text:
    L. F. Pace & Sons, Inc. v. The Travelers Indemnity Company
    Decided October 10, 1986

      Peter D. Clark, in support of the petition.

      Vincent M. Simko, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 9 Conn. App. 30, is denied.


source: Caselaw Access Project

license: Public Domain

text:
    Frank Zimny, Administrator (Estate of Hannelore Zimny) v. Cooper-Jarrett, Inc., et al.
    Decided October 10, 1986

      Joseph Adinolfi, Jr., Joseph C. Morelli and John D. Miletti, in support of the petition.

      John W. Lemega, in opposition.
   The petition of the defendant Thomas W. Hogan, Jr., for certification for appeal from the Appellate Court, 8 Conn. App. 407, is denied.


text:
    State of Connecticut v. Alpha Nims
    Decided October 16, 1986

      Beth A. Merkin, in support of the petition.

      Robert J. Devlin, Jr., assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 631, is denied.


text:
    State of Connecticut v. Alfred J. Barkal
    Decided October 29, 1986

      Vincent W. Oswecki, Jr., in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 313, is denied.


text:
    State of Connecticut v. Carmen Colon
    Decided October 29, 1986

      Gerald M. Klein, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 111, is denied.


text:
    State of Connecticut v. Edward Dennison, Jr.
    Decided October 29, 1986

      John J. Buckley, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 454, is denied.


text:
    State of Connecticut v. John J. Elliott
    Decided October 29, 1986

      John Joseph Elliott, pro se, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 566, is denied.


text:
    State of Connecticut v. Richard J. Fantasia
    Decided October 29, 1986

      Richard S. Cramer, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 588, is denied.


text:
    State of Connecticut v. Daniel H. Henderson
    Decided October 29, 1986

      John R. Williams, in support of the petition.

      Michael E. O'Hare, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 342, is denied.


text:
    State of Connecticut v. Gladys Horton
    Decided October 29, 1986

      Louis S. Avitabile, in support of the petition.

      Susan C. Marks, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 376, is denied.


text:
    State of Connecticut v. Timothy C. Shashaty
    Decided October 29, 1986

      John R. Williams, in support of the petition.

      StevenM. Sellers, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 387, is granted.


text:
    Earl Edward Willametz v. Susi Contracting Company, Inc., et al.
    Decided October 29, 1986

      Earl E. Willametz, pro se, in support of the petition.

      Chester J. Bukowski, Jr., in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 9 Conn. App. 1, is denied.


text:
    Richard LaVogue v. Cincinnati, Inc., et al.
    Decided November 25, 1986

      Richard S. Bartlett, in support of the petition.

      Barry J. Waters, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 9 Conn. App. 91, is denied.


text:
    State of Connecticut v. Joel B. Millstein
    Decided November 25, 1986

      Howard A. Lawrence, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 581, is denied.


text:
    Augustus J. Simmons v. J. William Burns, Commissioner of Transportation
    Decided November 25, 1986

      Eugene C. Cushman, in support of the petition.

      Arnold K. Shimelman, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 9 Conn. App. 802, is denied.


text:
    State of Connecticut v. Michael LaCasse
    Decided November 25, 1986

      Joette Katz, public defender, and John W. Watson, assistant public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 9 Conn. App. 79, is denied.


text:
    Gilbert G. Velilla v. United Technologies Corporation, Hamilton Standard Division, et al.
    Decided November 25, 1986

      Gilbert G. Velilla, pro se, in support of the petition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 9 Conn. App. 803, is denied.


author: Dannehy, J.

text:
    State of Connecticut v. Glen A. Mullings
    (12914)
    Shea, Dannehy, Callahan, Quinn and Ment, Js.
    Argued October 10, 1986
    decision released January 6, 1987

      Joette Katz, public defender, with whom was Robert Sweeney, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Mary Galvin, assistant state’s attorney, for the appellee (state).
   Dannehy, J.

The defendant, Glen A. Mullings, was found guilty by a jury of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). After denying motions for a judgment of acquittal at the close of the state’s case and for a new trial at the close of all the evidence, the trial court sentenced the defendant to imprisonment for a term of ten years. On appeal, the defendant contends that the trial court erred: (1) in refusing to strike the testimony of a certain witness; (2) in its instructions regarding circumstantial evidence; (3) in allowing certain cross-examination of the defendant’s alibi witnesses; and (4) in refusing to give an adverse inference instruction concerning the unavailability of evidence. We find no error.

After the jury was selected, the trial court heard evidence on the defendant’s motion in limine to exclude the testimony of Charles Bryant, the victim of the crime and the key witness for the state. After conducting a hearing outside of the jury’s presence, the court denied the defendant’s motion. The evidence received by the court at the hearing will be stated subsequently when we consider that issue. This opinion will commence with a summary of the pertinent evidence during the state’s case in chief.

The evidence most favorable to the state indicates that on December 22,1984, Bryant was working at the Arco AM-PM Minimart in New Haven. He testified that he was alone in the store when the defendant entered between 2:30 and 3 a.m. and asked for a person called “Rerun.” Bryant told the defendant that he had not seen Rerun. At the same time the defendant began walking toward an office in the rear of the store. As he reached the office he inquired whether the Chungs, who owned the Minimart, were on the premises. The defendant returned from the office to the counter where Bryant was standing. He put his hand in his pocket, withdrew a gun, replaced the gun in his pocket and said, “This is a robbery.” The defendant demanded and was given the money from the cash register and a change box that was hidden under the counter. He ordered Bryant not to push the “panic button” and to move away from the counter. Bryant complied with both orders. The defendant stated that he knew where the panic button was and also knew the “angle of the [surveillance] camera.” While these events were transpiring, Bryant had a good opportunity to view the defendant. He later described the robber as a black male, between five feet eight inches and six feet tall, about twenty-eight to thirty years old, and of average build. The man was beardless, with a “Jeri curl” hairstyle, and was wearing a black velvet jacket and brown trousers. According to Bryant, the defendant went into the office to disconnect the surveillance camera, returned to the counter, and asked for a box of Newport cigarettes. He assured Bryant that he would not hurt him and stated that he committed the robbery to get back at the Chungs. After the defendant left the store Bryant looked out and saw him driving away in a large, dark-colored automobile.

Bryant reported the robbery to the police and several uniformed officers of the New Haven police department promptly responded. At the scene Bryant furnished the investigating officers with a detailed description of the man who had robbed him, including the man’s height, weight, build, age, hair length and clothing. Bryant was immediately taken to police headquarters to view some photographs. The police showed Bryant a group of photographs but Bryant made no identification. Thereafter Bryant was shown a second array of photographs but again he made no identification.

Within two weeks after the robbery, Bryant again saw the defendant while working the night shift at the Minimart. He testified that one evening he heard someone rattling the Minimart door, which was locked. According to Bryant, as he approached the door he saw the defendant standing outside. The defendant took one look at Bryant, turned and ran. Bryant watched the defendant drive away in a dark-colored Cadillac automobile.

On January 14, 1985, Bryant was asked to come to police headquarters to look at a third array of photographs. At this time, he selected the defendant’s photograph and said that he was “98 percent sure” that the defendant was the robber. In court, Bryant positively identified the defendant as the man he had personally observed on the morning of the robbery. During Bryant’s testimony, the jury also saw a videotape of the robbery up until the time the robber turned off the machine. The videotape corroborated Bryant’s version of the events. After Bryant finished his testimony, he stood side by side with the defendant to allow the jury to compare their sizes because Bryant had testified that the robber was shorter than he.

Hsick Chung, the owner of the Minimart, testified that he had employed the defendant on the night shift for approximately one month in the summer of 1984. When the defendant left Chung’s employ he was an angry man, apparently because of an argument he had had with Chung’s wife. Chung testified that the defendant knew the location of the surveillance system and the panic button in the store. He also knew where the cash box was concealed.

The defendant was apprehended on March 1, 1985, and at the time of his arrest was in or near his 1970 Cadillac automobile. A package of Newport cigarettes was found in the car and the defendant told the police that he smoked that brand of cigarettes. The defendant also told the police that he had worked at the Minimart and that he knew the location of the panic button and the video camera. Although the defendant had not been informed that Bryant was the Minimart clerk on duty during the night of the robbery, he told the police that the store clerk wore glasses and therefore could have been mistaken about his identification.

I

The defendant’s first contention on appeal is that his motion to exclude Bryant’s testimony was erroneously denied. This motion was filed prior to trial and was based on the alleged prejudicial effect of the loss of a statement Bryant had given to the police. The defendant claimed that the statement Bryant made to the police after the robbery had been deliberately destroyed and, therefore, the interests of justice required excluding Bryant’s testimony from the record. See Practice Book § 755; State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984). After hearing the evidence on the motion, the court denied it.

The court’s ruling must be examined in light of the testimony adduced at the pretrial hearing on the defendant’s motion in limine. The preliminary testimony revealed facts similar to those recounted above. Bryant testified first, relating his account of the armed robbery of the Minimart as it had occurred early in the morning of December 22,1984. Bryant also stated that shortly after the robbery when police officers arrived at the store, he recapitulated the robbery and gave them a description of the man who had robbed him. One officer, Andrew Gambardella, took notes while Bryant was interviewed, and read back portions of the notes to Bryant to ensure their accuracy. Bryant then went to the police station to view an array of photographs. While at the station, Bryant also recounted the robbery incident and described the robber to Detective Donna Amato, who tape-recorded his statements.

Amato testified that the recording could not be produced because the tape had been erased pursuant to routine police procedure. She also revealed that a transcript had been made from the recording but that it had been misplaced. The defendant then requested that the court order a search for the misplaced transcript. Upon learning that such a search would take three to four weeks, the court denied the request. The court found that there had been no “nefarious destruction” of the transcript and decided to treat the transcript as if it had been lost.

Bryant indicated that the description of the robber supplied to Amato did not differ from the description he gave at the hearing. In addition, Bryant told of a prior out-of-court identification he had made of the defendant by selecting his photograph from a group of photographs after rejecting other photographic arrays in which no picture of the defendant appeared.

It is the destruction of the tape recording of Bryant’s statement to Amato and the unavailability of its transcription about which the defendant complains. The state concedes that both the transcript of Bryant’s statement to Amato and the tape recording of that statement are statements subject to disclosure under Practice Book §§ 749 through 755. Our Practice Book makes clear that one sanction for nondisclosure of discoverable material is to strike the testimony of the witness whose statement is being withheld. Practice Book § 755.

This court has considered similar claims involving the loss of a witness’s tape-recorded statement in several recent decisions. See State v. Milum, 197 Conn. 602, 500 A.2d 555 (1985); State v. Myers, supra; State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982). In those cases we employed a balancing test whereby the imposition of sanctions for nondisclosure “ ‘depends in large measure upon the extent of the Government’s culpability for failure to make disclosable material available to the defense, on the one hand, weighed against the amount of prejudice to the defense which resulted, on the other.’ ” State v. Shaw, supra, 386, quoting United States v. Miranda, 526 F.2d 1319, 1329 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S. Ct. 69, 50 L. Ed. 2d 82 (1976); see also State v. Milum, supra, 617; State v. Myers, supra, 467. Since there exists no constitutional right of access to the statements of a witness for the prosecution, the burden of showing prejudice rests with the defendant. State v. Vessichio, 197 Conn. 644, 662, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); State v. Milum, supra, 616.

The defendant in the present case maintains that the destruction of the tape of Bryant’s statement was done deliberately and with bad faith, and therefore sanctions should be imposed against the state regardless of whether prejudice to the defendant can be shown. The defendant bases his bad faith claim on the fact that the New Haven police department’s “routine destruction” of the tape violated our edicts in Shaw and Myers, condemning such routine procedures. These cases were decided prior to the investigation of the robbery in the instant case.

The trial court recognized that central to the issue regarding the missing tape and transcript was the question of whether the police department acted in bad faith. After hearing testimony from several witnesses, the court concluded that Bryant’s statement to Amato had not been destroyed maliciously. Although we have repeatedly emphasized our disapproval of the routine destruction of discoverable material and recognize that the police had at least constructive notice of this policy, we nonetheless agree with the trial court that the police department’s actions in this case were not conducted in bad faith.

The investigation of the robbery took place in December, 1984, six months after our decision in Myers, but prior to our rulings in Milum and Vessichio. In State v. Myers, supra, 465-66, the witness’ statement had been taped but no transcript had been made. The tape was erased and the only existing record of the statement was in the form of a police report paraphrasing what the witness had said. Id., 468. In chastising the police department for erasing the tape we explained that the purpose behind Practice Book §§ 749 through 755, and that of the Jencks Act was to ensure that a witness could be impeached only by statements which could fairly be said to be his own. State v. Myers, supra. We stated that this purpose is frustrated when a government agent “summarizes a witness’ statement in his report and destroys the verbatim statement.” Id.

The state contends and we agree that our holding in Myers could reasonably have been interpreted as excusing the erasure of tapes as long as a verbatim transcript was preserved. In State v. Milum, supra, 614-17, however, we reiterated our disapproval of the destruction of discoverable material even though in that case a transcript had been made from the tape which subsequently was erased. State v. Milum, supra, 614-17. The state contends that since Milum was decided after the investigation of the robbery in this case, the erasure of the tape after a verbatim transcript had been made was consistent with a reasonable, though in hindsight erroneous, interpretation of Myers. Thus, the state argues, the police department’s actions should not be viewed as having been done in bad faith. We agree with the state’s logic.

In the absence of bad faith, we have continued to adhere to the balancing test set forth in Shaw and Myers in determining whether a witness’ testimony should be stricken. State v. Milum, supra, 617. As stated above, that test weighs the extent of the government’s culpability for nondisclosure against the amount of prejudice to the defendant. State v. Myers, supra, 467; State v. Shaw, supra, 386. We recognize that this approach gives broad discretion to the trial court. State v. Shaw, supra. The erasure of the tape by the police, while not in bad faith, was certainly not excusable. This conclusion, however, does not end our inquiry. We must now determine whether the defendant demonstrated some degree of prejudice from the failure to disclose the witness’ statement so as to justify the imposition of sanctions against the state.

The defendant in the present case knew before trial that Bryant’s statement could not be produced because the tape had been erased and the transcript misplaced. He adapted his trial strategy accordingly by using the state’s inability to produce the statement in an attempt to impeach the in-court identification by Bryant. Moreover, the notes taken by Gambardella shortly after the robbery were available to the defendant during cross-examination of Bryant. Aside from a minor discrepancy concerning the type of gun carried by the robber, the cross-examination of Bryant did not reveal any inconsistencies between his trial testimony, his recollection of the contents of the lost statement, and his statement to Gambardella. Finally, we note that the jury viewed the videotape of the incident and observed Bryant’s in-court identification of the defendant. Under the circumstances of this case, the defendant suffered little if any prejudice from the loss of the statement to Amato. We find no error in the trial court’s denial of the defendant’s motion to strike.

II

The defendant next contends that the judge’s instructions to the jury regarding circumstantial evidence unconstitutionally diluted the state’s burden of proving the essential elements of the crime beyond a reasonable doubt.

Robbery may be proven by circumstantial evidence and the inferences drawn therefrom. The state presented circumstantial as well as direct evidence that the defendant was guilty of the crime charged. During its charge on circumstantial evidence, the court stated that the jurors could rely on circumstantial evidence, which would allow them to consider evidence of facts and to infer from those facts the existence of another fact or set of facts. The court went on to explain that such an inference could be made provided “one, that the facts from which you’re asked to draw the inference has itself been proven beyond a reasonable doubt; and two, that the inference asked to be drawn is not only logical and reasonable, but it is strong enough so that you could find that it is more probable than not that the fact to be inferred is true.” (Emphasis added.)

It is well settled that the state must prove all essential elements of a crime beyond a reasonable doubt in order to obtain a conviction. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Reddick, 197 Conn. 115, 131, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). The defendant argues that the “more probable than not” portion of the court’s instruction was likely to have misled the jury into concluding that facts inferred from circumstantial evidence, including those pertaining to the issue of identity, could be found by a preponderance of the evidence. We do not agree.

On three prior occasions, we have examined “more probable than not” instructions on circumstantial evidence. In order to evaluate the instruction given in the present case, it is necessary briefly to review those earlier decisions. In State v. Reddick, supra, 132, we held that instructions nearly identical to those given here could not reasonably have misled the jury because the court repeatedly instructed the jury that the state was required to prove every element of the offense beyond a reasonable doubt. In .State v. Rodgers, 198 Conn. 53, 56-59, 502 A.2d 360 (1985), however, we found reversible error, holding that an instruction similar to that given in the present case impermissibly diluted the requirement that the state establish guilt beyond a reasonable doubt.

The relationship between these two decisions was extensively discussed in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. , 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), another case involving circumstantial evidence instructions. See also State v. Farrar, 7 Conn. App. 149, 508 A.2d 49, cert., denied, 200 Conn. 805, 512 A.2d 229 (1986). We noted in State v. Whelan, supra, 757, that the principal distinction between Reddick and Rodgers was that the element of intent was in dispute in the latter case but not in the former. We emphasized that when the principal factual issue is intent, which is characteristically proven by circumstantial evidence, we will closely scrutinize the court’s instructions regarding the use of circumstantial evidence as proof of that essential element. State v. Whelan, supra. On the other hand, “ ‘where the principal factual issue is identity, which is not classically dependent upon circumstantial evidence for its proof, the trial court’s instructions may be read as a whole to determine whether it is reasonably possible that the jury was misled by an erroneous explanation regarding the use of circumstantial evidence.’ ” Id., quoting State v. Farrar, supra, 155-56.

Unlike Whelan and Rodgers, the primary issue before the jury in this case involved the identity of the robber, as the defendant offered an alibi defense. The challenged portion of the charge was delivered to the jury only once, during the court’s general instructions pertaining to the burden of proof and not, as in Rodgers, during its specific instructions on the elements of the crime. Moreover, on at least fourteen occasions, the court instructed the jury that it was the state’s burden to prove the elements of the crime charged beyond a reasonable doubt, and several times the jury was told that the defendant is presumed innocent until proven guilty.

We also note that substantial direct evidence was presented by the state to establish that the defendant was the perpetrator of the robbery. Bryant made a positive in-court identification of the defendant and his testimony revealed that he had had an ample opportunity to observe the robber before, during and after the robbery. When the trial judge instructed the jury on the identity issue, he clearly stated that the state has the burden of proving identity beyond a reasonable doubt. Having examined the charge as a whole, we conclude that it was not reasonably possible that the isolated use of the phrase “more probable than not” confused or misled the jury with regard to the state’s heavy burden of proof. State v. Mason, 186 Conn. 574, 585-86, 442 A.2d 1335 (1982).

Ill

The defendant’s third claim on appeal involves certain questions asked by the prosecutor during the cross-examination of two defense witnesses. At trial, the defendant presented the testimony of two alibi witnesses, Paul Dickson and Walter Flegler. Both testified that they were good friends of the defendant and that during the time when the robbery occurred they, together with the defendant, were frequenting two local bars. During cross-examination, the witnesses stated that they had learned of the defendant’s arrest shortly after it had occurred. The prosecutor questioned the witnesses about whether they had gone to the police or other authorities as soon as they learned of the defendant’s arrest to explain that the defendant had been with them on the night of the robbery. The defendant objected to the inquiries on relevancy grounds. The trial court overruled the objections and the questions were allowed. The answers revealed that neither witness had reported the information to the authorities when they learned of their friend’s arrest.

We find no merit to the defendant’s claim that the trial court should not have allowed the state to question the alibi witnesses about their pretrial silence. We recently considered this issue in State v. Ghere, 201 Conn. 289, 513 A.2d 1226 (1986). In ruling that questions to alibi witnesses regarding pretrial silence may be relevant, we stated that, “[although we do not believe that an alibi witness has a duty to report an alibi story to the police or, for that matter, to any other person, a witness in many instances naturally may be expected to convey such information, especially when the witness is friendly with the accused. Failure of the witness to do so would, under these circumstances, constitute grounds for impeachment.” Id., 304. We see no basis for questioning this ruling.

The defendant also asserts that the prosecutor’s questions to the alibi witnesses deprived him of due process, a fair trial and the right to present a defense. We note that the defendant phrased his objection at trial on relevancy grounds and not on constitutional grounds. In order for us to review the claim on appeal, we must find that it implicates the deprivation of a fundamental constitutional right and a fair trial. State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

Our review of the defendant’s claim convinces us that the cross-examination of the alibi witnesses in this case did not implicate a fundamental constitutional right. We have never recognized any fundamental right of a defendant not to have his witnesses discredited. Instead, we have acknowledged that an alibi can be “the last desperate resort of the guilty and may be easily concocted. . . State v. Cianflone, 98 Conn. 454, 466, 120 A. 347 (1923). Recently, we explained that vigorous cross-examination of an alibi witness is a necessity. State v. Briggs, 179 Conn. 328, 334, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). In short, the defendant’s constitutional claim is but another instance of a defendant placing “a constitutional tag on a nonconstitutional claim.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); see also State v. Ghere, supra, 301 n.9.

IV

The defendant’s final claim on appeal is that the trial court erred in refusing to instruct the jury that it was allowed to draw an “adverse inference” against the state for its destruction of the tape and loss of the transcript. Both parties acknowledge that our jurisdiction has little authority relating to the propriety of an adverse inference instruction where evidence has been lost or destroyed.

In his request to charge, the defendant referred to State v. Hamele, 188 Conn. 372, 449 A.2d 1020 (1982), which is the only case in which we have discussed an adverse inference instruction in the context of destroyed evidence. In State v. Hamele, supra, 379-80, the trial court refused to suppress testimony regarding certain physical evidence which had been destroyed before trial and thus was unavailable for testing by defense experts. We found no error in the trial court’s refusal to suppress the testimony, pointing out that the court had not found any bad faith destruction and that the defendant had not sought testing of the evidence during the year when it was available. We also noted that an adverse inference instruction had been given to the jury. Id.

The trial judge in the present case distinguished Hamele in denying the defendant’s request to charge. He explained that there, the evidence destroyed was physical evidence (which had been found on the defendant), whereas the present case involved state’s evidence in testimonial form. The statement destroyed was given by and to individuals who testified at trial and whose credibility could be weighed by the jury. Moreover, the court pointed out that it had not found any malicious intent to destroy the tape or misplace the transcript, nor had it found any potential inconsistencies between the taped statement and the testimony given.

We hold that the trial judge’s refusal to provide the jury with an adverse inference instruction was proper under the circumstances of this case. Our brief reference to the adverse inference instruction given in Hamele should not be interpreted as requiring that such an instruction be given in every case involving destroyed evidence. We affirmed the trial court’s actions in that case on the basis of numerous factors, not simply the fact that the instruction was given to the jury. See State v. Hamele, supra, 381-83.

The trial judge in the present case correctly noted that Hamele involved the destruction of physical evidence. Depending on the circumstances surrounding the destruction of physical evidence and the materiality of that evidence, an adverse inference instruction may be appropriate in some instances. In the present case, however, the material destroyed was in the form of a statement made to and by witnesses who testified at trial. As the trial judge noted, the jury was in a position to weigh the credibility of those witnesses. Moreover, the court found that the unavailability of Bryant’s statement was not due to bad faith actions on the part of the police. The trial court did not err in refusing to provide the jury with an adverse inference instruction.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . . ”

       The defendant’s motion was entitled “Motion in Limine Re: Taped Statement Made by Charles Bryant to the New Haven Police Department.” In it, the defendant requests, inter alia, that the testimony of Bryant be stricken pursuant to Practice Book § 755. Because the motion was filed before Bryant testified, we will refer to it as a motion to exclude Bryant’s testimony.

       The defendant’s motion requested that the charges against the defendant be dismissed pursuant to Practice Book § 747 (3) or, in the alternative, that the testimony of Bryant be stricken. On appeal, the defendant only alleges error in the refusal of the court to grant the second request.

       Practice Boole § 755, titled “Failure to Comply with Order,” provides: “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”

       We use the phrase “at least constructive notice” because Amato testified that she personally was unaware of any policy directives in the New Haven police department in December of 1984 directing the police not to erase tapes of witness statements. We have already stated, however, that our decision in State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984), was published before this investigation took place. Therefore, the police department had at least constructive notice of our concern regarding the routine erasure of tapes.

       The Jencks Act, 18 U.S.C. § 3500, was the model for §§ 748 through 755 of our Practice Book. See State v. Myers, 193 Conn. 457, 468 n.6, 479 A.2d 199 (1984).

       There was some confusion at trial as to the kind of gun used by the robber. Bryant testified that he told the officers at the scene of the crime that the gun was a handgun with a “square back.” Apparently, the police report reflected that the gun was a revolver. Bryant, who was unfamiliar with guns, could not recall whether he had used the word revolver or whether the officer had used the word after Bryant described the weapon.

       The trial court instructed the jury on the identity issue as follows: “A definite essential element of this crime, however, is identification. The state has the burden of proving identity beyond a reasonable doubt. It’s not essential that the witness himself be free from doubt as to the correctness of his statement. You, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty. ... I emphasize to you that the burden of proof on the state extends to every element of the crime charged. And this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged.”

       The defendant also objected to the questions regarding Dickson’s pretrial silence on the ground that an adequate foundation had not been laid that Dickson was aware he possessed exculpatory information. The court sustained the objection and the state was permitted to conduct a voir dire to determine when Dickson first learned of the charges against the defendant. The court then ruled that a proper foundation had been laid and the state continued to cross-examine Dickson in the jury’s presence.

        State v. Morrill, 197 Conn. 507, 498 A.2d 76 (1985), also dealt with the destruction of evidence. There, our only reference to an adverse inference instruction was as follows: “Although the defendant also criticizes the lack of any instruction to the jury concerning this evidence, such as that given in State v. Hamele, [188 Conn. 372, 382 n.5, 449 A.2d 1020 (1982)], it does not appear that he made any request for such an instruction.” State v. Morrill, supra, 550.


author: Callahan, J.

text:
    State of Connecticut v. Ciro Scognamiglio
    (12221)
    Healey, Shea, Dannehy, Callahan and Quinn, Js.
    Argued October 10, 1986
    decision released January 6, 1987

      Randolph E. Richardson II and Steven M. Basche, certified legal interns, with whom were Todd D. Fernow and, on the brief, Michael R. Sheldon, for the appellant (defendant).

      Mitchell M. Berger, special assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Walter H. Scanlon, chief assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Ciro Scognamiglio, was charged in two separate indictments with murder in violation of General Statutes § 53a-54a, and with felony murder in violation of General Statutes § ñSa-bác. The indictment for felony murder charged that the defendant, together with Michael Oczkowski, “did commit robbery, and in the course of and in furtherance of such robbery said participants or either one of them did cause the death of Jose Rodriguez, not a participant in said robbery . . . .” After a jury trial, the defendant was acquitted of murder, but convicted of felony murder and sentenced to a term of imprisonment.

The jury could reasonably have found the following relevant facts. On the evening of January 4, 1982, at about 10 p.m., the defendant and Oczkowski drove to South Main Street in Waterbury to obtain drugs. Oczkowski was operating an automobile owned by his father-in-law, while the defendant occupied the front passenger seat. When Oczkowski parked the car on South Main Street near its intersection with West Liberty Street, the defendant was approached by the victim, Jose Rodriguez, and two other hispanic males. A conversation ensued between the defendant and Rodriguez during which Rodriguez handed the defendant a small glassine bag containing heroin from a bundle of similar bags that he was holding.

The defendant tasted the heroin, found it satisfactory, kept the bag, and asked Rodriguez for the additional bags. Rodriguez refused to comply with the defendant’s request until he received payment. The defendant thereupon produced a handgun, pointed it out the passenger side window of the car, and told Rodriguez that he was going to “take it all.” At the sight of the gun, Rodriguez turned and ran toward West Liberty Street. The defendant then leaned from the car window, aimed and fired one shot, striking Rodriguez in the back and killing him. Immediately, the automobile “peeled out,” rapidly leaving the scene. Later that same evening, the defendant and Oczkowski were apprehended at the home of Oczkowski’s in-laws in Waterbury.

Oczkowski testified at the defendant’s trial, as did other witnesses, that the defendant had shot the victim under circumstances similar to those outlined above. The defendant, on the other hand, testified that Oczkowski, after exchanging heated words with Rodriguez, had leaned from the driver’s side of the automobile across the front seat, shooting Rodriguez from the passenger window of the car. The defendant testified, in effect, that no robbery had occurred and that he had merely been a spectator to an altercation between Oczkowski and the victim that had resulted in the victim’s death.

I

The defendant first claims that the trial court unconstitutionally expanded the offense with which he was charged, when it instructed the jury that it could convict him of felony murder if it found that he or another participant in the alleged robbery caused the death of the victim “in the course of and in furtherance of [the robbery] or of flight therefrom. ” (Emphasis added.) The governing statute, General Statutes § 53a-54c, creates criminal liability under both theories; the indictment by which the defendant was charged, however, contained only an allegation that the accused had violated the statute by causing the death of the victim “in the course of and in furtherance of” the robbery. There was no reference in the indictment to flight.

The defendant claims that the trial court’s instruction allowed the jury to convict him on a theory of liability for which he was not indicted. He argues, therefore, that he had no notice of the charges against him in violation of his rights under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant failed to raise this claim at trial or to except to the trial court’s charge. Moreover, he filed a written request that the trial court charge the jury on flight. He contends, nevertheless, that this claim is reviewable on appeal because he has been denied a fundamental constitutional right and a fair trial. State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We find no constitutional violation.

“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him ‘with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . . ' State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979); State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983).” State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Couture, 194 Conn. 530, 560, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). The killing of a nonparticipant “in the course of and in furtherance of [a robbery] or of flight therefrom” are simply two methods of committing the same crime. See State v. Secore, 194 Conn. 692, 697-98, 485 A.2d 1280 (1984); State v. Couture, supra; State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980); State v. Cofone, 164 Conn. 162, 166, 319 A.2d 381 (1972); State v. Edwards, 163 Conn. 527, 532, 316 A.2d 387 (1972). The defendant’s conviction under either theory would consequently bar a subsequent prosecution for the same offense. State v. Franko, supra. “Therefore, for the defendant to establish an infringement of these constitutional rights, he must demonstrate that the court’s charge caused him unfair surprise or prejudiced the preparation of his defense. State v. Roque, supra, 156.” State v. Franko, supra. We conclude that it did neither.

There is nothing in the record to indicate that the defendant would have altered his defense in any way if a theory of liability based on the killing of the victim “in the course of and in furtherance of . . . flight” (emphasis added) from the robbery had been included in the allegations of the indictment. His defense was predicated on his assertion that he had not been a participant in the robbery. He testified that he had been at the scene only because he had accompanied Oczkowski to buy drugs, and that he was merely a passenger in the automobile, an innocent bystander, when Oczkowski shot the victim and fled from the scene. We are, therefore, unable to discern any way in which the defense of the accused was prejudiced by the trial court’s instruction concerning the flight theory of liability. Under either theory on which the jury was instructed, if the defendant did not participate in the robbery, or facilitate the getaway, as he had testified, he would have been acquitted had he been believed by the jury. Further, the affirmative action of the defendant in submitting a written request that the trial court instruct the jury on the flight theory of liability negates any claim that he was unfairly surprised by the inclusion of such an instruction in the court’s charge. See State v. Franko, supra, 490-91.

For similar reasons, we find no violation of the defendant’s fourteenth amendment right to due process. “Due process requires that a criminal defendant be given notice of the specific charge against him and an opportunity to defend against that charge. Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514, 92 L. Ed. 644 (1948).” State v. Franko, supra, 491-92. We have already determined that the defendant’s ability to present a defense was not prejudiced by the trial court’s expansion of the indictment, and it is impossible to find lack of notice when the defendant himself requested an instruction concerning flight, the very portion of the statute which he claims on appeal should not have been charged. The record simply does not support the defendant’s claim that his due process rights were violated.

The defendant concedes, indeed argues forcefully in his brief, which was filed before our decision in Franko, that there was sufficient evidence presented at trial so that it was reasonably possible that the jury could have convicted him of felony murder under the flight theory of liability as well as the theory charged in the indictment. We agree. Therefore, as we held in State v. Franko, supra, 493, “the error of which the defendant complains is tantamount to a variance between the pleadings and the proof. In the absence of an exception, when sufficient evidence of the uncharged issue has been presented to justify its submission to the jury, such a variance does not rise to the level of a constitutional violation unless the record establishes a lack of proper notice or prejudice to the defendant. Since the defendant suffered neither lack of notice nor prejudice in preparing his defense, he cannot prevail on this claim of error.” See State v. Dahlgren, 200 Conn. 586, 595, 512 A.2d 906 (1986).

The defendant contends that, even if Franko is fatal to his claim that he was unconstitutionally convicted on an uncharged theory of liability, the trial court was without jurisdiction to try him under the flight theory of liability. We disagree.

At the time the defendant was prosecuted, it was necessary that crimes punishable by death or life imprisonment be charged by indictment. Conn. Const., art. I, § 8; General Statutes § 54-45 (b). Therefore, if causing the death of a nonparticipant “in the course of and in furtherance of” flight from a robbery is a different crime than causing the death “in the course of and in furtherance of’ a robbery, the crime for which the defendant was indicted, the trial court would have been precluded from amending the indictment unless the defendant expressly consented. Practice Book § 624. We have already decided, however, that the language of § 53a-54c divides the statute not into two crimes, but into two methods of committing the same crime. State v. Secore, supra; State v. Couture, supra; State v. Wallace, supra; State v. Cofone, supra; State v. Edwards, supra.

The trial court had jurisdiction, therefore, of the offense of felony murder and could amend the indictment if no substantive rights of the defendant were prejudiced. We have already determined both that the expansion of the indictment did not prejudice the defendant’s substantive rights because he had adequate notice of the alternate theory of liability charged by the court and that his ability to present a defense was not impaired. The trial court could, therefore, amend the indictment to conform the pleadings to the proof. State v. Franko, supra.

Moreover, the trial court may amend an indictment, even to the extent of charging a different or additional offense, with the express consent of the defendant. Practice Book § 624. In this case, the defendant filed a written request that the trial court instruct the jury on the flight theory of liability. The defendant’s request is tantamount to his express consent to amend the indictment and charge on that ground. It seems a bit disingenuous for the defendant to claim the trial court committed error by instructing the jury on flight when he requested an instruction on that very issue. At least, where no constitutional rights are violated, when an accused requests in writing that an issue be submitted to the jury, he cannot, on appeal, claim error in its submission. State v. Hinckley, 198 Conn. 77, 81 n.2, 502 A.2d 388 (1985). Action induced by an appellant cannot ordinarily be a ground of error. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Kish, 186 Conn. 757, 769, 443 A.2d 1274 (1982); State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973).

II

The defendant next claims that the trial court erred in its initial jury charge and a subsequently requested recharge by instructing the jury on three occasions that it could find the defendant guilty of felony murder if it found beyond a reasonable doubt that he or another participant caused the death of the victim “in the course of or in furtherance of the robbery or of flight therefrom.” (Emphasis added.) We agree.

In order for the defendant to have been convicted of felony murder, it must have been proven beyond a reasonable doubt that he or another participant in the robbery caused the death of the victim “in the course of and in furtherance of [the robbery] or of flight therefrom.” (Emphasis added.) General Statutes § 53a-54c. The language last quoted constitutes but a single element of the crime of felony murder; it does not create alternative theories of criminal liability. It was error therefore for the trial court to charge in the disjunctive.

At the trial, however, the defendant neither requested an instruction on this aspect of the felony murder statute, nor did he take an exception to the misstatements in the court’s charge concerning it. He claims on appeal, however, that the error was of constitutional dimension and requires reversal because it is reasonably possible that the challenged instruction misled the jury and allowed it to convict him without finding all the required elements of felony murder proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Because the defendant claims that he was deprived of a fundamental constitutional right and a fair trial, we will review his claim to determine whether it is adequately supported by the record. State v. Evans, supra, 70.

There is no question that the trial court’s use of the disjunctive, rather than the conjunctive, in its discussion of the element of felony murder in question, was erroneous. The court, however, correctly instructed the jury concerning the same element on four occasions using the conjunctive each time. In its initial instructions to the jury at the close of the evidence the trial court, in both its first and final explanations of the elements of felony murder, tracked the statute correctly using the conjunctive. It did, on one occasion during the course of the initial charge, use the disjunctive. The use of the word “or” on that occasion, however, was followed immediately by, “Now in the course of, well, it has its ordinary meaning, was it during the robbery, was it part of the robbery. And in the furtherance of the robbery, well, that means advancing or promoting an objective, help bring the robbery about.” (Emphasis added.) While ambiguous, the use of the conjunctive in connecting the definitions of “in the course of” and “in furtherance of” reduced the chance that the jury would misconstrue the preceding use of the disjunctive as creating alternate elements rather than an additional element for the crime of felony murder.

The day following its initial instructions, the trial court, at the jury’s request, again explained the elements of the crimes involved in the two indictments. During its discussion of felony murder, the court tracked the statute correctly and again used the conjunctive in its first and final explanations of the elements of that crime. It did, however, between those two explanations, use the disjunctive “or” on two occasions when explaining the element in question. On one of those occasions, the disjunctive was followed by the definitions of “in the course of” and “in furtherance of” previously noted wherein the conjunctive was inserted between them.

We do not examine a challenged portion of a jury instruction in artificial isolation from the overall charge. State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982). “Rather, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. State v. Hines, supra. An error in the charge requires reversal only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict.” State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).

Keeping in mind the number of correct explanations of the disputed element of felony murder, the ameliorating circumstances surrounding the incorrect references to the disjunctive, the placement of the correct explanation at the beginning and end of both the initial charge and the recharge, and the failure of the defendant to take an exception; State v. Evans, supra, 67; we are satisfied that the jury was adequately instructed on the elements of felony murder. We conclude that in the context of the entire charge there is no reasonable possibility that the jury was misled.

There is no error.

In this opinion the other justices concurred.

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

       Oczkowski was also indicted for felony murder. His trial was severed from that of the defendant and he had not been tried at the time of the defendant’s trial.

       The defendant requested the court to charge the jury as follows: “felony [murder] conviction: In order to convict the defendant of felony murder the state must prove that a murder was committed by the defendant and must prove beyond a reasonable doubt the defendant has committed the crime of robbery or flight therefrom.” (Emphasis added.)

       See State v. Young, 191 Conn. 636, 639-44, 469 A.2d 1189 (1983), for the correct definition of “in furtherance of.”


author: Santaniello, J.

text:
    Alfred P. Cassella, Jr. v. Civil Service Commission of the City of New Britain
    (12803)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued November 14, 1986
    decision released January 6, 1987

      Edward J. Daly, Jr., with whom, on the brief, was Bill Kowalski, law student intern, for the appellant (plaintiff).

      Joseph E. Skelly, Jr., for the appellee (defendant).
   Santaniello, J.

The plaintiff appeals from the judgment of the Appellate Court affirming the Superior Court’s decision dismissing the plaintiff’s appeal from the action of the defendant, the civil service commission of the city of New Britain. The commission had sustained the decision of the New Britain board of fire commissioners to reduce the plaintiff in rank in the fire department from lieutenant to private. We affirm the judgment of the Appellate Court.

The operative facts are not in dispute. The plaintiff, Alfred P. Cassella, Jr., commenced employment with the New Britain fire department in 1970. On November 18, 1975, he took a promotional examination for the post of fire lieutenant, and was promoted to that position in April of the following year. By a letter dated January 26,1981, the board of fire commissioners notified the plaintiff that it would be conducting a hearing to consider whether the examination had been “fixed” for his benefit, whether the plaintiff had violated various provisions of the city charter and the rules of the civil service commission, and whether disciplinary action should be taken against him.

At the hearing, the board received into evidence, over the objection of the plaintiff, several documents which tended to prove that the promotional examination, in fact, had been “fixed.” This evidence indicated that the plaintiffs father, Alfred P. Cassella, Sr., had paid $1000 to New Britain fire chief Raymond Galati to give to Alfred Pettinelli, personnel director of the city at the time Cassella, Jr., took the examination. The payment was made in exchange for Pettinelli’s assistance in “fixing” Cassella, Jr.’s examination to secure his promotion to fire lieutenant. No evidence, however, was produced at the hearing to implicate Cassella, Jr., in the “fixing” scheme, and Cassella, Jr., testified that he had had no knowledge of the impropriety. The board found that the plaintiff’s examination had been “fixed” by Pettinelli, but concluded that Cassella, Jr., had no knowledge of the irregularities. On the basis of these findings, the board reduced Cassella, Jr., in rank from lieutenant to private, but offered him the opportunity to take a new examination for the post of fire lieutenant.

The plaintiff appealed his demotion to the defendant commission, pursuant to § 392 of the charter of the city of New Britain. The commission unanimously sustained the board’s decision, and the plaintiff appealed to the Superior Court. The court found that the board’s use of hearsay evidence did not violate due process, and that the evidence adduced at the hearing supported the board’s determination to demote the plaintiff. The court also found that the notice sent to Cassella, Jr., adequately apprised him of what the board would consider at the hearing. The court then dismissed the appeal.

From this determination, the plaintiff appealed to the Appellate Court, claiming that the Superior Court erred (1) in concluding that he was afforded due process at the hearing before the board of fire commissioners, and (2) in concluding that the commission’s finding that he violated the city charter and personnel rules was supported by the evidence and not in excess of its authority. The Appellate Court held that the plaintiff was afforded a fair and impartial hearing and was not deprived of due process of law by the written hearsay evidence admitted by the board. Cassella v. Civil Service Commission, 4 Conn. App. 359, 372, 374, 494 A.2d 909 (1985). The Appellate Court also concluded that the plaintiff had received adequate notice of the charges against him to enable him to prepare his defense, and that the plaintiff was properly demoted for just cause. Id., 374.

Upon a grant of certification, the plaintiff appealed, and now claims that the Appellate Court erred: (1) in finding that the board could properly rely solely on hearsay evidence to demote him from a rank in which he has served satisfactorily; (2) in failing to find that due process demands that a person with a property interest in his position has a right to confront and cross-examine adverse witnesses before being demoted; and (3) in finding that there was just cause to demote him when the board made a specific finding that he had no knowledge that his examination had been fixed. We disagree.

In addressing the first two issues raised by the plaintiff we need not look any further than the Appellate Court’s well reasoned determination. We find that the court’s analysis disposes of the plaintiff’s claims, and we expressly adopt its opinion as to these issues. While we also agree with the court’s holding as to the third issue, we feel that the lack of precedents in this state upon such an important issue warrants further discussion of the issue by this court.

Before the merits of the plaintiff’s third claim are addressed, it is important to state what is not at issue in this case. Neither the plaintiff nor the defendant claims that the position of fire lieutenant was an unclassified civil service position, nor is there any claim that the plaintiff held a noncompetitive position. See New Britain Charter §§ 351, 352, 371, 372. There is also no claim that the plaintiff was provisionally appointed to the position of fire lieutenant. See id., § 375. Moreover, there is no challenge to the original examination itself. See id., § 372. Finally, neither the plaintiff nor the defendant claims that the plaintiff was demoted because of lack of work or funds. See id., § 391; cf. Parretta v. New Britain, 185 Conn. 88, 440 A.2d 823 (1981).

Promotion in the New Britain fire department is governed by the charter of the city of New Britain, which states, in part, that “[t]he personnel director shall hold promotion tests whenever there shall be an opening in a superior class to be filled and no appropriate promotional list exists. The examination shall be open to those in inferior grade, the duties of which directly tend to fit the incumbents thereof for the performance of the duties of the superior grade.” New Britain Charter § 372 (1980). Rule VII of the rules of the civil service commission requires that “[a]ll . . . promotions to competitive positions in the classified service shall be made according to merit and fitness to be ascertained by a competitive examination . . . efficiency and seniority.” (Emphasis added.)

We have long recognized the purpose and importance of such examinations. In Ziomek v. Bartimole, 156 Conn. 604, 610, 244 A.2d 380 (1968), we stated that “[t]he object of providing for civil service examinations is to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination.” See State ex rel. Chernesky v. Civil Service Commission, 141 Conn. 465, 469, 106 A.2d 713 (1954).

The civil service law provides for promotion in governmental employment according to merit and fitness ascertained by competitive examination. Resnick v. Civil Service Commission, 156 Conn. 28, 30, 238 A.2d 391 (1968); State ex rel. McNamara v. Civil Service Commission, 128 Conn. 585, 588, 24 A.2d 846 (1942). The primary purpose of these laws is to guarantee that the meritorious secure jobs and to free public employees from the fear of personal and political reprisal. Resnick v. Civil Service Commission, supra, 31. These examinations not only protect the employees but also benefit the general public in that they tend to eradicate corruption as well as ensure that the persons with the necessary qualifications to discharge intelligently their duties pertaining to public office will do so. Id.

It cannot be overemphasized that proper competitive examinations are the cornerstone upon which an effective civil service system is built. Any violation of the law enacted for preserving this system, therefore, “ ‘is fatal because it weakens the system of competitive selection which is the basis of civil service legislation.’ ” Ziomek v. Bartimole, supra, quoting Civil Service Board v. Warren, 74 Ariz. 88, 91, 244 P.2d 1157 (1952). Strict compliance is necessarily required to uphold the sanctity of the merit system; Jones v. Civil Service Commission, 175 Conn. 504, 510, 400 A.2d 721 (1978); Walker v. Jankura, 162 Conn. 482, 490, 294 A.2d 536 (1972); good faith of the parties will not validate illegal appointments, nor will continued employment in an invalidly obtained position. Cf. Resnick v. Civil Service Commission, supra, 32; McAdams v. Barbieri, 143 Conn. 405, 420, 123 A.2d 182 (1956); Howe v. Civil Service Commission, 128 Conn. 35, 38, 20 A.2d 397 (1941). To excuse “good faith” violations of our civil service law “ ‘would open the door to abuses which the law was designed to suppress.’ ” Resnick v. Civil Service Commission, supra, 33, quoting State ex rel. Kos v. Adamson, 226 Minn. 177, 182-83, 32 N.W.2d 281 (1948).

In the instant case, the board found that Pettinelli had “fixed” the plaintiff’s examination at the instigation of Cassella, Sr.; Cassella, Jr., thus received a promotion, not based on a competitive examination to determine his merit and fitness, but as the result of an illegally altered examination. Because Cassella, Jr.’s promotion was not made according to merit and fitness as ascertained by a competitive examination, his promotion is invalid. See Ziomek v. Bartimole, supra, 611; Resnick v. Civil Service Commission, supra.

Nevertheless, the plaintiff continues to argue that the board cannot demote him because there was no finding of misconduct on his part. Pursuant to § 392 of the city charter, the board of fire commissioners, subject to § 301 et seq. of the charter, may remove, suspend or otherwise penalize the officers, members and employees of the fire department. Section 392 provides in part that “[n]o person holding, by final appointment, an office or position classified and graded under the provisions of this act shall be removed, discharged or reduced in rank or pay except for just cause which shall not be political or religious; nor shall marriage or the greater financial need of others eligible for appointment or promotion be just cause for removal, discharge or reduction in rank.” (Emphasis added.) An examination of both the city charter and the rules of the civil service commission fails to reveal what is meant by “just cause.” Nowhere, however, does it state that just cause requires the board make a showing of personal misconduct to reduce a person in rank.

We have stated previously that “just cause” implies a reasonable ground for removal as distinguished from a frivolous or incompetent ground. Molino v. Board of Public Safety, 154 Conn. 368, 374-75, 225 A.2d 805 (1966); Riley v. Board of Police Commissioners, 147 Conn. 113, 118, 157 A.2d 590 (1960); McNiff v. Waterbury, 82 Conn. 43, 46, 72 A. 572 (1909). We have also stated that while the sufficiency of cause is for the board to decide, the question of whether the cause assigned constitutes grounds for removal, as a matter of law, is a question for the judiciary. Molino v. Board of Public Safety, supra, 375; Riley v. Board of Police Commissioners, supra; McNiff v. Waterbury, supra.

In the present case, the plaintiffs failure to be promoted in accordance with the requirements of the charter of the city of New Britain and the rules of the civil service commission does constitute just cause for reduction in rank. Finding just cause in such a situation is consistent with both the charter and the commission’s rules as well as the underlying tenets of the civil service system itself. To hold otherwise would undercut the cornerstone upon which the system rests. The Appellate Court was correct in concluding that the dishonest examination procedure, despite a personal absolution of wrongdoing, was just cause to reduce Cassella, Jr., in rank.

We affirm the judgment of the Appellate Court.

In this opinion the other justices concurred.

       “New Britain Charter § 392. discharge or removal; appeals
      “No person holding, by final appointment, an office or position classified and graded under the provisions of this act shall be removed, discharged or reduced in rank or pay, except for just cause which shall not be political or religious nor shall marriage or the greater financial need of others eligible for appointment or promotion be just cause for removal, discharge or reduction in rank. A person removed, discharged or reduced shall be furnished, by the appointing authority making the removal, with the reasons in writing for such action and a copy of the same shall be immediately forwarded to the civil service commission. Within five days after the removal, discharge or reduction, an appeal in writing may be made to the civil service commission by the employee so removed, discharged or reduced. The civil service commission, on receiving such notice of appeal, shall set a date for a hearing of the reasons for the removal, discharge or reduction, which date shall not be more than thirty days after the date of the removal, discharge or reduction. Notice of the time and place of such hearing shall be sent by registered mail at least ten days before the date set for such hearing to the employee appealing. Like notice shall also be given the appointing authority making the removal. The civil service commission or any committee appointed by it shall conduct the hearing or investigation. The employee appealing shall have full opportunity to appear at such hearing, be represented by counsel and present witnesses in his behalf. In the course of a hearing or investigation as herein provided for, any member of the commission or of any committee appointed by it shall have the power to administer oaths and to secure by its subpoena both the attendance and testimony of witnesses and the production of books and papers relevant to such hearing or investigation as provided. All evidence may, on the order of the board, be taken by a competent reporter. The decisions and findings of the commission or of the investigating committee, when approved by the commission, shall be final unless appealed by the employee to the court of common pleas as hereinafter provided, and shall be filed, in writing, with the civil service commission and shall be forthwith certified to and enforced by the head of the department or appointing authority. Nothing in this act shall limit the power of an appointing authority to suspend a subordinate for a reasonable period not exceeding five days for violating departmental rules. Such appeal to the court of common pleas shall be in writing, shall set forth clearly and concisely the reasons of appeal, shall be served upon the commission in the manner prescribed by law for the service of civil process within ten days after the approval of the decision and findings by the commission, and shall be returnable to the court of common pleas for Hartford county at the return day for said court next following the service of the appeal. (S.L. 1947, No. 199, § 19; S.L. 1967, No. 438)”

       The Appellate Court noted that the defendant commission made no findings of fact and, in effect, affirmed the board’s findings and procedures.

       The plaintiff brought the appeal pursuant to § 392 of the city charter and General Statutes § 51-197b which provides: “administrative appeals. (a) Except as provided in section 31-301b, all appeals which may be taken from administrative decisions of officers, boards, commissions or agencies of the state or any political subdivision thereof shall be taken to the superior court. The superior court, after a hearing, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from. So much of any special act as is inconsistent with this section is repealed.
      “(b) Except as provided in sections 8-8, 8-9, 8-28 and 8-30, there shall be a right to further review to the appellate court under such rules as the judges of the appellate court shall adopt.
      “(c) The procedure on such appeal to the appellate court shall be in accordance with the procedure provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court. There shall be no right to further review except to the supreme court pursuant to the provisions of section 51-197Í.”

       The rules and regulations of the civil service commission have the force and effect of law. New Britain Charter § 302 (1); see Gilbert v. Civil Service Commission, 158 Conn. 578, 582, 265 A.2d 67 (1969).

       In contradistinction, rule XIII of the rules of the civil service commission states in part:
      “RULE XIII DISCIPLINE
      “1. An appointing authority shall discharge or suspend without pay pending investigation, any employee in the classified service for any of the following causes:
      “(1) Prohibited political activity as defined in Section 16 of the Merit Act.
      “(2) Disloyalty to the United States or membership in any organization declared to be subversive by the United States Department of Justice.

        “(3) Conviction of a crime involving moral turpitude.
      “(4) Conduct towards superiors, subordinates, co-workers, prisoners, inmates or the public unbecoming an officer or employee of the City of New Britain.
      “(5) Two successive efficiency ratings below 60 on a scale of 100 provided the appointing authority has notified the employee in writing immediately following his first rating of less than 60.
      “(6) Intoxication or unseemly conduct on duty or elsewhere so as to reflect discredit upon the city.
      “(7) Wilful neglect or misuse of any city property, equipment, materials or supplies.
      “(8) Fraud or collusion in connection with any examination or appointment in the classified service.
      “(9) Deliberate violation of any law or rule pertaining to or affecting employment in the city service.
      “(10) Commission of a criminal or immoral act.
      “In addition to the foregoing, an appointing authority may suspend an employee without pay for a period not to exceed thirty (30) days for any justifiable cause including the following:
      “(1) Absence without leave for 5 or more working days.
      “(2) Failure to return to duty within 5 days following authorised leave.
      “(3) Reporting for duty under the influence of liquor.
      “(4) Neglect of duty.
      “(5) Violation of departmental rules.
      “Re-Instatement. Any employee who after investigation or appeal is found not guilty of the offense for which he has been discharged or suspended shall be re-instated with back pay to the date of discharge or suspension and all notations of discharge or suspension shall be removed from the employee’s roster or other employment records.”
      Because Cassella, Jr., was reduced in rank, as opposed to being dismissed or suspended, rule XIII is inapplicable.

       As we stated in Perretta v. Civil Service Commission, 185 Conn. 88, 100, 440 A.2d 823 (1981), § 392 of the New Britain charter is in “harmony with the statutory purpose of the merit system, ‘to provide means for selecting and promoting each public official and employee upon the sole basis of his proven ability to perform the duties of his office or employment more efficiently than any other candidate therefore . . . .’ General Statutes § 7-409.” Cf. New Britain Charter § 301 (members of civil service commission shall be in sympathy with the merit principle as applied to the civil service).