Perez v. Minore

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EDUARDO PEREZ ET AL. v. PETER MINORE
(AC 35199)
Gruendel, Bear and Dupont, Js.
Argued October 23, 2013—officially released January 28, 2014
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J. [motion to substitute]; Hon. Howard
F. Zoarski, judge trial referee [judgment].)
Bernard Pellegrino, for the appellants (plaintiffs).
James J. Nugent, with whom, on the brief, was Julia
A. Nugent, for the appellee (substitute defendant).
Opinion
DUPONT, J. The plaintiffs, Eduardo Perez and Jose
Fernandez, appeal from the judgment of the trial court,
rendered in favor of the defendant, Peter Minore,1 in
which the plaintiffs sought monetary damages for civil
assault based on statements allegedly made by the
defendant to third parties, threatening to cause bodily
harm to the plaintiffs.2 Their sole claim is that the court
erred in refusing to admit into evidence a police investi-
gative report (report) and two audiotaped conversa-
tions between the defendant and third parties regarding
the alleged threats made upon the lives of the plaintiffs.3
We affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history, which establish the relationship of
the parties prior to the institution of the present action.
In 2005, the plaintiffs leased a building owned by a
limited liability company in which the defendant was
a principal in partnership with his nephew. The lease
agreement negotiated by the parties enabled the plain-
tiffs to open and operate the liquor store in the defen-
dant’s building, and also contained an option for the
plaintiffs to purchase the building. After renovating the
building, the plaintiffs opened their liquor store in Octo-
ber, 2006.
In addition to the lease agreement, the plaintiffs and
the defendant had other business connections. The
defendant loaned money to the plaintiffs for the opera-
tion of the liquor store and for another business owned
by Fernandez. In 2008, the parties began to dispute
the repayment of those loans4 and to dispute questions
arising from the exercise of the plaintiffs’ option to
purchase the liquor store property.5
In late 2008 or early 2009, Perez filed a complaint
with the New Haven Police Department (department)
claiming that the defendant had asked two men, Max
Felix and Freddy Martin, to kill or cause harm to the
plaintiffs.6 Police Sergeant Alfonso Vasquez com-
menced an investigation, which included contacting
both Felix and Martin and requesting that they ‘‘wear
wires’’ while speaking with the defendant to determine
whether there was sufficient probable cause for an
arrest. On February 16, 2009, Martin spoke with the
defendant while wearing a wire and Vasquez was able
to record the conversation successfully. Vasquez was
also able to record a conversation between Felix and
the defendant. After further investigation, however,
Vasquez concluded that there was insufficient evidence
to support the plaintiffs’ claims and subsequently closed
the investigation without executing an arrest of the
defendant.
The plaintiffs commenced the present action against
the defendant and filed their initial complaint on Janu-
ary 13, 2011. The plaintiffs thereafter filed their revised
complaint on October 11, 2011, in which they sought
monetary damages for civil assault arising from the
threats of serious bodily harm or death caused by the
defendant’s verbal requests of Felix and Martin to cause
such serious bodily harm to the plaintiffs.7 In anticipa-
tion of trial, the plaintiffs subpoenaed copies of Vas-
quez’ report and copies of the taped conversations
between the defendant and Martin and the defendant
and Felix.8 In response, corporation counsel for the
City of New Haven (city) filed a motion to quash the
admission of the report and tapes at trial, as well as a
request for a protective order.9
Trial was held over the course of two days, beginning
on October 23, 2012. The court heard arguments on the
city’s motion to quash at the beginning of the trial.
The plaintiffs subpoenaed their first witness, Lieutenant
Patricia Helliger, as the records keeper for the depart-
ment. Helliger delivered Vasquez’ report to the court,
and upon offering the report into evidence, the city
renewed its argument in regard to its motion to quash
pursuant to General Statutes §§ 1-216 and 1-210 (b)
(3) of the Freedom of Information Act (act). At the
conclusion of the argument, the court conducted an in
camera review of the report and sustained the city’s
objection concerning its admissibility. The court also
ruled the taped conversations to be inadmissible on the
same grounds.
On November 6, 2012, the court issued its memoran-
dum of decision in which it held that ‘‘the alleged claims
regarding statements by [the defendant] were not
proven, and even if any statement was made to a third
party it would not constitute an assault as claimed by
the plaintiffs.’’ Relying on DeWitt v. John Hancock
Mutual Life Ins. Co., 5 Conn. App. 590, 594, 501 A.2d
768 (1985), the court concluded that ‘‘[t]he plaintiffs
have failed to prove that a civil assault occurred by
alleged statements to third parties.’’ The court also
found that ‘‘damages [were] not proven by either plain-
tiff by a fair preponderance of the evidence.’’ The court
then rendered a judgment for the defendant. The plain-
tiffs filed the present appeal on November 21, 2012.
We begin by setting forth the applicable standard of
review. The plaintiffs argue that our standard of review
is plenary because it concerns the interpretation of
statutes, which involves a question of law. The defen-
dant argues that our standard of review is abuse of
discretion because this appeal concerns an evidentiary
ruling. We agree with the defendant that abuse of discre-
tion review of the present claim is appropriate because
the plaintiffs’ only issue on appeal is whether the court
erred in excluding the report and audiotapes from evi-
dence. ‘‘The trial court’s ruling on evidentiary matters
will be overturned only upon a showing of a clear abuse
of the court’s discretion. . . . We will make every rea-
sonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse
of discretion. . . . [Thus, our] review of such rulings
is limited to the questions of whether the trial court
correctly applied the law and reasonably could have
reached the conclusion that it did.’’ (Internal quotation
marks omitted.) State v. Coccomo, 302 Conn. 664, 670–
71, 31 A.3d 1012 (2011).
The plaintiffs’ sole issue on appeal is that the court
erred in refusing to admit into evidence the report and
audiotaped conversations between the defendant and
Felix and the defendant and Martin regarding the
alleged threats made upon the lives of the plaintiffs.
Specifically, the plaintiffs contend the court incorrectly
applied §§ 1-216 and 1-210 to the report and audiotapes
in excluding such evidence. We disagree.
In excluding both the report and the audiotapes from
evidence at trial, the court relied primarily on §§ 1-216
and 1-210. Section 1-216 states: ‘‘Except for records the
retention of which is otherwise controlled by law or
regulation, records of law enforcement agencies con-
sisting of uncorroborated allegations that an individual
has engaged in criminal activity shall be reviewed by
the law enforcement agency one year after the creation
of such records. If the existence of the alleged criminal
activity cannot be corroborated within ninety days of
the commencement of such review, the law enforce-
ment agency shall destroy such records.’’ Section 1-210
(b) provides in relevant part: ‘‘Nothing in the Freedom
of Information Act shall be construed to require disclo-
sure of . . . (3) Records of law enforcement agencies
not otherwise available to the public which records
were compiled in connection with the detection or
investigation of crime, if the disclosure of said records
would not be in the public interest because it would
result in the disclosure of (A) the identity of informants
not otherwise known or the identity of witnesses not
otherwise known whose safety would be endangered
or who would be subject to threat or intimidation if their
identity was made known . . . or (G) uncorroborated
allegations subject to destruction pursuant to section
1-216.’’
On the basis of the evidence before it, the court cor-
rectly concluded, after an in camera review of the
report, that the report and the audiotapes were inadmis-
sible pursuant to those statutes.10 Section 1-216 applies
to law enforcement records that contain ‘‘uncorrobo-
rated allegations.’’ In the present case, Vasquez con-
ducted an investigation based on the plaintiffs’ claims
and determined that all such allegations were uncorrob-
orated because there was no overt act on the defen-
dant’s part and thus no probable cause. Vasquez then
closed the case without questioning or arresting the
defendant. Therefore, § 1-216 is directly applicable to
the report because it contains ‘‘uncorroborated allega-
tions that an individual has engaged in criminal activity’’
as well as to the audiotapes, the contents of which were
incorporated into the report.11
Although the plaintiffs assert that the department’s
failure to destroy the report and audiotapes indicates
that the allegations were not, in fact, uncorroborated,
there is nothing in the record to indicate that the depart-
ment’s failure to do so was anything more than an
administrative oversight.12 Because the report and
audiotapes fit within the auspices of § 1-216, we cannot
conclude that the court abused its discretion in exclud-
ing the report and audiotapes from evidence pursuant
to § 1-210 (b) (3) (G), which does not require disclosure
of ‘‘uncorroborated allegations subject to destruction
pursuant to section 1-216.’’13
Furthermore, even if the court’s ruling on the disclo-
sure of the report and audiotapes were incorrect, the
failure to admit such evidence was harmless error
because the court concluded not only that the plaintiffs
failed to prove that a civil assault had occurred, but
also that the plaintiffs had not suffered any harm as a
result of such an alleged assault. ‘‘[B]efore a party is
entitled to a new trial because of an erroneous eviden-
tiary ruling, he or she has the burden of demonstrating
that the error was harmful. . . . In other words, an
evidentiary ruling will result in a new trial only if the
ruling was both wrong and harmful. . . . Moreover, an
evidentiary impropriety in a civil case is harmless only
if we have a fair assurance that it did not affect the
[fact-finder’s] verdict. . . . A determination of harm
requires us to evaluate the effect of the evidentiary
impropriety in the context of the totality of the evidence
adduced at trial.’’ (Citation omitted; internal quotation
marks omitted.) Klein v. Norwalk Hospital, 299 Conn.
241, 254–55, 9 A.3d 364 (2010).
We affirm the trial court’s judgment for the defendant
in this action for civil assault, concluding that the sub-
poenas for production of the department’s report and
the audiotapes were correctly quashed.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The named defendant, Peter Minore, died on December 17, 2011, and
the trial court granted the plaintiffs’ motion to substitute his daughter,
Doreen Scungio, the executrix of his estate, as the party defendant. We
refer to Minore as the defendant in this opinion.
2
The parties agree that the allegations of the plaintiffs’ complaint consti-
tute a claim for civil assault, that is, ‘‘the intentional causing of imminent
apprehension of harmful or offensive contact in another.’’ DeWitt v. John
Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 594, 501 A.2d 768 (1985).
3
The importance of the report and taped conversations relate to their
relevance to prove the plaintiffs’ allegations of civil assault and to the
plaintiffs’ claim for damages.
4
In Minore v. Fernandez, Superior Court, judicial district of New Haven,
Docket No. CV-08-5023787-S (January 30, 2012), Minore filed an action
against Perez, Fernandez, and Fernandez’ wife seeking fulfillment of two
promissory notes. The court rendered judgment in favor of Minore in the
total sum of $110,515.44. This court affirmed that judgment in Minore v.
Fernandez, 139 Conn. App. 908, 56 A.3d 473 (2012).
The defendant’s estate also has a second case currently pending in the
Superior Court in which it is seeking monetary damages from Mayimbe,
LLC, a limited liability company owned by Fernandez, for failure to pay the
amount due under another promissory note. See Scungio v. Mayimbe, LLC,
Superior Court, judicial district of New Haven, Docket No. CV-11-6024507-S.
5
At a prior trial, Perez admitted that various problems arose affecting
the sale of the property including difficulty in obtaining financing, a defect
in title, and environmental concerns that delayed the closing. The closing
ultimately did occur and the deed was transferred to the plaintiffs in
exchange for payment.
6
Neither Felix nor Martin are parties in the present action.
7
The plaintiffs filed their revised complaint in response to the defendant’s
request to revise, filed February 17, 2011, in which the defendant requested
that the plaintiffs identify the unnamed third parties and the contents of
the alleged conversations between the defendant and the unnamed third
parties. The revised complaint names Felix and Martin and details the con-
tents of the alleged conversations, but is otherwise the same as the origi-
nal complaint.
8
The plaintiffs served two separate subpoenas. The first subpoenaed
Lieutenant Patricia Helliger as the custodian of records for the department to
introduce and testify as to the contents of the report. The second subpoenaed
Sergeant Joseph Dease of the department’s property desk to introduce and
testify as to the contents of the audiotapes also at issue in the present appeal.
9
Although the court did not explicitly rule on the city’s motion, it did
exclude the report and the audiotapes on the same basis as proffered by
the city in its motion to quash.
10
Although we are not bound by the decisions of our trial court, we note
that such courts have addressed the process a court should undertake in
evaluating such records: ‘‘Compliance with the intent of § 1-210 (b) (3) (G)
requires the court to follow the procedure adopted in Provost v. State,
Superior Court, judicial district of Hartford, Docket No. CV-99-0586362
[December 9, 2002]. In that case, the court received documents under seal
and conducted an in camera review to determine whether they contained
uncorroborated allegations of criminal activity. The in camera review
involves two steps. First, the court must determine whether the allegations
in the requested records regard criminal activity, making them subject to
the record-keeping requirements of § 1-216. That determination is a question
of law for the court. . . . Second, if the court determines that the allegations
regard criminal activity, then it must determine if the allegations are corrobo-
rated. If the court determines that the allegations are corroborated, the
records should be disclosed, consistent with § 1-210 (a). If the court deter-
mines that the allegations are not corroborated, then, in compliance with
§ 1-210 (b) (3) (G), the records should not be disclosed. Furthermore, § 1-
216 requires law enforcement agencies to destroy records containing uncor-
roborated allegations of criminal activity within [fifteen] months of their
creation.’’ (Citation omitted.) Vogth-Erikson v. Delmore, Superior Court,
judicial district of Stamford-Norwalk, Docket No. CV-03-0197020-S (August
13, 2004) (37 Conn. L. Rptr. 670).
11
We note that there is existing case law that provides for the balancing of
a criminal defendant’s rights in determining whether information, otherwise
exempt under the act, is disclosable in certain circumstances under the
confrontation clause. State v. Januszewski, 182 Conn. 142, 170–74, 438 A.2d
679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005(1981). There is no authority, however, to indicate that such an analysis is
necessary in a civil assault case. See Townsend v. Commissioner of Correc-
tion, 116 Conn. App. 663, 672, 975 A.2d 1281 (‘‘Despite the statutory protec-
tions, the petitioner argues that his need to examine the records outweighed
the statute’s confidentiality policy. . . . [T]here is no authority to suggest
that in camera review of such records was required upon a showing here
in the petitioner’s civil habeas case. Moreover, because a great deal of the
information sought would have been available to the petitioner through the
officers’ testimony, there was little need to allow the petitioner access
to the files.’’ [Citation omitted.]), cert. denied, 293 Conn. 930, 980 A.2d
916 (2009).
12
Vasquez testified that he closed his investigation of the plaintiffs’ claims
in February, 2009. Therefore, pursuant to § 1-216, the records should have
been destroyed no later than June, 2010.
13
Preventing disclosure of such records comports with the original pur-
pose of the act. Then State Senator Richard Blumenthal, speaking in favor
of Public Acts, No. 90-335, now § 1-210, stated: ‘‘ ‘The purpose really is to
provide some protection for individuals who may be the subject of these
kinds of allegations and who deserve some protection against disclosure
under [the act].’ 33 S. Proc., Pt. 5, 1990 Sess., pp. 1546–47.’’ Bona v. Freedom
of Information Commission, 44 Conn. App. 622, 631–32 n.10, 691 A.2d
1 (1997).