text:
    Steven M. Asherman v. State of Connecticut
    (12763)
    Peters, C. J., Dannehy, Santaniello, Callahan and Ment, Js.
    Argued January 9
    decision released March 3, 1987

      Maxwell Heiman, with whom was William J. Tracy, Jr., for the appellant (petitioner).

      JohnM. Massameno, assistant state’s attorney, with whom were Roseann Wagner, legal intern, and, on the brief, Dennis A. Santore, state’s attorney, for the appellee (state).
   Peters, C. J.

The dispositive issue in this case is whether the discovery of new evidence unavailable at a previous criminal trial required the trial court to grant a petition for a new trial. On August 13,1979, the petitioner, Steven M. Asherman, was convicted by a jury of manslaughter in the first degree, in violation of General Statutes § 53a-55, for the homicide of Michael Aranow. Upon appeal to this court, the conviction was upheld in State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). The discovery of new physical evidence in the vicinity of the scene of the crime in May, 1980, prompted the petitioner to file an amended two count petition for a new trial pursuant to General Statutes § 52-270 (a) when his criminal appeal proved to be unsuccessful. After a hearing, the trial court denied his petition and this appeal ensued. We find no error.

As we concluded in State v. Asherman, supra, the jury in the criminal trial could reasonably have found the following facts, which are relevant to the present appeal. On July 29, 1978, the petitioner and Michael Aranow, who were students at Columbia Medical School, took a break from school and traveled to the country estate of the victim’s family in New Hartford. State v. Asherman, supra, 697-98. Shortly after their arrival between 9 and 9:30 p.m., the two men walked through the woods to a lookout at the top of Jones Mountain. Id., 698. After their arrival at the lookout, “some unexplained emotion or circumstance, induced perhaps by a mind-altering drug,” led the petitioner to kill the victim by stabbing him with a knife over 100 times. Id.

After attempting to hide the body, the petitioner “left the scene, covered with blood, looking for some place where he could wash the blood off his clothing.” Id., 698-99. As he walked through the woods, he hid, somewhere, both the knife that he had carried to the scene in a “day pack” and the blood drenched shirt that he was wearing. Id. He then attempted to wash the blood from the rest of his clothing in a stream or nearby pond. Id., 699. Once day broke, he returned to the home of the victim’s uncle, Frank Jones, and told him that he and the victim had been in the woods when they encountered “two guys with a gun” who had accosted them. Id. He also told Jones that he had escaped but could not find the victim, and that he wanted to call the police and the victim’s parents immediately. Id.

As a result of the hearing held on the petition for a new trial, the trial court found certain further facts. On or about May 11,1980, some nine months after the jury had convicted the petitioner, two items were found in an open field near Steele Road, approximately two miles from the site on Jones Mountain where the victim had been fatally stabbed. These items consisted of a blue knapsack and a blue “shirt” and “tie.”

The trial court denied the petition for a new trial. That petition was in two counts, one relying on the materiality of the newly discovered evidence, the other on allegations of juror misconduct.

With respect to the first count, claiming newly discovered evidence, the court concluded that the petitioner had failed to establish, by a preponderance of the evidence, that the evidence in question was “ ‘newly discovered, material to the issues on a new trial . . . not merely cumulative and likely to produce a different result. Lombardo v. State, 172 Conn. 385, 390-91 [374 A.2d 1065] (1977).’ ” In the court’s view, the shirt was not material evidence because it bore no resemblance to the shirt reportedly worn by the petitioner on the night of the homicide. With respect to the knapsack, the court determined that, because the petitioner had conducted a diligent, but unsuccessful, pretrial search for this item, it was indeed newly discovered evidence. Nonetheless, the court concluded that its discovery would not warrant a new trial because its introduction into evidence would probably not lead to the petitioner’s acquittal if a new trial were to be held.

The second count of the petition alleged that a new trial should be ordered because of various alleged acts of juror misconduct at the petitioner’s criminal trial. The court found that these allegations of juror misconduct had been previously raised and fully considered in the motion for a new trial and a motion in arrest of judgment filed by the petitioner immediately after his conviction. Both motions had been denied by the trial court, Missal, J., and that judgment was affirmed by this court in State v. Asherman, supra. The trial court rejected the petitioner’s argument in this case that changes in the law in and subsequent to State v. Asherman, supra, entitled him to conduct an evidentiary inquiry into the mental processes of the jurors who had convicted him in his criminal trial.

From these adverse trial court rulings on both counts of his petition, the petitioner appealed to this court. He claims that the trial court erred in: (1) finding that the petitioner, despite the introduction of newly discovered physical evidence, had not met his burden of proving that a new trial was warranted; (2) permitting the state to amend its answer after the hearing on the petition; and (3) restricting the scope of the petitioner’s examination of jurors in his effort to impeach the jury’s verdict.

I

The petitioner’s first claim of error contends that the trial court erred in denying his petition for a new trial on the basis of the newly discovered physical evidence. The petitioner maintains that the shirt and knapsack introduced at the hearing constitute exculpatory evidence which, if presented to a jury, would lead to his acquittal. He insists that the absence of these items at his trial allowed the state “to speculate endlessly” as to the whereabouts of these items, to his prejudice. Furthermore, the introduction of these items would, in the petitioner’s view, highlight numerous flaws and inconsistencies in the state’s theory of the case. We disagree.

The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established. The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial. Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983); Pass v. Pass, 152 Conn. 508, 511, 208 A.2d 753 (1965). This strict standard is meant to effectuate the underlying “equitable principle that once a judgment is rendered it is to be considered final,” and should not be disturbed by posttrial motions except for a compelling reason. Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983); see In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). In determining the potential impact of new evidence, the trial court must weigh that evidence in conjunction with the evidence presented at the original trial. Kubeck v. Foremost Foods Co., supra, 669. It is within the discretion of the trial court to determine, upon examination of all the evidence, whether the petitioner has established substantial grounds for a new trial, and the judgment of the trial court will be set aside on appeal only if it reflects a clear abuse of discretion. Id., 670.

In the present case, there is no dispute that in fact the shirt and the knapsack are newly discovered evidence. The state does not dispute that the petitioner made a diligent, good faith effort to discover the items prior to his trial. The parties disagree, however, about the significance of these items and what effect, if any, their production would have on the outcome of a new trial.

The petitioner explains the significance of the shirt as follows. At the criminal trial, the state accounted for the absence of his shirt by theorizing that after the attack, the petitioner was covered with blood and therefore hid his bloodstained shirt, along with the knapsack, prior to descending from the mountain. He points out that the shirt presented at the new trial hearing had no trace of blood on it. This fact, according to the petitioner, is probative of his innocence and casts doubt on the state’s argument that he schemed to conceal all evidence of his guilt.

The petitioner’s argument, however, sidesteps the fundamental question of whether the shirt presently at issue is actually the shirt that he wore on the night of July 29, 1978. The testimony at the criminal trial established that the petitioner then told the police that he had been wearing a long-sleeved blue shirt with a collar, which buttoned up the front and at the cuff, similar to a dress shirt. The item the petitioner now relies upon was described by the trial court as appearing to be “a short bathrobe or wrapper with a cloth tie belt.” Our own examination of this item leads us to agree with the finding of the trial court that it bears no similarity to the shirt reportedly worn by the petitioner at the scene of the crime. This shirt is immaterial to the case, and unquestionably would not have been admissible into evidence.

The knapsack is a slightly more significant piece of evidence. Because it was found to contain a hair which proved, under microscopic examination, to be similar to the hair of the petitioner, the court concluded that this item would have been admissible and material in the criminal trial. Nonetheless, the court concluded that its admission would probably not have led to the petitioner’s acquittal.

The petitioner argues that the knapsack is exculpatory evidence for several reasons. First, since there was no blood on the knapsack and no weapons were found therein, it undermines the state’s theory that the petitioner must have concealed the bloody weapons, and perhaps the bloody shirt as well, in the knapsack before hiding it. As the state notes, however, there are other plausible explanations for the absence of blood on the knapsack. For example, the petitioner might have discarded his shirt and the weapons separately, for any number of reasons, rather than concealing them in the knapsack. Second, the petitioner contends that a jury might conclude from examination of the knapsack that the weapons used in the crime, which were allegedly carried in the knapsack, were too large to fit into the knapsack. After examining the knapsack, however, we are persuaded that a jury could reasonably have concluded that the knapsack could have accommodated the weapons in question. Finally, the petitioner asserts that the location where the knapsack was found, beyond the area where he was believed to have been that night, would bolster his defense that he and the victim had been attacked by two men, the petitioner’s theory being that the assailants were responsible for taking the knapsack to the site where it was eventually found. As the state points out, it is unlikely that so nebulous a theory would have made the knapsack admissible at trial, especially when an interval of two years had elapsed between the occurrence of the crime and the discovery of the knapsack. See State v. Stepney, 191 Conn. 233, 245, 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).

We therefore agree with the trial court that the petitioner has established that the knapsack is material evidence but not that its admission would probably change the outcome of the criminal case. In light of the substantial circumstantial evidence that “overwhelmingly points to the defendant’s guilt of manslaughter in the first degree”; State v. Asherman, supra, 742; the trial court did not abuse its discretion in denying the petition for a new trial.

II

The petitioner’s second claim of error is that the trial court erred by permitting the state to amend its answer after the hearing on the petition for a new trial. In response to the petitioner’s amended petition filed on April 4,1985, the state filed an answer on April 9,1985. That answer responded to the allegations of the first count, but set forth only a special defense to the second count, claiming that the rights and liabilities of the parties regarding the alleged juror misconduct had been fully adjudicated in State v. Asherman, supra. On April 29, 1985, following the hearing on the petition, the state filed a motion to amend its answer in order to insert a general denial to the second count. After a hearing on the motion, the trial court granted that motion.

The petitioner asserts that the court must take the allegations of the second count as established because the state failed to contest those allegations in its original answer. See Practice Book § 160; Worden v. Francis, 153 Conn. 578, 584, 219 A.2d 442 (1966). As the petitioner conceded at oral argument before this court, however, the trial court is vested with broad discretion to allow a party to amend his pleadings at any time before, during or after trial. Practice Book § 176; McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 564, 473 A.2d 1185 (1984); Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980). Practice Book § 176 provides in relevant part: “Except as provided in Sec. 182, a party may amend his pleadings or other parts of the record or proceedings at any time subsequent to that stated in [Sec. 175] . . . [b]y order of court . . . .” In this case, there is no indication in the record that the petitioner was ever led to believe that the state was admitting the allegations of the second count. In the absence of a showing of prejudice, which the trial court specifically invited the petitioner to make at the hearing held on the state’s motion, we conclude that the trial court did not abuse its discretion in allowing the state to amend its answer.

Ill

The petitioner’s final claim of error is that the trial court improperly restricted the scope of his inquiry into alleged juror misconduct, in deprivation of his federal and state constitutional rights. At the hearing on the petition for a new trial, the petitioner sought to elicit testimony from two jurors to prove that he had been prejudiced by juror misconduct. The alleged misconduct consisted of: using an unauthorized dictionary definition of “inference” during deliberations; conducting experiments with articles of clothing that were not introduced into evidence; and reaching a verdict by compromise rather than by deliberation. Relying on McNamee v. Woodbury Congregation of Jehovah’s Witnesses, 193 Conn. 15, 475 A.2d 262 (1984), which was not available to the petitioner prior to our decision in State v. Asherman, supra, the petitioner argues that he is now entitled to impeach a jury’s verdict by inquiring into acts of juror misconduct as well as their impact on the jury. See also Aillon v. State, 168 Conn. 541, 363 A.2d 49 (1975). He argues further that, had he been permitted to conduct such an inquiry, he would have elicited new evidence proving that he was denied a fair trial.

This multipronged claim of juror misconduct is not a newly discovered claim of a constitutional deprivation. Following his criminal trial, the petitioner filed a motion for a new trial and a motion in arrest of judgment. At a postverdict hearing on those motions, jurors were extensively examined and cross-examined by counsel for the parties concerning their alleged acts of misconduct. In a detailed memorandum of decision, the trial court, Missal, J., denied both motions, reasoning that any misconduct by the jury was harmless beyond a reasonable doubt. These rulings were upheld by this court upon the petitioner’s appeal in State v. Asherman, supra. Thus, since the petitioner has had one opportunity to litigate this claim, we must first determine whether the present claim of juror misconduct is barred under the doctrine of res judicata. If so, we will not reach the merits of the claim.

It is well settled that the doctrine of res judicata, or claim preclusion, applies, in principle, to both civil and criminal proceedings. State v. Aillon, 189 Conn. 416, 424, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983). Under that doctrine, “a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L. Ed. 195 (1876); 1 Restatement (Second), Judgments §§ 19, 25; James & Hazard, Civil Procedure (2d Ed.) § 11.3.” State v. Aillon, supra, 423-24; see In re Juvenile Appeal (88-DE), supra, 316; Cain v. Moore, 182 Conn. 470, 473-74, 438 A.2d 723 (1980), cert. denied, 454 U.S. 844, 102 S. Ct. 157, 70 L. Ed. 2d 129 (1981). In a criminal case, whether two claims are the same for purposes of res judicata requires an examination of “ ‘all the circumstances of the proceedings.’ ” State v. Aillon, supra, 425.

In the present case, the valid final judgment denying, on the merits, the petitioner’s previous motion for a new trial and motion in arrest of judgment is the predicate for application of the doctrine of res judicata. State v. Asherman, supra. The question before us, therefore, is whether the present claim of juror misconduct is sufficiently similar to the previous claim raised before the trial court, Missal, J., and considered fully on appeal in State v. Asherman, supra, to warrant our giving preclusive effect to the prior judgment.

In his previous claim of juror misconduct the petitioner alleged, inter alia, that the jurors conducted an experiment using objects that were not admitted as evidence, that one juror read to the others a dictionary definition of “inference,” and that eleven of the jurors deliberated in the absence of the twelfth juror. The petitioner does not argue that his present allegations of juror misconduct are significantly different in substance. Instead, he maintains that the trial court, Missal, J., wrongfully placed the burden of proof on the state to establish that the misconduct was harmless beyond a reasonable doubt, and as a result, wrongfully precluded him from demonstrating that he was prejudiced by the misconduct. The petitioner concededly failed to assign this trial court ruling as error on his direct appeal, but claims that the failure to do so is not fatal to his present claim. He asserts that his present claim is not barred by res judicata because State v. Asherman, supra, 737, set forth a new rule of law, requiring the appellant to prove actual prejudice resulting from juror misconduct. Consequently, he could not have claimed as error the trial court riding when he had no notice, until State v. Asherman, supra, had been decided, that the burden of proof was on him to establish actual prejudice.

We disagree with the petitioner’s underlying premise, that this court changed the existing law in State v. Asherman, supra. As the state notes in its brief, the petitioner erroneously assumed that proof of juror misconduct, of any kind, automatically gives rise to a presumption of prejudice. We have previously held that, in cases where the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error. State v. Castonguay, 194 Conn. 416, 435, 481 A.2d 56 (1984); Aillon v. State, supra, 548. Those cases are clearly distinguishable from cases like the present, in which the trial court was in no way responsible for the juror misconduct. In the latter situation, we have repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct. State v. Castonguay, supra, 435-36 n.19; State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983); see Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). Since the petitioner knew or should have known at the time of his direct appeal that he had the burden of proving actual prejudice, he should have assigned as error in State v. Asherman, supra, the ruling by the trial court precluding him from offering evidence of prejudice. The petitioner cannot collaterally attack that ruling now simply because he missed an earlier opportunity to challenge on direct appeal. See Meinket v. Levinson, 193 Conn. 110, 113, 474 A.2d 454 (1984); Glemboski v. Glemboski, 184 Conn. 602, 605-606, 440 A.2d 242 (1981).

We recognize that in criminal proceedings the “interest in achieving finality” underlying the doctrine of res judicata must be “balanced against the interest in assuring that no individual is deprived of his liberty in violation of his constitutional rights. Sanders v. United States, 373 U.S. 1, 8, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); Clark v. Nickeson, 321 F. Sup. 415, 420 (D. Conn. 1971).” State v. Aillon, supra, 425. Having weighed these competing interests, however, we conclude that in this case the interest in achieving finality must prevail. Since the previously raised claim of juror misconduct and the one presently before us are virtually identical in substance, the present claim is barred by res judicata. We therefore will not address whether the trial court erred in restricting the petitioner’s inquiry into alleged juror misconduct.

There is no error.

In this opinion the other justices concurred.

       The petitioner had been indicted by a grand jury on the charge of murder in violation of General Statutes § 53a-54a (a). He was convicted by the jury on the lesser included offense of manslaughter in the first degree on the basis of evidence that he had committed the homicide under circumstances showing extreme emotional disturbance. State v. Asherman, 193 Conn. 695, 729, 478 A.2d 227 (1984).
      General Statutes (Rev. to 1977) § 53a-55 (a) provides: “manslaughter IN the first degree: CLASS B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 52-270 (a) provides: “causes for which new trials may be granted, (a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a non-suit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”

       The knapsack and the shirt constitute the new evidence at issue in this appeal. An empty film cannister was also found along with these items, but the petitioner offered no explanation, either at the hearing or on appeal, as to the significance of the cannister. Furthermore, we note that there is some dispute whether the so-called “shirt” would more accurately be described as a short bathrobe.

       The shirt was found in the field approximately ten and one-half feet from the knapsack.

       A jury that was convinced that the petitioner was irrational and acting under extreme emotional disturbance when he killed the victim certainly might have been persuaded by such an explanation.

       To this day, the weapons have never been found. An expert witness testified at trial, however, that the victim’s fatal injuries were inflicted with two weapons, a knife and a heavy bladed instrument, such as an ax, a hatchet or a machete.

       The state argues persuasively that the knapsack could have been brought to the site in any number of ways, and perhaps long after the incident in question occurred.

       Practice Book § 182 provides: “—amendment of amount in demand
      “A party may amend his statement concerning the amount in demand by order of the court upon filing of a motion for leave to file such amendment, with a copy of the amendment appended, after service upon each party as provided by Sec. 120, and with proof of service endorsed thereon. After obtaining permission of the court, the moving party shall file the original amendment with the clerk. If the amount, legal interest or property in demand was alleged to be less than $2500 in accordance with the provisions of Sec. 131, or, prior to October 1,1979, was alleged to be less than $7500, and the party has been given court permission to amend his demand to an amount in excess of either amount, he shall pay any entry fee prescribed by statute to the clerk when he files the amendment.”
      Practice Book § 175 provides: “—amendment as of right by plaintiff
      “The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day.”

       The petitioner seems to bring this claim under the following constitutional provisions.
      The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”
      The fourteenth amendment to the United States constitution provides in relevant part: “nor shall any State deprive any person of life, liberty or property, without due process of law . . . .”
      Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to a speedy, public trial by an impartial jury.”
      Article first, § 10, of the Connecticut constitution provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       At oral argument, the petitioner stated that he had made an offer of proof on the issue of prejudice before the trial court, Missal, J., but was precluded from offering such evidence. In our view, the fact that he made this offer of proof indicates that the petitioner was aware, prior to our decision in State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), that he was required to prove actual prejudice.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Ronald L. Crawford
    (12912)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued December 2, 1986
    decision released March 10, 1987

      Dennis F. O’Toole, deputy assistant public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, James G. Clark and Raymond Thomas, deputy assistant state’s attorneys, and Glenn Kerns, law student intern, for the appellee (state).
   Callahan, J.

The defendant was charged in the first count of a two count information with issuing a bad check in violation of General Statutes § 53a-128 and in the second count with larceny in the fourth degree in violation of General Statutes § 53a-125. Both offenses are misdemeanors, and arose out of the same incident, which occurred on June 5,1983, in East Windsor when the defendant issued a fraudulent check in payment of a moped at a local store. An arrest warrant was issued for the defendant on July 22, 1983. The warrant was not executed and the defendant was not arrested, however, until July 29, 1985, more than two years after the offenses were committed. The record indicates no reason for the delay in the defendant’s arrest.

The defendant filed a motion to dismiss claiming that, because he had not been “prosecuted” within one year of the date of the commission of the offenses charged as required by General Statutes § 54-193 (b), his prosecution was time-barred. Neither the defendant nor the state presented testimony at the hearing on the motion. The trial court, relying on State v. Cordova, 38 Conn. Sup. 377, 448 A.2d 848 (1982), denied the defendant’s motion to dismiss. The defendant subsequently filed a conditional plea of nolo contendere under General Statutes § 54-94a expressly reserving his right to appeal from the trial court’s denial of his motion. The trial court accepted the plea of nolo contendere, entered a finding of guilty, imposed a sentence of one year suspended after nine months and a period of probation, and ordered restitution.

The only issue raised by this appeal is whether the issuance of the arrest warrant on July 22,1983, within the period of limitation provided by General Statutes § 54-193 (b), tolled the statute. The defendant contends on appeal, as he did in the trial court, that he was not “prosecuted” as required by the statute until he was arrested by virtue of the warrant and an information filed in court on July 29, 1985, well beyond the period of limitation provided by § 54-193 (b). The state argues, however, that the defendant was “prosecuted” for the purposes of the statute of limitations when a judicial officer, presented with an affidavit and a short form information, which incorporated an application for an arrest warrant and an arrest warrant, found probable cause and issued the arrest warrant on July 22,1983, shortly after the crimes charged had been committed. We agree with the state and conclude that the issuance of the arrest warrant tolled the statute of limitations.

General Statutes § 54-193 (b) provides in pertinent part: “No person may be prosecuted for any [misdemeanor] . . . except within one year next after the offense has been committed.” The statute, however, does not define “prosecuted” or contain any provision delineating at what stage of the prosecution the limitation period is tolled. The Appellate Session of the Superior Court in State v. Cordova, supra, the only authority in Connecticut construing this provision, analyzed the statute in the context of the policies underlying limitations statutes, and concluded that the issuance of the warrant tolls the statute of limitations.

Although the purpose of a statute of limitations is to ensure a timely commencement of prosecution, jurisdictions differ on what act will suffice to show such commencement. In jurisdictions where legislation requires the finding of an indictment or the filing of an information as the first step in a criminal case, the “prosecution” is deemed commenced by either of these acts, and the running of the statute of limitations is thereby tolled. 2 W. LaFave & J. Israel, Criminal Procedure § 18.5; see 1F. Wharton, Criminal Law (14th Ed.) § 90. In the absence of such legislation, however, it is generally held that the prosecution is commenced, and the statute tolled, at the time a complaint is laid before a magistrate and a warrant of arrest is issued. State v. Chacon, 479 So. 2d 229, 230 (Fla. App. 1985); McMorris v. State, 277 Md. 62, 67-68, 355 A.2d 438 (1975); State v. Mars, 39 Md. App. 436, 438, 386 A.2d 1234 (1978); see Akers v. State, 370 So. 2d 81, 83 (Fla. App. 1979); State v. White, 92 P. 829, 830 (Kan. 1907); 2 W. LaFave & J. Israel, supra; 21 Am. Jur. 2d, Criminal Law § 230. The American Law Institute model penal code is in accord. It provides that “[a] prosecution is commenced either when an indictment is found [or an information filed] or when a warrant or other process is issued, provided that such warrant or process is executed without unreasonable delay.” Model Penal Code (1985) § 1.06 (5); see State v. Barnes, 66 Or. App. 896, 676 P.2d 344 (1984); Commonwealth v. Patterson, 236 Pa. Super. 131, 344 A.2d 710 (1975).

General Statutes § 54-193 (b) does not make reference to the finding of an indictment or the filing of an information but provides only that a person must be “prosecuted” within a specified time. Further, neither the Practice Book nor our statutes contain provisions for the finding of an indictment or the filing of an information prior to the arrest of an accused person. Cf. Practice Book § 972. In this state, the initial step to commence a prosecution, when an arrest is to be made by virtue of a warrant, is the presentation of an application for a warrant, which is accompanied by an affidavit, by a prosecutorial official to a judicial authority. If the judicial authority finds that the accompanying affidavit shows probable cause to believe that an offense has been committed, and that the person complained against committed it, the judicial authority may issue an arrest warrant. General Statutes § 54-2a.

When an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him. When the prosecutorial authority has done everything possible within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations is tolled. See State v. Hickman, 189 So. 2d 254, 261-62 (Fla. App 1966). An accused should not be rewarded, absent evidence of a lack of due diligence on the part of the officer charged with executing the warrant, for managing to avoid apprehension to a point in time beyond the period of limitation.

We recognize, however, that some limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitation. United States v. Levine, 658 F.2d 113, 127 (3d Cir. 1981); State v. Coleman, 202 Conn. 86, 91, 519 A.2d 1201 (1987); see United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). Therefore, we adopt, what we think is the sensible approach of the model penal code, and conclude that, in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of § 54-193 (b), must be executed without unreasonable delay. Model Penal Code, supra. We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations.

The statute of limitations is, however, an affirmative defense. State v. Coleman, supra, 90; State v. Littlejohn, 199 Conn. 631, 640, 508 A.2d 1376 (1986). Consequently, the burden was on the defendant to prove the elements of that defense by a preponderance of the evidence. State v. Coleman, supra; State v. Littlejohn, supra; see General Statutes § 53a-12 (b); United States v. Karlin, 785 F.2d 90, 92 (3d Cir. 1986). Since no testimony was taken on the defendant’s motion to dismiss concerning the reason for the delay in the execution of the warrant in this case, he has failed to meet that burden. We cannot assume, nor could the trial court, that the warrant was not executed with due diligence. The warrant directed the officer serving it to arrest the body of the defendant and “forthwith” have him before the superior court. “It is . . . presumed until the contrary appears that a public officer acting officially has done his duty.” State v. Lenihan, 151 Conn. 552, 555, 200 A.2d 476 (1964). There was no evidence to the contrary.

The defendant argues that State v. Vitale, 190 Conn. 219, 460 A.2d 961 (1983), and State v. Falcon, 196 Conn. 557, 494 A.2d 1190 (1985), require a conclusion that the defendant was not “prosecuted” within the meaning of § 54-193 (b) until the information was filed in court. We disagree. Both Vitale and Falcon are concerned with the issue of when an accused’s sixth amendment right to counsel attaches in a criminal prosecution. State v. Falcon, supra, 562; State v. Vitale, supra, 231. In State v. Vitale, supra, 232, we held that an arrest, whether or not accomplished by a warrant, did not mark the start of adversarial judicial proceedings for right to counsel purposes. In State v. Falcon, supra, we reaffirmed our holding in Vitale and stated, “[njeither the request of a state’s attorney, nor the action of a court in granting that request [for an arrest warrant], converts an arrest warrant into an official accusation signaling the state’s commitment to prosecute.” Taken in the context of the case in which it was made, the statement means only that the issuance of an arrest warrant does not commence such adversarial judicial proceedings as trigger a defendant’s sixth amendment right to counsel. Neither case, however, forecloses our holding that the issuance of an arrest warrant is sufficient initiation of a prosecution to toll the statute of limitations if the warrant is served with due diligence.

We agree, therefore, with the trial court’s denial of the defendant’s motion to dismiss in this case. The timely issuance of the arrest warrant tolled the statute of limitations in the absence of an evidentiary showing of unreasonable delay in its service upon the defendant. Model Penal Code, supra.

There is no error.

In this opinion Peters, C. J., Dannehy and Santaniello, Js., concurred.

Healey, J., concurred in the result.

       “[General Statutes (Rev. to 1983)] Sec. 53a-128. issuing a bad check: class A misdemeanor, (a) A person is guilty of issuing a bad check when: (1) As a drawer or representative drawer, he issues a check knowing that he or his principal, as the case may be, does not then have sufficient funds with the drawee to cover it, and (A) he intends or believes at the time of issuance that payment will be refused by the drawee upon presentation, and (B) payment is refused by the drawee upon presentation; or (2) he passes a check knowing that the drawer thereof does not then have sufficient funds with the drawee to cover it, and (A) he intends or believes at the time the check is passed that payment will be refused by the drawee upon presentation, and (B) payment is refused by the drawee upon presentation.
      “(b) For the purposes of this section, an issuer is presumed to know that the check or order, other than a postdated check or order, would not be paid, if: (1) The issuer had no account with the drawee at the time the check or order was issued; or (2) payment was refused by the drawee for insuffident funds upon presentation within thirty days after issue and the issuer failed to make good within eight days after receiving notice of such refusal. For the purposes of this subsection, an issuer is presumed to have received notice of such refusal if the drawee or payee provides proof of mailing such notice by certified mail, return receipt requested, to the issuer at his last known address.
      “(c) Issuing a bad check is a class A misdemeanor.”

       “[General Statutes] Sec. 53a-125. larceny in the fourth degree: class a misdemeanor, (a) A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds five hundred dollars.
      “(b) Larceny in the fourth degree is a class A misdemeanor.”

       “[General Statutes] Sec. 53a-26. misdemeanor: definition, classification, designation, (a) An offense for which a person may be sentenced to a term of imprisonment of not more than one year is a misdemeanor. . . .”

       “[General Statutes (Rev. to 1983)] Sec. 54-193. limitation of prosecutions for various offenses, (a) There shall be no limitation of time within which a person may be prosecuted for a capital felony or a class A felony.
      “(b) No person may be prosecuted for any offense, except a capital felony or a class A felony, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony or a class A felony, except within one year next after the offense has been committed.
      “(c) If the person against whom an indictment, information or complaint for any of said offenses is brought has fled from and resided out of this state during the period so limited, it may be brought against him at any time within such period, during which he resides in this state, after the commission of the offense.
      “(d) When any suit, indictment, information or complaint for any crime may be brought within any other time than is limited by this section, it shall be brought within such time.”

        State v. Cordova, 38 Conn. Sup. 377, 448 A.2d 848 (1982), was a decision of the Appellate Session of the Superior Court which held that the issuance of an arrest warrant tolls the statute of limitations.

       “[General Statutes] Sec. 54-94a. conditional nolo contendere plea, appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       Unlike State v. Coleman, 202 Conn. 86, 91-92, 519 A.2d 1201 (1986), wherein we held that a denial of a motion to dismiss on the ground that the prosecution was barred by General Statutes § 54-193 (b) was not immediately appealable, in this case, the imposition of sentence is a final judgment which was immediately appealable.

       The prosecution made no claim that the defendant was out of the state at any period after the commission of the offenses charged so as to toll the statute under General Statutes § 54-193 (c). The only issue is that framed and discussed in this opinion.

       General Statutes § 54-46 previously required an indictment for crimes punishable by death or life imprisonment. This provision, however, was amended by No. 83-210 of the 1983 Public Acts. All felonies in Connecticut are now prosecuted by information and misdemeanors by information or complaint. Practice Book § 616.

       “[Practice Book] Sec. 972. —docketing
      “Upon the return of an indictment or of a summons, or of a warrant previously issued by the judicial authority, or upon receipt of notice of an arrest, the clerk of the court having jurisdiction of the case shall forthwith assign a number to the case, enter it on the criminal docket or on other appropriate documents, and make a file in connection therewith. He shall immediately notify the prosecuting authority of the number assigned to the case.”

       “[General Statutes] Sec. 54-2a. issuance of bench warrants of ARREST, SUBPOENAS, CAPIAS AND OTHER CRIMINAL PROCESS. RELEASE CONDITIONS. SERVICE OF COURT process, (a) In all criminal cases the superior court, or any judge thereof, may issue (1) bench warrants of arrest upon application by a prosecutorial official if the court or judge determines that the affidavit accompanying the application shows that there is probable cause to believe that an offense has been committed and that the person complained against committed it, (2) subpoenas for witnesses, (3) capias for witnesses and for defendants who violate an order of the court regarding any court appearance and (4) all other criminal process; and may administer justice in all criminal matters.
      “(b) The court or judge issuing a bench warrant for the arrest of the person or persons complained against, shall, in cases punishable by death or life imprisonment set the conditions of release or indicate that the person or persons named in the warrant shall not be entitled to bail and may, in all other cases set the conditions of release. The conditions of release, if included in the warrant, shall fix the first of the following conditions, which the court or judge finds necessary to assure such person’s appearance in court: (1) Written promise to appear; (2) execution of a bond without surety in no greater amount than necessary or (3) execution of a bond with surety in no greater amount than necessary.
      “(c) In lieu of a warrant for the rearrest of any defendant who fails to appear for trial at the place and time specified or on any court date thereafter the court or judge may issue a capias.

        “(d) All process issued by said court or any judge thereof shall be served by any proper officer, or an indifferent person when specially directed to do so and shall be obeyed by any and all persons and officers to whom the same is directed or whom it may concern.”

       General Statutes § 54-193 (c) does not require a different result. That subsection, which tolls the statute as to a person who has fled from and resides outside the state after the commission of the offense, simply extends the time within which an “indictment, information or complaint” may be brought. While under our present holding the issuance of an arrest warrant within the period of limitation might accomplish the same result, there may be valid reasons why the prosecuting authority cannot procure an arrest warrant while an accused is absent from the state.

       Although it is not an issue on this appeal, it should be mentioned that we do not necessarily agree with the conclusion of the Appellate Session of the Superior Court in State v. Cordova, 38 Conn. Sup. 377, 488 A.2d 848 (1982), that the issuance of an arrest warrant in and of itself triggers the sixth amendment right of a person not yet arrested to a speedy trial. This conclusion does not comport with the purpose of the sixth amendment. “The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nonetheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982). Absent a formal charge, the sixth amendment right to a speedy trial does not extend to the period prior to arrest. United States v. Marion, 404 U.S. 307, 321, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971).
      Such a conclusion is also not in accord with General Statutes § 54-82m which was enacted to ensure the right of an accused to a speedy trial. That statute requires only that the trial of an accused commence within a specified period after the filing date of an information or indictment or the date of arrest, whichever is later. General Statutes § 54-82m. Neither § 54-82m nor Practice Book § 956B (b), which implements the statutory provision, attach any significance to the date of the issuance of an arrest warrant for determining when the right of an accused to a speedy trial comes into being.


author: Shea, J.

text:
    Anthony Henderson v. Department of Motor Vehicles
    (12792)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued December 5, 1986
    decision released March 10, 1987

      Ernest F. Teitell, with whom, on the brief, was Leora Herrmann, for the appellant (plaintiff).

      JohnF. Gill, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Christina G. Dunnell, assistant attorney general, for the appellee (defendant).
   Shea, J.

In this appeal from a decision of the adjudication unit of the department of motor vehicles, suspending the plaintiff’s license because of his involvement in a fatal accident, the Appellate Court upheld the judgment of the trial court, Mulvey, J., dismissing the appeal. Henderson v. Department of Motor Vehicles, 4 Conn. App. 143, 147, 493 A.2d 242 (1985). This court granted the plaintiff’s petition for certification limited to the following issue: “When an adjudicator has engaged in ex parte communication in violation of Connecticut General Statute Sec. 4-181, should relief be provided when the record is devoid of evidence tending to prove that the party seeking the relief has been prejudiced by the communication?” In affirming the trial court’s judgment, the Appellate Court held that, “in order to be entitled to relief, a plaintiff must show prejudice to his rights resulting from an ex parte communication which is in violation of General Statutes § 4-181.” Id., 147. The trial court had similarly concluded that the failure of the plaintiff to demonstrate prejudice barred relief. We disagree with the view that imposes the burden of proving prejudice upon the plaintiff despite a clear violation of § 4-181. Nevertheless, we affirm the judgment because of the plaintiff’s failure to seek disqualification of the adjudicator earlier in the proceeding.

The facts relating to the issues on appeal are not disputed. Pursuant to General Statutes § 14-111 (c), an administrative hearing was conducted by an adjudicator, Attorney Jonas J. Meyer III, on behalf of the department of motor vehicles on June 1,1982, concerning the suspension of the plaintiff’s license to drive as a result of a fatal accident involving a motor vehicle he was found to have been operating at the time of the occurrence. About five minutes before the hearing began, Thomas A. Brown, a state police trooper who had investigated the accident, conversed with the adjudicator concerning the accident in a room behind the hearing room out of the presence of the plaintiff and his attorney. Brown, who was the first witness at the hearing, in response to the plaintiff’s inquiries at the start of his cross-examination, admitted that the adjudicator had “wanted to know the facts and the situation surrounding the accident” and had specifically asked for his conclusion “as to who was driving.” Brown had expressed his opinion as to the identity of the operator. He and the adjudicator together had also examined the photographs of the accident. The remainder of the extensive cross-examination related to Brown’s investigation of the accident.

Because the hearing was not completed on June 1, 1982, another session was held on September 7,1982, at which the plaintiff presented the testimony of two additional state police officers who had investigated the accident. At the conclusion of the testimony the plaintiff moved to dismiss the proceeding because of the ex parte communication between the adjudicator and Brown before commencement of the hearing. This motion was the first reference to the adjudicator’s conversation with Brown since it had been disclosed on cross-examination of that witness three months earlier. The adjudicator denied the motion and later rendered a decision on the merits suspending the plaintiff’s license.

I

As the certified question assumes, it is undisputed that the private conference between the adjudicator and Brown before the hearing violated the prohibition in § 4-181 of the Uniform Administrative Procedure Act (UAPA) against ex parte communications concerning contested cases by those acting in an adjudicative role on behalf of an agency with any person or party. Relying upon General Statutes § 4-183 (g) of the UAPA, which authorizes reversal or modification of an agency decision only when “substantial rights of the appellant have been prejudiced,” the Appellate Court concluded that, “in order to be entitled to relief, a plaintiff must show prejudice to his rights resulting from an ex parte communication which is in violation of General Statutes § 4-181.” Henderson v. Department of Motor Vehicles, supra. The burden of proving prejudice from an undisputed violation of the statutory prohibition against ex parte communications was thus cast upon the plaintiff. Since nothing in the record indicated that the adjudicator had been influenced adversely to the plaintiff by his conversation with Brown, the Appellate Court affirmed the conclusion of the trial court that the agency decision should be upheld for lack of a demonstration of prejudice. It should be noted that the certified question postulates that “the record is devoid of evidence tending to prove” prejudice.

Although we agree with the Appellate Court that § 4-183 (g) requires that substantial rights of a party be prejudiced before an agency decision may be overturned, even where § 4-181 is violated, we disagree with its view that the burden of proving prejudice rested upon the plaintiff. Once it has been demonstrated that a violation of § 4-181 has occurred, a presumption of prejudice must be deemed to arise. Although this presumption is rebuttable, the burden of showing that a prohibited ex parte communication by an adjudicator has not prejudiced a party must be allocated to the agency if § 4-181 is to fulfill its salutary purpose.

If we were to adopt the view of the Appellate Court that a plaintiff must prove not only that a violation of § 4-181 has occurred but also that the agency decision rendered thereafter has been prejudicially affected by the prohibited communication, it is difficult to perceive what purpose the statute would serve. Long before the advent of § 4-181 it had been held that a fundamental requirement of a fair administrative hearing is that “the one who decides shall be bound in good conscience to consider the evidence, to be guided by that alone, and to reach his conclusion uninfluenced by extraneous considerations which in other fields might have play in determining purely executive action.” Morgan v. United States, 298 U.S. 468, 480, 56 S. Ct. 906, 80 L. Ed. 1288 (1936). “Nothing can be treated as evidence which is not introduced as such.” Id. Ex parte communications with persons outside the agency are plainly improper under this standard for administrative adjudication. Even in the absence of such a statute, therefore, an ex parte communication by an adjudicator concerning a case before him would indicate that the decision had been “made upon unlawful procedure,” a ground for reversal or modification specifically mentioned in § 4-183 (g) (3). A plaintiff who also showed “substantial prejudice” to his rights, satisfying the predicate established by § 4-183 (g) for relief upon any of the grounds enumerated therein, would thus be entitled to reversal or modification of the agency decision quite apart from § 4-181. If that statute is to be given any significant effect, as the legislature doubtless intended, we must place upon the agency that has violated its provisions the burden of proving that no prejudice has resulted from the ex parte communication.

We would create a conundrum by imposing the burden of proving prejudice from an ex parte communication upon one challenging an agency decision, because an adjudicating official may not ordinarily be subjected to inquiry concerning the mental process used in reaching a decision. United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L. Ed. 1429 (1941). The agency usually is in a better position to ascertain the content of any communications with its employees than is a party outside the agency, who often must depend on suspicion or rumor. At least where the content and circumstances of an ex parte communication are fully disclosed, a reviewing court can make an informed judgment as to the effect of the prohibited communication on the agency decision. Where an agency fails to present to a reviewing court the substance of any relevant information received by the adjudicator, it fails in its duty to provide a complete record of the basis for the decision. See General Statutes § 4-183 (d); Home Box Office, Inc. v. FCC, 567 F.2d 9, 54 (D.C. Cir.), cert. denied, 434 U.S. 829, 98 S. Ct. 111, 54 L. Ed. 2d 89, reh. denied, 434 U.S. 988, 98 S. Ct. 621, 54 L. Ed. 2d 484 (1977).

In Aillon v. State, 168 Conn. 541, 547, 363 A.2d 49 (1975), this court recognized the rule that a rebuttable presumption of prejudice is created by a judge’s ex parte communication with a jury. Canon 3 of the Code of Judicial Conduct directs that a judge “neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.” Although administrative officials performing an adjudicative role are not ordinarily held to judicial standards of conduct; Petrowski v. Norwich Free Academy, 199 Conn. 231, 237, 506 A.2d 139 (1986); § 4-181 must be read to impose upon adjudicators an essentially similar duty to avoid ex parte communications. It is appropriate, therefore, to assign to the agency, once a violation of § 4-181 has been proved, the burden of demonstrating that the prohibited communication probably was not prejudicial.

Our answer to the certified question of whether relief should be granted where an adjudicator has violated § 4-181 by an ex parte communication, “when the record is devoid of evidence tending to prove that the party seeking the relief has been prejudiced by the communication,” is neither unqualifiedly affirmative or negative. We hold that, once the violation of § 4-181 has been proved by the party seeking relief, the burden shifts to the agency to prove that no prejudice has resulted from the prohibited ex parte communication.

II

Our conclusion that the Appellate Court, as well as the trial court, erred in assuming that the burden of proving prejudice from a violation of § 4-181 rested on the plaintiff would ordinarily require that the judgment be reversed and the case remanded for further proceedings. Although the agency as the appellee has not, pursuant to Practice Book § 3012 (a), filed a statement of alternative grounds upon which to uphold the judgment in either this court or the Appellate Court, one paragraph of its brief does maintain that the failure of the plaintiff to seek disqualification of the adjudicator with reasonable promptness after becoming aware of the adjudicator’s conversation with Brown constitutes a waiver of this procedural defect. Despite the agency’s noncompliance with § 3012 (a), this court is authorized to rely upon alternative grounds supported by the record to sustain a judgment. W. J. Megin, Inc. v. State, 181 Conn. 47, 54, 434 A.2d 306 (1980); State v. Assuntino, 180 Conn. 345, 353, 429 A.2d 900 (1980). “The . . . judgment will be affirmed, though based on erroneous grounds, if the same result is required by law.” A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978).

It is clear from the transcript of the June 1, 1982 hearing that the plaintiff learned of the conversation between the adjudicator and Brown at the start of his cross-examination of that witness, if he had not discovered it previously. Nevertheless, he raised no objection to that impropriety until three months later at the second session of the hearing after having presented the extensive testimony of two state police officers in support of his defense. At that point in the proceeding, he referred specifically to § 4-181 as prohibiting the ex parte conversation with Brown, indicating his awareness of the statute at least by the time of the second hearing session. Even then, however, he did not move to disqualify the adjudicator but sought a dismissal of the proceeding because of the violation of § 4-181. No request for a different adjudicator was made at anytime.

“We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967); see Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 517, 508 A.2d 415 (1986). Although the plaintiff did not actually know the outcome of the hearing when he finally made his motion to dismiss, he may have sensed from the testimony of the witnesses in response to some of the questions asked of them by the adjudicator that the adjudicator's decision on the merits would probably be adverse. The failure to raise a claim of disqualification with reasonable promptness after learning the ground for such a claim ordinarily constitutes a waiver thereof. Windham Cotton Mfg. Co. v. Hartford, Providence & Fishkill R. R. Co., 23 Conn. 373, 384 (1854); Groton and Ledyard v. Hurlburt, 22 Conn. 178, 195 (1852); see Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985); State v. Kohlfuss, 152 Conn. 625, 630-31, 211 A.2d 143 (1965); 41 Am. Jur. 2d, Judges §§ 202, 203.

It is quite clear in this case that the plaintiff was aware of the ex parte communication as a ground for disqualification at the start of the hearing on June 1, 1982, and that he knew of the violation of § 4-181 before the September 7,1982 session. His motion to dismiss the proceeding for this statutory violation was wholly inappropriate, because the disqualification of a particular adjudicator does not constitute a bar to a license suspension proceeding. Another adjudicator could have been assigned for that purpose. Even if we assume, arguendo, that his motion to dismiss should be treated as a motion to disqualify the adjudicator, the motion came long after the plaintiff had become aware of the ground for disqualification relied upon and, nevertheless, had continued to participate at the hearing and to seek a favorable resolution of the proceeding on the merits. We conclude, therefore, that the plaintiff failed to raise the disqualification within any reasonable time frame after learning of the basis thereof and has thus waived it.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] See. 4-181. communications between agency MEMBERS AND EMPLOYEES AND PARTIES IN CONTESTED CASES. Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate. An agency member may communicate -with other members of the agency, and may have the aid and advice of one or more personal assistants.”

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

       The plaintiff contends that in our decision in McDermott v. Commissioner of Children & Youth Services, 168 Conn. 435, 363 A.2d 103 (1975), where we upheld a conclusion of the trial court that the hearing officer, who had “fed information” to a witness and had referred to the agency’s witnesses as “our witnesses,” had violated General Statutes § 4-181, we impliedly held that prejudice was not a requisite for such a violation. We disagree with this analysis. The opinion declares expressly that the conduct of the hearing officer indicated his lack of “impartiality”; id., 443; unlike the present case, in which the certified question presumes no evidence of prejudice.

       Practice Book § 3012 (a), which applied at the time of filing this appeal, provided in part: “If the appellee wishes to present for review alternate grounds upon which the judgment may be affirmed . . . he may file a preliminary statement of issues within fourteen days from the filing of the appeal.” This provision has been redesignated § 4013 (a) (1), by an amendment effective October 1,1986, which changes the last portion of the rule as follows: “he shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.” (Amended portion emphasized.) The amendment also added the following provision: “Whenever the failure to identify an issue in apreliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue.”
      It should also be noted that on October 1,1986, an amendment to Practice Book § 3060G (a), which has been redesignated § 4066, requires an appellee’s brief to contain “[a] counter statement of any issue involved as to which the appellee disagrees with the statement of the appellant or a

        statement of any other grounds which were properly raised by an appellee under See. 4013.” (Amended portion emphasized.) The amendment also provides: “Such statement shall be deemed in replacement of and shall supersede the preliminary statement of the issues.” A provision identical to this last sentence has also been made applicable to an appellant’s brief. See Practice Book § 3060F (a) (now § 4065 [a]).