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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,1in

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 investigative report (report) and two audiotaped conversations 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 plaintiffs to open and operate the liquor store in the defendant’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 October, 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 operation 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 commenced 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 January 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 anticipation of trial, the plaintiffs subpoenaed copies of Vasquez’ report and copies of the taped conversations

between the defendant and Martin and the defendant

and Felix.8In 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 theirfirst witness, Lieutenant

Patricia Helliger, as the records keeper for the department. 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 memorandum 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 plaintiff by a fair preponderance of the evidence.’’ The court

then rendered a judgment for the defendant. The plaintiffs 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 defendant 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 discretion 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 evidence. ‘‘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 reasonable 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 consisting 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 enforcement 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 disclosure 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 orintimidation 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 correctly concluded, after an in camera review of the

report, that the report and the audiotapes were inadmissible pursuant to those statutes.10 Section 1-216 applies

to law enforcement records that contain ‘‘uncorroborated allegations.’’ In the present case, Vasquez conducted an investigation based on the plaintiffs’ claims

and determined that all such allegations were uncorroborated because there was no overt act on the defendant’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 allegations 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 department’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 excluding 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 disclosure 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 evidentiary 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 subpoenas 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 constitute 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 contents of the alleged conversations, but is otherwise the same as the original complaint.

8 The plaintiffs served two separate subpoenas. The first subpoenaed

Lieutenant Patricia Helliger as the custodian ofrecords forthe 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 corroborated. If the court determines that the allegations are corroborated, the

records should be disclosed, consistent with § 1-210 (a). If the court determines 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 uncorroborated 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 Correction, 116 Conn. App. 663, 672, 975 A.2d 1281 (‘‘Despite the statutory protections, 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 purpose 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).