author: Callahan, J.

text:
    John M. Skinner v. Colin Angliker, Director of Whiting Forensic Institute, et al.
    (13504)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued March 7
    decision released May 30, 1989

      Igor I. Sikorsky, Jr., with whom, on the brief, was Robert Skelton, for the appellant (plaintiff).

      William J. McCullough, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, Joseph I. Lieberman, former attorney general, and Charles A. Overend, assistant attorney general, for the appellees (defendants).

      Elizabeth F. Gallagher and William F. Gallagher filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Callahan, J.

Certification was granted in this case limited to the question: “Did the Appellate Court err in deciding that a discharged employee who initiated an action under Connecticut General Statutes Section 31-51q was not entitled to a trial by jury?” Skinner v. Angliker, 209 Conn. 807, 548 A.2d 438 (1989). We affirm the judgment of the Appellate Court.

The facts relevant to this appeal have been set forth in the opinion of the Appellate Court; Skinner v. Angliker, 15 Conn. App. 297, 544 A.2d 246 (1988); but can be briefly summarized as follows. Shortly after being employed by the department of mental health as a forensic treatment specialist in 1983, the plaintiff allegedly witnessed numerous incidents of verbal and physical abuse of patients by some of the staff members at Whiting Forensic Institute. On October 21, 1983, the plaintiff was discharged after making several complaints regarding that abuse to his supervisors and officials at Whiting. The plaintiff secured employment at another institution soon thereafter.

In January, 1984, the plaintiff filed a complaint in the Superior Court against the defendants, Colin Angliker, the director of the Whiting Forensic Institute, and Audrey M. Worrell, the commissioner of the state department of mental health, in their official capacities, alleging that they had discharged him because he had exercised his first amendment rights and that the defendants’ actions were in violation of General Statutes § 31-51q. The plaintiff claimed the case for the jury docket, and the defendants subsequently filed a motion to strike, pursuant to Practice Book § 282, arguing that there was no right to a jury trial under § 31-51q. The trial court denied the defendants’ motion and a jury trial commenced on July 22, 1986. The jury returned a verdict for the plaintiff awarding him $9000 for present and future loss of earnings, $1 for emotional distress and $26,752.50 for punitive damages. The plaintiff was also awarded $3000 by the trial court for attorney’s fees and costs.

On September 30,1986, the defendants appealed the judgment to the Appellate Court, arguing, in relevant part, that the trial court erred in denying their motion to strike the case from the jury docket. Specifically, the defendants maintained that the plaintiff did not have a right to a jury trial in an action brought against the state pursuant to § 31-51q.

Addressing the defendants’ claim of error, the Appellate Court correctly set forth the standards used to determine whether a party is entitled to a trial by jury. “The constitution of Connecticut, article first, § 19, states that ‘[t]he right of trial by jury shall remain inviolate.’ This particular provision of our constitution has been consistently construed by Connecticut courts to mean that if there was a right to a trial by jury at the time of the adoption of the provision, then that right remains intact. See, e.g., Swanson v. Boschen, 143 Conn. 159, 165, 120 A.2d 546 (1959) . . . State v. Mention, 12 Conn. App. 258, 263, 530 A.2d 645 (1987); State v. Weisser, 9 Conn. App. 255, 257, 518 A.2d 655 (1986) , cert. denied, 202 Conn. 803, 519 A.2d 1207 (1987).” Skinner v. Angliker, supra, 15 Conn. App. 302; see also United States Fidelity & Guaranty Co. v. Spring Brook Dairy, Inc., 135 Conn. 294, 297, 64 A.2d 39 (1949). It is generally held that the right to a jury trial “exists not only in cases in which it existed at common law and at the time of the adoption of constitutional provisions preserving it, but also exists in cases substantially similiar thereto. . . . ” 47 Am. Jur. 2d, Jury § 17; Swanson v. Boschen, supra. At common law, “legal claims [were] tried by a jury, [and] equitable claims [were] tried by a court . . . . ” Miles v. Strong, 68 Conn. 273, 286, 36 A. 55 (1896); Dawson v. Orange, 78 Conn. 96,100, 61 A. 101 (1905). Equitable actions, therefore, are not within the constitutional guarantee of trial by jury. Franchi v. Farmholme, Inc., 191 Conn. 201, 210, 464 A.2d 35 (1983); United States Fidelity & Guaranty Co. v. Spring Brook Dairy, Inc., supra.

Moreover, General Statutes § 52-215, provides that as a matter of right “civil actions involving such an issue of fact as, prior to January 1, 1880, would not present a question properly cognizable in equity” should be entered on the docket as jury cases upon proper request. Section 52-215 goes on to state that certain enumerated actions and “all other special statutory proceedings, which, prior to January 1,1880, were not triable by jury,” shall be tried to the court without a jury. The right that the plaintiff seeks to enforce is statutory and was legislatively created in 1983. In Swanson v. Boschen, supra, 164-65, we stated, however, that the term “ ‘special statutory proceedings’ cannot be construed, under the constitutional provisions guaranteeing jury trials, to mean any cause of action whatsoever, simply because it is authorized by an enactment of the legislature. If it could, the legislature, by the process of giving legislative sanction to common-law causes of action, could, in the course of time, obviate the guarantee of jury trial completely. . . . The test is whether the issue raised in the action is substantially of the same nature or is such an issue as prior to 1818 would have been triable to a jury.” See also United States Fidelity & Guaranty Co. v. Spring Brook Dairy, Inc., supra, 297.

Accordingly, in determining whether a party has a right to a trial by jury under the state constitution and § 52-215, the court must ascertain whether the action being tried is similar in nature to an action that could have been tried to a jury in 1818 when the state constitution was adopted. This test requires an inquiry as to whether the course of action has roots in the common law, and if so, whether the remedy involved was one in law or equity. If the action existed at common law and involved a legal remedy, the right to a jury trial exists and the legislature may not curtail that right either directly or indirectly. Franchi v. Farmholme, Inc., supra; Swanson v. Boschen, supra; United States Fidelity & Guaranty Co. v. Spring Brook Dairy, Inc., supra; Windham Community Memorial Hospital v. Windham, 32 Conn. Sup. 271,273, 350 A.2d 785 (1975).

Applying this test, the Appellate Court, stated that “it is clear that [the plaintiffs] cause of action, if it existed at all prior to 1818, would have been barred under the doctrine of sovereign immunity,” and, therefore, concluded that the trial court erred in denying the defendants’ motion to strike the case from the jury docket. Skinner v. Angliker, supra, 15 Conn. App. 304. We agree.

In discussing the doctrine of sovereign immunity, this court has stated that “ ‘because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.’ Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). In its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and ‘there can be no legal right as against the authority that makes the law on which the right depends.’ Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S. Ct. 526, 51 L. Ed. 834 (1907); Bergner v. State, 144 Conn. 282, 284-85, 130 A.2d 293 (1957).” Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987); Fetterman v. University of Connecticut, 192 Conn. 539, 550-51, 473 A.2d 1176 (1984). Although the “absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others”; Doe v. Heintz, supra, 31; it was not until the enactment of § 31-51q in 1983 that this bar was removed in suits against the state for wrongful discharge due to an employee’s exercise of his or her first amendment rights. No principle of common law, prior to 1818, allowed actions against the state for wrongful discharge or related claims. Such actions, with or without a jury, simply did not exist against the state in 1818. In fact, the plaintiff conceded at oral argument that his claim would have been barred by sovereign immunity before 1818.

We are not implying that the right to a jury trial does not exist in any cause of action that was not specifically recognized at common law in 1818. “The historical test we apply is flexible and may require a jury in a new cause of action, not in existence in [1818], if it involves rights and remedies of the sort traditionally enforced in an action at law or if its nearest historical analogue is an action at common law.” Goar v. Com pania Peruana de Vapores, 688 F.2d 417, 427 (5th Cir. 1982); Swanson v. Boschen, supra. But this flexible approach does not mandate a jury in this case. “The cases that have required jury trials for new causes of action have involved legislative enhancement or creation of rights and duties in circumstances where the common law enforced similiar rights and duties. See Pernell [v. Southall Realty, 416 U.S. 363, 370-76, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974)]; Curtis [v. Loether, 415 U.S. 189, 195, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974)]. They did not involve removal or modification of blanket immunity, which creates enforceable rights and duties in circumstances where none existed before.” Goar v. Compania Peruana de Vapores, supra. Accordingly, to entitle one to a right to a jury trial, “it is not enough that the nature of the plaintiffs action is ‘legal’ rather than equitable; the action must also be brought against a defendant who was suable at common law in [1818].” Williams v. Shipping Corporation of India, 653 F.2d 875, 883 (4th Cir. 1981), cert. denied, 455 U.S. 982,102 S. Ct. 1490, 71 L. Ed. 2d 691 (1982); cf. Municipal Authority of City of McKeesport v. Elizabeth Township, 57 Pa. Commw. 13, 426 A.2d 182, aff'd, 498 Pa. 476, 447 A.2d 245 (1981) (no right to jury trial in suit against a municipal authority because the municipal authority did not exist when constitution adopted). Because the state was immune from suit in 1818 for this type of action, the plaintiff now has no right to a jury trial brought against the state under § 31-51q.

Our analysis draws support from cases involving claims for a jury trial under the seventh amendment to the federal constitution in suits brought against the United States. Applying a historical test similar to the one set forth above, the United States Supreme Court has held that the seventh amendment does not apply to suits against the government, because these “are not suits at common law within its true meaning.” McElrath v. United States, 102 U.S. 426, 429, 26 L. Ed. 189 (1880); Lehman v. Nakshian, 453 U.S. 156,162 n.9, 101 S. Ct. 2698, 69 L. Ed. 2d 548 (1981) (“[t]he reason that the Seventh Amendment presumption in favor of jury trials does not apply in actions at law against the United States is that the United States is immune from suit, and the Seventh Amendment right to a jury trial, therefore, never existed with respect to a suit against the United States”); Glidden Co. v. Zdanok, 370 U.S. 530, 572, 82 S. Ct. 1459, 8 L. Ed. 2d 671 (1962) (suits against government requiring as they do waiver of immunity are not suits at common law within the meaning of the seventh amendment); Galloway v. United States, 319 U.S. 372, 388, 63 S. Ct. 1077, 87 L. Ed. 1458 (1943).

Since it cannot be maintained that under the common law in 1818 a jury trial was a matter of right for persons asserting a claim against the sovereign, the right to a jury trial in this case will exist only if the legislature, in § 31-51q, has made the right applicable. Id., 388-89. Section 31-51q does not explicitly state that persons bringing actions under it are entitled to a trial by jury. The plaintiff argues, however, that in light of the language of § 31-51q and its legislative history, it is clear that the legislature intended to provide a legal, and not equitable, remedy and, therefore, it implicitly consented to a trial by jury. In addition, the plaintiff claims that because the legislature has specifically denied the right to a trial by jury in other statutes and it failed to do so in § 31-51q, we should assume that it intended to consent to a jury trial in § 31-51q actions. While the plaintiffs arguments may be valid in a suit against a private employer, it is important to remember that the instant action is one against the sovereign. Discussing the right to a jury trial in actions against the government under the seventh amendment to the federal constitution, the United States Supreme Court has stated that “the plaintiff has a right to a trial by jury only where that right is one of ‘the terms of [the Government’s] consent to be sued.’ [United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976)]. Like a waiver of immunity itself, which must be ‘unequivocally expressed,’ United States v. Mitchell, [445 U.S. 535, 538,100 S. Ct. 1349, 63 L. Ed. 2d 607, reh. denied, 446 U.S. 992,100 S. Ct. 2979, 64 L. Ed. 2d 849 (1980)], quoting United States v. King, 395 U.S. 1, 4, [89 S. Ct. 1501, 23 L. Ed. 2d 52 (1969)], ‘this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.’ Soriano v. United States, 352 U.S. 270, 276 [77 S. Ct. 269, 1 L. Ed. 2d 306 (1957)]. See also United States v. Kubrick, 444 U.S. 111, 117-18 [100 S. Ct. 352, 62 L. Ed. 2d 259 (1979)]; United States v. Sherwood, [312 U.S. 584, 590-91, 61 S. Ct. 767, 85 L. Ed. 1058 (1941)].” Lehman v. Nakshian, supra, 160-61; see also DeFonce Construction Corporation v. State, 198 Conn. 185,188, 501 A.2d 745 (1985); McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981) (statutes waiving government immunity must be strictly construed). When the state, by statute, waives its immunity to suit, as it has in § 31-51q, the right to a jury trial cannot be implied, but rather, must be affirmatively expressed. Lehman v. Nakshian, supra; see Grandison v. United States Postal Service, 696 F. Sup. 891, 893 (S.D.N.Y. 1988); Baer v. Abel, 648 F. Sup. 69, 77 (W.D. Wash. 1986); Griffin v. United States Postal Service, 635 F. Sup. 190, 192 (N.D. Ga. 1986) (no right to a jury trial unless affirmatively granted). Neither § 31-51q nor any other statute in Connecticut contains a specific provision for jury trials for wrongful discharge.

Accordingly, because no cause of action in these circumstances existed against the state in 1818, let alone the right to a jury trial, and the legislature has not specifically provided for a jury in § 31-51q actions, the Appellate Court was correct in concluding that the plaintiff was not entitled to a trial by jury in this case.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       On appeal to this court, the Connecticut Trial Lawyers Association filed a brief as amicus curiae.

       “[General Statutes] Sec. 31-51q. liability op employer for discipline OR DISCHARGE OF EMPLOYEE ON ACCOUNT OF EMPLOYEE’S EXERCISE OF certain constitutional rights. Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorney’s fees to the employer.”

       “[Practice Book] Sec. 282. striking from list; adding cases
      “If in the opinion of the court a case or matter is improperly upon a trial or assignment list, it will be stricken from the list, or otherwise disposed of, at the discretion of the court. Cases may at any time, by order of the court, be placed upon either list.”

       Prior to the commencement of the case, the defendants filed a motion to dismiss, arguing that General Statutes § 31-51q does not constitute a waiver of sovereign immunity. The trial court denied the defendants’ motion. The Appellate Court upheld the trial court’s denial of the defendants’ motion. Skinner v. Angliker, 15 Conn. App. 297, 300-302, 544 A.2d 246 (1988). We agree with the Appellate Court that the state waived its immunity in § 31-51q and, therefore, do not reexamine the issue in this appeal.

       The defendants also maintained that the trial court’s jury instructions were erroneous. Finding that the jury verdict should be set aside, the Appellate Court found it unnecessary to address these claims of error.

       “[General Statutes] Sec. 52-215. dockets, jury cases, court cases. In the superior court a docket shall be kept of all cases. In such docket immediately following the names of the parties and their attorneys in all jury cases shall be entered the word ‘jury.’ The following-named classes of cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days after the return day: Appeals from probate involving the validity of a will or paper purporting to be such, appeals from the actions of commissioners on insolvent estates, and, except as hereinafter provided, civil actions involving such an issue of fact as, prior to January 1,1880, would not present a question properly cognizable in equity, except that there shall be no right to trial by jury in civil actions in which the amount, legal interest or property in demand does not exceed two hundred fifty dollars or in a summary process case. When, in any of the above-named cases an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk; and any such case may at any time be entered in the docket as a jury case by the clerk, upon written consent of all parties or by order of court. All issues of fact in any such case shall be tried by the jury, provided the issues agreed by the parties to be tried by the court may be so tried. All cases not entered in the docket as jury cases under the foregoing provisions, including actions in which an account is demanded and judgment rendered that the defendant shall account, writs of habeas corpus and ne exeat, complaints for dissolution of marriage and all other special statutory proceedings which, prior to January 1,1880, were not triable by jury, shall be entered on the docket as court cases, and shall, with all issues of law and issues of fact, other than those hereinbefore specified, which may be joined in actions entered on the docket as jury cases, be disposed of as court cases.”

       In denying the plaintiff a right to a jury trial, the Appellate Court also relied on its finding that General Statutes § 31-51q actions are strictly statutory, stating that “it is only recently that there has been ‘a growing judicial receptivity to the recognition of a tort claim for wrongful discharge’; Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980).” Skinner v. Angliker, 15 Conn. App. 297, 304, 544 A.2d 246 (1988). Given the extensive historical discussion on wrongful discharge in Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984), we question the Appellate Court’s holding on this ground. Nonetheless, for the reasons stated herein, we agree with the Appellate Court that there is no right to a jury trial in suits brought against the state pursuant to § 31-51q. Whether the right to a jury trial exists under § 31-51q in cases against a private employer is not before us and, therefore, will not be addressed in this opinion.

       The seventh amendment to the United States constitution states in relevant part: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . ”

       In determining whether there is a right to jury trial under the seventh amendment, the United States Supreme Court applies a historical test in which it looks to see whether a similar cause of action was triable to a jury when the constitution was adopted in 1791. Pernell v. Southall Realty, 416 U.S. 363, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974); Curtis v. Loether, 415 U.S. 189, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974); National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 48, 57 S. Ct. 615, 81 L. Ed. 893 (1937). Although the seventh amendment constitutional guarantee of a right to a jury trial applies only in the federal courts; Gluck v. Gluck, 181 Conn. 225, 227, 435 A.2d 35 (1980); the similarity between the state and federal tests was recognized by this court in Swanson v. Boschen, 143 Conn. 159, 162-63, 120 A.2d 546 (1956).

       Similarly, the prohibition of jury trials in suits against foreign states in the Foreign Sovereign Immunities Act of 1976,28 U.S.C. §§ 1602 through 1611, has been found not to violate the federal constitution’s seventh amendment guaranty of a right to a jury trial since the amendment does not purport to require jury trials where none was required at common law and foreign sovereigns were immune from suit at common law. Arango v. Guzman Travel Advisors, 761 F.2d 1527 (11th Cir.), cert. denied, 474 U.S. 495, 106 S. Ct. 408, 88 L. Ed. 2d 359 (1985); Goar v. Compania Peruana de Vapores, 688 F.2d 417 (5th Cir. 1982); Rex v. CIA. Peruana de Vapores, S.A., 660 F.2d 61 (3d Cir. 1981), cert. denied, 456 U.S. 926,102 S. Ct. 1971, 72 L. Ed. 2d 441 (1982); Williams v. Shipping Corporation of India, 653 F.2d 875 (4th Cir. 1981), cert. denied, 455 U.S. 982, 102 S. Ct. 1490, 71 L. Ed. 2d 691 (1982); Ruggiero v. Compania Peruana de Vapores Inca Capar Yupanqui, 639 F.2d 872 (8th Cir. 1981).

       In Lehman v. Nakshian, 453 U.S. 156, 161 n.8, 101 S. Ct. 2698, 69 L. Ed. 2d 548 (1981), the United States Supreme Court stated that “[ijt is not difficult to appreciate Congress’ reluctance to provide for jury trials against the United States. . . . [Jjuries ‘might tend to be overly generous because of the virtually unlimited ability of the government to pay the verdict.’ ”

       The legislature has specifically granted or denied the right to a jury trial in other statutes in which it has waived sovereign immunity. For example, Genera] Statutes § 4-61 (a), entitled “Actions against the state on highway and public works contracts,” denies the right to a jury trial stating that “[s]uch action shall be tried to the court without a jury.” General Statutes § 13a-144, which allows damages for injuries sustained on state highways and sidewalks, specifically states that “[s]uch action shall be tried to the court or jury.” Although General Statutes § 13a-149, which provides “[djamages for injuries by means of defective roads and bridges,” does not specifically grant or deny the right to a trial by jury, the right is apparently preserved since governmental immunity in such actions was waived by statute in 1672 and said actions were tried to a jury prior to 1818 as evidenced in the case Eldredge v. Pomfret, 1 Root 270 (1791).


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Fred J. Minicucci et al. v. Commissioner of Transportation
    (13587)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued February 2
    decision released June 6, 1989

      Leonard Jacobs, with whom, on the brief, was Jean T. Walker, for the appellants (plaintiffs).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Joseph I. Lieberman, former attorney general, for the appellee (defendant).
   Covello, J.

On October 20,1986, the defendant, the commissioner of transportation, acquired a portion of the plaintiffs’ land by condemnation and assessed the plaintiffs’ damages at $38,000. General Statutes § 13a-73 et seq. The plaintiffs appealed to the Superior Court for a reassessment of damages and the case was referred to Hon. Charles S. House, state trial referee. On March 2,1988, the trial referee, having heard the parties, concluded that the plaintiffs’ damages as the result of the taking were $62,000 and rendered judgment thereon. The plaintiffs appealed that decision to the Appellate Court and we, thereafter, transferred the appeal to ourselves. Practice Book § 4023.

The plaintiffs claim that the trial referee erred in: (1) failing to value the property based upon its potential for subdivision into residential lots; (2) failing to consider the concurring opinions of both the plaintiffs’ and the defendant’s appraisers concerning the proportionate reduction in value of the residual property left after the taking; and (3) in prejudging the evidential value of the testimony of the plaintiffs’ appraiser as a basis for valuing the property. We find no error.

The relevant facts are as follows. The property taken consisted of 9.5 acres of a 13.65 acre parcel located on the northerly side of route 6 in Bolton. The subject property contained 1370 feet of frontage on route 6, and is located in an R-l single family residential zone. At the time of the taking the property was undeveloped, heavily wooded and rose sharply from the existing grade of route 6. The parcel contained wetlands and was spiraled through with a rock ledge formation. After the taking, the remaining 4.15 acres will have a four lane highway on one side and route 6 on the other side.

I

The plaintiffs first claim that the trial referee erred by refusing to value the property before the taking based upon its potential for subdivision into residential building lots. We do not agree.

“The owner of land taken by condemnation is entitled to be paid just compensation. Conn. Const. art. I § 11. If the taking is partial, the usual measure of damages is the difference between the market value of the whole tract with its improvements before the taking and the market value of what remained of it thereafter.” Lynch v. West Hartford, 167 Conn. 67, 73, 355 A.2d 42 (1974). “The ‘fair market value’ is the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land assuming, of course, that a market exists for such optimum use.” Mazzola v. Commissioner, 175 Conn. 576, 581-82, 402 A.2d 786 (1978). The plaintiffs argue that the highest and best possible use of the subject property was as a residential subdivision and therefore the trial referee should have considered this potential in his decision.

“[Cjourts have uniformly adopted the approach that raw land as such, with little or no improvements or preparation for subdivision may not be valued as if the land were in fact a subdivision .... The accepted rule for the evaluation of such land, therefore, is that the land will be considered in its present condition as a whole, with consideration given to any increment or enhancement in value due to the property’s present adaptability to subdivision development.” (Emphasis added.) 4 P. Nichols, Eminent Domain (3d Ed.) § 12.3142 [1] [a], pp. 12-335-356. In determining its highest and best use the trial referee must consider whether there was a reasonable probability that in the reasonably near future the subject property will be subdivided. Budney v. Ives, 156 Conn. 83, 239 A.2d 482 (1968). The trial referee must make this determination not only from the testimony and physical evidence presented, but also from his or her own personal observation of the property. See General Statutes § 13a-76.

Examination of the appraisal reports and numerous photographs in evidence discloses that the subject property obviously contained a significant quantity of rock, as there are visible outcroppings of ledge along route 6 and other portions of the land. The subject property rises sharply from the existing grade of route 6 to a plateau area approximately 30 to 40 feet above the street grade within a horizontal distance of 200 to 250 feet from the road. The land is thereafter fairly level for approximately 80 to 100 feet and then rises again another 20 to 24 feet in the rear. The plaintiffs argue that this land could be divided into six residential lots fronting along route 6, each consisting of approximately two acres.

The trial referee found that the presence of the steep slope and rocky conditions made “a decision as to the actual damages caused by the taking” to be one of particular difficulty. Despite the fact that the plaintiffs had owned this property for fourteen years, there is no evidence that a subdivision application was ever filed or a plan even prepared. There was no evidence as to the excavation costs incident to site preparation. No borings were taken to determine to what extent the significant levels of rock present would impact the cost of preparing the land for single family residential development. Thus, while confronted with a visually determinable impediment to the development of the property, the trial referee was given no hard evidence as to the cost of dealing with these very apparent problems. “Where the use appears to be subject to certain restrictions or limitations the trier must first determine whether these impediments do in fact exist and if so whether it is reasonably probable that they may be removed in the near future.” Mazzola v. Commissioner, supra, 582. This being the case, we conclude that the trial referee clearly acted within his broad discretion in these matters in rejecting the claim that the property should be valued as subdividable. “[Although the possibility of a change . . . always exists in some degree, it [is often] difficult to prove that such a possibility has become a reasonable probability.” Budney v. Ives, supra, 89.

In view of the evidence presented, and the lack thereof, it was well within the referee’s discretion to conclude that it was not reasonably probable that the land would in fact be subdivided in the reasonably near future. Therefore, we conclude that the trial referee did not err in failing to value the subject property as a potential subdivision.

II

The plaintiffs next claim that the trial referee erred in failing to consider the concurring opinions of both the plaintiffs’ and the defendant’s appraisers regarding the proportionate reduction in value of the residual property due to the taking. We do not agree.

At the hearing before the trial referee, the plaintiffs’ appraiser, Thomas Ringrose, testified that the value of the property before the taking was $273,000, the value of the property after the taking was $70,400, and thus, the damage from the taking was $202,600. The defendant’s appraiser, James B. Blair, testified that the value of the property before the taking was $63,800, the value after the taking was $18,200, and thus, the plaintiffs’ damages as a result of the taking would be $45,600. In a memorandum of decision, the trial referee concluded that the value of the property before the taking was $120,000, and the value after the taking was $58,000. Accordingly, the referee concluded that the plaintiffs’ damages from the taking were $62,000. The plaintiffs claim that both appraisers concurred that the value of the residual property was approximately 26 to 29 percent of the value of the original property. The trial referee, however, found that the value of the residual property was 48 percent of the value of the original property. The plaintiffs argue that had the trial referee concluded that the residual value was between 26 and 29 percent, as claimed by both appraisers, then the residual property would have been valued at between $31,200 and $34,800. Hence, the plaintiffs’ damages would have been between $88,000 and $85,000, and not $62,000 as the trial referee concluded.

“Under our law, a state referee sitting as a court on appeals in condemnation cases is more than just a trier of fact or an arbitrator of differing opinions of witnesses. He is charged by the General Statutes and the decisions of this court with the duty of making an independent determination of value and fair compensation in the light of all the circumstances, the evidence, his general knowledge and his viewing of the premises. . . . Thus there is effective legislative sanction for the authority of the referee independently to determine a value for condemned property which is less than that . . . agreed on between the condemnee and the taking authority.” Birnbaum v. Ives, 163 Conn. 12, 21-22, 301 A.2d 262 (1972). Here, the trial referee viewed the premises, heard all the evidence presented by the parties, studied the appraisal reports and made his own independent determination of value. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). We find no such error here.

Ill

The plaintiffs’ final claim is that the trial referee erred by prejudging the evidential value of the testimony of the plaintiffs’ appraiser as a basis for valuing the property. We do not agree.

At the time of the introduction of the plaintiffs’ appraisal report, the defendant’s attorney conducted a voir dire examination of the appraiser concerning the report’s content. The defendant’s attorney asked whether all of the sales used in the witness’ appraisal were “lot sales.” When the appraiser replied in the affirmative, the defendant’s attorney objected to the introduction of the appraisal report “coming in on lots.” The trial referee stated, “[w]ell, it certainly substantially diminishes the value of the evidence but I think it is—I can’t say it’s completely irrelevant and I will admit it for whatever weight I feel it should be given.” This, of course, is all that is asked of a trier of fact. “The weight [to be] given the evidence before it is within the sole province of the trial court.” Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985). The court’s remark was a correct statement of the applicable law.

There is no error.

In this opinion the other justices concurred.

       The defendant deposited $38,000 with the clerk of the Superior Court. That sum had been withdrawn by the plaintiffs, Fred J. Minicucci and Richard B. Hayes.

       Referee House ordered the defendant to pay the plaintiffs $24,000 in addition to the $38,000 already received by them, together with interest on the $24,000 at the rate of 10 percent from the date of the taking to the date of payment, together with costs and an allowance of $2000 toward appraisal fees.

       There is as much as a 125 foot difference between the elevation of route 6 and the subject property.

       The trial referee and the two appraisers established the differing values as follows:
      Trial Referee Plaintiffs’ Appraiser Defendant’s Appraiser
      Original Value $120,000 $273,000 $63,800
      Residual Value $58,000 $70,400 18,200
      Percentage of Original Value 48% 26% 29%


text:
    State of Connecticut v. Stephen J. Martin
    (13509)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued April 4
    decision released June 6, 1989

      John J. Carta, Jr., with whom, on the brief, was Sally Weisman, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were John Redway, state’s attorney, and Bernadette Conway, deputy assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was arrested on August 31, 1986, in East Haddam for operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a (a). After his apprehension, while he was in custody at the state police barracks in Colchester, the defendant was asked by Trooper Lawrence J. Pagan whether he would take a “chemical test.” The defendant refused and no test was administered.

At his trial the defendant submitted a request that the trial court instruct the jury that, on the evidence, it could consider and convict him of operating while impaired in violation of General Statutes § 14-227a (b)* as a “lesser included offense” of operating under the influence. The trial court refused to give such an instruction and the defendant was subsequently convicted under § 14-227a (a) of operating under the influence. The trial court, on the defendant’s conviction, sentenced him to six months imprisonment suspended after thirty days, with two years probation, and imposed a fine of $696 plus fees and costs.

The defendant appealed his conviction to the Appellate Court claiming that the trial court erred in refusing to instruct the jury as he had requested. State v. Martin, 15 Conn. App. 58, 64, 544 A.2d 231 (1988). In his appeal he also contended that the trial court had erred when it charged the jury that, when assessing the credibility of witnesses, “ ‘[t]he testimony of each [witness] is to be weighed for what it seems to you to be worth in the light of its character, the demeanor of the witness as it bears on credibility, the substance of the testimony, and the probability or improbability that what the witness said is true.’ (Emphasis added.)” Id., 66.

The Appellate Court refused to review the defendant’s initial claim that the trial court erred by not communicating his requested instruction to the jury. Id., 64-66. In resolving the defendant’s claim that the trial court erred in its jury instruction in regard to assessing the credibility of the witnesses, the Appellate Court found that the instruction was error but harmless in view of the charge as a whole. Id., 66-68. We granted certification as to these two issues and affirm the judgment of the Appellate Court.

I

The defendant first argues that the Appellate Court erred by refusing to review his claim that the trial court was in error when it did not comply with his request to instruct the jury that it could consider, as a lesser included offense of operating under the influence, whether the defendant was guilty of operating while impaired. The Appellate Court did not reach the merits of that issue on the defendant’s appeal because it concluded that the defendant had failed to “submit an appropriate request to charge as required by Practice Book § 854 and State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).” State v. Martin, supra, 64.

It is no longer necessary that we determine whether the Appellate Court was on firm ground when it refused to review the claim the defendant propounded to it on appeal. Since the decision of the Appellate Court was published in this case, we have determined, in State v. Gonzalez, 210 Conn. 446, 462, 556 A.2d 137 (1989), that the charge of driving while impaired has application only when a blood alcohol test has been administered to an accused and the test demonstrates “that the defendant’s blood alcohol content at the time of the alleged offense was greater than .07 percent and less than .1 percent . . . . ”

As a result of the defendant’s refusal to submit to a test, no blood alcohol test was administered. Consequently, there was no evidence of blood alcohol content to present to the jury. The defendant, therefore, was not entitled to an instruction that would have allowed the jury to find him guilty of operating while impaired rather than operating under the influence. Id. Because the issue the Appellate Court refused to review has been definitively decided against the defendant by this court, the certified question of whether it was error for the Appellate Court to refuse to review that issue is moot. Roy v. Mulcahy, 161 Conn. 324, 328, 288 A.2d 64 (1971).

II

The defendant next claims that the trial court erred when it instructed the jury that it could consider in assessing the credibility of the witnesses “ ‘the probability or improbability that what the witness said [was] true.’ ” State v. Martin, supra, 66. The defendant argues that this instruction diluted the state’s burden of proof and allowed the jury to use a standard other than the required standard of proof beyond a reasonable doubt in determining the defendant’s guilt. See In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). We disagree.

The instruction complained of was conveyed to the jury by the trial court, not in defining the state’s burden of proof, but rather in imparting to the jury guidelines as to what it might consider in determining the veracity of the witnesses. The trial court instructed the jury in the same segment of its charge that the “credibility of witnesses and the weight to be given their testimony are matters which are especially within your province to determine,” that it was “the quality and not the quantity of the testimony that controls,” and that the jury could consider among other things, the “demeanor” of the witnesses and the “substance” of their testimony.

In the context in which it was given, the “probability or improbability” instruction was not error. The only message that it conveyed to the jurors was that they could consider the plausibility or implausibility of the witnesses’ testimony in determining what version of the events in controversy they would credit. The instruction did not remotely suggest to the jurors that the state’s ultimate burden to prove all the elements of operating under the influence beyond a reasonable doubt was diminished in any respect. In fact, the trial court, in a charge that covered only eighteen pages of transcript, informed the jury on at least eight occasions that the state bore the burden of proving all the elements of the offense charged beyond a reasonable doubt.

Error is not committed every time a trial court utters the words “probable or improbable” or a variation thereof during the course of its charge. It is only when those words are used in a context that diminishes the state’s burden to prove guilt beyond a reasonable doubt that error results. See State v. McDonough, 205 Conn. 352, 356, 533 A.2d 857 (1987), cert. denied, U.S. , 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Such is not the case here. The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 14-227a (a) provides in pertinent part: “operation WHILE UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR, (a) OPERATION WHILE UNDER THE INFLUENCE. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-227a (b) provides in pertinent part: “operation WHILE IMPAIRED. No person shall operate a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor. A person shall be deemed imapired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.”

       The defendant was also arrested for and convicted of interfering with a police officer in violation of General Statutes § 53a-167a. He was given an unconditional discharge by the trial court on that charge. That conviction is not an issue on this appeal.

       The Appellate Court concluded that the trial court’s charge was a “comparative credibility” charge such as we criticized in State v. Orsini, 187 Conn. 264, 276, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982). We disagree. Unlike the charge criticized in State v. Orsini, supra, the instruction complained of in this case did not advise the jury simply to compare the state’s evidence with that of the defense and decide which was more believable. The trial court, rather, made it clear to the jury that it was simply referring to factors that it might consider in evaluating the credibility of the witnesses on the path to determining the ultimate question of whether the state had proven all the elements of the crime charged beyond a reasonable doubt.

       The defendant also appealed other issues to the Appellate Court. Certification to this court, however, was granted only as to the two issues noted above. The two questions certified were:
      “Did the Appellate Court err in refusing to review the defendant’s claim that the trial court erred in refusing to charge the jury as requested on the ‘lesser included’ offense of operating a motor vehicle when the defendant’s ability to do so was impaired as provided in Connecticut General Statutes Section 14-227a (b)?”
      “Did the Appellate Court err in finding no error on the trial court’s charge on the credibility of witnesses?”

       The state presented the observations of the arresting officers as evidence of the defendant’s guilt.

       The portion of the charge referred to reads as follows: “Now, another important factor—well, they’re all important, but they’re all listed— credibility of witnesses in general. The credibility of witnesses and the weight to be given their testimony are matters which are especially within your province to determine. However, I may properly suggest certain guidelines. No fact, of course, is to be determined merely by the number of witnesses testifying for or against it. It is the quality and not the quantity of the testimony that controls. There’s no such thing as legal equality of credibility of witnesses. The testimony of each is to be weighed for what it seems to you to be worth in the light of its character, the demeanor of the witness as it bears on credibility, the substance of the testimony, and the probability or improbability that what the witness said is true. Each witness must first stand or fall upon his own testimony. When I say his, of course, it includes her, so it’s obviously he or she, but I’ll just use the male gender, if the ladies don’t mind. He may be unimpeached and uncontradicted, and his testimony may not be even adversely affected by any other evidence; yet his testimony need not necessarily be believed. Nor does testimony have to be rejected when it is in conflict with that of other witnesses, if that is your judgment.” (Emphasis added.)


author: Per Curiam.

text:
    Joann Roman et al. v. City of Stamford
    (13531)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued May 3
    decision released June 6, 1989

      Paul J. Pacifico, for the appellants (plaintiffs).

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Mary Sommer, corporation counsel, for the appellee (defendant).
   Per Curiam.

In this negligence case, the dispositive issue is whether a municipality creates an actionable private duty by adopting a municipal charter in which it undertakes to provide for the care of public trees. The plaintiffs, Joann Roman and Madeline Roman, sued the defendant, the city of Stamford, for injuries that they suffered when their automobile was struck by a rotten tree located within the limits of a municipal roadway. The case was tried to a jury on the theory that the defendant could be found liable for negligence by virtue of a provision contained in the Stamford city charter that imposed on the defendant a duty to maintain and care for “all trees . . . within the limits of any public road.” Stamford City Charter § C-595.1 (2). After a jury verdict finding the defendant liable, the trial court rendered judgment in favor of the plaintiffs. The Appellate Court overturned this judgment and directed that judgment be entered in favor of the defendant. Roman v. Stamford, 16 Conn. App. 213, 547 A.2d 97 (1988). This court then granted the plaintiffs’ petition for certification to appeal limited to the following question: “When a city charter provision directs the city’s park commission to provide for the care and control of all trees within the limits of public roads, can a municipality be held liable in negligence where an automobile is struck by a falling tree located within the limits of the roadway?” Roman v. Stamford, 209 Conn. 821, 551 A.2d 757 (1988). We conclude that this question must be answered in the negative and that the judgment of the Appellate Court must accordingly be affirmed.

The crux of the issue encompassed by our certified question is the continued viability of a dictum in Dyer v. Danbury, 85 Conn. 128, 81 A. 958 (1911), about municipal liability arising out of charter provisions. We there stated that “[wjhere . . . some special power or privilege out of which grow public duties, primarily for the benefit of its own citizens, is granted to a municipality at its request, or where with its consent some special duty, not belonging to it under the general laws, is imposed upon it . . . the municipality is in a sense performing a private duty, and although no liability for damages is imposed by statute for negligence in the performance of such duties, the municipality is nevertheless liable for it.” Id., 131. The Appellate Court determined that this statement could not be reconciled with the reformulation of the distinction between private and public municipal duty contained in more recent cases such as Gordon v. Bridgeport Housing Authority, 208 Conn. 161,165-67, 544 A.2d 1185 (1988), Shore v. Stonington, 187 Conn. 147, 152-54, 444 A.2d 1379 (1982), and Leger v. Kelly, 142 Conn. 585, 589-91,116 A.2d 429 (1955).

After a careful consideration of the record, the briefs, and the arguments of the parties, we conclude, as did the Appellate Court, that the disputed dictum in Dyer v. Danbury is no longer good law. The Appellate Court’s resolution of this issue is thoughtful, scholarly and comprehensive. It would serve no useful purpose for us to elaborate further on the discussion contained in the opinion of the Appellate Court.

The judgment of the Appellate Court is affirmed.

       Section C-595.1 of the charter of the city of Stamford, adopted in 1977 and entitled “Powers and Duties of the Park Commission,” provides: “The Park Commission, subject to the approval of the Mayor, shall determine all park policies for the City of Stamford except as may be determined by the Board of Representatives and to that end it:
      “(1) shall establish, construct and maintain all parks;
      “(2) shall provide for the care and control of all trees and shrubs within the limits of any public road;
      “(3) shall establish such rules as are necessary for the proper use and maintenance of the parks; and
      “(4) may receive gifts of money or property in the name of the City of Stamford for park purposes.”


author: Peters, C. J.

text:
    Harvey K. Fair v. Warden, State Prison
    (13489)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued March 29
    decision released June 6, 1989

      Temmy Ann Pieszak, assistant public defender, for the appellant (petitioner).

      Paul J. Ferencek, deputy assistant state’s attorney, with whom, on the brief, was Robert Devlin, Jr., assistant state’s attorney, for the appellee (respondent).
   Peters, C. J.

The principal issue in this appeal is whether the petitioner has established that his conviction of the crime of first degree robbery should be overturned because of ineffective assistance of counsel. A jury found the petitioner, Harvey K. Fair, guilty of first degree robbery, in violation of General Statutes §§ 53a-8 and 53a-134 (a) (3), and of escape from custody, in violation of General Statutes § 53a-171.* The trial court imposed on the petitioner an effective sentence of twenty years imprisonment, suspended after fifteen years and three years probation. He then brought a petition in the Superior Court for a writ of habeas corpus claiming that ineffective assistance of counsel at his trial entitled him to a new trial. The habeas court denied the writ and the petitioner, upon the granting of certification, appealed to the Appellate Court. We transferred the case to ourselves pursuant to Practice Book § 4023 and now find no error.

The relevant facts can be summarized as follows. At about 4 a.m. on December 24, 1983, Anthony O’Neil walked into a New Haven convenience store and asked the clerk for a candy bar. Upon directing O’Neil toward the candy, the clerk noticed the petitioner “sneaking” around outside the door. O’Neil then began hitting the clerk on the head with a hard narrow metal object. The clerk momentarily lost consciousness and fell to the floor. The petitioner had by then entered the store, where he observed that O’Neil had struck the clerk, and yet the petitioner offered the clerk no assistance. Neither O’Neil nor the petitioner could open the cash register, and therefore the clerk was ordered to do so. Before fleeing, the two took between $500 and $600 and several packs of cigarettes from the store. The store’s video cameras captured the entire incident on film. After his arrest the petitioner successfully escaped from custody, but turned himself in two days later. A jury convicted the petitioner of both first degree robbery and escape from custody.

The petitioner then brought an action in the Superior Court against the respondent, warden of the state prison, seeking a writ of habeas corpus. He claimed, inter alia, that the failure of his trial counsel, Peter Kelly, to request a jury instruction on the lesser included offense of larceny and trial counsel’s statement during closing argument to the effect that there was not much question about the petitioner’s liability for robbery, deprived him of effective assistance of counsel in violation of his federal and state constitutional rights. U.S. Const., amends. VI and XIV; Conn. Const., art. I, § 8.

After a three day hearing, the habeas court denied the petition, 6ruling that the petitioner had not been deprived of effective assistance of counsel because: (1) the state’s overwhelming evidence at trial that the defendant had “knowingly and willfully” assisted O’Neil made it “professionally reasonable” not to have requested a lesser included offense charge; and (2) regardless of trial counsel’s comments during summation, “it is highly improbable, based on the strength of the state’s case, that such comments influenced the outcome of petitioner’s trial.”

On appeal the petitioner renews these two claims of ineffective assistance of counsel and also contends that the habeas court’s conduct created the appearance of impropriety, thus depriving him of a fair hearing on his ineffective assistance claim. None of the petitioner’s arguments persuades us.

I

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267,104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989).

A

The petitioner first claims that trial counsel rendered ineffective assistance in failing to request that the trial court charge the jury on larceny, a lesser included offense of robbery. He contends that, while he admittedly participated in taking the money, he did not intend or plan O’Neil’s use of force in the theft, and therefore the jury could reasonably have found him guilty of larceny instead of robbery. The petitioner so testified both at trial and at the habeas hearing. The petitioner claims that, with his intent regarding the incident sufficiently in dispute, the trial court would have instructed the jury on larceny had he so requested. He therefore argues that the habeas court erred in finding that a lesser included offense instruction was unavailable and contends that trial counsel’s failure to appreciate the lesser charge of larceny as a viable theory constituted ineffective assistance of counsel.

We agree with the petitioner that evidence is sufficiently in dispute if “ ‘reasonable minds could differ upon the existence or nonexistence of the element that distinguishes the inclusive from the included offense.’ ” State v. Manley, 195 Conn. 567, 575, 489 A.2d 1024 (1985); see also State v. Green, 207 Conn. 1, 14, 540 A.2d 659 (1988). We therefore assume, without deciding, that on these facts, had trial counsel requested an instruction on the lesser included offense of larceny, the trial court would have had so to instruct the jury. We do not agree, however, that trial counsel’s failure to request such a charge amounts per se to a demonstration that “counsel’s performance was deficient,” thus fulfilling the first prong of Strickland.

Establishing that counsel’s performance was deficient “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, supra, 687. To demonstrate this “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id., 687-88. “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Id., 688. “Judicial scrutiny of counsel’s performance must be highly deferential,” and courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id., 689, quoting Michel v. Louisiana, 350 U.S. 91,101, 76 S. Ct. 158,100 L. Ed. 83 (1955), reh. denied, 350 U.S. 955, 76 S. Ct. 340,100 L. Ed. 831 (1956); see also Burger v. Kemp, 483 U.S. 776, 788-96,107 S. Ct. 3114, 97 L. Ed. 2d 639 (1987); Darden v. Wainwright, 477 U.S. 168, 185-86, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986); Aillon v. Meachum, supra, 357; Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985).

A majority of jurisdictions addressing the issue have held that counsel’s failure to request a lesser included offense instruction does not necessarily deprive a defendant of reasonably effective assistance of counsel. See, e.g., Kubat v. Thieret, 867 F.2d 351, 364-65 (7th Cir. 1989); United States v. Hall, 843 F.2d 408, 413 (10th Cir. 1988); Woratzeck v. Ricketts, 820 F.2d 1450,1455 (9th. Cir. 1987); Pride v. State, 285 Ark. 89, 91, 684 S.W.2d 819 (1985); Young v. State, 482 N.E.2d 246, 251 (Ind. 1985); Morgan v. State, 384 N.W.2d 458, 460-61 (Minn. 1986); Codianna v. Morris, 660 P.2d 1101,1113 (Utah 1983). It may be sound trial strategy not to request a lesser included offense instruction, hoping that the jury will simply return a not guilty verdict. See, e.g., State v. Asherman, 193 Conn. 695, 729, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985) (defendant objected to trial court charging the jury on lesser included offense).

At the habeas hearing, trial counsel testified that he believed the petitioner had no viable defense to the robbery charge and that, given the evidence, he “was very doubtful that an instruction on lesser included [offenses] would have been given.” Trial counsel stated that he had concluded, early in the trial, that the petitioner “had virtually no hope ... of beating the robbery charge.” While he counseled the petitioner to accept the plea bargain offered by the state, the petitioner decided he wanted a trial and, moreover, wanted to testify. Trial counsel warned that the jury would most likely convict the petitioner on both the robbery and escape charges, although it was possible, as the petitioner believed, that, given a chance to tell his story, he might convince the jury not to convict him on the escape charge.

Trial counsel also testified at the habeas hearing that he did not pursue a lesser included offense instruction because he believed there was overwhelming evidence supporting the robbery charge. He explained: “[I]t’s very important for me to try to preserve some integrity with the jury and to the extent I can [I] do that by not antagonizing them or by not suggesting scenarios that they find totally implausible or ridiculous.” Thus, trial counsel admitted at the habeas hearing that his defense was essentially a plea for juror sympathy.

The petitioner’s entire case at trial consisted of such a plea for sympathy. By his own demand, the petitioner took the stand, testifying about his prior convictions, his recent unemployment and a recent death in his family. He also testified that on the night of the incident, the day before Christmas, he and O’Neil had been sniffing cocaine and that he had become “depressed,” “angry,” “confused” and “desperate,” worrying about his inability to buy Christmas presents for his children or his fiancee.

The petitioner also testified that after his arrest, he had exchanged angry words with Judge Kinney at a pretrial hearing and, upon returning to his cell, “was angered and confused and afraid.” He stated that he had escaped “out of despair.” When a cellmate presented him with an opportunity to escape, he first said no, but then “I kept thinking about all the things I was going through, so I said yeah.” Only cross-examination by the state elicited from the petitioner any specifics about the crime itself, while his own case simply focused on mustering sympathy.

Given the usual deference courts must afford to trial counsel’s decisions when reviewing such claims, we cannot conclude that counsel’s failure to request a lesser included offense instruction fell below the reasonably effective assistance of counsel guaranteed by our federal and state constitutions. While the petitioner claims that his ineffective assistance claim relates only to the robbery charge, we cannot review the case as such. The fact that the petitioner also faced an escape charge weighed heavily in the choice of trial tactics. Trial counsel and the petitioner could reasonably have decided, given the state’s evidence and the petitioner’s reluctance to accept a plea bargain, that any chance of an acquittal on either charge based on juror sympathy had to be premised on maintaining credibility with the jury. Trial counsel’s belief that the weakness of the evidence supporting the lesser included offense would have risked that credibility falls within the range of trial strategy that courts may not second-guess upon collateral attack. Even if trial counsel’s actions amounted only to a plea for juror sympathy or for a lenient sentence, such a tactical choice has been held not to amount, per se, to ineffective assistance of counsel. See Darden v. Wainwright, supra, 186. We therefore conclude that the petitioner has failed to demonstrate the deficiency of trial counsel’s performance under the first prong of Strickland.

Further, even were we to conclude that trial counsel’s assistance was so ineffective and flawed as to have deprived the petitioner of “counsel guaranteed by the sixth amendment,” the petitioner has not met his burden of proving prejudice under the second prong of Strickland. “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, supra, 687. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id., 691. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id., 693. Rather, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 694. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id., 695.

The petitioner claims that trial counsel’s alleged ineffectiveness prejudiced him in that the jury never considered the issue of whether he committed only larceny rather than robbery. He argues that because he did not himself use physical force, and had not entered into a plan with O’Neil to use force in stealing the money, the jury could reasonably have concluded that he did not have the intent necessary to commit robbery.

The petitioner’s argument lacks persuasiveness for at least two reasons. First, the evidence concerning his lack of intent to use force during the incident came only from the petitioner himself. Such self-serving testimony is not, by itself, sufficient to demonstrate that “the result of the proceeding would have been different.” Strickland v. Washington, supra, 694. Second, assuming that the petitioner had not planned or intended the use of force prior to the incident, as he would have us believe, the jury could still reasonably have returned a guilty verdict for robbery. The petitioner has never disputed that he saw O’Neil hit the clerk with the metal object, rendering him momentarily unconscious. Still, the petitioner tried to open the cash register as the clerk lay on the floor injured, and continued to participate in the crime as the clerk was ordered to open the register. Thus, regardless of his intent before entering the store, overwhelming and undisputed evidence, on videotape and from the clerk, indicated that the petitioner did not persist in that intent. The petitioner thereby became liable as an accessory: given the events occurring just after O’Neil’s use of force, the petitioner certainly intended to aid the principal and also could be found to have had the underlying intent to commit the crime of robbery. See General Statutes § 53a-8; State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 277 (1987); State v. Vincent, 194 Conn. 198, 207, 479 A.2d 237 (1984); State v. McCalpine, 190 Conn. 822, 833-34, 463 A.2d 545 (1983) (Shea, J., concurring). Moreover, despite having spent the evening with him, the petitioner offered no explanation for O’Neil’s possession of the metal instrument that O’Neil used to assault the store clerk.

While the petitioner clings to the possibility that a jury, given the option of a larceny charge, would have chosen to convict him of this lesser offense, on this record we cannot conclude that this possibility was sufficiently realistic to warrant upsetting the guilty judgment. “[A] court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like. A defendant has no entitlement to the luck of a lawless decision-maker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel’s selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry.” Strickland v. Washington, supra, 694-95. We conclude that any possibility that the jury would have convicted the petitioner only of the lesser included larceny charge does not amount to “a probability sufficient to undermine confidence in the outcome.” Id., 694.

B

The petitioner also claims that trial counsel’s statements to the jury during closing argument deprived him of effective assistance of counsel. During closing argument, trial counsel allegedly told the jury there was not much question on the robbery charge because the petitioner had admitted his involvement in the robbery. The petitioner argues that trial counsel misunderstood the intent required to convict on robbery and that had the jury believed that he did not plan or intend O’Neil’s use of force on the clerk, it might have found him not guilty of robbery.

“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Strickland v. Washington, supra, 697; Aillon v. Meachum, supra, 362. We need not decide whether trial counsel’s statements during closing argument fell below the standard of “reasonably effective assistance” because, as we concluded in part IA above, the petitioner has not sufficiently proven that the alleged deficient performance prejudiced him such that he deserves a new trial. Even if we were to agree with the petitioner that the jury could have believed that he did not anticipate O’Neil’s use of force, the overwhelming and uncontradicted evidence regarding the petitioner’s actions after O’Neil’s attack on the clerk suffice to support a robbery conviction.

II

Finally, the petitioner claims that the actions of the habeas court at his hearing deprived him of his constitutional right to a fair trial on his claim of ineffective assistance of counsel. U.S. Const., amend. XIV; Conn. Const., art. I, § 8. The petitioner moved to disqualify the judge presiding at his habeas hearing because the judge’s “impartiality might reasonably be questioned due to an apparent personal bias and prejudgment of the case.” The habeas court denied the motion and delivered an oral memorandum of decision.

On appeal the petitioner cites six specific comments or actions of the habeas court that he claims deprived him of a fair hearing by creating the appearance of impropriety: (1) stating that the petitioner was not being completely truthful; (2) failing to rule on an objection and interrupting the petitioner’s counsel; (3) commenting on the fact that the state was spending three days to afford the petitioner a fair hearing; (4) refusing to allow counsel to speak on the record; (5) acting as a partisan guarding trial counsel’s interest; and (6) inquiring of habeas counsel during an in-chambers discussion whether the public defender’s office could withdraw from “frivolous” habeas cases. The first four of these actions relate to a heated colloquy during the state’s cross-examination of the petitioner regarding certain representations he had made at his trial about a pretrial hearing.

We agree with the petitioner that “[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . . ” Code of Judicial Conduct 3. C. (1); State v. Fullwood, 194 Conn. 573, 579, 484 A.2d 435 (1984). At trial “ ‘the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an “atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 [1942] . . . State v. Gordon, 197 Conn. 413, 425, 504 A.2d 1020 (1985), quoting State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975); see Quercia v. United States, 289 U.S. 466,469, 53 S. Ct. 698,77 L. Ed. 1321 (1933). In whatever he does, “ ‘the trial judge should be cautious and circumspect in his language and conduct.’ ” Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982). “The defendant is entitled to a new trial in such circumstances, however, only where he can show that prejudice resulted from the court’s actions. See State v. Echols, supra, 16.” State v. Gordon, supra, 425. In a jury case, such prejudice may be presumed absent mitigating circumstances. See State v. Echols, supra, 15-16; see also State v. Gordon, supra, 425; State v. Grimes, 154 Conn. 314, 318, 228 A.2d 141 (1966); LaChase v. Sanders, 142 Conn. 122,125, 111 A.2d 690 (1955). At a habeas corpus hearing, however, the court sits as the trier of fact, and thus a presumption of prejudice is not warranted. Rather, we presume, absent an affirmative showing to the contrary, that the habeas court can properly put aside whatever impressions he may have about the petitioner and grant him a fair hearing.

While the trial court might have expressed its views with greater circumspection during this heated and frustrating exchange, we conclude that the record does not indicate that the petitioner did not receive a fair hearing. The court did not express any opinion about the ultimate guilt or innocence of the petitioner in this case and instead confined its remarks to the petitioner’s apparent memory lapse. The court’s comments did not purport to prejudge the ultimate issue in the case: whether the petitioner had received effective assistance of counsel at trial. Absent a clear showing of prejudice relevant to the habeas court’s determination of that issue, we will not overturn the court’s judgment. See State v. Fullwood, supra, 581.

As to the remaining claims, we likewise conclude that the petitioner suffered no prejudice. He contends that the habeas court acted as a partisan in guarding trial counsel’s interests at the hearing by advising the respondent’s attorney not to waive his right to continue examining trial counsel. Trial counsel, however, had no legal interest of his own in the hearing. On the present record, we have no reason to reject the court’s explanation of its comments, namely that in its search for the truth it thought it prudent that trial counsel be able to respond to the petitioner’s expert.

Finally, the petitioner contends that the habeas court demonstrated its bias when, during an in-chambers discussion, it inquired of his habeas counsel whether there was a mechanism whereby public defenders could withdraw their appearances from “frivolous” habeas cases. The petitioner argues that this inquiry demonstrates the court’s predisposition to view his claim as frivolous. We disagree. Without any evidence that the habeas court’s comments were directed to this particular case, we must accept the court’s subsequent explanation that it had made a general inquiry to inform itself about the applicable ground rules for other habeas cases the court might hear in the future. On this record, we cannot conclude that the petitioner was denied a fair hearing.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-134 (a) (3) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . . ”
      General Statutes § 53a-133 defines the commission of a robbery as “when, in the course of committing a larceny, [a person] uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-171 provides: “(a) A person is guilty of escape from custody if he escapes from custody.
      “(b) If a person has been arrested for, charged with or convicted of a felony, escape from such custody is a class C felony, otherwise, escape from custody is a class A misdemeanor.”

       The record is unclear as to who actually ordered the clerk to open the register: O’Neil, the petitioner or both.

       In his revised amended petition, the petitioner raised thirty-five claims of trial counsel’s ineffective assistance. He briefed only six of those claims to the habeas court and has appealed the court’s ruling on only two of those six.

       The habeas court found that the petitioner had not deliberately bypassed a direct appeal, and therefore had standing to file the habeas petition. See State v. Rivera, 196 Conn. 567, 570-72, 494 A.2d 570 (1985).

       At trial the petitioner testified that he and O’Neil had not planned to assault the clerk, but that O’Neil had “just bugged out or flipped out or something.” At the habeas hearing, he testified that he had informed trial counsel that he and O’Neil had planned the incident as a “shoplifting” and that he did not foresee O’Neil’s use of force on the clerk.

       We recognize that there may be a more limited justification for such a strategy in cases such as the present one in which the petitioner did not at trial allege his total innocence of all the crimes with which he had been charged. Nonetheless, trial counsel in this case might reasonably have concluded that such a strategy was appropriate in order to maximize the possibility that the jury, feeling sympathetic toward the petitioner, might have acquitted him of one of the two charges that he faced.

       Trial counsel testified at the habeas hearing: “I had concluded fairly early on that he had virtually no hope of winning, of beating the Robbery charge so to speak. But there was a certain sympathy to his story of how things happened, his hard luck, and he was not an entirely unappealing person as a personality. He has a certain method of being able to articulate the dilemma he found himself in. I strongly recommended that he take the bargain that the State had offered, but it was clear early on that he’d already been down that road and had decided against it. He wanted a trial; not only that, he wanted to testify. I indicated to Mm that I was as sure as I could be that he was going to be convicted, at least of the Robbery, and if the jury adhered to their oath and the evidence that I was aware of, that they were going to convict Mm of both and that he’d probably be facing a much stiffer penalty. I think Ms feeling was, at least it appeared to me, that if he were able to get up and explain to the jury just how wretched his circumstances were and how bad his luck was that he might be able to possibly with the best of luck that he might be able to convince them maybe on the Escape charge that it really wasn’t willful in that there were a lot of other things, and they might let him off on that; that was my thinking, and I communicated that to Mm that, you know, the best you could hope for, and I held out a very slim hope that maybe they will let you off on the Escape charge, but you go into this thing with the idea in mind that you’re going to be convicted on both.”

       Trial counsel testified at the habeas hearing as follows:
      “Q. . . . You’ve described the defense at the time of trial as basically attempting to evoke sympathy and allow the jury to understand the stresses or pressures that the defendant was under. Is that true?
      “A. That’s true.
      “Q. Is it fair to say that’s also a form of a nonstatutory defense?
      “A. Well one could say that. It certainly is not recognized as such; in fact, it flies counter to the juror’s oath, but obviously in a bad case, if that’s all you have, that’s all you have.”

       The petitioner made a statement to the trial court just before his sentencing emphasizing many of the same factors that he had testified to at trial. He focused on his unemployment, his stress and his use of drugs, as well as the fact that his escape was an impulsive act influenced by his exchange with Judge Kinney.

       Detective Douglas MacDonald of the New Haven police department did testify that the petitioner, after his escape and return to custody, was upset that he was facing so much prison time because he had planned the episode as a “shoplifting,” and only O’Neil had actually used violence. This testimony only duplicates the petitioner’s own version of the incident.

       The petitioner’s counsel on this appeal even admitted at oral argument that the jury could have reasonably so found. In fact, at the habeas hearing, trial counsel testified that the petitioner’s failure to withdraw from the crime made it fruitless to pursue a lesser included offense charge. He stated: “[I]t was also clear that he was, during and after the assault, a willing participant in the robbery based upon the videotape so I did not see that we were going to make any points along that line in trying to establish that . . . because there was no evidence of abandonment . . . once . . . he found out that O’Neil had this weapon . . . . ”

       We are hampered in our review of this claim in that the petitioner’s closing argument at trial was not recorded or transcribed. Trial counsel admitted at the habeas hearing, however, that he may well have stated to the jury that there was not much question on the robbery charge. Thus, for the purposes of this appeal, we will assume the accuracy of the petitioner’s representations about his closing argument, as did the habeas court.

       In cross-examining the petitioner at the habeas hearing, the prosecutor asked the petitioner whether a portion of his testimony was accurate. The petitioner answered, “Yeah, according to that [transcript], yes.” The prosecutor then asked him whether he was implying that the transcript was inaccurate. The colloquy continued as follows:
      “Q. I see. So do you disagree with this answer in a certified transcript of your trial? Do you disagree with this answer on page 316?
      “A. I don’t— it was four years ago.
      “Q. Do you disagree with this answer? Yes or no.
      “Ms. Pieszak: Objection, Your Honor. Counsel is badgering the witness. I’d like a ruling on my objection.
      “Mr. Devlin: Your Honor, I’m asking the witness whether he disagrees—
      “Ms. Pieszak: Shouting at the witness—
      “The Court: Now just a minute please. Just a minute please calm down. Just calm down.
      “Ms. Pieszak: I’m perfectly calm. He’s shouting at the witness.
      “The Court: Maybe the witness deserved to be shouted at.
      “Ms. Pieszak: Your Honor—
      “The Court: Maybe the witness is playing a little game with the court which the court will not tolerate. The court has been very patient with the witness, but the witness has a very convenient memory, and the witness is now suggesting that the transcript is incorrect and that there are errors and this is doing the witness no good whatsoever if he wants to establish any credibility with this court so I think he should learn to be a little more responsive and a little more honest with his answers, counselor, and perhaps you’d like to talk to him privately for a couple of minutes, if you wish.
      “Ms. Pieszak: I would be happy to take a recess at this moment, Your Honor. However I would like to point out I believe the record will indicate the witness did not say he believed that was inaccurate; he said truthfully, he believes it is possible for a Court Reporter—
      “The Court: I don’t appreciate this type of game playing.
      “Ms. Pieszak: Your Honor—
      “The Court: The State of Connecticut is spending three days on this matter and giving this gentleman every possible latitude on his claims, and—
      “Ms. Pieszak: Your Honor—
      “The Court: I’m trying to be very patient, but I will not tolerate monkey business in this courtroom. Now let’s continue with the examination.
      “Mr. Devlin: Yes, Your Honor.
      “Ms. Pieszak: Your Honor, may I be heard for the record?
      “The Court: Regarding what?
      “Ms. Pieszak: Regarding Your Honor’s comments indicating you believe the defendant is playing some sort of game here. I would like to state for the record I believe those comments are inappropriate. I believe they indicate a lack of impartiality toward my client, and I take exception to those comments.
      “The Court: You may take exception.”

       Although the court’s comments were not recorded, the petitioner claims that the respondent’s attorney told the judge that he believed he did not need to examine trial counsel further in light of the petitioner’s testimony. The habeas court then advised the attorney to reserve the right to recall trial counsel to respond to the petitioner’s expert witness, an attorney who would testify that trial counsel’s actions fell below the standard of reasonable competence.

       In ruling on the petitioner’s motion to disqualify, the habeas court stated: “[T]he court sat and listened to what the court considers a very competent attorney, Mr. Avitabile, testify approximately for an hour and fifteen minutes on things that Mr. Kelly either failed to do or should have done differently, and the court felt that in order to search out the truth and to be able to make a proper decision that certainly it would be appropriate to hear from Mr. Kelly. ... I need all of the opinion and all of the evidence that I can possibly get and that was why I suggested to counsel at the conclusion of the day that it would be appropriate for Mr. Kelly to come back.”

       The habeas court stated: “[Cjertainly all counsel and the court understand that there was no reference made to this case whatsoever and that the court was making general inquiries as to whether or not the Chief Public Defender’s Office had in fact any leeway in taking cases. This was a matter that was not known to the court and since we do habeas work at this courthouse, I was interested in the procedures since I hope to be doing this type of work in the future. ... I certainly do not regard this as a frivolous case and that was not the intention of the in-chambers conference.”