text:
    State of Connecticut v. John McIver
    (12590)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued October 3
    decision released December 16, 1986

      Stephen F. Cashman, special public defender, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, were Guy W. Wolf III, assistant state’s attorney, and Karen G. Picker, legal intern, for the appellee (state).
   Callahan, J.

After a trial to a jury, the defendant was convicted of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and larceny in the sixth degree in violation of General Statutes § 53a-125b, as a lesser included offense of robbery in the third degree, General Statutes § 53a-136 (a). The defendant claims on appeal that: (1) the trial court erred in denying his motion to dismiss on the basis of the warrantless arrest of the defendant; (2) the state failed to preserve potentially exculpatory evidence, thereby depriving the defendant of his right to due process of law; (3) the state refused to grant immunity to a defense witness who asserted her fifth amendment privilege against self-incrimination, thereby violating the defendant’s constitutional rights to confrontation, compulsory process and the right to present a defense; and (4) he was deprived of effective assistance of counsel in violation of the sixth amendment. We find no error.

The jury could reasonably have found the following facts: On December 30,1983, at approximately 3 a.m., the defendant met the victim at the corner of Edge-wood Avenue and Garden Street in New Haven. The victim, a prostitute, was sitting with three other women at the time. She asked the defendant if he knew where she could get some marihuana. The defendant replied that he did and offered to take the victim to a place where she could obtain it. During their conversation, the victim agreed to perform fellatio on the defendant in return for a specified sum of money. The defendant told her that they could go to his car, which he had parked in a nearby parking lot. Upon passing the lot, however, the victim became concerned and informed the defendant that she wished to go back. When she attempted to walk away, the defendant grabbed her from behind and told her that he would stab her if she screamed.

The defendant then forced the victim to continue walking with him to a four story house on Carlisle Street in New Haven. The defendant brought the victim to the back of the building and pushed her down a stairway into an empty room in the basement, where he forced her to undress and lie on her coat. The defendant found $180 in the pocket of the victim’s pants, which he took and placed in his own pocket. He then proceeded to assault the victim sexually. Thereafter, the defendant took the victim to an apartment on Davenport Avenue in New Haven. When the defendant fell asleep, the victim took the keys to the apartment and fled. She then encountered a police officer on the street and informed him that she had been sexually assaulted. Two other officers were dispatched to the scene, and the victim took them to the apartment on Davenport Avenue where she had left the defendant sleeping. The police found the defendant at the apartment along with some belongings of the victim. Both the victim and the defendant were transported to the police station where the defendant was placed under arrest.

I

We first address the defendant’s claim that the trial court erred in denying his motion to dismiss. The defendant claimed in the trial court that his warrant-less arrest was unconstitutional, and that under State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), the charges against him should have been dismissed. The trial court denied the motion, and on appeal the defendant initially asserted the same claim under State v. Licari. Subsequent to the filing of the defendant’s brief, we overruled Licari in State v. Fleming, 198 Conn. 255, 257-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). In State v. Ryerson, 201 Conn. 333, 341, 514 A.2d 337 (1986), we held that Fleming is to be applied retroactively. Thereafter, the defendant filed a reply brief addressing the effect of Fleming and Ryerson on this case.

"In State v. Fleming, supra, 263, we held that '[w]here the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction.’ An illegal arrest may impair the fairness of a subsequent prosecution only where evidence obtained as a direct consequence of that arrest is admitted against the defendant at trial. Id., 262; State v. Federici, 179 Conn. 46, 425 A.2d 916 (1979).” (Emphasis in original.) State v. Ryerson, supra, 338. In the present case, the defendant appears to argue that he was deprived of a fundamental constitutional right and a fair trial because statements obtained as a consequence of his unlawful arrest were admitted against him at trial. The defendant acknowledges, however, that he did not pursue a motion to suppress statements that he filed prior to trial, nor did he obtain a ruling from the trial court on this motion. Further, the defendant did not object to the admission of his statements at trial. He argues, for the first time in his reply brief, that despite these lapses he is entitled to a new trial, or, in the alternative, a remand to the trial court for an evidentiary hearing on his motion to suppress. We do not agree.

We have consistently held that only in the most exceptional circumstances 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); see State v. Fernandez, 198 Conn. 1, 9-10, 501 A.2d 1195 (1985). Because the record in this case, however, adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial, we will review the defendant’s claim of error. State v. Evans, supra, 70; see State v. Marino, 190 Conn. 639, 654-57, 462 A.2d 1021 (1983).

Without deciding whether there was probable cause to arrest the defendant, we find no merit to the defendant’s claim because any possible error resulting from the admission of the defendant’s statements at trial was harmless beyond a reasonable doubt. See State v. Marino, supra, 655. There was overwhelming evidence that the defendant had been with the victim on the evening in question and that he had had sexual intercourse with her. The main issue at trial was whether the intercourse had been consensual. The defendant’s statements, which were admitted through a police officer who interrogated him, served only to corroborate the defendant’s version of the incident. Under the circumstances of this case, therefore, the admission of his statements was harmless beyond a reasonable doubt. State v. Marino, supra, 657; see Aillon v. State, 168 Conn. 541, 548, 363 A.2d 49 (1975).

II

The defendant next argues that the trial court erred in denying both his motion to strike testimony concerning missing evidence and his request that the state be prevented from referring to missing evidence during its closing argument. We disagree.

During the attack on the victim, the defendant spread the victim’s coat on the floor and ordered her to lie on it. He then proceeded to assault her sexually. Since the victim had been menstruating at the time of the assault, the coat became stained with blood. Detective Donna Amato of the New Haven police department observed the blood stains on the coat, but did not retain the coat as evidence. Thereafter the victim had the coat cleaned. During the trial, the victim and Amato testified that the victim’s coat had contained blood and semen stains. This testimony was admitted without any objection by the defendant. On cross-examination of the victim, defense counsel questioned the victim extensively about having had the coat cleaned. These were the only references to the stains on the victim’s coat that occurred in the presence of the jury. Prior to closing arguments, the defendant moved to strike the testimony concerning the stains, and to have the court instruct the state not to emphasize the evidence in closing argument. The trial court denied the defendant’s motion.

We noted in State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), that “ ‘[t]he requirements of due process are met in the trial of a person accused of crime if he has been given the benefit of a fair and impartial trial in accordance with the settled course of judicial proceedings in this state.’ Wojculewicz v. Cummings, 145 Conn. 11, 19, 138 A.2d 512, cert. denied, 356 U.S. 969, 78 S. Ct. 1010, 2 L. Ed. 2d 1075 (1958).” Whether testimony concerning the coat, without the coat itself being available, deprived the defendant of a fair trial depends upon the reason for its unavailability to the defense, the materiality of the missing evidence, the likelihood of mistaken interpretation of testimony about the coat by witnesses or the jury, and the prejudice to the defendant caused by its unavailability. State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982); State v. Harden, 175 Conn. 315, 326-27, 398 A.2d 1169 (1978).

Applying those factors to the present case, we conclude that the defendant was not deprived of his right to due process. There is no showing that the police acted in bad faith or maliciously in deciding not to retain the coat. State v. Hamele, supra, 382. Further, the police had no reason to believe that the coat contained exculpatory evidence. The stain on the coat was a blood stain that had been caused by the victim’s menstrual bleeding. The defendant fails to show how any evidence of seminal stains on the coat, even if they existed, would have been material to his defense. Id. Admittedly, such evidence might be material in determining the identity of an assailant. Cf. State v. Burns, 173 Conn. 317, 325, 377 A.2d 1082 (1977). In this case, however, there was no question that the defendant had engaged in sexual intercourse with the victim. The defendant does not address the likelihood of mistaken interpretation of the testimony by the jury. State v. Hamele, supra. Since, however, there was no dispute at trial that the defendant had had intercourse with the victim, the jury was not likely to have misinterpreted any reference to seminal stains on the coat. United States v. Herndon, 536 F.2d 1027, 1029 (5th Cir. 1976). Finally, the defendant has not made any showing that any test conducted on the coat would have produced exculpatory evidence. See State v. Asherman, supra, 725-26. The victim testified that she had had sexual relations with numerous men prior to the defendant’s attack on her.

Under the circumstances, we find that the trial court did not err in (1) refusing to strike testimony concerning the missing evidence, or (2) denying the request to prevent reference to the coat during the state’s closing arguments.

Ill

The defendant next claims that the state’s failure to grant immunity to a key defense witness deprived him of his constitutional right to a fair trial. At trial the defendant sought to call Margaret Erkard, the defendant’s sister, as a witness for the defense. On direct examination, the witness asserted her fifth amendment privilege against self-incrimination as to any questions concerning her contact with the victim. The defendant then sought a grant of immunity for Erkard from the state’s attorney, pursuant to General Statutes § 54-47a, which was denied. The defendant argues on appeal that the language of General Statutes § 54-47a should be construed broadly to include provisions for granting of immunity to witnesses for the defense, as well as recalcitrant witnesses for the prosecution. We are unpersuaded.

The defendant concedes, as he must, that this very same claim was rejected by this court in State v. Simms, 170 Conn. 206, 210-11, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976). As we stated in State v. Simms, supra, 211, “[a]s there is no other statutory authority granting immunity, and as § 54-47a does not apply to this case, the defendant has no source of authority for his position.” State v. McLucas, 172 Conn. 542, 561, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977); see State v. Yates, 174 Conn. 16, 21, 381 A.2d 536 (1977). The defendant has failed to cite any new authority to support a different interpretation of General Statutes § 54-47a, nor has he given any cogent reason for us to reconsider our prior interpretation of this statute.

The defendant also claims that the trial court erred in denying the defendant’s motion to strike the testimony of his witness, Tanya Randolph. Randolph testified concerning her relationship with the victim, and also stated in a nonresponsive answer that the victim "had called somebody about some money to drop the charges.” After further questioning by defense counsel, Randolph testified that the victim had telephoned the defendant’s sister to discuss the possibility of dropping the charges against the defendant in return for a sum of money. According to Randolph, the defendant’s sister told the victim that she had no money to offer her. The defendant did not move to strike the testimony of Randolph at this time. Subsequently, the defendant called his sister, Margaret Erkard, to the stand, but, as previously noted, she refused to testify by asserting her fifth amendment privilege against self-incrimination. After the state refused to grant Erkard immunity pursuant to § 54-47a, the defendant moved to strike that portion of Randolph’s testimony concerning the victim’s phone call to Erkard. The trial court denied the motion and the defendant duly excepted.

“It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimension, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). The defendant argues that because Erkard did not testify, the only testimony concerning the phone conversation between the victim and Erkard that was before the jury was that given in a nonresponsive answer by Randolph. The defendant seems to argue that Randolph’s testimony necessitated calling Erkard to testify on behalf of the defendant, and that the jury could have drawn an adverse inference from Erkard’s failure to testify since they were unaware that she had asserted her fifth amendment privilege. These arguments, however, fail to establish that the trial court’s denial of the motion to strike, even if erroneous, was harmful to the defendant. First, the defendant does not indicate how Randolph’s testimony harmed him. If anything, it appears to be more prejudicial to the state’s case than to the defendant’s. Moreover, the trial judge specifically instructed the jury that it could draw no adverse inference from Erkard’s failure to testify. We conclude, therefore, that the court’s ruling was neither harmful nor prejudicial to the defendant. State v. Vitale, supra, 404; State v. Shindell, 195 Conn. 128, 141, 486 A.2d 637 (1985).

IV

The defendant’s final claim is that he was denied the effective assistance of counsel at his trial. Our decision in State v. Leecan, 198 Conn. 517, 542, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91L. Ed. 2d 550 (1986), established the proper procedure regarding ineffective assistance of counsel claims. “[W]e shall not review at this time even the portion of the defendant’s ineffective assistance claim that he contends is adequately supported by the record. Though we have resolved his other claims of error, we believe that his ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.” Id.; State v. Casey, 201 Conn. 174, 513 A.2d 1183 (1986).

There is no error.

In this opinion the other justices concurred.

       Another claim of error alleging a violation of the defendant’s speedy trial right was withdrawn at oral argument.

       “[General Statutes] Sec. 54-47a. compelling testimony of witness, immunity FROM prosecution, (a) Whenever in the judgment of the chief state’s attorney, a state’s attorney or the deputy chief state’s attorney, the testimony of any witness or the production of books, papers or other evidence of any witness, in any criminal proceeding involving narcotics, arson, bribery, gambling, election law violations, felonious crimes of violence or any violation which is an offense under the provisions of title 25, before a court, grand jury of this state or, as provided in subsection (b) of section 54-47, a state referee, judge of the superior court or a three-judge panel of said court, is necessary to the public interest, the chief state’s attorney, the state’s attorney, or the deputy chief state’s attorney, may, with notice to the witness, after the witness has claimed his privilege against self-incrimination, make application to the court for an order directing the witness to testify or produce evidence subject to the provisions of this section.
      “(b) Upon the issuance of the order such witness shall not be excused from testifying or from producing books, papers or other evidence in such case or proceeding on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. No such witness may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning whieh he is compelled to testify or produce evidence, and no testimony or evidence so compelled, and no evidence discovered as a result of or otherwise derived from testimony or evidence so compelled, may be used as evidence against him in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt commited while giving such testimony or producing such evidence. Whenever evidence is objected to as inadmissible because it was discovered as a result of or otherwise derived from compelled testimony or evidence, the burden shall be upon the person offering the challenged evidence to establish a source independent of the compelled testimony or evidence.”

       We note that this claim was not included in the defendant’s preliminary statement of issues pursuant to Practice Book § 3012 (a). In the past, we have declined to address issues not properly presented to this court. Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 617, 495 A.2d 1006 (1985); Presutti v. Presutti, 181 Conn. 622, 625-26, 436 A.2d 299 (1980). Under the revised Practice Book § 3012 (a) (now § 4013) effective October 1,1986, and made applicable to pending appeals by Practice Book § 4189 (formerly § 3166), the defendant’s failure to identify this issue in his preliminary statement of issues does not preclude its review unless the state is prejudiced thereby. The state does not argue, nor do we feel, that it would be prejudiced by our review of this issue.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Connecticut Bank and Trust Company v. Pamela Wilcox et al.
    (12757)
    Peters, C. J., Healey, Callahan, Celotto and Stoughton, Js.
    Argued November 4
    decision released December 16, 1986

      David S. Grossman, for the appellants (defendants).

      Jackson T. King, Jr., with whom, on the brief, was Mary E. Holzworth, for the appellee (plaintiff).
   Peters, C. J.

The principal question on this appeal, in a case involving the loss of a letter of guaranty, is whether the Appellate Court correctly determined that the issues concerning the enforceability of the guaranty raised only factual matters that did not warrant extended appellate consideration. The plaintiff, the Connecticut Bank and Trust Company, brought an action against the defendants, Pamela Wilcox and Annelaine L. Lotreck, alleging that they were liable as guarantors of debts incurred by the Wilcox Pallet Company. The trial court found the issues for the plaintiff and rendered judgment holding the defendants liable. The defendants appealed to the Appellate Court which, in a per curiam decision, found no error. After their petition for certification was granted, the defendants appealed to this court. We affirm the judgment of the Appellate Court.

The trial court made the following findings of fact. On September 9,1980, the defendants, the officers of the Wilcox Pallet Company, executed a letter of guaranty under which they guaranteed the payment of any and all amounts “due or to become due, now existing or hereafter arising” out of the liabilities of the corporation to the plaintiff. The defendants submitted their personal financial statements to the plaintiff in the spring of 1981. Thereafter, in April and November of 1981, the corporation executed three promissory notes manifesting its indebtedness to the plaintiff in the total amount of $88,650. These loans were part of a line of credit extended by the plaintiff to the corporation; the line of credit had been expressly conditioned upon “the continued maintenance of a sound financial condition on the parts of both the company and the guarantors.” Employees of the plaintiff saw the defendants’ letter of guaranty on two different occasions: in April, 1981, and in September, 1981. Subsequently, however, when the plaintiff learned, in December, 1981, that the corporation was having financial difficulties, the plaintiff sought the letter of guaranty, but could not locate it. The plaintiff conducted a diligent and extensive search for the letter of guaranty, but was unable to find it.

On the basis of these findings of fact, the trial court concluded that the defendants were liable as guarantors for the debts incurred by the corporation to the plaintiff. The court determined that the plaintiff had made no misrepresentations to the defendants at the time of the execution of the line of credit. It held that the guaranty was valid and binding despite a delay of several months between the execution of the letter of guaranty and the execution of the line of credit. It determined that the plaintiff had relied upon the continued liability of the defendants, evidenced by the letter of guaranty, when the plaintiff made and renewed loans to the corporation. The court therefore rendered judgment against the defendants in the amount of $103,328.82, representing principal and interest on the notes, together with legal interest thereon from February 1, 1983, and attorney’s fees of $7500.

The Appellate Court summarily upheld the judgment of the trial court. Connecticut Bank & Trust Co. v. Wilcox, 3 Conn. App. 510, 490 A.2d 95 (1985). That court found no error in the trial court’s ruling permitting the plaintiff belatedly to amend its complaint; id.; an issue that the defendants have chosen not to pursue further. The Appellate Court held that “the remaining claims of error” raised nothing further than “conclusions of fact” and thus did not warrant plenary review. Id., 510-11.

This court thereupon granted the defendants’ petition for certification, which alleged the existence of two questions of substance warranting a further appeal to this court. The petition for certification described the questions as: (1) the reasonableness and diligence of the search of a lost document required to be in writing under the statute of frauds; and (2) the availability of a defense of estoppel to prevent enforcement of a guaranty which allegedly lacks consideration. We will consider each of these questions separately.

This court has not, for many years, considered the quantum of proof that is required when secondary evidence is produced to establish the contents of a document that has been accidentally lost or destroyed. The cases and the commentaries are, however, in substantial agreement that a party must undertake a twofold burden in order to recover on a document that he cannot produce. Such a party must demonstrate both (a) the former existence and the present unavailability of the missing document, and (b) the contents of the missing document. Woicicky v. Anderson, 95 Conn. 534, 536, 111 A. 896 (1920); Kelsey v. Hanmer, 18 Conn. 311, 317 (1847); Witter v. Latham, 12 Conn. 392, 399 (1837); C. McCormick, Evidence (3d Ed. 1984) § 53, pp. 138-39. The legislature has adopted a similar policy with regard to an action to enforce a negotiable instrument that is lost by “destruction, theft or otherwise.” General Statutes § 42a-3-804; see J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 13-22. At least in a trial to the court, there is no particular sequence in which the party relying on a lost document must present evidence to satisfy his twofold burden. See Fitch v. Bogue, 19 Conn. 285, 290-91 (1848). Finally, there is no automatic enhancement of that burden of proof merely because, under the applicable provisions of the statute of frauds; General Statutes § 52-550; the contract in question was required to be memorialized in a written memorandum. Section 137 of the Restatement (Second) of Contracts (1981) expressly provides: “The loss or destruction of a memorandum does not deprive it of effect under the Statute [of Frauds].” See also Computer Servicenters, Inc. v. Beacon Mfg. Co., 328 F. Sup. 653, 655 (D.S.C. 1970), aff'd, 443 F.2d 906 (4th Cir. 1971); Alvin Epstein Advertising v. Helfer, 138 A.2d 925, 927 (D.C. 1958); Mossman v. Hawaiian Trust Co., 45 Hawaii 1, 9-10, 361 P.2d 374 (1961); Capital Bank & Trust Co. v. Richman, 19 Mass. App. 515, 519-22, 475 N.E.2d 1236 (1985); Aesoph v. Golden, 367 N.W.2d 639, 642 (Minn. App. 1985); Chakur v. Zena, 233 S.W.2d 200, 202 (Tex. Civ. App. 1950); 2 A. Corbin, Contracts (1950 & Sup. 1971) § 529; 4 S. Williston, Contracts (3d Ed. Jaeger 1961) § 579A. In any dispute concerning the existence, loss or terms of a missing document, it is appropriate for the parties to bring to the court’s attention whatever evidence, direct or circumstantial, written or oral, the trial court may find relevant and persuasive.

We agree with the conclusion of the Appellate Court that the application of these principles to the particular circumstances of this case involved nothing more than the resolution of disputed questions of fact. The trial court made a finding of fact when it determined that the plaintiff had met its burden of proving that the guaranty had been lost and, despite the plaintiff’s diligent search, could not be produced at trial. The trial court similarly made a finding of fact when it held that the terms of the missing guaranty were identical to those contained in the plaintiff’s standard form for a letter of guaranty, that form having been admitted as an exhibit at trial.

The defendants’ alternate claim of Appellate Court error argues that the guaranty was unenforceable as a matter of law because of an alleged absence of consideration. This argument apparently hinges upon the fact that there was an interval of several months between the execution of the guaranty and the execution of the corporate notes whose payment the defendants are alleged to have guaranteed. As a matter of law, this argument is untenable. A continuing guaranty is enforceable, for those transactions within its contemplation, if the creditor makes subsequent advances by reason of the outstanding guaranty. Both our case law and the modern law of contract eschew any requirement of contemporaneity between a continuing guaranty and the obligations secured thereby. Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., 184 Conn. 10, 20-21, 441 A.2d 43 (1981); 1 Restatement (Second), Contracts § 88 (c) (1981); see also Chevron Chemical Co. v. Mecham, 536 F. Sup. 1036, 1042 (C.D. Utah 1982); Gintzler v. Melnick, 116 N.H. 566, 568, 364 A.2d 637 (1976). Whether the parties contemplated that the continuing guaranty in this case was to cover the notes that were made by the corporate debtor is a matter of interpretation of the letter of guaranty that “is principally a question of the intention of the contracting parties, a question of fact to be determined by the trier of facts.” Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, 183 Conn. 348, 351, 439 A.2d 362 (1981). The Appellate Court was therefore correct that the enforceability of the guaranty in this appeal turned on findings of fact by the trial court.

Neither of the defendants’ remaining claims of error warrants extended discussion. Their defense of mistake raises an issue that this court need not consider because this defense was proffered neither in the defendants’ appeal to the Appellate Court nor in their petition for certification. See Practice Book §§ 4130 (formerly § 3140), 4138 (formerly § 3154); State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985). Their defense of estoppel depends on factual assertions that are contrary to the findings of the trial court. Because the existence of an estoppel is primarily a factual question; New York Annual Conference v. Fisher, 182 Conn. 272, 300, 438 A.2d 62 (1980); we decline, as did the Appellate Court, to retry this issue on appeal.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 42a-8-804. lost, destroyed or stolen instruments. The owner of an instrument which is lost, whether by destruction, theft or otherwise, may maintain an action in his own name and recover from any party liable thereon upon due proof of his ownership, the facts which prevent his production of the instrument and its terms. The court may require security indemnifying the defendant against loss by reason of further claims on the instrument.”

       In a jury trial, the rule appears to be that the judge should decide, as a preliminary matter, whether the original written document was lost, but that the jury should then decide whether the document ever existed. Woicicky v. Anderson, 95 Conn. 534, 536, 111 A. 896 (1920); C. McCormick, Evidence (3d Ed. 1984) § 53, pp. 138-39, and cases cited therein.

       “[General Statutes] Sec. 52-550. statute of frauds; written agreement OR memorandum, (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; or (5) upon any agreement that is not to be performed within one year from the making thereof.
      “(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term. ’ ’

       Practice Book § 4130 (a) (1) provides: “—form of petition and cross PETITION.
      “(a) A petition or cross petition for certification shall contain the following sections in the order indicated here:
      “(1) A statement of the questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail. The supreme court will ordinarily consider only those questions squarely raised, subject to any limitation in the order granting certification.”
      “[Practice Book] Sec. 4139. —appeals deemed pending .... The issues which the appellant may present are limited to those raised in the petition for certification or in the request by the appellate panel, except where the issues are further limited by the order granting certification.”


author: Shea, J.

text:
    Town of Stratford v. Local 134, IFPTE, et al.
    (12779)
    Peters, C. J., Shea, Dannehy, Callahan and M. Hennessey, Js.
    Argued October 8
    decision released December 16, 1986

      Rod Farrell, with whom were Anthony M. Guerrera, and, on the brief, Richard P. Gilardi, town attorney, for the appellant (plaintiff).

      Donald J. Deneen, for the appellee (named defendant).
   Shea, J.

This is an appeal from the judgment of the Superior Court confirming an arbitration award and concomitantly denying an application to vacate the award. The plaintiff, the town of Stratford, attacks on constitutional and public policy grounds the validity of a provision in its collective bargaining agreement with the named defendant, Local 134, International Federation of Professional and Technical Engineers, under which the municipality must provide all members of the bargaining unit with hypertension or heart disease benefits mandated for municipal fire or police personnel under General Statutes § 7-433c. The plaintiff asserts additionally that the trial court erred in denying its application to vacate the arbitration award because the failure of the arbitration panel to address the constitutional and policy issues rendered the award not “mutual, final and definite,” as required by General Statutes § 52-418. We conclude that neither the challenged bargaining agreement provision nor the contested award violates public policy or any provision of our state constitution.

The parties stipulated to the facts. The defendant Warren Johns began working for the plaintiff in the public works department in 1971. At that time Johns passed a physical examination, indicating that he was then free from heart disease. In the years 1975 through 1977, however, he suffered a series of heart attacks, which culminated in bypass surgery in October, 1977. In 1978 Johns applied to the plaintiff for heart disease benefits, claiming coverage under article XII, § 3, of the collective bargaining agreement between the plaintiff and the defendant union. That portion of the agreement extends to all members of Local 134 the hypertension and heart disease benefits mandated for municipal fire or police department employees under General Statutes § 7-433c. The plaintiff terminated Johns’ employment without paying him such benefits.

Johns filed a grievance with the personnel appeals board for the town of Stratford, which the board denied. Johns then sought a declaratory judgment in the Superior Court. The court, Saden, J., dismissed the action because the parties had consented, under the terms of their collective bargaining agreement, to submit questions of contract interpretation to the state board of mediation and arbitration. In the arbitration proceedings that followed the plaintiff argued both that the bargaining agreement should be interpreted to preclude Johns’ recovery, and that a contrary interpretation would render the provision unconstitutional and contrary to public policy. The arbitration panel interpreted the contract provision to afford Johns the payments he sought, but declined to discuss the constitutional and policy issues because “such matters are outside the jurisdiction of this arbitration panel.”* **

The Superior Court, Gerety, J., granted the defendants’ application to confirm the arbitration award and denied the plaintiff’s opposing application to vacate, which had been filed pursuant to General Statutes §§ 52-417 and 52-418 respectively. In this appeal the plaintiff claims the trial court erred in concluding (1) that the award, which addressed only the limited issue submitted to the arbitration panel, **** was mutual, final and definite, and (2) that the plaintiff was precluded from litigating the constitutional and policy aspects of article XII, § 3, of the collective bargaining agreement. Presupposing that its constitutional and policy claims are reviewable, the plaintiff further asserts (3) that the challenged contract provision violates article first, § 1, of our state constitution by creating a class preference, and (4) that the contract provision contravenes public policy by granting public works employees a special bonus.

I

We first reject the plaintiffs contention that because the arbitrators refused to consider the constitutional issue their award was not mutual, final and definite, and, therefore, ought to have been vacated pursuant to General Statutes § 52-418 (d). We conclude, nevertheless, that the factors enumerated in § 52-418, each of which, if found, would require that an arbitration award be vacated, are not exhaustive and consequently do not in all instances limit the scope of judicial review of such awards.

A

It is axiomatic in this jurisdiction that, when an award is challenged pursuant to General Statutes § 52-418 (d) on the ground that the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award was not made, the reviewing court is properly limited to a comparison of the award with the submission. E.g., Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 23, 453 A.2d 1158 (1983); Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 212, 470 A.2d 1219 (1984). The award will not be vacated under § 52-418 (d) if it conforms to the submission, and the award need contain no more than the actual decision of the arbitrators. Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn. 583, 589, 392 A.2d 461 (1978).

The issue submitted to the arbitration panel in the present case was whether the plaintiff had violated the labor contract in refusing to pay Johns the benefits he sought, and, if so, what the remedy should be. In their award the arbitrators answered that the plaintiff had violated the contract, and accordingly ordered it to make remedial payments. It is clear, therefore, that the award conformed to the submission. The award was dispositive of the dispute the parties had submitted to the panel. Because the submission, containing no limiting or conditional language, was unrestricted, the award was final and binding and not reviewable for errors of law or fact. See, e.g., Wilson v. Security Ins. Group, 199 Conn. 618, 626-27, 509 A.2d 467 (1986); Milford Employees Assn. v. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980). Finally, the award was definite in its terms. We conclude, therefore, that the arbitrators did not imperfectly execute their powers within the meaning of § 52-418 (d).

B

The plaintiff contends that it was reversible error for the trial court to deny the plaintiff an opportunity to litigate the constitutional and public policy aspects of the contract provision underlying the arbitrators’ award. Our response is that the trial court, however succinctly, did address and dispose of those issues. We next consider whether judicial review of the constitutional and policy claims raised by the plaintiff is permissible.

We have said that “[t]he right to review an arbitration award is wholly encompassed within the parameters of § 52-418.” Carroll v. Aetna Casualty & Surety Co., supra, 22. Moreover, we have implied that in consensual arbitration, as opposed to arbitration made compulsory by statute, the parties can be deemed to have waived their right to challenge any constitutional infringement that the award may entail. Carofano v. Bridgeport, 196 Conn. 623, 637-38, 495 A.2d 1011 (1985). In cases in which the parties have bargained for and agreed to an arbitration procedure, this court’s respect for the autonomy of that process has motivated us to recognize such a notion of waiver. See Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 62, 357 A.2d 466 (1975); cf. Carofano v. Bridgeport, supra (compulsory arbitration).

Arbitration in the present case was a creature of the parties’ agreement and not mandated by legislative enactment. Nevertheless, there are compelling reasons for considering the merits of the plaintiff’s constitutional and policy claims. Our concern is not with whether the arbitrators have properly construed the collective bargaining agreement, but only with whether the agreement, and, a fortiori, the arbitration award itself, is capable of being enforced. See Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 196 n.6, 425 A.2d 1247 (1979). “ ‘Just as private parties cannot expect a court to enforce a contract between them to engage in conduct which is illegal or otherwise contrary to public policy, they cannot expect an intervening arbitral award approving (or ordering) that conduct to receive judicial endorsement.’ Gorman, Basic Text on Labor Law, Unionization and Collective Bargaining (1976) p. 593.” Board of Trustees v. Federation of Technical College Teachers, supra, 195. Furthermore, when an arbitration panel declines to hear constitutional claims on the basis of this court’s decision in Caldor, Inc. v. Thornton, 191 Conn. 336, 464 A.2d 785 (1983), aff'd, Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985), the parties cannot reasonably be deemed to have waived their rights to make those claims.

In the present case the plaintiff did raise its constitutional and policy claims in its brief before the state board of mediation and arbitration. The defendants responded in their brief that our holding in Caldor, Inc., precluded arbitral consideration of those claims. The parties may have felt that it would have been futile formally to submit such issues to the arbitration panel, because this court in Caldor, Inc., had upheld the panel’s refusal to consider a constitutional question clearly included within the unrestricted submission. In any event, the arbitrators in the present case agreed that policy matters as well as constitutional issues were not within their jurisdiction. Because the parties’ submission did not include such matters, we need not determine whether the panel correctly construed our decision in Caldor, Inc., which removed issues concerning the constitutional validity of a statute from the arbitration sphere, to apply also to issues involving public policy as expressed in common law or statute. We conclude, however, that the parties in this case have not waived their right to challenge article XII, § 3, of the collective bargaining agreement on constitutional and policy grounds, and that judicial review in such a circumstance extends beyond the parameters of General Statutes § 52-418.

II

We proceed to review the merits of the plaintiff’s constitutional and policy claims. The plaintiff contends that article XII, § 3, of the collective bargaining agreement (1) creates a class preference in violation of article first, § 1, of our state constitution, which provides in part that “no man or set of men are entitled to exclusive public emoluments or privileges from the community,” and (2) grants a special bonus to public works employees such as the defendant Johns in contravention of public policy. We reject both of these contentions.

A

Article first, § 1, of the constitution of Connecticut “prohibits the adoption of legislation that has no public purpose but operates to confer private gain on an individual or group. Tough v. Ives, 162 Conn. 274, 292-93, 294 A.2d 67 (1972); Lyman v. Adorno, 133 Conn. 511, 515-16, 52 A.2d 702 (1947). Where, however, the statute does serve a public purpose, the legislature may constitutionally differentiate between classes of persons, so long as the legislative classification bears a rational relationship to the public purpose sought to be served. Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 315, 417 A.2d 343 (1979); Tough v. Ives, supra; State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 106, 90 A.2d 862 (1952).” Beccia v. Waterbury, 192 Conn. 127, 134, 470 A.2d 1202 (1984).

In Grover v. Manchester, 168 Conn. 84, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975), this court upheld the constitutional validity of General Statutes § 7-433c, the statute incorporated into the contract provision at issue in the present case. We said that § 7-433c does not create a class preference in violation of § 1 of article first of our state constitution because providing an inducement for persons to seek jobs with police and fire departments is a proper public purpose, and because “the legislature took into consideration the peculiar problems and unusual risks attendant upon these occupations in determining that they properly occupy a different status from other municipal employees.” Grover v. Manchester, supra; see also Pyne v. New Haven, 177 Conn. 456, 460-61, 418 A.2d 899 (1979). Because, as the trial court stated, the benefits claimed in the present case are not mandated by statute but were agreed upon by the parties in arms length bargaining, we need not determine whether members of Local 134, the defendant Johns’ bargaining unit, are employed in extra risk occupations comparable to those of police and fire department personnel that would justify their statutory entitlement to such benefits.

In Grover v. Manchester, supra, 88, we termed the benefits conferred by § 7-433c “special compensation.” As such, they are indubitably an appropriate subject of collective bargaining between a municipal employer and a designated employee organization. Under § 7-469 of the General Statutes, such parties have a duty to bargain collectively “with respect to wages, hours and other conditions of employment,” as set forth in General Statutes § 7-470 (c). See Board of Police Commissioners v. White, 171 Conn. 553, 559, 370 A.2d 1070 (1976). We have often noted that the language of the Municipal Employee Relations Act; General Statutes §§ 7-467 through 7-477; and of the National Labor Relations Act; 29 U.S.C. §§ 151 through 161; “is essentially the same.” Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 354, 402 A.2d 332 (1978). Therefore, “ ‘the judicial interpretation frequently accorded the federal act is of great assistance and persuasive force in the interpretation of our own acts.’ West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 579, 295 A.2d 526 [1972], and cases cited.” Winchester v. Connecticut State Board of Labor Relations, supra.

In Inland Steel Co. v. National Labor Relations Board, 170 F.2d 247 (7th Cir.), cert. denied, 336 U.S. 960, 69 S. Ct. 887, 93 L. Ed. 1112 (1949), the court construed the terms “wages” and “other conditions of employment,” as found in then § 9 (a) of the National Labor Relations Act. The court agreed with the National Labor Relations Board that “the benefits accruing to an employee by reason of a retirement or pension plan are encompassed in both categories,” that the term “wages” “must be construed to include emoluments of value, like pension and insurance benefits, which may accrue to employees out of their employment relationship,” and that “[realistically viewed, this type of wage enhancement or increase, no less than any other, becomes an integral part of the entire wage structure . . . .” Id., 250-51.

We conclude that the “special compensation” represented by the hypertension and heart disease benefits presently at issue is certainly within the realm of acceptable, if not mandatory, bargaining subjects. Furthermore, each bargaining unit has a right individually to dicker over contract terms through untrammeled bargaining. See generally Local 1219 v. Connecticut Labor Relations Board, 171 Conn. 342, 370 A.2d 952 (1976). We consequently agree with the trial court that because the present disability benefits would clearly have been permissible if spelled out in detail in the parties’ agreement without reference to § 7-433c, “there would appear to be no reason why they might not be described in the shorthand manner employed here.” We hold, therefore, that article XII, § 3, of the collective bargaining agreement does not create a class preference in violation of article first, § 1, of our state constitution.

B

Finally, the plaintiff contends that the contract provision it challenges grants a special bonus to public works employees in contravention of public policy. The plaintiff’s policy claim can be disposed of largely on the basis of what has already been said. Although the plaintiff contends that the arbitrators “exceeded their powers” in violation of § 52-418 (d) by rendering a decision that contravenes public policy, we reject this as the basis of our review, noting, once again, that the arbitration award conformed to the parties’ submission. We proceed to review the policy claim on grounds independent of § 52-418.

As is the case with respect to contracts generally, the judiciary’s power to enforce the terms of a collective bargaining agreement is at all times exercised subject to the restrictions and limitations of public policy as manifested in constitutions, statutes and applicable legal precedents. See generally Hurd v. Hodge, 334 U.S. 24, 34-35, 68 S. Ct. 847, 92 L. Ed. 1187 (1948); Muschany v. United States, 324 U.S. 49, 64-68, 65 S. Ct. 442, 89 L. Ed. 744 (1945); Avco Corporation v. Preteska, 22 Conn. Sup. 475, 480-81, 174 A.2d 684 (1961). “Where the enforcement of private agreements would be violative of that policy, it is the obligation of courts to refrain from such exertions of judicial power.” Hurd v. Hodge, supra, 35. “As the term ‘public policy’ is vague, [however,] there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy.” Muschany v. United States, supra, 66.

We have made it clear today that article XII, § 3, of the collective bargaining agreement does not violate the equal protection policy against the governmental creation of class preferences underlying article first, § 1, of our state constitution. We now add that § 7-433c, which recites that one of the purposes for its enactment was to “act as an inducement in attracting and securing persons” for employment in police and fire departments nowhere indicates that the benefits it mandates shall not be available by consent of the parties to other municipal employees. We conclude that the purpose of § 7-433c is not to remove these benefits from the realm of arms length collective bargaining, but merely to ensure that they are provided for members of police and fire departments, even where their municipal employers object. Therefore, § 7-433c does not manifest a policy limitation that would render the challenged contract provision unenforceable. Nor do we find any such limitation in our case law.

Finally, we agree with the defendants that the most compelling policy considerations relevant to the present case weigh in favor of untrammeled bargaining over contract terms. “In the federal sector it has been said that the purpose of the NLRA is to seek the peaceful adjustment of labor-management disputes as a substitute for industrial strife and the promotion of industrial stabilization through the collective bargaining agreement. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 [I960]. This is also the essential thrust of our State Labor Relations Act and the [Municipal Employee Relations Act].” Winchester v. Connecticut State Board of Labor Relations, supra, 356. Our conclusion is that neither article XII, § 3, of the parties’ collective bargaining agreement nor the arbitration panel’s award contravenes public policy.

There is no error.

In this opinion the other justices concurred.

       Article XII, § 3, provides: “PENSIONS .... Effective April 1,1974, the Municipality shall provide all members of the bargaining unit with the hypertension or heart disease benefits mandated for municipal fire and police personnel under 1971 P.A. 524 under the same terms and conditions as set forth in said Public Act; provided, however, that any new employee hired on or after November 1, 1978, shall not be eligible for hypertension or heart disease benefits.”
      Because Johns was over forty-five years old when he began working for the plaintiff, he was ineligible to participate in the town’s ordinary retirement plan. See Stratford Town Code, “Retirement Plan for Employees of the Town of Stratford,” § 2, as amended by Appendix D.

       General Statutes § 7-433c provides: “benefits FOR POLICEMEN OR FIREMEN DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR HEART DISEASE. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular mem- ’ ber of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”
      Although Johns did not show that he had contracted heart disease as a result of his employment, § 7-433c does not impose such a condition precedent on claimants.

       Article XVI of the collective bargaining agreement provides in pertinent part: “Section 1. For the purpose of this Agreement, a ‘Grievance’ is defined as any dispute between the Municipality and the Association, or between the Municipality and any employee group of employees concerning the interpretation, application [or] violation of the provisions of this Agreement. No matter shall be subject to grievance unless taken up within fifteen (15) working days of its most recent occurrence. . . . Section 3. .. . Step 2. ... C. If such grievance is not resolved to the satisfaction of the Association by the Town Manager or his designated representative within seven (7) working days after such [parties meet], the Association may within ten (10) working days thereafter submit the dispute to the State Board of Mediation and Arbitration to provide arbitration service. The decision of the Arbitration panel shall be final and binding on both parties.”

       The panel made the following award: “The Town of Stratford did violate Section 3 of Article XII by refusing to pay the grievant, Warren Johns, compensation in the same amount and in the same manner as that provided under Chapter 568 in accordance with the provisions of Section 7-433c of the Connecticut General Statutes. The Town shall forthwith make said payments to the grievant. There is no award of interest or attorneys’ fees rendered at this time; however, the Board of Mediation and Arbitration shall retain jurisdiction of this case and in the event the case is returned for other reasons, the matter of interest and attorneys’ fees may be considered at that time.”

       General Statutes § 52-417 provides: “application for order confirming award. At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to 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, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”
      General Statutes (Rev. to 1982) § 52-418 provides: “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.”

       The submitted issue read: “Did the Town of Stratford violate Article XII, Section 3, by refusing to pay the grievant, Warren Johns, compensation in the same amount and in the same manner as that provided under Chapter 568 in accordance with the provisions of Section 7-433e of the Connecticut General Statutes? If so, what shall be the remedy?”

       Article first, § 1, of our state constitution provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”
      The plaintiff also asserts that the contested provision violates the equal protection clause of the fourteenth amendment to the United States constitution. This court has repeatedly stated that, in addition to article first, § 20; see Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, 223 n.l, 377 A.2d 296 (1977); article first, § 1, of our constitution has a meaning equivalent to that of the clause of the fourteenth amendment to the federal constitution that prohibits the states from denying to any person the equal protection of the laws. E.g., Leech v. Veterans’ Bonus Divi

        sion Appeals Board, 179 Conn. 311, 319, 426 A.2d 289 (1979); Laurel, Inc. v. Commissioner of Transportation, supra, 222-23; Lublin v. Brown, 168 Conn. 212, 219, 362 A.2d 769 (1975); Lyman v. Adorno, 133 Conn. 511, 515, 52 A.2d 702 (1947). Because the latter claim adds nothing to the former, we limit ourselves to the argument asserted under the Connecticut constitution. Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 119 n.3, 355 A.2d 72 (1974); State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 105-106, 90 A.2d 862 (1952).

       In its memorandum of decision the trial court stated that although considerations of “peculiar occupational hazard and the promotion of public safety,” which are set forth in General Statutes § 7-433c and which enabled that statute to withstand constitutional attack; Grover v. Manchester, 168 Conn. 84, 88, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975); seem lacking in the present case, the benefits claimed “are not statutory but contractual, agreed upon by the parties in arms length bargaining.” Therefore, said the court, “there is no creation of any class by the government and no grant of exclusive public emoluments or privileges.”

       In Caldor, Inc. v. Thornton, 191 Conn. 336, 344, 464 A.2d 785 (1983), aff’d, Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985), this court held that the state board of mediation and arbitration, as an administrative agency, has not been granted the authority to consider constitutional issues. That we “reserve[d] for another day the extent to which an arbitrator may have authority to determine constitutional questions . . . which do not attack a statute as being unconstitutional on its face”; id., 345 n.6; does not compel us to find a waiver-in the present case.

       In Grover v. Manchester, 168 Conn. 84, 88, 357 A.2d 922 (1975), we also rejected the contention that the financial obligation that § 7-433c imposes on towns deprives towns of property without due process of law. We said that § 7-433c is free from the infirmity of a predecessor statute, General Statutes § 7-433a, which we declared unconstitutional in Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318 (1971), because it raised a conclusive presumption that hypertension or heart disease suffered by a fire department or police department employee whose physical examination on entry into the service had failed to reveal any evidence of such an impairment was a personal injury that arose out of and in the course of his employment. We note that a 1974 amendment to the Stratford Town Code, “Retirement Plan for Employees of the Town of Stratford,” § 3 (2), which provides in part that “[i]n the case of firemen and policemen and all members of the Pension Plan, disablement due to hypertension or heart disease shall be conclusively presumed to be disability incurred in the line of duty,” is not at issue today. There is no claim of a necessary link between this amendment and article XII, § 3, of the collective bargaining agreement.


author: Per Curiam.

text:
    Connecticut Water Company v. Metropolitan District Commission et al. Connecticut Water Company v. Douglas S. Lloyd, Commissioner of the Department of Health Services, et al.
    (12720)
    (12878)
    Peters, C. J. Healey, Shea, Dannehy and Cioffi, Js.
    Argued November 12
    decision released December 23, 1986

      Palmer S. McGee, Jr., with whom, on the brief, was J. Rene Frechette, for the appellant (plaintiff in both cases).

      Richard J. Lynch, assistant attorney general, with whom were Elizabeth H. Hadley, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Elizabeth A. Staugaard, legal intern, for the appellee (defendant Douglas S. Lloyd, commissioner of the department of health services).

      Michael J. Whelton, for the appellee (defendant Metropolitan District Commission).
   Per Curiam.

The issues in these two appeals arise out of a dispute about whether the Connecticut Water Company or the Metropolitan District Commission bears the responsibility for the construction of a water filtration plant for Collinsville that the commissioner of health services has determined to be necessary for compliance with the requirements of the Safe Drinking Water Act. General Statutes §§ 25-32, 25-34. The first case is an equitable action brought by the Connecticut Water Company to compel the Metropolitan District Commission to honor contractual obligations under a 1914 contract between these two parties, and to order the commissioner of health services to stay administrative proceedings against the Connecticut Water Company until these contract claims have been resolved. In that case, the Connecticut Water Company has appealed from the judgment of the trial court, N. O’Neill, J., granting the commissioner’s motion to dismiss on the ground of sovereign immunity. The second case is an administrative appeal by the Connecticut Water Company from the order of the commissioner directing it to build the needed water treatment plant. In that case, the Connecticut Water Company has appealed from the judgment of the trial court, Clark, J., dismissing the administrative appeal. We consolidated the two appeals in this court.

While these appeals were pending, the Connecticut Water Company and the Metropolitan District Commission, on August 13, 1986, entered into a new contract delineating their mutual rights and duties for the construction of the Collinsville water treatment plant. The commissioner thereupon filed a motion to dismiss the appeal in the equitable action on the ground of mootness. Upon consideration of the record before us and the arguments of counsel, we have determined that this motion should be granted.

In the administrative appeal, the parties are in disagreement about what effect this court should give to the contractual settlement between the Connecticut Water Company and the Metropolitan District Commission. The appeal by the Connecticut Water Company does not seriously dispute the administrative determination that the drinking water supply of the Collinsville Division of the Connecticut Water Company fails to meet regulatory standards for minimum color and turbidity. What continues to be at issue, however, is the question of who should bear the responsibility for correcting these deficiencies.

The centrality of the issue of responsibility is evident from the administrative record. The hearing officer who made the factual findings of noncompliance with regulatory standards held both the Connecticut Water Company and the Metropolitan District Commission responsible, and proposed that each of them be ordered to terminate the continuing violations. The commissioner took a different view. He determined that “[i]n the instant case, the Department of Health Services should not allow itself to become a party to the dispute between the Metropolitan District Commission and the Connecticut Water Company. It elects therefore to issue orders directed to the Connecticut Water Company alone as it has the obligation to see that the water it serves to its consumers meets the regulatory standards. Although the raw water supplied by the Metropolitan District Commission to the Connecticut Water Company does not comply with the regulations, the Connecticut Water Company as the purchaser of the water has the obligation to see that it does.” Accordingly, the commissioner’s order required the Connecticut Water Company alone to comply with a stated schedule for the construction of a water treatment plant.

It is obvious, on this record, that the administrative order presently on appeal was based, at least in part, on facts that no longer obtain. The record establishes that “the dispute between the Metropolitan District Commission and the Connecticut Water Company” was a significant factor in the commissioner’s assignment of unilateral responsibility for correction of the violation of water standards. As in Laurel Park, Inc. v. Pac, 194 Conn. 677, 683, 485 A.2d 1272 (1984), the eviden-tiary basis for the commissioner’s decision has been cast into doubt by the emergence of new information that was not previously available. In these circumstances, we conclude that the administrative appeal has merit to the limited extent that this case should be remanded to the commissioner for reconsideration of his order in light of the contract of August 13, 1986. Cf. General Statutes § 4-183 (e).

In Docket No. 12720, the appeal is dismissed. In Docket No. 12878, the judgment is set aside and the trial court is directed to remand the case for further proceedings before the commissioner of health services.

       General Statutes § 25-32 provides in relevant part: “Sec. 25-32. department OP HEALTH SERVICES JURISDICTION RE WATER AND ICE SUPPLIES. POWERS AND DUTIES OP COMMISSIONER RE WATER COMPANY OWNED LANDS. PERMITS. WATER TREATMENT STANDARDS, TESTS AND PEES, (a) The department of health services shall have jurisdiction over all matters concerning the purity and adequacy of any source of water or ice supply used by any municipality, public institution or water or ice company for obtaining water or ice, the safety of any distributing plant and system for public health purposes, the adequacy of methods used to assure water purity, and such other matters relating to the construction and operation of such distributing plant and system as may affect public health. The qualifications of the operators of water treatment plants or water distribution systems which treat or supply water used or intended for use by the public shall be subject to the approval of said department pursuant to regulations adopted by the commissioner in accordance with chapter 54.
      * ** *
      “(f) The commissioner of health services shall adopt and from time to time may amend the following: (1) Physical, chemical, radiological and microbiological standards for the quality of public drinking water; (2) minimum treatment methods, taking into account the costs thereof, required for all sources of drinking water, including guidelines for the design and operation of treatment works and water sources, which guidelines shall serve as the basis for approval of local water supply plans by said commissioner; (3) minimum standards to assure the long-term purity and adequacy of the public drinking water supply to all residents of this state; and (4) classifications of water treatment plants and water distribution systems which treat or supply water used or intended for use by the public. On or after October 1,1975, any water company which requests approval of any drinking water source shall provide for such treatment methods as specified by the commissioner of health services, provided any water company in operation prior to October 1,1975, and having such source shall comply with regulations adopted by said commissioner in conformance with The Safe Drinking Water Act, Public Law 93-523, and shall submit on or before February 1,1976, a statement of intent to provide for treatment methods as specified by said commissioner, to said commissioner for his approval.”
      “[General Statutes] Sec. 25-34. investigation of water or ice supply. (a) The department of health services may, and upon complaint shall, investigate any system of water supply or source of water or ice supply from which water or ice used by the public is obtained, and, if it finds any pollution or threatened pollution which in its judgment is prejudicial to public health, it shall notify the owner or operator of such water company or system of ice supply, or the person or corporation causing or permitting such pollution or threatened pollution, and the commissioner of environmental protection, of its findings and shall make such orders as it deems necessary to protect such water or ice supply and render such water or ice safe for domestic use.
      “(b) A copy of any such order shall be mailed to such owner or operator or such person or corporation by certified mail, return receipt requested. Within thirty days of the date of mailing, the recipient of the order may request a hearing to show why the findings in the order are not based on substantial evidence or that the order is an abuse of discretion. Upon receipt of such request the commissioner shall grant a hearing as soon thereafter as practicable or within ten business days if the order requires immediate compliance. The commissioner shall not grant any request for a hearing at any time thereafter. The order shall be effective on a date set by the commissioner but the recipient of the order may request a stay of such order pending the decision of the commissioner. Any hearing shall be deemed to be a contested case and held in accordance with the provisions of chapter 54. The request for a hearing shall be a condition precedent to an appeal under the provisions of section 25-36.”

       This contract was authorized by Public Acts 1986, No. 86-420, § 11, and Public Acts 1986, No. 86-403, § 127.

       General Statutes § 4-183 (e) provides: “appeal to superior court. . . . (e) If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.”


author: Hendel, J.

text:
    State of Connecticut v. Guillermo Ramos
    (12906)
    Peters, C. J., Healey, Dannehy, Callahan and Hendel, Js.
    Argued September 30
    decision released December 23, 1986

      Edward N. Lerner, with whom, on the brief, was Gerald M. Klein, for the appellant (defendant).

      Carl Schuman, assistant state’s attorney, with whom, on the brief, was JohnM. Bailey, state’s attorney, for the appellee (state).
   Hendel, J.

The issue on this appeal is whether the state’s failure to afford the defendant, Guillermo Ramos, a preliminary hearing to determine probable cause within the statutorily prescribed period precluded the state from trying the defendant on the charge of murder. We conclude that the defendant waived his right to a timely probable cause hearing and thus find no error.

The chronology of events is not disputed. On October 16, 1982, Craig Ryan was shot and killed outside a bar in Hartford. Shortly thereafter a warrant was issued for the defendant’s arrest.

On November 24,1982, amendment seventeen to the Connecticut constitution, amending article first, § 8, became effective. The amendment states in part that “[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law . . . .”

The defendant was arrested in April, 1983. On May 2, 1983, the state filed an information in the Superior Court charging the defendant with the murder of Ryan in violation of General Statutes § 53a-54a. On May 26, 1983, General Statutes § 54-46a, which sets forth the procedures for a probable cause hearing, became effective. Section 54-46a (b) provides, in part, for a probable cause hearing to be conducted within sixty days of the filing of the information in the Superior Court, unless the. hearing is waived by the accused.

On June 8, 1983, the defendant filed a motion for a probable cause hearing, which the trial court, Borden, J., denied without prejudice. A grand jury was subsequently convened and, on September 7, 1983, it indicted the defendant for murder. On September 16, 1983, the trial court, Brennan, J., consolidated the defendant’s case with several others and, with the consent of the defendant, reserved to this court questions concerning the defendant’s asserted right to a probable cause hearing. State v. Sanabria, 192 Conn. 671, 681, 682, 474 A.2d 760 (1984). In answering the reserved questions, we concluded on April 10, 1984, that all persons, including the defendant, being held for crimes punishable by death or life imprisonment and not indicted by a grand jury before May 26,1983, were entitled to a probable cause hearing before their cases went to trial, regardless of the dates they were arrested or charged by information. Id., 699.

After our decision in Sanabria, the defendant filed a motion to dismiss the charges against him because he had not received a probable cause hearing within sixty days from the filing of the information in Superior Court. The motion was denied.

One month after Sanabria was decided, and before the defendant was tried, the Superior Court conducted a probable cause hearing and determined that there was probable cause to believe the defendant had committed the offense charged. Prior to trial, the defendant again moved to dismiss the charges against him, and again his motion was denied. The defendant was tried for murder and convicted of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant then filed a motion for a new trial, renewing his claim that, because he had not received a probable cause hearing within the prescribed sixty day period, he should not have been brought to trial for murder. The motion was denied and the defendant was sentenced to a prison term of sixteen years.

The defendant now claims that the trial court erred in denying his motion to dismiss because the probable cause hearing was held more than sixty days after the information was filed.

Before addressing the merits of the defendant’s claim, we must first determine whether the claim is reviewable. Ordinarily, the denial of a motion to dismiss is not assignable as error. State v. Peay, 165 Conn. 374, 374-75, 335 A.2d 296 (1973); State v. Smith, 149 Conn. 487, 489, 181 A.2d 446 (1962). Such a claim, however, will be entertained if it involves a fundamental constitutional right. State v. Troynack, 174 Conn. 89, 90-91, 384 A.2d 326 (1977); State v. L’Heureux, 166 Conn. 312, 315, 348 A.2d 578 (1974); cf. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

Amendment seventeen to the Connecticut constitution expressly guarantees that no person shall be held for a crime punishable by death or life imprisonment unless probable cause is shown at a hearing. The preliminary probable cause hearing system acts as a constitutional safeguard to afford an accused greater protection of his rights than did the former grand jury system. State v. Mitchell, 200 Conn. 323, 331, 512 A.2d 140 (1986). In deciding to review the evidence presented at a probable cause hearing, we reasoned in Mitchell that the right to a probable cause hearing is of such importance that the defendant must be able to challenge the hearing itself on appeal or the expanded protection afforded by the amendment would be but a hollow shell. Id.

The state attempts to distinguish Mitchell by arguing that Mitchell concerned a constitutional challenge to the amendment itself, while the defendant’s claim here is based solely on procedures prescribed by the implementing statute and thus has no constitutional basis. We cannot agree with the state’s rationale. As we have previously stated, the amendment, coupled with its implementing legislation, has created an expansive new right; State v. Mitchell, supra, 329-30; and the substantive right that amendment accords is so intimately bound up with its procedural underpinnings that the procedures are the constituent parts of the right itself. State v. Sanabria, supra, 690. Therefore, because the defendant has a constitutional right not to be tried without probable cause being found according to the procedures set forth in General Statutes § 54-46a, and the denial of his motion to dismiss implicates that constitutional right, we will address the defendant’s claim.

The defendant claims that he was entitled to a probable cause hearing within sixty days after the information against him was filed. Because he did not receive a hearing within that time, he asserts that the state was barred from placing him on trial for murder. Although General Statutes § 54-46a (b) provides that an accused shall be afforded a probable cause hearing within sixty days of the filing of the information, § 54-46a (a) provides that the “accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.”

In Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), the United States Supreme Court articulated the classic definition of waiver, stating a “waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” An effective waiver presupposes full knowledge of the right or privilege allegedly waived and some act “done designedly or knowingly to relinquish it.” State v. Toste, 178 Conn. 626, 630, 424 A.2d 293 (1979); see Schneckloth v. Bustamonte, 412 U.S. 218, 238, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Moreover, the waiver must be “ ‘accomplished with sufficient awareness of the relevant circumstances and likely consequences.’ ” State v. Shockley, 188 Conn. 697, 706, 453 A.2d 441 (1982), quoting State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978).

The existence of the waiver depends on “the unique circumstances of each case”; Adams v. United States ex rel. McCann, 317 U.S. 269, 278, 63 S. Ct. 236, 87 L. Ed. 269 (1942); and the particular facts and conditions surrounding that case, “including the background, experience and conduct of the accused.” Johnson v. Zerbst, supra; State v. Shockley, supra, 707. The waiver, however, does not have to be express, but may be implied from the acts or conduct of the defendant. McClain v. Manson, 183 Conn. 418, 430, 439 A.2d 430 (1981).

In the present case the defendant was fully aware of his right to receive a probable cause hearing within sixty days after the filing of an information against him, as evidenced by his June 8, 1983 motion requesting a preliminary hearing. Upon the denial of this motion, if the defendant had done nothing further and challenged the court’s ruling subsequent to conviction, it would be clear that he had not waived his right to a hearing within the statutorily prescribed period. Cf. State v. Timmons, 7 Conn. App. 457, 509 A.2d 64, cert. granted, 201 Conn. 802, 513 A.2d 697 (1986).

The defendant, however, relinquished any claim to his right to a probable cause hearing within the prescribed time period by consenting to the reservation in Sanabria prior to trial. By joining in Sanabria, the defendant was, in effect, seeking a preliminary hearing before his case went to trial. Having sought, and subsequently received, a probable cause hearing after the period prescribed by § 54-46a (b), the defendant cannot now challenge the conviction because he did not receive a hearing within the prescribed time. We conclude that the defendant knowingly and voluntarily waived his right to a hearing within sixty days of the filing of an information charging him with murder by participating in the reservation to this court in State v. Sanabria. We, therefore, find no error.

In this opinion the other justices concurred.

       Amendment seventeen to the Connecticut constitution provides: “Section 8 of article first of the constitution is amended to read as follows:
      “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       Because murder is punishable as a class A felony, the defendant was subject to a term of not less than twenty-five years nor more than life. General Statutes § 53a-35a.

       “[General Statutes] Sec. 54-46a. probable cause hearing for persons CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE IMPRISONMENT. (a) No person charged by the state on or after May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. . . .”

       The trial court reserved the questions pursuant to General Statutes § 52-235, which provides: “(a) The superior court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the supreme court or appellate court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein.
      “(b) The court or judge making the reservation shall, in the judgment, decree or decision made or rendered in such cases, conform to the advice of the supreme court or the appellate court.”