Opposition Brief — Speers v. Connecticut

SUPREME COURT OF THE UNITED STATES

OCTOBER IERM, 1989

THOMAS SPEERS,

Petitioner,

Ve

STATE OF CONNECTICUT,

Respondent.

On Writ of Certiorari to the

Appellate Court of the State of Connecticut

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

JCHN A. CONNELLY, Counsel of Record

JUAN K. ALEXANDER, OT Counsel

Oftice of State's Attorney

30 Bank Street

P.O. Box 2157

Waterbury, CT 06722-2157

(203) 756-4431

Counsel for Respondent

August 14, 19789

ET

QUESTIONS PRESENTED

Whether the decision of the

Appellate Lourt oft Lonnecticut in the case

at Dar presents an important question of

law which nas not been settled, but should

be settled, by this Court?

2. Whether the decision by the

Appellate Court of Connecticut in the case

at bar presents a decided federal question

and in its de-ision contlicts with

applicable tederal decisions?

TABLE OF CONTENTS

Page

DUESTIUNS PRESENTED... 2.222 eee eee eee eeces 1

SSG 8 ee Sh ee i144

STATEMENT OF [HE CASE... .- cere cere eee cees i

REASUNS FOR OPPUOSING THE WRI... 2 ee eee ees 3

ee ee «

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TABLE OF AUTHORITIES

Cases: Page

Aguilar v. jexas, 378 U.S. 108

( Piel Vic ees ee a ern ee ee a sata Oh der tee Sa tae ig hk “+

Franks v. Delaware, 438 U.S. 154

OVO (EN 6 eka Se ale oe Se ee el ee eee es ey ee 1

CEG Fs 6:5: 08 Se oe ee © OE ee ke Oe 6

Spinelli v. United States, 3Y3 U.d. 41U

CEVGT) 656.06 es 58a A eee eee ee 4

State v. Enright. i/7 Lonn. App. l4e, 350

“%.2e 2095 CINGRT Wicd anne eee eee 4

State v. Evans. 165 Conn. 61, 3e7 A.cd 376

C29TS?) 6s «60 6066 RSME a5. 2

state v. lelesca, i799 Lonn. SYi, DVB A.cd

1367 CiV¥SG) 0s tes 0 oe a. kw eee Oe ee eS 4

-111-

STATEMENT OF THE CASE

Ihe detendant, Thomas Speers, was

arrested on information received trom a

wiretap communication and subsequently was

convicted on a plea ot nolo contendere of

the crimes of gambling and protessional

gambling in violation of C.6.8. $3.2-

278b (a) and (Db) and transmitting or

receiving gamoling information by

telephone in violation of C.G.S. 853-

278d(4). Foliowing the filing of Part Il

ot the information on May ee, ives, Mr.

Speers was also chargeq with boeing a

persistent of fender in viagiation oT

Section 53-e78(f) of the Connecticut

General States and aiso pled to that

count. Ihe judgment of conviction was

atftirmed ody the aAppeilate Lourt. 17

Conn.App. 987 (1989). A Motion tor

Reargument En Banc was denied on April 6,

1989. The Connecticut Supreme Court

denied certification on May 1%, 198%.

In reviewing the Franks nearing

transcript, the Appellate Court found no

error Dy the trial court in aiiowing in

the disputed evidence and that tne

defendant faiied to prove a claim of error

under the principles ot Franks Vv.

Delaware, 438 U.S. i34¢ (i978). fhe

Appellate Court heid that “Fennessy 'S

testimony . . . waS equivocal at dest.

17 Conn.aApp at 3973. Ine Appeilitate LOurt

further found, that even atter excising

Brown's aliegediy false statements, the

remaining atfidavit statements nad

‘sufficient indicia of reliability upon

which the wiretap panel could find the

atfidavit established that the intormant

was credible." 17 Conn.App. at 6V0VU.

[he Appellate Court noted that

=

Lgjiiven some of the events that

occurred foilowing Speers’

arrest such as the labeling of

Fennessy as an informant,

Fennessy'sS admission of Raving

felt intimidated by Speers

Griving him to a meeting with

state police officers at which

time he was questioned about

information he had given Brown

about Speers, and Fennessy's

arrest by the state police

that 1t was not

implausible that the trial court

would discredit Fennessy's

testimony § for the purpose of

deciding whether Brown's

statement was false and

intentionally or recklessly

made, on one Nand, and, on the

other, find that tne wiretap

panel had sufficient indicia of

reliability to credit Brown's

statement that Fennessy was in

Brown's estimation, a reliable

intormant.

17 Conn.App. at 600.

The defendant sought to introduce the

contents of the case file, State of

Connecticut Vs Thomas Brown. The

prosecution objected to the admission of

the file, arguing tnat lt contained

hearsay and inc luded conciusory and

irrelevant information. ihe Court

sustained the objyection,. but stated that

because Brown was not available' it would

allow the introduction of the transcript

of his testimony before tne grand jury.

The defendants declined the court's ofter

and again requested tnat the entire case

file be introduced. The Court refused,

and tne defendants withdrew their request.

17 Conn. App. at 6Ul.

In reviewing the Confrontation Clause

issue, tne Appellate Court tound that the

Ggdetendant Tailed to raise the

argument below and Cdidji not

seek review under State Vv.

Evans, 165 Conn. 61, 327 A.ed

3276 (i973), or claim that the

ruiing constituted plain error

reviewable under Prac. Book.

84185;

therefore, his claim that ne was unable to

properly confront and cross-examine nis

chief accuser, Brown, was not entitled to

review. 17 Lonn.App. at 6vVe.

REASONS FOR OPPOSING THE WRIT

hs The Franks Issue.

Ihe Appellate Court concluded that

the trial court was correct in determining

tnat, even absent tne alilegediy talse

Statements in the atfidavit, there was

‘At the suppression nearing, the

State's Attorney ottered the witness

immunity Trom prosecution, thus

technically making him avaltabdie as a

witness. |

sufficient intormation to provide a basis

Tor the wiretap panel to determine that

the affidavits satisfied the Aguilar

Spineill test and tne requirements OT

C.G.5. $54-G4ic.

In reaching this conclusion, the

Appellate Court correctly found that

Cinj a suppression nearing, the

trial court serves as tne trier

of fact, and it 1S 8x1lOMatic

that “the trier ot the tacts

determines with finality the

credibility of witnesses and the

weight to be accorded their

testimony."

17 Conn.App. at I9e. Absent a clearly

erroneous decision in light of the

evidence, the decision of tne triai Court

should not be disturbed. Conn.Pract.Book

64061; State v. Enright, i7 Conn.App. ie,

950 A.ed 1095 (1988).

The Appellate Court reviewed the

United States Supreme Lourt Standard ini

determining probable cause aS set out in

Aguilar v. lexas, 378 U.S. 108 (1964) and

Spinelli V. United states, 373 U.S. 4190

(1969) which was incorporated by the

Connecticut Supreme in State v. lelesca,

199 Conn. S91, SOB A.cd 1367 (1986) ana

adopted this standard for its review oft

affidavits for wiretap investigations.

The Appellate LCourt founse that in the

instant matter the AgGuUllar-ySpinelll

standard was met, to wit: that

tne wiretap panel tnat 15Sues

the wiretap order tLbdedl intormed

Or ¢£) some oT the undgertying

Circumstances reiied On by tne

Se

person providing the information

to the aftftiant; and (2) some ot

the underlying circumstances

from which the affiant concluded

(a) that the informant, whose

identity needa not even be

Gisclosed, was credible, or (b)

that his information was

reliable.’

17 Conn.App. at S96.

In light ot the aAppeliate Lourt's

conclusion that there was no abuse of

Giscretion by the trial court and its

appropriate application of the well-

defined legal standards, the holding in

the instant decision should not be

disturbed.

2. The Confrontation Clause Issue.

fhe Appellate Court was correct in

declining to review the detendant's

allegation ot confrontation clause

violations. [he defendant did not raise

the argument below, did not seek review

under State v. Evans, supra, and did not

claim plain error under Conn.FPrac. Book

84185. It was not an abuse of discretion

to decline review, and the extraordinary

Circumstances relied upon by the defendant

to entitie him to such review do not exist

in the instant petition.

A criminal prosecution 1S not a game

in which the State's function 1s to outwit

and entrap its Quarry. The State's

pursuit 1S justice, not @a victim. biles

v. Marvylang, G7 S.Ct. 793, 810 (1967). It

the state had in its exclusive possession

specific, concrete evidence which was not

merely cumulative or embellishing ana

-5-

which would have exonerated the defendant.

the State 1s obliged and would have

brought it to the attention of both the

Court and the defense. The record on

review demonstrates that no constitutional

violations occurred at any time during

Petitioner's proceedings. Petitioner has

failed to make even a minimal showing of

narm. Upon an inguiry to determine

whether due process principles nave Deen

transgressed in a particular factual

frame, there lis no precise line of

demarcation or calibrated measuring rod

with a mathematical solution. Each

instance in which a deprivation 1s

asserted requires its own testing in the

light ot fundamental and necessarily

general but pliant postulates. Ail

components complained of must be

scrutinized; notwithstanding such

scrutiny, Petitioner's claims are without

merit.

CONCLUSION

ihe Appellate Court's decision is in

accord and does not conflict with

applicable Supreme Court decisions.

The issues presented do not involve

any questions of great public importance

and, therefore do not form a basis for

certiorari.

WHEREFORE, for the reasons asserted

above, the Respondent respectfully

requests that the writ of certiorari be

denied.

RESPECTFULLY SUBMITTED,

THE STATE OF CONNECTICUT

Counsel for Respondent:

Jonn A. Connelly, Counsel of Record

state's Attorney

Joan Kk. Alexancer, Uf Counsel

Deputy Assistant State's Attorney

Oftice of State's Attorney

Judicial District of WIBY

P.0. Box #2137

Waterbury, Cl 06722-2157

(203)756-4431

August 14, 1989

aa

No. 89-117

IN THE

SUPREME COURT OF THE UNITTED STATES

OCTOBER TERM, 1989

THOMAS SPEERS,

Petitioner,

Ve

STATE OF CONNECTICUT,

Respondent.

APPENDIX

APPENDIX TABLE OF CONTENTS

CPiNION OF CUNNECTICUT

APPELLATE COURT

iA

17 Conn. App. 587 587

State 1. Speers

STATE OF CONNECTICUT v. THOMAS SPEERS

(6385)

STATE OF CONNECTICUT v. WILLIAM GEORGE

(6738)

Dupont, C. J., STOUGHTON and Norcotr, Js.

Convicted, following conditional! pleas of nolo contendere, of the crimes of

gambling, professional gambling and transmitting or receiving gam-

bling information by telephone, the defendants appealed to this court

claiming, inter alia, that the trial court erred in denying their motion

to suppress certain evidence seized in a wiretap of their telephones.

They alleged that a police officer, B, in applying for the warrant, had

made false statements and given misleading information and that B

had omitted significant facts from the affidavit. The trial court con-

cluded that there was sufficient other information contained in the app!i-

cation to support the approval of the wiretap request. Held:

1. The tral court correctly determined that, even absent the allegedly false

statements in the affidavit, the affidavit was sufficient to establish prob-

able cause that the defendants were involved in illegal) gambling

activities.

2. There was ne merit to the defendants’ claim that the trial court erred

in refusing to take judicial notice of the court file pertaining to B’s arrest

for perjury in connection with the warrant application after B refused.

on fifth amendment grounds, to testify at their suppression hearing,

that court did offer to allow a transcript of B’s testimony into evidence

at the hearing and it did not abuse its discretion in determining that

the file contained inadmissible hearsay and double hearsay.

Argued November 18, 1988—decision released March 7, 1989

Information charging the defendant in each case with

the crimes of professional gambling, gambling and

1A

588 17 Conn. App. 587

State 1. Speers

transmitting or receiving gambling information,

brought to the Superior Court in the judicial district

of Waterbury, where the court, Flynn, J., denied the

defendants’ motions to suppress certain evidence and

to dismiss; thereafter, the matters were presented to

the court on pleas of nolo contendere; judgments of

guilty from which the defendants filed separate appeals

to this court. No error.

Timothy C. Moynahan, with whom, on the brief, were

John M. Loconsolo, Jr., and Theresa M. Dalton, for the

appellant (defendant in the first case).

Frederick D. Paoletti, Jr., with whom, on the brief,

were John M. Loconsolo, Jr., Timothy C. Moynahan

and Theresa M. Dalton, for the appellant (defendant

in the second case).

James K. Robertson, Jr., special assistant state's

attorney, with whom, on the brief, was John A. Con-

nelly, state’s attorney, for the appellee (state).

Norcortrt, J. The defendants, Thomas W. Speers and

William George,' appeal from judgments of conviction

following their conditional pleas of nolo contendere? to

the crimes of gambling and professional gambling in

violation of General Statutes § 53-278b (a) and (b)° and

1 The same criminal investigation led to the arrests of both defendants.

Their appeals were argued together and raise the same claims of error.

2 General Statutes § 54-94a and Practice Book § 4003 (a) authonze defend-

ants to condition their entry of a plea of nolo contendere on the nght to

take an appeal from the trial court’s denial of a motion to supress evidence

based on an unreasonable search or seizure or motion to dismiss. The issue

before this court is ‘limited to whether it was proper for the court to have

denied the motion to suppress or the motion to dismiss.”’ Practice Book

§ 4003 (a).

* “(General Statutes] Sec. 53-278b. GAMBLING; PROFESSIONAL GAMBLING;

PENALTIES. (a) Any person who engages in gambling, or solicits or induces

another to engage in gambling, or is present when another person or per-

sons are engaged in gambling, shall be guilty of a class B misdemeanor;

provided natural persons sha.) be exempt from prosecution and punishment

2A

17 Conn. App. 587 989

State v. Speers

transmitting or receiving gambling information by tel-

ephone in violation of General Statutes § 53-278&d (a).4

They claim the trial court erred in denying their motion

to suppress evidence obtained through a wiretap inves-

tigation, and their motion to dismiss the charges

against them, (1) by determining that the defendants

did not prove that allegedly false statements and mis-

leading omissions, made by an affiant to obtain

approval of a wiretap application, voided the basis for

probable cause to issue the arrest warrant, and (2) by

refusing to admit into evidence, during a Franks hear-

ing,® documents concerning the allegedly false infor-

mation provided by the warrant application affiant,

Lieutenant Thomas R. Brown of the Waterbury police

department. They also claim that their inability to cross-

examine Brown constitutes a violation of their constitu-

tional right to confrontation. We find no error.

The record reveals the following facts. On March 15,

1985, the state’s attorney for the judicial district of

Waterbury applied to a panel of judges, by authority

of General Statutes § 54-41b, for an order authorizing

interception of the telephonic communications of the

defendants. The application was accompanied by the

supporting affidavits of Connecticut state police Detec-

tive Ronald W. Kamens and Brown, alleging that the

under this subsection for any game, wager or transaction which is inciden-

tal to a bona fide social relatter ship, is participated in by natural persons

only and in which no person is participating, directly or indirectly, in profes-

siona) gambling.

‘(b) Any person who engages in professional gambling shal! be guilty

of a class A misdemeanor."’

* General Statutes § 53-278d provides in pertinent part: ‘‘(a) Any person

who knowingly transmits or receives gambling information by telephone,

telegraph, radio, semaphore, or other means, or knowingly installs or main-

tains equipment for the transmission or receipt of gambling information,

shall be guilty of a class A misdemeanor."’

* Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667

(1978).

3A

590 17 Conn. App. 587

State v. Speers

defendants were engaged in professional gambling. By

order dated March 19, 1985, the three judge panel

authorized a limited telephonic interception for a period

of fifteen days. On the basis of information obtained

through the wiretap, the defendants were arrested pur-

suant to warrants issued on May 2, 1985.

Following the defendants’ arrests, Brown was

arrested and charged with perjury for allegedly falsely

stating in the affidavit in support of the wiretap appli-

cation that the informant who had supplied him with

information about the defendants’ illegal activities had

previously given him information that had resulted in

two arrests and two convictions. The defendants filed

a motion to suppress the evidence obtained through the

wiretap and a motion to dismiss the charges against

them. They claimed that the arrest warrant was invalid

because Brown’s statement regarding the informant

was false and intentionally or recklessly made and

because he had omitted significant facts from the affi-

davit. On July 21, 1987, the trial court granted the

defendants’ motion for an evidentiary hearing as pro-

vided by Franks v. Delaware, 438 U.S. 154, 98S. Ct.

2674, 57 L. Ed. 2d 667 (1978), and State v. Dolphin,

195 Conn. 444, 456-57, 488 A.2d 812, cert. denied, 474

U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). At

the conclusion of the hearing, the court denied the

defendants’ motions to suppress and dismiss, conclud-

ing that the defendants had failed to prove, by a prepon-

derance of the evidence, that Brown’s statement was

false and was made intentionally or recklessly or that

any omissions materially affected the accuracy of the

affidavit. The court also concluded that the defendants

had failed to prove that the warrant application, even

when viewed without the challenged statement by

Brown, and considering the alleged omissions, was

4A

17 Conn. App. 587 591

State v. Speers

insufficient to establish probable cause.* The defend-

ants withdrew their pleas of not guilty, pleaded nolo

contendere, and appealed the trial court’s rulings.

]

The defendants first claim that the tnal court erred

in determining that they had failed to prove that

Brown’s statement regarding the informant was false

and made intentionally or recklessly, that there were

materia] omissions and that there was insufficient other

information to support the approval of the wiretap

request.

After the trial court granted the defendants a Franks

hearing, it became the defendants’ burden to establish,

by a preponderance of the evidence, either that Brown

deliberately falsified information contained in the wire-

tap affidavit or prepared the affidavit with reckless dis-

regard for the truth, and that any intentionally false

statements or material omissions were necessary to a

finding of probable cause. See State v. Telesca, 199

Conn. 591, 608, 508 A.2d 1367 (1986).

Brown, exercising his privilege against compulsory

self-incrimination, refused to testify at the Franks hear-

ing. The defendents, in attempting to prove that the

statement by Brown was false or recklessly made, prin-

* In their briefs, the defendants argue that the tnal court’s actions in

granting the Franks hearing, and then ultimately deciding that Brown's

alleged false statement was not necessary for a finding of probable cause,

are contradictory. Although it is true that suppression hearings under

Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978),

are commonly granted when “the defendant makes a substantial prelim:

nary showing that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in the war

rant affidavit, and . . . the allegedly false statement is necessary to the

finding of probable cause'’; (emphasis added) id., 155-56; it is also true that

in this case the tna! court granted the hearing expressly reserving any deter

mination of whether the challenged statement was false and whether the

statement substantially affected the basis for a finding of probable cause

5A

592 17 Conn. App. 587

State v. Speers

cipally depended upon the testimony of the informant.

Robert “Gus” Fennessy, from whom Brown had

received information about the defendants’ gambling.

Fennessy testified that, inter alia, he had nct served

as an informant against others in the past and that no

information that he may have passed on to police had

ever contributed to arrests and convictions. The court,

however, in its memorandum of decision, discredited

Fennessy’s testimony and, relying upon a number of

other factors, elicited through testimony at the hear-

ing, held that the defendants had failed to prove that

it was more likely than not that Brown's statement was

false and intentionally or recklessly made.

In a suppression hearing, the trial court serves as the

trier of fact, and it is axiomatic that “‘ ‘{t]he trier of

the facts determines with finality the credibility of wit-

nesses and the weight to be accorded their testimony.

“We cannot retry the facts or pass upon the credibil-

ity of the witnesses.” ’ State v. Penland, 174 Conn. 153,

157-58, 384 A.2d 356, cert. denied, 436 U.S. 906, 98

S. Ct. 2237, 56 L. Ed. 2d 404 (1978), [quoting Johnson

v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048

(1975).]’’ State v. Kimbro, 197 Conn. 219, 222-23, 496

A.2d 498 (1985). Our role as a reviewing court is limited

to deciding whether the trial court’s decision was

clearly erroneous in light of the evidence in the whole

record. Practice Book § 4061; State v. Enright, 17

Conn. App. 142, 146, 550 A.2d 1095 (1988).

A review of the record and transcript of testimony

given by the witnesses called at the F ranks hearing

reveals an adequate basis for the trial court’s decision.

Detective Kamens, the other affiant in the wiretap

application, testified that Brown had told him that Fen-

nessy’s testimony had led to two arrests and convic-

tions in the past, and that he believed that Brown's

statement was reliable. Lieutenant Bruce Haines of the

state police also testified that when he met with Brown

6A

17 Conn. App. 587 593

State r. Speers

and state’s attorney John Connelly at the tirne of the

wiretap investigation, he stated that he did not believe

Brown was dishonest. Although the defendants

asserted that Brown’s motive for intentionally making

a false statement and omitting material facts from his

affidavit was a personal vendetta against Speers, Fen-

nessy admitted that, although Brown may have had a

personal motive for having Speers arrested, he also had

a professional motive to see that a person he suspected

of involvement in criminal activity was arrested. The

transcript strongly supports the trial court’s conclu-

sion that Fennessy’s testimony, on which the defend-

ants so heavily relied, was equivocal at best and that

he often contradicted statements he had made earlier

in the hearing and before the grand jury.’ On this rec-

ord, we conclude that the trial court had a sufficient

basis upon which to discredit Fennessy’s testimony and.

without credible evidence that Brown’s statement was

false and intentionally or recklessly made, did not err

in concluding that the defendants failed to meet their

burden of proof.

The defendants also alleged that Brown omitted

material information from his affidavit. They claim that

he failed to inform the wiretap panel (1) of the exis-

tence of a tape of a conversation in which Fennessy

allegedly placed bets with Speers, (2) that Brown, as

Fennessy’s landlord, permitted him to live rent free,

(3) of Brown's alleged personal grudge against Speers,

and (4) that Brown gave Fennessy money from the city

of Waterbury with which to place bets with Speers.

7 We specifically note the trial court's reference in its memorandur. of

~ decision to Fennessy’s testimony abvut informing police, including Brown

of gambling activity taking place at the Mattatuck Newsstand when Fen

nessy was a bartender At the suppression hearing. Fennessy claimed he

had never provided the police with such information When shown a grand

jury transcript of his testimony. however, he reversed his answer and

responded to a number of questions about his involvement in that situation

7A

594 17 Conn. App. 587

State v. Speers

‘‘Although the court in Franks mentioned only ‘false

statements ... included . . . in the warrant affi-

davit,’ material omissions from such an affidavit also

fall within the rule if the defendant proves that the

omissions were knowingly and intentionally made, or

were made with reckless disregard for the accuracy of

the affidavit. United States v. Martin, 615 F.2d 318,

328 (5th Cir. 1980).”’ State v. Stepney, 191 Conn. 233,

238, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084,

104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

The trial court found that concern for the personal

safety of the informant gave the police a legitimate rea-

son for withholding the tape.® The state has a legiti-

mate interest in protecting informants. See State v.

Richardson, 204 Conn. 654, 657, 529 A.2d 1236 (1987).

Given the other information provided in the affidavit,

and the fact that the trial court credited Kamen’s tes-

timony that Brown had decided not to submit the tape

when Kamens had told him he would be risking expos-

ing the identity of his informant, we find no error in

the trial court’s determination that the tape was not

necessary to a finding of probable cause.

As to the claims that Brown forgave Fennessy’s pay-

ment of back rent and that Brown had a personal

grudge against Speers, the trial court determined that

those allegations were not proved by a preponderance

of the evidence. Our review of the transcript supports

this holding. As the court notes, Fennessy’s testimony

at the hearing that Brown forgave rent payments was

equivocal and contradicted his testimony before the

* In addition to claiming that the omitted taped conversation was mate.

rial to the affidavit, the defendants cite General Statutes § 54-41c (13) in

support of their argument that the tape should have been presented to the

wiretap panel with the affidavit. The defendants have done little more than

cite the statutory provision. Because the issue has not been properly bnefed,

we decline to address the defendants’ statutory claim. See Morning Star

Holding Co. v. Kostopoulos, 12 Conn. App. 593, 595, 533 A.2d 569 (1987).

8A

17 Conn. App. 587 595

State vr Speers

grand jury. At various times he testified that he still

owed Brown rent money, that he didn’t pay him

because he didn’t have the money, and that he had paid

Brown but the check was returned for insufficient

funds. The court did not find his testimony at the hear-

ing credible.

The defendants also alleged that Brown had a per-

sonal grudge against Speers that arose when David

Linsky, for whom Brown had cosigned a loan, allegedly

defaulted on the loan. The defendants claimed that

Linskey’s default was caused by Speers’ failure to pay

a losing illegal bet he had placed with Linsky. Linsky’s

testimony at trial, which the trial court found credi-

ble, was that he had never taken a bet from Speers and

that, although he may have been late on several pay-

ments, he had never defaulted on the loan. Again, we

defer to the trial court’s assessment of the credibility

of witnesses and find no error in the court’s ruling that

these allegations were not proved by a preponderance

of the evidence.

The trial court also found that the failure to include

in the affidavit the fact that Fennessy had used city

money to place bets did not materially affect the validity

of the affidavit. The defendants did not present the trial

cuurt with any support for their claim that this infor-

mation was material to a determination of probable

cause. On our review of this claim, we conclude that

the trial court did not err in determining that the

defendants failed to meet their burden of proving that

this omission materially affected the validity of that affi-

davit.

The third part of the defendants’ claim of error is

the assertion that the trial court erred when it deter-

mined that, regardless of the alleged false statement

or omissions by Brown, the affidavit was sufficient to

establish probable cause that the defendants were

9A

596 17 Conn. App. 587

State © Speers

involved in illegal gambling activities. The defendants

assert that the requisite elements for determining prob-

able cause have not been met. We disagree.

Our Supreme Court has held that the standard for

determining probable cause as set out in Aguilar v.

Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723

(1964), and Spinelli v. United States, 393 U.S. 410, 89

S. Ct. 584, 21 L. Ed. 2d 637 (1969), applies to cases

involving the sufficiency of affidavits for wiretap inves-

tigations. See State v. Telesca, 199 Conn. 591, 601, 508

A.2d 1367 (1986);9 State v. Ross, 194 Conn. 447, 463,

481 A.2d 730 (1984). Under the Aguilar-Spinelli stan-

dard, ‘‘the wiretap panel that issues the wiretap order

must be ‘ ‘informed of (1) some of the underlying cir-

cumstances relied on by the person providing the infor-

mation to the affiant; and (2) some of the underlying

circumstances from which the affiant concluded (a) that

the informant, whose identity need not even be dis-

closed, was credible, or (b) that his information was reli-

able.”’’ State v. Delmonaco, 194 Conn. 331, 338, 481

A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511,

83 L. Ed. 2d 401 (1984) . . . State v. Jackson, 162

Conn. 440, 446, 294 A.2d 517, cert. denied, 409 U.S.

870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972).”’ (Citations

omitted.) State v. Telesca, supra, 601-602.

We conclude that the trial court properly held that

the Brown affidavit contained information sufficient

to satisfy the first or ‘“‘basis of knowledge”’ element of

the Aguilar-Spinelli standard. The affidavit declares

that Fennessy had been placing bets with the defend-

ant Speers for at least two or three months, using one

* In State v. Telesca, 199 Conn. 591, 601 n.7, 508 A.2d 1367 (1986), the

court noted that the statute listing the requirements of a proper wiretap

application, now General Statutes § 54-4l1c, ‘incorporates the standards

enunciated in Aguilar v. Tezas, 378 U.S. 108, 84S. Ct. 1509, 12 L. Ed.

2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89S. Ct. 584,

21 L. Ed. 2d 637 (1969).”’

10A

17 Conn. App. 587 597

State rv Speers

of Speers’ telephone numbers. The affidavit contains

detailed information, including telephone numbers used

and specific times and dates related to sports wager-

ing, and identifies college basketball teams on which

the informant placed bets with the defendants. This

information satisfied the requirement that the affida-

vit ‘relate sufficient facts from which a judge reason-

ably could conclude that the informants based their

allegations of criminal activity on sufficient underly-

ing circumstances.’ State v. Delmonaco, supra, 339.

We also conclude that the trial court properly deter-

mined that the second or “‘reliability’’ element of the

standard was met, because sufficient evidence of the

circumstances from which Brown concluded that Fen-

nessy was a credible informant, or that his informa-

tion was reliable, was presented to the wiretap panel.

The second part of the Aguilar-Spinelli standard is

satisfied if the affidavit includes sufficient evidence

showing either why the affiant concluded the informant

was credible, or that the information was reliable. An

affiant is not required, however, to convince a wire-

tap panel of an informant’s credibility by a display of

unequivocal proof based on specific details. ‘‘An affi-

ant need not recite the precise factors on which he

judged his informant credible and reliable. Aguilar v.

Texas ... requires only that the magistrate be

informed of some of these underlying circumstances.

If they are apparent to the commonsense reader of the

affidavit—whether by necessary implication or

recital—it is enough.”’ State v. Juckson, supra, 452-53.

We note that, on the basis of the information provided

by the affiants, the three judge wiretap panel unani-

mously decided to issue the wiretap order and con-

cluded that the application met the requirements of

General] Statutes § 54-41c.!° The trial court proceeded

© Genera! Statutes § 54-4lc provides: ‘Each application for an order

authonzing the interception of a wire communication shall be made in writ

1lA

598 17 Conn. App. 587

State v. Speers

from a presumption that the affidavits supporting the

search warrant were valid; State v. Dolphin, supra, 457;

restricted its review to the record before the wiretap

ing upon oath or affirmation to a panel of judges. Each application shall

include the following information: (1) The identity of the applicant and his

authority to make such application; (2) the identity and qualifications of

the investigative officers or agency for whom the authonty to imercept

a wire communication is sought; (3) the identity and qualifications of the

investigative or law enforcement officers to whom disclosure of the con-

tents of any intercepted wire communication or evidence dernved there-

from might be made; (4) a statement of the use to which the contents of

any intercepted wire communication or any evidence derived therefrom

will be put; (5) a full and complete statement of the facts and circumstances

relied upon by the applicant, to justify his reasonable belief that the wire

communication of a particularly described person will constitute evidence

of a crime enumerated in section 54-41b that has been or is being committed

or that such communication will materially aid in the apprehension of the

perpetrator of such crime and that an order should be issued, including

(A) details as to the particular offense that has been or is being committed,

(B) a particular description of the nature and location of the facilities from

which or the place where the communication is to be intercepted, (C) a par-

ticular description of the type of communications sought to be intercepted,

(D) the identity of the person, if known, who has committed or is commit-

ting the offense and whose communications are to be intercepted, (E) the

time and date when the facts and circumstances relied upon by the appli-

cant were first received by him or by the investigative or law enforcement

officer conducting the investigation, whichever is earlier, (F) the way in

which the intercepted wire communication will constitute material evidence

of the particularly described offense or will materially aid in the apprehen-

sion of the perpetrator of such offense, (G) the hours of the day or night

during which wire communication may be reasonably expected to occur;

(6) a full and complete statement of facts showing that other normal inves-

tigative procedures with respect to the offense have been tried and have

failed or reasonably-appear to be unlikely to succeed if tried or to be too

dangerous to employ; (7) a statement of the period of time for which the

interception is required to be maintained. No order authorizing or approv-

ing the interception of a wire communication shall be issued if the facts

and circumstances relied upon by the applicant were discovered more than

twenty days next preceding the date of the application. If the nature of

the investigation is such that the authorization for interception should not

automatically terminate when the described type of communication has been

first obtained, a particular description of facts establishing probable cause

to believe that additional communications of the same type will occur there-

after, (8) a full and complete statement of the facts concerning al! previ.

ous applications known to the individual making the application, made to

any panel of judges, for authorization to intercept. or for approval of inter-

12A

17 Conn. App. 587 599

State v. Speers

panel; State v. Ross, 194 Conn. 447, 459, 481 A.2d 730

(1984); and accorded deference to the decision made

by the wiretap panel. Id.; State v. Couture, 194 Conn.

ceptions of, wire communications involving any of the same persons, facil-

ities or places specified in the application, and the action taken by the pane!

on each such application; (9) a statement that the wire communications

sought are material to a particularly described investigation or prosecu-

tion and that such communications are not legally privileged; (10) if it is

reasonably necessary to make a secret entry upon a private place or prem-

ises in order to install an intercepting device to effectuate the intercep-

tion, a statement to that effect and to the effect that no practicable

alternative method of executing the order which will preserve the secrecy

of its execution exists; (11) where the application is for the extension of

an order, a statement setting forth the results thus far obtained from the

interception, or a reasonable explanation of the failure to obtain such results;

(12) where the application is for an order authorizing interception in excess

of thirty-five orders previously issued by all panels in a calendar year, a

statement setting forth the nature of the emergency situation which may

result in imminent peril to the public health, safety or welfare, and the nature

of that imminent peril, which requires the issuance of an additional inter-

ception order. The state's attorney shall inform the governor and the joint

standing committee of the general assembly having cognizance of matters

relating to criminal law and procedure of the nature of the emergency sit-

uation which may result in imminent peril to the public health, safety or

welfare, and the nature of that imminent peril; (13) such additional testi-

mony or documentary evidence in support of fact in the application as the

panel of judges may require. Allegations of fact in the application may be

based either upon the personal knowledge of the applicant or upon infor-

mation and belief. If the applicant personally knows the facts alleged, it

must be so stated. If the facts establishing such probable cause are derived

in whole or pari from the statements of persons other than the applicant,

the sources of such information and belief shall be either disclosed or

descnbed, and the application shall contain facts establishing the existence

and reliability of the informant, or the reliability of the information sup-

plied by him. The application shall also state the basis of the informant's

knowledge or belief. If the applicant's information and belief are denved

from tangible evidence or recorded oral evidence, a copy or detailed desenp-

tion thereof shall be annexed to or included in the application. Affidavits

of persons other than the applicant may be submitted in conjunction with

the appiication if they tend to support any fact or conclusion alleged therein.

Such accompanying affidavits may be based either on personal knowledge

of the affiant, or information and belief with the source thereof and rea:

son therefor specified.”

13A

600 17 Conn. App. 587

State v. Speers

530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S.

1192, 105 S. Ct. 967, 83 L. Ed. 971 (1985).

After excising Brown’s allegedly false statement that

the informant’s past information had led to two arrests

and convictions, the trial court found that Brown’s

remaining affidavit statements—(1) that he had known

Fennessy for about four years; (2) that Fennessy had

no arrest record; and (3) that Fennessy was gainfully

employed and enjoyed a good reputation within the

community in which he lived—were sufficient indicia

of reliability upon which the wiretap panel could find

the affidavit established that the informant was credi-

ble. The court also determined that Fennessy’s infor-

mation was reliable on the basis of statements in the

affidavit that Fennessy had provided Brown with infor-

mation in the past that had proved both truthful and

accurate, that Fennessy was knowledgeable in the area

of sports betting, and that Fennessy himself had

engaged in illegal gambling with the defendants.

Given some of the events that occurred following

Speers’ arrest such as the labeling of Fennessy as an

informant, Fennessy’s admission of having felt intimi-

dated by Speers’ driving him to a meeting with state

police officers at which he was questioned about the

information he had given Brown about Speers, and

Fennessy’s arrest by the state police, we do not find

it implausible that the trial court would discredit Fen-

nessy’s testimony for the purpose of deciding whether

Brown’s statement was false and intentionally or reck-

lessly made, on one hand, and, on the other, find that

the wiretap panel had sufficient indicia of reliability to

credit Brown’s statement that Fennessy was, in

Brown’s estimation, a reliable informant. We conclude

that the trial court was correct in determining that,

even absent the allegedly false statements in the affi-

davit, there was sufficient information to provide a

basis for the wiretap panel to determine that the affi-

14A

17 Conn. App. 587 601

State rv. Speers

davits satisfied the second element of Aguilar-Spinelli

and the requirements of General Statutes § 54-41c, and

to approve the wiretap application.

i]

The defendants also claim that the trial court erred

in failing to take judicial notice of Brown’s perjury case

court file after Brown refused to testify. This argument

is without merit.

During the suppression hearing, the defendants

sought to introduce the entire case file pertaining to

Brown’s perjury arrest. In addition to general infor-

mation concerning Brown’s arrest, this file contained

the transcripts of Brown’s testimony before the grand

jury and a lengthy affidavit by Inspector Frank

D’ Amico of the chief state’s attorney’s office that was

used to establish probable cause to arrest Brown and

contained references to the grand jury testimony of

others. The prosecution objected to the admission of

the file, arguing that it contained hearsay and included

conclusory and irrelevant information. The court sus-

tained the objection, but stated that because Brown was

not available it would allow the introduction of the tran-

script of his testimony before the grand jury. The

defendants declined the court’s offer and again

requested that the entire case file be introduced. The

court refused, and the defendants withdrew their

request. The defendants have not provided any legal

authority supporting the admission of the file but argue

only that the court should have admitted it because of

the unique situation in which the defendants found

themselves after Brown refused to testify.

A court has the power to take judicial notice of a file

in another pending court case. State v. Bunkley, 202

Conn. 629, 648, 572 A.2d 795 (1987). A trial court, how-

ever, also has broad discretion in determining the

admissibility of evidence. Id., 648-49. Trial court rul-

15A

602 17 Conn. App. 602

ings on evidence are accorded great deference on

appeal, and such rulings will be disturbed only upon

a showing of clear abuse of discretion. State v. Boucino,

199 Conn. 207, 225, 506 A.2d 125 (1986). Our review

of the record leads us to conclude that the trial court

did not err in refusing to admit the entire case file

because it contained inadmissible hearsay and double

hearsay.

Ill

The defendant also argues, for the first time on

appeal, that his inability to cross-examine his chief

accuser, Brown, violated his sixth amendment right of

confrontation and should have mandaied a dismissal

of all charges. Because the defendants failed to raise

the argument below and do not seek review under State

v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), or claim

that the ruling constituted plain error reviewable under

Practice Book § 4185, we decline to review the claim.

See State v. Maisonet, 16 Conn. App. 89, 546 A.2d 951

(1988).

There is no error.

In this opinion the other judges concurred.

16A

SUPREME COURT

STATE OF CONNECTICUT

NO. PSC-88-1169

State of Connecticut

V.

Thomas Speers

ORDER ON PETITION FOR

CERTIFICATION TO APPEAL

On consideration of the petition by the defendant for cer-

tification to appeal from the Appellate Court (17 Conn. App.

587) it is hereby ordered that said petition be, and the same

is hereby denied.

BY THE COURT,

/s) Alan M. Gannuscio

Assistant Clerk — Appellate

Dated: May 18, 1989

Notice to: May 18, 1989

Clerk, Superior Court, Waterbury,

#CR4-117660, CR4117663

Clerk, Appellate Court

Frederick D. Paoletti

Timothy Moynahan

John Connelly, S.A.

Carmody & Torrance

Frederick D. Paoletti in support of petition — John A.

Connelly, State’s Attorney and Joan K. Alexander, Assistant

State’s Attorney, in opposition

17A

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fifth Amendment

No person shall be heid to answer for a capital, or other-

wise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the assis-

tance of counsel for his defense.

Fourteenth Amendment

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty or property, without due process of law;

nor deny to any person within its jurisdiction the equa!

protection of the laws.

18A

CONNECTICUT GENERAL STATUTES

Sec. 54-41b. Application for order authorizing intercep-

tion. The chief state’s attorney or the state’s attorney for the

judicial district in which the interception is to be conducted

may make application to a panel of judges for an order autho-

rizing the interception of any wire communication by

investigative officers having responsibility for the investiga-

tion of offenses as to which the application is made when such

interception may provide evidence of the commission of

offenses involving gambling, bribery, violations of section

53-395, violations of section 21a-277 or felonious crimes of

violence.

Sec. 54-4lc. Information in application. Each applica-

tion for an order authorizing the interception of a wire

communication shall be made in writing upon oath or affir-

mation to a panel of judges. Each application shail include

the following information: (1) The identity of the applicant

and his authority to make such application; (2) the identity

and qualifications of the investigative officers or agency for

whom the authority to intercept a wire communication is

sought; (3) the identity and qualifications of the investiga-

tive or law enforcement officers to whom disclosure of the

contents of an intercepted wire communication or evidence

derived therefrom might be made; (4) a statement of the use

to which the contents of any intercepted wire communica-

tion or any evidence derived therefrom will be put; (5) a full

and complete statement of the facts and circumstances relied

upon by the applicant, to justify his reasonable belief that

the wire communication of a particularly described person

will constitute evidence of a crime enumerated in section

54-41b that has been or is being committed or that such com-

munication will materially aid in the apprehension of the

perpetrator of such crime and that an order should be issued,

including (A) details as to the particular offense that has been

19A

or is being committed, (B) a particular description of the

nature and location of the facilities from which or the place

where the communication is to be intercepted, (C) a partic-

ular description of the type of communications sought to be

intercepted, (D) the identity of the person, if known, who has

committed or is committing the offense and whose commu-

nications are to be intercepted, (E) the time and date when

the facts and circumstances relied upon by the applicant were

first received by him or by the investigative or law enforce-

ment officer conducting the investigation, whichever is earlier,

(F) the way in which the intercepted wire communication will

constitute material evidence of the particularly described

offense or will materially aid in the apprehension of the per-

petrator of such offense, (G) the hours of the day or night

during which wire communication may be reasonably

expected to occur; (6) a full and complete staternent of facts

showing that other normal investigative procedures with

respect to the offense have been tried and have failed or

reasonably appear to be unlikely to succeed if tried or to be

too dangerous to employ; (7) a statement of the period of time

for which the interception is required to be maintained. No

order authorizing or approving the interception of a wire com-

munication shall be issued if the facts and circurnstances

relied upon by the applicant were discovered more than

twenty days next preceding the date of the application. If

the nature of the investigation is such that the authoriza-

tion for interception should not automatically terminate when

the described type of communication has been first obtained,

a particular description of facts establishing probable cause

to believe that additional communications of the same type

will occur thereafter; (8) a full and complete statement of the

facts concerning all previous applications known to the indi-

vidual making the application, made to any panel of judges,

for authorization to intercept, or for approval of interceptions

of, wire communications involving any of the same persons,

facilities or places specified in the application, and the action

taken by the panel on each such application; (9) a statement

that the wire communications sought are material to a par-

ticularly described investigation or prosecution and that such

20A

communications are not legally privileged; (10) if it is

reasonably necessary to make a secret entry upon a private

place or premises in order to install an intercepting device

to effectuate the interception, a statement to that effect and

to the effect that no practicable alternative method of

executing the order which will preserve the secrecy of its exe-

cution exists; (11) where the application is for the extension

of an order, a statement setting forth the results thus far

obtained from the interception, or a reasonable explanation

of the failure tc obtain such results; (12) where the applica-

tion is for an order authorizing interception in excess of

thirty-five orders previously issued by all panels in a calendar

year, a statement setting forth the nature of the emergency

situation which may result in imminent peril to the public

health, safety or welfare, and the nature of that imminent

peril, which requires the issuance of an additional intercep-

tion order. The state’s attorney shall inform the governor and

the joint standing committee of the general assembly having

cognizance of matters relating to criminal law and procedure

of the nature of the emergency situation which may result

in imminent peril to the public health, safety or welfare, and

the nature of that imminent peril; (13) such additional tes-

timony or documentary evidence in support of fact in the

application as the panel of judges may require. Allegations

of fact in the application may be based either upon the per-

sonal knowledge of the applicant or upon information and

belief. If the applicant personally knows the facts alleged,

it must be so stated. If the facts establishing such probable

cause are derived in whole or part from the statements of

persons other than the applicant, the sources of such infor-

mation and belief shall be either disclosed or described, and

the application shall contain facts establishing the existence

and reliability of the informant, or the reliability of the infor-

mation supplied by him. The application shall also state the

basis of the informant’s knowledge or belief. If the applicant's

information and belief are derived from tangible evidence or

recorded oral evidence, a copy or detailed description thereof

shall be annexed to or included in the application. A ffida-

vits of persons other than the applicant may be submitted in

21A

conjunction with the application if they tend to support any

fact or conclusion alleged therein. Such accompanying affi-

davits may be based either on personal knowledge of the

affiant, or information and belief with the source thereof and

reason therefor specified.

Sec. 54-41m. Motion to suppress. Any aggrieved person

in any trial, hearing or proceeding in or before any court,

department, officer, agency, regulatory body or other

authority of the state of Connecticut, or of a political subdi-

vision thereof, may move to suppress the contents of any

intercepted wire communication, or evidence derived there-

from, on the grounds that the communication was unlawfully

intercepted under the provisions of this chapter; the order

of authorization or approval under which it was intercepted

is insufficient on its face; or the interception was not made

in conformity with the order of authorization or approval.

Such motion shall be made before the trial, hearing or

proceeding unless there was no opportunity to make such

motion or the person was not aware of the grounds of the

motion, in which case such motion may be made at any time

during the course of such trial, hearing or proceeding. If the

motion is granted, the contents of the intercepted wire com-

munication, or evidence derived therefrom, shall be treated

as having been obtained in violation of this chapter and shall

not be received in evidence in any such trial, hearing or

proceeding. The panel, upon the filing of such motion by the

aggrieved person, shall make available to the aggrieved

person or his counsel for inspection the intercepted commu-

nication and evidence derived therefrom.

Sec. 53-278a. Gambling: Definitions. As used in sec-

tions 53-278a to 53-278g, inclusive:

(1) ‘‘Gain’’ means the direct realization of winnings;

‘‘profit’’ means any other realized or unrealized benefit, direct

or indirect, including without limitation benefits from

proprietorship, management or unequal advantage in a series

of transactions;

(2) ‘““Gambling”’ means risking any money, credit, deposit

or other thing of value for gain contingent in whole or in part

upon lot, chance or the operation of a gambling device, but

does not include: Legal contests of skill, speed, strength or

endurance in which awards are made only to entrants or the

owners of entries; legal business transactions which are valid

under the law of contracts; activity legal under the provisions

of sections 7-169 to 7-186l, inclusive; any lottery or contest

conducted by or under the authority of any state of the

United States, commonwealth of Puerto Rico or any posses-

sion or territory of the United States; and other acts or

transactions expressly authorized by law on or after October

1, 1973;

(3) ‘‘Professional gambling” means accepting or offering

to accept, for profit, money, credits, deposits or other things

of value risked in gambling, or any claim thereon or interest

therein. Without limiting the generality of this definition, the

following shall be included: Pooil-selling and bookmaking;

maintaining slot machines, one-ball machines or variants

thereof, pinball machines, which award anything other than

an immediate and unrecorded right of replay, roulette wheels,

dice tables, or money or merchandise pushcards, punch-

boards, jars or spindles, in any place accessible to the public;

and except as provided in sections 7-169 to 7-186m, con-

ducting lotteries, gift enterprises, disposal or sale of property

by lottery or hazard or policy or numbers games, or selling

chances therein; and the following shall be presumed to be

included: Conducting any banking game played with cards,

dice or counters, or accepting any fixed share of the stakes

therein;

(4) ‘Gambling device’’ means any device or mechanism

by the operation of which a right to money, credits, deposits

or other things of value may be created, as the result of the

operation of an element of chance; any device or mechanism

which, when operated for a consideration, does not return the

same value or thing of value for the same consideration upon

each operation thereof; any device, mechanism, furniture or

23A

fixture designed primarily for use in connection with profes-

sional gambling; and any subassembly or essential part

designed or intended for use in connection with any such

device, mechanism, furniture, fixture, construction or instal-

lation, provided an immediate and unrecorded right of replay

mechanically conferred on players of pinball machines and

similar amusement devices shall be presumed to be without

value;

(5) “Gambling record” means any record, receipt, ticket,

certificate, token, slip or notation given, made, used or

intended to be used in connection with professional gambling;

(6) ‘‘Gambling information’? means a communication

with respect to any wager made in the course of, and any infor-

mation intended to be used for, professional gambling.

Information as to wagers, betting odds or changes in bet-

ting odds shall be presumed to be intended for use in

proiessional gambling;

(7) ‘‘Gambling premise’ means any building, room,

enclosure, vehicle, vessel or other place, whether open or

enclosed, used or intended to be used for professional gam-

bling. Any place where a gambling device is found shall be

presumed to be intended to be used for professional gambling,

except a place wherein a bazaar or raffle for which a permit

has been issued under sections 7-170 to 7-186, inclusive, or

bingo for which a permit has been issued under section 7-169

or games of chance for which a permit has been issued under

sections 7-186a to 7-186m, inclusive, is to be conducted;

(8) ‘‘Person’’ includes natural persons, partnerships and

associations of persons and corporations; and any corporate

officer, director or stockholder who authorizes, participates

in or knowingly accepts benefits from any violation of sec-

tions 53-278a to 53-278g, inclusive, committed by his

corporation;

24A

(9) ‘‘Peace officer’ means a municipal or state police

officer, sheriff, deputy sheriff or chief inspector or inspector

in the division of criminal justice;

(10) ‘‘Court’’ means the superior court.

Sec. 53-278b. Gambling; professional gambling; pena!-

ties. (a) Any person who engages in gambling, or solicits or

induces another to engage in gambling, or is present when

another person or persons are engaged in gambling, shall be

guilty of a class B misdemeanor; provided natural persons

shall be exempt from prosecution and punishment under this

subsection for any game, wager or transaction which is

incidental to a bona fide social relationship, is participated

in by natural persons only and in which no person is partici-

pating, directly or indirectly, in professional gambling.

(b) Any person who engages in professional gambling

shall be guilty of a class A misdemeanor.

Sec. 53-278f. Persistent offenders. Any person who has

been convicted of a violation of subsection (b) of section

53-278b, subsection (d) of section 53-278c, subsection (a) of

section 53-278d, or subsection (d) of section 53-278e or any

statute predecessor thereto may, upon any subsequent vio-

lation of said subsections, be prosecuted as a persistent

offender and on conviction may be subjected to the penalty

of the next most sericus classification of offense, provided

it shall be an affirmative defense to the charge of being a per-

sistent offender under this section if the defendant was

pardoned on the ground of innocence with respect to the prior

conviction on which the state is relving.

25A