source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    The Connecticut Association of Boards of Education, Inc., et al. v. Mark R. Shedd, Commissioner of Education, et al.
    (12455)
    (12473)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued May 9
    decision released October 22, 1985

      Ralph G. Elliot, for the appellants (named plaintiff et al.).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellees (named defendant et al.).

      William J. Dolan, with whom, on the brief, were Ronald Cordilico and Constance Augsburger, for the appellee (defendant Connecticut Education Association).

      JoelM. Ellis, with whom, on the brief, was William S. Zeman, for the appellees (defendant Connecticut State Council of AFSA Locals et al.).

      George C. Hastings, Timothy S. Hollister and Patricia A. Ayars filed a brief as amici curiae.

       The plaintiff board of education of the town of West Hartford joined in the briefs of the named plaintiff et al.

   Santaniello, J.

These consolidated appeals are from a judgment that upheld the constitutionality of Public Acts 1979, No. 79-405, “An Act Concerning Last Best Offer Binding Arbitration For Teacher Contract Disputes,” (the act). The original plaintiffs in this action were the town of West Hartford and its duly elected council members; the West Hartford board of education and its duly elected members; Leslie M. Gravlin and Kimberly Cheney, residents, electors and taxpayers of the town of West Hartford; John McGavack, Jr., a resident, elector and taxpayer of the town of Madison; and also the superintendent of schools of the town of Madison, the Manchester board of education and its duly elected members, the Trumbull board of education and its duly elected members, and the Connecticut Association of Boards of Education, Inc. (CABE). Subsequently, the town of Weston and the town of Montville intervened as parties plaintiff. The defendant commissioner of education, Mark R. Shedd, filed a motion to dismiss the action as to all the plaintiffs, alleging that the court lacked subject matter jurisdiction over the matter because the plaintiffs had failed to allege facts establishing that they had standing to seek an adjudication of the issues raised. The court, Flanagan, J., denied the motion to dismiss as to all parties except for Leslie M. Gavlin, Kimberly Cheney and John McGavack, Jr., with respect to whom the motion to dismiss was granted.

Public Acts 1979, No. 79-405, amended General Statutes § 10-153f, the subject matter of which is the mediation and arbitration of disagreements arising during the course of collective bargaining between local or regional boards of education and school administrators and teachers. The act established within the state department of education a fifteen person arbitration panel composed of members appointed by the governor with the advice and consent of the General Assembly. The act authorizes members of the arbitration panel, in groups of three, to hear all issues on which the parties to arbitration disagree, and to render a written decision on each issue, accepting the last best offer of one party or the other, as those last best offers have been submitted by the parties to the arbitrators. The act further provides that the decision of the arbitrators is final and binding upon the parties and is not subject to rejection by the legislative body of the local or regional school district or by referendum.

The original plaintiffs sought injunctive relief and a declaratory judgment to determine whether the act violated article first, §§ 2 and 8, article second, article third, § 1, or article tenth, § 1, of the Connecticut constitution, as well as § 1 of the fourteenth amendment to the United States constitution. They further sought relief by way of declaratory judgment to determine: (1) the impact of the Home Rule Act, chapter 99 of the General Statutes, on the act; (2) the effective date of the act in light of General Statutes § 2-32a; (3) the meaning of the phrase “legislative body of the local or regional school district”; and (4) whether the decision of the arbitrators would be subject to amendment or acceptance with conditions set by the legislative body of the school district.

The defendants filed appropriate answers and claimed by way of special defenses that: (1) the plaintiffs lacked standing to bring this action; (2) the complaint failed to set forth a justiciable controversy; (3) the plaintiffs should be left to seek redress by some other form of procedure; and (4) the plaintiffs failed to exhaust available administrative remedies.

Although these consolidated appeals raise the issue of the constitutionality of Public Acts 1979, No. 79-405, we find that the plaintiffs do not have standing to maintain this action. If no standing exists, this court lacks jurisdiction to decide the appeal on its merits. The individual plaintiffs Galvin, Cheney and McGavack, Jr., have not appealed from the order of the trial court dismissing them as plaintiffs in this action. It is, therefore, unnecessary to discuss their claims of standing. The remaining plaintiffs can be classified into two distinct groups, namely, (1) the towns and the West Hartford town council, and (2) the boards of education (including CABE). We shall discuss each group’s status separately.

I

We first consider whether the towns of West Hartford, Weston, Montville and the West Hartford town council have standing to maintain this action. The town of West Hartford and the West Hartford town council were original plaintiffs, whereas the towns of Weston and Montville were later allowed to intervene as parties plaintiff. The towns allege that they are municipal corporations of the state of Connecticut, having as their organic law a charter in accordance with the provisions of the Home Rule Act and article tenth of the Connecticut constitution. They claim that the act deprives the residents, electors and taxpayers of the town of their right to be governed by persons chosen by and responsible to them. They further assert that the act interferes with their constitutionally protected home rule rights and deprives the municipalities, their residents, electors and taxpayers of the right to establish and maintain their local fiscal authority. They allege that the act gives the arbitrators the power and authority to make fiscal decisions which have a profound effect on the local budgetary process in violation of the home rule provisions of the Connecticut constitution. The plaintiffs seek a declaratory judgment ruling the act unconstitutional. It is a basic principle of our law, however, that the plaintiffs must have standing in order for a court to have jurisdiction to render a declaratory judgment. Berlin v. Santaguida, 181 Conn. 421, 423, 435 A.2d 980 (1980); McGee v. Dunnigan, 138 Conn. 263, 267-68, 83 A.2d 491 (1951).

“The‘fundamental aspect of standing . . . [is that] it focuses on the party seeking to get his complaint before [the] court and not on the issues he wishes to have adjudicated.’ Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 20 L. Ed. 2d 947 [1968].” Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 485, 338 A.2d 497 (1973). “When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action has invaded.” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978).

With regard to the plaintiff municipalities, “[i]t has been recognized as a general rule that ‘[t]owns . . . are creatures of the state, and though they may question the interpretation, they cannot challenge the legality, of legislation enacted by their creator. New Haven v. New Haven Water Co., 132 Conn. 496, 513, 45 A.2d 83 [1946]; Sanger v. Bridgeport, 124 Conn. 183, 188, 198 A. 746 [1938].’ Waterford v. Connecticut State Board of Education, 148 Conn. 238, 245, 169 A.2d 891 [1961]; Windsor v. Windsor Police Department Employees’ Assn., Inc., 154 Conn. 530, 539, 227 A.2d 65 [1967]. An exception to this rule has been carved out to allow a municipality, adversely affected by a statute, which is properly in court on a nonconstitutional question to challenge the constitutionality of that statute. Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 425 A.2d 576 [1979]; Hillier v. East Hartford, 167 Conn. 100, 355 A.2d 1 [1974]; Tough v. Ives, 162 Conn. 274, 294 A.2d 67 [1972]; Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318 [1971].” Berlin v. Santaguida, supra, 424.

Thus, in order to ascertain whether the plaintiff municipalities have standing to assert their constitutional claims under the exception mentioned above, we must first determine whether the municipalities are “properly in court on a nonconstitutional question.” Exceptions to general rules are not created to permit circumvention of these rules, but rather to allow for special circumstances. The plaintiffs brought suit primarily to have Public Acts 1979, No. 79-405, declared unconstitutional. Had they limited their claims to this issue, there is little question that they would have no standing. Berlin v. Santaguida, supra. In addition to raising constitutional claims, however, the plaintiffs sought injunctive and declaratory relief on certain non-constitutional issues.

The nonconstitutional questions raised by the plaintiffs were as follows: (1) whether the Home Rule Act, or local charters adopted pursuant to it, may be inconsistent with, supersede or prevail over the act, or at least that portion of the act providing that the decision of the arbitrator is final and binding and not subject to rejection by the local governing body or referendum; (2) what was the effective date of the act, in light of General Statutes § 2-32a; (3) what is the definition of the phrase “legislative body of the local or regional school district”; (4) whether the decision of the arbitrators would be subject to amendment or acceptance with conditions by the legislative body of the school district; and (5) whether, and if so how, the act affects the right to reject, amend, accept with conditions, or otherwise alter the arbitrators’ decision of such local bodies or officers as the town board of education, the town board of finance, the superintendent of schools, or the town manager.

A thorough review of the pertinent statutory provisions sheds some light on these claims. General Statutes § 4-176 provides: “Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency issues an adverse ruling, the remedy for an aggrieved person shall be an action for declaratory judgment under section 4-175 . . . . ” (Emphasis added.)

In conjunction with § 4-176, one must then analyze § 4-175 which supplements § 4-176. General Statutes § 4-175 provides as follows: “The validity or applicability of a regulation or order of an agency may be determined in an action for declaratory judgment brought in the superior court for the judicial district of Hartford-New Britain, if the regulation or order, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may not be rendered unless the plaintiff has requested the agency to pass upon the validity or applicability of the regulation or order in question, pursuant to section 4-176, and the agency has either so acted or has declined to exercise its discretion thereunder.”

Reviewing these provisions, we conclude that, in the present case, the plaintiffs should have first addressed their nonconstitutional claims to the defendant commissioner of education. His agency has the authority to provide the relief sought by the plaintiffs. The relevant statutory provisions set forth an orderly procedure to obtain administrative rulings or interpretations as to any provision of a statute. Once a request has been made, the agency has the obligation to act promptly to issue an appropriate ruling. If the agency fails to act, the plaintiffs may then institute an action seeking declaratory relief. The last sentence of § 4-175 is clear and unequivocal: “A declaratory judgment may not be rendered unless the plaintiff has requested the agency to pass upon the validity or applicability of the regulation or order in question, pursuant to section 4-176, and the agency has either so acted or has declined to exercise its discretion thereunder.” (Emphasis added.)

Under these statutes the commissioner must have an opportunity to rule on the plaintiffs’ nonconstitutional questions. Only when the plaintiffs have requested the agency to pass on these questions will they then be at liberty to seek declaratory relief in accordance with § 4-175. Since the administrative remedy provided by statute is adequate and complete, and since the plaintiffs have not alleged that the available administrative remedy was either inadequate or incomplete, the trial court had no discretion to entertain the direct declaratory judgment action. England, v. Coventry, 183 Conn. 362, 365, 439 A.2d 372 (1981). A trial court cannot decide arbitrarily that a plaintiff was without adequate relief at the administrative level, and thus allow circumvention of statutory provisions. Had the plaintiff municipalities brought this declaratory judgment action solely on nonconstitutional issues, they would not be properly in court, having bypassed an adequate administrative remedy. It is well established that resort to the administrative process is generally a prerequisite to invoking the jurisdiction of a court. Sharkey v. Stamford, 196 Conn. 253, 255-57, 492 A.2d 171 (1985); Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977).

Since the plaintiff municipalities did not properly bring their nonconstitutional questions before the trial court, they lack standing to institute an action involving the constitutional issues as well. Thus, they have no standing to institute this action.

II

Our resolution of the standing issue, as it relates to CABE and the boards of education of West Hartford and Trumbull is similar to that reached with respect to the municipalities. The West Hartford and Trumbull boards of education were original plaintiffs in this action. They allege that they are compelled by the act to discharge their duties subject to the burden and adverse effects created by the act’s compulsory arbitration provisions. They claim that the arbitration process interferes with the discharge of their elective duties and with their normal fiscal and budget making process. They further allege that the act violates their constitutionally protected home rule rights and allows the arbitrators to have a substantial role in the local budgetary process. The Connecticut Association of Boards of Education, Inc. (CABE), a nonprofit Connecticut corporation consisting of members which comprise some 140 of Connecticut’s town and regional boards of education, claims that its members will be adversely affected by the act, and that all are potential or actual parties to the binding arbitration process mandated by the act. CABE alleges that the interests of its members are represented by them because of the enormous financial burden that would be imposed were each of them to seek separate plaintiff status in this action. Its claims are basically the same as those propounded by the boards of education of the towns of West Hartford and Trumbull.

Boards of education, like towns, have no standing to challenge the constitutionality of legislation enacted by their creator, though they may question the interpretation of such enactments. Waterford v. Connecticut State Board of Education, 148 Conn. 238, 245, 169 A.2d 891 (1961). Local boards of education act as agents of the state when they are fulfilling the statutory duties imposed upon them pursuant to article eight, § 1, of the Connecticut constitution. They may also act as agents of municipalities in their function of maintaining control over public schools located within the municipalities’ limits. Cheshire v. McKenney, 182 Conn. 253, 258-59, 438 A.2d 88 (1980). Although the local boards may at times have divided loyalties, “[i]t is an established principle that local charter powers must yield to the superior power of the state when the two enter a field of statewide concern.” Wallingford v. Board of Education, 152 Conn. 568, 574, 210 A.2d 446 (1965).

The trial court found, on the basis of its interpretation of Board of Education v. Allen, 392 U.S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060 (1968), that the boards of education had standing. In the Allen case, the plaintiffs, members of a local board of education, brought suit requesting declaratory and injunctive relief against the enforcement of a New York statute that required local public school authorities to lend textbooks free of charge to all students in grades seven through twelve at both private and parochial schools. The trial court held that the statute violated the establishment and free exercise of religion clauses of the first amendment to the federal constitution. Board of Education v. Allen, 51 Misc. 2d 297, 273 N.Y.S.2d 239 (1966). The Appellate Division reversed, ordering the complaint dismissed on the ground that the plaintiffs lacked standing to attack the validity of the statute. Board of Education v. Allen, 27 App. Div. 2d 69, 276 N.Y.S.2d 234 (1966). The New York Court of Appeals reversed the Appellate Division and upheld the trial court’s ruling that the plaintiffs had standing to maintain the action, but also held that the statute was constitutional. Board of Education v. Allen, 20 N.Y.2d 109, 228 N.E.2d 791, 281 N.Y.S.2d 799 (1967).

In the Allen case, the issue of standing was not raised in the United States Supreme Court. The New York Court of Appeals had ruled that the plaintiffs had standing to sue under New York state law. In deciding the standing issue, the Court of Appeals pointed out that if the plaintiffs disobeyed the state statute, the commissioner could remove them from office and withhold public moneys from any disobedient school district. In addition, the Court of Appeals stated that, in New York, the right of a board of education to sue the commissioner had frequently been upheld in actions challenging the constitutionality of New York state statutes. Id., 118.

In the case before us, there is no claim or proof that any member of any board of education would risk expulsion from office prior to the expiration of his or her term of office, nor is there any arguable claim that compliance with the act would require the performance of an act specifically forbidden by the federal constitution. Thus, these plaintiffs were not faced with the same risk of personal damage as the Allen plaintiffs.

In 1976, some eight years subsequent to the Allen decision, United States District Judge Blumenfeld in Athanson v. Grasso, 411 F. Sup. 1153, 1157 (D. Conn. 1976), rejected a claim of standing asserted by Hartford council members. In the Athanson case, Judge Blumenfeld stated that Allen does not stand for the broad proposition that public officials have standing to challenge the constitutionality of laws with which they do not agree. He specifically distinguished the two cases citing the risk of expulsion from office in the Allen case which did not exist in the Athanson case. We agree with his interpretation oí Allen. The plaintiff boards of education have not proved any risk of individual harm and thus the Allen case does not apply.

CABE has not alleged any injury to itself nor has it sufficiently alleged that its members have any “legally protected interest that the defendant’s action has invaded. ’ ’ Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978). Inasmuch as we have determined that its members have no standing to sue under the existing circumstances, CABE can have no standing greater than the entities which it claims to represent. “[N]o matter how zealous the plaintiff may be in its desire to assist its members, it cannot represent them to enforce their rights, unless it has a right, in itself, in the subject of the controversy which a decree will effect. 67 C.J.S. 921, Parties, § 13 (b); see Darien v. Stamford, 135 Conn. 71, 78, 60 A.2d 764 [1948].” Connecticut Society of Architects, Inc. v. Bank Building & Equipment Corporation, 151 Conn. 68, 74, 193 A.2d 493 (1963).

There is error and the judgment is set aside because of the lack of standing of the parties; the case is remanded to the trial court with direction to dismiss the action.

In this opinion the other judges concurred.

       We emphasize that the question of standing is not an inquiry into the merits. A plaintiff may have standing and nevertheless lose his suit. Standing requires no more than a colorable claim of injury; a plaintiff ordinarily establishes his standing by allegations of injury. Similarly, standing exists so that a party may attempt to vindicate “arguably” protected interests. Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971); see also Data Processing Service v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970).

       “It is also significant to note that in the cases establishing the exception to the municipality standing rule, the municipalities were in court as defendants whereas in the present case they are the plaintiffs.” Berlin v. Santaguida, 181 Conn. 421, 425, 435 A.2d 980 (1980).


author: Peters, C. J.

text:
    Christopher Shays v. Local Grievance Committee et al.
    (12712)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued October 3
    decision released November 5, 1985

      Clarine N. Riddle, counsel to the attorney general, with whom were Arnold B. Feigin and Richard F. Kehoe, assistant attorneys general, and, on the brief, Joseph I. Lieberman, attorney general, for the plaintiff.

      Ira B. Grudberg, with whom was Alice S. Miskimin, for the defendant.
   Peters, C. J.

While this opinion is handed down under the name of the chief justice, it is the result of collaboration on the part of all the members of the court to an unusual degree. See State v. Avcollie, 174 Conn. 100, 101, 384 A.2d 315 (1977); State v. Hayes, 127 Conn. 543, 549, 18 A.2d 895 (1941). The underlying issue in this case is whether article third, § 15, of the Connecticut constitution precludes a court from imprisoning a legislator for contempt while the legislature is in session. Before that question can be reached, however, we must decide whether the present proceedings have become moot.

The writ of error brought to this court by the plaintiff, Christopher Shays, arose out of grievance proceedings that were being conducted on March 4, 1985, before the Superior Court, N. O’Neill, J., in the case of Grievance Committee Hartford-New Britain Judicial District v. Alexander A. Goldfarb, Docket No. CV-84-0295671S. The plaintiff had previously filed a complaint with the grievance committee concerning certain alleged actions by Alexander Goldfarb and sought an opportunity to make a statement on the witness stand concerning alleged dereliction of duty on the part of the grievance committee in that committee’s pursuit of his complaint. Counsel for Goldfarb objected to the plaintiff’s request to make such a statement, and the trial court, N. O’Neill, J., sustained the objection despite an earlier indication by the court, Stoughton, J., to the plaintiff that a statement would be permitted. When the plaintiff persisted in his effort to make a statement in the face of Judge O’Neill’s adverse ruling and then refused to obey the trial court’s direct order to step down from the witness stand, he was held in contempt of court. Acting pursuant to General Statutes § 51-33, Judge O’Neill sentenced the plaintiff to ten days imprisonment. After the plaintiff had commenced the service of his sentence, he asked the trial court, Stoughton, J., on March 12, 1985, to issue the presently pending writ of error, alleging that his sentence for contempt violated article third, § 15, of the Connecticut constitution. Upon the issuance of the writ by Judge Stoughton and pending its resolution, the plaintiff was immediately released. At all times relevant to the contempt proceedings the plaintiff was a state representative from Stamford, and the General Assembly was then in session. When the legislative session had been adjourned, the plaintiff himself on June 10,1985, filed with the trial court, Stoughton, J., a motion to vacate his release. Upon the granting of this motion, the plaintiff served the remaining portion of the contempt sentence that had been imposed in March by Judge O’Neill.

The plaintiff’s writ of error raises, as its major issue, the question of the proper construction of that portion of the Connecticut constitution which provides: “The senators and representatives shall, in all cases of civil process, be privileged from arrest, during any session of the general assembly, and for four days before the commencement and after the termination of any session thereof.” Conn. Const., art. Ill § 15. The crucial question of construction in this case is a determination of what scope is afforded by the constitution to a legislative privilege limited to “cases of civil process.” In particular, we are asked to decide whether the legislative privilege was applicable to the plaintiffs imprisonment upon his contumacious refusal to obey Judge O’Neill’s order to leave the witness stand. The plaintiff has advanced three theories in support of his argument that his is a case of “civil process” within article third, § 15: (1) the sanction imposed was for civil rather than for criminal contempt; (2) even if the sanction was for criminal contempt, because the underlying case was a civil action, the contempt for constitutional purposes is a civil case; or (3) even if the sanction was for criminal contempt, criminal contempt is not a violation of the criminal laws, and the contempt for constitutional purposes is therefore a civil case.

The defendant’s answer to the writ of error disputes the plaintiff’s characterization of his contempt citation and the plaintiff’s construction of article third, § 15. In addition, the defendant raises two further issues relevant to the proper disposition of this case. Reminding us that the plaintiff never invoked the legislative privilege in the proceedings before Judge O’Neill, the defendant urges us to find that the privilege was effectively waived. Notably, once the plaintiff determined that he would rely upon the privilege, and so informed the trial court by his writ of error, he immediately received the deferment from imprisonment to which he claims to have been constitutionally entitled. Furthermore, recalling that the plaintiff completed the service of his sentence upon the termination of the legislative session, the defendant urges us to conclude that there is no further relief that we can afford to this plaintiff and that his case has therefore become moot.

In our pursuit of these various inquiries, it is important to be clear about the narrowness of the present proceedings, both as a matter of law generally and as a matter of the particular pleadings presently before us. As a matter of law generally, review pursuant to a writ of error is limited to matters appearing as of record. Naunchek v. Naunchek, 191 Conn. 110, 113, 463 A.2d 603 (1983); McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d 1072 (1983); State v. Assuntino, 180 Conn. 345, 347, 429 A.2d 900 (1980). With respect to the present pleadings, the plaintiff has in his brief limited his claim of impropriety to his alleged legislative privilege, having expressly abandoned the alternate claim of lack of due process raised initially in his writ of error. Moreover, in oral argument before this court, counsel for the plaintiff expressly acknowledged that the plaintiffs conduct constituted contempt and that the trial court was authorized to impose a sanction upon the plaintiff for his contumacious conduct. The only reason this case is here, in light of these concessions, is the plaintiffs argument that, as a matter of timing, Judge O’Neill’s imposition of sanctions violated the plaintiff’s legislative privilege under the Connecticut constitution. Judge O’Neill, it is claimed, might constitutionally have sentenced the plaintiff to ten days imprisonment to commence five days after the conclusion of the 1985 session of the General Assembly, but he was constitutionally precluded from implementing a sanction of imprisonment until that time.

It is also important to note the factual posture within which these limited questions of law are presented to us. The plaintiff has served in its entirety the sentence whose legality he disputes. Indeed, he undoubtedly elected to complete in June the service of his sentence because, even were his interpretation of article third, § 15, to be correct, his legislative privilege to defer his sentence would have expired upon the termination of the legislative session. If this court were to rule in the plaintiffs favor, there is no way in which we could restore to the plaintiff any of the time that he has spent incarcerated. We have been able to discern no practical relief that we could afford to the plaintiff, and the plaintiff has himself conceded that he will not be directly affected by any ruling that we may make on his claim of legislative privilege.

On this state of the record, before proceeding to the merits of the scope of the plaintiffs legislative privilege, we must first determine whether we lack jurisdiction to hear this case on the ground of mootness. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); McCallum v. Inland Wetlands Commission, 196 Conn. 218, 225, 492 A.2d 508 (1985); Accurate Forging Corporations. UAW Local No. 1017, 189 Conn. 24, 26, 453 A.2d 769 (1983); State Farm Life & Accident Assurance Co. v. Jackson, 188 Conn. 152, 156, 448 A.2d 832 (1982); CEUI v. CSEA, 183 Conn. 235, 246, 439 A.2d 321 (1981). “In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law; Reply of the Judges, 33 Conn. 586 [1867]; and where the question presented is purely academic, we must refuse to entertain the appeal. Young v. Tynan, 148 Conn. 456, 459, 172 A.2d 190 [1961].” Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979).

The plaintiff urges us to exercise appellate jurisdiction, despite the fact that we can provide him no practical relief, because of the public importance of the question that he presents to us for resolution. He relies on Delevieleuse v. Manson, 184 Conn. 434, 439 A.2d 1055 (1981), in which we reviewed the merits of a claim concerning jail time credit for a plaintiff who had served his entire sentence. Although that case had not been brought as a class action, the parties had stipulated that its outcome would affect approximately 200 inmates. In those circumstances, we based our decision to hear the appeal on the applicability of the principle that, where the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, it may be “capable of repetition, yet evading review.” See Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975). We held that in determining whether to rely on this mitigating principle we would consider a number of relevant factors. Among the factors we have identified are: (1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state’s penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future. Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 253 n.5, 440 A.2d 310 (1982); Delevieleuse v. Manson, supra, 437.

This court has never asserted jurisdiction over a case that would otherwise be moot simply on the ground of the public importance of the question presented. Apart from the numerous cases in which appeals raising serious questions about labor injunctions have been declared moot; Accurate Forging Corporation v. UAW Local No. 1017, supra; CSEA v. AFSCME, 188 Conn. 196, 448 A.2d 1341 (1982); Waterbury Hospital v. Connecticut Health Care Associates, supra; Connecticut Foundry Co. v. International Ladies Garment Workers Union, supra; we have held unreviewable questions of importance involving the authority of numerous instrumentalities of government, including the Connecticut Resources Recovery Authority; DeFonce Construction Corporation v. Connecticut Resources Recovery Authority, 177 Conn. 472, 474-75, 418 A.2d 906 (1979); the insurance commissioner; State Farm Life & Accident Assurance Co. v. Jackson, supra, 152-60; and the juvenile court. Maloney v. State, 179 Conn. 309, 310, 426 A.2d 288 (1979). In each instance, we have expressly concluded that we lacked jurisdiction when the principle of “capable of repetition, yet evading review” was inapplicable.

Whether this case is moot therefore turns not only on the importance of the constitutional issue that the plaintiff has raised but also on a determination that his case satisfies the overall test of “capable of repetition, yet evading review.” Although the applicability of the legislative privilege to contempt proceedings may be difficult to litigate before expiration of the privilege, this case does not satisfy the second or the third criterion identified in Delevieleuse v. Manson, supra. It goes without saying that there has been neither allegation nor showing that contempt proceedings against legislators are part of an ongoing penal or civil program. To the best of our knowledge, no court in this state has ever previously held a legislator in contempt of court. It is therefore highly improbable that this plaintiff will again be subject to the sanction of imprisonment for contempt of court during a legislative session. In short, this record demonstrates an isolated incident not likely to be repeated in the foreseeable future. In such circumstances, when this court can afford the plaintiff no practical relief, his case is moot.

The writ of error is dismissed as moot.

In this opinion the other judges concurred.

       The plaintiff named the following as defendants in the writ of error: the local grievance committee of the Hartford-New Britain judicial district, Alexander A. Goldfarb and the Honorable Norris L. O’Neill. The substantive allegations of the writ relate solely to that aspect of the litigation between the local grievance committee and Alexander A. Goldfarb in which the plaintiff was found in contempt.

       At that time, Judge Stoughton was the administrative judge for the judicial district of Hartford-New Britain.

       “[General Statutes] Sec. 51-33. punishment for contempt of court. Any court may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner; but no court may impose a greater fine than one hundred dollars or a longer term of imprisonment than six months or both.” See Naunchek v. Naunchek, 191 Conn. 110, 115, 463 A.2d 603 (1983); Moore v. State, 186 Conn. 256, 261, 440 A.2d 969 (1982).

       The plaintiff at oral argument expressly disavowed any claim that his writ of error might not be moot because of possible adverse legal consequences that might result from his contempt conviction. Where collateral legal disabilities are imposed as a matter of law because of a criminal conviction, it is well established that a case will not be declared moot, even where the sentence has been fully served. See Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); Sibron v. New York, 392 U.S. 40, 53-57, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974). Because contempt proceedings are not themselves criminal cases; Naunchek v. Naunchek, 191 Conn. 110, 115 n.5, 463 A.2d 603 (1983); State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960); we assume, without deciding the matter, that no such collateral consequences attend a conviction for contempt.


author: Peters, C. J. Shea, J.,

text:
    State of Connecticut v. John Sinclair
    (12035)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued October 1
    decision released November 12, 1985

      JoetteKatz, public defender, with whom, on the brief, were Joseph G. Bruckmann, assistant public defender, and Robert Johnson, for the appellant (defendant).

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

The dispositive issue on this appeal is whether the trial judge erred in failing to instruct the jury, as General Statutes § 54-84 (b) requires, that the jury may draw no unfavorable inferences from the defendant’s failure to testify in his own behalf. After a trial to a jury, the defendant, John Sinclair, was convicted of burglary in the second degree, in violation of General Statutes § 53a-102, and was sentenced to imprisonment for eight years.

In his appeal from this conviction, the defendant raises four claims of error: (1) that the evidence presented was insufficient to support the verdict; (2) that evidence of his prior misconduct was erroneously admitted; (3) that the instructions to the jury inadequately informed the jury about intent as an essential element of the crime charged; and (4) that the instructions to the jury failed to include the statutory warning against drawing unfavorable inferences from the defendant’s failure to testify. We find error only on the last of these claims.

I

The defendant’s first claim of error is that the evidence at trial was insufficient to support the jury verdict. Appellate analysis of such a claim requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. State v. Braxton, supra; State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, supra; State v. Cimino, supra, 211.

In this case, the jury could reasonably have found the following facts. During the evening of April 19, 1982, two Yale University students reported to police that they had noticed an unknown man trying doors in a suspicious manner inside a student residence hall. Within minutes, a Yale police officer investigating their complaints entered a student suite in the residence hall and found the defendant hiding in a closet in the rear bedroom. The students who resided in that suite had not given him permission to be there. Upon being discovered, the defendant knocked down the police officer who had found him, ran out into the courtyard, and attempted to escape over the fence. When the defendant was subsequently apprehended, he resisted violently, requiring three police officers to subdue him.

In light of this evidence, the defendant concedes that there was sufficient proof of the illegality of his presence in the Yale residence hall. He maintains, however, that the evidence was insufficient to establish that, while there, he intended to commit a crime. Such an intent, as he argues, is what distinguishes the crime of burglary in the second degree, with which he was charged, from the lesser crime of criminal trespass. This issue was properly raised in the trial court by timely motions for acquittal. We agree with the trial court’s denial of these motions.

Review of the evidence in this case reveals that the jury could reasonably have found that the defendant had the intent requisite to a finding of guilty of burglary in the second degree. His unlawful and surreptitious presence in the student suite and closet, his flight and his struggle with the police upon his apprehension are all indicative of criminal purpose. The jury was entitled to apply its own knowledge and experience of human nature to this evidence; State v. Little, 194 Conn. 665, 674, 485 A.2d 913 (1984); and to infer therefrom that the defendant was not merely trespassing. State v. Zayas, 195 Conn. 611, 617, 490 A.2d 68 (1985); State v. Smith, 194 Conn. 213, 217-20, 479 A.2d 814 (1984). That the jury might have drawn other possible inferences from these facts is not sufficient to undermine its verdict, since proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt. State v. Morrill, 193 Conn. 602, 610-11, 478 A.2d 994 (1984). This claim of error is therefore unpersuasive.

II

The defendant in his second claim of error maintains that he is entitled to a new trial because of the trial court’s erroneous ruling permitting a police officer to testify about the defendant’s previous arrests. The defendant now characterizes this evidence as inadmissible because it was evidence of prior misconduct whose strong prejudicial impact far outweighed its minimal probative value. At trial, however, the defendant objected to this evidence solely on the ground of relevance.

Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. Practice Book §§ 3063, 288; State v. Rothenberg, 195 Conn. 253, 262, 487 A.2d 545 (1985); State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). The reason for this rule is clear: it is to alert the trial court to an error while there is time to correct it; State v. Rothenberg, supra, 263; State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984); and to give the opposing party an opportunity to argue against the objection at trial. To permit a party to raise a different ground on appeal than was raised during trial would amount to “trial by ambuscade,” unfair both to the trial court and to the opposing party. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982); State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95 (1960).

The defendant acknowledges that the erroneous admission of prior misconduct evidence, even if established, does not rise to the level of a constitutional violation depriving him of a fair trial. Consequently, this claim does not fall under the narrow “exceptional circumstances” exception articulated in State v. Evans, 165 Conn. 61, 69-71, 327 A.2d 576 (1973). Since the claim of error raised in this appeal is not the same claim raised in the trial court, we, therefore, decline to consider it.

Ill

The defendant’s third claim is that the trial court’s instruction on the elements of the crime was erroneous because it did not include the statutory definition of intent. The defendant took no exception to this portion of the charge at trial. Ordinarily such a failure would render the claim unreviewable on appeal. Practice Book § 854. However, because the failure adequately to instruct the jury on each essential element of the crime charged, including intent, might result in a due process violation implicating the fairness of his trial, we will consider this issue. State v. Zayas, supra, 616; State v. Smith, supra, 217; State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).

The extent of our review of a constitutional issue raised for the first time on appeal is limited. We must determine whether, “considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.” State v. Zayas, supra, 617.

Reviewing the charge in its entirety, we conclude that the jury was adequately instructed on the element of intent. The trial court read General Statutes § 53a-102, which defines burglary in the second degree, in its entirety. The court carefully instructed the jury that a conviction on this charge required the jury to be convinced beyond a reasonable doubt that not only had the defendant entered the building unlawfully, but also that he had done so with intent to commit a crime therein. Although the trial court did not recite the statutory definition of intent, it did equate intent with criminal purpose.

Jury instructions are calculated to give the jurors a clear understanding of the elements of the crime charged, and to afford them proper guidance for their determination of whether those elements were present. State v. Smith, supra, 219-20. As long as the charge as given achieves these goals, it is constitutionally adequate. In the present case, the trial court’s failure specifically to define intent, at least in the absence of a request or exception by the defendant, was not reversible error because it is not reasonably possible that the jury was misled as to its meaning. The word intent was used in its ordinary sense, in a manner which clearly conveyed what had to be proved by the state to justify a conviction. “[Wjhen a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error.” State v. Kurvin, supra, 562. Considering the charge as a whole, we conclude that the jury was adequately instructed as to each essential element of the crime.

IV

The defendant’s final claim of error is that his conviction must be set aside because the trial court, in violation of General Statutes § 54-84 (b), failed to instruct the jury that it could draw no unfavorable inferences from the defendant’s failure to testify on his own behalf at his trial. The defendant neither requested such a charge nor took exception to the trial court’s failure to include it. The statute itself, however, expressly requires that the charge be given “[ujnless the accused requests otherwise.”

Our analysis of this claim of error must proceed in three stages. Is the defendant entitled to raise this claim when he did not raise it at trial? If this claim is properly here, was the instruction given by the trial court erroneous? If the instruction was in error, was the error harmless?

This court has had a number of opportunities to review the failure of a trial court to incorporate the requirements of § 54-84 (b) into its instructions to the jury. In none of these cases had the defendant taken an exception at trial. In each of them we chose to review the claim on its merits. Practice Book § 3063; State v. Tatem, 194 Conn. 594, 595, 483 A.2d 1087 (1984); State v. Carrione, 188 Conn. 681, 685 n.3, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983); State v. Boulware, 183 Conn. 444, 446, 441 A.2d 1 (1981); State v. Carter, 182 Conn. 580, 581, 438 A.2d 778 (1980); State v. Burke, 182 Conn. 330, 331, 438 A.2d 93 (1980). In these cases, we explained that noncompliance with § 54-84 (b) is plain error because the statute serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial. That right has its origin in the privilege against self-incrimination under both the federal and the state constitutions. Without proper instructions, as the United States Supreme Court and this court have each independently recognized, a jury may prejudge a defendant because he failed to take the stand and protest his innocence in the face of a criminal accusation. Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981); State v. Tatem, supra, 599; State v. Cohane, 193 Conn. 474, 482-83, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). A trial court’s failure to limit juror speculation on the meaning of a defendant’s silence “ ‘exacts an impermissible toll on the full and free exercise of the privilege [against self-incrimination].’ Carter v. Kentucky, supra, 305. That rationale is fully appropriate to the application of the mandate of § 54-84 (b) . . . .” State v. Tatem, supra. This claim of error is properly here.

Examination of the trial court’s charge in this case demonstrates its error. The court in no way discharged its constitutional obligation to minimize the danger that the jury might improperly give evidentiary weight to the defendant’s failure to testify. The court’s charge to the jury made no reference whatsoever to the instruction mandated by § 54-84 (b). We have regularly characterized as error any but the most minor departure from the language that § 54-84 (b) requires. Compare State v. Tatem, supra, and State v. Carrione, supra, with State v. Boulware, supra. A fortiori, failure to instruct at all under § 54-84 (b) was error. State v. Carter, supra; State v. Burke, supra.

The state maintains, however, that, despite this error of constitutional dimension, we need not set aside the defendant’s conviction because the error in the charge to the jury was harmless. The applicable test requires the state to prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled. State v. Tatem, supra, 599; State v. Carrione, supra, 685. The state offers two arguments in this regard: the allegedly overwhelming nature of the evidence against the defendant and the defendant’s purported desire during the trial not to call attention to his decision not to testify. We are not persuaded.

In our analysis of harmless error, we must first consider whether total noncompliance with § 54-84 (b) can ever be harmless. A test that looks to the curative power of the charge as a whole more readily saves an imperfect rendering of the statutory mandate than its total omission. The state reminds us, however, that, in cases arising before the effective date of the statute, where we found constitutional error in a trial court’s total failure to comply with a defendant’s express request to give a “no adverse inference” instruction, we have inquired into the possible harmlessness of the error. State v. Cohane, supra, 485; State v. Dudla, 190 Conn. 1, 6, 458 A.2d 682 (1983); see Carter v. Kentucky, supra, 304. We did not, however, undertake such an inquiry when we held that total noncompliance with § 54-84 (b) constituted plain error. State v. Carter, supra; State v. Burke, supra.

There is much to be said in favor of a rule that violation of the mandate of § 54-84 (b) automatically requires a new trial. In the context of constitutional error arising out of failure to give a “no adverse inference” instruction, we expressly reserved the question whether noncompliance with so central an aspect of the privilege against self-incrimination could ever be considered harmless error. State v. Cohane, supra, 484; see Carter v. Kentucky, supra, 304. Indubitably, the legislature has the power to implement constitutional rights in a manner that is more stringent than the constitution itself provides. In enacting § 54-84 (b), the legislature has done so. While the constitutional right to a “no adverse inference” charge depends upon the defendant’s request of such a charge, the statutory right is conferred upon the defendant unconditionally, in the absence of his request that the charge not be given. It would be entirely reasonable to conclude that the principle of harmless error may be inconsistent with the unconditional language of the statute that the legislature has enacted for the protection of the right not to testify.

We need not, however, resolve this question today because our review of the record in this case persuades us that the state has not proven beyond a reasonable doubt that the trial court’s failure to instruct in accordance with § 54-84 (b) was harmless. Although the evidence presented at trial was, as we have held, sufficient to justify the defendant’s conviction, the evidence of the defendant’s intent to commit a crime in the student residence hall was not overwhelming. On this essential element of the crime of burglary in the second degree, the jury might well have buttressed the state’s circumstantial evidence with an unfavorable inference improperly drawn from the defendant’s failure to explain his conduct. Furthermore, the record does not demonstrate that the defendant expressly or impliedly requested the court not to give the § 54-84 (b) instruction. Finally, the state cannot rely on the defendant’s alleged desire, during the trial, not to call the jury’s attention to his decision to remain silent. The statute imposes upon the court and not upon defense counsel the obligation to inform the jury that a defendant has a constitutional right not to testify.

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

In this opinion Healey, Dannehy and Santaniello, Js., concurred.

Shea, J.,

concurring. I write separately to express my reservations concerning one wholly superfluous sentence in the majority opinion: “It would be entirely reasonable to conclude that the principle of harmless error may be inconsistent with the unconditional language of the statute that the legislature has enacted for the protection of the right not to testify.” That sentence, though equivocal, is likely to be construed as an intimation that this court will not apply the harmless error principle to an inadvertent failure of the trial court, inculpating also counsel for the state and for the defendant who neglect to call attention to the matter, to give the “no adverse inference” instruction mandated by General Statutes § 54-84 (b). As the opinion recognizes, we have no need to adopt that position at this time because the evidence of intent was not so overwhelming as to render the error harmless. We reserved this issue in State v. Cohane, 193 Conn. 474, 484, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984), under similar circumstances when it was not necessary to decide it. This case presents no more appropriate an occasion to resolve the issue.

Because the majority opinion so broadly hints that this court would eschew harmless error and adopt a rule of automatic reversal for failure to follow the mandate of § 54-84 (b), I must express my great reluctance to fashion another automatic reversal rule that would impose on the judicial system of this state the burden of a new trial no matter how overwhelming the evidence of guilt may be. Accordingly, I do not join in the sentence of the opinion in question.

       “[General Statutes] Sec. 54-84. testimony or silence of accused. . . . (b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       “[General Statutes] Sec. 53a-102. burglary in the second degree: CLASS C FELONY, (a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       In oral argument before this court, counsel for the defendant conceded that the state had presented evidence sufficient to establish criminal trespass by the defendant. In closing arguments before the jury at trial, defense counsel conceded that there was “evidence of a man in a place where he doesn’t belong.”

       The testimony at issue:
      “State: Did you recognize the defendant?
      “Police Officer: Yes.
      “State: Do you know him well?
      “Police Officer: Well, I have assisted my brother officers in arrests. I also worked in the detective bureau and we deal with photos of known subjects frequently.”

       Later in the trial, the defendant, briefly acting pro se, moved for a mistrial on the ground that the admission of this testimony was prejudicial to him. The denial of this motion has not been raised on appeal, and so we do not consider it.

       “[Practice Book] Sec. 3063. The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”
      “[Practice Book] Sec. 288. Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”

       In his reply brief, the defendant purports to make a relevancy claim. However, this is done in the context of his overall prior misconduct evidence claim which was not raised below. The dispositive factor in determining what we will consider on appeal is not the label placed on a claim in a brief, but rather the precise legal ground which was placed before the trial court. In this case, the trial judge was never asked to consider the disputed testimony under the standards for prior misconduct evidence. He was asked to rule, and did, solely on the basis of relevance. Consequently, we now decline to consider a prior misconduct evidence claim, regardless of how it is labeled.

       “[General Statutes] Sec. 53a-3. definitions. . . . (11) A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.”

       “[Practice Book] Sec. 854. The judicial authority shall deliver the instructions to the jury after the closing arguments. Immediately after the conclusion of the charge to the jury, counsel taking exception shall, out of the presence of the jury, state distinctly the matter objected to and the ground of the exception. The appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.”

       “The fifth amendment to the United States constitution provides that no person ‘shall be compelled in any criminal case to be a witness against himself.’ That provision acts as a restraint upon the individual states as well as the federal government under the fourteenth amendment to the United States constitution. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1963). Article first, § 8, of the Connecticut constitution affords criminal defendants a similar protection in language at least as broad as its federal counterpart. That section, which sets forth the rights of accused persons in criminal prosecutions, provides that ‘[n]o person shall be compelled to give evidence against himself. . . .’” State v. Cohane, 193 Conn. 474, 482, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).

       In cases where a no unfavorable inferences charge was given, but in language deviating slightly from the precise wording of the statute, we have examined the entire charge to see if the words as given were sufficient to satisfy the statute. State v. Dolphin, 195 Conn. 444, 488 A.2d 812 (1985) (added a phrase); State v. Marra, 195 Conn. 421, 489 A.2d 350 (1985) (omitted the word “unfavorable”); State v. Tatem, 194 Conn. 594, 483 A.2d 1087 (1984) (substituted “unreasonable” for “unfavorable”); State v. Carrione, 188 Conn. 681, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983) (substituted “impressions” for “inference”); State v. Boulware, 183 Conn. 444, 441 A.2d 1 (1981) (inserted word “merely”).

       In both cases, we held that the error was not harmless.

       Public Acts 1977, No. 77-360, which became General Statutes § 54-84 (b), was proposed in response to our holding in State v. Branham, 171 Conn. 12, 368 A.2d 63 (1976). In that case, we held that the constitution did not require a no adverse inferences instruction. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1977 Sess., p. 1251, testimony by Gerald (sic) Barnett.

       The state has suggested, both in its brief and during oral argument before this court, that the defendant may have made such a request “off the record.” In fact, it describes this as the “most likely” course of events. We can only reply that, even if that is so, it makes no difference to the outcome of this appeal. It is beyond dispute that this court can consider only those matters contained in the record before us. Practice Book § 3060D; Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 465, 378 A.2d 547 (1977). Any other rule would invite this court to engage in speculation. This we decline to do.

       The state cites defense counsel’s failure either to request the charge or take exception to the charge as given, his failure to refer to the defendant’s decision not to testify either during the voir dire or in closing argument, and defense counsel’s familiarity with General Statutes § 54-84 (b) as indications that he did not want this issue brought to the attention of the jury.

       See 20 S. Proc., Pt. 5, 1977 Sess., pp. 2068-69, remarks of Senator Salvatore C. DePiano on Senate floor.


text:
    State of Connecticut v. Arthur Lee Wright
    (11087)
    (11088)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued October 1
    decision released November 12, 1985

      Lauren M. Weisfeld, special public defender, for the appellant (defendant).

      John A. Connelly, state’s attorney, with whom, on the brief, was Maureen Norris, legal intern, for the appellee (state).
   Peters, C. J.

This case principally presents statutory and constitutional arguments arising out of the overlapping scope of two crimes, escape from custody; General Statutes § 53a-171; and kidnapping in the first degree. General Statutes § 53a-92 (a) (2) (B). After a jury trial, the defendant, Arthur Lee Wright, was convicted of both crimes. He appeals from those judgments.

The facts are undisputed. On July 29, 1980, the defendant was in custody in Waterbury Superior Court for proceedings relating to a pending felony charge. Shortly after the defendant’s arrival in court, he suddenly ran from the defense table, through the back door of the courtroom, and out of the courthouse. With sheriffs in pursuit, the defendant fled to a nearby street where he encountered a woman emerging from her car. The defendant forced her back into the car and drove off with her, threatening to kill her if she did not cooperate. After having traveled a short distance, he parked the car and fled on foot. The woman was left unharmed in the car. The police apprehended the defendant on August 8, 1980, in West Haven.

On appeal, the defendant raises three issues concerning his convictions for the crimes of escape from custody and of kidnapping in the first degree. He claims that: (1) it is legally impossible to commit the crime of kidnapping in the first degree in the manner charged; (2) the trial court subjected the defendant to double jeopardy; and (3) the trial court used improper language in instructing the jury to draw no adverse inferences from the defendant’s decision not to testify at trial.

I

The defendant’s first claim of error is that he could not have committed kidnapping in the first degree because he lacked the necessary intent. The statutory definition of this crime requires the state to prove that the defendant “restrain[ed] the person abducted with intent to . . . accomplish or advance the commission of a felony.” General Statutes § 53a-92 (a) (2) (B). The underlying felony on which the state relied was the crime of escape from custody. The defendant maintains that he lacked the requisite intent to commit the kidnapping because, having completed the escape once he had left the courthouse, he could hot by abducting the victim have been acting “with intent to . . . accomplish or advance the commission of a felony.”

We find the defendant’s argument unpersuasive because it reads the language of General Statutes § 53a-92 too narrowly. It is true that the defendant had committed the crime of escape from custody as soon as he left the control of his guards. See State v. Roy, 173 Conn. 35, 45-46, 376 A.2d 391 (1977); State v. Blyden, 165 Conn. 522, 530, 338 A.2d 484 (1973). But the statutory requirement that the defendant intend to accomplish or advance the commission of a felony does not mean that the defendant must intend to perform only those acts sufficient to incur criminal liability for a felony. The intent contemplated by General Statutes § 53a-92 (a) (2) (B) is the intent to achieve the criminal objective of the felony. Thus, where escape from custody is the underlying felony, the defendant’s intent to continue to elude the pursuit of custodial officers satisfies the intent requirement of § 53a-92. To be guilty of kidnapping in the first degree, a defendant need not abduct his victim at the very instant he leaves custody. He may abduct with the intent to further his escape either before he flees custody or during the period of flight immediately following his escape. Cf. State v. Rogers, 143 Conn. 167, 177, 120 A.2d 409, cert. denied, 351 U.S. 952, 76 S. Ct. 850, 100 L. Ed. 1476 (1956); see State v. Velicka, 143 Conn. 368, 371, 122 A.2d 739 (1956); see also, e.g., State v. Hall, 305 N.C. 77, 83, 286 S.E.2d 552 (1982).

In this case, the defendant abducted the victim only minutes after his escape from custody. He was still running at the time and sheriffs were in hot pursuit. Commandeering the car enabled the defendant to leave the immediate vicinity of the courthouse, preventing the sheriffs and the police from immediately apprehending him. In light of these circumstances, the jury could reasonably have concluded that the defendant kidnapped the victim with the intent to advance or accomplish his felonious escape. It was therefore not error for the trial court to convict the defendant of kidnapping in the first degree.

II

The defendant next argues that the trial court, by convicting him of both escape from custody and kidnapping in the first degree, punished him twice for the same offense and thereby violated double jeopardy provisions of the federal constitution. Because the crime of kidnapping in the first degree requires the state to prove that the defendant “restrain[ed] the person abducted with intent to . . . accomplish or advance the commission of a felony”; General Statutes § 53a-92 (a) (2) (B); the defendant claims that the underlying felony, escape from custody in this case, is a lesser included offense of kidnapping in the first degree and that, therefore, he cannot constitutionally be convicted of having committed both offenses. We disagree.

The double jeopardy clause of the fifth amendment to the United States constitution bars multiple punishments for crimes that arise from the same act or transaction and amount to the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); State v. Sharpe, 195 Conn. 651, 654, 491 A.2d 345 (1985); State v. Devino, 195 Conn. 70, 73-74, 485 A.2d 1302 (1985). Concededly, the two crimes charged in this case occurred as part of the same transaction. The only disputed question is whether escape from custody and kidnapping in the first degree are separate offenses for purposes of double jeopardy. The United States Supreme Court held in Blockburger that “the test to be applied to determine whether there are two offenses or only one, is whether each [statutory] provision requires proof of a fact that the other does not.” Blockburger v. United States, supra, 304; see also State v. Sharpe, supra; State v. Devino, supra, 74-75; State v. Frazier, 194 Conn. 233, 238, 478 A.2d 1013 (1984); State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979). In conducting this inquiry, we look only to relevant statutes, the information, and the bill of particulars, not to evidence presented at trial. State v. Sharpe, supra; State v. Devino, supra; State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982); State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977); see also Brown v. Ohio, supra, 168.

An examination of these materials in this case reveals that the crimes of escape from custody and kidnapping in the first degree are distinct offenses. To convict the defendant of escape from custody, the state had to prove that the defendant fled the custody of law enforcement officers. To prove the defendant guilty of kidnapping in the first degree, the state had to establish that the defendant abducted his victim with the intent to accomplish or advance his felonious escape; it did not have to show that he actually committed the crime of escape from custody. Because each crime requires proof of an element that the other does not, the trial court could properly punish the defendant for both crimes without offending the double jeopardy clause. The result we reach is consistent with the well established holding of Wilson v. State, 24 Conn. 57, 65 (1855), that the double jeopardy clause is not violated when a defendant is convicted of burglary and larceny charges arising out of the same transaction. See also State v. Benton, 161 Conn. 404, 411, 288 A.2d 411 (1971).

Ill

The defendant also argues that the trial court denied him a fair trial by instructing the jury to draw no unfavorable inferences from his “failure to testify.” He contends that the word “failure” implied to the jury that the defendant had a duty to testify and that, had he testified, he would have incriminated himself.

We find nothing wrong with the charge as given. The trial court used the exact language of General Statutes § 54-84 (b) which requires that “[ujnless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.” If the defendant felt that the word “failure” had unfavorable connotations, he could have requested that the court modify the charge or not give it at all. Nothing in the record indicates that he did either. Indeed, the defendant did not object to the charge when it was given; he raises this issue for the first time on appeal. In light of the defendant’s inaction, the trial court justifiably employed the language of § 54-84 (b). We have held that a failure by the trial court to comply with § 54-84 (b) is plain error; State v. Sinclair, 197 Conn. 574, 500 A.2d 539 (1985); State v. Carrione, 188 Conn. 681, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983); and that deviations from the statutory language that alter the meaning of the charge constitute grounds for reversal. See State v. Tatem, 194 Conn. 594, 483 A.2d 1087 (1984). Thus it was not error for the trial court to instruct the jury as it did.

At oral argument, the defendant for the first time claimed that § 54-84 (b) is unconstitutional. Because the issue has not been properly briefed, we decline to consider it. Varley v. Varley, 170 Conn. 455, 457, 365 A.2d 1212 (1976); Fleischer v. Kregelstein, 150 Conn. 158, 159, 187 A.2d 241 (1962).

There is no error.

In this opinion the other judges concurred.

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

       “[General Statutes] Sec. 53a-92. kidnapping in the first degree. (a) A person is guilty of kidnapping in the first degree when he abducts another person and when: (1) His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physicial injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function. ...”

       The defendant was being held on several charges. He stipulated at trial that one was a felony.

       Where a statute defined murder in the first degree as, inter alia, “murder . . . committed in perpetrating, or in attempting to perpetrate, any arson, rape, robbery, or burglary, or injury to any person or property by means of an explosive compound”; General Statutes (1949 Rev.) § 8350; this court held that a defendant could be convicted of murder in the first degree even if he killed the victim after completing the underlying crime. State v. Rogers, 143 Conn. 167, 176-77, 120 A.2d 409, cert. denied, 351 U.S. 952, 76 S. Ct. 850, 100 L. Ed. 1476 (1956). Our present statute expressly defines as felony murder death caused by a defendant during his flight after committing the underlying felony. General Statutes § 53a-54c.

       The defendant also claims that the dual convictions violate article first, § 8, of the Connecticut constitution. But because “he has proffered no argument that the rights afforded to him by the federal and the state constitutions are in any way distinguishable with respect to the substantive issue that he has raised . . . [w]e see no reason, on the facts of this case, independently to undertake such an analysis.” State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985).

       Although the defendant did not raise this claim at trial, we consider it here because double jeopardy questions implicate a fundamental constitutional right. State v. McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

       The trial court instructed the jury on this issue as follows: “In this case, I warned you at the start and told you it was an unusual circumstance that the defendant, in the court’s opinion, has waived his right to appear at the trial, he has voluntarily chosen not to appear at the trial and that you must make certain that there is no prejudice to his case by reason of his not being in this courtroom. By not appearing — of course, the accused has also failed to testify. This is his privilege against self-incrimination under the Fifth Amendment of the Constitution of the United States and Article One, Section 8 of the Constitution of the State of Connecticut, more commonly called the right to remain silent. The jury may draw no unfavorable inference from the accused’s failure to testify. There can be no prejudice, speculation, conjecture or any disadvantageous thought in the jury’s mind as to the fact that he is not here or that he didn’t take the stand.”

       In his brief, the defendant claimed further that the trial court erred in instructing the jury to disregard any previous misconduct by the defendant. The defendant conceded this issue at oral argument and we do not consider it here.


text:
    State of Connecticut v. William C. Parker, Jr.
    (11531)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued October 3
    decision released November 19, 1985

      Rose Stutz, legal intern, with whom was Joette Katz, public defender, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Maride and Michael Dearington, state’s attorneys, and Barbara Taylor, legal intern, for the appellee (state).
   Santaniello, J.

After trial by jury the defendant, William Parker, Jr., was convicted of murder in violation of General Statutes § 53a-54a (a). On appeal, he claims that the trial court erred: (1) in admitting an in-court identification of the defendant that was derived from an unnecessarily suggestive photographic array; and (2) in excluding from evidence certain newspaper clippings which were offered to show the bias of the state’s chief witness, the defendant’s father. We find no error.

The jury could reasonably have found that sometime between March and November, 1979, the defendant killed Vercina Ann Dennis to prevent her from implicating him in another murder. The defendant admitted to his father, William Parker, Sr., that he had committed both murders. The father, who feared that his son might kill again, cooperated with the police and helped them locate Vercina Ann Dennis’ body. The defendant’s description to his father of how he killed the girl was corroborated by physical evidence found near the body. Vercina Ann Dennis had been missing since March, 1979.

I

The defendant first claims that the trial court erred in admitting an in-court identification of the defendant by Versie Mae Dennis, the victim’s mother. Dennis was called by the state as a witness and testified that in March, 1979, the defendant twice came into the store where she worked and inquired as to her daughter’s whereabouts. Before trial in January, 1980, Dennis told two state police officers that the defendant had been looking for her daughter. To verify the identification, the officers gave her three photographs to look at: one was of a man Dennis knew well, Henry Horton; one was of a man named John Crawford; and one was of the defendant. The defendant’s picture was the only one dated and inscribed with the words “Connecticut State Police.” From those three photos, Dennis picked out the defendant as the person who had been looking for her daughter. She stated to the officers that she was certain the defendant was the person in the store. The defendant moved to suppress the introduction of Dennis’ in-court identification on the grounds that the earlier out-of-court identification was unreliable and was based on an unnecessarily suggestive procedure. The trial court denied the defendant’s motion and allowed Dennis’ testimony.

The defendant argues that the police procedures used to obtain the earlier identification were unnecessarily suggestive and that the later in-court identification was unreliable. Specifically, he claims that the photographs used in the array were themselves “suggestive” and that the police may have induced Dennis to pick out the defendant’s picture by notifying her beforehand that they suspected the defendant to be her daughter’s murderer.

We have repeatedly held that a conviction based on an in-court identification which follows an out-of-court photographic identification will be set aside only “if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Vass, 191 Conn. 604, 609, 469 A.2d 767 (1983); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). “ ‘A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.’ ” State v. Hinton, 196 Conn. 289, 293, 493 A.2d 836 (1985); State v. Fullwood, supra, 244. The determination whether an identification procedure has violated a defendant’s due process rights must be made on an ad hoc basis. The inquiry is two-pronged: “ ‘[F]irst, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the “totality of the circumstances.” ’ ” State v. Hinton, supra, 292-93, quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985).

Reviewing the record in light of these principles, we cannot say that the identification procedures employed by the state police were so impermissibly suggestive as to render the identification unreliable. The defendant claims that the police told Dennis that they suspected him and thus suggested to her that he was the person looking for her daughter. We recognize that if the police had actually told Dennis that they had arrested William Parker, Jr., before she volunteered the information about his coming into the store, then the subsequent identification might have been suggestive. See State v. Austin, supra, 500-501. From the evidence adduced, however, the court as the trier of fact could reasonably have found that it was Dennis who first raised the defendant’s name in connection with the man who was looking for her daughter. Originally Dennis did not know who the defendant was when he came into the store, but she testified that, at a later point in time, one of the defendant’s cousins informed her that it was William Parker. Officer Andrew Ocif, one of the state policemen who was present when Dennis identified the defendant from the photo array, also testified that Dennis mentioned the defendant by name when describing the person who had been asking for her daughter.

The defendant also claims that the photographs given to Dennis were themselves impermissibly suggestive. Even if we were to agree, arguendo, that the photographs were unnecessarily suggestive, under the totality of the circumstances Dennis’ identification was reliable. See State v. Doolittle, supra, 191-92; State v. Maturo, 188 Conn. 591, 596-97, 452 A.2d 642 (1982). In determining the reliability of identification evidence, we must consider the length of time between the event witnessed and the identification, the ability of the witness to view the defendant at that time, the witness’ degree of attention, the accuracy of the witness’ prior description of the defendant, and the level of certainty demonstrated in making the identification. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Hinton, supra, 295-96. Here, Dennis had an excellent opportunity to view the defendant when he came into the store. The lights were bright, the defendant came within just a few feet of her and he stayed approximately five minutes each time. Dennis’ attention was also excellent. She testified that the store was not that busy, that she engaged the defendant in face-to-face conversation and that she concentrated on his face. Dennis also exhibited a high degree of certainty that the defendant was the person who had been looking for her daughter. As to the other factors, we cannot say that the ten month period between the identification and Dennis’ viewing of the defendant was so long as to render her identification unreliable. Also, the fact that Dennis did not give a detailed description of the defendant before selecting his photo is insignificant when she was able to refer to him by name.

Overall, we conclude that the procedures used to identify the defendant were not so suggestive and unreliable as to violate his right to due process. Thus, the trial court did not err in refusing to suppress the in-court identification.

II

The defendant next claims that the trial court erred in excluding from evidence certain newspaper clippings that announced a reward for information on several murders in the New Haven area. At trial, the state relied heavily on the testimony of William Parker, Sr. On cross-examination, defense counsel brought out the fact that the father had an extensive criminal record. In an attempt further to impeach his credibility, counsel also inquired as to his knowledge of a reward posted in New Haven concerning a series of murders. The father testified that he had read some newspaper articles concerning murders in the New Haven area, but, when asked if he knew about any rewards, he replied, “no.” The defendant sought to introduce into evidence a number of newspaper clippings that announced rewards for information leading to the arrest and conviction of persons responsible for seven killings in the New Haven vicinity, but the trial court ruled that the clippings were irrelevant and refused to admit them.

It is well established that the trial court has broad discretion in determining the relevancy of evidence. State v. DeJesus, 194 Conn. 376, 382, 481 A.2d 1277 (1984); State v. Maldonado, 193 Conn. 350, 365, 478 A.2d 581 (1984). This court will ordinarily not disturb a trial court’s ruling on the admissibility of evidence unless a clear abuse of discretion is shown. State v. DeJesus, supra; State v. Bember, 183 Conn. 394, 408, 439 A.2d 387 (1981). Thus, if we find that the trial court could have reasonably concluded that the proffered evidence was irrelevant, then the ruling must stand.

Here, the trial court did not abuse its discretion in excluding the newspaper articles. Indeed, under the circumstances of the case it was perfectly reasonable for the court to have concluded that the articles were irrelevant. The clippings offered were about rewards for information about seven killings in the New Haven area, but the articles were released almost eleven months before William Parker, Sr., talked with the police. The articles did not mention Vercina Ann Dennis and the rewards described were not applicable to her murder. There was no evidence that the defendant’s father ever read these newspaper clippings or that he was offered any reward. Furthermore, William Parker, Sr., denied having any knowledge of a reward.

There is no error.

In this opinion the other judges concurred.

       The defendant in his brief also argues that the trial court’s refusal to admit the clippings abridged his right to confront and cross-examine witnesses against him. This constitutional claim was never raised at trial. “We have said many times: ‘Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.’ State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973); Tucker v. Alleyne, 195 Conn. 399, 402 n.3, 488 A.2d 452 (1985). The defendant has raised no exceptional circumstances to warrant departure from this general rule and the record does not adequately support a claim that the defendant has clearly been deprived of a fundamental right or a fair trial.” State v. Thompson, 197 Conn. 67, 76-77 n.7, 495 A.2d 1054 (1985). Thus, we only review the defendant’s claim that the trial court erred in its evidentiary ruling.

       We note in passing that defense counsel waited to introduce the newspaper clippings until after all of the witnesses in the case had been called. At that time no foundation had been laid connecting the witness to these articles. Although it would have been feasible for the trial court to have allowed the defendant to recall William Parker, Sr., to the stand, any further inquiry would have been extraneous to the main issues at trial. The witness had previously denied having any knowledge of a reward. See Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 344, 150 A.2d 597 (1959); McQuillan v. Willimantic Electric Light Co., 70 Conn. 715, 719-20, 40 A. 928 (1898).