author: Heiman, J.

text:
    Patricia Cook v. William C. Bieluch, Jr., et al.
    (11236)
    Foti, Lavery and Heiman, Js.

      Argued June 8
    decision released August 17, 1993

      Wesley W. Horton, with whom were Michael Taylor, legal intern, and, on the brief, Peter M. Ryan, for the appellant (defendant).

      George J. Markley, for the appellee (plaintiff).
   Heiman, J.

The defendant, William C. Bieluch, Jr., appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Patricia Cook, challenging the financial orders and property distribution made incident thereto. The defendant claims that the judgment is fatally flawed because (1) the trial court abused its discretion in awarding counsel fees to the plaintiff by (a) failing to apply the statutory criteria and (b) awarding counsel fees where the plaintiff received no other financial awards, (2) the trial court’s memorandum of decision improperly failed to set forth that the court applied a clear and convincing standard to the issue of forgery, and the evidence does not meet that standard, (3) the plaintiff failed to prove that a fraudulent conveyance occurred, and (4) if on appeal the issues regarding forgery and fraudulent conveyance are resolved in the defendant’s favor, the plaintiff’s action to quiet title must also fail. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff and the defendant were married November 4,1984. No children were born of this union. The plaintiff has two children, from a prior marriage and the defendant has three children from his first marriage. This marriage is the second for the plaintiff and the third for the defendant.

The plaintiff is a practicing psychologist who has an office in Bridgeport and another at her home in Darien. The defendant is a practicing attorney in Darien.

Other than the interest that each had in his or her own professional practices, the parties had little in the way of assets to be divided other than real property located at 41 Holly Lane, Darien.

Prior to the marriage of the parties, the plaintiff owned real property located at 89 Saddle Road, Stamford. On August 1, 1985, the plaintiff sold this property and the following day purchased the property at 41 Holly Lane in Darien. Subsequently, an addition was added to the house in order to provide space for the plaintiff’s two children, the defendant’s three sons and office space for the plaintiff. The Holly Lane property (property) was purchased for $295,000. The addition was estimated to have cost approximately $156,800, bringing the total cost of the property to $452,000. Mortgages on the property totaled $309,000, and a real estate appraiser valued the property between $410,000 and $450,000. The defendant’s contribution to the property was 15 percent. The plaintiff was also the owner of a 16 percent interest in real property located in Darien known as “Oberlander Place.”

On April 24, 1987, a quitclaim conveyance was executed purporting to convey a one-half interest in the property on Holly Lane from the plaintiff to the defendant. The deed further purported to convey to the defendant the entirety of the plaintiffs interest in Ober-lander Place. The deed recited as consideration “love and affection.” The deed was recorded on October 31, 1989, and the transaction was claimed to be exempt from real estate conveyance tax. On the same day that the defendant recorded the deed, he conveyed, by quitclaim deed, all of his right, title and interest in the Holly Lane property and in Oberlander Place to the codefend-ant, Frederick F. Moryl, Jr. This deed was also recorded on October 31, 1989.

At the trial, the parties introduced evidence concerning the authenticity of the deed purporting to convey the plaintiff’s interest to the defendant. An associate in the defendant’s office who was a witness to the deed from the plaintiff to the defendant stated that the signature might be her own but she had no recollection of signing the deed as a witness. The other witness, who was employed as a secretary in the defendant’s law office at the time of the alleged execution of the deed and who also acted as the notary, stated that her signature appeared on both the witness and notary lines of the deed, but she did not recall the plaintiff’s signing the deed in the defendant’s office.

The plaintiff testified that she had not executed the deed and that the signature on the deed purporting to be hers was a forgery. A handwriting expert also testified that the signature on the deed was not, in her opinion, the plaintiffs actual signature. The trial court found that the signature was not the plaintiffs and that the deed was a forgery.

In addition to the expert evidence that the purported signature was not the plaintiffs and the plaintiffs denial of execution of the deed, the trial court also found other evidence supporting its finding that the deed was a forgery. The court found that the defendant would lose any real property interest that he might have to internal revenue liens. The defendant had told the plaintiff on numerous occasions that he could not own any real estate in his own name. The trial court found that the defendant’s answers to interrogatories were inconsistent with his claim of ownership of a one-half interest in the property. Further, the defendant himself testified that he recorded the deed in a fit of anger occasioned by the failure of the plaintiff’s attorney to return a telephone call.

The plaintiff’s own actions were inconsistent with her signing a deed relinquishing her rights in the property. The court noted that the plaintiff was relying on the equity in the property to meet the college expenses of her children. It also noted that the parties’ relationship had deteriorated to the point that the plaintiff had consulted a lawyer about seeking a dissolution of the marriage and had also consulted a marriage counselor. Additionally, in August, 1987, the plaintiff increased the mortgage on the Holly Lane property by $100,000 and was the sole signatory on the note and the mortgage securing that note. The trial court found that on April 24, 1987, the plaintiff executed a note and mortgage deed on the Oberlander property in the amount of $550,000 and that the defendant did not execute either document. The trial court found that it was unlikely that the plaintiff would execute a note secured by a mortgage on property that she had just conveyed.

The trial court rendered judgment dissolving the marriage between the parties. The court found that the defendant was at fault for the breakdown of the marriage. It also found in the plaintiffs favor as to the second count of her amended complaint alleging the quitclaim deed to be a forgery. The court ordered the title to the property at 41 Holly Lane, and the Ober-lander property be placed in the name of the plaintiff. It found that the defendant never had any right, title or interest in those properties and that any conveyance from the defendant to Moryl is null and void. The trial court also found as a fact that the defendant had an earning capacity in excess of $25,000 per year.

The court rejected the defendant’s request for periodic alimony, and ordered that no alimony be awarded to either of the parties. The trial court also ordered that there be no assignment of estate pursuant to General Statutes § 46b-81 between the parties and that each would retain the items of personalty shown on his or her financial affidavit. The trial court also entered orders regarding payment of debts and indemnifications by the parties and further ordered that any interest accruing to the defendant as a result of a $30,000 investment with a certain individual or in any entity owned, managed or controlled by that individual shall be the sole property of the plaintiff. The trial court also extended a restraining order directed against the defendant and permitted the plaintiff to resume use of her name before marriage.

The trial court also ordered that the defendant pay to the plaintiff the sum of $50,000 as a contribution to counsel fees and that the payment be made at the rate of $500 per month for a period of 100 months commencing April 1, 1992, and payable on the first of each month thereafter until fully paid. The court ordered that the obligation to pay the counsel fees in full survived the death of either party or the remarriage of the plaintiff. This appeal followed.

I

The defendant asserts that the trial court abused its discretion in awarding counsel fees to the plaintiff in two respects: First, he claims that the trial court failed to apply the statutory criteria contained in General Statutes § 46b-62, and, second, he posits that the trial court was precluded from entering an award of counsel fees because the trial court made no other financial awards to the plaintiff. Neither assertion persuades us.

The trial court in its thorough memorandum of decision clearly set out that in making its award of counsel fees to the plaintiff, it “has considered the provisions of § 46b-62 of the General Statutes and the factors of § 46b-82 of the General Statutes.” In addition, the trial court specifically set out factual findings to support its determination that an *award of counsel fees to the plaintiff from the defendant was warranted, including its finding as to the earning capacity of the defendant and his present living conditions.

Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. Darak v. Darak, 210 Conn. 462, 477, 556 A.2d 145 (1989); Puris v. Puris, 30 Conn. App. 443, 451, 620 A.2d 829 (1993); Graham v. Graham, 25 Conn. App. 41, 50, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991). In determining whether to allow counsel fees, the court must consider the statutory criteria set out in §§ 46b-62 and 46b-82 and the parties’ respective financial abilities. Puris v. Puris, supra. An abuse of discretion in granting the counsel fees will be found only if this court determines that the trial court could not reasonably have concluded as it did. Fitzgerald v. Fitzgerald, 190 Conn. 26, 34, 459 A.2d 498 (1983); Puris v. Puris, supra, 452.

Our review of the record indicates that the trial court specifically considered the statutory criteria and the parties’ financial abilities in determining whether to award attorney’s fees and set out in its memorandum of decision the facts found to support its order. The defendant’s assertion that the trial judge failed to apply the statutory criteria is simply not supported by the record. In light of the trial court’s well supported findings, we cannot conclude that the trial court abused its discretion or acted unreasonably in awarding the plaintiff counsel fees in the amount and in the manner in which it structured the payments.

The defendant next posits that the award of counsel fees was barred as a matter of law because the trial court “found that no alimony was warranted.” Thus, the defendant asserts, the trial court was precluded from making an award of counsel fees under his interpretation of our Supreme Court’s decision in Murphy v. Murphy, 180 Conn. 376, 381, 429 A.2d 897 (1980). The defendant’s reliance on the decision in Murphy v. Murphy, supra, is misplaced both legally and factually.

The trial court stated that the plaintiff sought an order of alimony “to reimburse her for her attorney’s fees which plaintiff’s counsel state[d] exceed $80,000.” The trial court went on to state that in its view, “[an order for attorney’s fees] is in the nature of alimony and is not dischargeable in bankruptcy,” relying on In re Birdseye, 548 F.2d 321, 323, 325 (10th Cir. 1977) (involving determination of nondischargeability of attorney’s fees under Connecticut law). See Murphy v. Murphy, supra, 380. The trial court then proceeded to award counsel fees in the amount of $50,000.

The defendant’s assertion that the trial court found that no alimony was warranted is not supported by the record. The trial court did not state in its memorandum of decision that it had found that an award of alimony to the plaintiff was unwarranted, as the court did in Murphy v. Murphy, supra. Additionally, the court obviously found that an award of counsel fees required the same considerations as an award of alimony and that the debt created by an award of counsel fees would not be subject to discharge in bankruptcy.

Our analysis, however, cannot turn merely on the factual determination. The defendant asserts that an award of counsel fees was legally precluded because the trial court failed to award the plaintiff alimony as was required before an award of attorney’s fees can stand.

In Murphy v. Murphy, supra, 381, our Supreme Court had before it a dissolution matter in which the trial court had stated that “its only concern was the assignment of property in accordance with what each party had contributed to the marriage.” Our Supreme Court stated: “Nowhere in the memorandum of decision or in the record does it appear that the court considered the criteria listed in General Statutes § 46b-82 in awarding attorney’s fees. If we consider the financial position of the plaintiff as required by § 46b-82, there was no basis for the awarding of attorney’s fees. No alimony was awarded to the plaintiff. ... In this instance, however, not only did the court fail to award alimony, but it also stated ‘no alimony is warranted by the evidence. ’ Where it is clear that the court considered the evidence and found no basis for alimony, and where the same evidence must be considered for an award of attorney’s fees, if there is no indication in the memorandum of decision or the record of any evidence which relates to one and not the other, there is error in the award of attorney’s fees.” (Emphasis added.) Id.

Despite the defendant’s assertion to the contrary, the trial court, here, unlike in Murphy, did not find an award of alimony to the plaintiff unwarranted. Also, unlike Murphy, the trial court did consider and made positive findings as to the basis for its award of counsel fees. These same findings would have supported an award of periodic alimony. Here, however, the trial court elected to make an award of counsel fees in lieu of an award of periodic alimony. “The decision to award attorney’s fees is made independently of a decision to award alimony or to assign property in a dissolution action.” Fitzgerald v. Fitzgerald, supra, 32-33. It is also within the trial court’s discretion to order that funds to pay an award of counsel fees come out of an alimony award or property distribution. Id., 33 n.9. The trial court concluded that the factual predicate existed to support an award of counsel fees and set out these findings. The memorandum of decision and the record itself adequately set forth the necessary basis to support the award of attorney’s fees.

The trial court’s memorandum of decision clearly reflects that it properly weighed and considered the factors necessary to a proper resolution of the counsel fees issue including the resolution of the question as to whether to award counsel fees as such or to award alimony as a method of permitting the plaintiff to recoup her counsel fees. See Graham v. Graham, supra, 51. The trial court acted within its discretion to award attorney fees. The decision of the Supreme Court in Murphy v. Murphy, supra, is inapposite.

The defendant’s attack on the trial court’s award of attorney’s fees is without merit.

II

The defendant next asserts that the trial court’s failure to set out in its memorandum of decision that its decision on the issue of forgery was based on a standard of clear and convincing proof is fatal to its finding that the deed was forged.

The mere fact that the trial court failed to refer explicitly to the standard of proof used by it in its determination of the fraud issue does not necessarily require reversal. If the memorandum of decision itself implies that the trial court applied the correct standard, we need not reverse the judgment on the technical ground that the trial court failed to state the standard of proof imposed. Tessitore v. Tessitore, 31 Conn. App. 40, 43, 623 A.2d 496 (1993); Patrocinio v. Yalanis, 4 Conn. App. 33, 36, 492 A.2d 215 (1985). Thus, the defendant’s assertion that such omission is fatal is without merit.

At oral argument, the defendant conceded that the issue regarding the failure of the trial court to set forth in its memorandum of decision the standard of proof that it required on the issue of fraud had not been properly preserved or briefed, and, therefore, he relies on the plain error standard. The unpreserved claim that the trial court’s failure to include a statement in the memorandum of decision as to the standard of proof it applied is fatal to the case does not constitute plain error where, as here, the memorandum of decision implies adherence to the correct standard and the trial court’s articulation made in response to the order of this court confirms that it did apply the correct standard of proof.

The defendant’s claim is without merit.

Ill

The defendant next attacks the sufficiency of the evidence to support the trial court’s finding of forgery and its finding that the defendant’s transfer of the property to Moryl was fraudulent. We are not persuaded.

We need not decide whether a claim of forgery requires proof by clear, precise and unequivocal evidence, as do other forms of fraud; Henry v. Klein, 15 Conn. App. 496, 499, 545 A.2d 575 (1988); or by some lesser standard above a fair preponderance of the evidence, since the trial court has found that the plaintiff proved her case by the higher standard, and our review of the evidence supports the trial court’s finding.

The defendant’s quarrel with the trial court’s finding that the deed was a forgery appears to turn on his contention that the court accepted the testimony of the plaintiff’s expert and disregarded the testimony of his expert and other evidence including inferences that he claims arose out of the evidence.

The trial court stated unequivocally that it credited the testimony of the plaintiff’s expert that the purported signature on the quitclaim conveyance was a forgery. Further, the trial court set forth in detail the additional factors that buttressed its finding that the deed was a forgery. “The sifting and weighing of evidence is peculiarly the function of the trier. [NJothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). There was more than ample evidence, if believed, to support the finding by the trial court that the quitclaim conveyance was a forgery. We do not retry the facts nor do we find facts or draw conclusions from the primary facts found. Henry v. Klein, supra. We do review the findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did. Girgenti v. Cali-Con, Inc., 15 Conn. App. 130, 136, 544 A.2d 655 (1988).

The trial court’s finding that the quitclaim deed was a forgery is amply supported by clear and convincing evidence, and is not clearly erroneous. See Lauder v. Peck, 11 Conn. App. 161, 163, 526 A.2d 539 (1987).

The defendant’s attack of the trial court’s finding that he fraudulently conveyed both pieces of Darien property to Moryl is grounded on a claim that the evidence failed to show that “the transfer of the property was in fraud of [the plaintiff’s] rights or a fraudulent conveyance.” We disagree. His claim is predicated on the fact that the trial court, in its memorandum of decision, specifically set forth that it did not find as proved and true the word “fraudulently.”

General Statutes § 52-552, which was in effect at the time of the conveyance has been held to be a statutory adoption of the common law of fraudulent conveyances and the common law remedy continues to exist. White v. Amenta, 110 Conn. 314, 318-19, 148 A. 345 (1930).

“A conveyance is fraudulent if made with actual intent to avoid any debt or duty or if made without any substantial consideration by a person who is or will be thereby rendered insolvent. . . . A person is insolvent for these purposes when he is unable to pay his then-existing debts.” (Citations omitted.) Molitor v. Molitor, 184 Conn. 530, 536, 440 A.2d 215 (1981); Tessi-tore v. Tessitore, supra, 42. Thus, the assertion by the defendant that there must be a total lack of consideration is not legally correct. The genesis of the action for a fraudulent conveyance is a lack of substantial consideration, not a total lack thereof. Tessitore v. Tessi-tore, supra. The genesis of a fraudulent conveyance may also be found from the existence of a fraudulent intent in which the grantee participated. Zapolsky v. Sacks, 191 Conn. 194, 199-200, 464 A.2d 30 (1983).

The trial court found as a fact that the transfer to Moryl by the defendant was made with an actual intent to hinder, delay and defraud creditors. The plaintiff needed to establish only one of the alternatives, i.e., that the conveyance was made without any substantial consideration or that it was made with a fraudulent intent in which the grantee participated, not both. Watson v. Watson, 221 Conn. 698, 707, 607 A.2d 383 (1992); Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990); Rocklen, Inc. v. Radulesco, 10 Conn. App. 271, 277, 522 A.2d 846 (1987). “The determination of the question of fraudulent intent is clearly an issue of fact which must often be inferred from surrounding circumstances. . . . Such a fact is, then, not ordinarily proven by direct evidence, but rather, by inference from other facts proven — the indicia or badges of fraud.” (Citations omitted; internal quotation marks omitted.) Zapolsky v. Sacks, supra, 200; Tyers v. Coma, supra. The record supports the findings of subordinate facts from which fraud can be reasonably inferred in that the inferences are those that can be reasonably drawn.

The defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       Frederick F. Moryl, Jr., was also named as a defendant in the complaint. Moryl is not a party to this appeal and we use the term “the defendant” to describe the named defendant only.

       The evidence before the trial court of the defendant’s conduct relating to his misuse of alcohol as well as his acts of physical and sexual abuse against the plaintiff amply support the trial court’s finding that the defendant was the cause of the breakdown of the marriage.

       The property known as Oberlander Place was foreclosed and thus no longer plays a part in this appeal.

       The trial court specifically found that considering the factors mandated pursuant to General Statutes § 46b-82, the defendant was not entitled to an award of periodic alimony. No claim on appeal implicates the trial court’s decision in this regard.

       The trial court noted that the plaintiff had made a claim in the nature of an order of alimony to reimburse her for her attorney’s fees which counsel represented exceeded $80,000. The trial court found that as of July 31,1991, the plaintiff had incurred counsel fees in the amount of $33,500. The trial court took note of the number of motions, court appearances and trial days and the complexity of the issues in the case and found that the reasonable value of the services rendered by counsel was in the amount of $50,000. The trial court made an express finding that given the financial resources of the parties the denial of an award of counsel fees would undermine its financial orders, and awarded counsel fees to the plaintiff in the amount of $50,000. The trial court did not make an express finding that an order of alimony to the plaintiff was unwarranted.

       General Statutes § 46b-62 provides in pertinent part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .”
      General Statutes § 46b-82 provides in pertinent part: “In determining whether [attorney’s fees] shall be awarded . . . and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

       The trial court reviewed the defendant’s claim for periodic alimony and found that he was not entitled to it. The trial court expressly found that the defendant had his own law practice, that he was living as a guest in another person’s house, that he shared a bedroom with that person, and that he was at fault for the marital breakdown. The trial court also found that the defendant, with the trial behind him, could return to the practice of law and be able to support himself without the assistance of the plaintiff.

       We note that, pursuant to our authority under Practice Book § 4183 (1), we ordered the trial court to articulate the standard of proof that it applied in determining the issue of fraud. Practice Book § 4183 provides in pertinent part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete, correct or otherwise perfect the trial court record for presentation on appeal shall be made to the court in which the appeal is pending. The court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .” (Emphasis added.) The trial court responded to our request for articulation by setting forth that the plaintiff had proven the allegations of fraud by clear and convincing evidence.

       The trial court did not make a finding as to who forged the quitclaim deed nor was such a finding necessary in order to declare the deed a nullity.

         In its articulation, made in response to the order of this court, the trial court concluded that the word “fraudulently” as used in the complaint was a legal conclusion and not an allegation of fact and thus, not properly a part of the trial court’s findings. The trial court found, however, the factual predicate as set forth in the complaint to support its finding of a fraudulent conveyance. Further, he claims that since the deed and the evidence reflect the fact that Moryl paid consideration in the form of a $50,000 promissory note that the transfer cannot be a fraudulent conveyance.

       General Statutes § 52-552 has since been repealed by Public Acts 1991, No. 91-297, § 13, and we have adopted General Statutes § 52-552a, the Uniform Fraudulent Transfer Act.

       Even if the trial court had been in error in finding a fraudulent conveyance, it still would not have availed the defendant. Once the trial court had properly concluded that the deed from the plaintiff to the defendant was a forgery, the deed from the defendant to Moryl would also have been ineffective. “It is fundamental that a grantor cannot effectively convey a greater title than he possesses.” Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 170, 464 A.2d 26 (1983); Kenny v. Dwyer, 16 Conn. App. 58, 64, 546 A.2d 937, cert. denied, 209 Conn. 815, 550 A.2d 1084 (1988).

       The defendant concedes that we need address his attack on the trial court’s judgment effectively quieting the title to the Holly Lane property only if he prevails on the other issues raised in this appeal. Because of our resolution of the other issues, we need not address the defendant’s final claim.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. James DesLaurier
    (10352)
    Dupont, C. J., O’Connell and Freedman, Js.

      Argued February 18
    decision released August 17, 1993

      Paul D. Eschuk, assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Sandra Tullius, deputy assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d and operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant claims that the trial court improperly (1) denied his motion to strike the amended information, (2) denied his motion for a competency examination, (3) admitted blood test results into evidence, (4) admitted statements made by the defendant into evidence, and (5) admitted a search warrant containing hearsay into evidence. We affirm the judgment of the trial court.

The genesis of this case is a one car automobile accident in which the defendant and his passenger, Richard Hinds, were both injured and transported by ambulance to a hospital. Much of the evidence and some of the defendant’s claims arise out of the defendant’s conduct at the accident scene and the hospital. Necessary factual details are included in the analysis of individual claims.

I

Amended Information

On November 6, 1990, the defendant pleaded not guilty to charges of reckless driving and operating a motor vehicle while under the influence of alcohol, and elected a jury trial. The voir dire jury selection process had begun and three jurors had been chosen by the time court opened the following morning. The state then informed the court that it had just learned that the defendant’s passenger had sustained injuries in the accident causing paraplegia. Consequently, the state filed a substitute information charging the defendant with assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d as well as operating a motor vehicle while under the influence of liquor. The defendant neither objected nor assented but requested a two month continuance to prepare a defense and to hire an expert to examine the passenger. The trial court allowed the substitute information, granted the defendant’s request for a two month continuance and also gave him one month to file pretrial motions addressed to the new information. The trial court remarked that, although three jurors had been selected, it would be appropriate to start over when the case was reached for trial. It then released the three selected jurors.

On December 4,1990, the defendant moved to strike the substitute information on the grounds that it was filed after the trial had started and, thus, violated Practice Book § 624. The trial court denied the motion and the defendant makes it his first ground of appeal.

The determination of this issue depends on whether Practice Book § 623 or Practice Book § 624 controls. Section 623 pertains to amendment of informations before trial, and § 624 pertains to amendment of infor-mations after commencement of trial. The question before us, therefore, is whether the trial had commenced when the substitute information was filed.

We begin our analysis by noting what we are not deciding. First, this is not a question of whether double jeopardy attached when the first jury voir dire began. The United States Supreme Court has firmly established that double jeopardy attaches when the jury is empaneled and sworn; Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963); and this point of attachment is part of the fifth amendment constitutional guarantee. Crist v. Bretz, 437 U.S. 28, 38-39, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1977). This provision of the fifth amendment is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); see State v. Van Sant, 198 Conn. 369, 376, 503 A.2d 557 (1986); State v. Roy, 182 Conn. 382, 385, 438 A.2d 128 (1980). Moreover, the point at which jeopardy attaches is not the result of arbitrary line drawing, such that it may be moved a few steps forward or backward without constitutional significance, but is fixed as an integral part of the constitutional guarantee. Crist v. Bretz, supra, 37-38.

Second, we are not concerned with a claim that the state, in the exercise of due diligence, should have known of the seriousness of the passenger’s injuries in a more timely fashion. Lack of due diligence and perhaps a resultant speedy trial denial; see Doggett v. United States, U.S. , 112 S. Ct. 686, 120 L. Ed. 2d 520 (1992); were not raised by the defendant and, therefore, are not before us.

Accordingly, we must decide this issue solely by construing the rules of practice. In State v. Cole, 8 Conn. App. 545, 550-52, 513 A.2d 752 (1986), this court analyzed Practice Book §§ 623 and 624 in relation to the voir dire process and concluded that the questioning of prospective jurors would be extremely hampered if the charges against the defendant could be changed after the voir dire had been completed or even after it was under way. For example, if a defendant was charged with robbery, defense counsel’s voir dire questions would be framed to determine any bias or prejudice of prospective jurors against persons charged with crimes of theft. For purposes of this example, we will assume that after the voir dire started, the state learned that when the defendant was arrested on the robbery charge, he had unlawful drugs on his person and, accordingly, the state elected to amend the information to include appropriate drug charges. Obviously, defense counsel would not have examined the prospective jurors to uncover possible bias or prejudice concerning drug crimes and the entire voir dire would be severely impaired if not completely emasculated.

“Without proper notice of the precise charges against him, a defendant is hampered in the effective questioning of the veniremen to discover and evaluate any bias or prejudice which they may harbor as to the particular crime or crimes involved. It would be difficult to ask appropriate questions in an effort to discover such possible bias or prejudice unless the defendant has notice of the particular charges against him.” Id., 551. Consequently, the Cole court declared that for purposes of §§ 623 and 624 a criminal trial begins with the voir dire of prospective jurors. Id., 552.

Cole would be applicable to the present case if the defendant had been deprived of the opportunity to voir dire the jurors before whom he was tried on all of the charges against him. That is not the situation here, however. This case is more nearly analogous to State v. Parker, 25 Conn. App. 619, 595 A.2d 939 (1991), which also involved the issue of whether § 623 or § 624 applied. In Parker, the trial court declared a mistrial after the jury was unable to reach a verdict on a charge of intentional assault in violation of General Statutes § 53a-59 (a) (1). After the mistrial, but before commencement of a second trial, the state filed a substitute information adding a charge of reckless assault in violation of General Statutes § 53a-59 (a) (3).

Parker moved to strike the substitute information arguing “that once the first trial began, any subsequent amendments to the information occurred ‘[ajfter commencement of the trial,’ notwithstanding the intervening mistrial.” Id., 622. This court rejected Parker’s argument concluding “that the provisions of § 623 apply where the state seeks to amend the information or file a substitute information after a mistrial and before a retrial.” Id. “Upon mistrial, the criminal prosecution is returned to the pretrial stage. The defendant after the mistrial, therefore, was in the position of one who awaits the commencement of trial. This conclusion does not undermine the due process concerns of §§ 623 and 624 to protect a defendant’s right to fair and adequate notice of the charges against him so as to afford him an opportunity to prepare an adequate defense.” (Internal quotation marks omitted.) Id.

For purposes of this case, aborting the partially completed voir dire was the functional equivalent of a mistrial. The case was returned to the pretrial stage and the defendant was given the opportunity to file pretrial motions addressing the new substitute information.

Just as an entirely new jury array was required after the mistrial in Parker, an entirely new array was furnished here. The original three jurors had been dismissed and the partial voir dire became merely part of the history of the case. The trial culminating in the defendant’s conviction commenced with the voir dire of the jury that rendered the verdict. Accordingly, the pretrial rule of § 623 applied and the trial court properly denied the defendant’s motion to strike the substitute information.

II

Competency Examination

On January 18,1991, the defendant’s counsel made a motion for examination of the defendant’s competency under General Statutes § 54-56d. He supported this motion by representing that the defendant had behaved irrationally when counsel informed him of the result of plea bargaining discussions including the possible outcome of a jury trial and the extent of a possible period of incarceration. Counsel also represented that at a pretrial conference the previous day, the defendant had difficulty forming sentences, comprehending the charges against him and understanding his relationship with Hines, the passenger, who is his stepbrother.

The trial court conducted a comprehensive, searching examination through questions addressed directly to the defendant. Following this canvass, the trial court found that the defendant understood the charges against him and was able to proceed with the case.

It is axiomatic that if a person is not competent to stand trial, his conviction violates the due process guarantee of the fourteenth amendment of the constitution of the United States and article first, § 8, of the constitution of Connecticut. Gold v. Warden, 222 Conn. 312, 313 n.3, 610 A.2d 1153 (1992); State v. Johnson, 22 Conn. App. 477, 488, 578 A.2d 1085, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990). This constitutional mandate is codified in General Statutes § 54-56d (a) which provides that “a defendant shall not be tried, convicted or sentenced while he is not competent.” State v. Gonzalez, 205 Conn. 673, 687, 535 A.2d 345 (1987). Whether a defendant is competent to stand trial is a question of law to be determined by the trial court. State v. DeAngelis, 200 Conn. 224, 242, 511 A.2d 310 (1986). This determination is to be made by the trial court after a hearing. General Statutes § 54-56d (e). “The trial court should carefully weigh the need for a hearing in each case, but this is not to say that it should be available on demand. The decision to grant a hearing requires the exercise of sound judicial discretion.” State v. Lloyd, 199 Conn. 359, 366, 507 A.2d 992 (1986); State v. Johnson, supra, 488-89. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . .Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Reddick, 224 Conn. 445, 467, 619 A.2d 453 (1993).

In the present case, an experienced criminal court judge carefully canvassed the defendant. The canvass disclosed that the defendant understood the charges against him and his maximum prison sentence exposure and that he was capable of accepting or rejecting a proposed plea bargain. The court also noted that the defendant had no difficulty forming sentences and he behaved rationally during the canvass. “It is the job of the trial judge to examine the facts before him and to determine the need for a hearing. He is in the best position to weigh the evidence and to evaluate the credibility of the defendant.” State v. Janice, 20 Conn. App. 212, 214, 563 A.2d 553 (1989). No abuse of discretion is present on the record in this case. The trial court properly denied the defendant’s motion for a competency examination.

Ill

Blood Tests Results

The defendant was taken by ambulance to Johnson Memorial Hospital in Stafford Springs where he came under the care of John Módica, the emergency room physician on duty. Módica diagnosed the defendant as suffering from facial lacerations, a contusion to his left chest wall and an irregular heart beat. In accordance with hospital policy in trauma cases, Módica ordered blood drawn and analyzed in the hospital laboratory. The analysis showed a serum blood alcohol concentration of 0.179 which translated into a whole blood alcohol concentration of 0.158 percent.

Sometime after the blood test, which was administered for medical diagnostic purposes, Trooper Tony Dostanko of the state police asked the defendant to submit to a blood test pursuant to General Statutes § 14-277a (c) for police purposes. The defendant refused. Subsequently, a search warrant was issued, pursuant to § 14-227a (l), authorizing the seizure of the hospital records of the chemical analysis of the defendant’s blood which had been drawn pursuant to Mod-ica’s order. The trial court admitted the results of the hospital blood tests into evidence.

A

The defendant argues that the hospital blood test should not have been admitted for two reasons. First, he contends that the test did not comply with General Statutes § 14-227a (e) and department of health regulations §§ 14-227a-l through 14-227a-9. This argument requires a comparison of subsections (c) (the police officer subsection) and (l) (the hospital subsection) of General Statutes § 14-227a. Subsection (c) is limited to tests performed at the direction of a police officer whereas subsection (l) addresses tests administered by hospital personnel for diagnostic purposes. The defendant does not contend that the state failed to satisfy any of the prerequisites for the admission of the test results under the hospital subsection. Rather, he argues that results of the tests taken under the hospital subsection must also comply with the requirements of the police officer subsection. We do not agree. The hospital subsection expressly provides that results of tests taken thereunder are admissible “notwithstanding the provisions of [the police officer] subsection . . .

B

Second, the defendant argues that the police officer subsection and hospital subsection violate his constitutional right to equal protection of the laws. Because this claim was not raised at trial, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In order to prevail under Golding, the defendant must show that (1) the record is adequate to review the alleged claim of error, (2) the claim is of constitutional magnitude alleging the violation of a fundamental right, (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial, and (4) if subject to harmless error analysis, the state has failed to demonstrate the harmlessness of the alleged constitutional violation beyond a reasonable doubt. State v. Golding, supra, 239-40. “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant to the particular circumstances.” Id., 240. In the present case, the defendant’s claim fails because he did not satisfy the third prong of Golding by showing a violation of his right to equal protection of the laws.

The defendant contends that §§ 14-227a (c) and 14-227a (l) arbitrarily classify motorists, for the purpose of admitting their blood test results at trial, on the basis of their medical condition at the time of the test. Under the police officer subsection, a defendant must be given an opportunity to telephone an attorney and consent to a blood test before the results of that test can be admitted at trial. The defendant’s blood test results, however, were admitted under the hospital subsection, the requirements of which the defendant concedes the state properly met. Nonetheless, he claims his right to equal protection of the laws was violated because, as an injured defendant given a blood test by the hospital, his test results were admitted at trial without the notification of an attorney and consent protections of § 14-227a (c), the police officer subsection. The defendant posits that the differences in conditions for admissions of tests administered under the police officer subsection and those administered under the hospital subsection amount to an arbitrary and irrational classification based on a defendant’s status as either injured or uninjured at the time of the test. Contrary to the defendant’s argument, nothing in the police officer subsection prevents a police officer from obtaining a blood sample from a consenting but injured operator. See State v. Stevens, 224 Conn. 730, 620 A.2d 789 (1993). This is in fact what Dostanko initially attempted to do at the hospital after the accident. Consequently, the classification on which the defendant premises his argument, injured versus uninjured defendants, does not exist.

Moreover, to “implicate the equal protection clauses under the state and federal constitutions it is necessary that the statute, or action, treat differently persons standing in the same relation to it.” State v. Johnson, 26 Conn. App. 553, 558, 603 A.2d 406, cert. denied, 222 Conn. 905, 606 A.2d 1350 (1993). Persons in custody who are requested by a police officer to take a blood test for the purposes of establishing legal liability are not similarly situated to patients from whom blood is drawn for diagnostic purposes in a hospital. As such, the protections afforded persons in the two circumstances are necessarily different. Accordingly, we hold that the trial court properly admitted the hospital blood test results into evidence.

IV

Admission of Statements

The defendant next claims that the trial court improperly admitted testimony of Dostanko and Módica concerning the defendant’s admissions to them that he was the operator of the car. The testimony of Dostanko and Módica was significant because it was unclear from the accident scene whether it was the defendant or Hinds who had been operating the car. The car had gone out of control and skidded across the highway, crashing three times into metal guardrails before apparently rolling over and finally coming to rest on a grassy embankment off the road. When Dostanko arrived at the scene, the defendant and Hinds were intertwined in the front seat and Dostanko could not tell which of them had been operating the car.

After the defendant and Hinds were taken to the hospital for treatment, Dostanko spoke to them separately in an attempt to find out who had been driving. The defendant was asked first and denied being the driver. Dostanko then asked Hinds and he responded that the defendant was driving. Dostanko went back to the defendant and informed him of Hinds’ response. The defendant replied, “All right, I was [expletive deleted] driving.” Later, the defendant also told Mód-ica that he was the driver. The statements were admitted at trial through the testimony of Dostanko and Módica.

A

The defendant first argues that his statements were improperly admitted because they were the product of police interrogation and he was not advised of his Miranda rights. We do not agree. Miranda requirements are not necessary unless the defendant (1) is in the custody of law enforcement officials and (2) is subjected to interrogation. State v. Copeland, 205 Conn. 201, 530 A.2d 603 (1987). In the present case, the defendant was not in custody when the statements were made.

At the accident scene, the defendant was obstreperous, combative and appeared intoxicated. The defendant exhibited obvious injuries and was classified as a trauma patient by the emergency medical technicians. As he was being extricated from the car, the defendant argued with the emergency workers and tried to remove the neck brace and restraining belt that were attached to the body board used to remove him from the car. He continued to be combative and an emergency medical technician requested help from Dostanko, who shouted at the defendant to let the medical technicians look at him and do their job. The defendant continued to resist treatment aggressively in the ambulance and at the hospital.

The defendant contends that Dostanko’s order to the defendant as he was brought to the ambulance constituted placing him in custody. We do not agree. He was not physically restrained by Dostanko at the time nor did Dostanko or any other officer remain with him so as to create the appearance that he was not free to leave. After the defendant was put into the ambulance, Dostanko drove to the hospital to continue his investigation.

At the hospital, Dostanko was in the defendant’s presence only sporadically and testified that he did not prevent the defendant from leaving or from doing anything else. The defendant, however, claims that the hospital personnel would not let him leave because he needed treatment and that this is the functional equivalent of police custody. The defendant cites no authority, nor are we aware of any, for the proposition that hospital emergency room personnel’s refusal to allow a patient to leave because he needs medical treatment constitutes police custody. In United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985), the court held that Miranda warnings were not required where police officers went to the hospital to question the defendant when the officers did nothing to bring about or to extend his hospitalization. Similarly, in the present case, Dostanko did not bring about or extend the defendant’s hospitalization against his will and was not involved in his medical treatment.

The trial court properly ruled that Miranda warnings were not required because the defendant was not in custody. In view of this conclusion, it is not necessary for us to consider the question of whether the defendant was subjected to interrogation.

B

The defendant’s second objection to the admissibility of his statements that he was the operator is that there was insufficient corroborative evidence to support their admission under the corpus delicti rule. We are not persuaded.

“The corpus delicti rule is fundamental jurisprudence to the effect that a person accused of a crime cannot be convicted solely on his own naked confession unsupported by corroborative evidence. . . . The purpose of the corpus delicti rule is to prevent convictions for nonexistent crimes based on untrue confessions. . . . Accordingly, before the state may introduce a defendant’s confession into evidence, the state must introduce corroborative evidence, direct or circumstantial, that taken together with the confession, establishes the corpus delicti.” (Citations omitted.) State v. Kari, 26 Conn. App. 286, 289, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992).

In Connecticut, the corpus delicti rule has two distinct formulations. First, where the crime charged encompasses a specific kind of loss or injury, the state may make use of a defendant’s admission at trial only if it proves, with sufficient corroborating evidence, the existence of that specific injury or loss. State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). The state does not have to prove the criminality of the underlying loss or injury as an element of the corpus delicti under this formulation. Id. Second, where the crime charged, however, prohibits certain conduct but does not require a specific harm, the state need introduce only substantial independent evidence that would tend to establish the trustworthiness of the defendant’s confession. State v. Harris, 215 Conn. 189, 194-95, 575 A.2d 223 (1990).

In the present case, each of the two formulations is implicated. The defendant’s conviction of assault in the second degree with a motor vehicle in violation of § 53a-60d is governed by the Tillman formulation. The elements of this crime include proof that a person, while operating under the influence, caused serious bodily injury to a third person. Assault in the second degree, therefore, requires a specific harm, “serious bodily injury.” There can be no doubt as to the existence of serious bodily injury to a third party in the present case in light of the state’s evidence that the passenger in the defendant’s car suffered paraplegia as a result of the accident.

The defendant’s conviction of operating a motor vehicle under the influence of liquor in violation of § 14-227a involves the Harris formulation because that section prohibits conduct, namely operating a motor vehicle under the influence of liquor or drugs. Consequently, the defendant’s confession that he was the driver of the vehicle could be admitted as evidence at trial only if the state produced substantial extrinsic evidence tending to demonstrate that the statements of the accused were “true,” i.e., trustworthy. Id.

The state satisfied that burden. The essential facts admitted by the defendant regarding his operating the vehicle were sufficiently substantiated by the additional evidence that the defendant owned the motor vehicle in question and had driven the car earlier in the evening. Moreover, the officers arriving at the accident scene testified that Hinds’ feet were on the passenger’s side when they arrived. Finally, the examining physician at the hospital testified that the tenderness in the defendant’s chest was consistent with an impact against the steering wheel. In light of the fact that the corroborating evidence need only fortify the “truth of the confession without independently establishing the crime charged,” it is evident that the state met its burden. Id., 194; see also State v. Comollo, 21 Conn. App. 210, 572 A.2d 1037, cert. denied, 215 Conn. 811, 576 A.2d 542 (1990).

Accordingly, we hold that the trial court properly admitted the defendant’s admission into evidence.

V

Search Warrant Hearsay

The defendant next claims that the trial court improperly admitted the affidavits supporting the search warrant into evidence. The hospital blood test provisions of General Statutes § 14-227a (l); see part III; establish, inter alia, a condition precedent to admission of hospital blood test results that the judge issue a search warrant authorizing the seizure of the test results. To show compliance with this requirement, the state offered the search warrant and accompanying affidavit used to obtain the hospital tests results. The defendant objected because the affidavit contained hearsay statements that the defendant was the vehicle operator. The court overruled the objection, admitted the complete search and seizure warrant and gave a particularly good explanation and instruction to the jury concerning the limited purpose for which the warrant was being admitted. A similar limiting instruction was included in the jury charge at the close of evidence. We presume that the jury followed the court’s instruction. State v. Reddick, supra, 454. Thus, we conclude that the trial court properly admitted the search warrant and accompanying affidavit into evidence.

Furthermore, because this is not a constitutional issue, but solely a claim of evidentiary error, the defendant bears the burden of establishing that it was harmful; State v. Williams, 30 Conn. App. 654, 656, 621 A.2d 1365 (1993); State v. Nelson, 17 Conn. App. 556, 568, 555 A.2d 426 (1989); and that it is more probable than not that the claimed error affected the verdict. State v. Robinson, 213 Conn. 243, 259, 567 A.2d 1173 (1989). Here, other evidence that the defendant was the operator had already come into the case. “It is well established that a judgment need not be reversed merely because inadmissible evidence to the same effect has also been placed before the jury.” State v. Williams, supra. In the present case, therefore, the defendant cannot establish that he was harmed by the trial court’s ruling.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60d (a) provides: “A person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes serious physical injury to another person as a consequence of the effect of such liquor or drug.”

       General Statutes § 14-227a (a) provides in pertinent part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundreths of one per cent or more of alcohol, by weight.”

       The passenger is confined to a wheelchair and has no control of bodily functions below his waist.

       Practice Book § 623 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in his discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.” (Emphasis added.)

       Practice Book § 624 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.” (Emphasis added.)

       In nonjury trials, jeopardy attaches when the first witness is sworn. Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1974).

       But see State v. Roy, 182 Conn. 382, 438 A.2d 128 (1980), in which Connecticut disallowed a double jeopardy claim on the ground of manifest necessity after a jury had been sworn but no evidence taken.

       General Statutes § 54-56d provides in pertinent part: “(a) competency required, definition. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.
      “(b) presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.”

       In making its ruling, the trial court stated: “I’m not satisfied that there has been an adequate showing that a [General Statutes] § 54-56d examination is appropriate. He seems to understand the charges. He understands the penalty that he’s facing. He understands there was a plea bargain. He rejects the plea bargain apparently which, of course, is his right under our procedure. And I think as far as I can determine he is able to proceed with the case. The request for a § 54-56d examination is denied.”

       General Statutes § 14-227a (c) provides: “admissibility op chemical analysis. Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided: (1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the department of health services and was performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the commissioner of health services. If a blood test is taken, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical technician II or a registered nurse; (4) the device used for such test was checked for accuracy immediately before and after such test was performed by a person certified by the department of health services; (5) an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed, provided however the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented which demonstrates that the test results and the analysis thereof accurately reflect the blood alcohol content at the time of the alleged offense.”

       General Statutes § 14-227a (e) provides: “certification of methods and types of chemical tests. The commissioner of health services shall ascertain the reliability of each method and type of device offered for chemical testing purposes of blood, of breath and of urine and certify those methods and types which he finds suitable for use in testing blood, in testing breath and in testing urine in this state. He shall adopt regulations governing the conduct of chemical tests, the operation and use of chemical test devices and the training, certification and annual recertification of operators of such devices as he finds necessary to protect the health and safety of persons who submit to chemical tests and to insure reasonable accuracy in testing results.”

       Sections 14-227a-l through 14-227a-9 of the Regulations of Connecticut State Agencies regulate the chemical analysis of blood for alcohol “when the results thereof may be offered as evidence in a court of law with respect to persons alleged or suspected to have been under the influence of intoxicating liquor while operating a motor vehicle.” Regs., Conn. State Agencies § 14-227a-2.

       See footnote 10, supra.

       General Statutes § 14-227a (1) provides: “seizure and admissibility OF CHEMICAL ANALYSIS OF HOSPITAL BLOOD SAMPLE OF INJURED OPERATOR. Notwithstanding the provisions of subsection (c) of this section, evidence respecting the amount of alcohol or drug in the blood of an operator of a motor vehicle involved in an accident who has suffered or allegedly suffered physical injury in such accident, which evidence is derived from a chemical analysis of a blood sample taken from such person at a hospital after such accident, shall be competent evidence to establish probable cause for the arrest by warrant of such person for a violation of subsection (a) of this section and shall be admissible and competent in any subsequent prosecution thereof if: (1) The blood sample was taken in the regular course of business of the hospital for the diagnosis and treatment of such injury; (2) the blood sample was taken by a person licensed to practice medicine in this state, a resident physician or intern in any hospital in this state, a qualified laboratory technician, an emergency technician II or a registered nurse; (3) a police officer has demonstrated to the satisfaction of a judge of the superior court that such officer has reason to believe that such person was operating a motor vehicle while under the influence of intoxicating liquor or drug or both and that the chemical analysis of such blood sample constitutes evidence of the commission of the offense of operating a motor vehicle while under the influence of intoxicating liquor or drug or both in violation of subsection (a) of this section; and (4) such judge has issued a search warrant in accordance with section 54-33a authorizing the seizure of the chemical analysis of such blood sample. ” (Emphasis added.)

       The defendant raises this equal protection claim under article first, § 20, of the constitution of Connecticut and the fourteenth amendment of the United States constitution. Because the equal protection provisions of the federal and state constitutions have the same meaning and limitations in the context of this claim, we will discuss the defendant’s claim under both provisions simultaneously. See Franklin v. Berger, 211 Conn. 591, 594 n.5, 560 A.2d 444 (1989).

       See footnote 10, supra.

       See footnote 14, supra.

       The constitution of Connecticut, article first, § 20, as amended, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”

       The constitution of the United States, amendment fourteen, § 1, provides: “All persons bom 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 equal protection of the laws.”

        Miranda v. Arizona, 348 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       At the time the warrant was admitted, the trial court instructed the jury as follows: “[Ljadies and gentlemen, this exhibit is being admitted pursuant to a statute that requires that when a chemical analysis of blood sample is taken of an injured operator of a motor vehicle at the hospital in connection with the treatment of that person for injuries sustained in the accident, that certain procedures be followed, one of which is that the result of any such blood sample be seized after a search warrant has been signed by a judge and, specifically, a police officer has demonstrated to the satisfaction of a judge of the Superior Court that such officer has reason to believe that such person was operating a motor vehicle while under the influence of intoxicating liquor. It is introduced to show compliance with that statute. It is not being introduced for the truth of the statements contained therein. It is limited only to show compliance with the statute and not for the truth contained in any of the statements that are contained therein. . . . This goes to the first count of operating under the influence only.”

       The trial court charged the jury as follows: “Now with respect to the limiting instruction that I referred to earlier, you will recall that exhibit fourteen which you will have with you in your deliberation room is the search warrant application. That search warrant application, exhibit fourteen, is not proof of guilt. It was introduced solely to satisfy our laws concerning the compliance with the statutes before a hospital blood test can be introduced into evidence.”


author: Landau, J.

text:
    Joseph L. Lynch et al. v. Granby Holdings, Inc. Granby Holdings, Inc. v. Daniel L. Lynch
    (11222)
    O’Connell, Landau and Freedman, Js.
    Argued June 8
    decision released August 17, 1993

      Timothy Brignole, for the appellant-appellee (plaintiff Daniel Lynch, plaintiff in the first case, defendant in the second case).

      Eliot B. Gersten, with whom, on the brief, was Andrea A. Hewitt, for the appellee-appellant (named defendant in the first case, plaintiff in the second case).
   Landau, J.

This appeal and cross appeal arise out of two actions concerning a lease agreement between the parties. On appeal, Daniel Lynch, doing business as D.L. Lynch Associates (Lynch), claims that the trial court improperly (1) charged the jury on the doctrine of mitigation of damages, resulting in a verdict in favor of Lynch but awarding him zero damages, (2) charged the jury on the amount of damages Lynch claimed in his action against Granby Holdings, Inc., and the amount of damages he claimed in defense of Granby Holdings’ action against him for breach of lease, (3) refused to admit evidence of Granby Holdings’ failure to obtain a certificate of occupancy for the premises to show that it established a pattern of dealings between Granby Holdings and the town of Granby, and (4) refused to admit evidence of Granby Holdings’ failure to obtain a certificate of occupancy for Lynch’s use as a defense to Granby Holdings’ action against him for breach of the lease agreement. On the cross appeal, Granby Holdings claims that the trial court improperly (1) admitted evidence of settlement negotiations and compromise discussions and (2) denied its motion for a directed verdict against the plaintiffs Joseph Lynch and Joan Lynch, doing business as The Sun Capsule (hereafter The Sun Capsule). See footnote 1. We reverse the judgment of the trial court on Lynch’s breach of lease action against Granby Holdings and affirm the judgment of the trial court in all other respects.

I

The Appeal

The following facts are relevant to this appeal. Lynch owned a real estate brokerage firm named D. L. Lynch Associates. Lynch decided to open an office in the town of Granby and entered into negotiations with Granby Holdings in an effort to lease space in a shopping plaza owned by Granby Holdings. On March 19,1987, Lynch and Granby Holdings entered into a written lease agreement for the rental of 2500 square feet of space in Granby Holdings’ shopping plaza. The lease agreement provided that Lynch could assign or sublet all or any part of the premises, subject to certain restrictions and agreements. In October, 1987, Lynch sublet 1250 square feet of his space to his parents, Joseph and Joan Lynch, for the establishment of The Sun Capsule, a suntanning business. As part of the original lease agreement, Granby Holdings agreed to perform certain minor construction work in the event of such sublease.

After entering into the sublease agreement, The Sun Capsule contracted to have a sign made for its business. Lynch showed a representative of Granby Holdings where The Sun Capsule’s sign would be located, and he had no objection. After the sign was placed on the building, the town notified The Sun Capsule that the sign had to be removed because its placement caused the total sign area for the building to exceed town regulations. The Sun Capsule removed the sign. Lynch and Granby Holdings discussed the various alternatives available to the parties to allow for the construction of some type of sign for The Sun Capsule. None of these alternatives, however, was successful. The Sun Capsule paid rent to Lynch from November, 1987, until February, 1988. Lynch continued to pay rent for the entire 2500 square foot space until December 1,1989. The Sun Capsule vacated the sublet premises on December, 1989.

On November 3, 1988, Lynch and The Sun Capsule filed a complaint alleging that Granby Holdings (1) breached its lease and the sublease by failing to provide the necessary sign space to allow the installation of The Sun Capsule sign, (2) negligently misrepresented to The Sun Capsule the amount of sign space available to it, (3) negligently misrepresented to Lynch the amount of sign space available to his subtenant, and (4) breached its lease agreement with Lynch by failing to provide the necessary agreed upon sign space for Lynch and his subtenant. On April 27, 1990, Granby Holdings filed a complaint against Lynch for breach of the lease agreement for failure to pay rent.

After a trial before a jury, the jury found in favor of Granby Holdings on the breach of lease count brought by The Sun Capsule, in favor of The Sun Capsule on the breach of oral agreement and, in the negligent misrepresentation counts, against Granby Holdings and awarded $12,409 in damages. On the fourth count, for breach of lease brought by Lynch against Granby Holdings, the jury found in favor of Lynch but awarded zero damages.

On the complaint by Granby Holdings against Lynch for breach of the lease agreement for failure to pay rent, the jury found in favor of Granby Holdings and awarded damages in the amount of $35,911.30.

A

Lynch first claims that the trial court improperly instructed the jury on the doctrine of mitigation of damages. Because the jury’s award of damages was improper, however, we reverse and do not directly address this claim.

“On appeal, the conclusion of the trial court from the vantage point of the trial bench cannot be disturbed unless there is a clear abuse of discretion. . . . An appellate court cannot retry the facts of a case or pass upon the credibility of the witnesses. . . . However, it is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. ... In determining whether a verdict does such injustice, the only practical test is whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. . . . A direct showing of partiality, prejudice, mistake or corruption is not required. [I]f the amount awarded shocks the sense of justice as to what is reasonable, then the inferred conclusion is that the jury was misguided in reaching its decision. . . .” (Citations omitted; internal quotation marks omitted.) Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988).

Our courts have held that “where the plaintiffs are entitled to recover damages for their injuries, an award limited to nominal or special damages is ‘manifestly inadequate’ and should be set aside, ‘for the same rule governs upon an application for a new trial in the case of an inadequate award as in the case of an excessive award.’ ” Id., 681. “An explicitly stated award of zero damages differs from an award of nominal damages. A plaintiff’s verdict with a nominal damage award ordinarily suggests that the jury found that despite the defendant’s liability, the plaintiff failed to prove damages. . . . The jury’s intent in rendering a plaintiff’s verdict with zero damages . . . is far less clear.” (Citations omitted; emphasis in original.) Id., 681-82.

In Malmberg, our Supreme Court held that “[wjhere liability is strongly contested and the award of damages is clearly inadequate if liability were proven . . . an appellate court cannot infer from the jury verdict alone whether the jury were confused about the proper measure of damages or whether they were confused about the proper rules for determining liability, or both. . . . [WJhere . . . liability is contested and an appellate court is unable to infer whether upon a new trial a jury would find in favor of the defendant or in favor of the plaintiff an appellate court must remand the case for a trial on all issues.” (Citation omitted; internal quotation marks omitted.) Id., 682, quoting Freshwater v. Booth, 160 W. Va. 156, 160-62, 233 S.E.2d 312 (1977).

Here, a third factor is present. We are unable to glean from the jury’s verdict whether they were confused about liability, about damages, about the mitigation damages, or all three. Therefore, the jury’s award of zero damages is improper and must be vacated.

B

Lynch next claims that the trial court improperly charged the jury on the amount of damages he claimed in his action against Granby Holdings for breach of lease and in Granby Holdings’ action against him for breach of lease. We disagree.

“A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The charge is to be read as a whole, with the instructions claimed to be improper read in that context. . . . A reviewing court does not critically dissect the charge to discover possible inaccuracies. . . . The test to determine if a jury charge is proper is whether ‘ “it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” ’ ” (Citations omitted.) Lemonious v. Burns, 27 Conn. App. 734, 739-40, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 823 (1992).

Our full and independent review of the entire jury instruction discloses that the court’s charge with respect to the damages claimed by Lynch was not improper. At trial, Lynch testified that he was entitled to damages in the amount of $7700 for failure of Granby Holdings to provide space for a sign, taking into consideration his failure to pay rent while occupying the space. He later corrected himself to state that the correct figure was only $5850. In the charge, the court correctly explained the law and what Lynch was claiming. After the initial charge, at the request of Lynch, the court corrected certain figures it had given to the jury in its initial charge, and our review of that portion of the charge leads us to the conclusion that the charge was “correct in law, adapted to the issues and sufficient for the guidance of the jury.” Id., 740. “We will not examine a jury charge with [a] legal microscope. . . . The day has long passed when reviewing courts are to be considered citadels of technicality.” (Citation omitted; internal quotation marks omitted.) Id., 741. We conclude that the charge was correct and, therefore, Lynch’s claim must fail.

C

Lynch next claims that the trial court improperly refused to admit evidence, on the basis of relevance, of Granby Holdings’ failure to obtain a certificate of occupancy for the premises to show that it established a pattern of dealings between Granby Holdings and the town of Granby. We disagree.

“Questions of relevance must be determined in each case by reliance on reason and judicial experience as no exact test of relevancy is found in the law. . . . Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. ... A fact is relevant whenever its existence, either alone or in connection with other facts, makes more certain or probable the existence of another fact. . . . [A]ny fact may be proved which logically tends to aid the trier in the determination of the issue. . . . Relevant evidence is admissible if the trial court, in the exercise of its broad discretion, determines that the probative value of the evidence outweighs its prejudicial effect.” (Citations omitted; internal quotation marks omitted.) State v. Jennings, 19 Conn. App. 265, 270, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989).

The trial court determined that the main issue in this case, as formed by the pleadings, was whether the failure to provide proper sign space for the subtenants led to the demise of The Sun Capsule and the ensuing damages. The trial court also noted that nowhere in the pleadings was there alleged a breach of the lease due to the failure of Granby Holdings to obtain a certificate of occupancy for the premises. “A complaint must fairly put the defendant on notice of the claims . . . against him. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . Only those issues raised by the plaintiffs in the latest complaint can be tried before the jury.” (Citations omitted.) Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557-58, 525 A.2d 954 (1987). On this basis, the trial court refused to allow the evidence. We cannot say that the refusal was an abuse of the trial court’s broad discretion on evidentiary rulings, and this claim fails.

II

The Cross Appeal

Granby Holdings’ first claim on the cross appeal is that the trial court improperly admitted evidence of alleged settlement negotiations and compromise discussions. We disagree.

The following additional facts are necessary for the resolution of this claim. After the sign for The Sun Capsule had been installed and the town had ordered that it be removed for violating town regulations, the parties discussed several ways to correct the problem. These included various interior signs and the construction of an interior glass wall partition in Lynch’s real estate office to allow a sign to be installed that was visible from the parking lot. Granby Holdings began to build that wall and the town objected and ordered that construction be stopped. The parties also discussed reducing Lynch’s sign by one-half to allow The Sun Capsule to use the other half. These efforts were ultimately unavailing and The Sun Capsule eventually shut its doors.

At trial, The Sun Capsule introduced testimony of these discussions and Granby Holdings objected. The trial court overruled the objection but added the caveat that the testimony could only be offered to show that the discussions to correct the problem took place, not to show that Granby Holdings took responsibility for the sign problems. Granby Holdings properly excepted to the trial court’s ruling.

“The general rule that evidence of settlement negotiations is not admissible at trial is based upon the public policy of promoting the settlement of disputes. . . . An offsetting principle holds that an admission of fact is competent evidence, even though the admission was made in settlement negotiations, where the statement was intended to state a fact .... The test is whether the party making the admission intended to concede a fact hypothetically for the purpose of effecting a compromise, or to declare a fact really to exist. ... If it is unclear whether the statement of a declarant was intended to promote the negotiation of a settlement or to constitute a factual admission of liability, the statement is inadmissible.” (Citations omitted; internal quotation marks omitted.) Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194,198-99, 602 A.2d 1011 (1992).

Here, the court heard the objections of Granby Holdings regarding this evidence and made it clear to all parties that the court was allowing the evidence to show only that the parties were attempting to solve the problems regarding the sign. The trial court carefully explained that the evidence was in no way an indication that Granby Holdings assumed liability for the sign problems. In its charge to the jury, the court stated that “[ajctions taken by Granby Holdingfs] to ameliorate the losses of either Joseph or Daniel Lynch are not to be taken as admission of liability by Granby Holding[s]. The actions they took with respect to the glass wall or with respect to any other paper signs put up or whatever are not deemed to be admissions of liability by Granby Holdings.” The trial court was correct in ruling that the evidence could be admitted for the purpose of explaining the fact that the parties took steps to correct the sign problems, and that this evidence was not to be construed as an admission of liability. Granby Holdings’ claim fails.

Granby Holdings’ second claim is that the trial court improperly denied its motion for a directed verdict. That motion claimed that The Sun Capsule failed to prove that the losses sustained by The Sun Capsule were proximately caused by the failure of Granby Holdings to provide space for a sign. We disagree.

“Our review of the trial court’s refusal to direct a verdict is limited. [W]e view the evidence in the light most favorable to the plaintiff. ... A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in [a verdict for the defendant] ... or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . When a jury has returned a verdict and the trial court has refused to set it aside, [t]he court’s decision will be upheld on appeal if, from the evidence presented, the jury could reasonably have concluded as it did.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Norwalk, 28 Conn. App. 449, 452, 612 A.2d 114 (1992).

Here, The Sun Capsule had the burden to prove that there was a breach of an oral agreement by Granby Holdings regarding the availability of sign space and that Granby Holdings negligently misrepresented that the sign could, in fact, be installed. At trial, The Sun Capsule presented evidence that could lead a jury reasonably to conclude that Granby Holdings told the lessees that they could place a sign for The Sun Capsule on the premises. The Sun Capsule also presented evidence, in the form of testimony that Granby Holdings did not object to the placing of the sign when the parties had discussions specifically directed to that topic, that could lead a jury reasonably to conclude as it did. Further, Lynch presented evidence of damages from the failure of The Sun Capsule, in the form of lost revenues and profits, that would reasonably support the jury’s verdict on damages. “On the basis of our review of the record, we cannot find that the jury’s determination was clearly erroneous.” Id., 455.

On the appeal, the judgment in the first case is reversed as to the plaintiff Daniel Lynch’s claim for breach of lease only and that case is remanded for a new trial.

In this opinion the other judges concurred.

       The plaintiffs Joseph Lynch and Joan Lynch, doing business as The Sun Capsule, prevailed at trial on counts two and three and were awarded damages in the amount of $12,409, but the damages were not separated as to the individual counts. We do not, by reviewing the claims on the cross appeal, imply approval of the use of this form of verdict.

       The second part of this claim is part of Lynch’s defense in Granby Holdings’ action against Lynch. While our resolution of the first issue in favor of Lynch would normally dispose of this claim, we must address it to resolve Lynch’s defense of Granby Holdings’ action against him.

       See footnote 2.

       Lynch also claims that the trial court improperly refused to allow this evidence in defense of Granby Holdings’ action against him for breach of the lease for failure to pay rent. For the reasons stated above, the trial court’s refusal to allow the evidence for those purposes was not an abuse of discretion.