author: Arthur H. Healey, J.

text:
    State of Connecticut v. Donald C. Brown
    (11006)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued November 15, 1985
    decision released March 11, 1986

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

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

The defendant, Donald C. Brown, was convicted by a jury of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4). He was sentenced to a term of not less than five nor more than ten years. The defendant appeals from the judgment of conviction.

The defendant claims on appeal: (1) that the trial court erred in refusing to suppress statements made by the defendant in violation of his Miranda rights; (2) that the trial court erred in admitting testimony of uncharged misconduct of the defendant; and (3) that he was denied due process of law because the state failed to disclose exculpatory information.

The jury could reasonably have found the following relevant facts: On Friday, April 25, 1980, at approximately 10 p.m., the victim was driving his car on a New Haven street when he stopped at a corner and a young woman, Ann Marie, initiated a conversation with him. She entered his car and he drove to another location where they had sexual relations. In order to pay her, the victim turned on the inside light in his car, took money from his right pants pocket, and paid the young woman $20. The victim then drove Ann Marie to the Gemini Cafe in New Haven and they went upstairs to her room above the bar. They then went downstairs to the bar where the victim ordered a drink and Ann Marie went outside. The victim thereafter followed Ann Marie outside the bar and observed her engaged in conversation with the defendant. Ann Marie had told the defendant that the victim had some money and that they should take it. Ann Marie admitted that she was a prostitute and that she shared the room above the Gemini Cafe with the defendant. She testified that she had been living with him since 1978 and during that three year period she lived on the money she earned from prostitution. The defendant told her during that conversation that he would not rob the victim because he might have a gun. Subsequently, Ann Marie and the victim again went upstairs to her room. Shortly thereafter, the defendant entered the room, placed a gun to the victim’s head, and demanded his money. The two men moved into the hallway outside the room and Ann Marie left the room, returned, and remained in the room. Although the victim had a substantial sum of money in his back pants pocket, he did not give this to the defendant and the defendant did not request it. When the defendant went back into the room he told Ann Marie that the victim did not have any money. The victim testified that he was robbed of $80-$90.

The victim fled the scene and went to the nearest phone booth but it was occupied. He then drove to a cafe and called the police. Two officers responded and the victim related his version of the robbery, including descriptions of Ann Marie and the defendant.

On the following Monday, the victim arrived at the New Haven police department at the request of Detective Jerry Waller to look through trays of photographs in an attempt to identify the robbers. The victim was shown several trays, each containing anywhere from fifteen to three hundred photos of black males, but was unable to identify any photo as that of the defendant. The victim did identify a photo of a black female as Ann Marie.

The detective and the victim then drove to where the incident occurred and as they were approaching the Gemini Cafe the victim pointed out two persons in the rear doorway of the bar as the persons who had robbed him. Waller drove the unmarked police vehicle onto the sidewalk in front of the defendant and Ann Marie. Waller, who was in plain clothes, approached the pair, identified himself as a police officer and stated that he wanted to “talk to him in regards to a robbery.” In response, the defendant then made the statements he later sought to have suppressed. The defendant and Ann Marie were arrested shortly thereafter.

I

The defendant’s first claim is that the statements made to Waller by the defendant shortly before his arrest were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and the trial court erred when it denied the defendant’s motion to suppress them. The defendant claims that the question posed to him by the detective amounted to a custodial interrogation and therefore the Miranda warnings should have been given.

Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. Miranda v. Arizona, supra, 444. Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, supra; see State v. Januszewski, 182 Conn. 142, 158, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Despite this definition of custodial interrogation, “[w]hat constitutes police custody for purposes of the Miranda warnings is not always self-evident. One thing is clear: the Miranda court was concerned with interrogation that takes place in a police dominated environment containing ‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.’ Miranda v. Ari zona, supra, 467.” State v. Januszewski, supra. In other words, “police officers are not required to administer Miranda warnings to everyone whom they question.” State v. Januszewski, supra, 159.

A determination of whether the defendant was in custody must be based on the facts surrounding his statement to the police officer. On April 28, 1980, Waller and the victim drove to the bar where the robbery took place. As they approached the Gemini Cafe the victim pointed to the rear door of the bar where the defendant and Ann Marie were standing. The victim told Waller that he recognized them as the robbers. Waller had previously called for back-up support because the area in which he would be investigating had had a “few problems.” Waller then proceeded to drive his unmarked police vehicle onto the sidewalk of the public street approximately six to eight feet from the front of the rear doorway. Waller was not in uniform but he did tell the two persons, later identified as the defendant and Ann Marie, that he was a police officer and that he was investigating a robbery that occurred on April 25, 1980. No weapon was displayed by Waller. At this point in time the statements sought to be suppressed by the defendant were made. The defendant asked if the victim was “Dasher” and when Waller replied “yes, do you know him?” the defendant stated that “the guy was crazy, nobody robbed him.”

“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). This court has stated that a “ ‘person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); State v. Acquin, 187 Conn. 647, 655, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); State v. Ostroski, 186 Conn. 287, 291-92, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982); State v. Derrico, 181 Conn. 151, 159, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).” State v. Young, 191 Conn. 636, 651-52, 469 A.2d 1189 (1983). Because the defendant did not testify we do not know if he personally did not feel “free to leave.” By looking to other relevant factors, it can easily be seen that a “reasonable person” would not have construed the incident as a custody situation.

The defendant argues that the fact that Waller drove his car onto the sidewalk to within six to eight feet of the defendant and Ann Marie and that he carried a portable radio with him when he left his vehicle would, under the circumstances, indicate to a reasonable person that he could not leave. Why Waller chose to drive onto the sidewalk instead of parking along the curb was not specifically adduced at trial.

The fact that Waller carried a portable radio with him when he spoke to the defendant would not, either alone or under these circumstances, contribute to leading a reasonable person to conclude that he was being restrained. Rather, to do so may have been proper police procedure in order to hear police broadcasts outside of the vehicle and to keep in touch with other personnel. The subjective intention of the police officer in this case to possibly detain the defendant, had he attempted to leave, is irrelevant except insofar as that may have been conveyed to the defendant. United States v. Mendenhall, supra, 554 n.6. “A policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). There is no evidence that the defendant himself believed that he was in custody or in danger of imminent arrest because of any action of the police officer. There was evidence, however, from Ann Marie that when she and the defendant exited the rear door, she spotted the victim in Waller’s car and told the defendant that “that was the man.” The defendant told her “not to run because they couldn’t do nothing. They didn’t have no proof.” Ann Marie said that because of this “they stayed there.”

We conclude, based on the totality of the circumstances, that the defendant was not in custody or deprived of his liberty in any significant way at the time the statements were given and that, therefore, Miranda warnings were not required at this time. We need not, therefore, discuss the second prong of the defendant’s claim that the statements were the result of police interrogation.

II

The defendant’s second claim is that evidence of uncharged misconduct of the defendant, by way of his relationship with Ann Marie, is inadmissible because it was not relevant to any issue in the case and because its prejudicial effect outweighed any probative value. Prior to any objection by the defendant, the state had adduced evidence from Ann Marie that she was seventeen years old at the time of trial in 1981 and that she had been living with the defendant since 1978 in various places, including a room above the Gemini Cafe at the time of the robbery. Moreover, Ann Marie had also testified that during this same period of time she was a prostitute and that she lived on money she made by being a prostitute. At this point in the direct examination the defendant asked the court to excuse the jury in order to take up a pretrial motion.

The defendant asked that the state make a preliminary statement as to the purpose for which it intended to offer the evidence of uncharged misconduct. The state then explained, and the trial court agreed, that it was necessary to establish a relationship between the defendant and Ann Marie to show why she would act in concert with him in regards to this robbery in the manner in which she did. Upon objection by the defendant that the prejudicial impact “far exceeds” any probative value, the trial court specifically noted that the “prejudicial effect in this case is slight, if any.” The defendant’s motion to exclude this line of questioning was overruled and an exception was taken. After the motion was overruled, the additional evidence that was elicited was that the defendant and Ann Marie had sexual relations while living together and that Ann Marie gave the money she obtained from prostitution to the defendant.

“The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court.” State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167 (1982); see also State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980); State v. McCarthy, 179 Conn. 1, 22, 425 A.2d 924 (1979); State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). “Evidence of other misconduct, although not ordinarily admissible to prove the bad character or criminal tendencies of the accused, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity. State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979).” State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); see State v. Shindell, 195 Conn. 128, 133, 486 A.2d 637 (1985). An additional permissible purpose for introducing uncharged misconduct is to “complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.” McCormick, Evidence (3d Ed. 1984) § 190; see United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980); State v. Villavicencio, 95 Ariz. 199, 201, 388 P.2d 245 (1964).

“We have adopted a two-prong analysis to determine the propriety of admitting evidence of other crimes or misconduct.” State v. Shindell, supra, 134. “First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of other crime evidence.” State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983).

The evidence of the relationship between the defendant and Ann Marie was relevant and helped to establish the reason why Ann Marie, a prostitute, would tell the defendant, with whom she lived and to whom she gave her earnings, of the money in the victim’s pants pocket and then expect him to commit the robbery. The evidence of the relationship, in which the defendant appeared to handle Ann Marie’s money matters, lends credibility to her account of the robbery and would tend to make more plausible the reason she chose the defendant as the person to accomplish this robbery. There were factors operating against the credibility of Ann Marie besides her status as a prostitute—her own involvement in the crime and her undetermined sentence for the robbery at the time of the defendant’s trial.

The second prong of our analysis requires a determination of whether the trial court abused its discretion in ruling that the probative value of the evidence outweighed its prejudicial impact. State v. Howard, supra, 687-88. Because the testimony of Ann Marie as to her age at the time she began living with the defendant and the fact that she subsisted on her earnings as a prostitute was already before the jury unobjected to, the additional facts adduced after the motion was overruled had little prejudicial impact. The additional facts, that she had sexual relations with the defendant and that she turned over her earnings to him, could fairly have been inferred from the earlier testimony. The probative value of the additional facts, however, while they could have been inferred from the previous testimony, served to explain and establish the nature of the relationship of Ann Marie, a prostitute, to the defendant. See State v. Leecan, 198 Conn. 517, 534, 504 A.2d 480 (1986).

The trial court, during its charge, also gave limiting instructions to the jury concerning the prior misconduct evidence, expressly prohibiting its use at all as evidence “of the defendant’s guilt of the crime with which he Piad] been charged.” The trial court then stated that such evidence could be used only to establish and describe the relationship between the defendant and Ann Marie. “Limiting instructions serve to minimize the prejudicial impact of prior misconduct evidence.” State v. Howard, supra, 688; State v. Ryan, 182 Conn. 335, 338, 438 A.2d 107 (1980). On the basis of the record before us and the circumstances of the case, we cannot say as a matter of law that the trial court abused its discretion in admitting the prior misconduct evidence of the defendant.

Ill

The defendant’s final claim is that the defendant was denied due process of law by the failure of the state to disclose exculpatory information. We do not agree. The claimed “exculpatory” information that was not given to the defendant was that there was a pending criminal case in Superior Court in which the state’s principal witness, Ann Marie, claimed to be the victim of a rape on June 30,1978. In a motion for a new trial, following the jury verdict, the defendant claimed that he had learned that the “[djefense counsel in that [1978] rape case intends to offer evidence that Ann Marie was working as a prostitute for someone other than the defendant, Donald Brown.” In oral argument on the motion before the trial court the defendant did not expand at all on the allegedly contradictory defense strategy evidence to be offered in the 1978 rape case. In fact, the defendant did not argue this point to the court other than in his post-trial motion. In his brief to this court the defendant “concedes that the record below is inadequate to show that the State had or should have had knowledge of the second part of the information discovered by defense counsel, the evidence to contradict [Ann Marie’s] trial testimony that Brown was her pimp.” In light of that concession by the defendant and the assertion by the state that it did not have knowledge of the rape case defense strategy, we examine the Brady claim only as to the allegedly exculpatory evidence of the rape complaint itself. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

The defendant made a general request for “[a]ny and all exculpatory information or materials.” The state replied that it was not aware of any such evidence. Where only a general request is made, the defendant bears the burden of establishing that the failure to disclose is a denial of due process. Talamante v. Romero, 620 F.2d 784, 788 (10th Cir.), cert. denied, 449 U.S. 877, 101 S. Ct. 223, 66 L. Ed. 2d 99 (1980); State v. Doolittle, 189 Conn. 183, 197, 455 A.2d 843 (1983). “This is a ‘heavy burden.’ ” State v. Doolittle, supra, quoting Wagster v. Overberg, 560 F.2d 735, 740 (6th Cir. 1977).

“To prevail on a claimed violation of Brady and its progeny requires proof of: ‘(a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.’ Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 33 L. Ed. 2d 706, reh. denied, 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155 (1972).” State v. Doolittle, supra. The evidence, although not disclosed by the state, was neither material nor favorable to the defense.

The defendant’s arguments for the favorable nature of this evidence are specious. To suggest, as the defendant does, that Ann Marie was “induced” to cooperate as a witness for the state so that it would then see her as “deserving of consideration” and “would vigorously prosecute” the rape case denigrates the state’s attorney’s office. “The state’s attorney owes a duty to all the people.” (Emphasis in original.) State v. Cohane, 193 Conn. 474, 502, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). While recognizing that a state’s attorney has discretion in determining “when, who, why and whether to prosecute for violations of criminal law”; State v. Anonymous, 36 Conn. Sup. 338, 339, 420 A.2d 910 (1980); such discretion is not exercised based only on the alleged moral character of a complaining witness but is exercised in good faith based on a variety of factors. The defendant’s counsel, at oral argument on the motion, said that had he been permitted to cross-examine “concerning the fact that she is a complainant in a rape case while at the same time she told this jury she had been a prostitute for three years, I think there is a dramatic inconsistency between those two claims, and I think that would have affected her credibility substantially. ...” Regardless of her status as a prostitute, the credibility of such a witness in a robbery trial, on the record before us, is not affected substantially, if at all, simply because she is also a complainant in a rape case. A “witness’ sexual conduct does not, of itself, reflect upon his or her credibility.” State v. Mastropetre, 175 Conn. 512, 519, 400 A.2d 276 (1978). “The notion that an unchaste woman cannot be raped has been wholly rejected. Even a prostitute should have a right to choose.” State v. Patnaude, 438 A.2d 402, 407 (Vt. 1981). It has been a “long held view that prostitution is not relevant to credibility.” Commonwealth v. Joyce, 382 Mass. 222, 231, 415 N.E.2d 181 (1981). “A woman’s reputation for unchastity has no probative value because it is [not] relevant to her credibility as a witness . . . .” State v. Green, 260 S.E.2d 257, 264 (W. Va. 1979); see United States v. Kasto, 584 F.2d 268 (8th Cir.), cert. denied, 440 U.S. 930, 99 S. Ct. 1267, 59 L. Ed. 2d 486 (1978); annot., 94 A.L.R.3d 257, § 6. In addition, the defendant did not demonstrate whether Ann Marie was living with the defendant or was a prostitute at the time the rape complaint was made on June 30,1978. The only evidence at trial indicated that she began living with the defendant and turned to prostitution in 1978. We conclude, therefore, that the evidence was not favorable to the defense.

As for the defendant’s claim that the evidence was material under the third prong of Brady, we look to the test articulated in Agurs for a general request: whether the defendant’s conviction will be constitutionally flawed only if the omitted evidence creates a reasonable doubt as to his guilt that did not otherwise exist. United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct 2392, 49 L. Ed. 2d 342 (1976); State v. Doolittle, supra, 198. The “omission must be evaluated in the context of the entire record.” United States v. Agurs, supra. Despite the defendant’s claim that the disclosure of the rape complaint would have allowed him to quickly learn of the possible defense strategy in that case, the pending rape case, standing alone, was not material to this case. In the context of the entire record, even if this material were relevant, it cannot be said that the omission would have created a reasonable doubt that did not otherwise exist. Nothing in the recent case of United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), persuades us that a different result is required. We conclude, therefore, that the defendant was not deprived of his right to a fair trial under the fourteenth amendment by the inaction of the state in apprising the defendant of this rape complaint because it was not exculpatory.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) (4) provides: “(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; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       Ann Marie had already pleaded guilty to robbery in the first degree in violation of General Statutes § 53a-134 in connection with this incident on September 17, 1980, but had not been sentenced as of Brown’s trial.

       The defendant claimed constitutional protection under Miranda from the fifth amendment to the United States constitution as well as the Connecticut constitution, article first, § 8. Because the Miranda warnings have independent significance under the state constitution; State v. Ferrell, 191 Conn. 37, 41, 463 A.2d 573 (1983); our decision today rests not only on the mandates of the federal constitution, but also on independent state grounds. State v. Toste, 198 Conn. 573, 576 n.3, 504 A.2d 1036 (1986).

       It is not necessary to determine whether these statements are exculpatory or inculpatory because neither type of statement may be used when there has been a custodial interrogation without Miranda warnings. Custodial interrogation did not take place here. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       In concluding that the defendant was not in custody, that he was not deprived of his freedom of action in any significant way, we need not consider whether these circumstances would amount to a detention under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), an additional situation in which Miranda warnings are not required.

       The defendant claims in his brief that “this testimony presents [him] as guilty of promoting prostitution in the second degree (Conn. Gen. Stat. § 53a-87) over a three year period, and of promoting prostitution in the first degree (Conn. Gen. Stat. § 53a-86), sexual assault in the second degree (Conn. Gen. Stat. § 53a-71) and risk of injury to a minor (Conn. Gen. Stat. § 53-21) in the early period of the relationship.” At trial, defense counsel did not refer to any specific statutory violations, but rather to possibly uncharged criminal behavior.

       We need not decide whether knowledge of the rape complaint should have been imputed to the state's attorney in the defendant’s case. It is irrelevant, under the circumstances of this case, whether the state’s attorney had knowledge of the rape complaint because it was not exculpatory evidence.


source: Caselaw Access Project

author: Dannehy, J.

license: Public Domain

text:
    State of Connecticut v. Howard Stovall
    (11846)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued December 11, 1985
    decision released March 11, 1986

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Henry J. Lyons, assistant state’s attorney, for the appellee (state).
   Dannehy, J.

The information against the defendant, Howard Stovall, accused him of one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The underlying criminal acts which gave rise to the multicount information were perpetrated in the Art Cine Theatre in Stamford on January 20,1981. The information charged that the defendant entered the theatre unlawfully while armed with a knife and twice sexually assaulted a female employee, before committing an armed robbery. The defendant did not dispute the fact that the crimes were committed. He contended that he was not the person who committed the crimes. Following a trial by jury, the defendant was found guilty on each count and sentenced to imprisonment for an effective term of twenty-two to forty-four years.

The defendant, on appeal, presents two issues. The first concerns the admission into evidence of a third “mug shot” type of photograph of the defendant. The second alleges a violation of the trial court’s sequestration order. Such facts as are pertinent to resolve the issues will be summarized therewith.

The testimony adduced at trial is substantially as follows. The victim was a cleaning woman at the Art Cine Theatre in Stamford, where she worked each night after the theatre closed. On January 20, 1981, as she removed a vacuum cleaner from a closet in the darkened theatre, the defendant grabbed her from behind, placed a knife to her side, and told her he would cut or kill her if she said anything. He then dragged her into an alcove of the building and slammed her against the wall. In the unlit alcove the struggling woman could not clearly see the face of the man pressing her against the wall. She asked the man what he wanted and explained she had no money. Thereupon the defendant demanded that she undress. The defendant then terrorized and sexually assaulted his victim. The defendant then forced her to go with him to the candy counter in the lobby of the theatre where her purse was. The lobby in the area of the candy counter was illuminated by two street lights. At the candy counter the victim had ample opportunity to view the defendant. She testified that she was able to observe his facial features, at close range, under good lighting conditions, and throughout the whole time spent at the candy counter. Before leaving, the defendant threatened to kill the victim if she notified the police. He then left the theatre by the back door with a pen knife and a couple of dollars which he had removed from the victim’s purse. The victim dressed, made a telephone call to her husband, and went home.

At police headquarters the following day the victim gave the police a detailed description of her assailant by height, weight and build. Ralph Weed, a Stamford police officer, drew a composite picture which satisfied the victim. She looked through perhaps several hundred photographs kept in the identification files of the Stamford police department but she made no identification. On January 23,1981, the police showed the victim two separate arrays consisting of sixteen photographs and again she made no identification. The defendant’s picture was not among those examined on either occasion. The police investigation continued until, on September 10,1981, the victim was asked by Sergeant Robert Toner, another Stamford police officer, to view photographs at the Stamford police station. The victim was shown sixteen mug shots arranged in groups of eight. The victim picked out the defendant’s picture from each group. None of the mug shots portrayed the defendant wearing glasses. There was no objection at trial either to the victim’s in-court identification or to the introduction into evidence of the mug shots involved.

The defendant’s claim of error with regard to the admission into evidence of a third mug shot relates to the following circumstances. At trial, the defendant vigorously contested the reliability of the evidence identifying him as the perpetrator of the crimes with which he had been charged. The defendant cross-examined the victim extensively about her ability to describe her assailant under the lighting conditions that prevailed at the scene of the crime. The state then presented the testimony of the two police officers, Weed and Toner, who had assisted in the procedures that led the victim to identify the defendant. Weed was asked, referring to the two mug shots of the defendant previously introduced without objection during the victim’s testimony, whether he could identify the defendant. He replied in the affirmative and pointed out the defendant as “[t]he gentleman . . . with the glasses.” The defendant was wearing glasses at trial. Neither of the photographs already in evidence showed the defendant wearing glasses. In the victim’s testimony, she had not referred to the defendant as wearing glasses. The prosecutor then showed Weed a third photograph and elicited testimony that the picture depicted the defendant without glasses on September 17,1981, eight months after the date of the crime. The defendant objected to the introduction of the third photograph as irrelevant and prejudicial. The prosecutor claimed the photograph was admissible to show that the defendant did not always wear glasses.

The trial judge properly overruled the defendant’s objection to the admission of the third mug shot of the defendant. We have frequently pointed out that any use in evidence of photographs ordinarily found in police identification files will suggest to the jury that the defendant may have a criminal record and that indiscriminate use of mug shots is undesirable. State v. Pecoraro, 198 Conn. 203, 206, 502 A.2d 396 (1985). Here, however, the prosecutor did not offer the photograph indiscriminately. He quite properly refrained from introducing it during the direct examination of the victim, when he elicited the details of her identification. At that time it was of minimal significance as corroboration. The defendant, on cross-examination of the victim, however, tried to cast doubt on her identification testimony. Thus, he tried to show that she would be unable to see the defendant under the artificial lighting in the lobby she described. At this point, the trial judge could properly have found that the admission of the third photograph as corroboration was justified.

Moreover, outside the presence of the jury the trial judge suggested masking the placard shown on the third photograph. The defendant was unwilling to mask any writing and asked that the picture be exhibited without any covering. In any event, the admission of the third mug shot was minimally prejudicial, if at all, since defense counsel had previously elicited testimony from the victim, before the jury, that she had made an identification from mug shots on September 10,1981. Also, the trial judge charged the jury to disregard and draw no inference from the date on the mug shot.

We next address the defendant’s claim that he was denied a fair trial by the action of the trial court in violating its own sequestration order. At trial, during cross-examination of the victim, defense counsel attempted to impeach her by questioning her about an alleged inconsistency between her testimony at trial and her earlier testimony during the pretrial suppression hearing. The alleged inconsistency concerned the victim’s testimony as to when she first had an opportunity to view her assailant’s facial features. As has been noted, the victim testified that she was sexually assaulted in a darkened alcove of the unlighted theatre and then taken by her assailant to the candy counter where he examined the contents of her pocketbook. Cross-examination at trial proceeded as follows:

“Defense Counsel: The first chance that you had to observe the face of your assailant was at the candy counter, is that correct?

“The Witness: I saw an outline of his face in the alcove, you know, like I could tell his features.

“Defense Counsel: Oh, you say you could tell his features?

“The Witness: I could see his features, sure. I could see that he was a man. I could see certain things about him, yes.

“Defense Counsel: Do you recall testifying, I believe, earlier this week in regards to this matter?

“The Witness: Yes, I do.

“Defense Counsel: And do you recall at that time, I asked you a question and I said, ‘so the first opportunity to see the man’s face occurred after the assault by the candy counter when he brought your pocketbook over?’ And do you recall answering, ‘right.’ ”

At this point the state’s attorney objected to the question and the jury was excused. Defense counsel requested that the witness also be excused from the courtroom, in accordance with a sequestration order previously entered by the trial court, so that she would not be present during the ensuing discussion of the alleged inconsistency in her testimony. Practice Book § 876 provides that “[t]he judicial authority upon motion of the prosecuting authority or of the defendant shall cause any witness to be sequestered during the hearing on any issue or motion or during any part of the trial in which he is not testifying. ” (Emphasis added.) See General Statutes § 54-85a. The purpose of a sequestration order is to prevent a witness from fashioning his testimony to correspond to the statements of others in the courtroom; see State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442 (1962); including the statements of counsel. While the trial court should have excused the witness during discussion by counsel of an alleged inconsistency in her testimony, we cannot conclude in this case that the failure to do so was probably harmful to the defendant.

In the course of the colloquy which followed, the alleged inconsistency was identified. At the hearing on the motion to suppress, the witness had testified that while in the dark alcove she could only see the “outline” of her assailant’s features, while at trial she testified, as quoted above, that she could make out his “features.” According to the witness, in testimony given both at the suppression hearing and again at trial, she had not had a good opportunity to view her assailant until she stood with him near the candy counter. The trial court, noting that “outline of features . . . is different than features,’’overruled the state’s objection. The trial court then called a recess during which the attorneys were afforded the opportunity to review the transcript of the suppression hearing to determine whether the witness’ trial testimony was, in fact, inconsistent.

When court reconvened and the jury was seated, defense counsel resumed cross-examination of the victim. Although he did not renew his question asked just before the recess, counsel’s cross-examination was searching and unrestricted, covering all aspects of the victim’s opportunity to view her assailant and her ability to identify him. We are not apprised of the reason that counsel chose not to renew the question which now forms the basis, in part, of this claim of error on appeal. The defendant claims that the question was not renewed because the witness had been present during the colloquy on her alleged testimonial inconsistency, and therefore would have conformed her trial testimony accordingly. We do not agree. Under the circumstances, it appears that trial counsel chose not to pursue the question because he concluded, as have we, that any purported inconsistency between the witness’ testimony on the motion and her testimony at trial was marginal in the extreme. There is little or no impeachment value in a prior statement such as “I could see the outline of his features” when offered to contradict testimony such as “I could see his features,” “I could see that he was a man,” and “I could see certain things about him.” This, essentially, is the impeachment evidence the jury would have had before it, had the assistant state’s attorney not objected when he did.

The burden is on the defendant to show prejudice in the trial court’s failure to observe its sequestration order; State v. Silveira, 198 Conn. 454, 479, 503 A.2d 599 (1986); State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980); and we do not see what harm could possibly have resulted from the victim’s presence in the courtroom during the colloquy. While it is true that during that colloquy both counsel and the trial court discussed their recollections of the witness’ prior testimony, defense counsel himself had already informed the witness what that testimony was by asking her if she recalled it. Even assuming that the witness, in response to counsel’s question, had testified that she could not recall her prior testimony, or worse, that she denied it completely, the inconsistency that would have been exposed is too technical, too minor in nature, to have had a significant impact on her credibility. Moreover, the inconsistency, if any, could easily have been explained away on redirect by the state. The victim’s prior testimony to the effect that she saw only an “outline” of her assailant’s features is not so definite and unambiguous as to preclude further, consistent and, no doubt, damaging elucidation. Defense counsel most likely perceived that the victim’s inevitable explanation of the purported inconsistency, if pursued, would only have resulted in the witness clarifying what she meant by “outline of his features.” It would thus appear that the defendant’s position after the colloquy was no worse than it would have been had the state not objected and the colloquy never occurred. In light of these circumstances, we cannot conclude that the victim’s presence in the courtroom during that colloquy harmed the defendant in any way.

There is no error.

In this opinion the other judges concurred.


author: Peters, C. J.

text:
    Theodore LaCroix v. Board of Education of the City of Bridgeport
    (12544)
    Peters, C. J., Shea, Santaniello, Callahan and Brennan, Js.

      Argued January 15
    decision released March 11, 1986

      PaulE. Knag, with whom, on the brief, was Gregory B. Nokes, for the appellant (defendant).

      Robert J. Malone, for the appellee (plaintiff).
   Peters, C. J.

The principal issue on this appeal after certification from a judgment of the Appellate Court is whether the trial court had jurisdiction to hear the plaintiffs claims that his contract of employment as a tenured teacher had been wrongfully terminated. The plaintiff, Theodore LaCroix, brought this action against the defendant board of education of Bridgeport (hereinafter the board) alleging that the board, in failing to follow the procedural requirements for termination mandated by General Statutes § 10-151 (b), the Teacher Tenure Act, violated his contract of employment and deprived him of his right to due process of law as guaranteed by article first, § 8, of the Connecticut constitution. Following an appeal after trial, the Appellate Court found that the plaintiffs contract had never been legally terminated, and it ordered him reinstated with damages. We granted certification to review the judgment of the Appellate Court.

The underlying facts are not in dispute. In 1972, the plaintiff was a tenured teacher in the Bridgeport school system, having been employed as an elementary school physical education teacher since 1966. On June 21, 1972, the assistant superintendent of schools notified the plaintiff by letter that his contract was being terminated on June 23,1972, because “all principals with whom you have worked have sent written notification that they find it impossible to communicate with you, and have you follow instructions and other due and sufficient causes . . . .” In response to this letter, the plaintiff, on July 10,1972, hand-delivered to the board a written request for a hearing. No hearing was held during the remainder of the summer, nor was the plaintiff given a teaching assignment when the new school year commenced in September. Subsequently, on October 16,1972, before a hearing had been held, the board voted to approve the termination of the plaintiffs contract, effective June 30,1972. Two days later, the board notified the plaintiff that the hearing he had requested in July would be held on October 26, 1972. On the advice of his retained counsel, the plaintiff did not attend this hearing. Finally, in a letter dated October 31,1972, the board notified the plaintiff that “termination of [his] services as a teacher in the Bridgeport School System [had] been taken under consideration by the Board of Education at their last regular meeting on October 30,1972.” The letter informed the plaintiff of his right, upon written request, to a hearing or a statement of the reasons for the proposed termination. The plaintiff failed to make such a request or to respond to the board’s letter in any way, nor did he appeal the board’s decision to Superior Court as provided by General Statutes § 10-151 (f). No further communications of record occurred between the parties until May, 1974, when the plaintiff filed the present lawsuit.

Following a trial without a jury, the trial court found that the board’s initial attempt in June, 1972, to terminate the plaintiff’s contract had been ineffective because it had failed to comply with the procedural requirements prescribed by General Statutes § 10-151 (b). However, the court found that the board’s letter of October 31 had effectively reinitiated the statutory termination procedure and had resulted in a valid termination when the plaintiff failed to request a hearing.

On appeal, the Appellate Court reversed in part, holding that the initial procedurally defective June termination rendered ineffective the subsequent October 31 attempt by the board to terminate the plaintiffs contract in compliance with the procedural mandates of § 10-151 (b). LaCroix v. Board of Education, 2 Conn. App. 36, 39-42, 475 A.2d 1110 (1984). Consequently, the court ruled that, because the plaintiffs contract had never legally been terminated, he was entitled to reinstatement and damages dating from June, 1972. In reaching the merits of the plaintiff’s claim, the Appellate Court rejected the defendant’s challenge to the trial court’s jurisdiction, holding that the plaintiff’s failure to exhaust his administrative remedies and to bring an administrative appeal of the board’s action, as provided by § 10-151 (f), did not preclude him from bringing an independent action to contest the termination of his contract.

We granted certification to review the judgment of the Appellate Court in respect to three issues: (1) whether the plaintiff was barred from bringing this action because of his failure to exhaust his administrative remedies as provided by § 10-151 (b) and (f); (2) whether the procedurally defective June termination rendered ineffective the board’s subsequent October 31 termination attempt; and (3) whether the plaintiff is entitled to reinstatement “without regard to the grounds for or the merits of his termination,” as well as to an award of “more than a decade’s worth of back pay.” Our resolution of the first two issues makes it unnecessary for us to consider the third.

It is important to note at the outset the analytical framework in which we consider these issues. Our focus of review is the action of the Appellate Court, not the action of the trial court. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985); State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985). The Appellate Court viewed the board’s various actions from June through October, 1972, as components of one single termination attempt which was rendered invalid by the initial failure to follow prescribed statutory procedures. As we view the case, however, we conclude that the ramifications of the board’s attempt to terminate the plaintiff’s contract in June are significantly different from those which flowed from its attempt to terminate the contract in October. Accordingly, our consideration of the action of the Appellate Court will deal separately with the June termination and the October termination.

I

The Appellate Court made two crucial determinations with respect to the board’s initial attempt to terminate the plaintiff’s contract in June, 1972. It held, first, that the termination attempt was ineffective because it failed to comport with the procedures mandated by General Statutes § 10-151 (b), and second, that the plaintiff was entitled to judicial relief without having exhausted his administrative remedies under General Statutes § 10-151 (f) because, in its view, the plaintiff’s “statutory appeal rights for wrongful termination did not preclude an action for breach of contract.” LaCroix v. Board of Education, supra, 39. We disagree in part with the second of these holdings.

The Appellate Court was clearly correct in holding, as had the trial court, that the defendant board had failed to comply with the requirements of § 10-151 (b) in its June attempt to terminate the plaintiff’s contract of employment. Under that subsection, before a tenured teacher’s contract may be terminated, a board of education must: (1) give the teacher written notice that termination of his contract is “under consideration”; (2) provide a written statement of the reasons therefor within five days of a timely written request by the teacher; and (3) provide a hearing, followed by a written decision, within fifteen days of a timely written request by the teacher. The defendant no longer contests the finding of noncompliance arising out of its failure to provide the plaintiff either notice that his termination was under consideration or a hearing within fifteen days of the plaintiffs timely request.

We do not, however, concur with the Appellate Court’s broadly stated authorization for bypass of a tenured teacher’s administrative remedies under § 10-151 (f). The Appellate Court, reading the plaintiffs complaint, as had the trial court, as an action for breach of a contract of employment, determined that such an action would lie regardless of available statutory rights of appeal. In arriving at this conclusion, the Appellate Court relied on our decisions in Cahill v. Board of Education, 187 Conn 94, 103, 444 A.2d 907 (1982) (Cahill I), and Petrovich v. Board of Education, 189 Conn. 585, 589, 457 A.2d 315 (1983). These cases do not permit a litigant to invoke common law contract remedies in complete disregard of available administrative relief.

In Cahill I, supra, the plaintiff, a tenured teacher, claimed that her assignment following her return from an approved sabbatical violated the terms of her contract. After an extended dispute between the parties, the board of education terminated the plaintiff’s employment contract in accordance with the procedures prescribed by § 10-151. The plaintiff did not appeal this termination directly under § 10-151 (f), but subsequently brought a separate action alleging breach of contract both in the termination of her contract and in the board’s failure to assign her to an appropriate position. Insofar as her law suit challenged her allegedly wrongful termination, we held that she was limited to the statutory appeal process provided by § 10-151 (f). In holding, in Cahill I, supra, 103, that “[t]o the extent that the complaint alleged a breach of the agreement [by failing to assign her to the proper position], the court had jurisdiction to hear this case,” we permitted direct judicial relief only with respect to matters totally outside of the remedial scope of § 10-151.

In Petrovich v. Board of Education, supra, a nontenured teacher brought a breach of contract action to challenge the nonrenewal of her contract. As a nontenured teacher, she had no statutory right under § 10-151 to appeal directly the termination or non-renewal of her contract. Consequently, we held that, in the absence of such a statutory right, the teacher was not precluded from bringing “an appropriate action for breach of contract.” Petrovich v. Board of Education, supra, 589.

In the present case, the plaintiff, a tenured teacher, challenged only the wrongful termination of his contract. Since he was entitled to appeal this termination under § 10-151 (f), the cases relied upon by the Appellate Court provide no support for its holding on jurisdiction.

Contrary to the Appellate Court’s decision, we have long adhered to the rule that, where a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action “to test the very issue which the appeal was designed to test.” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984); Greenwich v. Liquor Control Commission, 191 Conn. 528, 543, 469 A.2d 382 (1983); Powers v. Ulichny, 185 Conn. 145, 147, 440 A.2d 885 (1981); Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 117, 425 A.2d 576 (1979); Astorita v. Liquor Control Commission, 165 Conn. 185, 189, 332 A.2d 106 (1973). In this case, the plaintiffs challenge of the allegedly wrongful termination of his contract seeks to address the very issue which the appeal mechanism authorized by § 10-151 (f) was designed to test. In its holding that the plaintiff was in no way precluded from bringing a separate breach of contract action to challenge the June termination, the Appellate Court did not take sufficient account of this general rule of exhaustion of remedies.

Like any other general rule, the rule of exhaustion of administrative remedies is subject to some exceptions, although we have recognized such exceptions only infrequently and only for narrowly defined purposes. See Cahill v. Board of Education, 198 Conn. 229, 241-43, 502 A.2d 410 (1985) (Cahill II); Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216-17, 491 A.2d 1096 (1985); Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 94, 448 A.2d 210 (1982). One such narrow exception involves a constitutional challenge to the propriety of the procedures followed by the administrative agency or board. Connecticut Light & Power Co. v. Norwalk, supra, 117. Simply bringing a constitutional challenge to an agency’s actions will not necessarily excuse a failure to follow an available statutory appeal process. Sullivan v. State, 189 Conn. 550, 554, 457 A.2d 304 (1983); Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, supra, 96 n.6; Garrow v. Elizabeth General Hospital & Dispensary, 79 N.J. 549, 561, 401 A.2d 533 (1979); Kmiec v. Spider Lake, 60 Wis. 2d 640, 645, 211 N.W.2d 471 (1973); see generally 4 Davis, Administrative Law Treatise (2d Ed.) § 26:8. Under some special circumstances, we have, however, permitted a collateral constitutional challenge to an administrative procedure even in the absence of a direct appeal. Connecticut Light & Power Co. v. Norwalk, supra.

In the present case, the plaintiff alleged that the defendant board violated his right to due process as guaranteed by article first, § 8, of the Connecticut constitution by its failure to provide a hearing prior to, and for four months subsequent to, its June termination of his contract. As a tenured teacher with a statutory right to continued employment under § 10-151 (b), the plaintiff possessed a property right that was entitled to constitutional protection. Cahill II, supra, 240; Lee v. Board of Education, 181 Conn. 69, 71-72, 434 A.2d 333 (1980). This protection entitled the plaintiff, at a minimum, to notice and “[t]he opportunity to be heard at a meaningful time and in a meaningful manner.” Kukanskis v. Griffith, 180 Conn. 501, 509-10, 430 A.2d 21 (1980). The plaintiff therefore presented a colorable constitutional challenge to the defendant board’s actions by his allegation that the board deprived him of due process in failing to schedule a hearing until months after the June termination.

We conclude that, under the specific circumstances of this case, the plaintiff’s failure to follow the administrative appeal route to challenge the June termination did not preclude him from bringing a collateral judicial action to test this basic constitutional infirmity in the board’s termination process. See Friedson v. Westport, 181 Conn. 230, 233, 435 A.2d 17 (1980); Connecticut Light & Power Co. v. Norwalk, supra, 117. Two circumstances lead us to this conclusion: the plaintiff’s timely request for a hearing is evidence that he did not deliberately decide to bypass the statutory appeal route, and the defendant board’s unwillingness to provide the hearing within the statutory period was a significant contributing factor in the plaintiff’s failure to pursue a direct appeal. We can find neither constitutional nor statutory mandate to compel the plaintiff’s attendance at the defendant board’s untimely hearing scheduled for October 26. The defendant’s total default relieved the plaintiff of the obligation to pursue further administrative steps, and permitted the plaintiff to invoke judicial remedies to vindicate his constitutional rights to due process. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). Accordingly, we conclude that the trial court had jurisdiction to hear the plaintiff’s constitutional challenge to the June termination.

Having decided that the trial court had jurisdiction to hear this due process claim, we need not address the merits of the claim itself. The defendant has challenged only the trial court’s jurisdiction. It acknowledges that it did not file a cross appeal in the Appellate Court to challenge either the trial court’s finding that the June termination was invalid or its consequent award of back pay to the plaintiff for the 1972-73 school year. We therefore affirm the award of damages to the plaintiff in the amount of $1470.64 plus interest and costs.

II

The Appellate Court viewed the board’s second termination attempt, initiated by its letter of October 31, 1972, informing the plaintiff that his termination was under consideration, as a continuation of its initial invalid June action. It found that, since the plaintiff had already been illegally terminated and had not been reinstated, the October 31 letter was insufficient to restart the termination procedure mandated by § 10-151 (b), which requires notice prior to termination. Consequently, it held that the plaintiff’s contract was never validly terminated. It also found that the plaintiff’s failure to exhaust the administrative remedies provided by § 10-151 (b) and (f) did not deprive the trial court of jurisdiction to hear this action. We disagree and reverse.

The failure of a school board to comply with the procedural requirements of § 10-151 (b) in attempting to terminate the contract of a tenured teacher renders the termination ineffective. It does not, however, preclude a board from reinitiating the termination procedure in a manner which comports with the statutory mandates. Only recently we held in Petrovich v. Board of Education, supra, 588, that “[w]hether or not the board’s [initial] action was legally efficacious to accomplish the intended result, the board was not precluded thereby from taking whatever measures it deemed necessary [to terminate the contract] for the ensuing years.” Reinstatement of the teacher is not a prerequisite to such a renewed termination effort. We imposed no such prior reinstatement requirement on the board in Petrovich v. Board of Education, supra. The fact that the teacher in Petrovich was nontenured while the plaintiff in the present case was tenured is irrelevant to this issue.

In the present case, the June termination was ineffective because the defendant board had failed to give the plaintiff prior notice that his termination was being considered. This default for the school year 1972-73 did not, however, prevent the defendant from beginning the termination procedure anew in an attempt to comply with the statutory requirements of § 10-151 (b) for the year 1973-74 and thereafter. The defendant undertook this renewed termination effort with its letter of October 31, informing the plaintiff, in language which tracked the language of § 10-151 (b), that termination of his contract “[had] been taken under consideration by the Board of Education at their last regular meeting on October 30, 1972.” This notice effectively reinitiated the termination process. The Appellate Court’s failure to recognize the October 31 letter as the first step in a separate and distinct termination attempt was erroneous.

The Appellate Court further erred in holding that the plaintiff’s failure to exhaust the administrative remedies available to him under § 10-151 (b) and (f) did not prove a jurisdictional bar to the present action challenging the efficacy of the October termination. “It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter.” Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979); Cahill II, supra, 238-39; Sullivan v. Board of Police Commissioners, supra, 216; Greenwich v. Liquor Control Commission, supra, 541; Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, supra, 93; Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357, 377 A.2d 1099 (1977); McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 73 S. Ct. 336, 97 L. Ed. 704 (1953). General Statutes § 10-151 (b) guarantees a tenured teacher the right to a hearing prior to termination in which the teacher can challenge the proposed board action, and § 10-151 (f) provides the right to a direct appeal from an unfavorable decision after the hearing. The plaintiff deliberately decided not to avail himself of these statutory means of redress. His failure to request a hearing and to pursue his available remedies is thus fatal to his present cause of action.

In contrast to the plaintiffs claim arising out of the June termination, his challenge to the October termination does not fall within one of the narrow exceptions to the exhaustion doctrine which we have recognized. The plaintiff relies on the principle that resort to administrative remedies is not required where the remedy is inadequate or futile. Cahill II, supra, 241; Sullivan v. Board of Police Commissioners, supra, 217. That principle is inapplicable in this case, because the hearing and appeal mechanisms provided by § 10-151 are designed to provide immediate consideration and review of the very issue of wrongful termination that the plaintiff raises in this action. The available statutory remedies thus adequately safeguard the plaintiff’s rights. Furthermore, the statutory remedies are not rendered futile by the plaintiffs conclusory assertion that requesting and attending a hearing before the defendant board would have been pointless in the face of the board’s earlier decision to terminate his employment. Cahill II, supra, 241. Had the plaintiff requested and attended a hearing following the board’s October 31 letter, he would have been able to raise the issue of lack of impartiality in an administrative appeal. “By not appearing before the board, the plaintiff not only deprived the defendant board of the opportunity to hear, analyze and review a matter within its responsibility and expertise, but also deprived [him]self of the opportunity to put on [his] case and to make a proper record on which to seek judicial relief in the event [he] was terminated.” CahillII, supra, 241-42. These two exceptions, therefore, do not excuse the plaintiff’s failure to follow the statutory course.

The failure to pursue available administrative remedies has also been excused, under special circumstances discussed more fully in part I, when a constitutional challenge to the propriety of the administrative action has been brought. The plaintiff’s due process attack on the October 31 termination, however, does not present a colorable constitutional claim. In attempting to establish a violation of due process, the plaintiff argues that his property rights in his tenured position were unconstitutionally implicated by the defendant board’s renewal of its effort to terminate his employment in October and by the defendant board’s failure thereafter to give him formal notification of the termination of his contract. We disagree that either of these claims requires direct judicial action in derogation of established statutory procedures.

The due process rights of a tenured teacher are well defined and not controverted in the present case. As a matter of constitutional law, the plaintiff was entitled to (1) notice of the fact of and the alleged reasons for his proposed termination, (2) an opportunity for a meaningful hearing to contest the termination, and (3) a written statement of the decision reached, the reasons for the determination, and a summary of the evidence relied upon. Lee v. Board of Education, supra, 76-79; Kukanskis v. Griffith, supra, 509-10. With respect to the October termination, the plaintiff was afforded these rights by the defendant board and by the administrative processes of § 10-151 (b). The plaintiff admittedly received notice of the contemplated termination, and was offered the opportunity to be informed of the reasons underlying the proposed action and to receive a hearing before the board. He declined both of these offers. We have already noted that his allegation that the board would not have given him a fair hearing is on the one hand both speculative and unsupported by any evidence, and on the other hand administratively cognizable. His further complaint that he was never informed of the actual termination also lacks merit. Having failed to avail himself of the opportunity for a hearing, the plaintiff could well be deemed to have waived any due process right to a written statement of the outcome of the hearing. In any event, the plaintiff received notice in fact about his termination when he was made aware of the defendant board’s refusal to assign him to a teaching position. On this record of intentional inaction on the part of the plaintiff and communication in fact on the part of the defendant, the plaintiff has not made out a colorable claim of constitutional deprivation.

In the absence of a colorable claim of a constitutional violation, the plaintiff has failed to establish a persuasive basis for permitting him to pursue a direct judicial remedy rather than an administrative appeal. We note, however, that the absence of special circumstances attending the plaintiff’s October 31 termination might have required exhaustion of administrative remedies even if his constitutional claim had been colorable. Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, supra, 96; Connecticut Light & Power Co. v. Norwalk, supra, 117. Furthermore, direct judicial adjudication even of constitutional claims is not warranted when the relief sought by a litigant “might conceivably have been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore.” Sullivan v. State, supra, 559. In short, the plaintiffs failure to avail himself of the remedies available to him pursuant to § 10-151 deprived the trial court of jurisdiction to consider his challenge to the October 31 termination.

The Appellate Court was therefore in error in failing to recognize that the trial court lacked jurisdiction to determine the validity, in a direct judicial action, of the defendant board’s October termination of the plaintiff. Because of this jurisdictional lacuna, the Appellate Court should have refrained from inquiry into whether the board’s actions, beginning with its October 31 letter to the plaintiff, properly invoked the mechanisms of § 10-151 (b) and effectuated a valid termination of the plaintiff’s contract. Neyland v. Board of Education, 195 Conn. 174, 177, 487 A.2d 181 (1985). Consequently the Appellate Court lacked the authority to order further remedial relief for the plaintiff in the form of reinstatement and additional damages for his termination for the school years subsequent to 1972-73.

The judgment of the Appellate Court is reversed in part and the case is remanded with direction that the judgment of the trial court is to be reinstated in its entirety.

In this opinion the other judges concurred.

       At the time of the plaintiff’s termination, General Statutes (Rev. to 1972) § 10-151 (b), since amended and reorganized as § 10-151 (d), provided: “employment of teachers, notice and hearing on termination of contract. . . . (b) Beginning with and subsequent to the fourth year of continuous employment of a teacher by a board of education, the contract of employment of a teacher shall be renewed from year to year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed, if no other position exists to which he may be appointed if qualified; or (6) other due and sufficient cause; provided, prior to terminating a contract, a board of education shall give the teacher concerned a written notice that termination of his contract is under consideration and, upon written request filed by such teacher with such board within five days after receipt of such notice, shall within the next succeeding five days give such teacher a statement in writing of its reasons therefor. Within twenty days after receipt from a board of education of written notice that contract termination is under consideration, the teacher concerned may file with such board a written request for a hearing, which such board shall hold within fifteen days after receipt of such request. Such hearing shall be public if the teacher so requests or the board so designates. The teacher concerned shall have the right to appear with counsel of his choice at such hearing, whether public or private. A board of education shall give the teacher concerned its written decision within fifteen days after such hearing, together with a copy of a transcript of the proceedings, which shall be furnished without cost. Nothing herein contained shall deprive a board of education of the power to suspend a teacher from duty immediately when serious misconduct is charged without prejudice to the rights of the teacher as otherwise provided in this section.”

       Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . . .”
      Prior to trial, the plaintiff expressly withdrew a claim that his rights under the fourteenth amendment to the United States constitution had also been violated.

       The plaintiff delivered the following letter to the defendant board on July 10, 1972:
      “Gentlemen:
      “Please be advised that I am requesting in writing a hearing with the Board of Education regarding the termination of my contract as physical education instructor.
      “I file this request within the twenty (20) days allowed me since my alleged termination.
      “Very truly yours,
      “Theodore LaCroix”

       The record does not indicate whether a hearing was held in the plaintiff’s absence on October 26, 1972.

       At the time of the plaintiffs termination, General Statutes (Rev. to 1972) % 10-151 (f) provided: “employment of teachers, notice and hearing on termination of contract. . . . (f) Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (b) of this section may appeal therefrom, within thirty days of such decision, to the court of common pleas for the county or judicial district in which such board is located. Such appeal shall be made returnable to said court in the same manner as is prescribed for civil actions brought to said court. Any such appeal shall be a privileged case to be heard by the court as soon after the return day as is practicable. The board of education shall file with the court a copy of the complete transcript of the proceedings of the hearing held by the board for such teacher, together with such other documents, or certified copies thereof, as shall constitute the record of the case appealed from. The court, upon such appeal, shall review the proceedings of such hearing and shall allow any party to such appeal to introduce evidence in addition to the contents of such transcript, if it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court, upon such appeal and after a hearing thereon, may affirm or reverse the decision appealed from. Costs shall not be allowed against such board unless it appears to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.”

       In 1983, General Statutes § 10-151 was amended to provide a statutory right of appeal to nontenured teachers under certain circumstances. See Public Acts 1983, No. 83-398.

       Exhaustion of administrative remedies is generally not required when the challenge is to the constitutionality of the statute or regulation under which the board or agency operates, rather than to the actions of the board or agency. Conto v. Zoning Commission, 186 Conn. 106, 115, 439 A.2d 441 (1982); General Dynamics Corporation v. Groton, 184 Conn. 483, 490, 440 A.2d 185 (1981); Friedson v. Westport, 181 Conn. 230, 233, 435 A.2d 17 (1980).

       The plaintiff raised this due process claim before the Appellate Court, but that court found it unnecessary to reach it. LaCroix v. Board of Education, 2 Conn. App. 36, 40 n.3, 475 A.2d 1110 (1984). Although both parties briefed this issue extensively on this appeal, we note that the plaintiff did not file a preliminary statement of issues with this court under Practice Book § 3012 (a) raising the constitutional claim as an alternate basis for sustaining the Appellate Court’s decision. Ordinarily, we would not consider an issue which had not been “squarely raised” either by the petition for certification or in a § 3012 (a) statement. State v. Torrence, 196 Conn. 430, 434 n.6, 493 A.2d 865 (1985). However, the question of the subject matter jurisdiction of the court may be raised at any time; Practice Book § 3110; Neyland v. Board of Education, 195 Conn. 174, 177, 487 A.2d 181 (1985); and must be acted on by the court “regardless of the form of the motion”; Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985); or the content of the pleadings. Sullivan v. Board of Police Commissioners, 196 Conn. 208, 213, 491 A.2d 1096 (1985). Consequently, we will consider the constitutional challenge in our determination of the jurisdiction of the court.

       In view of the defendant’s acknowledged failure to appeal the trial court’s judgment, we need not decide whether an award of a full year’s back pay was appropriate.

       In computing the amount of damages due, the trial court subtracted the amount of the plaintiffs actual earnings for the year 1972-73 from the amount he was entitled to receive under his contract with the defendant. The plaintiff claims that the court’s computation was incorrect, and asks us now to decide the proper method of computing damages. The plaintiff’s similar request to the Appellate Court was denied, and the plaintiff failed to raise this claim in a preliminary statement of issues; Practice Book § 3012 (a); or in a cross petition for certification. Practice Book § 3141. We therefore decline to consider this claim.