source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Lilyan Donner et al. v. Kelvan Kearse et al.
    (15036)
    Peters, C. J., and Callahan, Berdon, Norcott and Palmer, Js.
    Argued March 22
    decision released August 1, 1995

      Wesley W. Horton, with whom were Susan M. Cormier and Jack G. Steigelfest, for the appellants (named defendant et al.).

      Michael A. Stratton, with whom, on the brief, was Richard A. Bieder, for the appellee (named plaintiff).
   Berdon, J.

This appeal raises two principal issues: (1) whether General Statutes § 52-572h requires a jury to consider the negligence of a plaintiff who had withdrawn his action in apportioning the amount of damages for which the defendant is responsible; and (2) whether the trial court properly ordered a separate trial on the issue of whether the plaintiff, in executing a general release of liability, had released the defendant.

The original plaintiffs, Lilyan Donner and Robert Donner, brought this action for damages as a result of personal injuries they received in an automobile collision in the town of Windsor. Robert Donner had been operating the vehicle in which he and Lilyan Donner, his passenger, were riding. In their action, the Donners alleged that two other drivers had been operating their vehicles negligently and had caused both the collision and the Donners’ injuries. These other drivers were Kelvan Kearse, a Windsor police officer who was operating a town police cruiser, and Anna Riccio. Both Kearse and Riccio were named as defendants in the action.

Prior to trial, two events occurred that altered the status of the parties to the action. First, Lilyan Donner agreed to a $100,000 settlement with Riccio, and executed a release that specifically released Riccio from any claims arising from the auto accident. This preprinted general release also included boilerplate language stating that Lilyan Donner similarly released from liability “any and all other persons” involved in the collision. Lilyan Donner withdrew her action against Riccio and the Donners subsequently amended their complaint to reflect this change. Second, Robert Donner withdrew his cause of action against both defendants. This meant that the sole remaining plaintiff was Lilyan Donner (plaintiff) and that the sole remaining defendant was Kearse (defendant). The plaintiff amended her complaint to reflect the new status of the pleadings and the parties.

The defendant filed an answer and several special defenses to the revised complaint. The defendant spedaily pleaded that the proximate cause of the plaintiffs injuries was the negligence of Robert Donner, rather than any negligence of himself. The defendant also specially pleaded that the plaintiff had released him from liability when she executed the release that included language releasing “any and all other persons” from liability. The plaintiff moved to strike the special defense that referred to Robert Donner’s negligence on the ground that he was no longer a party and, therefore, that his negligence could not be considered by the jury in apportioning damages under § 52-572h. The plaintiff also moved to bifurcate the issue of whether the release also had operated to release the defendant from liability. The trial court, over the objections of the defendant, granted both motions. The trial court subsequently charged the jury on how to determine damages if it found that the defendant had been negligent. The trial court instructed the jury that in apportioning the amount of damages for which the defendant was responsible, it should take into account any negligence that was attributable to Riccio. The trial court did not,’-however, give a similar instruction with respect to any negligence of Robert Donner.

The jury found the issue of liability in favor of the plaintiff and found that the plaintiff had incurred economic and noneconomic damages in the amount of $554,000. The jury attributed 100 percent of the negligence to the defendant and 0 percent of the negligence to Riccio. Accordingly, the jury apportioned the entire amount of the $554,000 in damages to the defendant. The court accepted the verdict.

In accordance with the plaintiff’s earlier motion for bifurcation, the same jury next considered whether the plaintiff had released the defendant from liability when she had executed the release. After a trial on the issue, the jury, in response to a special interrogatory, found that the plaintiff had not intended to release the defendant from liability. The trial court subsequently rendered judgment for the plaintiff on the verdict. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The defendant raises four issues on appeal: (1) Did the trial court properly strike the defendant’s special defense that the negligence of Robert Donner was a proximate cause of the plaintiff’s injuries? (2) Did the trial court properly bifurcate the issue of whether the plaintiff, in executing the release, had also released the defendant from liability? (3) Did the trial court properly instruct the jury on statutory negligence? and (4) Was the jury’s finding that Riccio was 0 percent negligent contrary to the evidence presented? We affirm the judgment of the trial court.

I

The defendant initially argues that the trial court should not have stricken his special defense that referred to the negligence of Robert Donner as being a proximate cause of the plaintiffs injuries. The defendant argues that the court’s action was improper because § 52-572h required the jury, in apportioning responsibility and the amount of damages for which the defendant was responsible, to consider not only the negligence of Riccio but also the negligence of Robert Donner. The defendant’s objective in seeking to include Robert Donner’s negligence within the jury calculus, of course, is to reduce the percentage of responsibility that the defendant must bear for causing the plaintiff’s injuries.

Before embarking on our analysis of the defendant’s claim, it is helpful to begin with a brief history of the development of the apportionment of damages among tortfeasors. Prior to October 1,1986, this state adhered to the rules of joint and several liability with no contribution among joint tortfeasors. This doctrine can be stated succinctly. “If the illegal conduct of each of the defendants was a proximate cause of the collision, they would be liable jointly and severally, the plaintiff would have a right to recover the entire amount of damages awarded from either, and, if he did so, the defendant paying them would have no right of contribution against the other; or the plaintiff might have sued either alone, and of course in the event of a recovery, that one would have been compelled to pay the entire amount of damages.” Rose v. Heisler, 118 Conn. 632, 633, 174 A. 66 (1934).

In accordance with the eommon law of joint and several liability, therefore, even a defendant whose degree of fault was comparatively small could be held responsible for the entire amount of damages, as long as his negligence was a proximate cause of the plaintiffs injuries. Thus, the plaintiff could collect the entire amount of his judgment “from the richest defendant, or from the defendant with the ‘deepest pocket.' ” G. Royster, “Joint and Several Liability and Collateral Sources Under the 1987 Tort Reform Act,” 62 Conn. B. J. 257 (1988).

Partially in response to these concerns, the legislature undertook to reform the tort recovery provisions of our civil system, by enacting No. 86-338 of the 1986 Public Acts (Tort Reform I), which took effect October 1,1986. Section 3 of Tort Reform I provided that each defendant would initially be liable for only that percentage of his negligence that “proximately caused the injury, in relation to one hundred percent, that is attributable to each person whose negligent actions were a proximate cause of the damages.” (Emphasis added.) In other words, under Tort Reform I, the jury, in determining the percentage of negligence attributable to any defendant, could take into account the negligence of any other person, whether or not that person was a party to the action. See G. Royster, supra, 62 Conn. B. J. 259 (“Tort Reform I had the plaintiffs negligence compared with everyone in the world who was at fault”). Tort Reform I, however, did not provide the plaintiff with a means of securing payment of damages unless that person was also a party.

Under Tort Reform I, to avoid the possibility that a jury would find that the negligence of a nonparty was a proximate cause of his or her injuries, a plaintiff was required to name as defendants all persons whose actions suggested even the slightest hint of negligence. The unwanted practical effect, therefore, was that plaintiffs were “required to pursue claims of weak liability against third parties, thereby fostering marginal and costly litigation in our courts.” General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 213, 603 A.2d 385 (1992).

The legislature amended these tort recovery provisions just one year later when it enacted No. 87-227 of the 1987 Public Acts (Tort Reform II), the pertinent provisions of which now are codified in part under § 52-572h. These revisions, which took effect October 1, 1987, altered the class of individuals to whom the jury could look in determining whose negligence had been a proximate cause of a plaintiff’s injuries. In short, these revisions changed the focus of this class of negligent individuals from any “person” to any “party” and certain other identifiable persons. See General Statutes § 52-572h (c), (d), (f), (n). Thus, while Tort Reform I provided that the jury, in determining the percentage of responsibility of a particular defendant, could also consider the entire universe of negligent persons, Tort Reform II limited this universe to only those individuals who were parties to the legal action or who were specifically identified in § 52-572h (n).

Defendants who had been sued, however, were not left without a method to change the universe of negligence to be considered. The legislature included in Tort Reform II a provision that allowed defendants to implead persons who might have been negligent, but who had not been pursued by the plaintiff. General Statutes § 52-102 now makes it mandatory for a trial court to grant a party’s motion to add a person as a party “if that person is necessary for a complete determination or settlement of any question involved therein . . . .” This provision allowed those individuals named as defendants by the plaintiff to avoid having to pay damages for which they were not responsible. See Bradford v. Herzig, 33 Conn. App. 714, 724, 638 A.2d 608, cert. denied, 229 Conn. 920, 642 A.2d 1212 (1994) (“[i]f the defendant believed that a nonparty was responsible for some or all of the plaintiff’s injuries, it was his responsibility to implead that nonparty”).

This legislative history and the history of the development of § 52-572h is especially informative for purposes of this case. It demonstrates that the legislature, in enacting Tort Reform II, intended to limit the universe of negligence to be considered to only particular, identifiable persons. If a defendant wished to broaden the universe of negligence to be considered in any given case, the legislature placed the burden upon him to implead that nonparty in accordance with § 52-102.

Against this legislative landscape, we now consider whether the negligence of the former plaintiff, Robert Donner, should have been included within the universe of negligence under § 52-572h. “Because statutory interpretation is a question of law, our review is de novo.” Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995). “In interpreting a statute the court must ascertain and give effect to the intent of the legislature. . . . [T]he meaning of [a] statute must, in the first instance, be sought in the language in which the act is framed. . . . If the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature .... Where the statute presents no ambiguity, we need look no further than the words themselves which we assume express the intention of the legislature. . . . When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself . . . the legislative history and circumstances surrounding the enactment of the statute . . . and the purpose the statute is to serve.” (Citations omitted; internal quotation marks omitted.) White v. Burns, 213 Conn. 307, 311, 567 A.2d 1195 (1990). Accordingly, we must begin by considering whether the plain language of the statute required the jury, in apportioning responsibility and damages, to consider any negligence of Robert Donner.

The pertinent provisions of § 52-572h provide as follows: “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable . . . damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury . . . including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction. . . .

“(f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant. . . .

“(n). . . . [T]he total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.” (Emphasis added.)

Thus, these provisions set forth two classes of persons whose negligence must be considered by the trier of fact: (1) the “parties” to the action; and (2) “settled or released persons,” as that term is illuminated in subsection (n). At the time this case went to trial, Robert Donner was not a “party.” The term “party” refers “to those by or against whom a legal suit is brought . . . the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons.” (Citations omitted; internal quotation marks omitted.) Lieberman v. Reliable Refuse Co., 212 Conn. 661, 669, 563 A.2d 1013 (1989); see Brad ford v. Herzig, supra, 33 Conn. App. 723 (“[i]t is clear from the language of the statute that the jury is entitled to attribute and divide the percentage of negligence only among parties to the action”). Robert Donner had withdrawn his legal action against the defendant before the time of trial, and he no longer fit this definition of “party.” Indeed, the defendant does not seriously argue that, at the time of trial, Robert Donner was a “party” within the meaning of the statute.

Rather, the defendant focuses on the second class of persons whose negligence must be considered by the jury—“settled or released persons under subsection (n) of this section.” Subsection (n) further defines the negligence of a settled or released person as “the released person’s percentage of negligence.” Under the plain language of subsections (f) and (n), therefore, in order for the negligence of Robert Donner to be included in the calculus of apportioning responsibility, he must have been a “released person.” A released person under subsection (n) must be a person, not necessarily a party, who received a release of liability. The defendant in this case makes no claim, nor is there any evidence on the record that would support a claim, that Robert Donner received a release of liability from the defendant or from anyone else involved in the automobile collision.

In this case, the plaintiff chose to sue only the defendant and Riccio. She did not bring an action against her coplaintiff, Robert Donner. Thus, in accordance with the discretion furnished to her by Tort Reform II, the plaintiff initially defined the universe of negligent persons as the defendant and Riccio, and those two individuals were the only ones whose negligence the jury could consider in apportioning responsibility. See General Statutes § 52-572h (f). If the plaintiff had furnished a release of liability arising from the claim to any individual, the universe of negligent persons automatically would have been expanded to include the negligence of that individual. See General Statutes § 52-572h (f). Finally, this universe of negligent persons could also have been expanded, at the option of the defendant, by impleading Robert Donner as a third party defendant. See General Statutes § 52-102; Bradford v. Herzig, supra, 33 Conn. App. 724. The defendant, for reasons known only to him, chose not to do so.

Accordingly, the jury could not, pursuant to the statutory scheme, consider the negligence of Robert Donner in determining the defendant’s percentage of responsibility. The trial court, therefore, acted properly in striking the defendant’s special defense that referred to the negligence of Robert Donner.

II

The defendant next claims that the trial court should not have bifurcated the issue of whether the release furnished to Riccio also released the defendant from liability. The defendant claims that this issue of fact should have been submitted to the jury at the same time as the other issues of fact relating to liability and damages. We disagree.

The source of conflict on this issue is a statutory scheme that, on one hand, requires a jury to determine the effect of a release agreement and, on the other hand, prohibits the jury from learning that a release was executed. General Statutes § 52-572e (b) provides in part that “[a] release by the injured person . . . of one joint tortfeasor does not discharge the other tortfeasors unless, and only to the extent, the release so provides.” We have held that the identity of the persons actually released from liability depends upon the intent of the parties to the release agreement. “Under § 52-572e, therefore, the contracting parties’ intent, not the operation of a legal rule, determines the scope of a release. . . . [Tjhis approach provides for consideration of extrinsic evidence of the parties’ actual intent and does not confine interpretation of the release to its.four corners.” Sims v. Honda Motor Co., 225 Conn. 401, 413, 623 A.2d 995 (1993). The scope of a release agreement and whether it operated to release a certain person from liability, therefore, are questions to be resolved by the trier of fact. Nevertheless, General Statutes § 52-216a provides that the terms of a release “shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors . . . .”

The defendant makes a two part argument in support of his claim that these statutes, taken together, require a jury to consider the effect of a release agreement along with other factual issues regarding liability and damages. First, the defendant argues that § 52-216a cannot be read as barring, under any and all circumstances, the introduction of a release before the jury. In cases where factual issues relate to the release itself, the defendant argues, the jury must be allowed to consider the release as evidence. To prohibit the jury from doing so, he argues, would infringe a party’s state constitutional right to a trial by jury. Second, the defendant argues that § 52-216a does not prevent a jury from learning during the trial on liability and damages that a release had been executed. As support for this latter argument, the defendant contends that because § 52-216a relates primarily to additur and remittitur procedures, the language that prohibits a jury from learning about a release agreement applies only in these contexts. According to the defendant, therefore, § 52-216a does not prevent a jury from determining the scope of a release at the same time that it makes its other factual findings. Although we agree with the defendant’s first point, we do not agree with his second point or with his conclusion.

It is true, as the defendant initially argues, that one cannot read literally the first sentence of § 52-216a to prohibit the introduction into evidence of a release or other agreement not to bring a civil action. Such an outright ban, in eases in which there is an issue of fact regarding the release that must be decided by the jury, would render the statute violative of article first, § 19, of the Connecticut constitution, which provides that the “right of trial by jury shall remain inviolate.” A statute that prohibited a jury from making factual determinations under all circumstances would run afoul of this constitutional guarantee. See Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982) (holding unconstitutional the predecessor to § 52-216a, which gave trial court discretion to deduct from award of jury amount of consideration paid by releasor for release). “[Wjhere a statute reasonably admits of two constructions, one valid and the other invalid on the ground of unconstitutionality, courts should adopt the construction which will uphold the statute . . . .” (Internal quotation marks omitted.) Bottone v. Westport, 209 Conn. 652, 672-73, 553 A.2d 576 (1989). Accordingly, we conclude that § 52-216a does not erect a total bar that prevents a jury from ever considering the terms of a release agreement as evidence.

We do not agree with the defendant, however, that we must interpret this statutory prohibition as having effect only in cases in which remittiturs and additurs are involved. Indeed, the plain language of the statute contains no such indication. The language provides that the terms of a release agreement “shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors . . . .” This language says nothing about limiting the effects of this provision strictly to those situations where, at some point later, the trial court decided that a remittitur or additur was proper. Indeed, such an interpretation would render the statutory language meaningless, because a trial court does not decide whether to order an additur or remittitur until after the jury has rendered its verdict. By then, of course, the issue of whether to allow the jury to learn of the release would already have been litigated by the parties. Moreover, the legislative intent supports the opposite view. We have held that “ ‘the evil intended to be avoided by its passage was the jury’s knowledge of the existence of any release or claim or agreement not to sue because such knowledge might tend to be prejudicial to a party to the action.’ ” Peck v. Jacquemin, 196 Conn. 53, 68, 491 A.2d 1043 (1985) (interpreting language of current statute); Seals v. Hickey, supra, 186 Conn. 344 (interpreting language of predecessor statute with virtually identical language). Accordingly, we give effect to the language and intent of § 52-216a.

Applying this provision to the facts of this case, we are persuaded that the jury should not have been informed of the release prior to deciding the issues of liability and damages with respect to this defendant. The plaintiff released Riccio from liability in exchange for consideration of $100,000. If the jury had been asked to determine the scope of this release during the trial on liability, it would probably have learned about the amount of consideration paid. It would be difficult for the plaintiff to provide the jury with an adequate explanation about why she had accepted this amount, or whether that amount had constituted a compromise or an amount less than the appropriate amount of damages. Indeed, such testimony might well have been irrelevant and inadmissible. Under sueh circumstances, providing the jury with this information during the trial on liability and damages would inevitably have been prejudicial to the plaintiff’s case. Accordingly, the trial court acted properly in ordering the same jury to consider, after returning a verdict on liability and damages, whether the plaintiff had intended to release the defendant when she executed the release.

Ill

Next, the defendant claims that the trial court, in instructing the jury on the issue of statutory negligence, improperly used an example that unfairly prejudiced him in the eyes of the jury. Again, we disagree.

The facts related to this claim are as follows. The trial court began its instructions on statutory negligence by explaining that if a person has failed to obey a statute and that failure is a proximate cause of the plaintiffs harm, then the person’s failure to obey the law “is by law an act of negligence.” The trial court explained to the jury that there were three different types of statutory negligence that might be involved in this case. First, the court explained that the defendant might have violated General Statutes § 14-237 by driving over a median strip. Second, the court explained that the defendant might have violated General Statutes § 14-218a by driving unreasonably fast. Finally, the court explained that Riccio might have violated General Statutes § 14-245 by failing to yield the right of way at an intersection.

The court also discussed the importance of the jury’s finding that either of the statutory violations had been a proximate cause of the plaintiff’s injuries, explaining that, “[f]or example, there might be a violation for failure to grant the right of way to oncoming traffic, but unless that violation was a proximate cause of the accident resulting in injury to the plaintiff, it would have no bearing on the case.” The court discussed the doctrine of excuse, but did not give any specific examples of when a statutory violation might be excused and consequently not serve as a source of statutory negligence.

The defendant excepted to the charge, claiming that the trial court should not have given an example of proximate cause that might be construed as relating to the facts of this case. The defendant argued that the court “had indicated you would take out all references to the specific conduct here in giving the law, but you did give an example in which you referred to failure to yield the right of way. . . . [I]f Your Honor was going to give an example, then at least there should have been two. For instance, an example of crossing the median strip which could have been excused.” The defendant also argued that “in talking about the violation of crossing the median strip, Your Honor did not reference excuse, and I think that, together with the one example that was given, slants that particular portion of the charge on excuse.”

The trial court, on the record but out of the presence of the jury, discussed the merits of the defendant’s exception with counsel for both parties and sought their assistance in crafting a supplemental charge. Counsel for the defendant indicated that he would be satisfied if the court informed the jury simply that the doctrines of proximate cause and excuse applied equally to any of the statutory violations of the defendant and Riccio. Counsel for the defendant asked the court, “Your Honor, would you be willing to say exactly what you just said and just say that they apply to all statutory violations?” The court acceded to the request, informing the jury that “the court gave you instructions as to statutory violations and proximate cause and as to excused violations. This applies to all statutory claims. These apply to all statutory claims.” The defendant did not take an exception to these supplemental instructions.

On appeal, the defendant renews his argument that the trial court, in instructing the jury on proximate cause arising from a statutory violation, should not have given a single example that referred only to a failure to yield the right of way to oncoming traffic. The defendant argues that by “using the precise claim of statutory negligence against Anna Riccio, while omitting any reference to the statutory claim against the [defendant], the trial court greatly prejudiced the [defendant].”

We reject the defendant’s claim because he failed to preserve this claim by taking an exception to the supplemental charge. See Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 453-54, 254 A.2d 907 (1969). Indeed, the defendant never indicated that he remained dissatisfied with the court’s use of a specific example; on the contrary, the defendant informed the court that its proposed curative instruction was “fine.” “An exception to a charge serves to alert the court to any claimed deficiency in the charge while there is still time for the court to take appropriate remedial action. See Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 237-38, 520 A.2d 1008 (1987). The time has long since passed when a party can sit silent at the close of a charge and, if the verdict proves unpalatable, thereafter for the first time raise claims of error based on obvious inadvertencies in the charge. Scott v. Barrett, 212 Conn. 217, 222-23, 561 A.2d 941 (1989).” (Internal quotation marks omitted.) Oakes v. New England Dairies, Inc., 219 Conn. 1, 7, 591 A.2d 1261 (1991). Having failed to take an exception to the court’s instructions, the defendant cannot pursue this claim on appeal. Begley v. Kohl & Madden Printing Ink Co., supra, 453-54 (“The trial court specifically corrected this portion of the charge after the plaintiffs excepted to it, and no further exception was taken by the plaintiffs. There is therefore no claim of error properly before us.”); Rossi v. Stanback, 36 Conn. App. 328, 336, 650 A.2d 920 (1994) (“The plaintiffs, who now claim that the trial court acted improperly, did not take an exception to the recharge. Consequently, they have failed to preserve this issue for appellate review.”).

IV

Finally, the defendant claims that the jury’s finding that Riccio had been 0 percent negligent was contrary to the evidence. The defendant argues that “[i]t is undisputed that the accident occurred when Anna Riccio made a left turn from the northbound lane [of Windsor Avenue onto Rood Avenue]. . . . [N]o other conclusion is possible than that Anna Riccio failed to yield the right of way in violation of [General Statutes] §§ 14-245 and 14-242 (e).”

The defendant misses the point. The issue is not whether the jury reasonably could have found that Riccio did not violate these statutory provisions. Rather, the issue is whether the jury reasonably could have found that such statutory violations were not a proximate cause of the plaintiff’s injuries. See Madenford v. Interstate Lumber & Mill Corp., 153 Conn. 62, 64, 212 A.2d 588 (1965) (“[t]he court correctly charged the jury that a violation of this statute was negligence as a matter of law, but that to be actionable it must be proven to have been a proximate cause of the decedent’s injury”). We conclude that, on the basis of the evidence presented at trial, the jury reasonably could have concluded that Riccio’s actions were not a proximate cause of the plaintiff’s injuries.

In reviewing the soundness of a jury’s verdict, we construe the evidence in the light most favorable to sustaining the verdict. Oakes v. New England Dairies, Inc., supra, 219 Conn. 12; Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991). If the jury could reasonably have reached its conclusion, the verdict must stand. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 57, 578 A.2d 1054 (1990).

The underlying facts are undisputed. The accident in question occurred in the town of Windsor on Windsor Avenue, a four lane divided highway with two lanes in each direction separated by a grassy median. Riccio’s vehicle was in the northbound lane, and she was attempting to cross the southbound lanes to turn onto Rood Avenue. The defendant’s police cruiser was traveling southbound when it struck the Riccio vehicle and the defendant lost control. His police cruiser continued traveling southbound, but crossed onto a lawn before coming back into traffic, where it struck a third person’s vehicle. The cruiser again went onto another lawn, before coming back into traffic and crossing the grassy median, traveling southbound into the northbound lanes of Windsor Avenue. It was there that the cruiser collided with the plaintiff’s vehicle.

There was ample testimony and evidence to enable a jury reasonably to find that the defendant’s negligence was wholly responsible for the plaintiff’s injuries. Witnesses testified that the defendant had been driving at least 50 miles per hour, although the posted speed limit was 35 miles per hour. The investigating officer testified that in his opinion, the accident would not have occurred had the defendant simply applied his brakes after striking the Riccio vehicle, because “you can assume he would have stopped prior to [striking the plaintiff’s vehicle].” An accident reconstruction expert testified that if the defendant had been driving 40 miles per hour, which was above the posted speed limit but 10 miles per hour slower than the defendant’s estimated speed, the defendant’s cruiser would not have collided with the plaintiff’s vehicle. This evidence was sufficient for the jury reasonably to find that the defendant’s negligence was 100 percent responsible for the plaintiffs injuries, and that Riccio’s actions were not a proximate cause of those injuries.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-572h provides in pertinent part: “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.
      “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.
      “(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.
      “(f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant. . . .
      “(n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.”

       Also named as defendants were the town of Windsor and John J. Riccio, Jr. The Donners alleged that the town was vicariously liable for the collision because the defendant Kearse was acting within the scope of his employment at the time of the collision. The Donners alleged that John Riccio was vicariously liable on the basis of the family car doctrine, because he owned the vehicle that was driven by Anna Riccio. Because vicarious liability is not an issue in this appeal, we refer only to the defendants Kearse and Anna Riccio.

       By using the terms “negligent” and “negligence” in this opinion, we refer to any negligence that was a proximate cause of the plaintiffs injuries.

       The defendant filed a motion to set aside the verdicts that raised the same issues he has pursued in this appeal. See General Statutes § 52-228b; Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981) (“a motion to set aside a verdict is essential for a full review of claims of error in civil jury cases seeking money damages”). The trial court denied the motion.

       Section 52-572h (d) establishes a formula to ascertain the proportionate share of damages for which each party is liable. Briefly, this formula requires the determination of a party’s ratio of negligence. The numerator of this ratio consists of that party’s percentage of negligence as determined under subsection (f) of the statute. The denominator consists of the total percentages of negligence for all individuals to whom the statute looks within a given case, also as determined within subsection (f), but not including any percentage of negligence attributable to the claimant. In order to determine that party’s share of damages, this ratio is then multiplied by the recoverable economic and noneconomic damages, which are defined as the total economic and noneconomic damages less certain credits, including those amounts attributable to the claimant’s own negligence. General Statutes § 52-572h (a).

       “Our rule has certain exceptions, notably in the indemnity situation where the liability of a defendant is vicarious or based merely on a relationship, such as that of employer-employee. Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965); Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 542, 52 A.2d 862 (1947); Bailey v. Bussing, 28 Conn. 455 (1859).” Gomeau v. Forrest, 176 Conn. 523, 525, 409 A.2d 1006 (1979).

       Section 3 (g) of Tort Reform I provided: ‘ ‘Upon motion by the claimant made not later than one year after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, and after good faith efforts to collect from a liable party, the court shall determine whether all or part of a party’s proportionate share of the awarded economic damages and noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other parties according to their respective percentages of negligence, provided that the court shall reallocate to any defendant an amount equal to that defendant’s percentage of negligence multiplied by such uncollectible amount as determined in accordance with subsection (d) of this section. The party whose liability is reallocated is nonetheless subject to contribution and to any continuing liability to the claimant on the judgment. In the event any such liability is reallocated to a defendant obligated to make periodic payment in accordance with the terms of any agreement or judgment entered pursuant to the provisions of section 4 of this act, the payment of the amount so reallocated shall be determined in accordance with section 2 of this act.”

       See footnote 1.

       General Statutes § 52-102 provides: “Upon motion made by any party or nonparty to a civil action, the person named in the party’s motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy.”

       The legislature recently changed the means by which a defendant may expand the universe of negligence to be considered in apportioning liability. See Public Acts 1995, No. 95-111, which took effect July 1, 1995.

       The defendant does not argue that the release executed by the plaintiff operated to release Robert Donner from liability.

       Although at the time of trial Riccio was no longer a party, she was a “released” person under § 52-572h (n), and her negligence was therefore required to be considered in apportioning damages. See General Statutes § 52-572h (f).

       “The consideration of extrinsic evidence of the parties’ intent regarding the scope of the release, whether ambiguous or not, is appropriate because such consideration will best further the purpose of § 52-572e, which in our view is to permit the release of one joint tortfeasor to effect the release of other joint tortfeasors only if the settling parties so intended.” Sims v. Honda Motor Co., supra, 225 Conn. 413-14.

       Article first, § 19, of the Connecticut constitution provides: “The right of trial by jury shall remain inviolate.”

       In his brief, for example, the defendant argues that “the point of [§ 52-216aj . . . is to regulate the use of releases and settlements in adjusting the amount of the verdict” and that “[t]he statute concerns only excessive and inadequate verdicts.”

       The defendant did not argue in the trial court, nor does he argue on appeal, that the trial court should have empaneled a separate jury to decide whether the plaintiff had released the defendant from liability.

       In any given case, where the defendant may be prejudiced by having the same jury decide the issue of the release after having decided the issues of liability and damages, the trial court may empanel a different jury to decide whether the plaintiff had intended to release the defendant from liability. Indeed, if the trial court decides to empanel a separate jury for this purpose, there would be nothing to prevent the separate jury from resolving this issue before, rather than after, a trial on liability.

       The defendant argues in his brief that he “acquiesced” in the supplemental charge because it pertained only to the court’s earlier instruction on excused negligence, and not to proximate cause. This defies the precise language used by the court in delivering its supplemental charge, which referred to both the doctrine of excuse and proximate cause. Moreover, the defendant demonstrated after the court had given its supplemental charge that he knew he needed to take an exception. After the court gave the second charge, the defendant again objected to the court’s initial failure to give an instruction on a fourth source of statutory negligence, which is not at issue in this appeal. The court noted that “I already have that,” to which the defendant responded: “Just want to maintain that.” Notably, the defendant did not take any similar steps with regard to the court’s use of a specific example on statutory negligence.


author: Callahan, J.

text:
    State of Connecticut v. Murray Colton
    (14885)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.
    Argued May 31
    decision released August 8, 1995

      Kenneth Rosenthal, with whom was Bonnie L. Patten, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Brown, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Murray Colton, appeals from the judgment of the trial court denying his motion to dismiss, on the ground of double jeopardy, the criminal prosecution pending against him. The defendant has been tried three times for the murder of Patricia Konesky, whose body was found on January 13,1987, in the dugout of a baseball field in New Haven. See General Statutes §§ 53a-54a and 53a-8. The first two trials were conducted in 1989 and 1990 and both resulted in mistrials after the jurors had reported that they were deadlocked. After a third trial, which was conducted in 1991, the defendant was convicted of murder and was sentenced to a fifty year term of imprisonment. On the defendant’s appeal from his conviction, we reversed the judgment of the trial court and remanded the case for a new trial, concluding that the trial court had violated the defendant’s constitutional right to confrontation by precluding certain evidence showing motive and bias on the part of the state’s chief witness, Janice Tourangeau. State v. Colton, 227 Conn. 231, 233, 630 A.2d 577 (1993).

Subsequently, the state initiated a fourth prosecution of the defendant on the same charge. The defendant moved to dismiss, asserting that: (1) double jeopardy principles bar a fourth trial because of prosecutorial misconduct at the third trial; (2) there is insufficient evidence to proceed to trial because the testimony of the state’s chief witness, who is now deceased, is unavailable; (3) a fourth trial would undermine the integrity of the court; and (4) a fourth trial would undermine the interests of justice. After a two day evidentiary hearing, the trial court denied the defendant’s motion, reasoning that the claim of prosecutorial misconduct could not be brought in a motion to dismiss, because the defendant had not alleged prosecutorial misconduct either in a motion for mistrial during the previous trial or on appeal from his conviction at that trial.

The defendant appeals from the trial court’s ruling claiming that: (1) the court improperly concluded that his double jeopardy claim on the basis of prosecutorial misconduct was barred as a matter of law; and (2) the trial court improperly prevented him from questioning the prosecutor to support his claim of double jeopardy on the basis of prosecutorial misconduct. We are persuaded by the defendant’s first argument. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.

I

The defendant first claims that the trial court improperly denied his motion to dismiss his fourth prosecution on double jeopardy grounds on the basis of alleged prosecutorial misconduct at his third trial. Under Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982), and its progeny, the double jeopardy clause will bar the retrial not only of a criminal defendant whose conviction was reversed for evidentiary insufficiency, but also of a defendant whose conviction in the first trial was secured by prosecutorial misconduct.

The defendant’s claim concerns the prosecutor’s conduct in connection with the testimony of the state’s chief witness, Tourangeau. Tourangeau’s testimony at the third trial was summarized in Colton I as follows. “At trial, Tourangeau gave the following account of her activities on the night of the victim’s murder. On the night of January 12, 1987, Tourangeau had been dropped off on Kimberly Avenue [in New Haven] by her friend, Cathleen Jones. Tourangeau was looking for the victim because she wanted the victim to obtain drugs for her. Tourangeau found the victim at Don Phillips Cafe, a bar owned by the defendant’s father. The victim agreed to take drugs with Tourangeau, but told Tourangeau that Tourangeau would have to wait because she had something to do first.

“The victim told Tourangeau that she had to meet someone on Kimberly Avenue and, after Tourangeau persisted in asking to go along, the victim agreed that Tourangeau could accompany her as long as she remained unseen. The two separated briefly and were to meet on Kimberly Avenue near Saint Peter’s Church. Tourangeau arrived at the church and, shortly thereafter, saw the victim on the corner of Kimberly Avenue and Second Street. Tourangeau approached the victim and asked if she had the drugs yet. The victim responded that she had to go to Saint Peter’s Street and reminded Tourangeau to remain out of sight. The victim and Tourangeau took separate routes to Saint Peter’s Street. Tourangeau walked down Kimberly Avenue to a path that led to the baseball field, which was located at the end of Saint Peter’s Street. She walked several steps out from the path onto the field when she saw the victim standing with the defendant by a manhole cover. Tourangeau backed up to some bushes at the edge of the field to stay out of sight, and observed the victim and the defendant walk to the third base dugout and sit on the dugout bench. At this point Tourangeau was positioned approximately 190 feet from the third base dugout.

“Tourangeau observed the defendant suddenly stand up and pull the victim by her hair. Tourangeau then saw another man come from the side of the dugout and hit the victim on the side of the head. She described this man as having dark hair and a mustache, wearing tan boots and probably being Hispanic because he had dark skin. On cross-examination Tourangeau testified that when the victim had been struck she had seen something squirt out of the victim’s head and had heard a ‘squishing sound.’ As a result of this blow, the victim was knocked forward facing the ground. Tourangeau then saw both the defendant and the second man kick the victim.

“At this point Tourangeau ran from the area. The second man noticed Tourangeau and yelled after her. Tourangeau kept running and sensed someone running behind her. She ran out onto Kimberly Avenue where she flagged down a car and jumped in. The driver of the car drove Tourangeau to her home. Tourangeau claimed that she then went into the bathroom and lay down in the bathtub until dawn, ‘put[ting] it together.'

“Tourangeau did not learn that the victim had been killed until she watched the evening news on television later that day. During both the 6 p.m. and the 11 p.m. news broadcasts reporting the discovery of the victim’s body, Tourangeau stated to her companions, ‘That’s Patty,’ although neither broadcast had mentioned the name of the victim. Tourangeau covered up for knowing the identity of the person on the news by saying that she had recognized the victim’s boots. She never told anyone about her presence at the field the night before because she was afraid of retaliation and of being known as a snitch on the street and therefore being unable to get drugs. When Tourangeau was interviewed by the police one week later, she did not mention what she had seen, and provided no information about the murder until March, 1988. ” State v. Colton, supra, 227 Conn. 235-37.

“Tourangeau also testified on direct examination that, at the time of the murder, she had been addicted to heroin. She described her lifestyle at that time as a street life in which her principal interests were surviving and getting drugs, and explained that one of the reasons she had not come forward sooner had been the difficulty she would have had obtaining drugs if she had become known as a snitch. Tourangeau testified that prostitution was how she had made money at that time, and that she would spend all of her earnings on drugs. Tourangeau further testified that at the present time she was no longer addicted to drugs or engaged in prostitution. She stated that she had managed to overcome her addiction while in jail in 1989.

“When questioned about her desire for the reward money, Tourangeau testified that when she had first come forward she had had no interest in the reward. She maintained, both in her statement to the police and at trial, that the sole motivating factor in deciding to reveal what she had seen was the emotional anguish she experienced from ‘keeping it in.’ She also testified that she had become interested in the reward only as ‘soon as my life started to change.’ When asked to describe this change, Tourangeau testified: ‘I’ve gained part of a family back. I’m not a drug user. I need a new life. ... I need to start my family and myself on a new life.’ ” Id., 239-40.

In his motion to dismiss the fourth prosecution on the ground of double jeopardy, the defendant claimed that “the prosecutor at the third trial deliberately planned and elicited repeated testimony to the effect that Tourangeau had supposedly ceased all involvement in her prior lifestyle as a drug addict, prostitute and street hustler, and was now motivated solely by a new, normal way of life, and was therefore completely freed from the dominating needs . . . characteristic of her past life. See State v. Colton, [supra, 227 Conn. 239-42, 250-52 n.20].”

The defendant proffered several documents, some of which are sealed, in support of his claim of prosecutorial misconduct. These documents include police reports from both New Haven and Milford, which, the defendant alleges, indicate that Tourangeau continued her prior lifestyle even after 1989, the time that she claimed to have overcome her drug addiction and ceased to engage in prostitution. The gravamen of the defendant’s claim is that although the prosecutor properly provided the defense attorney copies of all of the police reports at the time of trial, the prosecutor also should have investigated these and other reports further and, by failing to do so, may have suborned perjury. The defendant claims that this alleged prosecutorial misconduct rises to the level of a double jeopardy violation, because “[fjully aware of this record, and the substantial indication of prevarication, manipulation and perjury it established, the prosecutor intentionally closed his eyes to all of it, deliberately avoided obvious avenues of investigation readily accessible to the State, and failed to pursue or present evidence that could have damaged his case or aided the defendant, in violation of ethical and constitutional obligations of which the prosecutor was similarly fully aware.”

Ordinarily, “the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of insufficiency of the evidence.” Oregon v. Kennedy, supra, 456 U.S. 676 n.6. In Kennedy, however, the United States Supreme Court held that double jeopardy also bars a subsequent prosecution if there was prosecutorial misconduct in the first trial that goaded the defendant into seeking a mistrial. “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id., 676.

The United States Court of Appeals for the Second Circuit recently held, however, that prosecutorial misconduct may be a bar to a second trial even if there was no mistrial in the first case. In United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) (Wallach I), the court reversed the defendants’ convictions and ordered new trials because the government’s chief witness had perjured himself by testifying that he had stopped his compulsive gambling in the summer of 1988. In fact, the witness had continued to gamble at the time of trial in the summer of 1989. Id., 455. In reversing the defendants’ convictions, the court stated: “In light of [the witness’] acknowledged history of compulsive gambling, we believe that given the inconsistencies in his statements the government should have been on notice that [the witness] was perjuring himself. Yet, instead of proceeding with great caution, the government set out on its redirect examination to rehabilitate [the witness] and elicited his rather dubious explanation of what had happened. . . .We fear that given the importance of [his] testimony to the case, the prosecutors may have consciously avoided recognizing the obvious—that is, that [the witness] was not telling the truth. . . , Accordingly, because we are convinced that the government should have known that [the witness] was com- witting perjury, all the convictions must be reversed.” Id., 457.

After the government reinstituted charges against the named defendant in Wallach I, he moved to dismiss, claiming that double jeopardy barred a retrial in the aftermath of the reversal of his conviction “on the ground that the prosecution should have known that a government witness’s trial testimony was false.” United States v. Wallach, 979 F.2d 912, 913 (2d Cir. 1992) (Wallach II), cert. denied, 508 U.S. 939, 113 S. Ct. 2414, 124 L. Ed. 2d 637 (1993). The court in Wallach II held that “[i]f any extension oí Kennedy beyond the mistrial context is warranted, it would be a bar to retrial only where the misconduct of the prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct. . . . Indeed, if Kennedy is not extended to this limited degree, a prosecutor apprehending an acquittal encounters the jeopardy bar to retrial when he engages in misconduct of sufficient visibility to precipitate a mistrial motion, but not when he fends off the anticipated acquittal by misconduct of which the defendant is unaware until after the verdict. There is no justification for that distinction.” Id., 916.

Despite extension of the double jeopardy doctrine in Wallach I to include a situation in which the prosecutors “ ‘should have known’ ” of and “ ‘may have consciously avoided recognizing’ ” the witness’ perjury, the court in Wallach II concluded that “the factual predicate for extending Kennedy to bar [the defendant’s] retrial—deliberate prosecutorial misconduct undertaken to avoid an acquittal that the prosecutors believed was likely in the absence of their misconduct— is totally lacking.” Id., 917. The court based this conclusion on its determination that the evidence of the defendant’s guilt was so overwhelming that “it is entirely unrealistic to think that the prosecution . . . apprehended an acquittal.” Id., 916. Additionally, the court stated that “in denying the defendant’s motion for a new trial . . . [the trial court] expressly found that there was no evidence that the prosecution had any knowledge of the perjury” and that “[t]he prosecutors certainly did not malevolently elicit [the witness’] initial contention that he had ceased gambling.” Id., 917.

The Second Circuit Court of Appeals more recently has affirmed the extension of Kennedy, stating “that the Double Jeopardy Clause protects a criminal defendant from multiple successive prosecutions for the same offense that arise from prosecutorial overreaching engaged in with the deliberate intent of depriving him of having his trial completed by a particular tribunal or prejudicing the possibility of an acquittal that the prosecutor believed likely.” United States v. Pavloyianis, 996 F.2d 1467, 1473 (2d Cir. 1993). In Pavloyianis, the Court of Appeals affirmed the District Court’s denial of the defendant’s motion to dismiss a subsequent prosecution on double jeopardy grounds. The District Court had determined that an evidentiary hearing would serve no purpose because, in light of the overwhelming evidence of the defendant’s guilt, any misconduct was not deliberately engaged in to avoid the possibility of a likely acquittal. The Court of Appeals affirmed, concluding that “[n]o rule of law requires a hearing in this sort of case where the relevant facts can be ascertained from the record.” (Emphasis added.) Id., 1475.

In the present case, the trial court asserted that the court in Wallach II “concluded that in the narrow circumstances of a reversal based on prosecutorial misconduct, the double jeopardy clause may bar a retrial.” (Emphasis added.) It went on to state, however, that “[i]n the present case, the defendant’s conviction was reversed solely on the ground that the trial [court] improperly excluded evidence that would have contradicted the testimony of a key witness.” (Emphasis added.) The trial court concluded, therefore, that it need not consider the merits of the defendant’s double jeopardy claim. We disagree with the trial court’s reading of Wallachl to bar categorically a claim of double jeopardy unless the defendant’s previous conviction had been set aside or reversed because of prosecutorial misconduct.

It is important to note that the court in Wallach II considered the defendant’s claim of double jeopardy on the basis of prosecutorial misconduct on the merits, even though it ultimately concluded that, as a factual matter, there was no intent on the part of the prosecutor to engage in misconduct in order to avoid a likely acquittal. The reason for the reversal in Wallach I was that the testimony of the government’s chief witness was perjured. While the court concluded that the prosecutors should have known of the perjury, that conclusion was not the sole basis of its holding. Rather, the holding of Wallach I was that the convictions had to be overturned, with or without prosecutorial misconduct, because the witness “was the centerpiece of the government’s case” and had the jury known that the witness was not telling the truth about his gambling, “his entire testimony may have been rejected by the jury.” Wallach I, supra, 935 F.2d 457. Prosecutorial misconduct, therefore, was not the principal reason for the reversal. Indeed, in considering the defendant’s claim of double jeopardy on the basis of prosecutorial misconduct the court in Wallach II noted that “[t]here was no determination that the prosecutors [in Wal lack I] had actual knowledge [of the perjury]” and, on that basis, concluded that there was no intent on the part of the prosecutor to engage in misconduct to avoid a likely acquittal, and, therefore, there was no double jeopardy bar to a second prosecution. Wattach II, supra, 979 F.2d 917.

The question of whether a claim of double jeopardy on the basis of prosecutorial misconduct can be raised in a motion to dismiss in the absence of a previous mistrial or reversal because of prosecutorial misconduct is one of first impression in Connecticut. While we acknowledge that there is a split among the Circuit Courts on this issue, we agree with the Second Circuit Court of Appeals that Kennedy logically should be extended to bar a new trial, even in the absence of a mistrial or reversal because of prosecutorial misconduct, if the prosecutor in the first trial engaged in misconduct with the intent “to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.” Wallach II, supra, 979 F.2d 916.

The reasoning for expanding the Kennedy doctrine in this limited circumstance is particularly compelling in a case such as the present one, in which some of the evidence that the defendant intended to use to demonstrate prosecutorial misconduct was not part of the record on appeal from the previous trial. Some evidence was part of the record, such as the transcript of the prosecutor’s closing statement to the jury, in which he vouched for the truth of Tourangeau’s testimony knowing that the veracity of her statements was at least questionable. Other evidence, however, was not in the record, such as the question of whether, at the time of trial, the prosecutor had actual or constructive knowledge of the inaccuracy of Tourangeau’s statements regarding her allegedly changed lifestyle and her reasons for testifying. In order to have a fair opportunity to meet his difficult burden of proving that the prosecutor had engaged in misconduct with the intent to avoid an acquittal that was likely, the defendant must be able to bring that alleged misconduct to the attention of the court. With regard to off-the-record conduct, the proper time to do so is in a collateral evidentiary proceeding.

The reasoning behind the procedure for bringing a claim of ineffective assistance of counsel in a petition for a writ of habeas corpus is equally applicable to the issue before us. “This court has emphasized in other cases that a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal. State v. Just, [185 Conn. 339, 370-71, 441 A.2d 98 (1981)]; State v. Barber, [173 Conn. 153, 154-55, 376 A.2d 1108 (1977)]. Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence which is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency.” (Emphasis added.) State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982); see State v. Tirado, 194 Conn. 89, 92, 478 A.2d 606 (1984) (refusing to reach claim of ineffective assistance of counsel because of insufficient record, but not barring collateral proceeding to establish record).

In the present case, during the evidentiary hearing on his motion to dismiss on the ground of double jeopardy, the defendant attempted to present evidence of prosecutorial misconduct that allegedly had occurred both on and off-the-record. The trial court, however, did not consider the factual allegations of prosecutorial misconduct. Rather, it denied the defendant’s motion to dismiss on the basis of a perceived procedural defect. The trial court concluded, as a matter of law, that the defendant could not, in a collateral proceeding, bring a claim of double jeopardy because of alleged prosecutorial misconduct without having first raised a claim of prosecutorial misconduct at some previous time. In the absence of a record of the alleged misconduct that had occurred off-the-record, however, a claim of prosecutorial misconduct at a previous time would have ■ been futile. To the extent that misconduct allegedly has occurred off-the-record, a defendant must have an opportunity to make a record in some fashion.

We can see no principled justification for a distinction between prosecutorial misconduct that is clandestine, and therefore not discoverable until after a verdict or an appeal, and prosecutorial misconduct that is visible, and so can be remedied by a motion for mistrial or on direct appeal. See Wallach II, supra, 979 F.2d 916. We do not mean to suggest that every reversal of a criminal case on appeal in which the charges are reinstituted would thereafter give rise to a valid claim of double jeopardy on the basis of alleged prosecutorial misconduct. Indeed, we anticipate that this claim would arise only rarely. This is such a case. Here, the defendant’s conviction was reversed and a new trial ordered because the court had inhibited the scope of the defendants cross-examination of a state witness, without whose testimony the state conceded there would be insufficient evidence to satisfy even probable cause, and the defendant claimed prosecutorial misconduct relating to the testimony of that witness, the alleged evidence of which was acquired, at least in part, after the verdict and possibly after the appeal. Analogous circumstances should arise infrequently and should not invite a plethora of comparable claims. Ordinarily, “the Double Jeopardy safeguard does not prevent retrial of a defendant who obtained a reversal of his conviction because of an error or defect in the criminal proceedings leading to conviction. See United States v. Ball, 163 U.S. 662, 672, 16 S. Ct. 1192, 41 L. Ed. 300 (1896).” United States v. Pavloyianis, supra, 996 F.2d 1473.

Moreover, the defendant’s burden is a heavy one. To avail himself of the “constitutional bulwark [of double jeopardy],” the defendant must prove that the alleged prosecutorial misconduct “ha[d] been undertaken with the deliberate purpose of depriving the defendant of double jeopardy’s shield, that is to say, only a highhanded wrong intentionally directed against [the] defendant’s constitutional right will trigger his right not to be twice put in jeopardy for the same offense.” Id., 1469. Furthermore, the defendant must prove that “the misconduct of the prosecutor is undertaken not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.” Wallach II, supra, 979 F.2d 916.

In this case, nevertheless, we conclude that the defendant should have been allowed the opportunity to create a record of the alleged prosecutorial misconduct in an attempt to carry his burden to prove a double jeopardy violation on the basis of prosecutorial misconduct in his third trial. The case, therefore, must be remanded to the trial court to consider the defendant’s motion to dismiss on the merits.

II

The defendant next claims that the trial court improperly prevented him from calling the prosecutor at the third trial as a witness to support his claim of double jeopardy on the basis of prosecutorial misconduct. We address this claim because this issue possibly will recur on remand in the consideration of the merits of the defendant’s motion to dismiss.

We recently have considered the standard that governs whether a prosecuting attorney or defense attorney can be called as a witness relating to a case in which he had participated as an advocate. “At the outset, we note that courts have been reluctant to allow attorneys to be called as witnesses in trials in which they are advocates. See Rudolph v. State, 829 P.2d 269, 273 (Wyo. 1992); see also United States v. Birdman, 602 F.2d 547, 553 (3d Cir. 1979), cert. denied, 444 U.S. 1032, 100 S. Ct. 703, 62 L. Ed. 2d 668 (1980). When either party in a criminal case seeks testimony from the prosecuting attorney, the federal courts have applied a compelling need test. See United States v. Prantil, 764 F.2d 548, 554 (9th Cir. 1985); United States v. Dack, 747 F.2d 1172, 1176 n.5 (7th Cir. 1984); United States v. Birdman, supra, 553; United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir. 1975), cert. denied, 424 U.S. 942, 96 S. Ct. 1410, 47 L. Ed. 2d 348 (1976). Under this test, the party wishing to call a prosecutor to testify must show that the testimony of the prosecutor is necessary and not merely relevant, and that all other available sources of comparably probative evidence have been exhausted. State v. Thompson, 20 Conn. App. 290, 297, 567 A.2d 837 (1989); see also United States v. Prantil, supra, 551; Rudolph v. State, supra, 273.

“The policy behind the compelling need test in the context of requiring a prosecutor to testify is four fold: First, there is the risk that the prosecutor may not be a fully objective witness. [United States v. Birdman, supra, 602 F.2d 553]. Second, there exists the justifiable fear that, when a prosecutor takes the witness stand, the prestige or prominence of the prosecutor’s office will artificially enhance his credibility as a witness. United States v. Johnston, 690 F.2d 638, 643 (7th Cir. 1982). Third, the jury may understandably be confused by the prosecutor’s dual role. Id. . . . Finally, a broader concern for public confidence in the administration of justice suggests the maxim that justice must satisfy the appearance of justice. (Citation omitted.) State v. Thompson, supra, 20 Conn. App. 296; United States v. Birdman, supra, 554.” (Internal quotation marks omitted.) Ullmann v. State, 230 Conn. 698, 716-17, 647 A.2d 324 (1994).

In adopting the compelling need test in Ullmann, we noted that “[t}he trial court is charged with making the determination of the materiality of the witness’ testimony and must, of course, honor the defendant’s constitutional rights of confrontation and compulsory process. United States v. Prantil, supra, [764 F.2d] 552. State v. Thompson, supra, 20 Conn. App. 297. [T]he vast weight of authority indicates that any decision whether or not to allow an attorney to be called is left to the discretion of the trial judge. Therefore, in reviewing [the} appellant’s claims we will only reverse the decision of the trial court if there was an abuse of discretion. Rudolph v. State, supra, 829 P.2d 272; see also State v. Williams, 656 P.2d 450, 453 (Utah 1982). The issue, therefore, is not whether we would reach the same conclusion in the exercise of our own judgment, but only whether the trial court acted reasonably. State v. Deleon, 230 Conn. 351, 363, 645 A.2d 518 (1994); see also State v. S & R Sanitation Services, 202 Conn. 300, 311-12, 521 A.2d 1017 (1987).” (Emphasis added; internal quotation marks omitted.) Ullmann v. State, supra, 230 Conn. 721.

Because the trial court concluded in its articulation that, as a matter of law, the defendant did not have a valid double jeopardy claim, because his claim of prosecutorial misconduct had not been raised previously in a motion for mistrial or on direct appeal, it never exercised its discretion to determine whether the prosecutor should be compelled to testify in connection with the defendant’s motion to dismiss. The trial court, by concluding, as a matter of law, that the defendant had no basis for his claim of double jeopardy, did not reach the factual allegations made by the defendant that the court would have to consider in order for it to have exercised its discretion to determine whether there was a compelling need for the prosecutor to testify.

“ ‘While it is normally true that this court will refrain from interfering with a trial court’s exercise of discretion . . . this presupposes that the trial court did in fact exercise its discretion. [Discretion imports something more than leeway in decision-making. ... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ (Citations omitted; internal quotation marks omitted.) State v. Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986).” (Emphasis added.) Gateway Co. v. DiNoia, 232 Conn. 223, 239, 653 A.2d 342 (1995).

Because in this instance the trial court did not exercise its discretion to determine whether the defendant had made a factual, prima facie showing of prosecutorial misconduct so as to create a compelling need for the prosecutor’s testimony, it must do so on remand. We conclude that “[wjhere, as here, the trial court is properly called upon to exercise its discretion, its failure to do so is [improper].” State v. Martin, supra, 201 Conn. 88. The trial court, therefore, on remand must determine whether the defendant has made a prima facie showing of prosecutorial misconduct, and, if so, it must determine whether there is a compelling need for the testimony of the prosecutor in connection with the defendant’s claim that the prosecutor had engaged in misconduct with the intent to avoid an acquittal that the prosecutor believed was likely. See Wallach II, supra, 979 F.2d 916.

The judgment of the trial court is reversed, and the case is remanded to that court to consider the defendant’s motion to dismiss on the merits.

In this opinion the other justices concurred.

       For a full recitation of the facts related to the murder, see State v. Colton, 227 Conn. 231, 233-35, 630 A.2d 577 (1993).

       General Statutes § 53a-54a provides in relevant part: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime."
      General Statutes § 53a-8 provides in relevant part: “criminal liability for acts OF another, (a) 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.”

       On appeal from his eonvietion, the defendant also claimed that the trial court had: “(2) improperly permitted an unrepresentative viewing of the crime scene by the jury; (3) abused its discretion by making certain evidentiary rulings; (4) improperly instructed the jury on consciousness of guilt and reasonable doubt; (5) improperly denied the defendant’s pretrial motions for discovery and production of exculpatory information regarding the identity of other persons having a motive to harm the victim, and improperly failed to sanction the state for untimely disclosure of such information; and (6) failed to follow proper procedures in denying the defendant’s request for access to medical and psychiatric records of the state’s chief witness.” State v. Colton, supra, 227 Conn. 233. Because we reversed the judgment of conviction on the basis of the confrontation clause issue, we did not reach those issues.

       The trial court also held that the testimony of Tourangeau from the third trial could not be used in the fourth trial, although the testimony from the first two trials and from the probable cause hearing could be used. That issue, however, is not a subject of this appeal.

       The defendant appeals directly from the judgment of the trial court, pursuant to General Statutes § 51-199 (b). “Colorable claims of double jeopardy are an exception to the general rule that appeals in criminal cases must ordinarily await the final judgment that arises from the imposition of sentence.” State v. Boyd, 221 Conn. 685, 688 n.4, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992).

       The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” “Although the Connecticut constitution does not include a double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution encompasses protection against double jeopardy.” State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995). Because the defendant has not presented a separate analysis of his double jeopardy claim under the state constitution, we confine our analysis to the application of the federal constitution’s double jeopardy bar. See, e.g., id., 550 n.4; State v. DePastino, 228 Conn. 552, 571, 638 A.2d 578 (1994).

       The defendant also urged this court to dismiss the state’s prosecution of him on the basis of the court’s supervisory powers. The defendant withdrew this claim during oral argument. Accordingly, we do not consider it.

       “When the 6 p.m. news came on, Tourangeau testified that she had been at home with her friend, Cathy Jones, her roommate, Vivian Wiles, and her roommate’s friend, Sandy Brown. Tourangeau testified that she had heard a second broadcast later that night at the Tremont Hotel with Jones and two other friends, Jacqueline Boyles and a drug dealer who went by the name of Cowboy.” State v. Colton, supra, 227 Conn. 237 n.3.

       “Tourangeau’s second statement to the police came about in the following manner. Tourangeau testified that on March 29,1988, she had been in the Kimberly Avenue neighborhood when she saw the defendant’s truck outside of his father’s bar. Tourangeau testified that seeing the truck had brought back the memories of the night of the murder that she had been trying to suppress since then. Later that evening, Tourangeau was arrested for prostitution and was taken to the New Haven police station. Officer Paul Welch, who had known Tourangeau since childhood from the neighborhood, was on duty processing incoming prisoners when Tourangeau was brought to the cellblock. Welch testified that, while he was fingerprinting Tourangeau, Tourangeau became very upset and started to cry. She said that she couldn’t live with this any longer, and that she had to talk to someone. Welch then turned Tourangeau over to a detective for questioning. Tourangeau then gave a statement regarding what she had seen the night of the murder to then Detective Francisco Ortiz.” State v. Colton, supra, 227 Conn. 237-38 n.4.

       “On February 5,1988, the state posted notices in the Kimberly Square neighborhood offering a $20,000 reward for information leading to the arrest and conviction of the person or persons responsible for the victim’s murder. . . . Shortly [after the defendant’s conviction], Tourangeau collected $14,000 from the state, which represented her share of the reward.” State v. Colton, supra, 227 Conn. 234-35.

       “It is well established . . . that a state’s attorney has a duty, not solely to obtain convictions, but to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty. . . .” (Citation omitted; internal quotation marks omitted.) State v. Hammond, 221 Conn. 264, 292, 604 A.2d 793 (1992). From this duty it necessarily follows that a state’s attorney has the obligation to investigate fully the veracity of a witness’ potential testimony in order to determine if that witness should testify. Id. (“[i]t is unprofessional conduct for a prosecutor intentionally to avoid pursuit of evidence because . . . it will damage the prosecution’s case or aid the accused”).

       Indeed, the witness subsequently was convicted of committing perjury relating to Ms testimony in the trial of the defendants in Wallach I. Wallach I, supra, 935 F.2d 455.

       Cf. Beringer v. Sheahan, 934 F.2d 110 (7th Cir.), cert. denied, 502 U.S. 1006, 112 S. Ct. 641, 116 L. Ed. 2d 658 (1991) (motion for mistrial necessary prerequisite to claim of double jeopardy on basis of prosecutorial misconduct).

       What the prosecutor did or failed to do to affect the trial is the only relevant inquiry in a claim of double jeopardy on the basis of prosecutorial misconduct. For instance, the defendant proffered a newspaper clipping that was published after Tourangeau’s death in which her son claimed that she had consumed drugs and engaged in prostitution until the time of her death. The contents of this article could not have been the basis of prosecutorial misconduct at the time of trial. The article may be evidence, however, that others knew of Tourangeau’s drug addiction after she claimed to have overcome her addiction, and that the prosecutor may have failed to investigate fully Tourangeau’s account of events.

       The defendant claims, in part, that the prosecutor’s objections at trial on evidentiary matters constituted prosecutorial misconduct. Raising a good faith objection in the trial court, however, is obviously not itself prosecutorial misconduct. In this case, the trial court ruled on the objections raised by the prosecutor and, as a result of that ruling, limited the scope of the defendant’s cross-examination of Tourangeau. We subsequently reversed the trial court’s ruling, concluding that it violated the defendant’s right to confront the state’s chief witness, without whom the state’s case would fail. Although the rulings were improper, the prosecutor’s good faith objections cannot be the basis of the defendant’s claim of prosecutorial misconduct.

       Indeed, if a claim of prosecutorial misconduct is derived solely from the record, the defendant may waive the claim by his failure to raise it as a motion for mistrial. “[W]here counsel does not request a curative charge or seek a mistrial on the basis of alleged prosecutorial misconduct, we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized. . . . As a result, we find that the defendants have waived their right to raise on appeal this claim of prosecutorial abuse.” (Internal quotation marks omitted.) State v. Tyler-Barcomb, 197 Conn. 666, 673-74, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986).

       These policy considerations were developed in the context of a jury trial. In the circumstance of a motion to dismiss before a court, the third policy consideration obviously would be inapplicable. The other stated policy considerations for the compelling need test, however, remain viable. Moreover, the requirement of a threshold showing of compelling need is necessary to prevent frivolous attempts to call prosecutors or defense counsel as witnesses.