author: Dannehy, J.

text:
    Mae T. Buckley v. Benjamin Muzio, Commissioner of the Department of Motor Vehicles
    (12683)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued February 13
    decision released May 27, 1986

      JohnF. Gill, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      Elizabeth Dee Bailey, for the appellee (plaintiff).
   Dannehy, J.

The defendant appeals from a judgment of the Superior Court sustaining the appeal of the plaintiff whose driver’s license was suspended because she refused to submit to a chemical analysis of her blood, breath or urine.

The plaintiff, Mae T. Buckley, was arrested for operating a motor vehicle under the influence of intoxicating liquor. After arresting the plaintiff, the police officer requested the plaintiff to submit to a blood, breath or urine test and informed her that her motor vehicle operator’s license would be suspended if she refused. The plaintiff refused to submit to any test and a written report of her refusal was sent to the defendant, Benjamin Muzio, commissioner of the department of motor vehicles. Following receipt of the report, the defendant sent a letter to the plaintiff to notify her that, effective March 19,1983, her driver’s license was suspended for ninety days because of her refusal to submit to a chemical test pursuant to General Statutes (Rev. to 1983) § 14-227b. The letter also informed the plaintiff that if she wished to request a hearing regarding the suspension prior to the imposition of the ninety day suspension, the starting date of her suspension would be stayed. The plaintiff requested and was granted a hearing before an adjudicator appointed by the defendant which resulted in an order suspending the plaintiff’s driver’s license for ninety days. The plaintiff then appealed from the adjudicator’s decision to the Superior Court, Bielueh, J., which rendered judgment sustaining the appeal. The defendant appealed to the Appellate Court, and we transferred the case here on our own motion. Practice Book § 3004A.

“Judicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189), and the scope of that review is very restricted. Lawrence v. Kozlowski, 171 Conn. 705, [707-708,] 372 A.2d 110 (1976). Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant.” C&H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978); DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975); see General Statutes § 4-183 (g). “The court’s ultimate duty is only to decide whether, in light of the evidence, the [commissioner] has acted unreasonably, arbitrarily, illegally, or in abuse of [his] discretion.” Burnham v. Administrator, 184 Conn. 317, 322, 439 A.2d 1008 (1981); Riley v. State Employees’ Retirement Commission, 178 Conn. 438, 441, 423 A.2d 87 (1979); see also Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983).

The record before the adjudicator shows that police officer Brian Mullins on routine duty in a patrol car at about 1 a.m. on February 14,1983, saw an automobile immobilized on the snow-covered median divider of Crooked Street in Plainville. Mullins investigated and found the plaintiff seated on the driver’s side of the front seat of the car. The plaintiff was alone in the automobile. The engine was running and the wheels spinning. Mullins asked the plaintiff to get out of the car. When she emerged from the car Mullins detected an odor of liquor on her breath. He noticed that her speech was slurred and her eyes bloodshot. Further, the plaintiff was unable to execute successfully roadside dexterity tests attempted at the request of Mullins and she could not recite the alphabet correctly. Mullins arrested the plaintiff for operating a motor vehicle under the influence of intoxicating liquor and transported her to the police station for processing. Upon arrival at the station, Mullins read a written form to the plaintiff apprising her of her constitutional rights, asking if she would submit to a blood, breath or urine test at her option, and advising her that if she refused to submit to a chemical test her driver’s license would be suspended for ninety days. The plaintiff refused to submit to any chemical test and signed a document indicating her refusal. The defendant subsequently suspended the plaintiff’s driver’s license for ninety days on the ground that she refused to submit to a chemical test or analysis for intoxication under General Statutes (Rev. to 1983) § 14-227b.

General Statutes § 14-227b (a) provides in relevant part that “[a]ny person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine.” If any person arrested for operating a motor vehicle under the influence of intoxicating liquor refuses to submit to a chemical test or analysis, “the commissioner of motor vehicles shall suspend [his driver’s license] for a period of ninety days.” General Statutes § 14-227b (d). Subsection (d) further provides that any person whose license has been suspended for noncompliance with the statutory test requirements “shall automatically be entitled to an immediate hearing before the commissioner. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle under the influence of intoxicating liquor or drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis; and (4) was such person operating the motor vehicle. If, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall reinstate such license or operating privilege.” The plaintiff conceded at the hearing before the adjudicator that Mullins had probable cause to arrest her for operating a motor vehicle under the influence of intoxicating liquor and subsequently arrested and charged her with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. She also conceded that she was the operator of the motor vehicle and that she refused to submit to a chemical analysis of her blood, breath or urine. Nonetheless, the trial court sustained the plaintiff’s appeal on the ground that no evidence was introduced at the hearing which would “support a finding that the plaintiff understood the consequences of a refusal to take the requested chemical test or analysis.” We find the trial court’s ruling to be clearly erroneous. Practice Book § 3060 D.

The language of General Statutes § 14-227b (d) is plain and unambiguous. The hearing is expressly limited to the four issues enumerated above. The statute does not require the adjudicator to determine whether the motorist understood the consequences of his or her refusal to submit to chemical testing. The plaintiff did not challenge the constitutionality of General Statutes § 14-227b (d) in the trial court, and has not done so on appeal. Thus, the limited issue before the trial court was whether the adjudicator properly applied the statute as written to the facts of the case. The trial court’s memorandum of decision clearly indicates that the adjudicator made the findings required by General Statutes § 14-227b (d). Having nothing more to determine, it was “inappropriate for [the trial court] to indulge in a microscopic search for technical infirmities in the [commissioner’s] action . . . .” Brazo v. Real Estate Commission, 177 Conn. 515, 519, 418 A.2d 883 (1979).

The requirement that an intoxicated motorist understand the consequences of a refusal to submit to chemical testing would render General Statutes § 14-227b functionally unworkable. Intoxicated persons invariably contend that they did not comprehend the nature of their acts. The trial court’s holding in this case presumably would require the department of motor vehicles to conduct hearings on the voluntariness of a motorist’s refusal to submit to chemical testing. While General Statutes § 14-227b (b) requires the arresting officer to inform the motorist of the consequences of a refusal to submit, there is no additional requirement that the motorist understand what he or she has been told. A refusal to submit to chemical testing for purposes of an administrative sanction need not be knowing and intelligent, for it is not analogous to the waiver of constitutional rights by a person accused of a crime. A person has no constitutional right to withhold non-testimonial evidence when the state’s demand is supported by probable cause. South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983); Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); State v. Grotton, 180 Conn. 290, 294, 429 A.2d 871 (1980); State v. Acquin, 177 Conn. 352, 354, 416 A.2d 1209 (1979); see Practice Book § 775 et seq. The legislature has prescribed the circumstances under which chemical testing for intoxication is mandatory. That a motorist is given the choice to refuse the test, and thereby suffer the consequences, means only that the legislature has chosen to enforce mandatory testing for intoxication by the least oppressive means, and in such a manner as to avoid hostile encounters between the motorist and police.

General Statutes § 14-227b does not provide a judicial or administrative remedy for the failure of an arresting officer to inform the motorist of the consequences of a refusal to submit to chemical testing. On the facts of this case, however, that issue was not before the trial court and it is not before us. We hold only that General Statutes § 14-227b (d) means what it says and accordingly, that the commissioner, before suspending the plaintiff’s license, was not required to find that she understood the consequences of a refusal to submit to chemical testing.

There is error, the judgment of the trial court sustaining the plaintiff’s appeal is set aside and the matter is remanded with direction that the order of the commissioner of. motor vehicles be reinstated.

In this opinion the other justices concurred.

       General Statutes § 4-183 (g) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       General Statutes (Rev. to 1983) § 14-227b provides: implied consent TO TEST. REFUSAL TO SUBMIT TO TEST. REVOCATION AND SUSPENSION OF license, hearing, (a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, his parent or parents or guardian shall also be deemed to have given his consent.
      “(b) If any such person, having been placed under arrest for operating a motor vehicle under the influence of intoxicating liquor or any drug or both, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at his option and having been informed that his license or nonresident operating privilege will be suspended in accordance with the provisions of subsections (d) and (e) of this section if he refuses to submit to such test, refuses to submit to any of such tests, the test shall not be given.
      “(c) If the person arrested refuses to submit to such test or analysis, the police officer shall immediately revoke the motor vehicle operator’s license or nonresident operating privilege of such person for a twenty-four hour period and prepare a written report of such refusal. Such written report shall be endorsed by a third person who witnessed such refusal. The report shall be made on a form approved by the commissioner of motor vehicles and shall be sworn to under penalty of false statement as provided in section 53a-157 by the police officer before whom such refusal was made. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle under the influence of intoxicating liquor or any drug or both resulting in erratic driving, a motor vehicle violation or a motor vehicle accident, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so.
      “(d) Upon receipt of such report of a first refusal, the commissioner of motor vehicles shall suspend any license or nonresident operating privilege of such person for a period of ninety days. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to an immediate hearing before the commissioner. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle under the influence of intoxicating liquor or drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis; and (4) was such person operating the motor vehicle. If, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall reinstate such license or operating privilege.
      “(e) If a police officer revokes a person’s operator’s license or nonresident operating privilege for twenty-four hours pursuant to subsection (c), such officer shall (1) keep a written record of the revocation of a license, including the name and address of the person and the date and time of the revocation; (2) provide the person with a written statement of the time from which the revocation takes effect, the duration of the revocation, the location where the license may be recovered upon termination of the revocation and acknowledging receipt of the revoked license; and (3) provide the department of motor vehicles with a copy of the notice of revocation of the license of such person, the name and address of such person, the date and time of revocation and the ratio of alcohol in the blood of such person at the time of the alleged offense.
      “(f) Upon receipt of a report of a second or subsequent refusal, the commissioner of motor vehicles shall immediately schedule a hearing concerning the suspension of any license or nonresident operating privilege of such person. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle under the influence of intoxicating liquor or drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis; and (4) was such person operating the motor vehicle. Unless, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall suspend such license or operating privilege of such person for a period of one year for a second refusal to submit to such test and for a period of three years for any subsequent refusal.
      “(g) The provisions of this section shall not apply to any person whose physical condition is such that, according to competent medical advice, such test would be inadvisable.
      “(h) The state shall pay the reasonable charges of any physician who, at the request of a municipal police department, takes a blood sample for purposes of a test under the provisions of this section.”

       The period of suspension was increased from ninety days to six months in 1983. General Statutes § 14-227b (d); Public Acts 1983, No. 83-534, § 2.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    State of Connecticut v. John A. Graham
    (12508)
    Healey, Shea, Dannehy, Santaniello and Dean, Js.
    Argued February 6
    decision released May 27, 1986

      Conrad 0. Seifert, for the appellant (defendant).

      Richard A. Schatz, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, state’s attorney, for the appellee (state).
   Santaniello, J.

The dispositive issue on this appeal is whether the trial court erred in allowing the state to bring before the jury evidence implicating the defendant in other crimes. After a trial to a jury, the defendant, John Graham, was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (1) and 53a-8, larceny in the second degree in violation of General Statutes § 53a-123 (a) (2), and unlawful restraint in the first degree in violation of General Statutes §§ 53a-95 and 53a-8. He was subsequently sentenced to an effective prison term of thirty years.

On appeal, the defendant claims: (1) that the trial court erred in allowing the state to introduce evidence of his involvement in other robberies; (2) that the state should not have been permitted to impeach its own witness; (3) that the admission of certain pictures and the corresponding remarks of the prosecutor denied him his right to a fair trial; (4) that a rope seized in contravention of his rights under the fourth and fourteenth amendments should have been excluded; and (5) that the trial court should have dismissed the charges against him on the basis that he was illegally arrested. We find error on the first of these claims and we accordingly vacate the judgment and remand the case for a new trial. We will consider the remaining claims only insofar as they may affect a subsequent retrial.

The jury could reasonably have found that on February 5, 1983, two masked men robbed the Medi Mart Pharmacy on the Boston Post Road in Waterford. The two men were armed and stole cash and store merchandise including almost one hundred wristwatches. The defendant and another man, Willie Thompson, were later arrested and charged with various crimes in connection with the robbery.

I

The defendant’s first claim is that the trial court abused its discretion and unfairly prejudiced his defense in allowing evidence implicating him in other crimes to be placed before the jury. At trial, the state called Dinah McNair, Thompson’s niece, as a witness. McNair had given a signed statement to the police after the robbery indicating that she had overheard the defendant and Thompson plan this and other robberies. When called to the stand, McNair denied ever having heard the defendant and Thompson plan the robbery of a Medi Mart pharmacy. The court then declared the witness “hostile” and permitted the state to impeach her testimony with the prior inconsistent statement concerning the Medi Mart robbery. The court had initially refused the state permission to impeach the witness using her statements concerning the planning of other robberies and the state had respected that ruling during direct examination. During cross-examination, however, defense counsel asked McNair: “You never heard John Graham and Willie [Thompson] discussing any robbery, did you?” (Emphasis added.) She responded, “No.” Before engaging McNair on redirect examination, the state again requested and was then given permission to inquire as to the other robberies on the ground that the defendant had “opened the door” to impeach the witness on the point by asking the question quoted above. The state proceeded to confront the witness with the part of the statement in which she detailed how the defendant was involved in three other New London county robberies. The trial court opined that the other crimes evidence was prejudicial and not very probative, but agreed with the state that the defendant had on cross-examination opened the subject to inquiry.

The trial court is charged with the responsibility to exclude evidence where its prejudicial tendency outweighs its probative value. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984); State v. Nardini, 187 Conn. 513, 521-22, 447 A.2d 396 (1982); State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970). Evidence is prejudicial “when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). Strong reasons arise for excluding evidence of similar crimes “ ‘because of the inevitable pressure on lay jurors to believe that “if he did it before he probably did so this time.” ’ Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 88 S. Ct. 1421, 20 L. Ed. 2d 287 (1968). . . . ‘Where the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility.’ State v. Nardini, supra, 522.” State v. Carter, 189 Conn. 631, 644, 458 A.2d 379 (1983).

In this case the trial court specifically found that the evidence of the defendant’s involvement in other crimes was “clearly prejudicial, and . . . not probative” but admitted the evidence for impeachment purposes because the defendant had “put before this Jury an indication that [he] never discussed any robbery . . . . ” We concur with the trial court that the evidence was prejudicial in this case because it placed before the jury details of the defendant’s alleged involvement in three unrelated, though similar robberies. See State v. Geyer, supra, 15. We also agree that the information had, at best, marginal probative value in that the witness’ credibility had already been impeached by the use of the inconsistent statement regarding the Medi Mart robbery. The question then becomes whether it was proper to allow the evidence on the ground that defense counsel had opened the door to its admission by inquiring as to “any robbery.”

Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. State v. Roy, 173 Conn. 35, 50, 376 A.2d 391 (1977); McCormick, Evidence (3d Ed. 1984) §§ 32, 57. The party who initiates discussion on the issue is said to have “opened the door” to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence. United States v. Winston, 447 F.2d 1236, 1240-41 (D.C. Cir. 1971); State v. Glenn, 194 Conn. 483, 499, 481 A.2d 741 (1984); State v. Roy, supra; McCormick, supra, § 57. This rule “operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context.” United States v. Lum, 466 F. Sup. 328, 334 (D. Del. 1979).

“The doctrine of opening the door cannot, of course, ‘be “subverted into a rule for injection of prejudice.” ’ United States v. Lum, [supra, 335], quoting United States v. Winston, [supra, 1240].”State v. Glenn, supra. The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it “ ‘only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.’ California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir. 1956).” United States v. Winston, supra. Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal. Id., 1241-42; People v. Arends, 155 Cal. App. 2d 496, 509, 318 P.2d 532 (1957).

Applying these principles here, we conclude that the trial court erred in allowing the state to elicit testimony on the defendant’s involvement in other robberies. As we have already noted, the introduction of the evidence greatly prejudiced the defendant and the evidence was of only marginal probative value. The introduction of the other crimes evidence was not essential to cure the unfairness, if any, that the state may have suffered by the defense counsel’s limited inquiry into the other robberies. The trial court therefore abused its discretion in failing to limit the state’s impeachment of McNair on redirect examination. Because the evidence was of a highly prejudicial character in that it left with the jury the knowledge that the defendant also may have committed three similar robberies, we cannot say that the court’s error was harmless and we must remand the case for a new trial. See State v. Carter, supra.

II

The defendant also claims that the state should not have been permitted to impeach McNair at all. The defendant argues that the state was aware that McNair would repudiate her prior statement and, as a result, lacked the “surprise” necessary to impeach its own witness. See State v. Mitchell, 169 Conn. 161, 164-65, 362 A.2d 808 (1975). The claim gives us the opportunity to re-evaluate our rules governing the right of a party to impeach his own witness.

At common law in this state and most jurisdictions, a party presenting a witness was generally not allowed to discredit or impeach the witness. State v. Mitchell, supra, 164; State v. Jones, 166 Conn. 620, 622, 353 A.2d 764 (1974); Delfino v. Warners Motor Express, 142 Conn. 301, 307, 114 A.2d 205 (1955); Schmeltz v. Tracy, 119 Conn. 492, 498, 177 A. 520 (1935); Carney v. Hennessey, 77 Conn. 577, 586, 60 A. 129 (1905); Carpenter’s Appeal, 74 Conn. 431, 435, 51 A. 126 (1902); see generally 3A Wigmore, Evidence (Chadbourn Rev. 1970) § 896; Tait & LaPlante, Handbook of Connecticut Evidence §§7.12 (b) (2), 7.18 (b). Over the years, we have created exceptions to the rule and have permitted impeachment where the party was “surprised” by the testimony of the witness; State v. Roberson, 173 Conn. 97, 99, 376 A.2d 1089 (1977); State v. Mitchell, supra, 165; State v. Jones, supra; Gondek v. Pliska, 135 Conn. 610, 616-17, 67 A.2d 552 (1949); Sandora v. Times Co., 113 Conn. 574, 585, 155 A. 819 (1931); State v. Gargano, 99 Conn. 103, 113, 121 A. 657 (1923); where the witness was “adverse or hostile”; Liebman v. Society of Our Lady of Mount St. Carmel, Inc., 151 Conn. 582, 588, 200 A.2d 721 (1964); Delfino v. Warners Motor Express, supra; Schmeltz v. Tracy, supra; or where the witness has made prior inconsistent statements, even though surprise in the full sense was lacking. State v. Shipman, 195 Conn. 160, 164-65, 486 A.2d 1130 (1985); State v. Roberson, supra, 100; Liebman v. Society of Our Lady of Mount St. Carmel, Inc., supra, 589.

Historically, the rationale behind the rule was “first, that the party by calling the witness to testify vouches for the trustworthiness of the witness, and second, that the power to impeach is the power to coerce the witness to testify as desired, under the implied threat of blasting the character of the witness if the witness does not.” McCormick, supra, § 38. These reasons have become discredited and are generally thought no longer to justify the restrictions imposed on the parties. See Lipinski v. New York, 557 F.2d 289, 293 (2d Cir. 1977), cert. denied, 434 U.S. 1074, 98 S. Ct. 1262, 55 L. Ed. 2d 779 (1978); Plawecki v. Angelo Tomasso, Inc., 1 Conn. App. 48, 52, 467 A.2d 944 (1983), cert. denied, 192 Conn. 801, 470 A.2d 1218 (1984); McCormick, supra; Wigmore, supra, §§ 897 through 899; 3 Weinstein & Berger, Evidence f 607 [01]. For example, the United States Supreme Court has declared: “Whatever validity the ‘voucher’ rule may have once enjoyed ... it bears little present relationship to the realities of the criminal process. It might have been logical for the early common law to require a party to vouch for the credibility of witnesses he brought before the jury to affirm his veracity. Having selected them especially for that purpose, the party might reasonably be. expected to stand firmly behind their testimony. But in modern criminal trials, [parties] are rarely able to select their witnesses: they must take them where they find them.” Chambers v. Mississippi, 410 U.S. 284, 296, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).

This criticism has prompted the federal courts to abandon the rule altogether and to permit “[t]he credibility of a witness [to] be attacked by any party, including the party calling him.” Fed. R. Evid., rule 607. In adopting the change, the Advisory Committee on the Proposed Rules of Evidence noted: “The traditional rule against impeaching one’s own witness is abandoned as based on false premises. A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary.” At least thirty-three states have either judicially or legislatively adopted rules which are substantially similar to or produce the same result as federal rule 607. See, e.g., Ala. R. Evid., rule 607; Cal. Evid. Code § 785; Me. Evid. § 607; Mass. Gen. Laws Ann., ch. 233, § 23; Davis v. State, 249 Ga. 309, 313-14, 290 S.E.2d 273 (1982); see generally Wigmore, supra, § 905 n.6; 1 Weinstein & Berger, Evidence, State Adaptations of the Federal Rules of Evidence (1985 Sup.) pp. T-109 through T-118.

We are persuaded by the weight of authority that there is no longer justification for the common law rule prohibiting a party from impeaching his own witness. Witnesses do not “belong” to the party who called them; Gervais v. Foehrenbach, 149 Conn. 461, 463, 181 A.2d 253 (1962); and a party no longer vouches for the credibility of his own witness. In many situations a party may have to call a particular witness to the stand even though the testimony will not be completely favorable. If the unfavorable testimony is inaccurate and impeachment is not allowed, the inaccuracies will go unexposed and the truthfinding function of our trial system will be hindered. See Fox v. Schaefer, 131 Conn. 439, 449, 41 A.2d 46 (1944). We therefore hold that the credibility of a witness may be impeached by the party calling her without a showing of surprise, hostility or adversity. A party may impeach his own witness in the same manner as an opposing party’s witness and may demonstrate the witness’ bias or bad character for veracity and may impeach the witness using prior inconsistent statements. Thus, on remand, if McNair is again called as a witness by the state, the trial court may, within its discretion, allow the state to impeach her credibility.

By our holding, we do not mean to intimate that a state’s attorney enjoys unfettered discretion in calling a witness and impeaching her credibility by use of inconsistent statements. The prosecution may not use a prior inconsistent statement under the guise of impeachment for the primary purpose of placing before the jury evidence which is admissible only for credibility purposes in hope that the jury will use it substantively. United States v. Hogan, 763 F.2d 697, 703 (5th Cir. 1985); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984); United States v. Crouch, 731 F.2d 621, 623-24 (9th Cir. 1984); United States v. Miller, 664 F.2d 94, 97 (5th Cir. 1981), cert. denied, 459 U.S. 854, 103 S. Ct. 121, 74 L. Ed. 2d 106 (1982); United States v. Morlang, 531 F.2d 183, 189 (4th Cir. 1975); United States v. Coppola, 479 F.2d 1153, 1157-58 (10th Cir. 1973); State v. Farley, 225 Kan. 127, 129-32, 587 P.2d 337 (1978). Consequently, assuming that McNair repudiates her prior statement at retrial, if the primary purpose of calling the witness is to impeach her, and the state introduces the prior inconsistent statement in hope that the jury will use it substantively, then impeachment would become a subterfuge and the court should not permit it. United States v. Hogan, supra; United States v. Miller, supra.

Ill

The defendant’s third claim is that he is entitled to a new trial on the basis of certain remarks made by the prosecutor and the admission of evidence which unfairly prejudiced the defense. The circumstances surrounding this claim are rather bizarre. During the trial the state subpoenaed the defendant’s alleged accomplice, Thompson, to be identified. Thompson was in custody at the time and evidently did not want to cooperate with the court. He had been in a fight in his cell the day before, his face was bloodied and he came into court with a towel draped over his head. He was asked to remove the towel but he refused. In order to identify the witness, the prosecutor stated in the presence of the jury that “I want the record to indicate that I have subpoenaed . . . Willie Thompson, and that this is the individual who has responded . . . . ” The state also introduced pictures of the witness resembling mug shots in order to establish identity. The defendant claims that the prosecutor’s remarks and the pictures indicated to the jury that Thompson had been convicted of being involved in the robbery and that the defendant was therefore also guilty. We conclude that these events are unlikely to recur and we therefore do not address this claim.

IV

The defendant also challenges the admissibility of the rope found in his car. He argues that the rope should be suppressed on the grounds that it was the “fruit” of an unlawful arrest and search.

On the evening of February 7,1983, two Waterford police officers went to the defendant’s home and searched the premises pursuant to a “search and seizure warrant.” Although the police did not find any of the stolen property anticipated, the defendant was arrested at that time. While they were leaving the premises, the officers saw the defendant’s car across the street parked in a lot accessible to the public. They walked over to the car and looked into the rear seat with the aid of a flashlight. On the seat they noticed a rope which matched the description of the one used in the robbery. On the basis of this observation, they obtained a warrant and returned later to seize the rope.

The defendant claims that his arrest was unlawful because it was made without an arrest warrant and without probable cause. From this, he argues that the rope was the “fruit” of an illegal arrest and was therefore inadmissible. In Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), the United States Supreme Court held that evidence should be excluded on fourth amendment grounds where, “ ‘granting establishment of the primary illegality, the evidence . . . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Even if we were to assume, without deciding, that the arrest of the defendant was illegal, we cannot agree with the defendant that the rope is inadmissible. The plain view “search” of the car was wholly unconnected with the arrest other than by the fact that it occurred shortly thereafter. The arrest did not generate a confession leading the police to the rope in the car; cf. Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); nor did the search of the car take place “incident to arrest.” Cf. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); see generally 3 LaFave, Search and Seizure § 11.4 (d). In fact, it is entirely plausible that the police would have looked into the car even if they had not arrested the defendant. We conclude, therefore, that the rope was not the “fruit” of an allegedly illegal arrest.

The defendant further contends that the rope is inadmissible because it was found during an illegal “search” of his car. He argues that the police action looking into the car with a flashlight constituted an unreasonable search and that the subsequent seizure of the rope was thereby rendered illegal. It is well established, however, that if a police officer is in a public area and uses a flashlight to peer into a vehicle through a window, his action does not constitute a “search” and, as a result, is not considered violative of the car owner’s fourth amendment rights. Texas v. Brown, 460 U.S. 730, 739-40, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); United States v. Chesher, 678 F.2d 1353, 1356-57 (9th Cir. 1982); United States v. Ocampo, 650 F.2d 421, 427 (2d Cir. 1981); see generally 1 LaFave, supra, § 2.2 (b). The Waterford police, therefore, did not violate the defendant’s constitutional rights by looking into his car. They obtained a warrant before searching the car and the rope was properly seized. See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. Federici, 179 Conn. 46, 56, 425 A.2d 916 (1979).

V

The defendant’s remaining claim that he is entitled to a dismissal of the charges against him on the basis that he was arrested illegally cannot succeed in light of our recent decision in State v. Fleming, 198 Conn. 255, 502 A.2d 886 (1986). In Fleming we held that the illegality of an arrest does not per se invalidate a subsequent conviction. Id., 259. If the defendant raises the issue again on retrial, in order to prevail on a motion to dismiss, he would have to show that the fairness of the subsequent prosecution was impaired by the allegedly illegal arrest. Id., 263.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other justices concurred.

       The common law rule has also been modified in part by statute. General Statutes § 52-178 grants parties to civil proceedings the power to examine opposing parties “to the same extent as an adverse witness.” See Fasanelli v. Terzo, 150 Conn. 349, 358-59, 189 A.2d 500 (1963).


author: Shea, J.

text:
    Robert J. Loftus v. Board of Education of the Town of Fairfield
    (12669)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.

      Argued March 4
    decision released May 27, 1986

      Donald F. Houston, with whom, on the brief, was David W. Fitzpatrick, for the appellant (defendant).

      Daniel Edward Brennan, for the appellee (plaintiff).
   Shea, J.

This appeal presents two principal issues: (1) whether a public school teacher who has otherwise satisfied the requirements for tenure as a qualification for appeal of his dismissal pursuant to General Statutes (Rev. to 1979) § 10-151 (f) may be denied that status because he was employed to teach subjects for which he lacked the requisite state teaching certification; and (2) whether, if he was tenured and thus entitled to appeal his dismissal under § 10-151 (f), there was sufficient cause under General Statutes (Rev. to 1979) § 10-151 (b) to justify his dismissal by the defendant board of education of the town of Fairfield. The trial court resolved both issues in favor of the plaintiff teacher and rendered judgment awarding him reinstatement with back pay and other benefits. In appealing from the judgment the defendant board has raised, in addition to the two principal issues, several claims relating to the relief granted. We agree with the trial court that the plaintiff had acquired tenure, but, because of its failure to resolve the issue of the availability of another teaching position for which he was qualified, we find error in its conclusion that his dismissal was not justified and remand the case for a new trial.

I

In bringing this appeal from the decision of the defendant board of education discharging him, the plaintiff relies upon General Statutes § 10-151 (f), which this court has construed to provide a right of appeal only to tenured teachers. Miller v. Board of Education, 166 Conn. 189, 193, 348 A.2d 584 (1974). The term “tenured” has been used by this court to refer to those who have begun their fourth year of continuous employment as teachers by a public school board. Id., 192; see General Statutes (Rev. to 1979) § 10-151 (b). It is essential for the plaintiff to establish his status as a tenured teacher in order to maintain this action. Ames v. Board of Education, 167 Conn. 444, 447, 356 A.2d 100 (1975); Miller v. Board of Education, supra, 191.

The facts underlying the plaintiffs claim of tenure are not disputed on appeal. He was first employed by the plaintiff board on August 24, 1972, to teach electronics in the industrial arts curriculum at the Roger Ludlowe High School in Fairfield. He remained in that position, his teaching contract being renewed each year, until July 30, 1980, when his employment was terminated.

On July 11,1973, during his first year of employment, the plaintiff received a provisional teaching certificate issued by the state department of education indicating that he was qualified to teach physics and general science. This provisional certificate was superseded by a standard teaching certificate on February 1, 1977, for the same subjects. The trial court found that the authorized agent of the board of education who hired the plaintiff was fully aware at the commencement of his employment that he was certified to teach only physics and general science but, nevertheless, engaged him to teach electronics.

During a certification review conducted in 1976 by a new personnel administrator for the board of education, it was discovered that the plaintiff’s teaching certificate on file did not authorize him to teach electronics in the industrial arts curriculum. Another teaching certificate was then issued by the state that contained a numerical code designation indicating that the plaintiff was qualified to teach electronics in the industrial arts curriculum. On May 5,1980, however, the superintendent of schools was informed by the state department of education that the plaintiff lacked the necessary certification to teach industrial arts. The plaintiff has not contested that determination. The superintendent then commenced the proceeding that resulted in the termination of the plaintiff as a teacher by the board of education after a hearing that was held on July 29,1980.

It is undisputed that the duration of the plaintiffs employment with the defendant board, 1972 through 1980, ordinarily would satisfy the requirement for tenure of continuous employment as a teacher by a board of education for a period in excess of three years. General Statutes (Rev. to 1979) § 10-151 (b); see Miller v. Board of Education, supra, 192. The defendant contends, however, that employment to teach a subject for which a teacher does not hold a proper state certificate may not be counted for the purpose of determining whether a teacher has acquired tenure. General Statutes § 10-145 provides that “[n]o teacher . . . shall be employed in any of the schools of any local or regional board of education unless such person possesses an appropriate state certificate, nor shall any such person be entitled to any salary unless such person can produce such certificate dated previous to the opening of school.” In Ames v. Board of Education, supra, 448, this court held that a teacher whose provisional teaching certificates had expired, but whose contract of employment was renewed for three additional years, despite his failure to have obtained a standard teaching certificate, had not satisfied the statutory requirement for tenure, because he had no legal status as a teacher. Thus he could not appeal his dismissal pursuant to § 10-151 (f). In Ames it appears that the teacher had been informed that it would be necessary for him to secure a standard teaching certificate before his provisional certificates expired in order to continue his employment as a teacher. In the present case the trial court found that both school officials and the plaintiff were fully aware that he was certified only in general science and physics but assumed those credentials were adequate for teaching electronics. A further distinction is that this plaintiff held a standard teaching certificate for the requisite three years while no such certificate was ever issued in Ames.

We do not believe that the prohibition of § 10-145 against employment of a teacher without an appropriate teaching certificate should apply for the purpose of denying tenured status to a teacher who possesses a valid certificate for certain subjects but is nevertheless assigned to teach different subjects by authorized school officials fully aware of the extent of his qualifications. As the trial court found, the school officials acting for the defendant knew from the inception of his employment that his certification was only for teaching general science and physics. They assigned him, nevertheless, to teach electronics in the industrial arts curriculum, assuming throughout the eight year period of his employment that his certification in general science and physics was sufficient to qualify him as an electronics teacher. The trial court found that the plaintiff had not misled the defendant as to his qualifications. Since the plaintiff held a valid certificate for teaching physics and general science, his employment by the defendant as a teacher was not prohibited by § 10-145. The decision to assign him to teach a different subject from those for which his certification was appropriate was made, not by the plaintiff, but by school officials, who believed his certification was adequate. We conclude that the plaintiff had a reasonable expectation of tenure once he had been employed for the requisite period of time as a teacher in the school system even though he was directed to teach a subject for which his state certificate did not qualify him. Having acquired tenure, he was, therefore, pursuant to § 10-151 (f), entitled to appeal his dismissal, as the trial court decided.

II

General Statutes (Rev. to 1979) § 10-151 (b) provides that the contract of employment of a tenured teacher may be terminated only for one or more of the following reasons: “(1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed, if no other position exists to which he or she may be appointed if qualified; or (6) other due and sufficient cause . . . .” In its decision terminating the plaintiffs employment issued on July 30, 1980, the defendant cited two of these statutory grounds: (1) “Other due and sufficient cause” by virtue of the plaintiff’s failure to possess a valid teaching certificate for his assignment as an industrial arts teacher; and (2) “Elimination of the position to which the [teacher was] appointed,” based upon the claimed elimination of positions in the industrial arts program. The trial court found that no evidence had been presented at the hearing before the board that his position as a teacher of electronics had been eliminated. In appealing to this court the defendant has not challenged that finding but relies solely upon the remaining ground, “other due and sufficient cause,” to justify the termination of the plaintiff’s employment.

The trial court recognized that the defendant had a right to remove the plaintiff from his position as a teacher of electronics in the industrial arts curriculum because his certification did not qualify him for that assignment. The court concluded, nevertheless, that the plaintiff “was entitled to continue to be employed in the Fairfield school system as a teacher of physics and/or general science, and should have been assigned to teaching those courses.” Accordingly, the court ordered reinstatement and back pay as well as other benefits accruing since his dismissal, with a condition that, if the parties should be unable to agree upon the amounts, the court would later decide those issues.

Since no such agreement was reached, additional evidence was presented relating to the monetary losses the plaintiff had suffered from his dismissal and also to the availability of positions to which he could have been transferred or reinstated. The defendant offered evidence that from the time the plaintiffs employment was terminated there have been no positions available for a teacher of general science or physics, to which the court had ordered the plaintiff reinstated. There was testimony that the only persons occupying such positions during that period were teachers with greater longevity of service than that of the plaintiff and that, under the union contract, he could not have “bumped” or displaced any person holding a teaching position for which he was certified.

The court made no finding as to the availability of a position as a general science or physics teacher to which the plaintiff could have been transferred at the time of his dismissal or at any time later. In this respect the court plainly erred, because, if no general science or physics position was available, the board could not have continued to employ the plaintiff as a teacher in the school system in view of his lack of certification for other subjects. General Statutes § 10-145.

A prerequisite to the court’s conclusion of wrongful dismissal and its order of reinstatement was a finding that a position for which the plaintiff was certified was available. Once it was discovered that the plaintiff lacked certification to teach electronics in the industrial arts curriculum, his removal from that position by the defendant was mandatory under § 10-145. This fact alone must be deemed to constitute “other due and sufficient cause for dismissal under § 10-151 (b), unless there was some other teaching position available in the school system for which the plaintiff held an appropriate certification. In considering the availability of such positions, the rights of present incumbents must be observed at least to the extent that they have been contractually defined, as in this case where it appears that the collective bargaining agreement contains provisions regulating the displacement of one teacher by another.

The record does not support the defendant’s contention that the unavailability of a position for the plaintiff as a general science or physics teacher at the time of his dismissal is an admitted or undisputed fact. The plaintiff claims that at the time of his discharge there was one teacher of general science in a seniority classification junior to his, whom he would have been entitled to “bump.” We cannot as an appellate court resolve this factual issue and there must accordingly be a new trial.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1979) § 10-151 (i) provides in part as follows: “Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (b) of this section may appeal therefrom, within thirty days of such decision, to the superior court . . . .”

       General Statutes (Rev. to 1979) § 10-151 (b) did not use the term “tenure” but simply provided that “[beginning with and subsequent to the fourth year of continuous employment of a teacher by a board of education, the contract of employment of a teacher shall be renewed from year to year, except that it may be terminated at any time for one or more of the following reasons . . . .” In 1983 the statute was amended by including a definition of “tenure” as the “completion of thirty school months of full time continuous employment for the same board of education.” Public Acts 1983, No. 83-398, § 1.

       At trial, the defendant contended that this certificate had been altered by the plaintiff, who had submitted it to the board, by the addition of the code designation 47, which indicated that he was qualified to teach industrial arts. The trial court’s resolution of this factual issue in favor of the plaintiff is not challenged on appeal.

       The defendant cites Taintor v. Hartford, 123 Conn. 515, 197 A. 173 (1937), in support of its claim that the inappropriateness of the plaintiff’s certification for the subjects he was assigned to teach barred him from acquiring tenured status. In Taintor it was held that one who held a valid certificate as a teacher could not continue to hold a position as a vice principal of a school without an additional certificate for that position. The opinion does not discuss the subject of tenure nor does it invalidate the employment of the disqualified holder of the vice principal position retroactively, only prospective injunctive relief having been awarded.

       The parties have assumed that General Statutes § 10-151 (b) as amended in 1979 by Public Acts 1979, No. 79-90, was the governing statute at the time of the plaintiff’s dismissal on July 30,1980. It appears, however, that § 10-151 (b) was further amended in 1980 by Public Acts 1980, No. 80-354, § 1, which added to subdivision (5) as follows: “Provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not completed three years of continuous employment pursuant to this section, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the local or regional board of education or endowed or incorporated high school or academy, approved pursuant to section 10-34, and the exclusive employees’ representative organization or (B) in the absence of such agreement, a written policy of the local or regional board of education or an endowed or incorporated high school or academy, approved pursuant to section 10-34.” Public Acts 1980, No. 80-354, became effective on July 1, 1980, before the plaintiff’s dismissal on July 30, 1980. Public Acts 1980, No. 80-354, § 3. Since the parties have given no consideration to this amendment, our opinion does not discuss its possible ramifications.

       The plaintiff apparently challenges this conclusion of the trial court by arguing that the “other due and sufficient cause” ground for termination of employment includes only causes related to the capacity of a teacher to perform his professional duties. The classroom performance of the plaintiff has never been questioned in this proceeding. We agree with the trial court, however, that General Statutes § 10-145 makes certification essential for retention of a teaching position regardless of the actual performance of the teacher lacking an appropriate certificate. Thus, the lack of an appropriate certificate is sufficient cause for termination.

       The defendant’s appeal in this court was not filed until after the decision of the court upon the monetary award following the second evidentiary proceeding relating to those issues. The plaintiff moved to dismiss the appeal because it had not been filed within the prescribed time after the decision upon the liability issues was first announced. This court denied the motion to dismiss because the first decision, which provided no monetary relief, was not a final judgment. See Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84-86, 495 A.2d 1063 (1985). The plaintiffs attempt to raise in his brief the same claim we have previously denied is wholly unmeritorious.


text:
    State of Connecticut v. Harold Jasper
    (11250)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued December 6, 1985
    decision released May 27, 1986

      John S. Pinney, special public defender, with whom, on the brief, were Sara L. Bernstein and Thomas E. Gaffey, for the appellant (defendant).

      Mary M. Galvin, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Patricia B. Perkins, special assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The principal issue in this case is the application of the rules adopted today in State v. Graham, 200 Conn. 9, 509 A.2d 493 (1986), governing the state’s use of a prior inconsistent statement to impeach its own witness. A jury found the defendant, Harold Jasper, guilty of attempted arson in the first degree in violation of General Statutes §§ 53a-49 and 53a-lll (a). The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a term of imprisonment of not less than two nor more than four years. The defendant appeals from the judgment of conviction.

The jury could reasonably have found the following facts. In the early morning of July 17,1979, the defendant went to the house of his uncle, Roosevelt Gillian, and demanded that he give him a dollar. When he refused, the defendant became angry and threatened to burn his uncle’s house. The defendant then ran to his car and obtained a can containing gasoline. He poured the gas on the front porch of the house and produced some matches. At the time, there were two small children in the house.

It is disputed as to exactly what happened after the defendant took out the matches. On the day of the incident, Gillian gave the following sworn statement to an investigating officer: “We had an argument and he became real mad and he said he was going to burn the house down. Harold Jasper then went to his car and got a can of gas from the car and started throwing it all over my front porch. After he threw the gas on my front porch, he started to strike a match, but at this time I grabbed him and the match went out before he could light the gasoline that he had thrown on the porch. After the match went out, he ran up to the driveway and came in my back kitchen door and started breaking up things inside the house. Then he ran out of the house and got in his car and he pulled on out from the front of my house.” Gillian was called by the state to testify at trial but his testimony differed from that in the statement. He testified that the defendant did not strike a match. Gillian said that he pushed the defendant and warned him to leave before he got into trouble. Gillian thought the warning brought the defendant to his senses and stopped him from striking the match because he said “you are right” and then left.

During direct and again on redirect examination, the state requested that Gillian be declared a hostile witness because of the inconsistency between his testimony and his prior statement. The court initially denied the request but later found the witness’ testimony to contain substantial inconsistencies. It declared Gillian to be hostile and permitted the state to impeach its own witness. The state’s attorney read Gillian his prior statement and he responded that it was not the true version of the facts. The written statement was marked for identification but was not admitted into evidence as a full exhibit.

After the close of evidence, the court instructed the jury that Gillian’s prior statement should not be used to prove the truth of the facts contained therein and was only available to impeach Gillian’s credibility at trial. The defendant excepted to the charge on the ground that the instruction did not adequately explain to the jury the limited use of the statement. In the course of its deliberations, the jury asked a question of the court which specifically referred to facts contained in the prior statement. The trial court again admonished the jury that the statement was not introduced “to prove the truth of the facts contained in the statement, but as evidence of conduct which was inconsistent with his testimony on the stand.”

The defendant claims on appeal that the trial court erred in declaring Gillian to be a hostile witness, that the introduction of the prior statement under the guise of impeachment was improper and prejudicial, and that the trial court failed to instruct the jury adequately on the limited use of the prior statement. We find no error.

Arguing that the state failed to show “surprise” or “hostility” as required by such cases as State v. Mitchell, 169 Conn. 161, 362 A.2d 808 (1975), and Schmeltz v. Tracy, 119 Conn. 492, 177 A. 520 (1935), the defendant claims that the court should not have declared Gillian to be hostile and should not have allowed the state to impeach its own witness. In State v. Graham, supra, however, we decided to eliminate the requirement that one must establish surprise, hostility or adversity and held that a party can impeach his own witness in the same manner as an opposing party’s witness. Id., 17. Given this modification of our ride, therefore, the defendant’s argument that the trial court abused its discretion in allowing the state to impeach its own witness must fail.

The defendant also contends that the state introduced Gillian’s prior statement not to impeach his credibility but to place before the jury the facts contained in the statement. He claims that this tactic was improper and prejudiced his defense.

We recognized in Graham that the prosecution may not use a prior inconsistent statement under the guise of impeachment to bring before the jury evidence which is not otherwise admissible. See also United States v. Hogan, 763 F.2d 697, 703 (5th Cir. 1985); United States v. Coppola, 479 F.2d 1153, 1158 (10th Cir. 1973); McCormick, Evidence (3d Ed. 1984) § 38. The introduction of the statement is improper, however, only where the primary purpose of calling the witness is to impeach him and the state’s attorney introduces the prior inconsistent statement in hope that the jury will use it substantively. State v. Graham, supra; see United States v. Hogan, supra. In this case, we cannot agree that the primary purpose of calling Gillian was to impeach him or that the state’s attorney used the prior inconsistent statement to place before the jury evidence not otherwise admissible. Gillian was the only eyewitness to the crime and had to be called to testify as to the defendant’s actions that morning. Gillian’s testimony on direct examination that the defendant had come to his house, had poured gasoline on the porch, and had threatened to burn his house was necessary to establish the elements of attempted arson. See General Statutes § 53a-49 (a) (2). The state recognized that Gillian’s testimony concerning the match may have indicated to the jury that the defendant had abandoned his effort to commit arson and thus had raised the defense of renunciation pursuant to General Statutes § 53a-49 (c). The state, as a result, sought to impeach his credibility in that respect by using his prior inconsistent statement. The only way to give the jury the benefit of this inconsistency was to introduce the statement. See State v. Harris, 182 Conn. 220, 227, 438 A.2d 38 (1980). Impeachment by such means, absent the state’s purposeful use of the rule as a subterfuge, was therefore proper even though the substance of the statement was inculpatory. United States v. Hogan, supra, 702.

The defendant’s final claim is that the trial court improperly charged the jury on the evidentiary value of Gillian’s testimony. He argues that the charge was confusing and incorrectly stated the law governing prior inconsistent statements.

The court gave the following instructions to the jury on the use of Gillian’s prior statement: “Now, in this case Roosevelt Gillian . . . testified that the defendant put the matches back into his pocket and said you are right Uncle Roosevelt and he drove his car away. Now, the state attempted to impeach Mr. Gillian’s credibility on this point by showing that this version was inconsistent with what he had previously told Officer Haeckel. Such evidence of a prior inconsistent statement is admitted solely to impeach the credibility of the witness who made it. Now, evidence of prior inconsistent statements [made] out of court by a witness, whether written or oral, inconsistent with his testimony on the stand is admitted not to prove the truth of the facts contained in any such statement so made out of court, but as evidence of conduct inconsistent with his testimony on the stand. You should consider such evidence, therefore, like any other evidence of that consistent conduct that determines the weight to be given to the testimony of such witness on the stand.”

The trial court later in its charge reiterated these instructions. After outlining Gillian’s in-court testimony, the court stated: “At some point he did take out matches and then—Roosevelt Gillian testified he didn’t light the matches. However, there was a prior statement that was introduced to impeach his testimony and again as I have already charged you what was stated in that statement is not evidence, but it goes to the credibility of Roosevelt Gillian as to the events that he related here in court.”

During its deliberations, the jury asked a question concerning facts which were from Gillian’s out-of-court statement. In response to the question, the court recharged the jury in the following manner: “As I told you in my charge, the evidence of that prior statement which was made by him was admitted not to prove the truth of the facts contained in the statement, but as evidence of conduct which was inconsistent with his testimony on the stand .... I don’t know if you fully understand, but there is a technical reason why the contents of that statement—they are not in evidence for you, but the contents of that statement were only used to establish that there was some question as to the credibility of Roosevelt Gillian . . .

It is well established that “[a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.” State v. Estep, 186 Conn. 648, 651-52, 443 A.2d 483 (1982); State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); Farlow v. Connecticut Co., 147 Conn. 644, 648, 166 A.2d 202 (1960); Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933). “ ‘The charge is to be read as a whole and individual instructions are not to be judged in “artificial isolation” from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978); State v. Holmquist, 173 Conn. 140, 151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Mullings, 166 Conn. 268, 274-75, 348 A.2d 635 (1974).’ State v. Estep, [supra, 652].” State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982).

We fail to see how the challenged instructions in this case were incorrect in stating the law. Prior inconsistent statements are admissible only for the limited purpose of attacking the witness’ credibility and may not be used to prove the truth of matters contained therein. State v. Burns, 173 Conn. 317, 327, 377 A.2d 1082 (1977); State v. Villafane, 171 Conn. 644, 672, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 588 (1977); State v. Volpe, 113 Conn. 288, 292, 155 A. 223 (1931). The trial court adequately explained that Gillian’s prior statement was admissible only for the purpose of impeaching his credibility. The court also explicitly charged that the out-of-court statement had no probative value and was not being introduced to prove the truth of the facts contained therein. On the whole, therefore, the court’s instructions were correct.

Likewise, we do not feel that the court’s instructions were confusing. The defendant claims that the court’s use of the word “conduct,” when it meant “statement,” misled the jury. When the court’s charge is read as a whole, however, it becomes clear that a reasonable juror would have understood that the court’s reference to “conduct” was in relation to the prior statement given by Gillian. The defendant also claims that it was misleading to charge: “You should consider such evidence, therefore, like any other evidence of that consistent conduct that determines the weight to be given to the testimony . . . .” While the sentence itself is not the model of clarity, we do not feel that the statement read in context would lead the jury to believe, as the defendant suggests, that it should use the prior inconsistent statement for purposes other than impeachment. Further, even if the jury were confused by this sentence, the court’s later instructions would have dispelled any misconception.

There is no error.

In this opinion the other justices concurred.

       The statement was read to Gillian in front of the jury and he denied its accuracy. The state’s attorney then offered it into evidence as a full exhibit and the defendant objected on the ground that it was not truly inconsistent with the prior testimony. The court sustained the objection without articulating its reasons.

       The defendant also claims that the trial court should have given a specific cautionary instruction on the use of the prior inconsistent statement at the time it was used to impeach Gillian. Because he failed to request such an instruction and the claimed error does not present an “exceptional circumstance” under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), we do not address this claim.


text:
    Victor Sampietro v. Board of Fire Commissioners of the Town of West Haven et al.
    (12706)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.

      Argued March 5
    decision released May 27, 1986

      Vincent R. Falcone, with whom was David Doyle, for the appellant (plaintiff).

      Louis Smith Votto, with whom were Anselmo M. Delia, and, on the brief, Dennis J. Donahue, Jr., for the appellees (defendants).
   Dannehy, J.

This is an action for a writ of mandamus directing the defendant board of fire commissioners of the Allingtown fire district to restore the plaintiff to the rank of captain in the Allingtown fire department. The action was referred to Hon. Harold M. Mulvey, state trial referee, for decision as a court in accordance with article fifth, § 6, of the Connecticut constitution and § 52-434 (a) of the General Statutes. The court dismissed the writ. The plaintiff has appealed. We find no error.

The Allingtown fire district, located in the town of West Haven, was established in 1909 for the purpose of maintaining a local fire department. The general management and control of the fire department is vested in the defendant board of fire commissioners (board). The district conducts annual meetings at which the voters elect members to the board, and adopt the proposed fire department budget for the upcoming year. Since 1979 no funds have been budgeted for the position of captain, and until January 11,1983, no one had held that rank in the Allingtown fire department. On January 11,1983, however, the board appointed the plaintiff to the rank of captain, and that position was included in the collective bargaining agreement negotiated by the board and Local 1198, International Association of Firefighters (union).

At the annual district meeting held on May 10,1983, the voters of the Allingtown fire district refused to adopt the proposed budget for the 1983-1984 fiscal year until the newly created position of captain was deleted. At a second meeting on May 31,1983, the voters again rejected the budget because the board had not eliminated the position of captain then held by the plaintiff. A monthly meeting of the board was held on June 7, 1983. In an executive session of that meeting it was voted to abolish the position of captain and to create the position of administrative lieutenant for the fire department. There was also a vote which passed to appoint the plaintiff as administrative lieutenant. The plaintiff received notice by mail of his demotion and appointment on June 8, 1983. On June 10, 1983, the union filed a grievance. In this state of affairs the board and the union negotiated a new contract. On June 16, 1983, the union reached a collective bargaining agreement with the board for the position of administrative lieutenant. They entered into a new contract which effectively eliminated the captain’s position as an appropriate unit for collective bargaining. The grievance was withdrawn.

A district meeting was duly warned and held on July 19, 1983, to act on the annual budget. In the budget submitted for approval the plaintiff was designated as an administrative lieutenant. Again the budget was rejected. On July 25,1983, the board voted to abolish the plaintiffs position of administrative lieutenant and reduce him to his former rank of grade A firefighter. Notice of his reduced rank was given to the plaintiff on July 26, 1983. The voters of the district finally approved an annual budget in a meeting held on August 9, 1983, which did not include funds for either a captain’s position or an administrative lieutenant’s position. On February 19, 1985, the plaintiff brought this action for a writ of mandamus to compel the board to reinstate him at the rank of captain.

“Mandamus is an extraordinary remedy which is designed to enforce the performance of a plain positive duty and the writ will issue only when the person against whom it is directed is under a clear legal obligation to perform the act compelled. State ex rel. Levy v. Pallotti, 133 Conn. 334, 342, 51 A.2d 136 (1947). Moreover, the party seeking performance of the duty has the burden of establishing his clear legal right to performance. Waterbury Teachers Assn. v. Furlong, 162 Conn. 390, 414, 294 A.2d 546 (1972).” Kosinski v. Lawlor, 177 Conn. 420, 426, 418 A.2d 66 (1979). The plaintiff contends that the board is under a clear legal duty to reinstate him to the position of captain, and that the taxpayers of the Allingtown fire district are under an equally clear duty to appropriate funds to pay his salary. The plaintiff’s argument is based on General Statutes § 7-474 (d), which provides in pertinent part: “If the municipal employer is a district ... or other authority established by law, which by statute, charter, special act or ordinance has sole and exclusive control over the appointment of and the wages, hours and conditions of employment of its employees, such district ... or other authority, or its designated representatives, shall represent such municipal employer in collective bargaining and shall have the authority to enter into collective bargaining agreements with the [employees’ union], and such agreements shall be binding on the parties thereto . . . and no such agreement or any part thereof shall require approval of the legislative body of the municipality.” The plaintiff contends under this section that once the agreement concerning his appointment to the position of captain had been reached between the board and the union, the agreement was binding on the district without the approval of the legislative body of the district, i.e., the district voters. General Statutes § 1-1 (m).

We have frequently stated that “[w]hen an administrative remedy is provided by law, relief must be sought by exhausting this remedy before resort to the courts.” McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 73 S. Ct. 336, 97 L. Ed. 704 (1953); Laurel Park, Inc. v. Pac, 194 Conn. 677, 684, 485 A.2d 1272 (1984); Friedson v. Westport, 181 Conn. 230, 232-33, 435 A.2d 17 (1980); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 179, 377 A.2d 280 (1977). The present dispute between the plaintiff, the board and the Allingtown fire district is governed by the Municipal Employee Relations Act. General Statutes § 7-467 et seq. Under the act, the state board of labor relations is given the power and authority “to determine whether a position is covered by sections 7-467 to 7-477, inclusive, in the event of a dispute between the municipal employer and an employee organization.” General Statutes § 7-471 (2). The board of labor relations is further empowered to resolve questions as to whether “a practice prohibited by sections 7-467 to 7-477, inclusive, has been committed by a municipal employer . ... ” General Statutes § 7-471 (4). If the board of labor relations “determines that a prohibited practice has been or is being committed, it shall . . . issue and cause to be served on the party committing the prohibited practice an order requiring it or him to cease and desist from such prohibited practice, and shall take such further affirmative action as will effectuate the policies of sections 7-467 to 7-477, inclusive, including but not limited to . . . (ii) reinstatement of an employee discriminated against in violation of said sections with or without back pay .... ” Id.

The board of labor relations is peculiarly well suited to resolve disputes arising under General Statutes § 7-474 concerning the authority of district voters to approve or reject a duly negotiated collective bargaining agreement reached by the municipal employer and the union. “ ‘The doctrine of exhaustion [of administrative remedies] is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions. To allow a party seeking a [writ of mandamus] to bypass the entire process . . . would be to interject an unnecessary and potentially confusing element into an otherwise well-defined area of the law.’ ” Connecticut Mobile Home Assn., Inc. v. Jensens’s, Inc., 178 Conn. 586, 591, 424 A.2d 285 (1979), quoting Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977). We believe that the “orderly process of administrative adjudication and judicial review”; Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., supra; requires that the plaintiff seek his remedy before the agency charged with administration of the Municipal Employee Relations Act. We therefore do not reach the merits of the plaintiffs claim.

There is no error.

In this opinion the other justices concurred.


text:
    State of Connecticut v. Antonio Rivera
    (12725)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued March 6
    decision released May 27, 1986

      Joseph M. Shortall, chief public defender, with whom, on the brief, was Michael A. Connor, Jr., public defender, for the appellant (defendant).

      Kathleen M. Van Der Aue, special assistant state’s attorney, with whom, on the brief, were JohnM. Bailey,
      state’s attorney, James G. Clark, deputy assistant state’s attorney, and Lawrence Daly, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant, Antonio Rivera, was charged by information with two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). He elected a trial to the court and on September 25,1984, was found guilty of one count of robbery in the first degree and one count of attempted robbery in the first degree. He subsequently received a total effective sentence of fifteen years imprisonment. On appeal, he raises two claims of error: (1) that there was insufficient evidence to convict him of the crimes; and (2) that the trial court erred in permitting the state to impeach its own witness. We find no error.

The court, sitting as the trier of fact, found that the defendant and another man entered the Garment Care Cleaners in Hartford at approximately 5:30 p.m. on November 14,1983, stole money from the store’s cash register and attempted to rob a customer, William Klossey. The defendant was unarmed and wore a ski band over his eyes with holes cut in it so that he could see. The other man carried a gun. The only two people in the store at the time were Klossey and an employee, Diane Blaszkiewicz. The defendant pushed Klossey from behind, searched his pockets and ordered the other robber to take the money from the register. The two men were in the store approximately four minutes before they fled on foot.

At trial, the state called four principal witnesses: Klossey, Officer Nancy McClure, Blaszkiewicz and Detective Joseph Schatz. The defendant chose not to take the stand and not to call any witnesses on his own behalf.

Klossey testified about how the robbery had occurred and how one of the men had searched him. He made no in-court identification of the defendant, but said that Blaszkiewicz, who had been upset by the robbery, had exclaimed at least three times while the two men were leaving that “It’s Tony, I know him.” The defendant objected to the introduction of the statements on hearsay grounds, but the court admitted them under the spontaneous utterance exception.

McClure, one of the Hartford police officers who investigated the crimes, testified that when she arrived at the store a few minutes after the robbery, Blaszkiewicz had appeared angry. She said that Blaszkiewicz first described the assailants and then selected a photograph of the defendant from an array by pounding her finger on it and signing the back. During her testimony McClure was never specifically asked, nor did she volunteer, why Blaszkiewicz was shown the photos or why the defendant’s photo was selected.

Blaszkiewicz testified extensively on the details of the robbery, but exculpated the defendant from involvement in the crimes. She testified that she had been acquainted with the defendant for twelve years and that she had selected his photograph because she knew him, and not because he was one of the robbers. She also testified that she knew two other people in the array shown her by the police besides the defendant. Blaszkiewicz denied ever having stated that “It’s Tony, I know him” and said that the defendant’s voice was different from that of either of the robbers.

Schatz was the last witness called at trial. After he took the stand, the state requested that Blaszkiewicz be declared hostile and that it be permitted to impeach her credibility by introducing a prior inconsistent statement made to Schatz shortly after the robbery. The state disclaimed surprise but argued that her testimony on the identity of the robbers was adverse to its case and that she was biased because of her close relationship with the defendant. The court declared Blaszkiewicz to be hostile and allowed the state to inquire as to what Schatz remembered her saying after the robbery. Schatz then testified that she had said, while pointing to the defendant’s picture, “That’s Tony, the son of a bitch that robbed me.”

I

The defendant first claims that because Blaszkiewicz did not identify him as one of the robbers at trial, there was insufficient evidence to place him at the scene of the crime and to sustain his conviction. “ ‘In reviewing a sufficiency of evidence claim on appeal the question presented is whether, viewing the evidence favorably to sustaining the verdict, the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).” State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985).

Reviewing the record in this case, we find that the trial court had sufficient evidence to find the defendant guilty beyond a reasonable doubt. First, it was reasonable to conclude that Blaszkiewicz had identified the defendant as a robber at the time of the crimes. Klossey testified that she had said “It’s Tony, I know him” at least three times, evidence clearly implying the defendant’s involvement. Blaszkiewicz also signed the defendant’s photograph and angrily pounded the picture with her finger, actions from which the court could reasonably have inferred that she had selected the photo because he had robbed her. Second, the court, as trier of fact, could reasonably have disbelieved Blaszkiewicz’s testimony at trial. Her testimony exculpating the defendant was impeached by both Schatz and Klossey. The court also could have discounted her testimony that she had signed the photograph only because she knew him on the ground that she did not sign the pictures of the other people she knew. Thus, the court could reasonably have credited Blaszkiewicz’s earlier identification and concluded that the defendant had committed the crimes of robbery in the first degree and attempted robbery in the first degree.

II

The defendant next claims that the court erred in declaring Blaszkiewicz a hostile witness and in allowing the state to impeach her credibility. Specifically, he argues that the state failed to establish “hostility” or “surprise” as required by such cases as State v. Mitchell, 169 Conn. 161, 362 A.2d 808 (1975), and Schmeltz v. Tracy, 119 Conn. 492, 177 A. 520 (1935). The claim rests on the common law rule which prohibited a party from impeaching his own witness, a rule that we abandoned as outmoded in State v. Graham, 200 Conn. 9, 509 A.2d 493 (1986), also decided today. In Graham we held that a party may impeach its own witness in the same manner as an opposing witness, without a showing of surprise, hostility or adversity. Id., 17. Thus, the defendant’s argument that the court erred in declaring the witness hostile and in permitting the state to impeach her cannot succeed.

The defendant also makes the related claim that even if it were proper to allow the state to impeach its own witness, the state’s use of Blaszkiewicz’s prior inconsistent statement was, under the circumstances, unfair and the court in its discretion should have excluded it. In support of his argument, the defendant relies on the rule first formulated by the federal courts, and adopted today by this court in State v. Graham, supra, that the state may not impeach the credibility of its own witness by use of a prior inconsistent statement “under the guise of impeachment” for the primary purpose of placing before the trier of fact evidence which is admissible only for credibility purposes hoping that the trier would use it substantively. Id., 18; see State v. Jasper, 200 Conn. 30, 34-35, 508 A.2d 1387 (1986); see also United States v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985); United States v. Miller, 664 F.2d 94, 97 (5th Cir. 1981), cert. denied, 459 U.S. 854, 103 S. Ct. 121, 74 L. Ed. 2d 106 (1982).

Although the testimony of Schatz describing the statement made by Blaszkiewicz was hearsay and admissible for impeachment purposes only; Ventanas Del Caribe, S.A. v. Stanley Works, 158 Conn. 131, 137-38, 256 A.2d 228 (1969); we cannot agree that the state introduced Blaszkiewicz as a witness for the primary purpose of impeaching her or introduced her prior statement through Schatz in the hope that the trier would use it substantively, especially where, as here, the case was tried to the court. Blaszkiewicz was one of only two witnesses to the crimes and it was necessary for the state to call her in order to elicit the details of the robbery and establish its case. She testified on direct examination over the course of three days and stated, inter alia, how the men had come into the store, what they had said, who was armed with a gun, where Klossey had been assaulted, how the money had been taken and what the robbers looked like. Klossey testified on some of these details, but he did not see everything because he was pushed to the floor by one of the men. The extensive examination of Blaszkiewicz by the state, therefore, makes it unlikely that its primary purpose in calling her was to impeach her using Schatz’s testimony. See State v. Jasper, supra, 34-35; cf. United States v. Hogan, supra, 703. The record is also barren of any suggestion that the purpose of introducing the hearsay statement was as a pretext to get before the trier of fact the content of the out-of-court declaration. In fact, the substance of the statement, that she had previously said that the defendant had participated in the crimes, was already established by Klossey’s testimony describing her statements during the robbery.

We conclude, therefore, that the trial court did not abuse its discretion in allowing the state to impeach Blaszkiewicz using her prior inconsistent statement.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       Although the judgment file of this case and the defendant’s brief indicate that the defendant was found guilty of robbery in the first degree on the second count, the state correctly points out and the transcript of the proceedings below confirm that the defendant was found guilty of attempted robbery in the first degree on that count. General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       See Johnson v. Newell, 160 Conn. 269, 278-79, 278 A.2d 776 (1971). The defendant does not contest the propriety of this ruling on appeal.

       Blaszkiewicz’s act of selecting the defendant’s photograph was assertive conduct and may have been hearsay. The defendant, however, did not object and makes no claim on appeal that the admission of the testimony was erroneous. “ ‘Where hearsay evidence is admitted without objection, such evidence may be given such weight as the trier of fact deems that it is worth.’ State v. Boyd, 178 Conn. 600, 604, 424 A.2d 279 (1979); Cutlip v. Connecticut Motor Vehicles Commissioner, 168 Conn. 94, 98, 357 A.2d 918 (1975); Pluhowsky v. New Haven, 151 Conn. 337, 343, 197 A.2d 645 (1964).” State v. Rawls, 198 Conn. 111, 118, 502 A.2d 374 (1985).

       The defendant also makes the argument that the prior inconsistent statements of Blaszkiewicz are not “statements” as defined by Practice Book § 749 and therefore are inadmissible. Section 749, however, deals only with statements to be disclosed by the parties during discovery and has no application here. A prior inconsistent statement introduced to impeach a witness need not be written and can be the witness’ oral statement overheard and testified to by another. See State v. Burns, 178 Conn. 317, 327, 377 A.2d 1082 (1977).