author: Peters, C. J.

text:
    SSM Associates Limited Partnership et al. v. Plan and Zoning Commission of the Town of Fairfield et al.
    (13518)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued April 4
    decision released May 30, 1989

      Roy H. Ervin, town attorney, with whom was Roy H. Ervin, Jr., for the appellants (defendants).

      James R. Fogarty, for the appellees (plaintiffs).
   Peters, C. J.

The dispositive issue in this appeal is the applicability of General Statutes §§ 8-3 (g) and 8-7d (b), providing for automatic approval of site plan applications, to the submission of a site plan that is inseparable from an application for a special permit. The plaintiffs, SSM Associates Limited Partnership and Herbert H. Moorin, trustee, brought an action in mandamus to compel the defendants, the plan and zoning commission of the town of Fairfield (commission), its zoning enforcement officer and its planning and zoning director, to issue them a certificate of zoning compliance to enable them to construct an office building. The trial court adjudged that a writ of mandamus should issue, and the Appellate Court affirmed that judgment. SSM Associates Limited Partnership v. Plan & Zoning Commission, 15 Conn. App. 561, 545 A.2d 602 (1988). We granted the defendants’ petition for certification; SSM Associates Limited Partnership v. Plan & Zoning Commission, 209 Conn. 812, 550 A.2d 1084 (1988); and now affirm.

The following facts were stipulated. The plaintiff SSM Associates Limited Partnership entered into a contract with the plaintiff Herbert H. Moorin to acquire some 4.25 acres of land located in a Designed Research District in Fairfield. On March 11, 1986, the plaintiffs filed with the defendant commission a complete application for the approval of the construction of an office building on this property, a permitted use in the Designed Research District. The site plan submitted in this application was inseparable from the special permit which, under the applicable Fairfield regulations, the plaintiffs had to secure from the commission in order to go forward with the proposed use of the property. SSM Associates Limited Partnership v. Plan & Zoning Commission, supra, 15 Conn. App. 562-63.

The first regular meeting of the commission following receipt of the plaintiffs’ application was held on March 25, 1986. The commission did not act on the application within sixty-five days of March 25, 1986, other than to schedule a public hearing on the plaintiffs’ application for June 10, 1986. The Fairfield zoning regulations do not require such a public hearing. On June 17, 1986, the commission purported to deny the plaintiffs’ application. The plaintiffs never consented to an extension of the relevant statutory time limitations contained in § 8-7d. Id., 563.

On June 19, 1986, the plaintiffs requested a certificate of zoning compliance because of the commission’s failure to act within sixty-five days of March 25,1986. Failing to receive a response from the defendants, they brought an action for mandamus to compel the issuance of such a certificate. Id., 563-64. The defendants’ answer to this complaint, filed after the parties’ stipulation of facts, admitted the allegations stated in paragraph four of the plaintiffs’ complaint, to wit that, on March 11, 1986, the plaintiffs had filed with the commission “an application for approval of a site plan permitting the construction of an office building on the subject property pursuant to §§ 25 and 24 of the Fair-field Zoning Regulations.”

The trial court rendered judgment for the plaintiffs. Examining the parties’ stipulation and pleadings, and the Fairfield zoning regulations, the court found that the plaintiffs’ site plan was inseparable from and part and parcel of their special permit application. In light of Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), the court then held that the commission’s failure to act on the plaintiffs’ site plan, when no public hearing was required, triggered the automatic approval provisions of §§ 8-3 (g) and 8-7d (b) and entitled the plaintiffs to a writ of mandamus.

The Appellate Court affirmed. In Carr v. Woolwich, supra, the court had noted a statutory inconsistency in the use of the term “site plan” between the first and third sentences of General Statutes (Rev. to 1985) § 8-3 (g). “The first sentence connotes that the site plan is but a part of the application approval process, namely, as an aid in determining whether a proposed use conforms to the regulations. The third sentence contemplates automatic approval of a site plan by the passage of time, as if approval of the site plan carries with it approval of the entire application with respect to which, under the first sentence, the site plan is simply an aid to determine the conformity of the proposed use with the regulations.” Id., 699-700. In the present case, the Appellate Court resolved this conundrum by defining the term “site plan,” as used in § 8-3 (g), to include the entire package of documents submitted to a zoning commission to aid in its determination of the conformity of the proposed building to the applicable zoning regulations. SSM Associates Limited Partnership v. Plan & Zoning Commission, supra, 15 Conn. App. 566. Applying this test to the stipulated facts, the Appellate Court concluded that the plaintiffs’ application for a special permit, which purported to include all the information required by the Fairfield zoning regulations for a decision on the application, was approved by the lapse of time. Id., 568.

We granted the defendants’ petition for certification on two issues: “(1) Did the Appellate Court err in concluding that automatic approval of a site plan by lapse of sixty-five days after its submission pursuant to General Statutes §8-7d(b) also resulted in automatic approval of the special permit zoning application, which had included the site plan as a supporting document pursuant to the zoning regulations?” and “(2) When a site plan is submitted with an application for a special zoning permit, does the sixty-five day time limit of General Statutes § 8-7d (b) for a decision thereon supersede the time limits set forth in General Statutes § 8-7d (a) for a decision on the application?” On the present record, we find no error with respect to the first issue, and need not determine the second issue. We therefore affirm the judgment of the Appellate Court.

This court last discussed the relationship between §§ 8-3 (g) and 8-7d (b) in Vartuli v. Sotire, 192 Conn. 353, 472 A.2d 336 (1984). Under § 8-3 (g), “[approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d.” Under § 8-7d (b), “[wjhenever the approval of a site plan is the only requirement . . . remaining to be met . . . for a proposed building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan.” We concluded that these sections imposed a mandatory time frame of sixty-five days on local site plan approvals. Id., 359-62; see also Carr v. Woolwich, supra, 694-95. The defendants maintain that these time constraints do not govern the present litigation because the plaintiffs were seeking approval for a special permit and not for a site plan. Although a site plan is a component of a Fairfield special permit application, they contend that this case falls within the prefatory language of § 8-3 (g), which permits local zoning regulations to require a site plan to be filed “to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations.” Because Fairfield's zoning regulations thus accord with the authority that § 8-3 (g) has conferred upon local government, the defendants claim that the Appellate Court improperly invoked automatic site plan approval when other requirements of the Fair-field zoning regulations remained to be met.

The difficulty with these contentions is that they lack the requisite factual predicate. By stipulation before trial, the defendants agreed that, in this case, the application for a special permit “includes submission of a site plan which is inseparable from the requirement that the Plaintiffs secure a special permit.” As a result of this stipulation, the defendants have no factual basis for mounting a theoretical distinction between a special permit and a site plan. Indeed, as the plaintiffs remind us, the defendants in effect conceded the absence of such a factual distinction in their pleadings at trial. Their answer admitted paragraph four of the plaintiffs’ complaint, which states: “On March 11,1986, the Plaintiffs filed with the Defendant Town Plan & Zoning Commission an application for approval of a site plan permitting the construction of an office building on the subject property pursuant to §§ 25 and 24 of the Fairfield Zoning Regulations.” (Emphasis added.) The plaintiffs have never filed, and were never asked to file, a separate application for a special permit. In these circumstances, the Appellate Court correctly concluded that the commission’s failure to act within sixty-five days on the plaintiffs’ application, whether it be denominated a special permit or a site plan application, triggered its automatic approval in accordance with §§ 8-3 (g) and 8-7d (b).

The present record equally lacks any factual basis for exploring the defendants’ alternate contention, that the Appellate Court erred in concluding that the time constraints imposed by § 8-7d (b) superseded those imposed by § 8-7d (a). For “all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission . . . and a hearing is required on such petition, application, request or appeal,” § 8-7d (a) establishes its own time constraints for the holding of hearings and the rendering of decisions. These time constraints, with which the defendant commission concededly did not comply, differ from those contained in § 8-7d (b). We need not, however, assess the significance of § 8-7d (a)’s time constraints in this case. The defendants stipulated that, although the commission held a public hearing to consider the plaintiffs’ application, such a hearing “was not specifically required by the Fairfield Zoning Regulations (Section 25.3).” In the absence of a regulation whereby “a hearing is required,” the time constraints of § 8-7d (a) were therefore inapplicable. Since this court does not render advisory opinions; Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75-76, 523 A.2d 486 (1987); we must defer consideration of the relationship between subsections (a) and (b) of § 8-7d to another day. Our certification of this issue was therefore improvident and we decline to consider it further at this time.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 8-3 (g) provides in relevant part: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. . . . Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. A certificate of approval of any plan for which the period for approval has expired and on which no action has been taken shall be sent to the applicant within fifteen days of the date on which the period for approval has expired.”

       General Statutes § 8-7d (b) provides: “Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for a proposed building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five-day periods, or may withdraw such plan.”

       Plainly, municipal regulations cannot bypass the mandatory provisions of General Statutes §§ 8-3 (g) and 8-7d (b) simply by denominating an application for site plan approval as an application for a special permit. If there are genuine factual determinations to be made about the true characterization of an application for zoning commission approval, the parties must obtain appropriate findings of fact from the trial court.

       Fairfield Zoning Regulations § 24.1 provides in relevant part: “General. The excavation, movement, alteration, or filling of any earth, loam, topsoil, clay or stone affecting any premises located in any zoning districts of the Town shall require a special permit in accordance with the provisions of this regulation.”
      Fairfield Zoning Regulations § 25.1 provides, in relevant part: “General. The Town Plan and Zoning Commission may grant a special permit for the establishment of a special permit use in . . . Designed Research Districts in accordance with the procedures, standards and conditions hereinafter specified. All requirements of this section are in addition to other requirements applicable in the district in which the special permit is to be issued.”

       The plaintiffs suggest that the Fairfield zoning regulations require special permits for applications that would be handled differently in other Connecticut municipalities. Even for permitted uses, Fairfield builders must obtain a special permit for any commercial construction or reconstruction in a Designed Research District unless the use is one that was in existence prior to the creation of the zone. Fairfield Zoning Regs. §§ 22.2, 22.3.

       “[General Statutes] Sec. 8-7d. HEARINGS AND DECISIONS. TIME LIMITS. day of receipt, (a) Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.”


source: Caselaw Access Project

author: Covello, J. Peters, C. J.,

license: Public Domain

text:
    R. E. Van Norstrand v. Freedom of Information Commission et al.
    (13552)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued January 10
    decision released May 30, 1989

      Constance L. Chambers, assistant general counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      PL. Gordon Hall, associate attorney general, for the appellee (plaintiff).
   Covello, J.

This is an appeal from a decision of the Superior Court overruling an order of the Freedom of Information Commission (FOIC) that required disclosure of certain data concerning judges that had been collected by the plaintiff, R. E. Van Norstrand, the speaker of the House of Representatives for the 1985-1986 session. The dispositive issue is whether the trial court erred in concluding that the requested information was a preliminary draft within the meaning of General Statutes § 1-19 (b) (1) and (c) (1) and therefore exempt from disclosure.

Examination of the record discloses that on March 7, 1986, the Journal Inquirer newspaper and two of its reporters sent a letter to the plaintiff, requesting a copy of the summary of the data he had obtained as the result of a survey of members of the Connecticut Bar Association evaluating various characteristics of the judges of the Superior Court. The survey was conducted in 1985-1986 by the plaintiff in his official capacity as the presiding officer of the House of Representatives, which body has the responsibility, together with the Senate, to pass upon the governor’s nominees for judicial reappointment. The plaintiff sought to obtain information about those judges scheduled for reappointment in 1986. To this end, he sent out 8300 questionnaires to the members of the Connecticut Bar Association. The qualities of the individual judges evaluated included judicial integrity, demeanor, diligence, caseflow management, familiarity with current law, soundness of written rulings and worthiness for retention. Fifteen hundred completed questionnaires were returned. The questionnaires included evaluations of judges who were not scheduled for reappointment in 1986, as well as those of judges who were.

The data thus acquired were thereafter compiled in a numerical format for all of the judges. Those with the least favorable ratings were reviewed by the plaintiff to determine which of them were scheduled for reappointment in 1986. After this, the information concerning judges not due for reappointment was excised from the final survey results. The plaintiff testified that the only purpose in gathering information about those judges whose terms were not expiring in 1986 was to ensure general statistical reliability. The excised data were not presented to the legislature or to any legislative committee nor were they used in any way in the legislative decisionmaking process.

On March 11, 1986, the plaintiff sent a letter to the Journal Inquirer’s reporter acknowledging that he had released the summary of data pertaining to judges who were being considered for reappointment in 1986, but that he refused to release the summary of data concerning the judges who were not being considered for reappointment in that year. On March 14, 1986, the Journal Inquirer and two of its staff filed a complaint with the FOIC requesting it to order the plaintiff to disclose the data concerning all of the judges. At a hearing conducted by the FOIC, the plaintiff argued that the excised portion of the summary of the data constituted a preliminary draft or note and was therefore exempt from disclosure pursuant to General Statutes §§ 1-19 (b) (1) and (c) (1).

On June 11, 1986, the FOIC concluded that the requested information was not so exempt and ordered its disclosure. In so doing, the FOIC found that “the respondent did seriously and in good faith consider the effect upon disclosure to the public . . . [but] failed to prove that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” The FOIC further found that “the summary of the data pertaining to the judges is not a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of a public agency and therefore, it is not exempt under § 1-19 (c) (1).”

On June 26,1986, the plaintiff appealed this decision to the Superior Court. That court concluded that the requested information was indeed a preliminary draft or note and ruled that disclosure was therefore not required. The FOIC in turn appealed that decision to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

I

Exemption Under General Statutes § 1-19 (b) (1)

General Statutes § 1-19 (a) sets out the broad public right to inspect or copy agency records. General Statutes § 1-19 (b) (1) exempts from the otherwise required disclosure “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” As a threshold consideration, therefore, we must determine whether the requested material constituted “preliminary drafts or notes” within the meaning of General Statutes § 1-19 (b) (1). In so doing, the words must be construed according to their commonly approved usage. General Statutes § 1-1 (a).

“Preliminary” is defined as “something that precedes or is introductory or preparatory.” As an adjective it describes something that is “preceding the main discourse or business.” A “draft” is defined as “a preliminary outline of a plan, document or drawing . ” (Emphasis added.) American Heritage Dictionary of the English Language. By using the nearly synonymous words “preliminary” and “draft,” the legislation makes it very evident that preparatory materials are not required to be disclosed. The compilation of raw data here in issue was a preliminary document and therefore a draft because it contained data not required or germane to the eventual purpose for which the survey was undertaken and it was thereafter modified to excise the material that was irrelevant to its legislative purpose.

The FOIC’s argument that those data were neither “preliminary” nor a “draft” simply overlooks: (1) the common usage of the pivotal words contained in the exemption statute; (2) the fact that the data concerning judges not scheduled for reappointment were obtained solely to establish the statistical validity of the survey; and (3) the fact that the requested information was thereafter excised as irrelevant from the summary before it was circulated or used in the deliberative process. Had the purpose of the survey been to compile data with respect to all judges in the state which would thereafter be used in connection with their respective reappointments, whenever they might be, then the FOIC would be correct in asserting that the survey was not a draft document but rather a completed document. This, however, is not the factual circumstance that confronts us.

With respect to the precise language of General Statutes § 1-19 (b) (1) here in issue, we have earlier stated that “preliminary drafts or notes reflect that aspect of the agency’s function that precedes formal and informed decisionmaking. We believe that the legislature sought to protect the free and candid exchange of ideas, the uninhibited proposition and criticism of options that often precedes, and usually improves the quality of, governmental decisions. It is records of this preliminary, deliberative and predecisional process that we conclude the exemption was meant to encompass.” Wilson v. Freedom of Information Commission, 181 Conn. 324, 332-33, 435 A.2d 353 (1980). The survey results concerning the judges who were not scheduled for reappointment constitute records falling within the predecisional process to which we referred in our earlier holding.

The fact that this data constituted “preliminary drafts” within the meaning of General Statutes § 1-19 (b) (1) does not resolve the issue, however, as the statute further requires that the “public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” In this connection, the FOIC found that “while the respondent did seriously and in good faith consider the effect upon disclosure to the public, the respondent failed to prove that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” Such a statement misperceives what is required in order to qualify for the exemption.

Van Norstrand testified before the FOIC that the requested information concerned judges who would not be considered for reappointment for two to six years. He further testified that the survey results here in issue would not be used in making that determination. He posited that within two to six years, the information would be stale and to use it in the future reappointment process would be unfair to those judges. He also noted that the information being sought was not germane to any considerations then pending before the legislature. He further testified that releasing the information would affect the performance of sitting judges who received a low rating. He also testified that this release would affect assignment patterns by the judicial department and encourage “judge shopping.” In light of all of these considerations, Van Norstrand concluded that the public interest in withholding the information clearly outweighed the public interest in disclosing it.

The FOIC’s conclusion that “the respondent failed to prove that the public interest in withholding such documents clearly outweighs the public interest in disclosure” demonstrates that the FOIC made an independent determination concerning what was in the public interest based upon Van Norstrand’s testimony. This it cannot do. General Statutes § 1-19 (b) (1) specifically provides that preliminary drafts or notes are exempt from disclosure “provided the public agency [here Van Norstrand as speaker of the House of Representatives] has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” (Emphasis added.)

“Although the statute places the responsibility for making that determination on the public agency involved, the statute’s language strongly suggests that the agency may not abuse its discretion in making the decision to withhold disclosure. The agency must, therefore, indicate the reasons for its determination to withhold disclosure and those reasons must not be frivolous or patently unfounded.” Wilson v. Freedom of Information Commission, supra, 339. Here, Van Norstrand set out for the FOIC the various reasons that he considered in complying with the “public interest” aspect of the statute. Thereafter, the FOIC specifically concluded that “the respondent did seriously and in good faith consider the effect upon disclosure to the public.” Having concluded that there had been a good faith consideration of the effect upon disclosure, and not having found an abuse of discretion, the FOIC had determined all that was required of it by statute to qualify the requested information for the exemption in issue, it having been earlier found that the material constituted a “preliminary draft or note.”

II

Exemption Under General Statutes § 1-19 (c) (1)

A conclusion that the requested information is not subject to disclosure under General Statutes § 1-19 (b) (1) does not mark the end of the required analysis, however, as the legislature supplemented the exemption statute in 1981 through its enactment of General Statutes § 1-19 (c) (1). This statute provides in part that “[notwithstanding the provisions of subdivision (1) of subsection (b) of this section, [i.e., General Statutes § 1-19 (b) (1)], disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.” (Emphasis added.)

In analyzing this statute, we must again construe the words used according to their commonly approved usage. General Statutes § 1-1 (a). While the language initially removes many kinds of material from the exempt status, this additional requirement for disclosure is immediately qualified in two important respects. First, the material to be disclosed must “[comprise] part of the process by which governmental decisions and policies are formulated.” Second, disclosure “shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.” (Emphasis added.)

Even if the survey data had crossed the initial threshold for disclosure under § 1-19 (c) (1), the data falls squarely within the specific exemption set out in the statute, i.e., “a preliminary draft of a memorandum, prepared by a member of the staff of a public agency which is subject to revision prior to submission to or discussion among the members of such agency.” We have already discussed the plain meaning of “preliminary draft.” Further, no one has argued that Van Nor-strand, as speaker of the House of Representatives, was not “a member of the staff of a public agency.” Finally, the survey data as collected were clearly “subject to revision” in that the data concerning judges not to be reappointed were excised by Van Norstrand “prior to submission to or discussion among the members of such agency [i.e., the legislature].” On the basis of the foregoing, we conclude that this material is not subject to disclosure under § 1-19 (c) (1).

There is no error.

In this opinion Shea, Callahan and Hull, Js., concurred.

Peters, C. J.,

dissenting in part. Although I agree with the majority opinion’s analysis of General Statutes § 1-19 (c) (1), I am unpersuaded that the original unexpurgated survey of the judges, which the plaintiff, R.E. Van Norstrand, commissioned in his role as member and speaker of the House of Representatives, qualifies for an exemption under General Statutes § 1-19 (b) (1). Since eligibility for that exemption is essential to upholding the plaintiff’s position, I respectfully dissent from the judgment of the court.

The plaintiff maintains, and the majority opinion concludes, that his survey of judges was not subject to public disclosure under the Freedom of Information Act (FOIA); General Statutes §§ 1-15, l-18a, 1-19 through 1-19b, 1-21, 1-21a and 1-21c through 1-21k; because it qualified for the exemption contained in § 1-19 (b) (1) for “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” In construing this exemption, we do not write on a clean slate. The overarching policy of the FOIA favors disclosure of public records. To implement this policy, exceptions to the rule of public disclosure are to be narrowly construed, and the agency claiming an exemption bears the burden of proving its applicability. Commissioner of Consumer Protection v. Freedom of Information Commission, 207 Conn. 698, 701, 542 A.2d 321 (1988); Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984); Wilson v. Freedom of Information Commission, 181 Conn. 324, 328-29, 435 A.2d 353 (1980).

In my view, the majority opinion misconstrues, in two respects, the exemption contained in § 1-19 (b) (1). First, the exemption requires the plaintiff to demonstrate not only that the document in question was preliminary to a subsequent document, but also that the document falls within the class of documents that can reasonably be characterized as being “drafts” or “notes.” Second, the exemption requires the plaintiff to show that he has undertaken an objective rather than a subjective balancing process to determine that the public interest is clearly served by nondisclosure of the document in question.

The majority opinion reads the statutory phrase “preliminary drafts” as a unitary requirement, rather than as a duality, requiring a showing that the document is both “preliminary” and a “draft.” Such a construction is, I believe, unwarranted. Facially, § 1-19 (b) (1) refers to “drafts,” “notes” and “documents.” We should not presume that the legislature intended to make equivalents out of these independent reference points. “In examining . . . statutory requirements ... we must consider the statutory scheme as a whole, giving meaning to every section, and assuming no word or phrase to be superfluous.” Berger v. Tonken, 192 Conn. 581, 589, 473 A.2d 782 (1984); see State v. Parmalee, 197 Conn. 158,162, 496 A.2d 186 (1985); State v. Freedom of Information Commission, 184 Conn. 102, 107, 441 A.2d 53 (1981); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 14, 434 A.2d 293 (1980). Indeed, the use of the final phrase “such documents” implies that only documents that are “drafts” or “notes” qualify for the § 1-19 (b) (1) exemption. I am unpersuaded that a completed poll, even one designed solely to validate the legitimacy of data contained in a part thereof, can reasonably be characterized as a “draft.” I am also unpersuaded that Wilson v. Freedom of Information Commission, supra, compels a different result. As the commission notes, the legislative history surrounding the subsequent enactment of § 1-19 (c) (1) signals the legislature’s disavowal of Wilson’s expansive construction of “preliminary drafts or notes” as encompassing generally “that aspect of the agency’s function that precedes formal and informed decisionmaking.” Wilson v. Freedom of Information Commission, supra, 332-33.

Even if the unexpurgated poll were properly characterized as a “preliminary draft,” such a characterization, as the majority opinion recognizes, does not per se justify withholding of the document from the public. Under § 1-19 (b) (1), public disclosure of the original document is still required unless “the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” I agree that this provision locates the authority to undertake the statutory balancing test in the public agency, in this case the plaintiff, rather than in the commission. Nonetheless, it seems to me inconsistent with the policy of the act, and the limited place it assigns to exemptions, to permit the public agency to validate the balancing process in accordance with a standard of good faith, rather than in accordance with a more objective cost-benefit analysis. The importation of a good faith standard would give to a public agency a breadth of discretion that is difficult to reconcile with the agency’s burden of establishing its entitlement to a § 1-19 (b) (1) exemption. Concomitantly, such a standard would severely limit the commission’s capacity to review the legitimacy of an agency’s exercise of its balancing authority. The legislature has nowhere indicated that, in this one instance, it intended to deprive the commission of its primary role as FOIA factfinder. New Haven v. Freedom of Information Commission, 205 Conn. 767, 775-76, 535 A.2d 1297 (1988); Hartford v. Freedom of Information Commission, supra, 434-35. The record in this case, however, persuades me that the plaintiff made an objectively valid determination not to release the unexpurgated judges’ poll, and I therefore concur in the majority opinion’s judgment that the plaintiff satisfied his burden of proof on this issue.

For the reasons stated above, I respectfully dissent.

       General Statutes § 1-19 (a) provides in relevant part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records . . . . ”

       General Statutes § 1-1 (a) provides in relevant part: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . .

       Examination of its legislative history discloses that the enactment of General Statutes § 1-19 (c) (1) was motivated in part by Wilson v. Freedom of Information Commission, 181 Conn. 324, 339, 435 A.2d 353 (1980). In the course of introducing the bill that became Public Acts 1981, No. 81-431, now General Statutes § 1-19 (c) (1), its Senate proponent, Senator Wayne A. Baker, stated: “Mr. President, it was just six years ago that we enacted what is nationally recognized as a model Freedom of Information Act. The Act creates broad rights of public access to the records of meetings of all public agencies. It also contains a limited number of exceptions to the general rule of disclosure and openness. All of this is consistent with the Freedom of Information laws intent that the people have the fundamental right to know in a timely fashion not only what governmental decisions are but what considerations go into those decisions. Unfortunately, our Supreme Court has said in the case of Wilson v. Freedom of Information Commission that the Connecticut Act should be interpreted as having the same meaning as the federal act even where their language and legislative policy are dissimilar. Mr. President, this bill basically reaffirms and clarifies the original intent and purpose in light of that case. It makes clear, hopefully once and for all, that the deliberative process of government agencies shall be open to the public except where the legislature alone determines a superior public interest in confidentiality.” (Emphasis added.) 24 S. Proc., Pt. 17, 1981 Sess., pp. 5422-23. Senator Baker went on to say that “I don’t think that what we are requiring here is that all facts, that every piece of information that they have gleaned in determining or rather dealing with a problem has to be disclosed, but when they are coming to the final deliberative process, making a decision, I think that that has to be disclosed.” 24 S. Proc., Pt. 17, 1981 Sess., p. 5426.
      Despite the proponent’s implication that Wilson had in some manner narrowed the broad disclosure policies set forth in General Statutes § 1-19 (a), we are still required to construe the new enactment on the basis of what the statute says. “A primary rule of statutory construction is that if the language of the statute is clear, it is presumed that the words express the intent of the legislature. . . . The court must interpret the statute as written . . . . ” Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987).

       For relevant commentary by the sponsors of Public Acts 1981, No. 81-431, which was later codified as General Statutes § 1-19 (c) (1), see the remarks of Senator Wayne A. Baker, 24 S. Proc., Pt. 17, 1981 Sess., pp. 5419-21, and of Representative Joseph Walkovich, 24 H. R. Proc., Pt. 23, 1981 Sess., pp. 7687-88.


author: Hull, J.

text:
    Guillermo Aillon v. Larry R. Meachum, Commissioner of Correction
    (13542)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued January 10
    decision released May 30, 1989

      John R. Williams, for the appellant (petitioner).

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, was Stephanie Watkins, legal intern, for the appellee (respondent).
   Hull, J.

The sole issue on this appeal is whether the petitioner, Guillermo Aillon, has established that his convictions on three counts of murder in violation of General Statutes § 53&-54 should be overturned because of ineffective assistance of counsel. We conclude that the trial court properly rejected the petitioner’s claims that the legal representation he received at his third trial was constitutionally deficient and, therefore, find no error.

The long history of events leading up to the present appeal may be summarized as follows. The petitioner was charged with three counts of murder alleged to have occurred on August 14,1972. The charges against the petitioner arose out of the stabbing deaths of George Montano, his wife, Bernice Montano, and their daughter, Barbara Aillon, the petitioner’s estranged wife, in the Montanos’ home in North Haven. The petitioner was tried on these charges in 1973 and convicted by a jury, but he was granted a new trial because of an improper ex parte conversation between the trial court and a member of the jury. Aillon v. State, 173 Conn. 334, 339-40, 377 A.2d 1087 (1977). The petitioner’s second trial, in 1978, ended in a mistrial when the jury was unable to reach a verdict. Thereafter, the petitioner filed a motion for judgment of acquittal arguing that his retrial was barred by double jeopardy. That claim was twice rejected by this court. State v. Aillon, 189 Conn. 416, 421-22, 456 A.2d 279, cert. denied, 464 U.S. 837,104 S. Ct. 124, 78 L. Ed. 2d 122 (1983); State v. Aillon, 182 Conn. 124,130-31 n.5, 137-38, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S. Ct. 883, 66 L. Ed. 2d 817 (1981). In March, 1984, approximately four months prior to the commencement of the petitioner’s third trial, the attorney who had represented the petitioner in his first two trials, Howard Jacobs, withdrew from the case. New counsel from the public defender’s office, Donald Dakers and Kenneth Rosenthal, were appointed to represent the petitioner in his third trial. They entered their joint appearances on behalf of the petitioner on March 22,1984. Dakers was primary trial counsel. Rosenthal was his assistant.

Jury selection for the petitioner’s third trial commenced on July 23,1984. On September 21,1984, the jury found the petitioner guilty as charged of three counts of murder in violation of General Statutes § 53a-54. The trial court, Hadden, J., sentenced him to three consecutive terms of imprisonment of twenty-five years to life. This judgment was upheld on direct appeal. State v. Aillon, 202 Conn. 385, 521 A.2d 555 (1987). On November 5,1987, the petitioner filed a petition for a writ of habeas corpus alleging inadequate representation on the part of his counsel in the third trial. After an evidentiary hearing, the trial court, Framsse, J., issued a memorandum of decision on June 17,1988, denying the petitioner’s claims for relief and dismissing the petition. The petitioner appeals from that judgment.

The gravamen of the petitioner’s claim on appeal is that he received ineffective assistance of counsel under our federal and state constitutions at his third trial because his trial counsel lacked sufficient time to prepare an adequate defense. Specifically, the petitioner contends that his counsel’s representation was constitutionally inadequate in that they: (1) failed to obtain a hair identification expert to rebut the testimony given by the state's hair identification experts; (2) failed to prepare properly for the cross-examination of witnesses; (3) failed to interview properly an important defense witness before she presented her trial testimony; (4) failed adequately to prepare the petitioner for his trial testimony; and (5) failed to obtain a lesser included offense charge.* **

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267,104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). With regard to the performance component of this inquiry, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id., 687-88. Further, the test for prejudice requires that “[t]he defendant . . . show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 694; see also Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988); Herbert s. Manson, 199 Conn. 143, 145, 506 A.2d 98 (1986); State v. Tirado, 194 Conn. 89, 92, 478 A.2d 606 (1984).

The complexity of the petitioner’s case cannot be overstated. He had been tried twice before on the same charges without a final resolution of the case. Four separate appeals had been taken by the petitioner since his first trial. Dozens of witnesses had testified at the first two trials and hundreds of exhibits had been introduced into evidence. The materials from the first two trials that needed to be reviewed prior to the petitioner’s third trial, everything from trial transcripts to police statements, were voluminous.

Preparation by Dakers and Rosenthal for the petitioner’s third trial began in earnest in early May, 1984, when they secured from his former attorney the bulk of the files from the petitioner’s first two trials, including the transcripts from those trials. Counsel divided up trial preparation responsibilities. Rosenthal’s efforts were focused primarily on drafting pretrial motions and memoranda and organizing the materials contained in the files from the earlier trials. As lead counsel, Dakers spent most of his time reviewing the materials in those files, including the transcripts from the petitioner’s first two trials. The record reveals that the petitioner’s counsel filed an exhaustive number of pretrial motions and memoranda covering all aspects of the petitioner’s case. Rosenthal did most of the work on the pretrial motions, including a complex double jeopardy claim wherein he attempted to secure dismissal of all charges against the petitioner. Dakers testified that he spent “every waking minute” working on the case; he examined all the physical evidence and exhibits, surveyed the crime scene, and reviewed transcripts and other materials contained in the files from the prior two trials. Despite the seemingly diligent efforts put forth by counsel on his behalf, the petitioner claims, and Dakers and Rosenthal so testified at the habeas hearing, that due to a lack of time to prepare* ****** they failed to render an adequate defense of the petitioner at his third trial in several respects.

The petitioner first claims that his counsel were deficient in failing to secure an expert to rebut the testimony given by the state’s hair identification experts. A proper understanding of this claim requires some further discussion. At each of the petitioner’s three trials, one of the links between the petitioner and the murders was hair that was found on the bloody bedsheets and blanket in the bedroom of one of the victims. The state produced evidence from two FBI experts that this hair belonged to the petitioner. At his first trial, the petitioner contradicted this evidence through the testimony of Wellon D. Collom, a Pennsylvania criminologist, who stated that there was no similarity between the hair found on the bedsheets and blanket and the petitioner’s hair. At the second trial, Collom did not testify in person because of illness, but the trial court permitted his testimony from the first trial to be read to the jury.

At the habeas hearing, Rosenthal testified that he did not contact Collom with regard to testifying in rebuttal at the third trial until “after the state’s case was well under way.” According to Rosenthal, Collom informed him over the telephone that he was not willing to testify as an expert on hair at the third trial because he had not done hair analysis in many years. Rosénthal did not consider this a serious problem, however, because he believed that Collom’s testimony from the first trial could still be read to the jury, as it had been read at the second trial, under the exception to the hearsay rule allowing former testimony into evidence when the witness is “unavailable.” See, e.g., Fed. R. Evid. 804; Practice Book §§ 793, 803. The state, however, objected to the introduction into evidence of the former testimony. On September 13, 1984, four days before the conclusion of the petitioner’s trial, the trial court, after hearing argument, sustained the state’s objection and excluded Collom’s former testimony.*

The trial court’s ruling meant that the petitioner no longer had available to him, either in person or through transcript, the testimony of a hair expert to rebut the incriminating testimony of the state’s hair experts. Rosenthal therefore immediately attempted to secure another hair expert, Dr. Peter DeForrest, to testify. On the day following the trial court’s ruling, and again on September 18, 1984—the last day of trial—Dakers and Rosenthal moved for a continuance until October 1,1984, to enable DeForrest, who was temporarily out of the country, to examine, and then testify about, the hair samples that were then in evidence. The state objected, and the trial court denied the motion. Thus, the petitioner’s counsel was unable to secure a hair expert and the testimony of the state’s hair experts went in uncontradicted.

The gist of the petitioner’s claim on appeal is that had his counsel properly prepared for trial they would have contacted Collom at a much earlier date and discovered at that time his unavailability, leaving sufficient time to obtain a replacement hair expert to rebut the state’s hair experts. The petitioner also points to his counsel’s failure to subpoena Collom to trial in order to demonstrate to the court his unwillingness to testify as an expert witness so that his former testimony might be admitted into evidence under the “unavailability” exception to the hearsay rule. These omissions on the part of his counsel, the petitioner argues, fell below the standard of competence required of criminal attorneys and resulted in significant prejudice to his defense. We disagree.

It is unnecessary for us to evaluate whether counsel’s conduct was below standard as the petitioner has claimed since we find that he suffered no prejudice as a result of the claimed errors. “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Strickland v. Washington, supra, 697. This court in State v. Aillon, 202 Conn. 385, 521 A.2d 555 (1987), already considered on direct appeal the effect on the petitioner’s case of the lack of testimony to rebut the state’s hair experts when it affirmed the trial court’s ruling excluding from evidence Collom’s former testimony. Id., 393-94. In concluding that the trial court’s ruling did not violate the petitioner’s right to due process of law, we stated: “Even without the hair evidence . . . there was more than sufficient additional evidence adduced at trial to permit the jury to find the defendant guilty as charged. That evidence included the following: (1) the defendant had threatened violence against his estranged wife, one of the murder victims; (2) the defendant was seen in the vicinity of the murder scene on the night of the murders; (3) the defendant lied to police about his activities on the night of the murders; (4) police officers located a serrated-edged knife, the type of weapon used in the murders, in the defendant’s automobile on the night of the murders; (5) the blood types of two of the victims matched those of bloody items seized from the defendant’s automobile; (6) blood found on one of the severed fingertips of a rubber glove, which had been found near the body of one of the murder victims, was the same blood type as the defendant’s, and the glove fragments matched the rubber gloves used at a laboratory at the Yale School of Medicine at which, prior to the murders, the defendant had attended an embalming class; and (7) two witnesses contradicted the defendant’s alibi testimony that he had been at his sister’s house from the early evening until midnight on the night of the murders.” Id., 393. We considered this “compelling evidence of the defendant’s guilt,” evidence from which “the jury could reasonably have found the defendant guilty . . . independent of the [state’s] hair testimony . . . .” (Emphasis added.) Id., 393-94.

Even if the absence of rebuttal of the testimony of the state’s hair experts was nonetheless arguably a factor in the petitioner's conviction upon his third trial, the petitioner failed to establish, at his habeas hearing, that greater diligence would have produced a different result. In the posttrial hearing, no evidence was introduced to indicate that Collom or any other hair identification expert would have testified in such a manner as to contradict the hair identification evidence presented by the state. It is therefore a fair inference that it was the unavailability of such evidence, rather than inadequate preparation time, that ultimately led to the failure to produce hair identification testimony favorable to the petitioner. On this record, therefore, there is not “a reasonable probability that . . . the result of the proceeding would have been different.” Strickland v. Washington, supra, 694. Accordingly, we reject the petitioner’s claim as it fails to meet the prejudice prong of the Strickland test.

The petitioner next claims that Dakers was not properly prepared to cross-examine witnesses at trial. The petitioner’s claim is based primarily on Dakers’ testimony at the habeas hearing that he felt he was not adequately prepared to cross-examine witnesses because he had not had sufficient time to review the entire transcript of the petitioner’s second trial. We are unpersuaded.

Dakers testified that he read the entire transcript of the petitioner’s first trial prior to the third trial. The contention that it was also necessary for Dakers to have read the entire transcript of the second trial for him to be adequately prepared to cross-examine prosecution witnesses is highly debatable since much of the second trial transcript is duplicative of the first. Even if we were to conclude, however, that Dakers’ failure to read the second trial transcript in preparation for the third trial “fell below an objective standard of reasonableness,” the petitioner nevertheless fails to state what favorable effects a reading of the second trial transcript by Dakers would have had on his cross-examination of particular witnesses. Dakers’ generalized assertion at the habeas hearing that he believed it was necessary for him to have read the transcript of the second trial in order adequately to cross-examine witnesses at the third trial falls far short of the showing necessary to demonstrate that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, supra, 694. “[A] court simply cannot fulfill its obligation under Strickland to assess prejudice until the petitioner has met his burden of supplying sufficiently precise information.” United States ex rel. Cross v. DeRobertis, 811 F.2d 1008,1016 (7th Cir. 1987). Without a more specific showing as to how Dakers’ failure to read the second trial transcript adversely affected his cross-examination of particular witnesses, and how the allegedly inadequate cross-examination of those witnesses undermined the reliability of the outcome of the trial, the petitioner’s claim must be rejected as it fails to demonstrate the required prejudice under Strickland.

The petitioner next claims that his counsel’s performance was ineffective in that they failed properly to interview or prepare prosecution or defense witnesses prior to trial. Despite the all-encompassing nature of the petitioner’s allegation, this claim ultimately focuses on the allegedly inadequate preparation of only two witnesses, i.e., the petitioner himself, and Dr. Luz Aillon, the petitioner’s sister.

The following facts are relevant to the petitioner’s claim as it pertains to Dr. Aillon. The petitioner was stopped in his automobile by North Haven police officers early in the morning of August 14, 1972, shortly after the occurrence of the murders with which the petitioner was charged. The reason for the officers’ detention of the petitioner, however, was not related to the murders. Rather, the officers wanted to determine whether he might be a suspect in a burglary that had just occurred at a power equipment store in the vicinity. While one of the officers examined the petitioner’s license and registration, another officer shone a flashlight inside the petitioner’s automobile. The officer observed what appeared to be a knife handle protruding from a bundle of clothing. When asked whether the object was a knife, the petitioner responded that it was. At the request of the police, the petitioner handed over the knife to them. The knife was approximately ten inches in length, with a serrated edge, and stained with what appeared to be blood. The petitioner explained that the stains were juices from meat that he had cut earlier that evening at a picnic at a girlfriend’s house on Dixwell Avenue in New Haven. The knife was subsequently returned to the petitioner and, after a consensual search of the trunk of his automobile that revealed no evidence of a burglary, he was released. The entire stop lasted approximately fifteen minutes.

Later that same day, after the bodies of his wife and in-laws had been discovered, the petitioner was taken by the police to the North Haven police station for questioning. He admitted to the officers interviewing him that the statement that he had made previously to the patrol officers early that morning concerning the knife in his car and his whereabouts on the evening of August 13, 1984, was a fabrication. His new explanation for the presence of a knife in his automobile was that he had brought the knife, together with a roast, over to his sister’s apartment that night for dinner and that the knife had been used to carve the roast. The petitioner indicated to the officers questioning him that the knife was still in his car. The officers then asked for, and were granted, permission by the petitioner to search his car. Pursuant to this authorization, a search of the car was conducted by the police and a large knife was retrieved from the rear of the petitioner’s automobile. Thus, one issue at trial was whether the knife seized from the petitioner’s car was in fact the same knife that had been used at Dr. Aillon’s home, as he had claimed. At the first trial, Dr. Aillon testified that the knife in question “appealed] ” to be the same knife that the petitioner had brought to her home and used to carve the roast.

Prior to the third trial, Dr. Aillon was interviewed by Dakers. Dakers did not show Dr. Aillon the knife nor did he inquire whether she could recall its appearance. Dakers did, however, instruct the witness to testify honestly when she was called upon to testify. Thereafter, during cross-examination of Dr. Aillon by the state’s attorney at the third trial, the following colloquy took place with regard to the knife at issue:

“Q. Then after you had taken that five inches of roast, you sliced it with this knife, is that right?

“A. No.

“Q. No? What knife did you slice it with?

“A. With the one my brother brought.

“Q. Oh, this is not the knife your brother brought?

“A. No.

“[State’s Attorney]: I just showed her, for the record, Exhibit 299, if the Court please, which is the [knife] removed from the rear of the [petitioner’s] car.”

Clearly, this testimony of Dr. Aillon was unfavorable to the petitioner’s case. The petitioner now claims that if Dakers had properly interviewed Dr. Aillon prior to her testifying he would have discovered her memory lapse concerning the knife in question. Even if we were to agree that proper preparation of the witness required that she be shown the knife to determine her recollection of that item, the petitioner has failed to demonstrate how such preparation would have changed the witness’ testimony. The most reliable source of that information would be Dr. Aillon herself, yet the petitioner chose not to have her testify at the habeas hearing. Consequently, in view of the absence of any credible evidence concerning the favorable testimony that would have been elicited from Dr. Aillon had she been more thoroughly interviewed about the knife by Dakers, we conclude that the petitioner has failed to demonstrate prejudice. Strickland v. Washington, supra, 694.

The petitioner also faults his counsel for allegedly mishandling the preparation for his own trial testimony. Dakers testified that he had met with the petitioner on only a few occasions prior to jury selection, and that his trial preparation of the petitioner consisted of little more than providing the petitioner transcripts of his prior testimony and instructing him to read them. Dakers further testified that he did not believe he had spent enough time consulting with the petitioner prior to trial about his testifying and that this had an “adverse effect” on the petitioner’s testimony. The petitioner in his brief claims that this lack of preparation impaired “his ability to appear non-combative, appealing and candid before the jury.”

The petitioner, however, offered little or no evidence at the habeas hearing as to what proper preparation of the petitioner in this case would have entailed. Nor does he discuss specifically in his brief how proper preparation, whatever that might be, would have changed his testimony for the better. Absent a more specific showing on these matters; see United States ex rel. Cross v. DeRobertis, supra, 1016; the petitioner has failed to meet either component of the Strickland test.

Finally, the petitioner claims that his counsel were ineffective for having failed to obtain a jury instruction on the lesser included offense of first degree manslaughter. In a conference in chambers with the trial judge shortly before summations were to be given, counsel for the petitioner did in fact request a lesser included offense charge and the judge had agreed that the petitioner was entitled to such a charge. Upon leaving the judge’s chambers, Dakers and Rosenthal immediately took the petitioner aside and “explained to him what the situation was.” Rosenthal testified that the petitioner “immediately indicated that he did not wish the [lesser included offense] charge to be given.” Accordingly, the request to charge on the lesser included offense was withdrawn by counsel. Rosenthal testified that he now believes that the petitioner was under the mistaken impression that a charge on the lesser included offense was an admission of guilt, and that had he and Dakers spent more time explaining to the petitioner precisely what the implications of a lesser included offense instruction would be, the petitioner would have agreed to such a charge and the jury “may very well have rendered a verdict of guilty of the lesser included offense.” We are unpersuaded.

Rosenthal’s assertion that the petitioner’s rejection of the lesser included offense charge was the result of the failure properly to advise the petitioner on that subject is founded upon little more than speculation. It is significant to note that Rosenthal did not testify that the petitioner ever said that he thought the lesser included offense charge was an admission of guilt. Rather, Rosenthal testified that he “sensed” that was how the petitioner felt. The petitioner’s claim cannot stand on such a feeble foundation. We agree with the state’s assertion that “[bjecause the petitioner [has] failed to offer testimony concerning the basis for his rejection [of the lesser included offense charge], he cannot now speculate that his actions were based upon insufficient knowledge.” Our review of the record before us leads us to conclude that the conduct of the petitioner’s counsel with respect to the withdrawal of the lesser included offense charge was proper and did not fall below an objective standard of reasonableness. Strickland v. Washington, supra, 688.

There is no error.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1972) § 53a-54 provides in relevant part: “morder DEFINED. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. classification, (a) A person is guilty of murder when: (1) With intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime . . . . ”

       Attorney Jacobs’ withdrawal from the case was apparently prompted by a habeas corpus petition filed by the petitioner in November, 1983, alleging ineffective assistance of counsel on the part of attorney Jacobs because he “had failed to claim ‘that actions of the Court . . . during his first trial in 1973 constituted judicial misconduct foreclosing “the petitioner’s right to have his guilt or innocence determined by the particular tribunal summoned to sit in judgment on him.” ’ ” Aillon v. Manson, 201 Conn. 675, 679-80, 519 A.2d 35 (1986). The petitioner also filed a second petition for a writ of habeas corpus in August, 1984, again claiming ineffective assistance of counsel on the part of attorney Jacobs because he had allegedly “failed to raise, in a timely fashion, a valid double jeopardy claim.” 'Id., 683 n.6. We upheld the dismissal of both petitions in Aillon v. Manson, supra.

       The petitioner contends that his right to counsel under article first, § 8, of the Connecticut constitution affords him “greater and more extensive rights to counsel” than its federal counterpart contained in the sixth amendment to the United States constitution, and that the burden for demonstrating ineffective assistance of counsel under our state constitution is therefore less than that required under the federal constitution. We find no merit to this claim. We have consistently cited with approval the prevailing federal constitutional standard for review of ineffective assistance of counsel claims contained in Strickland v.Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984), without ever once indicating that the protection afforded by our state constitution imposes a different standard for review of such claims. See, e.g., Valeriano v. Bronson, 209 Conn. 75, 85, 546 A.2d 1380 (1988); Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988); Herbert v. Manson, 199 Conn. 143,145, 506 A.2d 98 (1986); State v. Tirado, 194 Conn. 89, 92, 478 A.2d 606 (1984).
      The only authority cited by the petitioner in support of the proposition that the rights afforded him under our federal and state constitutions are distinguishable with respect to an ineffective assistance of counsel claim is State v. Stoddard, 206 Conn. 157, 537 A.2d 446 (1988), which we find inapposite. In Stoddard, the issue was whether the police are constitutionally required to inform a suspect whom they are holding for custodial interrogation of timely efforts by counsel to render pertinent legal assistance. We acknowledged in that case that the United States Supreme Court had previously determined that the federal constitution imposes no such duty upon the police. See Moran v. Burbine, 475 U.S. 412, 422,106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). Nevertheless, we held that the due process clause of the Connecticut constitution provides broader protection in this area than its federal counterpart and requires that a suspect be so informed. The focus in Stoddard on when the right to counsel attaches, however, has not the slightest bearing on the standard to be employed in assessing an ineffective assistance of counsel claim under either our federal or state constitutions. Accordingly, we conclude that the state and federal constitutional standards for review of ineffective assistance of counsel claims are identical.

       The petitioner in his habeas petition alleged that his counsel's lack of time to prepare was due in considerable part to the trial court’s unwillingness to grant his counsel’s requests for continuances. In his brief to this court, however, the petitioner appears to shift the blame for the lack of time to prepare to his attorneys, claiming that his “[c]ounsel failed to request continuances even though counsel realized at an early stage that they lacked enough time to prepare a competent defense.” If the petitioner is advancing this as a separate basis in support of his claim of ineffective assistance of counsel, we find that it is clearly refuted by the record, which discloses that petitioner’s counsel did in fact request two continuances or extensions of time for purposes of additional preparation, both of which were granted by the court.
      Also, in his habeas petition, the petitioner alleged improper jury voir dire on the part of his counsel. The trial court found no merit to this claim. In his brief to this court, the petitioner asserts that attorney Dakers “did no research or preparation concerning jury selection.” The petitioner, however, has not developed this claim either in his brief or in oral argument before us. “ ‘Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. Cheney v. Strasburger, 168 Conn. 135,142, 357 A.2d 905 (1975); Maltbie, Conn. App. Proc. § 327; see Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472,475, 423 A.2d 141 (1979). This also applies to constitutional claims. Mazur v. Blum, 184 Conn. 116, 120, 441 A.2d 65 (1981); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 108-109, 291 A.2d 721 (1971).’ Rodriguez v. Mallory Battery Co., 188 Conn. 145,149, 448 A.2d 829 (1982).” Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984).

       The petitioner’s counsel testified that some portions of the second trial transcript were missing from Jacobs’ files and that that transcript was assembled piecemeal over the course of several weeks. Although the completed tránscript was eventually secured by counsel, the petitioner’s counsel testified that an inordinate amount of time was spent gathering and organizing the transcript of the second trial.

       The testimony of Dakers, the petitioner’s primary trial counsel, discloses that at the time he undertook to represent the petitioner in 1984, he was a highly experienced criminal defense attorney. Dakers graduated from law school in 1962. In 1976, he joined the public defender’s office as a full-time assistant public defender. In 1981, he became the public defender for the judicial district of New Haven county and held that position throughout his representation of the petitioner in 1984. Dakers testified that he had brought “at least a hundred” criminal felony cases to trial prior to his representation of the petitioner.
      Rosenthal testified that he graduated from law school in 1978 and worked primarily in civil litigation until August, 1982, when he joined the public defender’s office. As a member of the public defender’s office in March, 1984, he was appointed, along with Dakers, to represent the petitioner in his third trial.

         On May 21, 1984, the petitioner’s counsel filed with the court the following motions: motion for continuance, motion to supress statements, motion to supress evidence, motion to supress identification, motion for disclosure of uncharged misconduct, motion to exclude public, motion for evidentiary hearings, motion to transfer, motion to stay proceedings, motion for discovery and inspection, motion to reconsider and extend time to file pretrial motions, and motion to dismiss. On June 6, 1984, counsel for the petitioner filed an amended motion to dismiss, and on June 8, 1984, they filed a thirteen page memorandum in support of the amended motion to dismiss. On June 14,1984, the petitioner’s counsel filed with the court the following additional motions: motion to extend time to file pretrial motions, motion for advance disclosure of order of witnesses, motion for permission to inspect tangible and scientific evidence, motion for continuance, and motion to exclude television cameras. In the two weeks preceding the commencement of jury selection on July 23,1984, counsel for the petitioner filed with the court several more motions: motion to combine appeals (7/9/84), motion to stay proceedings (7/9/84), motion to reproduce exhibits (7/16/84), motion for order re transcript and for continuance (7/18/84), motion for fifty-four peremptory challenges (7/20/84), memorandum in support of motion for fifty-four peremptory challenges (7/23/84), motion for continuance re conflict of interest and accompanying memorandum (7/23/84). Furthermore, the petitioner’s counsel successfully moved to incorporate all of the pretrial motions made by attorney Jacobs in the prior two trials.

       At the habeas hearing, Dakers and Rosenthal attributed their alleged lack of time to prepare to several factors, including the large volume of material that needed to be reviewed from the first two trials, the difficulty in obtaining and organizing that material, and their continuing responsibilities in other cases, as well as the trial court’s refusal to grant additional continuances.

       At the habeas hearing, Rosenthal stated the following: “Mr. Columb [sic], as I indicated, testified live at the first trial, [and] had his testimony read in at the second trial. So it seemed to me that either way we were covered. We had the live witness, if he was available. We had the testimony to read it, as it happened at the second trial, if he wasn’t.”

       “[Practice Book] Sec. 793.—use of deposition
      “So far as otherwise admissible under the rules of evidence, a deposition may be used as evidence at the trial or at any hearing if the deponent is unavailable, as defined in Sec. 803. Any deposition may also be used by any party for the propose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer, or he may himself offer, all of it which is relevant to the part offered.”
      “[Practice Book] Sec. 803.—unavailability
      “ ‘Unavailable’ as used in Sec. 793 includes situations in which the deponent:

        “(1) Is exempted by a ruling of the judicial authority on the ground of privilege from testifying concerning the subject matter of his deposition;
      “(2) Persists in refusing to testify concerning the subject matter of his deposition despite an order of the judicial authority to do so;
      “(3) Testifies to a lack of memory of the subject matter of his deposition;
      “(4) Is unable to be present or to testify at a trial or hearing because of his death or physical or mental illness or infirmity; or
      “(5) Is absent from the trial or hearing and the proponent of his deposition has been unable to procure his attendance by subpoena or by other reasonable means.
      “A deponent is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is the result of the procurement or wrongdoing by the proponent of his deposition for the purpose of preventing the witness from attending or testifying.”

       This court upheld the trial court’s ruling on direct appeal, stating that because the petitioner had not secured Collom’s physical presence so that he might personally advise the trial court that he was no longer willing to testify as an expert, his unavailability, for purposes of admitting hearsay evidence, was not factually demonstrated. State v. Aillon,, 202 Conn. 385, 390-92, 521 A.2d 555 (1987).

       This court on direct appeal affirmed this ruling of the trial court. State v. Aillon, 202 Conn. 385, 396, 521 A.2d 555 (1987).

       See footnote 10, supra.

       Our conclusion regarding the petitioner’s failure to demonstrate prejudice is not altered by the fact that, had Dakers shown Dr. Aillon the knife prior to trial and discovered that her testimony would likely be adverse to the petitioner’s case, he might have opted not to call her to the witness stand in the hope of preventing her testimony from ever reaching the jury. It is clear that, as the petitioner’s only alibi witness, refusing to call Dr. Aillon to testify was not a realistic alternative.

       The petitioner, for reasons not readily apparent from the record, did not testify at the habeas hearing.