author: Shea, J.

text:
    State of Connecticut v. Blas Oliveras
    (13282)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.

      Argued January 4
    decision released April 18, 1989

      Louis S. Avitabile, special public defender, with whom were Denise Dishongh, special public defender, and, on the brief, Leonard Caine, special public defender, for the appellant (defendant).

      John O Meara, deputy assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Peter Markle, former assistant state’s attorney, for the appellee (state).
   Shea, J.

After a jury trial the defendant, Bias Oliveras, was convicted of felony murder in violation of General Statutes § 53a-54c. In this appeal he claims that the trial court erred in: (1) denying his motions for acquittal at the close of the state’s case-in-chief and at the close of all the evidence; (2) instructing the jury on the effect of certain statements of the defendant introduced as admissions; and (3) refusing to declare a mistrial because of alleged prosecutorial misconduct in attempting to bring inadmissible evidence before the jury. We find no error.

From the evidence presented the jury could reasonably have found the following facts. On March 11,1986, Robert Chrisman, who was twenty-two years old, left his apartment on Cherry Street in Waterbury at about 7:45 p.m. to go to a convenience store one block away. His fiancee, with whom he occupied the apartment, had given him two dollars to purchase cigarettes at the store. He was wearing a blue coat, jeans and a T-shirt at the time.

At about 7:52 p.m., several Waterbury policemen were dispatched to the scene of a stabbing on Cherry Street. Upon arrival they discovered a body, later identified as Chrisman’s, lying face up on the ground, with two stab wounds in the chest. The body was removed from the scene by ambulance.An autopsy performed the next day disclosed that Chrisman had died from the two stab wounds in his chest, which had penetrated his heart and left lung. Found at the scene were a black Kangol hat, a cigarette case containing a pack of Newport cigarettes, a cigarette lighter, a blue coat, and a trail of blood extending from the area of the body for a distance of thirty to fifty feet.

Chrisman’s fiancee had been talking on the telephone when she observed from the apartment window the flashing lights of the police cars that had arrived. She went outside where a group of people had gathered and then she noticed the blue coat on the ground, the victim’s body having been removed before her arrival. Later she identified Chrisman’s body.

The cigarette case, cigarettes and lighter found on the sidewalk near the victim’s body were later identified as belonging to Jose Quintana. The hat, similar to the one the defendant customarily wore, contained hairs like those in the hair sample taken from the defendant.

Later that same evening, B, a woman who was a friend of Quintana, received a telephone call from him, in which he mentioned that there had been trouble on Cherry Street and he asked her to call the hospital to inquire about the condition of a white male with blonde hair, a description corresponding to that of Chrisman. She refused to make the call. In another telephone conversation the next day, B asked Quintana about the stabbing incident on Cherry Street that she had heard of in a news broadcast. Quintana replied that he had been “hanging around” on Cherry Street with the defendant. He told B that the victim had started a fight with him and that he had stabbed the victim in self-defense.

Later in the week following the murder, Quintana had a conversation with Gregorio Hernandez who testified for the state. Quintana told Hernandez that he and the defendant had committed the murder on Cherry Street. They had waited outside the store for the victim. When the victim refused to give them his money, they punched him and then Quintana stabbed him.

Hernandez conversed with the defendant later on the day of his conversation with Quintana. After Hernandez asked the defendant about the murder on Cherry Street, the defendant responded that he and Quintana had committed that crime. He said that he and Quintana had wanted money so that they could “get high.” When the victim refused to give them money, they both punched him. The defendant then gave Quintana a knife, which he used to stab the victim.

I

The defendant’s claim that his motions for a judgment of acquittal should have been granted for insufficiency of the evidence presupposes that the testimony of Hernandez concerning the defendant’s account of the circumstances of the attempted robbery and murder cannot be relied upon in determining whether there was sufficient evidence to support the verdict of guilty. Although no objection was raised to the admissibility of his statements to Hernandez, the defendant contends that this testimony must be disregarded because of the rule that a confession cannot stand alone, but must be accompanied by other sufficient evidence of the corpus delicti. State v. Ruth, 181 Conn. 187, 198, 435 A.2d 3 (1980).

In arguing his motions for acquittal, the defendant never mentioned the corpus delicti rule or its underlying principles, but contended only that Hernandez’ testimony could not be relied upon because of the many inconsistent statements that he had allegedly made. This court does not ordinarily review claims not raised in the trial court. Practice Book § 4185. Recognizing this barrier to review, the defendant maintains that the corpus delicti rule has constitutional import in that it implicates the state’s burden to prove guilt beyond a reasonable doubt. On that basis he claims that the issue is reviewable under the exception established in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.”

In State v. Uretek, Inc., 207 Conn. 706, 713, 543 A.2d 709 (1988), we summarily rejected a claim that the lack of extrinsic corroboration of an admission that was vital to proving an element of the offense implicated a fundamental constitutional right and, therefore, concluded that such a claim did not qualify for review under Evans. The defendant relies upon a similar expansive version of the corpus delicti rule in seeking review of his contention that his statements to Hernandez indicating an attempt to rob the victim were the only evidence of the underlying felony essential to support a conviction of felony murder. In State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964), this court abandoned our previous definition of the corpus delicti “as meaning the fact that the crime charged was committed by someone.” We adopted the definition that “the corpus delicti consists of the occurrence of the specific kind of loss or injury embraced in the crime charged.” Id. “Under it, in a homicide case, the corpus delicti is the fact of the death, whether or not feloniously caused, of the person whom the accused is charged with having killed or murdered.” Id. In State v. Ruth, supra, we applied this definition in a felony murder case, like the present one, where the underlying felony was a robbery. We concluded that the corpus delicti rule was satisfied simply by the ample evidence of the victim’s death and, therefore, the defendant’s confession could be used to prove the other elements of the crime.

We need not now decide whether a claim that there was no proof of the corpus delicti, as we have defined it, from evidence independent of the confession or admissions of an accused would warrant review under Evans as implicating a constitutional right. The evidence of the victim’s death is abundant and the defendant does not challenge its adequacy. Thus, the corpus delicti rule has been satisfied within the scope of our definition of that requirement in a homicide case. We reject the defendant’s contention that the reliance by the trial court, in denying his motions for acquittal, upon his statements to Hernandez concerning the attempted robbery, which may not have been corroborated by independent evidence of that crime, violated his constitutional rights.

II

The defendant next claims error in the charge to the jury in three respects, none of which were called to the attention of the trial court by a request to charge or an exception at the conclusion of the charge. He seeks review of these claims as having constitutional implications cognizable under Evans, because he maintains that they involve the effect to be given by the jury to his admissions and implicate his right to a fair trial. We find no reversible error.

A

The defendant claims that the charge permitted the jury to rely upon his admissions to prove the offense “without reference to the necessity of the admissions being first corroborated by substantial and material other evidence apart from those admissions.” He refers to the absence of any instruction upon the need for corroboration from independent evidence of the fact that the crime charged has been committed before reliance may be had upon the admissions of an accused.

In effect the defendant claims that the jury should have been advised that each element of the crime of felony murder had to be shown by evidence independent of the defendant’s statements in order to prove that “the crime had been committed by someone.” This concept of the corpus delicti requirement, however, we expressly abandoned in Tillman, as explained in part I. Our present requirement for corroboration in a homicide case, including a charge of felony murder, is simply that the death of the victim be demonstrated by independent evidence. In this case, since Chrisman’s death was established beyond question, there was no need for any special instruction concerning the necessity for corroboration of the defendant’s admissions. Accordingly, no further review of this claim of error is warranted.

B

The court instructed the jurors that they were the “exclusive judges” of whether the defendant had made the statement describing the occurrence of the crime, as Hernandez had testified. The jurors were also told that, if they found this statement entirely untrue, they must reject it, but that, “[i]f you find that it is true, in part, you may consider that part which you find to be true.” The defendant contends that this instruction may have “misled the jury into believing that they could find the existence of the attempted robbery from the statement, believing the part of the statement as to the stabbing by Quintana while disbelieving the part of the statement as to the existence of the attempted robbery.”

There is nothing in the portion of the charge under attack that can reasonably be construed to have misled the jury, as the defendant argues. The charge is a correct statement of the law and cannot reasonably be viewed as creating any confusion about the necessity for the jury to find the element of an attempted robbery as the underlying felony before returning a guilty verdict. The court adequately explained the elements of the offense of attempted robbery and the necessity for proof of this element of the charge beyond a reasonable doubt. The defendant’s claim that the jury was misled in such a manner as to violate his constitutional rights is frivolous.

C

The court also charged the jury that the fact that the defendant had told Hernandez of his involvement in the crime before he was aware of any accusation against him was a circumstance from which the jury could infer consciousness of guilt. We agree with the defendant that the charge was inappropriate but conclude that it was harmless.

Evidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false statement, is ordinarily the basis for a charge on the inference of consciousness of guilt. State v. Milner, 206 Conn. 512, 519, 539 A.2d 80 (1988); State v. Banks, 194 Conn. 617, 621-22, 484 A.2d 444 (1984). The giving of a statement whose truth the state relies upon to prove the defendant guilty, as in this case, can hardly be regarded as deceptive conduct of the kind justifying such an inference. The content of the defendant’s statement, of course, did indicate that he was aware of his guilt and, if the jury believed the statements had been made by the defendant, they could not have failed to find him guilty. In that sense, every admission or confession of an accused signifies consciousness of guilt.

While we view the instruction as inappropriate, we conclude that it was superfluous and, therefore, harmless under the circumstances of this case. If the jurors believed that the defendant had made the statement implicating himself in the crime, they had no reasonable choice but to find him guilty and the consciousness of guilt instruction was simply superfluous. The defendant’s claim in this regard has no constitutional dimension.

Ill

The defendant claims that the state’s attorney engaged in prosecutorial misconduct in three instances: (1) attempting to bring inadmissible evidence before the jury; (2) commenting upon the defendant’s failure to testify; and (3) arguing facts before the jury based on evidence that the court had stricken from the record in lieu of granting a mistrial.

A

The defendant called B as a defense witness to testify about her conversation with Quintana on March 12, 1986, the day following the crime. She testified on direct examination that Quintana had told her on the telephone that after Chrisman, the victim, left the store on Cherry Street, he got into a fight with Quintana, who stabbed the victim in self-defense. Quintana did not indicate that he was attempting to rob Chrisman or that Oliveras was involved in the fight. “[Quintana] just said he was.”

On cross-examination, however, B testified that Quintana had said “it was me and Bias,” the defendant, who “did it,” referring to the incident on Cherry Street. When the prosecutor inquired about conversations B had with Quintana after March 12, defense counsel objected that the question went beyond the scope of the direct examination. The court overruled the objection. No exception to the ruling was taken. B testified that Quintana had told her of another conversation with the defendant, who had mentioned detectives coming to his house to confront him with his hat. In response to the question “With whose hat?” B responded: “With Bias’s hat. And, they confronted him, is that your hat, your honor. And, they were asking him questions about the murder and stuff like that. And, they had asked Bias to take a lie detector test.”

At this point the defendant asked that the jury be excused and moved for a mistrial because of the mention of a lie detector test by B. The court denied the motion for mistrial, instructed the prosecutor not to inquire concerning any conversations except those of March 11 and 12, to which the direct examination had been limited, and instructed the jurors that the testimony of B about later conversations with Quintana during cross-examination had been stricken and that they should disregard such testimony.

We see little basis for the defendant’s claim of prosecutorial misconduct based upon this episode. The response of B concerning the lie detector test was not solicited by the prosecutor and was wholly unresponsive to the question. The trial court took appropriate measures to remove whatever prejudice that remark may have induced. The record does not support the claim of the defendant that the prosecutor deliberately attempted to elicit inadmissible hearsay evidence outside the scope of the testimony on direct examination by the defendant. The defendant’s objection that the questions went beyond the scope of direct examination had been overruled. The response of B on direct examination that Quintana had said that he alone was involved in the stabbing of the victim, at least arguably, justified further inquiry into that subject in order not to leave the jury with a false impression.

B

During his closing argument the prosecutor referred to the fact that the defendant, when confronted by the police with the hat found at the scene of the crime, had given a sample of his hair but had denied that the hat belonged to him. The argument continued: “And we know that is not true. The people have no interest in lying. [V] and [B] tell us that is his hat. The person with the most interest in lying about that hat, the defendant Blas Oliveras, denied it was his, Why, if he was so innocently out there on Cherry Street on March 11th, as the attorney claims, why wouldn’t he say: yes, that is my hat, it dropped while I was out there, but I didn’t do anything, Quintana did it all. The only living people .. . .”

At this point the defendant objected: “That is a comment on the defendant’s failure to testify.” The court sustained the objection, stating: “He has an absolute right to remain silent.” Later, in charging the jury, the court instructed, in accordance with General Statutes § 54-84 (b), that no unfavorable inference could be drawn from the failure of the defendant to testify.

Although the trial judge may have viewed the remarks of the state’s attorney as a comment on the failure of the defendant to testify, his mention of the “absolute right to remain silent” may instead have indicated concern over the argument of the prosecutor about the failure of the defendant to admit his ownership of the hat to the police when he was questioned about it. In any event, we conclude that the prosecutor’s remarks must reasonably be construed, in the context of the entire argument, as relating to the time when the defendant denied ownership of the hat shown to him by the police and not to his failure to testify at trial. The jury could not reasonably have regarded this comment as relating to the defendant’s failure to testify. It was a permissible argument that the failure of the defendant to admit that he owned the hat shown to him, which other witnesses testified he customarily wore, was conduct inconsistent with a claim of innocence, if the jury should conclude that the hat was his and that he was present at the scene of the crime. State v. Banks, supra, 621-22.

C

In another part of his closing argument, the prosecutor, in referring to B’s testimony concerning her conversation with Quintana, remarked: “And, he puts himself and Blas Oliveras there on Cherry Street on March 11th. And, the evidence supplies the rest of the proof. It proves that Quintana and Oliveras did it. They remained in touch the week after the murder and they talked to each other about the evidence found at the scene, the hat and the cigarette case.” (Emphasis added.) The defendant claims that the italicized sentence was improper because the evidence on which it was based was stricken by the court as beyond the scope of the direct examination of B. No objection, however, was raised to this remark at trial.

The state concedes that the reference to the stricken evidence was improper, but contends that it was harmless. We agree. The absence of any objection by the defendant indicates that he did not view the remark as prejudicial. The remark did not relate to any significant issue in the case. Without condoning the prosecutor’s conduct the principal focus of our inquiry, in the absence of egregious prosecutorial misconduct, is not the culpability of the state but the overall fairness of the trial. State v. Magnotti, 198 Conn. 209, 215, 502 A.2d 404 (1985). We conclude that the reference by the state’s attorney to facts not properly in evidence, although improper, did not affect the fairness of the defendant’s trial because it could not possibly have affected the verdict.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54c provides in part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death oí a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to belive that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       This testimony was introduced by the defendant without objection after Quintana had exercised his privilege not to testify.

       This testimony was introduced by the state on redirect examination without objection after the defendant had cross-examined Hernandez concerning his conversations with Quintana. We need not consider whether this hearsay evidence standing alone would adequately support the verdict because of our conclusion that the defendant’s admissions to Hernandez, which are substantially the same as Quintana’s account of the crime, may properly be relied upon.

       See footnote 3, supra.


source: Caselaw Access Project

license: Public Domain

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text:
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text:
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text:
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      John S. Pinney, in support of the petition.

      John O Meara, deputy assistant state’s attorney, in opposition.
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text:
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      Francis T. Mandanici, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
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text:
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      George Ganim, Jr., in support of the petition.

      David J. McDonald, in opposition.
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text:
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text:
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      L. W. Francis, in support of the petition.

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text:
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text:
    State of Connecticut v. Louis C. Fiocchi, Jr.

      A. Paul Spinella, in support of the petition.

      Vincent J. Dooley, deputy assistant state’s attorney, in opposition.
    Decided February 22, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 326, is denied.


text:
    Cabinet Realty, Inc. v. Planning and Zoning Commission of the Town of Mansfield et al.

      Steven R. Humphrey, in support of the petition.

      Andrew J. 0 ’Keefe and Maureen S. Dinnan, in opposition.
    Decided February 22, 1989
   The plaintiffs petition for certification for appeal from the Appellate Court, 17 Conn. App. 344, is denied.


text:
    State of Connecticut v. David Garrity

      Ronald D. Williams, Jr., special public defender, in support of the petition.

      James M. Ralls, deputy assistant state’s attorney, in opposition.
    Decided March 2, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 376, is denied.


author: Santaniello, J.

text:
    State of Connecticut v. Floyd Simms
    (13429)
    Peters, C. J., Healey, Callahan, Covello and Santaniello,Js.
    Argued December 14, 1988
    decision released April 25, 1989

      Suzanne Zitser, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, was Herbert Appleton, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant was found guilty of the crimes of accessory to assault of a person sixty or older in the first degree in violation of General Statutes §§ 53a-59 (a) (3), 53a-59a and 53a-8, and robbery in the second degree in violation of General Statutes § 53a-135 (a) (1). On appeal to the Appellate Court, he claimed that the trial court erred in admitting the transcript of the Alford plea canvass of Daniel Jones, an alleged coparticipant in the original crime, as a prior statement inconsistent with Jones’s trial testimony. The Appellate Court concluded that the trial court had properly determined that the statements and the posture assumed by the witness during his Alford plea were inconsistent with his trial testimony and that the court’s admission of the Alford plea transcript for the jury’s consideration as to the issue of the witness’s credibility fully conformed with applicable law.

This court granted the defendant’s petition for certification on May 5,1988, limited to the sole issue: “Did the Appellate Court correctly conclude that the transcript of Daniel Jones’ Alford plea was admissible as a prior statement inconsistent with the trial testimony in this case?”

The facts that the jury could reasonably have found are set forth in State v. Simms, 14 Conn. App. 1, 539 A.2d 601 (1988). We summarize those facts pertinent to the issue on this appeal: While kneeling and praying inside Saint Joseph’s Cathederal in Hartford, William McGee, ninety years of age, was assaulted and robbed by the defendant. During the time McGee was engaged in prayer, the defendant, along with two companions, Daniel Jones and Wayne Mohagle, entered the church. While his companions lingered at the entrance, the defendant approached the victim, grabbed him around the neck, shoved him under a pew and attempted to kick him. The defendant then extracted eleven or twelve dollars from the victim’s pockets. As McGee attempted to leave the church, either Jones or Mohagle hit him on the head, thereby causing his most serious injuries. As a result of this attack, McGee was hospitalized for approximately one month.

During the defendant’s trial, Jones testifed that it was he who had assaulted and robbed McGee and that neither the defendant nor Mohagle had participated in the crime. Jones had previously pleaded guilty, under the Alford doctrine, to charges stemming from the incident at the church. For purposes of impeachment, the trial court permitted the state to introduce a partial transcript of Jones’s Alford plea canvass into evidence. The state contended, and the court agreed, that Jones’s statements made during his Alford plea, in which he denied culpability, were inconsistent with his trial testimony in which he assumed the sole onus for the crime and exonerated the two other participants.

As a preliminary matter, we recognize that a defendant in a criminal case may voluntarily, knowingly and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the act constituting the crime. North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Watson, 198 Conn. 598, 601 n.3, 504 A.2d 497 (1986); Blue v. Robinson, 173 Conn. 360, 378, 377 A.2d 1108 (1977). A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea. State v. James, 197 Conn. 358, 359 n.1, 497 A.2d 402 (1985); State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985).

The defendant argues that Jones’s plea on May 6, 1983, to the charge of robbery in the first degree involving William McGee, unlike his guilty pleas to two unrelated charges, was a “pure Alford plea,” a plea that offered no statements beyond the plea itself. The defendant does not deny that any factual admissions or denials made by an individual during an Alford plea proceeding may be used in a subsequent proceeding to attack the credibility of that individual whose subsequent testimony is inconsistent with those admissions or denials. The defendant argues, however, that Jones’s plea to robbery in the first degree contained no statements that could be construed as inconsistent with his testimony at the defendant’s trial that he alone committed the crime. The defendant claims that the Appellate Court decision is an erroneous application of the Alford doctrine, for it transforms the Alford plea itself into a statement by Jones that is equivalent to a denial or protestation of innocence. The defendant further claims that the Appellate Court failed to review the full transcript of Jones’s plea proceeding, a failure that resulted in the erroneous conclusion that the plea transcript contained a statement by Jones that was inconsistent with his testimony at the defendant’s trial. We disagree.

The record and transcripts indicate that at the time of the defendant’s trial, Jones testified that he alone committed the robbery and that his recollection at the time of trial differed from what it had been at the time of his Alford plea. At the time of his Alford plea, Jones was canvassed as to his understanding of the elements of the crime of robbery in the first degree, the maximum and minimum penalties for that crime, and the evidence that the state would use against him. Jones acknowledged that his plea under the Alford doctrine was in response to the overwhelming evidence that the state had against him and, through his attorney, stated that he did not “admit any culpability whatsoever.”

We agree with the Appellate Court’s analysis of the role of the trial court in determining the inconsistency and admissibility of prior statements and its conclusion that the trial court properly concluded that the statements and posture assumed by the witness during his Alford plea were inconsistent with his trial testimony. We also agree that the transcript of Jones’s Alford plea was therefore admissible for the jury’s consideration as to the issue of the witness’s credibility.

The trial court did not transform the Alford plea itself into a denial or protestation of innocence nor did it find any statement in Jones’s Alford plea canvass, when examined in isolation, inconsistent with his trial testimony. In State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), we noted that in determining whether an inconsistency exists, the trial court must examine “the testimony of the witness as a whole, or the whole impression or effect of what has been said . . . .’’Id., 748 n.4, citing State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Inconsistency in effect, rather than express contradictions, is the test that the trial court applies to determine whether a witness’s prior statement should be admitted. State v. Whelan, supra. “A statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus, inconsistencies may be found in changes in position .... See 3 Weinstein, Evidence (1985) § 607 (6).” Id., 748-49 n.4.

As previously noted, at the time of his Alford plea, when his own interests were at stake, Jones was unwilling to admit or deny any responsibility for the robbery of McGee; he assumed a neutral position. His statement that he did not admit any culpability, although not necessarily a protestation of innocence, indicated his unwillingness to accept any responsibility for the crime. During the same plea proceeding, however, Jones was willing to plead guilty to two unrelated crimes and admitted his participation in those crimes.

At the defendant’s trial, when Jones’s interests were no longer at stake but those of his friend Simms were, he abandoned his neutral position and was willing to admit sole responsibility for the robbery of McGee. He further testified that his present testimony differed from that given at his Alford plea canvass.

We agree with the Appellate Court that the trial court, in reviewing the transcript and circumstances of Jones’s plea proceeding on May 6,1983, and the circumstances and subsequent testimony by Jones at the defendant’s trial, did not err in finding that Jones’s statements and posture during his Alford plea were inconsistent with his trial testimony. The defendant is therefore not entitled to a new trial in this case.

The defendant has argued that the efficient functioning of our criminal justice system will be jeopardized if this court affirms the decision of the Appellate Court because many defendants will not be willing to run the risk that the Alford plea itself will be used against them in a subsequent proceeding as an inconsistent statement. We are persuaded, however, that the integrity of the judicial system is preserved by our decision today. The inconsistency in this case derives not from the Alford plea itself but from the totality of the circumstances attending the plea. We will not permit the manipulation of the plea bargaining process so that an individual who has used the Alford plea to strike a bargain for himself may later change his position to benefit his cohort in crime.

The decision is affirmed.

In this opinion the other justices concurred.

       It is of no consequence that Jones’s statement that he did not admit culpability was made through his attorney, for “[t]he general rule is that relevant and material admissions of fact by an attorney are admissible against the client, if made incidental to the attorney’s general authority to represent the client in connection with and for the purpose of controlling the matter committed to the attorney.” Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 517, 391 A.2d 157 (1978).


author: Hull, J.

text:
    City of Hartford v. Connecticut State Board of Mediation and Arbitration et al.
    (13464)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.

      Argued December 15, 1988
    decision released April 25, 1989

      Stephen F. McEleney, for the appellant (defendant City of Hartford Professional Employees Association).

      H. Maria Cone, assistant corporation counsel, with whom, on the brief, was Eunice S. Groark, corporation counsel, for the appellee (plaintiff).
   Hull, J.

This case concerns the validity of the remedy portion of an arbitration award by the named defendant Connecticut state board of mediation and arbitration (board) in favor of the defendant City of Hartford Professional Employees Association (CHPEA) upon a finding by the board that the plaintiff city of Hartford violated its collective bargaining agreement with CHPEA. Pursuant to General Statutes § 52-418, the city filed an application in the Superior Court to vacate the arbitration award as to remedy only. The trial court granted the city’s application, holding that the remedy portion of the arbitration award was unenforceable as against public policy. CHPEA has appealed that judgment. We conclude that the remedy ordered by the board does not violate public policy and therefore set aside the judgment of the trial court and remand with direction to deny the application.

The relevant facts are not in dispute. Pursuant to a collective bargaining agreement with the city of Hartford, CHPEA is the exclusive bargaining agent representing all professional employees working for the city. In 1985, CHPEA filed a grievance on behalf of two of its members, Janet LePage and Fay Williams.* CHPEA alleged that the city had breached the rules contained in the collective bargaining agreement governing the promotion of CHPEA members when it promoted a “favored” employee to a position in the department of social services for which the grievants were passed over.

A full hearing was held before a three member arbitration panel of the board consisting of a representative each of management, labor and the public. The arbitrators framed the issue as follows: “Did the City of Hartford violate the Contract by the procedures it used in conducting the promotion and filling [of] the Senior Administrative Analyst position in the Site Services Workfare Unit of the Department of Social Services between November 15, 1984 and July 22, 1985? If so, what shall the remedy be?”

A full understanding of the arbitrators' decision on this matter requires that we first discuss briefly the procedures used by the city in selecting and promoting its employees. The selection and promotion of city employees is governed by the city’s personnel rules and regulations, which are promulgated by the director of personnel and the personnel board pursuant to powers granted them under the city charter. These rules are designed to carry out the provisions of the city charter that endorse a policy of “merit selection,” i.e., the selection and promotion of city employees upon the basis of merit rather than favoritism. This is accomplished primarily through the use of competitive examinations to fill vacancies in higher positions.

Typically, under the city’s personnel rules, qualified candidates vying for a promotion in a given department are required to take an examination that is designed to test the capacity and fitness of the candidates to discharge the duties of the position to be filled. The candidates are then ranked according to their test scores. Thereafter, the names of the three highest ranking candidates are submitted to the head of the department, who is granted the sole discretion to award the position to any of the three. This requirement that the names of the three highest ranking candidates for a position be submitted to the department head, the so-called “rule of three,” is expressly set forth in chapter XVI, § 2 (b), of the city charter and has been incorporated into rule VIII of the city’s personnel rules and regulations.

In their decision, the arbitrators made the following findings. In November, 1984, the city of Hartford through its department of personnel posted a “promotional opportunity” for four positions as senior administrative analysts in the site services workfare unit of the department of social services (department). Testing for the positions was open to all employees of the department who met certain eligibility requirements fixed by the director of personnel. On January 17,1985, the city held an examination for the positions. The candidates were ranked according to their test scores and from these rankings the city established an “eligibility list” comprised of twelve candidates. The grievants, LePage and Williams, were ranked fifth and sixth on the eligibility list, respectively. During March, 1985, the five highest ranking candidates on the list were interviewed for three of the four job openings. The candidates ranked first, second and fourth on the list were selected for three of the openings. Candidate Karen Bailey, ranked third, and grievant LePage, ranked fifth, were not selected.

In order to fill the one remaining analyst position the city conducted a second round of interviews on May 14, 1985. The city interviewed grievant Williams, ranked sixth, Sharon Hunter, ranked seventh, and another candidate ranked eighth on the list. LePage and Bailey, who both ranked higher on the list than the three candidates interviewed by the city, were inexplicably not interviewed for this last opening. As it turned out, however, no one was awarded the position as a result of this second round of interviews. Instead, on May 28, 1985, the city posted a second “promotional opportunity” for the remaining analyst position, which required a new round of competitive examinations. Unlike the first posting, however, which was open to all employees of the department, this second posting was restricted to employees of the department’s site services workfare unit only. Since they were not employees of the workfare unit, Bailey, LePage and Williams were effectively precluded under the terms of the second posting from testing again for the final analyst position. Only two departmental employees, Sharon Hunter and Bienvenida Fernandez, both of the workfare unit, were eligible under the terms of the second posting to test a second time for the remaining analyst position. Based on this second examination, Hunter was awarded the position, despite the fact that the grievants both ranked higher than Hunter on the original eligibility list.

As a result of LePage and Williams being denied an opportunity to test for the remaining analyst position, CHPEA filed a grievance on-their behalf claiming that the procedures used by the city in awarding the position violated the collective bargaining agreement between the parties. The dispute was subsequently submitted to arbitration.

In their decision, the arbitrators unanimously agreed that by limiting the second posting to workfare unit employees of the department only, the city had improperly denied the grievants an opportunity to test for the last available analyst position in violation of its personnel rules and regulations and the collective bargaining agreement. Having found a violation of the agreement, the arbitrators proceeded to fashion a remedy. The remedy agreed upon by the arbitrators ordered that LePage and Williams each be given an examination by the city and that the city award the analyst position “to the most qualified of the two candidates.”

Dissatisfied with the remedy ordered by the arbitrators, the city filed an application in the Superior Court to vacate the arbitration award as to remedy only. General Statutes § 52-418. The trial court granted the city’s application, holding that the remedy ordered by the arbitrators was unenforceable as against public policy since it did not adhere to the “rule of three” set forth in the city charter requiring that the names of the three highest ranking candidates be submitted to the department head for final selection. This appeal followed.

I

We first consider whether this appeal is properly before us. In its brief, CHPE A points out that the city’s application to vacate the arbitration award filed in the Superior Court was “devoid of an allegation of violation of public policy or a request to vacate on that basis.” Since the trial court’s decision to grant the city’s application rested exclusively on public policy grounds, CHPEA’S observation necessarily raises the question of whether it was within the trial court’s jurisdiction to base its decision on an issue not expressly raised in the pleadings. See, e.g., Doublewal Corporation v. Toffolon, 195 Conn. 384, 390-91, 488 A.2d 444 (1985) (judgment must ordinarily be restricted to issues reasonably within the scope of the pleadings).

Although the city did not expressly claim in its application that the award should be vacated on the ground that it violated public policy, the city did allege that the award should be vacated because “[t]he arbitrators have exceeded their powers” in violation of General Statutes § 52-418 (a) (4). We conclude that such an allegation is sufficient to include within it a claim relating to the invalidity of the arbitration award on public policy grounds. It was therefore within the trial court’s jurisdiction to render judgment in favor of the city on that basis. Accordingly, the present appeal is properly before us. See Practice Book § 4001.

II

The principal issue on this appeal is whether the remedy portion of the arbitration award so clearly violated public policy that it was properly vacated by the trial court as exceeding the arbitrators’ power under § 52-418 (a) (4). Before we undertake our analysis of this issue, it is useful to identify the principles that govern our review of private consensual arbitration. “This court has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes ‘intended to avoid the formalities, delay, expense and vexation of ordinary litigation.’ Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981) . 0 & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987). “We have recognized that when arbitration is consensual, rather than statutorily imposed, judicial review is limited in scope. ... If the parties mutually agree to submit their dispute to arbitration, the resulting award is not reviewable for errors of law or fact. . . . Judicial review of unrestricted submissions is limited to a comparison between the submission and the award to see whether, in accordance with the powers conferred upon the arbitrators, their award conforms to the submission.” (Citations omitted.) New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988).

The development of our case law in this area has, however, led to the recognition of two narrow exceptions to the broad authority ordinarily exercised by arbitrators in the arbitration process: “First, with respect to constitutional questions, although arbitrators may decide legal issues that have constitutional implications, they exceed their authority when they address the constitutional validity of a statute. . . . Second, with respect to matters of public policy generally, arbitrators exceed their authority if their award orders a party to engage in conduct that is patently illegal or in clear violation of public policy. . . . The party challenging an arbitration award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.” (Citations omitted.) Id., 416-17.

The city is claiming: that there is a strong public policy in this state favoring the selection and promotion of public employees based on merit; that it has expressly adopted a merit selection process for its employees, as evidenced by provisions in its charter; and that the “rule of three” is an indispensable component of that process. The conclusion that must logically follow, the city contends, is that the arbitrators’ failure to adhere to the rule of three in the remedy portion of the arbitration award is tantamount to a violation of the strong public policy of merit selection, thereby rendering the remedy unenforceable.

On the other hand, CHPEA claims that the implementation of the rule of three under the facts of this case would actually undermine, rather than advance, the merit selection process. Thus, CHPEA contends, the arbitrators’ failure to abide by the rule of three in fashioning the remedy portion of the arbitration award did not violate the claimed public policy of merit selection. We agree with CHPEA.

We find the case of United Paperworkers International Union v. Misco, Inc., 484 U.S. 29,108 S. Ct. 364, 98 L. Ed. 2d 286 (1987), to be particularly persuasive. In that case, a member of the plaintiff union, Isiah Cooper, was apprehended by police in the defendant company’s parking lot while in the back seat of someone else’s car with marijuana smoke in the air and a lighted marijuana cigarette in the front-seat ashtray. Id., 33. A police search of Cooper’s own car on the lot disclosed small traces of marijuana. Upon learning of the incident, the company discharged Cooper for violating its disciplinary rule prohibiting the possession or use of controlled substances on company property. Cooper filed a grievance which proceeded to arbitration on the stipulated issue of whether the company had just cause for discharging him under the company rules and, if not, the appropriate remedy. Id., 33-34. The arbitrator upheld the grievance and ordered that Cooper be reinstated to his job operating a slitter-rewinder machine, a machine the arbitrator classified as “hazardous.” Id., 32, 34. The arbitrator ruled that the marijuana cigarette incident was insufficient to prove that Cooper was using or possessed marijuana on company property in violation of company rules. Id., 34. The District Court, however, vacated the arbitration award and the Fifth Circiut Court of Appeals affirmed, on the ground that the reinstatement of Cooper would violate the public policy “ ‘against the operation of dangerous machinery by persons under the influence of drugs ....’” Id., 35. The United States Supreme Court reversed the Court of Appeals, stating that “[e]ven if the Court of Appeals’ formulation of public policy is to be accepted, no violation of that policy was clearly shown in this case. In pursuing its public policy inquiry, the Court of Appeals quite properly considered the established fact that traces of marijuana had been found in Cooper’s car. Yet the assumed connection between the marijuana gleanings found in Cooper’s car and Cooper’s actual use of drugs in the workplace is tenuous at best and provides an insufficient basis for holding that his reinstatement would actually violate the public policy identified by the Court of Appeals ‘against the operation of dangerous machinery by persons under the influence of drugs or alcohol.’. . . A refusal to enforce an award must rest on more than speculation or assumption.” Id., 44.

Similarly, in the present case, even if we were to accept the city’s claims that there is a strong public policy in favor of the selection of public employees based upon merit, that it has adopted such a merit selection process, and that the rule of three is a legitimate feature of that process, the city has nevertheless failed to demonstrate the required nexus between the failure of the arbitrators to abide by the rule of three and a violation of the claimed public policy of merit selection.

The rule of three grants a department head the discretion to award a promotional position to any one of the three most qualified candidates. The underlying rationale for the granting of such discretionary power is that the department head should have a limited say in deciding whom he must work with on a daily basis. Certainly, however, no one would dispute that this discretionary power is not validly exercised in the name of merit selection if, in awarding a position, the department head is predisposed to excluding certain candidates from the position based upon factors unrelated to performance capability and compatibility.

If the rule of three were implemented in this case, then in addition to the two grievants, the next highest candidate on the eligibility list would be submitted to the department head for selection of the final analyst position. In deciding whether the grievants would receive impartial treatment in this final selection process, we cannot overlook the fact that the parties have been involved in a bitter legal battle over this matter for more than three years. Despite the city’s assurances to the contrary, we agree with CHPE A that if the rule of three were put into effect in the present case, the grievants would run a significant risk of being passed over for the remaining analyst position in favor of the third candidate by a city predisposed to excluding them for personal reasons unrelated to their qualifications for the job. Thus, in our view, implementation of the rule of three under the circumstances of this case would actually lessen the likelihood that the promotional opportunity would be awarded based on merit. We conclude, therefore, that the refusal of the arbitrators to abide by the rule of three in the remedy portion of their award does not violate the claimed public policy of merit selection in this case.

There is error, the judgment of the trial court is set aside and the case is remanded with direction to render judgment denying the application to vacate the arbitration award.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-418. vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.
      “(e) Any party filing an application pursuant to subsection (a) of this section concerning an arbitration award issued by the state board of mediation and arbitration shall notify said board and the attorney general, in writing, of such filing within five days of the date of filing.”

       Article II of the collective bargaining agreement with the city provides that any grievance or dispute that may arise concerning the application, meaning or interpretation of the agreement, unless specifically excluded, shall be settled pursuant to the grievance procedure.

       The city’s personnel rules and regulations governing the selection and promotion of city employees are expressly incorporated into the collective bargaining agreement between the city and CHPEA.

       The “rule of three” as set forth in the city charter contemplates a single promotional opportunity. Where there is more than one opening available for a position, rule VIII of the city’s personnel rules and regulations requires that the director of personnel submit to the department head two names more than the number of existing vacancies.

       Because, at the time of the discharge, the company was not aware of, and thus did not rely upon, the fact that marijuana had been found in Cooper’s own car, the arbitrator refused to accept this fact into evidence. United PaperworkersInternational Unions. Misco, Inc., 484 U.S. 29, 34, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987).