defendant at trial. Later during the course of the state’s direct examination of the complainant, the state’s attorney began to question her regarding a photographic identification session conducted by the police several days after the assault. Defense counsel objected and asked that the jury be excused.

In the jury’s absence, the defendant’s attorney conducted a voir dire examination of the complainant. The witness testified that she had been shown the photographs two days after the assault, which occurred on April 18,1982, whereupon defense counsel stated: “I’m going to object to any inquiry as to any photographic display made after the 19th” on the ground “that counsel was appointed for the Defendant ... on April 19th . . . and any photographic confrontation without the assistance of counsel would be in violation of his sixth amendment and fourth amendment rights.” Before the court had an opportunity to rule on the defendant’s objection, the state’s attorney interjected that he had “an ethical and professional duty to vouch for his witnesses . . . [and] on that basis . . . I have an obligation to inquire regarding the prior photo lineup which is, in fact, flawed. . . . She made a misidentification, Your Honor.” At that point, defense counsel withdrew his objection and the court declared a short recess.

After the recess, the jury returned to the courtroom and the state’s attorney resumed his direct examination of the complainant regarding the photographic lineup. She testified that the police had visited her home and showed her a display of about ten photographs. After viewing the display, she informed the police that she “really could not identify the person in the pictures.” Although she picked out “two that looked similar,” she told the police that “I could not pick out one certain one because I was not sure if that was the man, and I didn’t want to point somebody out that was not the man who did this.” The complainant further testified that she did not narrow her identification down to one picture, and that neither of the two photographs she selected was of the defendant, whose picture was in fact among those displayed. She explained her inability to recognize the defendant’s photograph by saying “it wasn’t a very clear picture, and I would rather have seen him in person, and I just didn’t want to pick somebody out if I wasn’t really sure . . . but I know for a fact that [the defendant] is the man now because I see him in person, and I can just remember his face that night very clearly.” Shortly thereafter, the state concluded its direct examination of the complainant.

On cross-examination, the defendant’s trial counsel questioned the complainant regarding the photographic identification session. He offered the photographic display as a full evidentiary exhibit, and it was admitted without objection and passed among the jurors at counsel’s request. During this portion of his cross-examination, the defendant’s attorney attempted to impeach the complainant’s in-court identification of the defendant by questioning her on her inability to recognize his photograph. He challenged her characterization of the defendant’s picture as “foggy or unclear,” and tried to cast doubt on her descriptive abilities and powers of perception by comparing her prior description of the defendant with the two photographs she had selected as looking most like her assailant.

On May 10, 1982, the defendant had filed a pretrial motion for discovery and inspection in which he requested exculpatory information or materials including “[njegative, inconsistent, ambiguous, or exhonorating [sic] results obtained in a showup, lineup, or photographic identification procedure.” In its answer to the defendant’s motion for discovery, the state indicated that it had no knowledge of any such exculpatory information or materials. While the defendant does not allege prosecutorial misconduct and conceded in oral argument that there is no reason to believe that the state intentionally withheld information regarding the complainant’s faulty photographic identification, he argues that “the manner and timing of the prosecution’s disclosure was clearly negligent and severely prejudiced [him] in the preparation and presentation of his defense.” He claims on appeal that the prosecutor’s disclosure during trial of the complainant’s flawed photographic identification, after eliciting her unequivocal in-court identification of the defendant, denied him his right to a fair trial.

The defendant argues that the state’s tardy disclosure of the allegedly exculpatory identification information was in violation of his constitutional rights as established in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), and codified in General Statutes § 54-86c. To obtain a new trial on the basis of a claim of tardy disclosure, “the defendant bears the burden of proving that he was prejudiced by the state’s failure to make the information available to him at an earlier time.” State v. Reddick, 197 Conn. 115, 122, 496 A.2d 466 (1985). The defendant asserts that the timing of the disclosure was harmful in two respects. First, he maintains that the late discovery “foreclosed [him] from pretrial investigation and/or exploration of the evidence underlying [the complainant’s] in-court identification and out-of-court misidentification.” Such investigation, the defendant suggests, might have furnished a basis for the suppression of the complainant’s in-court identification. The second source of prejudice claimed by the defendant is that “the timing of the disclosure denied [him] an opportunity to develop, through additional discovery or otherwise, a defense based upon mistaken identity.” Prior knowledge of the complainant’s misidentification, he argues, would have enabled trial counsel to investigate the two men whose photographs were selected during the identification session, and would possibly have led to information implicating someone other than the defendant as the assailant.

We are unable to address on its merits the defendant’s claim of prejudicial tardy disclosure of exculpatory material because it has not been properly preserved for appellate review both because of the defendant’s withdrawal of his objection at trial and because of the inadequacy of the record. When the state first began to question the complainant regarding the photographic identification session, defense counsel initially objected to the inquiry, but, upon learning that the identification was “flawed,” immediately withdrew the objection. The defendant raised no claim of “suppression” of exculpatory information at trial, nor did he move the court for a continuance or for other relief. There was no request for a suppression hearing to determine whether or not the identification procedure was unnecessarily suggestive; see State v. Gordon, 185 Conn. 402, 413, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); or to test the reliability of the complainant’s in-court identification. Id., 418. Although on appeal the defendant asserts that investigation of the two men whose photographs were selected by the complainant might have yielded a successful defense based upon mistaken identity, he has presented nothing to indicate that either these two individuals or any other person besides the defendant was in any way connected with the charged offense. Compare Grant v. Alldredge, 498 F.2d 376 (2d Cir. 1974). On this record, the defendant’s claims of prejudice are purely speculative and cannot furnish a basis for the reversal of his conviction.

In State v. Altrui, 188 Conn. 161, 448 A.2d 837 (1982), we declined to consider a similar claim of untimely disclosure due to the defendants’ failure to raise the issue at trial. “Whether acting wittingly or unwittingly defendants cannot decline to avail themselves of appropriate procedural motions at the trial at a time when curative action may be taken and then expect this court to afford them relief on appeal without making a clear showing of a denial of a fundamental constitutional right, in this case that the delay in disclosure deprived them of a fair trial.” Id., 178. In this case, the defendant not only withdrew an objection to the complainant’s direct testimony regarding the photographic identification session, but he used this information to his own advantage in cross-examining the complainant. By choosing to proceed in this fashion at trial, the defendant effectively waived, for the purposes of appeal, any claim of error based on the state’s late disclosure of exculpatory evidence. See State v. Martin, 197 Conn. 17, 24-25, 495 A.2d 1028 (1985). Although the defendant has cited State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), in urging this court to review this claim, he has not presented a record that “adequately supports a claim that [he] has clearly been deprived of a fundamental constitutional right and a fair trial.” Id., 70.

The defendant also claims that his trial attorney’s failure to request a suppression hearing, or to move for “any of the applicable sanctions provided by [Practice Book § 747 for the state’s failure to disclose information discoverable as of right under Practice Book § 740], including a . . . mistrial,” constituted ineffective assistance of counsel. “The test that measures ineffective assistance of counsel requires a defendant to make two showings, that trial counsel’s performance was not reasonably competent or within the range of ordinary training and skill in the criminal law, and that trial counsel’s lack of competence contributed to the defendant’s conviction. [Citations omitted.] As we have repeatedly held, this test is difficult to meet on the face of an appellate record because such a record rarely reveals the strategic reasons behind the actions taken or not taken by trial counsel. For that reason, we have with increasing frequency declined to consider such claims on direct appeal, suggesting instead that their merits be addressed by recourse to habeas corpus. See, e.g., State v. Lubesky, 195 Conn. 475, 485, 488 A.2d 1239 (1985); State v. Jacobowitz, 194 Conn. 408, 413, 480 A.2d 557 (1984); State v. Tirado, [194 Conn. 89, 92-93, 478 A.2d 606 (1984)].” State v. Rivera, 196 Conn. 567, 570, 494 A.2d 570 (1985).

While the defendant recognizes this court’s reluctance “to resolve this kind of claim upon a direct appeal rather than after a habeas corpus proceeding where facts and circumstances often not disclosed by a trial transcript can be fully developed and the lawyer who represented the defendant at trial can be heard from”; State v. Orsini, 187 Conn. 264, 280, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); he submits that in this case “the ‘facts and circumstances’ are sufficiently clear from the record and trial transcript to warrant direct review.” At oral argument, the defendant focused on his trial counsel’s failure adequately to investigate the circumstances of the photographic identification procedure to determine the reliability of the complainant’s in-court identification. He maintained that his attorney’s failure to request a suppression hearing was inexcusable and he appeared to argue that this omission was prima facie evidence of ineffective assistance. We disagree.

Although on the record before us we can only speculate as to why trial counsel chose to cross-examine the complainant with regard to her flawed photographic identification rather than to pursue other available options, we are able to conceive of several tactical reasons for proceeding as he did. For example, the defendant’s attorney might have decided that a motion to suppress the complainant’s in-court identification would be futile in light of her testimony that she had had several opportunities to view the defendant, both before the crime, at Danny’s Cafe and in a lighted parking lot on route 156 as she was walking home, and during the attack. See State v. Gordon, supra, 415-16 (among the factors which determine the reliability of an identification is the opportunity of the witness to view the criminal at the time of the crime).

We are likewise unpersuaded that trial counsel’s failure to seek a continuance to conduct further discovery compels a finding of inadequate representation. The complainant testified that she did not positively identify any of the photographs displayed as that of her assailant, but merely selected two pictures that she thought most closely resembled him. From this testimony trial counsel might well have concluded that an investigation aimed at inculpating another individual as the perpetrator would be fruitless. Such a conclusion would certainly have been reasonable given the positive identification of the defendant supplied by Robert Llewellen. On the appellate record presently before us, we cannot conclude that the defendant was denied adequate assistance of counsel.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       “[General Statutes] Sec. 53a-95. unlawful restraint in the first degree: class d felony, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.
      “(b) Unlawful restraint in the first degree is a class D felony.”

       Because the complainant’s misidentification was disclosed during trial, that information cannot be considered “suppressed” within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812 (1985); State v. Altrui, 188 Conn. 161, 177, 448 A.2d 837 (1982). Under these circumstances, “the defendant can complain only of the timing of the disclosure and has no basis for a claim of suppression.” State v. Reddick, 197 Conn. 115, 121, 496 A.2d 466 (1985).

       “[Practice Book] Sec. 747. —sanctions for failure to comply “If the prosecuting authority fails to comply with Sec. 740, the judicial authority may, on motion of the defendant or on his own motion, grant appropriate relief, which may include one or more of the following:
      “(1) Requiring the prosecuting authority to comply;
      “(2) Granting the defendant additional time or a continuance;
      “(3) Relieving the defendant from making a disclosure required by Sec. 756, prohibiting the prosecuting authority from introducing specified evidence, or dismissing the charges; or
      “(4) Entering such other order as he deems proper.”


text:
    State of Connecticut v. Willie Stanley
    (11178)
    Petebs, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued June 7
    decision released September 3, 1985

      Dennis P. McMahon, with whom, on the brief, was Kathleen EldergiU, for the appellant (defendant).

      StcsanE. Gill, deputy assistant state’s attorney, with whom, on the brief, was Walter Flanagan, state’s attorney, for the appellee (state).
   Santaniello, J.

The sole issue presented by this appeal is whether the trial court abused its discretion in denying the defendant’s motion for a continuance. The underlying facts are undisputed. The defendant, Willie Stanley, was arrested on May 1, 1981, and charged with second degree robbery; General Statutes § 53a-135; second degree larceny; General Statutes § 53a-123; and first degree unlawful restraint; General Statutes § 53a-95; in connection with the assault and robbery of a woman at the Salvation Army quarters in Danbury. He pleaded not guilty and elected to be tried by a jury of six.

Throughout most of the pretrial period the defendant was represented by Special Public Defender James Deakin. However, on July 31,1981, two weeks before the start of trial, the court, Geen, J., granted Deakin’s motion to withdraw. The court then appointed Attorney John Dowling, who was not present in the courtroom, to represent the defendant. It is unclear from the record exactly when Dowling received notice of his appointment, although it appears that he was aware of the appointment at least by August 5, 1981, when he represented the defendant in a court hearing on the case.

Jury selection began on August 12, 1981. On August 13, after the jury had been impaneled, Dowling moved for a continuance of unspecified duration. He stated that he needed the additional time to review the file of the codefendant in the case, to review the work of the prior special public defender, to conduct further investigative work, and to discuss the possibility of a plea bargain with his client. He stated further that he had been on the case for only a week, and that during that time he had met with the defendant for just two hours. He concluded that because of the gravity of the charges against the defendant and the possibility of a lengthy sentence, he felt that “in order to justify this case and give [the defendant] a fair trial,” he required further time. The trial judge, Callahan, J., denied the motion, but failed to put his reasons on the record, stating only that he understood, and that defense counsel had been given adequate time. Counsel properly excepted to the ruling. The case proceeded to trial.

Following the direct testimony of the state’s first witness, the victim, the court granted defense counsel a ten minute recess. Upon returning to the courtroom, counsel informed the court that the defendant wished to withdraw his pleas of not guilty and enter pleas of guilty under the “Alford doctrine.” North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The court proceeded to question the defendant concerning his change of pleas, and a rather confusing discussion followed, wherein the defendant stated that he feared receiving the maximum sentence if he continued with the trial, but that he was innocent and could not bring himself to admit his guilt before the court. On several occasions during this discussion the defendant began to plead guilty, then changed his mind and withdrew the pleas. Finally, the trial court gave defense counsel a five minute recess to discuss the pleas with the defendant further.

After the recess, the court again questioned the defendant concerning his desire to change his pleas. The defendant first stated unequivocally that he wished to withdraw his prior pleas, and plead guilty to the charges. However, as the court explained to the defendant the rights he would be waiving by pleading guilty, the defendant appeared confused, saying that he did not understand that by pleading guilty he would be giving up his right to cross-examine witnesses and present evidence, and that he simply could not stand before the court and say that he had committed the crimes. The court then ordered the guilty pleas withdrawn, reinstated the pleas of not guilty, and ordered that the trial be continued. The defendant was subsequently convicted as charged.

The defendant’s sole claim on appeal concerns the propriety of the trial court’s denial of the defendant’s motion for a continuance. As we have often stated, the decision to grant or deny a continuance lies within the sound discretion of the trial court and will not be disturbed unless a clear abuse of that discretion is shown. State v. Marra, 195 Conn. 421, 437, 489 A.2d 350 (1985); State v. Myers, 193 Conn. 457, 463, 479 A.2d 199 (1984); State v. McKnight, 191 Conn. 564, 576-77, 496 A.2d 397 (1983); State v. Bethea, 167 Conn. 80, 84, 355 A.2d 6 (1974). “ ‘ “It must be shown that the trial judge acted arbitrarily and substantially impaired the defendant’s ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion.” United States v. Ellenbogen, 365 F.2d 982, 985 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S. Ct. 892, 17 L. Ed. 2d 795 (1967).’ State v. Myers, [supra].” State v. Marra, supra, 437-38.

While it is a close question in this case, we conclude that the record does not show sufficient facts to support the defendant’s claim of abuse of discretion. In support of his claim, he argues that defense counsel had insufficient time to consult with the defendant, to conduct further investigation in the case, and to review the work already done by former defense counsel. He contends that this lack of preparation time is sufficiently demonstrated by defense counsel’s limited cross-examination of the witnesses and the confusion which occurred at trial when the defendant attempted to change his pleas. We disagree.

Although the defendant has raised numerous general claims of prejudice, he has failed to specify any harm he may have suffered as a result of the denial of the continuance. While it appears from the record that counsel’s cross-examination of the state’s witnesses was short, the defendant has failed to state specifically what counsel might otherwise have asked these witnesses if the court had granted the motion. In addition, he has failed to identify any particular way in which he would have been aided had defense counsel been given further time to investigate the case or consult with the defendant. In response to the defendant’s request for additional time to obtain defense witnesses, the trial court stated: “There’s no problem, I’ll give Mr. Stanley the opportunity to get the witnesses.” Defense counsel had at least seven days to prepare for this trial. In addition, the trial court granted the state’s unopposed request for a continuance from Friday, August 14, to Tuesday morning, August 18. This gave counsel additional time to prepare his case. Counsel waited until the jury had been selected and impaneled, and the trial was about to begin before he requested a continuance. We cannot, on this record, say that the trial court, abused its discretion or deprived the defendant of his right to due process in denying his motion.

In addition to his claim of abuse of discretion, the defendant has alleged that he was denied effective assistance of counsel as a result of the trial court’s action. “We have repeatedly held that ineffective assistance claims are more properly pursued in a petition for a new trial or a writ of habeas corpus.” State v. Jacobowitz, 194 Conn. 408, 413, 480 A.2d 557 (1984). “Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible.” State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982); State v. Tirado, 194 Conn. 89, 93, 478 A.2d 606 (1984). Despite our finding of no error at this juncture, the defendant is not precluded from pursuing his ineffective assistance of counsel claim in an appropriate collateral proceeding.

There is no error.

In this opinion the other judges concurred.


author: Santaniello, J. Callahan, J., with whom, Ment, J.,

text:
    State of Connecticut v. Anthony Rogers
    (12129)
    Shea, Dannehy, Santaniello, Callahan and Ment, Js.
    Argued June 13
    decision released September 3, 1985

      Robert J. Sweeney, assistant public defender, for the appellant (defendant).

      Roland D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Santaniello, J.

On February 9, 1983, the defendant was found guilty of robbery in the third degree in violation of General Statutes § SSa-lSG after a jury trial. In accordance with the provisions of that statute, the court sentenced the defendant to the custody of the commissioner of correction for a term of five years. The defendant appealed, claiming that the trial court erred in impermissibly restricting defense counsel’s voir dire examination of prospective jurors.

The following facts are uncontroverted. Anthony Paladino, a route salesman for Frito Lay, Inc., had made deliveries on July 7,1982, to the D & S Variety Store located in the Dixwell Plaza in New Haven. While returning to his delivery truck he was approached by two black males who attempted to sell him a knife. As he took out his wallet to pay for the knife, he was grabbed around the neck from behind by a third person, a large black male. A struggle ensued and Paladino was thrown to the ground. During the struggle, he was robbed of his wallet, which contained cash, his driver’s license and personal charge cards. Later that day, the defendant was apprehended, identified as the assailant and arrested.

The case was assigned for trial by jury. Twenty-four potential veniremen were examined from which a jury of six plus two alternate jurors was selected. Thereafter, testimony commenced and the state called six witnesses, three of whom were police officers. Identification of the defendant as the robber was crucial to the state’s case, since the defendant had offered an alibi defense. In support thereof, he introduced testimony from his mother that he was home at the time of the robbery. The defendant corroborated this testimony. A third defense witness, Peter Cox, who testified that he witnessed the robbery, and saw the perpetrator, stated that the defendant was not the robber. On cross-examination, the defendant denied that he ever told a police officer that he “got jacked up on a robbery charge” and that he had witnessed a struggle but had not participated in any robbery.

The defendant’s sole contention on appeal is that he was denied a fair trial because the trial court impermissibly restricted defense counsel’s voir dire examination of prospective jurors. During the course of the voir dire examination, defense counsel asked certain questions designed to ascertain whether or not the prospective jurors would be able to perform their duties without bias, prejudice or partiality. During examination of one juror, defense counsel asked: “The State has indicated that possibly there could be police officers who would testify in this matter. Would you give a police officer’s testimony any extra believability or credibility merely because it’s a police officer testifying?” The trial court refused to allow the question. On another occasion, the state’s attorney queried: “Would you be able to exclude feelings of sympathy and compassion — ?” At that point the court interrupted and refused to allow this question, noting that the issue would be covered in his charge. On cross-examination of the same prospective juror, defense counsel inquired: “It was the same question Mr. Fasano asked about sympathy. Would you be able to exclude sympathy for anybody?” Again the court disallowed the question. A third juror was asked: “And if the judge were to tell you that you are to base your decision on only what you see and what you hear in the courtroom and not what might have gone on when you weren’t in here, would you do your best to follow those instructions?” The court held this to be an improper question. Defense counsel then attempted to rephrase the question: “If the Judge were to tell you that you are to base your decision on the evidence that you see and hear .... [The Court:] I’m not going to allow that question anyway. It would be part of the Court’s charge.”

The trial court restricted defense counsel’s questioning on voir dire, apparently because it believed that the subject matter of the questions would be adequately covered in the court’s charge, or had already been explained in instructions given prior to voir dire. Although the court’s preliminary instructions to the panel were expansive, thorough and well done, the fact that a court instructs the jury panel prior to voir dire and or charges the jury at the conclusion of the trial does not satisfy the defendant’s constitutional right to examine, personally or by counsel, each juror. The court’s charge does not necessarily delve into the mental processes of the jurors. It does not reveal the innermost thoughts, prejudices or feelings of the individual jurors.

“The right to a voir dire examination of each prospective juror in a criminal action is provided by § 54-82f of the General Statutes. [The court has the duty to analyze individual questioning under this section and limit examination to questions relating to (1) juror’s qualifications, (2) interest, if any, in the subject matter of the action, and (3) relations with the parties thereto.] This right was established as a constitutional one in 1972 by inclusion in article IV of the amendments to the state constitution of the provision that ‘[t]he right to question each juror individually by counsel shall be inviolate.’ See State v. Haskins, 188 Conn. 432, 446, 450 A.2d 828 (1982); State v. Anthony, 172 Conn. 172, 174, 374 A.2d 156 (1976).” State v. Hill, 196 Conn. 667, 671, 495 A.2d 699 (1985). This right cannot be replaced by a court’s charge, which is addressed to a group and does not elicit answers. Examination of jurors on voir dire has a two-fold purpose; it permits the trial court to determine whether the prospective juror is qualified to serve and it aids the parties in exercising their rights to peremptory challenges. State v. Haskins, supra, 446. It is true that the extent of the voir dire examination rests largely within the discretion of the trial court, and the exercise of that discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted. State v. Anthony, supra. “Nevertheless, in exercising its discretion, the court should grant such latitude as is reasonably necessary to fairly accomplish the purposes of the voir dire. Clearly, therefore, if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.” State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956).

In this case, police testimony was crucial to the state’s attempt to disprove the defendant’s alibi defense. The defendant had allegedly made incriminating statements to a police officer to the effect that he “got jacked up on a robbery charge” and had witnessed a struggle but had not participated in any robbery. Were this contradiction considered as true, then the defendant’s proffered “alibi” defense would have to be disbelieved.

“When important testimony is anticipated from certain witnesses whose official or semi-official status is such that a juror might reasonably be more, or less, inclined to credit their testimony, a query as to whether a juror would have such an inclination should be permitted. See Brown v. United States, 338 F.2d 543 (D.C. Cir. 1964); Sellers v. United States, 271 F.2d 475 (D.C. Cir. 1959); Harvin v. United States, 297 A.2d 774 (D.C. 1972). It was of vital importance to the defendant that if any such inclination existed it be brought to light. He was entitled to explore this area of possible disqualification prior to the impaneling of the jury. Only then could he intelligently challenge for cause or exercise his right of peremptory challenge. State v. Higgs, supra, 144.

"Nothing could be plainer than that a predisposition to attach greater or less credence to a witness’ testimony simply because of that witness’ position as an officer is inconsistent with the defendant’s constitutional and statutory right to an impartial jury. The denial of such a fundamental right cannot be countenanced. The trial court’s refusal to allow defense counsel to ask prospective jurors whether they would be inclined to give more weight to the testimony of a police officer merely because of that person’s official status constituted an abuse of discretion.” State v. Hill, supra, 672-73.

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

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

Callahan, J., with whom, Ment, J.,

joins, concurring. In light of State v. Hill, 196 Conn. 667, 495 A.2d 699 (1985), I concur with the result.

       “[General Statutes] Sec. 53a-136. robbery in the third degree: CLASS D felony, (a) A person is guilty of robbery in the third degree when he commits robbery. ...”

       The questions which the trial judge prohibited defense counsel from asking the three prospective jurors were not put to each and every venireman. Defense counsel indicated that he did not wish to prolong the voir dire process by asking each prospective juror the questions that the court had found objectionable. The court stated: “I don’t think you have to lay that foundation in each and every — and I wouldn’t consider it a waiver by the fact that you didn’t go ahead and reask all of those questions, and I indicated that to you before.” The court then stated: “I’m not requiring you to repeat all the inadmissible questions to each prospective juror.” Thus, the record was adequately preserved.

       “[General Statutes] Sec. 54-82f. VOIR DIRE examination. In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”