text:
    Janice Marsh v. Henry Washburn
    (4759)
    Hull, Spallone and Bieluch, Js.

      Argued March 12
    decision released July 7, 1987

      Van A. Starkweather, with whom were Paul B. Groobert and, on the brief, Frederick Murolo, for the appellant (plaintiff).

      David J. Elliott, for the appellee (defendant).
   Spallone, J.

The plaintiff is appealing from the judgment rendered by the trial court after a jury returned a defendant’s verdict. The plaintiff, in a broad-based attack upon the conduct of the trial judge, claims that the court erred (1) in improperly allowing the defendant to attack the credibility of the plaintiff by suggesting she had committed welfare fraud and then in giving a curative instruction specifically intended to lend credence to the accusation, (2) in assuming the role of advocate in its charge to the jury and by instructing the jury to disregard that part of the plaintiff’s closing argument concerning the credibility of an investigating police officer, (3) in allowing a police officer to reconstruct the accident by way of opinion testimony and in admitting an accident reconstruction diagram prepared by him, (4) in allowing defense counsel to examine the plaintiff’s passenger as to her claim against the plaintiff’s insurance company while precluding the plaintiff’s counsel from inquiring as to her reasons for this claim, and in refusing to charge the jury properly as to the evidence on this matter, (5) in allowing the defendant to impeach the plaintiff’s credibility through the use of a prior withdrawn claim for lost earning capacity and in instructing the jury that they could consider the withdrawn claim as a prior inconsistent statement, (6) in instructing the jury on driving while intoxicated or impaired when there was insufficient evidence to support such a charge, (7) in instructing the jury on reckless driving when there was insufficient evidence in the record to support such a charge, (8) in instructing the jury that the plaintiff’s failure to file a motor accident report was an admission, (9) in refusing to charge the jury that if the defendant had not used reasonable care to avoid the accident, then the jury could find for the plaintiff, and (10) in admitting into evidence the defendant’s self-serving statement to the police, in refusing the plaintiff’s request that the jury-disregard the statement, and in charging the jury to consider the statement as a prior consistent statement. We find no error.

The jury could have reasonably found the following facts. During the early morning hours of June 3,1981, the defendant was operating his 1978 Chevrolet pickup truck in a westerly direction on Burnside Avenue in East Hartford. At the area where the accident occurred, Burnside Avenue consists of four lanes, two traveling in an eastbound direction and two in a westbound direction. The lanes are divided in the center of the roadway by a double yellow line, with the two lanes in each half of the roadway further subdivided into two distinct lanes of travel by a single broken white line. Just prior to the point of collision, the defendant was operating his vehicle in the farthest right hand or northerly lane of the westbound portion of Burnside Avenue closest to the right shoulder of the road. The plaintiff was driving her vehicle easterly from the opposite direction.

Burnside Avenue curves sharply at the point where the accident occurred. The vehicle driven by the plaintiff, a 1966 Volkswagen, moving at an excessive rate of speed, suddenly crossed the center line of Burnside Avenue and continued into the farthest westbound lane of travel, where the defendant was operating his vehicle, and struck the defendant’s vehicle approximately in the center of the most northern, westbound lane of travel. The defendant never left the farthest right hand lane in which he was traveling and the vehicles came to rest at the point of impact. The plaintiff’s high rate of speed precluded the defendant from taking evasive action. He had no time to blow his horn or to turn the steering wheel between the time he observed the plaintiff’s car and the time of the impact.

Subsequently, the plaintiff brought suit against the defendant claiming damages for personal injuries arising out of the accident. The defendant filed his answer denying the material allegations of the complaint and alleging two special defenses. The first of these alleged that the plaintiff had impaired her facilities by consuming alcohol on the evening of the accident, which consumption substantially contributed to her damages, and the second alleged that the plaintiff was guilty of contributory negligence on various statutory and common law grounds. The plaintiff denied the special defenses and claimed the case to a jury. During the four day trial that ensued, the plaintiff, with the permission of the court, filed an amended complaint withdrawing certain claims for damages that had been made in the original complaint. The case went to the jury, which, after deliberating approximately twenty-seven minutes, returned a defendant’s verdict. The plaintiff’s motion to set aside the verdict was denied and this appeal followed.

The plaintiff’s first claim of error alleges that the court improperly permitted the defendant to attempt to impeach her testimony by suggesting that she had committed welfare fraud. The plaintiff further alleges that the court’s curative instructions were inadequate. We disagree.

During cross-examination of the plaintiff, the defendant inquired whether the man, with whom the plaintiff testified she had been living for the ten year period previous to the accident, had been contributing during this period to her and her children’s support. The plaintiff initially responded that she and this individual were sharing expenses for most of their relationship, but then added that such was the case “only after I got off of welfare.” After this response, the defendant inquired whether the plaintiff had advised the department of welfare in writing that the plaintiff’s companion was contributing to her expenses and if she did, whether the welfare department permitted her to continue to receive welfare payments. The trial court, over the plaintiff’s objection, permitted such questions, ruling that a witness may be impeached by revealing specific acts of misconduct if the misconduct relates to the plaintiff’s truthfulness and veracity. The plaintiff then testified that she did in fact advise the department of welfare of her relationship with her companion, and counsel for the defendant asked no further questions on this subject. The next trial day, the court found that counsel for the defendant acted in good faith when he inquired of the plaintiff with regard to the department of welfare. The court immediately thereafter gave a curative instruction to the jury and later in its charge to the jury gave an additional curative instruction which, in essence, cautioned the jury not to draw any negative inferences of misconduct on the part of the plaintiff.

“It is beyond dispute that a witness may be impeached by specific acts of misconduct which relate to veracity, but not those that merely illustrate general bad behavior.” State v. Horton, 8 Conn. App. 376, 380, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986); see also State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986); State v. Roma, 199 Conn. 110, 116-17, 505 A.2d 717 (1986). In this case, the original reference to being on welfare was volunteered by the plaintiff. The minimal questioning of the plaintiff by counsel in response to this answer was a permissible attempt by counsel to impeach the witness’ veracity, an attempt that the court found to be made in good faith. When the plaintiff denied making any misrepresentations to the welfare department regarding her companion’s contributions to her support, the defendant made no attempt to introduce extrinsic evidence on this matter. State v. Horton, supra, 380-81. We find no error in the trial court’s refusal to sustain the plaintiff’s objection to the defendant’s question on this matter. Furthermore, the court's curative instruction properly stated the law. There is no merit to the plaintiff’s first claim of error.

In her second claim, the plaintiff asserts that the trial court erred in commenting on the plaintiff’s categorization of the character of Officer Richard Maloney of the East Hartford police department, who had investigated the accident. During his final argument to the jury, the plaintiff’s counsel stated, “I was feeling like this [police officer] wanted to bury the plaintiff.” In its charge to the jury, the court stated, “these assertions were not substantiated by the evidence, so you should not give them serious consideration.” The court continued its charge by stating, “You are, of course, free to accept or reject, in whole or in part, Officer Maloney’s testimony, but you should do this based on those standards of credibility that I have instructed you upon and also based upon the evidence that was presented to you.”

Our reading of the transcript reveals that the comments made by the trial court were appropriate in the light of the nature of plaintiff’s counsel’s assertions as to the motivations behind the police officer’s testimony. The trial court occupies a unique position in the trial of a case; the court is not simply a neutral observer of a forensic contest, but has an obligation to see that justice is done. The court may, in its discretion, call the attention of the jury to the evidence or lack of evidence on any point in issue and comment on the weight of the evidence as long as the court does not advise or direct the jury how to decide the case. State v. Hines, 187 Conn. 199, 210, 445 A.2d 314 (1982); State v. DeMatteo, 186 Conn. 696, 705, 443 A.2d 915 (1982). We find no error in the court’s charge with regard to the investigating police officer.

In her third claim of error, the plaintiff asserts that the court erred in admitting into evidence a diagram of the scene of the accident prepared by Maloney and in allowing the officer to “reconstruct” the accident to the jury. The plaintiff characterizes the diagram drawn by Maloney as an “accident reconstruction diagram,” and asserts that the diagram should not have been admitted into evidence because the police officer had no special training or expertise as an accident reconstruction expert.

The trial court acted properly in admitting the diagram, not as an “accident reconstruction diagram,” but as a field diagram drawn by the officer at the scene depicting his visual observations of the scene along with his inference as to the direction of travel of the plaintiffs vehicle. The diagram set forth what his investigation revealed: the location of glass, debris and skid marks, the approximate point of impact, the resting location of the vehicles, measurements from pertinent reference points, and the path taken by the plaintiffs vehicle. Furthermore, Maloney testified that he was a member of the East Hartford Police Department for sixteen years (twelve at the time of the accident), had graduated from the Connecticut Municipal Police Academy, and taken specific courses in investigation and investigation of traffic accidents, and had investigated hundreds of motor vehicle accidents personally during his tenure with the East Hartford Police Department. It is largely a matter of judicial discretion whether a witness has been shown to have sufficient experience and opportunity to render an opinion of value. If reasonable qualifications can be established, any objection goes to the weight rather than the admissibility of the evidence. Waldron v. Raccio, 166 Conn. 608, 613, 353 A.2d 770 (1974); see also Going v. Pagani, 172 Conn. 29, 31-32, 372 A.2d 516 (1976). We cannot say that the trial court abused its discretion in allowing into evidence the diagram prepared by Maloney and allowing the officer to explain the results of his investigation. See Liskiewicz v. LeBlanc, 5 Conn. App. 136, 139-40, 497 A.2d 86 (1985); Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 669-70, 482 A.2d 91 (1984).

In her fourth claim of error, the plaintiff asserts that the court erred in allowing the defendant to elicit certain testimony on cross-examination from Nancy Johnson, a passenger in the plaintiffs vehicle, who was injured in the accident. Over the plaintiffs objection, Johnson testified on cross-examination that she had made a claim for injuries against the plaintiffs representative but not against the defendant. The plaintiff argues that such cross-examination was improper because it revealed evidence of an offer of compromise with a third party.

There is no merit to this contention. In her direct examination, Johnson testified that she had observed the plaintiffs demeanor prior to the accident and observed nothing in her behavior to indicate that the plaintiff had been affected by drinking. She further testified that, prior to the impact, she observed nothing unusual about the plaintiffs operation of the motor vehicle. The obvious intent of this testimony was for Johnson to suggest that the plaintiff was properly operating her vehicle and was not at fault for the accident. On cross-examination, she testified that she received broken bones, an injured knee, 180 stitches in the head, and that she was still disabled as a result of the accident. The defendant thereafter elicited testimony that Johnson had made a claim for her injuries against the plaintiffs representative, but not against the defendant. The apparent purpose of this questioning was not, as the plaintiff claims, to elicit evidence of an offer of compromise with a third party, but to impeach Johnson’s credibility by revealing conduct that was inconsistent with her suggestion that the plaintiff had properly operated her vehicle on the night of the accident. The defendant has every right on cross-examination to discredit testimony when he can show, as in this case, that the action taken by the witness was inconsistent with testimony given on direct examination. A witness can be impeached by proof of inconsistent testimony or conduct which is contrary to the witness’ direct testimony. See C. Tait & J. LaPlante, Connecticut Evidence § 7.24 (1976). Inconsistent positions may be shown by conduct as well as by statements. See id.; Weller v. Fish Transport Co., 123 Conn. 49, 56-57, 192 A. 317 (1937); Davidson v. O’Connell, 114 Conn. 116, 125, 158 A. 207 (1932); see also State v. Ghere, 201 Conn. 289, 300-305, 513 A.2d 1226 (1986). The trial court did not err in allowing cross-examination of the plaintiffs witness to show conduct inconsistent with her testimony.

In her fifth claim, the plaintiff contends that the court erred in allowing the defendant to impeach the plaintiffs credibility through the use of a prior withdrawn claim for lost earning capacity and in instructing the jury that it could contrast the plaintiffs present and withdrawn claims. During the trial, the plaintiff filed an amended complaint withdrawing her previous claim for lost wages. On cross-examination, the plaintiff responded to the defendant’s questions about this withdrawal by stating that “on further thought we’ve decided that [the plaintiff’s earning capacity] wasn’t really [impaired]” and “on second thought it was not valid.” The plaintiff claims the court erred in allowing such cross-examination and in instructing the jury that it could contrast the allegations of the complaints. We disagree.

Where statements have been withdrawn from complaints, such statements are admissible into evidence as evidentiary admissions of the party who filed the pleadings, just as would any extra judicial statements of the same import. This rule is long established. See Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985), and cases cited therein. There is no merit to this claim of error.

The plaintiff’s sixth and seventh claims of error are based upon the alleged insufficiency of the evidence to warrant the court’s charge to the jury on driving while intoxicated or impaired and reckless driving. There was testimony that the plaintiff had been drinking prior to the accident, that she was operating her vehicle “very fast” and at an inappropriately high speed considering the road conditions, and that she lost control of her vehicle, crossed over the center line and collided with the defendant’s vehicle. This evidence was sufficient to justify a charge on impairment or intoxication; see Way v. Pavent, 179 Conn. 377, 379-80, 426 A.2d 780 (1979); Higgins v. Champ, 161 Conn. 200, 203, 286 A.2d 313 (1971); and reckless driving; Fleming v. Becker, 162 Conn. 563, 565, 295 A.2d 524 (1972); State v. Mahalik, 22 Conn. Sup. 400, 403, 173 A.2d 897 (1961). The weight to be given to such evidence was a question for the jury. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978); Eagar v. Barron, 2 Conn. App. 468, 470-71, 480 A.2d 576 (1984).

In connection with the charge on intoxication, the plaintiff also asserts that the court misled the jury by stating, during the charge, that Maloney testified that he detected an alcoholic odor on the breath of the plaintiff at the hospital. The trial court, seems to have erred in its recollection because a review of the transcript offers no support for this statement. The court had previously admonished the jury, however, that the jury’s recollection of the evidence, not the court’s, was to be applied with respect to the evidence and the facts. See Gosselin v. Perry, 166 Conn. 152, 165, 348 A.2d 623 (1974) (misstatement by trial court can be rendered harmless by instruction that jury is to depend on its own recollection). Even if we were to assume that the court erred by misstating the evidence in its charge on impairment and intoxication, there was evidence to sustain a defendant’s verdict on the basis of the special defense alleging the plaintiff’s reckless driving. Both the intoxication and reckless driving claims were raised by the defendant as special defenses. Under the general verdict rule, where the court’s instructions to the jury are shown to be proper and adequate to any one of the defenses raised, the general verdict will stand irrespective of any error in the charge as to the others. LaFleur v. Farmington River Power Company, 187 Conn. 339, 343, 445 A.2d 924 (1982); see also Finley v. Aetna Life & Casualty, 202 Conn. 190, 202-203, 520 A.2d 208 (1987).

In her eighth claim, the plaintiff asserts that the trial court erred in instructing the jury that the plaintiffs failure to file a motor vehicle accident report, despite a statutory duty to do so, may be considered as an admission. The court charged that the failure to file an accident report may be an admission in the sense that “when the plaintiff is silent in the face of a legal duty to speak, one may infer that had she spoken it would not have helped her cause.” The plaintiff claims that the instruction was unwarranted under the circumstances of this case because the plaintiff testified that she was unaware of her statutory duty, and that without such an awareness on her part, it is improper to infer that her failure to file an accident report was motivated by a desire to withhold information harmful to her claims.

The plaintiff, however, never made this specific claim when excepting to the court’s charge. Then, she stated only that the evidence in the record was insufficient to support a charge on implied admissions. She made no reference to her ignorance of the statute, nor did she claim that her testimony rebutted any negative inference that the jury could draw from her failure to file the accident report. Exceptions to a trial court’s charge must be distinct and specific to preserve the claim. State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986); Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 244 n.4, 522 A.2d 829 (1987). “The requirement that the claim be raised ‘distinctly’ means that it must be ‘so stated as to bring to the attention of the court the precise matter on which its decision is being asked.’ (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903).” State v. Carter, supra. The purpose of the rule is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrial. State v. Callari, 194 Conn. 18, 25, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985); Shenefield v. Greenwich Hospital Assn., supra, 244 n.4. We find that the plaintiffs exception to the trial court’s charge was inadequate to alert the trial court to the specific error claimed on appeal and that the plaintiff therefore failed to preserve this claim of error. Accordingly, we decline to review this claim.

The plaintiff’s ninth claim of error, that the court erred in refusing to charge in accordance with the plaintiff’s request to charge, is without merit. The plaintiff’s request to charge on reasonable care included the following statement: “If you find that the defendant observed the plaintiff’s vehicle and impending collision with sufficient time under the exercise of reasonable care to prevent the accident by turning, braking or slowing his vehicle and that he failed to do so and that this negligence was the proximate cause of the plaintiff’s injuries, then you must find for the plaintiff.” In its charge, the court stated that both the plaintiff and defendant, as operators of a motor vehicle, were required to keep a proper lookout; that an operator of a motor vehicle could not excuse himself by saying that he did not see such other vehicles or persons; that an operator is charged not only with notice of conditions which he knows to exist but also with notice of those conditions which would have been brought to his attention had he been exercising reasonable care; that when reasonable care requires, an operator must reduce his speed or turn out to avoid a collision with other vehicles or persons on the highway; and that the jury must decide whether the plaintiff had proved that a reasonably prudent person would have applied his brakes at any earlier time than the defendant may have done in this case.

The court’s charge adequately expounded upon the respective duties of the parties to exercise reasonable care. The court is not required to charge in the exact words requested by the plaintiff if the point is fairly covered in the charge. Tomczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981). Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues. Id. We find that the charge given by the court included the essential elements of the plaintiff’s request to charge and was not erroneous.

In her final claim of error, the plaintiff contests the admission into evidence of a prior consistent statement made by the defendant. The plaintiff, after calling the defendant as a witness, attempted to impeach him by pointing out alleged discrepancies between his testimony at trial and the information contained on his motor vehicle' accident report regarding the location of the collision between the vehicles. The report was dated June 10,1981. After the report was entered into evidence by the plaintiff, the defendant offered a statement, dated June 3, 1981, given by him to the investigating officer that was consistent with his trial testimony. The trial court ruled that such a statement was admissible, not for the truth of the statement, but as bearing upon the defendant’s credibility. A trial court, in its discretion, may admit a prior consistent statement to rehabilitate a witness impeached on the basis of his own prior inconsistent statements. State v. McCarthy, 179 Conn. 1, 20-21, 425 A.2d 924 (1979); State v. Dolphin, 178 Conn. 564, 571-72, 424 A.2d 266 (1979); Thomas v. Ganezer, 137 Conn. 415, 418, 78 A.2d 539 (1951). It is incumbent upon the trial court, however, to instruct the jury that such statement is to be considered solely on the issue of the witness’ credibility. State v. Brown, 187 Conn. 602, 609-10, 447 A.2d 734 (1982). The record indicates that the court complied with this requirement.

There is no error.

In this opinion the other judges concurred.

       The court gave the following curative instruction: “I think it was two days ago, ladies and gentlemen, a series of questions, a short series of questions, I think we asked on cross-examination of Miss Marsh. . . . Mr. Elliott had asked a question on cross-examination as to whether that information has been disclosed to the Welfare Department and she had answered yes. Now, to the extent that those questions were asked and that answer was given, the Court wishes to declare to you that there was a good faith basis for asking those questions by Mr. Elliott, but the Court wants to caution you that you and I are bound by the answer. So we must accept as an unimpeachable answer her statement, Miss Marsh’s statement, that she disclosed that information to the Welfare Department and you are not to draw any negative inferences that would be unfair to Miss Marsh and would be inappropriate in view of our rules of evidence. You must not draw any inferences that Miss Marsh did other than what she testified under oath.”

       The court gave the following curative instruction in its charge to the jury: “Now, ladies and gentlemen, the fact that the plaintiff was a recipient of public assistance at the time of this accident is of no import. It is not relevant in your determining who was at fault in this accident. You will recall that the plaintiff stated that she advised the State Welfare Department that she was sharing expenses with a live-in companion. The parties and you are bound by this answer. No evidence of specific misconduct was established by this series of questions. You are not to infer any suggestion of misconduct in this matter by the plaintiff.”

       With the jury excused, counsel for the defendant represented to the court that his basis for his questioning was that “[m]y present information is that [the plaintiff] did not notify the welfare department that she was obtaining support from a third party.”

       The relevant portion of the court’s charge is as follows:
      “Now, there was evidence in this case to the effect that the plaintiff and the defendant made statements on other occasions which differ from the testimony they have given on the stand. You’re entitled to consider these statements in two respects. You’re entitled to consider that information in weighing the credibility of a party. A witness’ testimony is discredited when it appears that on another occasion she or he has made a statement inconsistent with his or her present testimony or claim.
      “Now, because the plaintiff and the defendant are parties to this case, the statements made by them are what our law terms admissions. An admission of a party to a suit made out of court is admissible as proof of the matter stated in it. In other words, if you choose to do so, you may treat the statement as proof of the facts contained therein. Such an admission may also be considered an inconsistent statement because conduct of such a party in respect to matters in dispute, whether by act, speech or writing, which is inconsistent with the thrust of any of their contentions on the witness stand is a fact relevant to the issue involved in any such contention. It is for you to determine what weight is to be given to any alleged admission. In that connection, you should consider the circumstances under which the statements were given as bearing upon the weight it is to be accorded.
      “Now in this regard you may consider the plaintiffs failure to file an accident report as an admission. Under our law, any operator of a motor vehicle involved in an automobile accident in which anyone is injured or property is damaged is under an obligation to file a written report of that accident with the Commissioner of Motor Vehicles. The plaintiff’s failure to file such a report when she was under a legal duty to do so may be viewed as an admission on her part. In other words, when the plaintiff is silent in the face of a legal duty to speak, one may infer that had she spoken it would not have helped her cause.
      “Additionally, you may consider the defendant’s motor vehicle accident report as to how the accident occurred . . . . ”

       The plaintiff made the following exception: “We except to the giving of a charge on the plaintiff’s failure to file a Department of Motor Vehicle report as an admission. I do not think that there was sufficient evidence in the record to indicate that she would reasonably have spoken in terms of an implied admission and the standards that apply to the finding of implied admission.”


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Richard Misiorski v. Donna M. Misiorski
    (5644)
    Hull, Daly and Bieluch, Js.
    Argued May 14
    decision released July 7, 1987

      John H. Burns, for the appellant (defendant).

      Edith F. McClure, with whom, on the brief, was Gerald A. Roisman, for the appellee (plaintiff).
   Hull, J.

The sole issue raised by the defendant in this case is whether the court erred in the amount of its award of permanent periodic alimony to the defendant wife in a dissolution case. We conclude that “this appeal presents one of the rare cases in which the trial court abused its broad discretion by misapplying the law and by making crucial findings which were not reasonably supported by the facts.” McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982), quoted in Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 420, 479 A.2d 826 (1984).

The facts found by the trial court, other than those concerning financial orders, are not in dispute. The parties are both forty-four years of age and have been married for twenty-one years. They have a daughter twenty years of age and a son seventeen years of age. The plaintiff became involved with a younger woman in 1984 and left the marital home in May 1985. The plaintiffs association with the other person was a major factor in the breakdown of the marriage.

The plaintiff and George Willis were equal owners of the stock of a successful corporation known as New Technologies, Inc. The parties’ financial condition has been made more difficult by the foolish spending in excess of $400,000 to construct a house. The plaintiff has substantial debts primarily for amounts spent to build their home. The nub of the memorandum of decision as it affects this appeal is found in the following: “Considerable evidence was produced by the plaintiff as to his finances. This was presented mainly through a [certified public accountant] who is found to be a substantially reliable witness and worthy of belief.

“The plaintiff will receive an estimated net salary which, after deductions for taxes, will give him about $1300 weekly. This will be the sum available to provide for his family and his own living expenses. The parties estimate their living expense to a total beyond this sum. As a result both of them will be obliged to retrench and alter their lifestyles to a marked degree.

“With regard to alimony it is recognized that [the defendant] is beset with a progressive disease, a form of muscular dystrophy, which renders her somewhat disabled now, and almost certainly ten years from now this condition may ultimately result in invalidism. As a consequence, it would seem unsuitable to terminate the alimony payments at a future date.

“The accounting concerning the plaintiffs firm is complicated, and the amounts available for payment of his obligations to his wife are not readily discernible. They may be somewhat greater than appears. However, the plaintiffs accountant’s figures are to some degree adopted by the court. It is noteworthy, too, that the defendant’s accountant did not greatly dispute his testimony.” (Emphasis added.)

The court dissolved the marriage and entered the following orders pertinent to our inquiry: (1) the marital home is to be sold with 25 percent of the net proceeds going to the plaintiff and 75 percent going to the defendant; (2) the plaintiff is to pay to the defendant $100 weekly for the support of the minor son; (3) the plaintiff is to pay to the defendant weekly alimony in the sum of $500 terminable upon the death of either party or upon remarriage by the defendant; and (4) the financial orders are to be effective only when the proceeds of the sale of the home have been received. Pendente lite orders for support and alimony, then in effect, were continued until the receipt of those proceeds. In response to the defendant’s request for an articulation, the court filed a further memorandum of decision in which it concluded (1) that the family house was worth approximately $440,000, (2) that the defendant had no workable skills and a limited earning capacity, and (3) that the basis for excluding from the plaintiff’s income certain items shown on page four of the plaintiffs financial affidavit was that those were advances made by the company on behalf of the plaintiff and were not monies that would be available to him.

The defendant on appeal poses the single issue: “Did the court err in concluding that the plaintiff’s gross income was $2175 per week and his net income was in the sum of approximately $1300 per week where it failed to credit income of $471 per week and debited taxes on $58,787 of annual income in order to arrive at the $1300 weekly figure?” We consider this claim of error, although it narrowly focuses in on specific conclusions of the court, to sufficiently alert the plaintiff to allow this court to consider the criteria for review set forth above in McPhee and Ehrenkranz, supra.

This case was tried and decided upon the plaintiffs income for the 1986 calendar year. The plaintiffs 1986 tax computation contained in note 1 of his affidavit shows 1986 taxable income of $162,867.52. The plaintiff earned wages from his company in those years prior to the dissolution of the marriage as follows: (1) 1985 - $146,265; (2) 1984 - $160,330; and (3) 1983 - $124,288. The plaintiffs affidavit showed gross wages on August 6, 1986, of $2175 per week from his chief employment and net wages of $1266.07 after tax withholding. The affidavit also showed $38.46 per week consulting income for a total of $1304.53 a week. It is this latter figure which the court accepted and on which it based its alimony award. “And thereby hangs a tale.”

That figure is based principally on note 1 to the financial affidavit entitled “1986 tax computation.” Steven C. Mercadante, the plaintiff’s certified public accountant, who managed the plaintiff’s and the corporation’s finances and tax matters, explained this note. In the years of rising income from this business the plaintiff and Willis both borrowed money from their wholly controlled corporation and deferred the payment of the income tax on such sums until the following year. The sums borrowed were used primarily for the construction of their respective homes. The $23,000 and $6000 rollovers shown represent such transactions. To allow such items to be deducted in the granting of permanent alimony is to let the tax tail wag the dog of the obligated party’s ability to pay. We note concerning these “rollover items” that the advances for which they are now being considered taxable went largely into the parties’ residence. The 1986 tax computation provides for the payment of taxes on these amounts. Yet a careful examination of the record shows no legal necessity that these amounts be paid to the Internal Revenue Service in 1986. It is clear from Mercadante’s testimony that such a plan of payments is desirable only from the plaintiff’s tax-planning standpoint.

We note further that the plaintiff’s Schedule A on his affidavit lists debts totalling $84,430 with weekly payments of $902.24. Yet four items on the debt schedule are assumed in the tax computation to have been paid: the 1986 rollover amount of $6000 due to New Technologies, Inc. and the three bank notes of $6033, $11,000, and $7500, shown on the tax computation as a 1985 personal line of credit. Finally, eliminating these four items totalling $30,533 from the claimed debt of $84,430 leaves a debt of $53,897. Since the parties’ house was valued by the court at $440,000 and the mortgage was approximately $189,000, the equity was $251,000. The plaintiff’s 25 percent share of this, less customary expenses, is somewhat less than $63,000. This amount, which was created by the money put into the house through the tax deferral plan, is sufficient to reduce substantially the plaintiffs indebtedness. Our comments reveal the dangers inherent in the court’s evident reliance on the accountant’s testimony as to the plaintiff’s financial situation.

Before reaching the determinant factor in the court’s conclusions, we must also comment on certain statements in the memorandum of decision. The court’s reliance on Mercadante’s testimony is not unequivocal. The court states the following, all of which cast doubt on its ultimate conclusion: (1) the amounts available for payment of his obligations to his wife are not readily discernible; (2) they may be somewhat greater than appears; and (3) the plaintiffs accountant’s figures are to some degree adopted by the court. The court noted also that the defendant’s accountant did not greatly dispute his testimony. (Emphasis added.) The latter observation does not strengthen the court’s conclusions, for it is not the truth of the accountant’s testimony that is in question, but the use of it in computing the obligor’s earning capacity or ability to pay.

It is not clear whether or not the court followed the appropriate standard in setting alimony in this case. It is hornbook law that what a spouse can afford to pay for support and alimony is a material consideration in the court’s determination as to what is a proper order. Casanova v. Casanova, 166 Conn. 304, 304-305, 348 A.2d 668 (1974); England v. England, 138 Conn. 410, 85 A.2d 483 (1951). The same standard applies to the “sources of income” in General Statutes § 46b-82 on which the court relied. This must be taken to mean income reasonably available to the supporting paying spouse. The ultimate inquiry is the obligor’s earning capacity. See Schmidt v. Schmidt, 180 Conn. 184, 189-90, 429 A.2d 470 (1980). To allow this factor to be skewed by the manner in which the obligor desires, for tax or other reasons, to handle his income in a given year, is to undermine the awarding of sound and just financial orders in dissolution cases.

It is clear from the record that such an event occurred in this case. In its memorandum of decision, the court made the key finding that “the plaintiff will receive an estimated net salary which, after deductions for taxes, will give him about $1300 weekly. This will be the sum available to provide for his family and his own living expenses.” The evidential underpinnings for such a conclusion are woefully inadequate. To reach such a conclusion, the court evidently relied on page one of the plaintiffs affidavit which shows tax withholdings of $851 per week. We have already demonstrated the irrelevancy of this computation because the amount of money claimed to be available to him was based on tax planning payments and not on the availability of income to meet his obligations if he so desired.

We consider it significant that the sum of $851.18 shown as withholding on page one of the plaintiff’s affidavit is achieved exactly by dividing the tax figure at the bottom of the 1986 tax computation in the amount of $44,261.26 by 52 weeks. Thus, the claimed withholding tax of $851 per week is based upon the 1986 tax computation which we have pointed out provides arbitrarily for the payment of income tax on two rollovers. It also provides for the discharge of the plaintiff’s.three notes. Therefore, to the very clear extent that the 1986 tax computation presents a distorted and unrealistic picture of the plaintiff’s earning capacity, this presentation of the plaintiff’s claimed financial stance, as far as alimony is concerned, permeates the plaintiff’s entire affidavit.

Any possible doubt about the insufficiency of the evidentiary basis of a conclusion based on the appropriate standard vanishes in view of the court’s conclusion concerning the three bank notes paid off on the plaintiff’s behalf by New Technologies, Inc. The court stated in its supplementary memorandum of decision that it did not consider these items in assessing the plaintiff’s weekly net income since “these are not monies that will be available to him.” The undisputed evidence of Mercadante is to the contrary. These sums were not available to the plaintiff if he chose to follow his tax accountant’s recommendations. A portion of the cross-examination of Mercadante reveals the following:

“Q. OK. Now, you are projecting in this corporate year that the company is going to give him the $25,000.00 to pay off the bank. Right?

“A. Yes.

“Q. Now isn’t he going to pay taxes on that $25,000 that he’s getting from the . . . from the company?

“A. The way its structured he’s going to receive the $25,000, or whatever the amount is, as a reduction of that debt and being included as income, but no taxes are going to be withheld out of that $25,000.

“Q. Well, they’re not going to be withheld, but aren’t they going to be paid?

“A. Yes.

“Q. Then I—isn’t that payment incorporated into your 44,000-dollar figure?

“A. Yes.

“Q. That’s what I asked you. OK. So if he chooses not to pay the bank the $25,000.

“A. Mmm hum. Yes.

“Q. He can keep the entire $25,000 for his family and household uses and the tax is already addressed in this ... in this projection. Correct?

"A. Yes.

There is also found in the direct examination of Mercadante the following illuminating testimony concerning the payment by New Technologies, Inc. of the three bank notes.

“Q. From a cash-flow standpoint, does it make any sense whatsoever to you to have Mr. Misiorski take this $25,000 and use it for other purposes other than to pay back this debt?

“A. No.

“Q. So this money isn’t available presently for Mr. Misiorski to draw from the business to have other monies for himself, his wife, his children, or any other personal reason, is it?

“A. The money is available, but it would make no sense whatsoever to take it for other personal reasons instead of paying off the loans. . . .

“Q. OK.

“A.....because you’re never going to be ahead of the game.

“Q. And that’s the $25,000 we’re talking about for the personal line of credit.

“A. Yes.”

The trial court abused its broad discretion by misapplying the law and by making crucial findings which were not reasonably supported by the record. “The underpinning of the decision is not sound.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 423, 479 A.2d 826 (1984).

There is error, the judgment is set aside as the award of alimony and the case is remanded for further proceedings limited to the question of the appropriate amount of periodic alimony to be awarded to the defendant.

In this opinion the other judges concurred.

       See W. Shakespeare, The Taming of the Shrew, Act IV, Scene V, 1. 60.

      NOTES TO FINANCIAL AFFIDAVIT
      NOTE 1: SECTION I - INCOME. A - INCOME FROM PRINCIPLE EMPLOYMENT
      1986 TAX COMPUTATION
      INCOME:
      Income earned to date: $54154.52
      Estimate income from July to December (4350.00 for 24 weeks) 52200.00
      1985 Rollover (Amount was received in April 1985 to pay 1984 individual income taxes). 23000.00

        1986 Rollover (Amount was received in April 1986 to pay 1985 individual income taxes). 6000.00
      1985 Personal line-of-credit used in lieu of wages in 1985 (This amount will be paid off by New Technologies, Inc. during 1986 in the form of wages.)
      Date received: October 9, 1985 6033.00
      November 11, 1985 11000.00
      January 2, 1986: 7500.00 162867.52
      OTHER INCOME:
      Concept Services, Inc. 2000.00
      Gain on sale of recreational vehicle 6900.00
      BUSINESS INCOME (LOSS):
      Recreational vehicle (4000.00)
      Condominium-Nashua, New Hampshire (3000.00)
      1845 Shopes Limited Partnership (3600.00) (10600.00)
      OTHER EXPENSES:
      Deductible family support
      (Estimated at $25000.00 @ V2 year) (12500.00)
      ITEMIZED DEDUCTIONS:
      Taxes: State 27.00
      Real estate 4500.00
      Sales tax 650.00
      Personal property 1000.00
      Interest expense:
      Mortgage-Avon 22000.00
      Mortgage-Suffield 4800.00
      Other 1500.00
      Contributions 1000.00 35477.00
      LESS: Zero bracket amount (single) (2390.001 (33087.00)
      EXEMPTIONS: (1040.00)
      TAXABLE INCOME: $114560.52
      TAX: $ 44261.26
      FEDERAL INCOME TAX PER WEEK: (44251.26/52 weeks) $ 851.18


author: Daly, J.

text:
    State of Connecticut v. James Kristy
    (3856)
    Borden, Daly and Bieluch, Js.
    Argued January 5
    decision released July 7, 1987

      Timothy H. Everett, with whom, on the brief, were Matthew Stokely and Bradley Larson, certified legal interns, for the appellant (defendant).

      James G. Clark, assistant- state’s attorney, with whom, on the brief, were Irving Smirnoff assistant state’s attorney, and Robert B. Clark, certified legal intern, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of misconduct with a motor vehicle in violation of General Statutes § 5SSÍ-57. The defendant had been charged by information with two counts of manslaughter in the second degree with a motor vehicle while intoxicated. The defendant claims that the trial court erred (1) in denying his motion to suppress, thereby admitting into evidence results of tests performed on blood and urine samples taken from him when not under arrest, and (2) in improperly charging the jury that misconduct with a motor vehicle is a lesser included offense of manslaughter in the second degree with a motor vehicle while intoxicated, a violation of General Statutes § 53a-56b (a). We find error on the second claim.

The jury could reasonably have found the following facts: On December 21, 1983, at approximately 9:45 p.m., the defendant was operating his motor vehicle and carrying four passengers on the Boston Post Road in Milford. An eyewitness observed the car changing lanes two or three times, moving erratically and reaching a speed of approximately sixty miles per hour in a forty mile per hour zone. One of the backseat passengers was observed holding a can of beer. The car was seen attempting to make a sudden right turn onto West Street, at a speed later determined to be 61.6 miles per hour. The car failed to negotiate the turn and slid into a telephone pole and guard rail. Two passengers died as a result of the crash. All five men in the car had been drinking beer from a case which had been purchased earlier in the evening. Beer cans were found in and around the car immediately following the collision.

The defendant was taken to the Milford Hospital. A blood sample (hereinafter blood sample one) was taken by hospital personnel at approximately 10:25 p.m. as a routine hospital procedure. The defendant signed a consent form releasing his hospital records to the police, including the test results from blood sample one. That test indicated a blood alcohol level of .20 percent by weight in the defendant’s blood. A second blood sample (hereinafter blood sample two) was taken from the defendant at police request at 11:05 p.m. and turned over to the police. Blood sample two indicated a blood alcohol content of .14 percent. At 12:30 a.m. a urine sample was taken which revealed a blood alcohol level of .12 percent by weight. This sample was also requested by and turned over to the police. The defendant was arrested some four months later, on May 5, 1984.

The defendant filed a motion to suppress and objected at trial to the admission of the test results from both blood samples and the urine sample, claiming that he had neither consented to their taking nor that he was under arrest at the time they were taken. The trial court admitted all the test results. The court concluded that the defendant had consented to the release of his hospital records including the test results from blood sample one, and that consent was unnecessary for the police-obtained samples. The court further stated that “there was a sufficient basis in the fact situation for the belief that a blood sample would produce evidence.”

At the state’s request, the trial court charged the jury as to the lesser offense of misconduct with a motor vehicle, and at the defendant’s request also instructed as to negligent homicide in violation of General Statutes § 14-222a.

I

The first issue raised by the defendant is whether the results of the chemical analyses of his blood and urine introduced into evidence should have been suppressed as the products of an unconstitutional search and seizure under the fourth, fifth, sixth and fourteenth amendments to the United States constitution and under article first, § 8 of the Connecticut constitution.

The defendant relies primarily on Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), and State v. Towry, 26 Conn. Sup. 35, 210 A.2d 455 (1965). In Schmerber, the Supreme Court held that compulsory administration of a blood test plainly implicates the fourth amendment concepts of search and seizure. Our Supreme Court has also stated that the taking of a blood sample constitutes a search and seizure within the meaning of the fourth amendment to the federal constitution. State v. Acquin, 177 Conn. 352, 354, 416 A.2d 1209 (1979). The question that remains, therefore, is whether the seareh and seizure was reasonable.

The defendant’s reliance on Schmerber is premised on the fact that the defendant in that case had been arrested prior to a blood sampling, while in the present case the defendant had not yet been arrested. The Schmerber court reasoned that probable cause to arrest the defendant for driving while intoxicated had been present, and that the arresting officer could reasonably have believed that the delay necessary to obtain a search warrant would imperil the existence of the evidence sought, since the alcohol content of blood begins to diminish shortly after drinking stops. The court stated that there was not enough time to locate a magistrate and to obtain a warrant without losing the evidence. The court was also satisfied that the hospital procedure used to extract the blood was reasonable. On the basis of three considerations, namely the existence of probable cause, the evanescent nature of the evidence and the reasonableness of the intrusion, the court held that there had been no violation of the petitioner’s right to be free from unreasonable searches and seizures. Schmerber v. California, supra, 767.

The defendant argues that the holding in Schmerber is limited by the fact that the defendant had been arrested prior to the taking of the blood sample.

The defendant also relies on State v. Towry, supra. In that case, the Appellate Division of the Circuit Court held that a state court must apply federal constitutional standards, and therefore concluded that a blood sample taken from an unconscious defendant thirteen days before his arrest was the result of an unreasonable, and therefore unconstitutional search and seizure not incident to a lawful arrest. It should be noted that Towry predates Schmerber. Moreover, as a constitutional intermediate appellate court we are not bound by the precedent of the statutory Appellate Division of the Circuit Court. State v. Kluttz, 9 Conn. App. 686, 694 n.8, 521 A.2d 178 (1987); State v. Hyatt, 9 Conn. App. 426, 430, 519 A.2d 612 (1987).

There are three sampling episodes in the present case. Blood sample one was taken as a routine hospital procedure, while blood sample two and the urine sample were taken at the request of the police. In ruling on the motion to suppress, the trial court held that the defendant consented to the release of his hospital records, including the test results of blood sample one. In order to introduce evidence obtained after consent has been given, the state must establish that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). Whether that consent was so given is a question of fact to be determined by the trial court from the totality of the circumstances. State v. Torres, 197 Conn. 620, 627, 500 A.2d 1299 (1985).

In this case, the court found that there was no showing that the defendant was under any duress or was incapable of acting in his own interests. The trial court also had before it a consent form signed by the defendant which released his hospital records.

The defendant’s brother testified that he did not see the defendant sign the form since he was not in the room when it was signed, but the defendant’s sister testified that the brother did in fact witness the defendant’s signature. Further, a police officer testified that the defendant stated that his signing of the consent form was a free and voluntary act. In his motion to suppress, the defendant claimed he had not consented to the release of his hospital records. On appeal, however, the defendant has not specified any basis upon which he challenges his consent.

When the totality of the circumstances is considered, the trial court’s finding that the defendant voluntarily consented to the release of the hospital records, including blood sample one, is not clearly erroneous.

This leaves for our consideration the results of blood sample two and the urine sample. The defendant asserts that in order for the holding in Schmerber to permit a blood test without a search warrant, the party must have been arrested prior to the extraction of blood. There is a split in authority as to whether an arrest prior to the extraction of blood is required.

Some courts which have confronted the issue have interpreted Schmerber to require an arrest before a blood sample can be taken. They include United States v. Harvey, 701 F.2d 800 (9th Cir. 1983); Layland v. State, 535 P.2d 1043 (Alaska 1975); State v. Wetherell, 82 Wash. 2d 865, 514 P.2d 1069 (1973); and People v. Superior Court of Kern County, 6 Cal. 3d 757,100 Cal. Rptr. 281, 493 P.2d 1145 (1972). Others have read Schmerber to require only probable cause to believe that a crime had been committed and probable cause to believe that evidence of the crime in question will be found, and that an immediate warrantless search is necessary in order to prevent the destruction or loss of evidence. See People v. Morse, 68 Mich. App. 150, 242 N.W.2d 47 (1976); see also 2 W. LaFave, Search and Seizure § 5.4 (b), p. 521-24 (1987), and cases cited therein.

The reasoning used in a case subsequent to Schmerber; Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973); provides a sturdy framework for our analysis of this issue. In Cupp, the United States Supreme Court held that exigent circumstances can justify a search based on probable cause when destruction of the evidence is imminent and the intrusion is minimal. In Cupp, the defendant went to the police station voluntarily after his wife had been strangled. He was detained for a brief period and asked to consent to having his fingernails scraped. He refused. Nonetheless, the police, noticing what they thought was a spot of blood on the defendant’s finger, took a scraping from beneath his nails which contained skin, blood-cells and fabric from the victim’s clothing. This search was done without a warrant and before the defendant was arrested. In fact, although the police had probable cause to arrest the defendant at the time of the scraping, they did not do so until a month later. The court held that the search passed constitutional muster for three reasons: (1) the existence of probable cause for arrest; (2) the limited nature of the search; and (3) the ephemeral nature of the evidence. Thus, the Cupp court did not require an actual arrest prior to the search as long as probable cause existed for an arrest.

We do not believe that either the Schmerber decision or the Cupp decision suggests that a formal arrest is an absolute prerequisite to a blood test for alcohol absent consent, and we are unwilling to impose such a requirement. Accord Galvan v. State, 98 Nev. 550, 655 P.2d 155 (1982); State v. Dewey, 272 N.W.2d 355 (Minn. 1978). Our Supreme Court has recently stated that a person has no constitutional right to withhold nontestimonial evidence when the state’s demand is supported by probable cause. Buckley v. Muzio, 200 Conn. 1, 8, 509 A.2d 489 (1986).

In this case, the defendant has never claimed that there was a lack of probable cause to arrest him. Indeed, the evidence is clearly to the contrary. Schmerber itself, the primary case upon which the defendant relies, highlights the short life of alcohol in the bloodstream upon cessation of drinking.

Thus, we conclude that the trial court did not err in denying the defendant’s motion to suppress, thereby allowing the admission at trial of the results of both blood samples and the urine sample.

II

The defendant also challenges his conviction of the offense of misconduct with a motor vehicle under General Statutes § 53a-57. He claims that misconduct with a motor vehicle is not a lesser included offense of manslaughter in the second degree with a motor vehicle while intoxicated; General Statutes § 53a-56b; with which he was originally charged.

If this assertion is correct, the defendant was convicted of an offense for which he was not on trial. In such a case, the conviction would be improper and the judgment could not stand. Our Supreme Court has held that a defendant convicted of an offense of which he was never given notice has been deprived of a fundamental constitutional right and of a fair trial. State v. Martin, 187 Conn. 216, 218-19, 445 A.2d 585 (1982); State v. Rodriguez, 180 Conn. 382, 399 n.10, 429 A.2d 919 (1980); see U.S. Const., amend. VI; Conn. Const., art. I, § 8. Thus, notwithstanding the fact that this claim of error was not raised at the trial, we will review it under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

General Statutes (Rev. to 1983) § 53a-56b (a), in effect at the time of the filing of the information in this case provided: “A person is guilty of manslaughter in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For the purposes of this section, ‘intoxication’ shall include intoxication by alcohol or by drug or by both.” The defendant, therefore, had notice to defend against this charge and any lesser offenses included within this crime. State v. Jacobowitz, 182 Conn. 585, 591, 438 A.2d 792 (1981), citing Paterno v. Lyons, 334 U.S. 314, 320-21, 68 S. Ct. 1044, 92 L. Ed. 1409 (1948). Manslaughter in the second degree with a motor vehicle while intoxicated does not contain a mental state element. Its elements are: (1) operation of a motor vehicle; (2) while intoxicated; and (3) which causes the death of another person. Thus, proof of a mental state was not necessary to support a conviction under this statute. The essential questions for the trier of fact on this charge, then, were whether the defendant was intoxicated by alcohol or by drug while operating a motor vehicle and whether the death of another person was a consequence of that intoxication.

The crime for which the defendant was convicted, misconduct with a motor vehicle, provides that a person is guilty of the offense “when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.” General Statutes § 53a-57. Criminal negligence is defined in General Statutes § 53a-3 (14): “A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation . . . . ” (Emphasis added.) Thus, conviction of misconduct with a motor vehicle requires proof of the mental state involved in criminal negligence which is not an element of manslaughter.

In Connecticut, there is a four prong test to determine when a lesser included offense instruction should be given. The second prong of that doctrine is relevant here. “[I]f it is not possible to commit the crime charged in the information or bill of particulars without first having committed [the] lesser crime,” then the defendant can be convicted of the lesser crime. State v. Whistnant, 179 Conn. 576, 584, 427 A.2d 414 (1980). All of the elements of misconduct with a motor vehicle, i.e. criminal negligence, need not be proven when proving manslaughter in the second degree with a motor vehicle while intoxicated. It is possible to operate a motor vehicle while intoxicated, resulting in the death of another, without failing to perceive the risk involved in driving in that condition. For example, one can be intoxicated, and also perceive the risks involved in driving in that condition, and yet ignore those risks, and then, because of the intoxication, be unable to maintain sufficient control of the motor vehicle to avoid a collision. We conclude that the defendant was convicted of a crime with which he was not charged, and which was not a lesser included offense of the crime charged.

We therefore conclude that the defendant was deprived of a fair trial. State v. Rodriguez, supra. It is clear, however, that there can be no review of the judgment of acquittal on the manslaughter in the second degree while intoxicated charge even though errors may underlie that judgment. State v. Jacobowitz, supra, 594. Nor can we order a new trial on the misconduct with a motor vehicle offense under the present information since it does not charge that offense. State v. Martin, supra, 222-23.

There is error, the judgment is set aside and the case is remanded with direction to render judgment that the defendant is not guilty of manslaughter in the second degree with a motor vehicle while intoxicated and ordering that he be discharged.

In this opinion the other judges concurred.

       General Statutes § 53a-57 (a) provides: “A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.”

       At the time of the information in this case General Statutes (Rev. to 1983) § 53a-56b provided in pertinent part: “(a) A person is guilty of manslaughter in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For the purposes of this section, ‘intoxication’ shall include intoxication by alcohol or by drug or both.”
      General Statutes § 53a-56b (a) now provides: “A person is guilty of manslaughter 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 the death of another person as a consequence of the effect of such liquor or drug.”

       General Statutes § 14-222a provides: “Any person who, in consequence of the negligent operation of a motor vehicle, causes the death of another person shall be fined not more than one thousand dollars or imprisoned not more than six months or both.”

       “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

       Such behavior is “reckless” as defined in General Statutes § 53a-3 (13) which provides: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” (Emphasis added.)

       We note that there is no double jeopardy barrier to the filing of a new information charging misconduct with a motor vehicle, if filed within the statutory limitation period. Federal courts have held that when a defendant is tried for a crime which includes both greater and lesser offenses, conviction of the lesser bars retrial on the greater, and vice-versa. Harris
        v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977); Brown v. Ohio, 432 U.S. 161, 168-69, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Before a double jeopardy barrier arises, however, the two offenses must not only arise out of the same act or transaction but must be substantially the same. State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979). The following test for the latter requirement was approved by the Goldson court as set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932): “ ‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not
      Applying the Bloekburger test to this case, it is possible to commit manslaughter in the second degree while intoxicated, as charged, without committing misconduct with a motor vehicle; it is also possible to satisfy the criminal negligence requirement for misconduct with a motor vehicle without satisfying the intoxication requirement for the higher offense. Because the offenses are not substantially the same for double jeopardy purposes, there would be no constitutional impediment to a new trial on misconduct with a motor vehicle, an offense for which the defendant has never been charged and which was not included in the offense for which he was tried. See State v. Martin, 187 Conn. 216, 223 n.6, 445 A.2d 585 (1982).

       We note, in passing, that the analysis of our Supreme Court in State v. Rodriguez, 180 Conn. 382, 407, 429 A.2d 919 (1980), is inapplicable here. In that case, the court concluded that “an offense that would be a lesser included offense but for its requirement of a less culpable state of mind than that required for the greater, will be deemed a lesser included offense.” In the present case, however, the greater offense, manslaughter in the second degree with a motor vehicle while intoxicated, does not contain any mental state element. In Rodriguez, both the greater and lesser offenses required mental states which were on the same continuum, differentiated only by the level of culpability. Here, the charged offense was not on the mental state continuum at all. Thus, we cannot deem misconduct with a motor vehicle a lesser included offense of manslaughter in the second degree with a motor vehicle while intoxicated.


author: Hull, J. Borden, J.,

text:
    Daniel Bombero et al. v. Irene Marchionne et al.
    (5342)
    Hull, Borden and Spallone, Js.
    Submitted on briefs April 6
    decision released July 7, 1987

      Bruce L. Levin, for the appellants (plaintiffs).

      IraH. Lippman, for the appellee (named defendant).
   Hull, J.

After a trial to a jury on the issue of damages, the plaintiff was awarded $12,184.47. The plaintiff’s motion to set aside the verdict as inadequate was denied. On appeal he claims that the court erred (1) in precluding his treating orthopedic surgeon from giving an opinion as to whether the plaintiff’s injuries would preclude him from carrying out his work duties in twenty years, (2) in failing to charge the jury as to diminished earning capacity, (3) in charging the jury on the plaintiff’s life expectancy without adequate explanation, (4) in excluding evidence of the costs of towing the plaintiff’s vehicle and renting a substitute vehicle, and (5) in refusing to take judicial notice of the sales tax in 1981 as an element of damages.

The jury could reasonably have found the following facts. On January 29, 1981, a vehicle operated by the defendant collided with a vehicle operated by the plaintiff. The plaintiff was rendered unconscious for a short time after the accident. He regained consciousness before being taken to St. Vincent’s Hospital in Bridgeport, where he was diagnosed as having suffered a concussion. The plaintiff was out of work for three weeks, and complained of stiffness in his neck and difficulty walking.

The plaintiff was treated by Donald Dworken, an orthopedic surgeon, for several months. In June, 1981, Dworken estimated that the plaintiff had a 5 to 6 percent permanent disability of the cervical spine and a 4 to 5 percent disability of the right knee. The plaintiff returned to Dworken in 1984, complaining of persisting pain in his neck. Dworken related the pain to the 1981 accident, and also noted continued swelling of the plaintiffs right knee. In 1985, the plaintiff began working for his father as a soil scientist and land surveyor. His duties involved physical activity, which he stated caused stress to his neck and knee.

At trial, the plaintiff’s counsel attempted to elicit an opinion from Dworken on the following hypothetical question: “Based upon—assuming that Mr. Bombero had an automobile accident, motor vehicle accident January 29, 1981, which resulted in the injuries and treatment to which you testified in 1983, and the reoccurrence in 1984 with treatment to which you have testified, and that he has 5 to 6% permanent disability of his right knee, and that his work entails, well that he is in the land surveying and soil science would these vocations requiring lifting, getting down digging holes, heavy lifting, banging metal posts into the ground with a sledgehammer, carrying large instruments on his shoulder and pulling soil samples out of the earth with an auger about three feet long, that is his vocation, that’s what his work entails, do you have an opinion as to whether he will be able to carry out that work, those functions twenty years from now in the same manner that he would otherwise be able to carry them out if he did not have these disabilities?” (Emphasis added.) Defense counsel's objection that the question was inadmissible as too speculative was sustained by the court.

Also at trial, the plaintiff attempted to introduce evidence of the cost of towing and renting a substitute vehicle. The court sustained the defendant’s objection that neither of these costs had been specifically pleaded.

During the second day of trial, the plaintiff requested that the court take judicial notice of the 1981 sales tax in Connecticut. The court sustained the defendant’s objection that sales tax is not part of the measure of damages in the loss of a vehicle. The plaintiff properly excepted to all the court’s rulings.

I

The plaintiff’s first claim is that the court erred in not allowing Dworken to answer the hypothetical question posed to him. As the plaintiff points out in his brief, the determination of the admissibility of a hypothetical question rests within the sound discretion of the trial court. Trzcinski v. Richey, 190 Conn. 285, 297, 460 A.2d 1269 (1983); Duley v. Plourde, 170 Conn. 482, 488, 365 A.2d 1148 (1976). The proper standard for appellate review of a trial court’s decision permitting expert opinion testimony is therefore whether there has been an abuse of discretion or clear error. Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 673-74, 482 A.2d 91 (1984).

The plaintiff’s hypothetical question sought to elicit an opinion as to the plaintiff’s physical condition at a particular point in time, twenty years in the future. We conclude that the court could reasonably have found that Dworken’s response would have been too speculative.

“The expert opinion that seeks to establish the causal connection between the injury and the alleged negligence ‘must rest upon more than surmise or conjecture.’ Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953). ‘In evaluating damages in a tort action, a trier is concerned with reasonable probabilities, not with possibilities.’ (Citations omitted.) Healy v. White, 173 Conn. 438, 443, 378 A.2d 540 (1977); Sheiman v. Sheiman, 143 Conn. 222, 225, 121 A.2d 285 (1956).” Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023 (1986).

We conclude that there are so many variables in the hypothetical posed by the plaintiff that the court could reasonably have found that there was no value to the question whatsoever. Many unrelated changes in the nature of the plaintiff’s occupation and physical condition could occur in the next twenty years. Any response made could only have been speculation, and the court, therefore, did not abuse its discretion in disallowing the question.

II

The plaintiff’s second claim is that the court erred in not charging the jury on the plaintiff’s diminished earning capacity. A party “ ‘who seeks to recover damages of this nature must establish a reasonable probability that his injury did bring about a loss of earnings, and must afford a basis for a reasonable estimate by the trier, court or jury, of the amount of that loss.’ ” Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 360, 374 A.2d 1047 (1977); see also Delott v. Roraback, 179 Conn. 406, 411, 426 A.2d 791 (1980). Where the evidence is so speculative that the jury could do no more than surmise as to the amount of damages, the claim should not be submitted to the jury. Mazzucco v. Krall Coal & Oil Co., supra.

The plaintiff’s brief states the following with respect to this claim. “[T]he uncontroverted evidence was that the plaintiff suffered a 5 to 6% permanent partial disability of his cervical spine and a 4 to 5% permanent partial disability of his right knee. Dr. Dworken testified that indeed, those disabilities are permanent. He further testified that the plaintiff ‘is going to have problems in the future.’ The plaintiff must avoid kneeling or bumping his knee. And the plaintiff must avoid ‘excessive sitting with his head down doing paper work, which is a part of his job.’ Excessive heavy lifting would likely cause a reoccurrence of the neck injury. The plaintiff is more susceptible to injuring his neck than he would have been had the January 29,1981 collision not occurred.

“At the time of trial, the plaintiff worked for his father as a land surveyor and soil scientist. At the time of trial, he was 29 years of age. In addition to his limitations in physical activity to which the plaintiff Daniel Bombero testified, his father also confirmed that Daniel no longer had the agility and vigor he had prior to the collision and was unable to carry his tools for as long or with the same agility as he had before the accident. The plaintiff, according to the statistical tables, may live to age 73.5.”

The plaintiff offers no additional evidence in support of his claim. Even if we assume that all these facts are true, the plaintiff has still failed to provide the court with a basis for a reasonable estimate of diminished earning capacity. The only evidence in the record of an economic nature is that at the time of the accident, the plaintiff earned $15,000 per year, or $7.50 per hour; in 1984 he began making $14 per hour; at the time of the trial, he was earning approximately $30,000 per year. Further, the plaintiff went to college to become a soil scientist and land surveyor, and it is that very profession he is practicing. There is no evidence in the record concerning a potential future loss of income due to the injuries sustained.

After a thorough review of the record, we conclude that there was no evidence to support a claim for diminished earning capacity, and the trial court therefore did not err in failing to charge the jury on that claim.

Ill

The plaintiffs third claim is that the court erred in not explaining to the jury that the plaintiff’s life expectancy was another, additional 44.5 years. The plaintiff was 29 years of age at the time of trial. According to mortality tables at the time of trial, his life expectancy was 44.5 years. See Am. Jur. 2d Desk Book, Item No. 160.

The court charged the jury as follows: “[Y]ou have had testimony through the plaintiff and through a life expectancy chart that since the plaintiff, at this time, is 29 years of age, based upon statistics, he would have an expected life expectancy of 44.5 years. That would be 44 and one-half years. That doesn’t mean that he will live that long or that he won’t live longer. But based on statistics, that has been determined for a 29 year old individual.” The plaintiff claims that the charge is unclear and could have led the jury to believe that he is expected to live only until he is 44.5 years old. In his closing argument, however, plaintiffs counsel made the following statement: “It’s your duty to compensate him for what he has lost over the next 44 and a half years, throughout the rest of his work life.” (Emphasis added.)

A jury charge must be read not only as a whole, but also in conjunction with the evidence presented. United States v. Park, 421 U.S. 658, 674, 95 S. Ct. 1903, 44 L. Ed. 2d 489 (1975); State v. Roque, 190 Conn. 143, 157, 460 A.2d 26 (1983). Even if we assume arguendo that the charge, when it is read in a vacuum, was ambiguous, when read in conjunction with plaintiff’s counsel’s own argument, any ambiguity was erased. That statement served to alert the jury that the plaintiff’s life expectancy was an additional 44.5 years. We conclude that although the trial court could have made this portion of the jury charge clearer, when reviewed in conjunction with plaintiff’s counsel’s own argument, the jury could not have been misled. See State v. Belton, 190 Conn. 496, 502, 461 A.2d 973 (1983); Tripp v. Anderson, 1 Conn. App. 433, 435-36, 472 A.2d 804 (1984).

IV

The plaintiffs fourth claim is that the trial court erred in excluding evidence of the cost of towing his vehicle and the cost of renting a substitute vehicle. The defendant claims that these were special damages that should have been specifically pleaded.

A plaintiff may rely only upon the allegations of his complaint. Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983); Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). The general rule is that “ ‘if recovery is sought for consequences which do not necessarily and immediately flow from the injury, the damages therefore are known as special and cannot be recovered unless alleged in the complaint or specified in a bill of particulars.’ Baldwin v. Robertson, 118 Conn. 431, 435, 172 Atl. 859 [1934].” Delmore v. Polinsky, 132 Conn. 28, 33, 42 A.2d 349 (1945).

“ ‘Pain and suffering, the obvious consequences of a serious injury, are elements of damage and need not be specially alleged.’ Gervais v. Foehrenbach, 149 Conn. 461, 464, 181 A.2d 253 (1962).” Manning v. Michael, 188 Conn. 607, 617, 452 A.2d 1157 (1982). Ordinarily, however, such things as loss of earnings and doctor and hospital bills are referred to as special damages. Since they do not necessarily follow an injury, the defendant is entitled to notice of them by a special allegation. Varley v. Motyl, 139 Conn. 128, 137, 90 A.2d 869 (1952); Tomlinson v. Derby, 43 Conn. 562, 567 (1876). Although such special damages result from the natural consequences of the act complained of, they are not the necessary result of it. Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 223 n.16, 477 A.2d 988 (1984). We conclude that the costs of towing and replacing the plaintiffs car fall into the latter category, those damages which should be specifically pleaded.

The plaintiff refers us to Blakeslee Co. v. Rigo, 94 Conn. 481, 484-85, 109 A. 173 (1920), and Trichilo v. Trichilo, 190 Conn. 774, 779, 462 A.2d 1048 (1983), in support of his assertion that the claims for towing and loss of use expenses are implied in the allegation that the vehicle was “greatly damaged.” Those cases are both distinguishable from the present case, however. In Blakeslee Co., the complaint stated that the plaintiff sustained damages from the replevying of a truck in the sum of $3000. There can be no question that in a replevy action, loss of use of the vehicle will occur. Further, in Blakeslee Co., the plaintiff offered evidence as to loss of use of the truck. In the present case, there is not an implicit loss of use of an automobile simply because great damage was done to it. With no more information in the record, it could be as likely that the plaintiff was able to continue driving the automobile.

The plaintiff relies on a statement in Trichilo v. Trichilo, supra, 779, that “ ‘[w]hat is necessarily implied need not be expressly alleged.’ ” His reliance, however, is misplaced. The court in Trichilo was discussing the presumption of agency that is implied in General Statutes § 52-183. That case has no relation to the present one. We conclude that the claims for towing and rental costs are not the necessary result of an accident in which an automobile was “greatly damaged.” As there was no specific claim for those costs, the trial court did not err in excluding such evidence.

V

The plaintiff’s final claim is that the court erred in refusing to take judicial notice of the sales tax in 1981 as an element in the computation of the plaintiffs damages. The defendant asserts that the court acted correctly, as sales tax “is not a measure of damages in a loss of vehicle,” and the plaintiff pleaded only damage to his vehicle.

In determining the measure of damages to a vehicle, “[t]he true rule is that the measure of damages is the difference between the fair market value of the car before the collision and its fair market value after-wards, plus interest from the date of loss.” Stults v. Palmer, 141 Conn. 709, 712, 109 A.2d 592 (1954); see also Xerox Corporation v. Board of Tax Review, 175 Conn. 301, 305, 397 A.2d 1367 (1978); Damico v. Dalton, 1 Conn. App. 186, 187, 469 A.2d 795 (1984).

The question before us is therefore whether the sales tax must be included in a determination of fair market value. There is more than one method of computing fair market value. “In determining fair market value, the trial court is free to select the method of valuation most appropriate to the case before it.” D’Addario v. Commissioner of Transportation, 180 Conn. 355, 365, 429 A.2d 890 (1980); Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 37-38, 428 A.2d 780 (1980). The trial court could have chosen to use replacement cost as fair market value. That method would have included sales tax. The trial court also could have defined fair market value as “ ‘the value which could be realized by the owner if the vehicle could be sold on the open market.’ ” Bragg v. Ginsberg, 314 S.E.2d 865, 867 (W.Va. 1984); Herring v. Ferrell, 130 Ga. App. 431, 432, 203 S.E.2d 617 (1973). The plaintiff clearly would not “realize” the sales tax on the car. The only entity that would realize sales tax is the state of Connecticut. We are unable to determine from the record before us which method the trial court considered most appropriate.

It is the appellant’s responsibility to provide an adequate record for appeal. Thiel Realty Corporation v. Culligan Water Conditioning Co., 9 Conn. App. 191, 193, 517 A.2d 1052 (1986); Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984). The plaintiff could have asked for an articulation of the trial court’s decision on this evidentiary point. He did not. We therefore cannot determine whether the trial court erred in refusing to take judicial notice of the Connecticut sales tax.

There is no error.

In this opinion Spallone, J., concurred.

Borden, J.,

dissenting. I dissent from part IV of the majority decision regarding the trial court’s exclusion of the plaintiff’s evidence of the cost of towing his vehicle and of renting a substitute vehicle. Such damages are recoverable as a result of tortious damage to a vehicle. See generally Anderson v. Gengras Motors, Inc., 141 Conn. 688, 109 A.2d 502 (1954). The sole basis of the trial court’s ruling, and of the majority’s decision, is that the plaintiff failed to plead such damages adequately.

The majority’s reasoning is at odds with the modern view of pleading as determined both by our Supreme Court and by this court. That view is to eschew a narrow, technical reading of pleadings and, instead, to read them broadly and with common sense. See Fuessenich v. DiNardo, 195 Conn. 144, 150-51, 487 A.2d 514 (1985); DeMartin v. Yale-New Haven Hosptial, 4 Conn. App. 387, 390, 494 A.2d 1222, cert. denied, 197 Conn. 813, 499 A.2d 62 (1985). Thus, pleadings should be read to include, not only what they specifically state, but what they reasonably imply. Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985).

The plaintiff’s complaint alleged that as a result of the defendant’s negligence “the motor vehicle owned by the plaintiff . . . was greatly damaged and its value greatly reduced.” It takes little imagination in today’s world to understand that when a motor vehicle is “greatly damaged” it is likely that it will have to be towed and, while being repaired, a substitute vehicle will have to be rented. I find it fanciful at the least to say, as does the majority, that it is just as likely that the plaintiff was able to continue driving his greatly damaged vehicle indefinitely. It is clear, therefore, that the plaintiff’s towing and substitute vehicle rental costs were reasonably implied by his allegations of great damage to his vehicle. Nor is there any indication in this record that the defendant was surprised by the defendant’s offer of the evidence of losses incident to the damage to his vehicle.

I would therefore find error as to this claim of the plaintiff and remand the case for a new trial limited to the plaintiff’s claim for towing and vehicle rental damages.

       The plaintiffs in this action are Daniel J. Bombero and his father, Stephen C. Bombero. The term plaintiff as used in this opinion refers to Daniel J. Bombero. The defendants in the original action were Alberto Marchionne and Irene M. Marchionne. Alberto Marchionne was subsequently dropped as a party defendant. The term defendant as used in this opinion refers to Irene M. Marchionne.

       The court had previously granted the plaintiff’s motion for summary judgment on the issue of liability, and that has not been contested in this appeal.

       The plaintiff received a bachelor of science degree from the University of Connecticut in the area of agronomy (soil science) in 1980.


author: Dupont, C. J.

text:
    In re Angela C. et al.

    (5552)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 2
    decision released July 14, 1987

      Leon M. Kaatz, for the appellant (respondent mother).

      Heather Wilson, assistant attorney general, with whom were Jane S. Scholl, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book J 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Dupont, C. J.

This is an appeal by a mother from the granting of a petition to terminate her parental rights in her several children, which was granted pursuant to General Statutes § 17-43a. The trial was held over four days. After the conclusion of the second day of the trial, the trial court issued a memorandum of decision which found that grounds existed to terminate her parental rights, but which continued the hearing to allow her rehabilitative time, in the hope that the petition would not need to be granted. At the continued hearing, the court reiterated that sufficient grounds existed for the termination of her parental rights, but again continued the final determination of the action, and scheduled another hearing. Subsequent to that last hearing, the trial court granted the petition to terminate parental rights.

The respondent argues that the trial court erred in continuing the proceedings on the termination petitions. She argues that she was entitled to an adjudication at the close of the second hearing, and that, if one had been forthcoming, her parental rights could not have been terminated because the evidehce was insufficient. The trial court stated, both at the time the case was continued and at the time of the ultimate resolution of the action, that sufficient evidence existed to grant the petition. The respondent has failed, therefore, to allege or demonstrate that this action of the trial court harmed her in any way. Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982). Furthermore, a continuance in termination of parental rights cases, as well as in other cases, lies within the discretion of the trial court. State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986).

The respondent’s second claim is that the evidence presented at the hearings was not sufficient-to establish by “clear and convincing evidence” that it was in the best interests of the children to grant the petition. General Statutes § 17-43a (b).

The essence of the respondent’s claim is that the trial court’s decision to grant the petition was contrary to the weight of the evidence because of the testimony presented by the psychologist who had testified at the first two hearings. The trial court was not required to accept the expert’s opinion on the issue of whether to terminate the mother’s parental rights, nor was the testimony of another expert required to support the trial court’s judgment. See Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1986); In re Teshea D., 9 Conn. App. 490, 493, 519 A.2d 1232 (1987). Our review of the record in this case reveals that the petitioner satisfied his burden of producing clear and con-vicing evidence to support his petition. The trial court’s decision was legally correct and factually supported. See In re Rebecca W., 8 Conn. App. 92, 95-96, 510 A.2d 1017 (1986).

There is no error.

In this opinion the other judges concurred.