author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. DONALD GLOVER
    (13500)
    Lavery, Schaller and Freedman, Js.

      Argued November 1, 1995
    decision released February 20, 1996

      Michael L. Moscowitz, special public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, and assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The defendant claims that the conviction violates his right not to be put in double jeopardy under the United States constitution and the Connecticut constitution. The defendant also claims that the trial court improperly instructed the jury and allowed the jury to return inconsistent verdicts. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 22, 1992, the victim, Frank Upshur, and his girlfriend, Susan Gustafson, rode their bicycles to Edgerton Park in New Haven. At approximately 2:30 p.m., Upshur and Gustafson stopped at a park bench to rest. Immediately thereafter, Upshur saw the defendant walk past him. A few moments later, Upshur and Gustaf-son observed the defendant sitting on a nearby park bench staring at them. The defendant had his hand in a paper bag.

Upshur and Gustafson were sitting on the bench talking when the defendant suddenly appeared approximately one arm’s length in front of them, with his hand inside the paper bag. The defendant lunged forward, laughed and fired a gun that was hidden in the bag. The shot hit Upshur in the abdomen. Upshur struggled to his feet and began to run while Gustafson fled around the opposite end of the bench. Upshur looked back to see if the defendant was following him and saw the defendant remove the gun from the bag and throw the bag aside. After running about five feet, Upshur collapsed and Gustafson ran to his side. The defendant proceeded to walk toward the couple, and Gustafson attempted to block the defendant from continuing his attack on Upshur. The defendant continued to approach Upshur, pointing the gun alternately at Upshur and Gus-tafson.

While the defendant pointed the gun at Gustafson, Upshur jumped to his feet and charged toward the defendant. The defendant swung the gun back at Upshur and aimed it at Upshur’s head. As he approached the defendant, Upshur was looking down the barrel of the gun and saw the hammer go back, the chamber rotate and the hammer fall forward. He heard a loud click as the gun misfired. Upshur and Gustafson then forced the defendant to the ground and wrestled the gun from him. Upshur and some bystanders held down the defendant until police arrived.

I

The defendant’s first claim is that his conviction of both attempted murder and assault in the first degree violates his state and federal constitutional rights to be free from double jeopardy. The defendant argues that the charges arise out of a single transaction and that the legislature did not intend that a person be convicted of both offenses on the basis of the same act. We conclude that the defendant’s conviction of attempted murder and assault in the first degree did not violate his right to be free from double jeopardy.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. This constitutional guarantee is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The double jeopardy clause not only prohibits multiple trials for the same offense, but protects individuals against multiple punishments for the same offense in a single trial. State v. Hickman, 235 Conn. 614, 618, 662 A.2d 762 (1995). “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 67, 644 A.2d 887 (1994), quoting State v. Greco, 216 Conn. 282, 290-91, 579 A.2d 84 (1990). “In deciding whether the crimes arose out of the same act or transaction, we analyze the language of the information.” State v. Nita, 27 Conn. App. 103, 113, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992).

In this case, although the state argued to the jury that the assault charge related to the shooting of the victim in the abdomen and that the attempted murder charge arose out of the misfired shot while the victim approached the defendant, the information charged the defendant with committing both crimes in the same place at the same time. The information fails to state the nature of the alleged acts with sufficient particularity to determine whether they are the same act or transaction. We are obligated to construe this ambiguity in favor of the defendant. Id., 114. We conclude, therefore, that the charges arise out of the same act or transaction for double jeopardy purposes.

Our next inquiry is whether the two offenses are the same for double jeopardy purposes. In order to determine that, we apply the traditional test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Under the Blockburger test, “ ‘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.’ ” Id., 304; State v. Chicano, 216 Conn. 699, 707, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

In State v. Sharpe, 195 Conn. 651, 655-56, 491 A.2d 345 (1985), our Supreme Court held that attempted murder and assault in the first degree are separate offenses. The Sharpe court held that “ [a] conviction for attempted murder requires proof of intentional conduct constituting a substantial step toward intentionally causing the death of another person. ... No showing of actual injury is required. Conversely, a conviction for assault in the first degree requires proof that the defendant actually caused serious physical injury to another person. No showing of intent to cause death is necessary. Therefore, each offense requires proof of a fact which the other does not.” (Citation omitted.) Id., 655.

The defendant claims that the Sharpe analysis is incomplete and that this court should apply the test enunciated in State v. Lonergan, 213 Conn. 74, 92, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). In State v. Lonergan, supra, 92, our Supreme Court held that in successive prosecution cases, two offenses might be considered the same offense for double jeopardy purposes under the Blockburger test despite dissimilar statutory elements where the same evidence or conduct proves both offenses. We decline, on the basis of our reasoning in State v. Gilchrist, 24 Conn. App. 624, 630, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991), and State v. Fernandez, 27 Conn. App. 73, 95-97, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992), to extend the holding in Lonergan to cases involving a single prosecution.

II

The defendant’s next claim is that the trial court’s instructions to the jury were constitutionally defective because the trial court failed to relate the issues of law to the facts of the case. Specifically, the defendant argues that by failing to make a single allusion or reference to the evidence, the trial court’s instructions failed to provide the jury with proper guidance in applying the law correctly to the facts. Although the defendant neither raised this issue at trial nor objected to the trial court’s instructions because they failed to relate the law to the facts, the defendant has requested review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error rule in Practice Book § 4185.

“In reviewing a constitutional challenge to the trial court's instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the juiy. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result. . . . We will reverse a conviction only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Citations omitted; internal quotation marks omitted.) State v. Lemoine, 233 Conn. 502, 509, 659 A.2d 1194 (1995).

“In reviewing whether the trial court must comment on any evidence that has been presented, we examine not only the entire jury charge, but also the presentation of the issues to the jury by counsel in the context of the trial. ‘Within constitutional limitations concerning trial by jury, the nature and extent of the trial court’s comments on the evidence must largely depend on the facts involved in a particular case and the manner in which it has been tried.’ ” (Emphasis in original.) Id., 511; Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 590, 356 A.2d 873 (1975). The trial court has wide discretion particularly where issues were clearly delineated during the trial and where the arguments of counsel fairly presented the case to the jury. State v. Lemoine, supra, 511.

In the present case, the trial court did not abuse its discretion by keeping comment on the evidence to a minimum. Its instructions to the jury were accurate in the law, adapted to the issues of the case and sufficient to guide the jury in applying the law to the facts of the case. The factual issues were adequately presented to the jury in the arguments of counsel. We find that it is not reasonably possible that the jury was misled by the trial court’s instructions. We conclude, therefore, that the trial court did not abuse its discretion and that the defendant was not deprived of a fair trial.

Ill

The defendant’s final claim is that the trial court deprived the defendant of his constitutional right to due process of law by permitting the jury to return an inconsistent verdict. Specifically, the defendant argues that his conviction of attempted murder and assault in the first degree is inconsistent because the offenses require proof that the defendant possessed two inconsistent mental states at the same time. We conclude that the jury did not return an inconsistent verdict.

To determine whether a jury verdict is legally inconsistent, “we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements of another offense of which the defendant also stands convicted.” State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). A conviction of attempted murder required the juiy to find that the defendant intended to cause the victim’s death, while a conviction of assault in the first degree under § 53a-59 (a) (1), required the jury to find that the defendant intended to cause the victim serious physical injury.

In the present case, the jury reasonably could have concluded that the defendant intended to cause Upshur serious physical injuiy when the defendant fired the gun into Upshur’s abdomen, and intended to cause Upshur’s death when he later misfired the gun at Upshur’s head. Because the jury was not required to find that the relevant mental states existed simultaneously, its verdict was not logically inconsistent. See State v. Fernandez, supra, 27 Conn. App. 94.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides in pertinent part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with the intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical iiqury to another person, he causes such iqjury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       Although the Connecticut constitution has no specific double jeopardy provision, our Supreme Court has stated that the due process guarantees of article first, §§ 8 and 9, include protection against double jeopardy. See State v. Boyd, 221 Conn. 685, 690, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992). This court has previously held that the Connecticut constitution affords no greater protection than the United States constitution’s double jeopardy clause in the context of multiple convictions and punishments imposed in a single trial. See State v. Adams, 38 Conn. App. 643, 655-56, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995); State v. Laws, 37 Conn. App. 276, 294-95, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995). The defendant has not provided us with any reasons why the double jeopardy analysis in this case would be different under the Connecticut constitution. Because we are not required to review issues that have not been briefed, we decline to conduct a separate state constitutional double jeopardy analysis in this case. See State v. Ramos, 36 Conn. App. 831, 838-39, 661 A.2d 606, cert. denied, 235 Conn. 9, 662 A.2d 905 (1995).

       Under State v. Golding, supra, 213 Conn. 239-40, the defendant can prevail on an unpreserved claim only if (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 harmlessness of the alleged constitutional violation beyond a reasonable doubt The first and second prongs of the Golding analysis dictate whether an issue will be reviewed, and the third and fourth prongs constitute review of the issue on its merits. Soo State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992).

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to trial. The court may in the interest of justice notice plain error not brought to the attention of the trial court. . . .”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES R. WELCH, SR.
    (14353)
    Landau, Schaller and Hennessy, Js.

      Argued October 27, 1995
    decision released February 20, 1996

      Kent Drager, assistant public defender, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom were Vincent Dooley, assistant state’s attorney, and, on the brief, Mark S. Solak, state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32 and committing him to the custody of the commissioner of correction for a period of five years. On appeal, the defendant claims that the trial court (1) lacked sufficient evidence to support its finding of violation of probation, and (2) abused its discretion by revoking the defendant’s probation.

Certain facts adduced at the probation hearing are relevant to this appeal. On July 1, 1993, after a reversal and remand of his original conviction, the defendant pleaded guilty under the Alford doctrine to one count of risk of injury to a child in violation of General Statutes § 53-21. The trial court sentenced the defendant to the custody of the commissioner of correction for a period of seven years, execution suspended, and placed the defendant on probation for a period of three years. The court imposed two special conditions of probation: (1) no contact whatsoever with the victims in the case; and (2) sex offender treatment as deemed appropriate by the probation authorities.

On July 6,1993, the defendant met with his probation officer, Judith Haddad. Haddad reiterated the special conditions of the defendant’s probation and referred the defendant to the sex offender treatment program at Northeast Clinical Specialists (Northeast). The defendant stated that he fully understood the conditions of his probation. Two weeks later, the defendant met with Linda Zaccaro, a consultant at Northeast, to be evaluated to determine whether he was an appropriate candidate for Northeast’s sex offender treatment program. Zaccaro explained to the defendant that as a condition of his treatment, he would have to abide by the guidelines of Northeast’s treatment program and presented to the defendant a written form containing Northeast’s terms of service.

One of the conditions printed on the terms of service form stated: “I agree to cooperate with treatment and to sign authorization forms to allow the necessary exchange of information between [Northeast] and other parties involved in the past and present course of my treatment.” An additional condition for sex offenders that had been written on the form by Zaccaro stated: “No contact with minor children under 17 [years old].” Zaccaro apprised the defendant that under the “no contact” term, the defendant was not allowed to live in a household with children during his treatment at Northeast.

The defendant informed Zaccaro that he would not admit to any wrongdoing and the only reason he was attending the sex offender treatment program was to “get his probation officer off his back.” The defendant stated that he understood the terms of service and then printed his name at the top of the terms of service form indicating that he “read and discussed the following [terms] with [his] therapist.” Although Zaccaro initially felt that the defendant was not an appropriate candidate for treatment because he was in denial and reluctant to participate, she informed him that Northeast would continue to evaluate him for an additional one to six sessions.

On August 6, 1993, Zaccaro received a telephone call from Lisa Hightman, a therapist for the defendant’s wife, Laura Welch. Hightman was concerned about an incident in which Laura Welch’s nine year old daughter had grabbed the defendant’s crotch area while the defendant and the daughter were wrestling at Laura Welch’s home. Believing the incident to be relevant to the defendant’s treatment, Zaccaro asked the defendant to sign an authorization form, in accordance with the terms of service, that would allow Zaccaro to speak to Hightman about the incident. The defendant refused to sign the authorization form.

At a subsequent meeting, the defendant admitted to Zaccaro that he had stayed overnight at his wife’s home on several occasions while his wife’s nine year old daughter was present. The defendant also stated that he was not a sex offender and that Northeast could not stop him from living with children. The defendant informed Zaccaro that he wanted to terminate his sex offender treatment so that he could return to court and seek to have the special condition requiring treatment removed from his probation order.

Zaccaro terminated the defendant’s treatment program on September 28, 1993, because she believed he was living in a household with children and had refused to sign the authorization form to release information. Zaccaro informed Haddad of Northeast’s decision to terminate the defendant from the treatment program in a report received by Haddad on October 7, 1993. In response to Zaccaro’s report, Haddad prepared an arrest warrant application for violation of probation predicated on the defendant’s failure to comply with the special condition of his probation requiring sex offender treatment.

On October 27, 1994, the trial court conducted a probation hearing. The court found, by a preponderance of the evidence, that the beneficial purposes of probation were not being served, and imposed a sentence of five years imprisonment.

I

The defendant first asserts that the evidence presented at his probation revocation hearing was insufficient to prove he violated his probation because the trial court’s findings that the defendant had resided in a household with a minor child and had refused to sign necessary authorizations were clearly erroneous. We disagree.

At the outset, we note that the defendant has presented this claim as if the terms of service of his sex offender treatment program are the applicable conditions of his probation. He claims that because the state failed to present sufficient evidence to establish, by a fair preponderance of the evidence, that he either resided with a minor or improperly refused to sign authorizations, he must be acquitted of the charge of violation of probation. He analyzes the evidence concerning these two terms of service as if they were independent conditions of his probation.

The proper issue before this court, however, is whether the trial court properly found, by a preponderance of the evidence, that the defendant failed to comply with the special condition of his probation requiring sex offender treatment. See State v. Treat, 38 Conn. App. 762, 770, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995). Although the defendant’s compliance or noncompliance with the specific terms of his treatment program may be a relevant factor in our determination of whether the trial court’s decision was supported by the evidence, it would be inappropriate for us to treat the individual terms of service as the applicable conditions of probation.

“ [U]nder § 53a-32, a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . or . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion. . . .” (Citations omitted; internal quotation marks omitted.) Id., 766-67.

“To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. State v. Davis, [229 Conn. 285, 302, 641 A.2d 370 (1994)]. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling . . . .” (Citations omitted; internal quotation marks omitted.) State v. Treat, supra, 38 Conn. App. 769-70. A fact is more probable than not when it is supported by a fair preponderance of the evidence. State v. Haggood, 36 Conn. App. 753, 768, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995).

In deciding that the defendant violated his probation, the trial court found that the defendant “abused the opportunity given him to avoid incarceration in that he has not met the terms of his probation.” The court further found that the defendant “refused to comply with the terms of his sexual offense treatment, he has refused to sign authorizations necessary for the therapist to obtain relevant and material background information. ... In addition, he has resided in a household with a minor child contrary to the terms of his sexual offense treatment. He has continually manifested a contrary attitude toward the rehabilitative orders of this court and demonstrated a complete absence of good faith in his participation in the sexual abuse therapy.”

We conclude that the evidence adduced at the probation violation hearing was more than sufficient to support the trial court’s findings and to induce a reasonable belief that it was more probable than not that this defendant violated a condition of his probation.

II

The defendant also claims that the trial court abused its discretion by revoking the defendant’s probation. The defendant argues that even if the trial court was correct in finding a probation violation, the beneficial purposes of probation were still being served. We are not persuaded.

“When reviewing the second component of a probation revocation hearing, an appellate court must determine whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973); State v. Johnson, 11 Conn. App. 251, 257, 527 A.2d 250 (1987). In making this second determination, [whether the defendant’s probationary status should be revoked] the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988). State v. Davis, supra, 229 Conn. 290. 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 . . . [and] [r]eversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . Walker v. Commissioner of Correction, 223 Conn. 411, 414-15, 611 A.2d 413 (1992). In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. State v. DeMasi, [34 Conn. App. 46, 55, 640 A.2d 138, cert. denied, 230 Conn. 906, 644 A.2d 920 (1994)]. The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public. State v. Davis, supra, 297.

“General Statutes § 53a-32 (b) provides that revocation shall not be ordered except upon consideration of the whole record . . . .” (Internal quotation marks omitted.) State v. Treat, supra, 38 Conn. App. 770-71.

Our review of the record reveals that there was ample evidence adduced at the probation hearing to establish that the defendant openly expressed an unwillingness to comply with his sex offender treatment. The evidence supported the trial court’s findings that “the rehabilitative purposes of probation have been frustrated and thwarted through the attitude and conduct of the petitioner,” and that “the beneficial purposes of the defendant’s probation were no longer being served.” We conclude, therefore, that the trial court did not abuse its discretion in revoking the defendant’s probation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-32 (b) provides: “If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The alleged incident of contact between the defendant and his wife’s daughter is not the basis for the revocation of the defendant’s probation. The incident is relevant, however, because it led to Zaccaro’s request that the defendant sign the authorization to release information form. The defendant’s subsequent refusal was one of the factors that led to Zaccaro’s decision to terminate the defendant from Northeast’s treatment program for noncompliance with the terms of service.

         Such an approach would hamper the prosecution of cases where the defendant’s conduct, although antithetical to sex offender treatment, does not violate a specific term of service. In addition, this approach could be interpreted to mandate a finding of a violation of probation even if the defendant commits a minor technical breach of a term of service.


author: FOTI, J.

text:
    MADISON HILLS LIMITED PARTNERSHIP v. TOWN OF MADISON ET AL.
    (14081)
    Dupont, C. J., and Foti and Daly, Js.
    Argued December 11, 1995
    decision released February 20, 1996

      Bernard Green, with whom, on the brief, was Mami Smith Katz, for the appellant (plaintiff).

      Steven R. Dernbo, with whom was Andre E. Becker, for the appellees (TEPA Associates et al.).
   FOTI, J.

This is an appeal taken by the plaintiff Madison Hills Limited Partnership from the granting of a motion to set aside or open a default quiet title judgment. The plaintiff alleges that, pursuant to General Statutes § 52-212, the trial court, lacked jurisdiction to open the judgment. We affirm the decision of the trial court.

The following facts are relevant to the resolution of this appeal. In December, 1988, the plaintiff filed a one count complaint seeking a declaratory judgment to quiet title to property located in the town of Madison. Named as defendants were the town of Madison and all unknown persons having an interest in the property. In compliance with the trial court’s orders, the plaintiff published notice of the action in the New Haven Register on December 26 through December 28, 1988. Following defaults against the town for failure to plead, and against all other defendants for failure to appear, the trial court rendered judgment on May 8,1989, ordering that the plaintiff had clear title to the parcel in question.

On March 10, 1992, TEPA Associates (TEPA) and Candlewood Development Company (Candlewood) moved to set aside or open the judgment, claiming title to a seventeen acre tract of land located within the 600 acre parcel that is the subject of the judgment. The trial court conducted a hearing over several days during which the parties presented evidence. The trial court granted the motion to open the judgment on September 19, 1994.

The sole issue on appeal is whether the trial court lacked jurisdiction to open the judgment. Specifically, the plaintiff claims that TEPA and Candlewood are non-party entities that lack standing. The plaintiff argues that TEPA and Candlewood do not have standing to file the motion to set aside or open the judgment because they are not parties to the proceeding, they have failed to file a motion for permission to be made parties to the proceeding and they have failed to present evidence from which the court could find that they had an interest in the subject real property. All of these factors, the plaintiff maintains, deprived the court of jurisdiction to set aside the default judgment. We do not agree.

“[The] plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion [requiring] . . . some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991).

The question to be answered is whether the interest sought to be protected by the complaint is arguably within the zone of interests to be protected by the statute in question, and whether the party has alleged a colorable claim of injury to that interest. See United Cable Television Service Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 345, 663 A.2d 1011 (1995). We examine the parties, not the merits of the action. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 64, 441 A.2d 68 (1981).

“ ‘Standing requires no more than a colorable claim of injury; a plaintiff ordinarily establishes his standing by allegations of injury. Similarly, standing exists to attempt to vindicate “arguably” protected interests.’ ” (Emphasis in original.) Residential Capitol Corp. v. Reale, 231 Conn. 500, 505, 652 A.2d 489 (1994), quoting Maloney v. Pac, 183 Conn. 313, 321 n.6, 439 A.2d 349 (1981).

“[T]he standing doctrine requires a plaintiff to demonstrate two facts. First, the complaining party must be a‘proper party to request adjudication of the issues.’. . . Second, the person or persons who prosecute the claim on behalf of the complaining party must have authority to represent the party.” (Citation omitted.) Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 571, 651 A.2d 1246 (1995). A showing that one is a “proper party” can ordinarily be done by making a colorable claim that alleges a direct injury suffered or likely to be suffered in an individual or representative capacity. Id., 572.

The allegations of TEPA and Candlewood are sufficient to establish a colorable claim of a direct injury to their ownership interest in land located within the property that is the subject of the plaintiffs quiet title action. Among other things, they allege under oath that they “own a parcel of property consisting of seventeen plus or minus acres known as The Pond Lot within the area claimed by [the] Plaintiff . . . [that they] have a deed to this property and a continuous chain of title which can be established . . . [and that their] property is located within the property to which [the] Plaintiff is seeking to quiet title.” (Emphasis added.) We conclude that the allegations are sufficient to establish TEPA and Candlewood as “proper parties” to request adjudication of the issues.

The granting of the motion to open is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-212 provides in pertinent part: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reins) ated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed ai the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense."

       The complaint set forth in part, “and all unknown persons, claiming or who may claim any rights, title, interest or estate in or lien or encumbrance upon the real property described in this complaint, adverse to the plaintiff, whether such claim or possible claim be vested or contingent . . . .”

       General Statutes § 47-31 provides in pertinent part: “(b) The complaint in such action shall describe Ihe property in question and state the plaintiffs claim, interest, or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest. In any such action the plaintiff may join as defendant any unknown person or persons who claim or may claim any rights, title, estate or interest in or lien or encumbrance on the property described in the complaint, adverse to that of the plaintiff, whether the claim or possible claim be vested or contingent. If in the complaint, the plaintiff alleges that there are or that there may be persons who have or may have some right, title, estate or interest in or lien or encumbrance on the real or personal property but the persons cannot be located or are unknown to the plaintiff, or both, and describes the actual or possible estate or interest of such person or persons, and how derived, so far as may be known to him from a reasonable search of Ihe available land records or otherwise, he may join as defendants all unknown persons who may have made any such claim by stating in the summons, after setting forth the names of known claimants, the words, ‘and all unknown persons, claiming or who may claim any rights, title, interest or estate in or lien or encumbrance upon the real property described in this complaint, adverse to the plaintiff, whether such claim or possible claim be vested or contingent’, and it shall not be necessary to set forth therein any further description of the unknown person or persons. If, there are no known claimants, or possible claimants, to the property described in the complaint, the action shall be deemed to be maintained against all unknown persons claiming or who may claim any rights, title, estate, or interest, or lien or encumbrance upon the real or personal property described in the complaint, adverse to that of the plaintiff, whether the claim be vested or contingent, and the action may be prosecuted to judgment in the same manner and with like effect as though there had been known claimants or possible claimants designated as party defendants.
      “(c) If the plaintiff or his attorney annexes to the complaint in any such action an affidavit setting forth such facts and in addition sets forth the efforts which were made to ascertain the names and addresses as well as the interest or estates of the unknown persons, the court to which the action is brought or a judge thereof may make such order relative to the notice which shall be given in such cause as the court or judge deems reasonable. That notice having been given according to the order and duly proven shall be sufficient to confer jurisdiction of all such unknown persons and the court may proceed to a hearing of the cause at any time that it deems proper. The court shall not be required to appoint any guardian or other person to represent such unknown persons under any legal disabilities and all such persons shall be concluded by any decree or judgment in respect to the real or personal property involved in the action. . . .”

       In granting the motion, the trial court found that the plaintiffs affidavit for service of notice was insufficient, “completely lacking of any statement showing that the plaintiff undertook any efforts to locate the “unknown persons’ . . . and did not comply with the requirement of General Statutes § 47-31 (c).” The court concluded that “the insufficiency of the affidavit makes the order for publication and the default judgment void.” A request for articulation was not filed.

       The issue as stated in the plaintiffs amended preliminary statement of issues provides: “Did the court, on September 19, 1994, under the circumstances of this case, lack jurisdiction necessary to open the judgment of May 8, 1989?”

       The moving parties attached an affidavit to their motion signed by one of the partners of TEPA, who is also one of the shareholders of Candlewood.

         In addition to the written allegations, TEPA and Candlewood also claim that a colorable claim of direct injury was shown by evidence presented to the court through the testimony of both lay and expert witnesses.


author: STOUGHTON, J.

text:
    VINCENT SHIMKO v. FERRO CORPORATION ET AL.
    (14746)
    Heiman, Schaller and Stoughton, Js.
    Argued October 24, 1995
    decision released February 20, 1996

      Jules Lang, for the appellant (plaintiff).

      Kevin M. Blake, for the appellees (defendants).
   STOUGHTON, J.

The plaintiff, Vincent Shimko, appeals from the decision of the compensation review board affirming the dismissal by the workers’ compensation commissioner for the seventh district of a claim for temporary partial disability benefits based on the plaintiffs reduced earning capacity.

The plaintiff claims that the board improperly (1) concluded that General Statutes (Rev. to 1987) § 31-308 (a) requires a work search when a claimant is seeking only the differential between former and present wages, (2) determined that he was required to prove and failed to prove that he had sought light work as a condition of being awarded § 31-308 (a) benefits, (3) failed to make an award under General Statutes (Rev. to 1987) § 31-308 (d), and (4) sustained the commissioner’s findings and conclusions when they were inconsistent with each other and with the ultimate conclusion. We agree that there is no work search requirement in § 31-308 (a), and we remand the case for further findings. The resolution of this first issue renders moot the second issue as to whether the plaintiff was required to prove and failed to prove that he sought light work as a condition of being awarded § 31-308 benefits. In addition, in light of our remand for further proceedings, we do not address the plaintiffs third and fourth claims that the commissioner improperly failed to make an award under § 31-308 and that the commissioner improperly sustained an award based on inconsistent findings.

The commissioner found the following pertinent facts. The plaintiff, who was bom in 1935 and has a ninth grade education, was hired by the defendant, Ferro Corporation, in 1956 and worked for the defendant until it closed its Norwalk plant in October, 1988. After the defendant’s plant closed, the plaintiff attempted to find other work. He claimed that he suffered bouts of dizziness and headaches during the course of his employment that did not cause him to lose any time from work. He experienced an attack of angina pectoris for which he was hospitalized in July, 1979. The latter condition is not claimed to be work related, but, as a result of the condition, the plaintiff was advised by his doctor not to engage in any vigorous physical activity. In May, 1988, the plaintiff sought medical treatment for recurrent headaches and dizziness. Edward Gaynor, an ear, nose and throat specialist, was of the opinion that the plaintiff had a direct chemical reaction to the fumes from the solvents used at the defendant’s plant, and that, as a result, he was disabled from work involving exposure to any chemicals or solvents similar to those used at the plant. Gaynor found that the plaintiffs heart condition limits the type of work he can perform, and the plaintiff has interpreted Gaynor’s instructions as also limiting him to outdoor work. As a result, the plaintiff has obtained full-time work during the summer months cleaning beaches for the city of Norwalk at $7 per hour.

The plaintiff claimed temporary partial disability benefits under General Statutes (Rev. to 1987) § 31-308 (a), when it provided for a weekly compensation rate equal to 66 2/3 percent of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee prior to his injury and the amount he is able to earn after the injury. The plaintiff claimed that, had it not been for his injury, he would have been earning $15 per hour for forty hours per week in a position comparable to the position he held at the date of his injury, and that he was entitled to two thirds of the difference between $15 per hour and $7 per horn for the period claimed.

The commissioner issued his findings on May 19, 1993. He found that the headaches and dizziness constituted an occupational disease, but that the plaintiff was not temporarily totally disabled at any pertinent time nor did he sustain any permanent partial disability as a result of the occupational disease. The commissioner also found that while the plaintiff may have had an incapacity resulting from a compensable condition in that he should avoid work in an environment exposing him to chemical or solvent fumes, he was capable of performing light work. He further found that the plaintiff had failed to pursue that capability and had failed to document a willingness to return to work within his capability. The claim for temporary partial benefits under § 31-308 (a) was therefore dismissed.

The plaintiff appealed to the compensation review board, claiming that the commissioner improperly failed to award benefits under § 31-308 (a) despite his finding that the plaintiff had suffered a compensable occupational disease. He also claimed entitlement to benefits under General Statutes (Rev. to 1987) § 31-308 (d), which has since been repealed, and General Statutes § 31-284b. The board issued its decision on April 18, 1995, affirming the decision of the commissioner.

Section 31-308 (a) provides for benefits for the incapacity of an injured worker who is able to do some work but unable fully to perform his customary work. Hansen v. Gordon, 221 Conn. 29, 39, 602 A.2d 560 (1992). “[T]he incapacity must result from a causal connection between the injury and the employment . . . and the right to benefits does not arise merely because of factors that are extrinsic to the physical status of the employee.” Id., 39-40. In making this determination, facts found by the commissioner must stand, as must the conclusions drawn from those facts, as long as they may reasonably be drawn from the subordinate facts. Id., 40.

The commissioner found that the plaintiff had light work capability but that he had failed to pursue that capability and had failed to document a willingness to return to work within that capability. The plaintiff asserts that while § 31-308 (a) may require a work search when full benefits are sought, there is no such requirement when only a diminution of earnings, rather than full compensation, is claimed. He argues that he established the diminution in his earning capacity by obtaining a job, and that the issue before the commissioner was whether he had suffered a compensable condition and not whether he would have earned more than $7 per hour by finding another job.

The defendant on the other hand asserts that the Workers’ Compensation Act mandates that partially disabled employees must make a good faith effort to find work before being able to collect benefits. The defendant concedes that neither § 31-308 (a) nor any administrative regulation requires a work search. Nevertheless, it claims that the plaintiff was required to demonstrate by some evidentiary means that he made reasonable efforts to find suitable work and that the evidence established that he failed to do so.

General Statutes (Rev. to 1987) § 31-308 (a) provides: “If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the amount he is able to earn after such injury, except that when (1) the physician attending an injured employee certifies that such employee is unable to perform his usual work but is able to perform other work, (2) such employee is ready and willing to perform such other work in the same locality and (3) no such other work is available, such employee shall be paid his full weekly compensation subject to the provisions of this section. In either of the above cases, such compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 and shall continue during the period of partial incapacity but no longer than seven hundred and eighty weeks. If the employer procures for an injured employee employment suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee during the period of such employment.” Our review of the statute discloses no work search requirement.

Further, the compensation review board has held that “neither the statute nor any administrative regulation requires a work search. The work search practice, instituted by the commission some two decades ago, was borrowed from the procedure employed in administering the unemployment compensation law. . . . Our own § 31-308 (a) never specifically included the requirement of reasonable efforts to find work as did the unemployment law. However, the work search procedure was informally accepted as an evidentiary basis to demonstrate . . . the unavailability of such work. However, there are other evidentiary means by which those requirements may be demonstrated.” (Emphasis added.) Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 45 (1992). We agree. Thus, the commissioner must determine whether suitable work is available. The facts found were not sufficient to resolve that issue. The commissioner found that the plaintiff may have an incapacity in that he should avoid work in an environment exposing him to fumes, and, therefore, that his condition is compensable. These findings have not been challenged. The commissioner also found that it was the plaintiff himself who interpreted his physician’s instructions as limiting him to outdoor work. The commissioner made no findings as to whether the plaintiff was limited to outdoor work by factors extrinsic to his physical status resulting from the compensable condition and whether there was other work that the plaintiff could have performed.

The decision of the compensation review board is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants are the employer and its workers’ compensation insurance carrier. We refer in this opinion to the employer as the defendant.


author: SPALLONE, J.

text:
    EXEL LOGISTICS, INC., ET AL. v. MARYLAND CASUALTY COMPANY ET AL.
    (14533)
    Landau, Ilennessy and Spallone, Js.

      Argued November 27, 1995
    decision released February 27, 1996

      Brendan T. Flynn, with whom, on the brief, was David J. Heinlein, for the appellees (plaintiffs).

      Michael P. Del Sole, for the appellee (named defendant).
   SPALLONE, J.

This is an appeal from the trial court’s judgment rendered following the granting of the defendant’s motion for summary judgment as to count one of the plaintiffs complaint. The plaintiffs, Exel Logistics, Inc. (Exel), and its employee, Kevin Walsh, in a two count complaint naming Maryland Casualty Company (Maryland) as defendant, sought (1) a judgment declaring that Maryland is required to provide insurance coverage to them, and (2) damages from Maryland for breach of contract. After filing the complaint, the plaintiffs cited in Hyde Manufacturing Company (Hyde), Raymond Arpin, an employee of Hyde, and Scott Nuskin doing business as Scott Metal Products Company (Scott).

The present action has its origins in a suit brought by Arpin against Scott, Walsh and Exel (Arpin suit). The Arpin suit is currently pending in the judicial district of Windham as Docket No. CV 92-0043660-S. The Arpin suit alleges that on or about August 1, 1991, Arpin, in the course of his employment by Hyde, was injured while delivering a load of steel to Scott. Arpin alleges that because Scott was closed at the time of delivery, Exel, a business located next door to Scott, agreed to accept delivery on behalf of Scott. Arpin also alleges that Walsh was operating a forklift owned by Scott to move part of the load of steel that Arpin had delivered to the premises, that Walsh asked Arpin to stand on a load of steel being moved by the forklift in order to steady the load, and that Arpin stood on the load but jumped off when he feared for his safety as a result of Walsh’s unsafe and improper operation of the forklift, thereby sustaining personal injuries. The Arpin suit seeks monetary damages and such other and further relief as the court may deem proper.

In the present action, Exel and Walsh claim that they are entitled to indemnification under a policy of insurance (policy) between Hyde and Maryland. Exel and Walsh claim third party beneficiary status under the policy because they “used” the Hyde delivery truck and, therefore, they claim that Maryland must defend them in the Arpin suit and provide coverage in the event of an award to Arpin. Count one of the complaint seeks a declaratory judgment, claiming there is a “substantial uncertainty regarding the legal relations among Walsh, Exel, Hyde and Maryland which requires settlement by this court through a declaratory judgment.” Count two alleges that Maryland breached its contract of insurance with Hyde when it refused to defend Walsh and Exel in the Arpin suit.

Because this action was brought in two counts and the court’s ruling addresses only one count, we are initially concerned with whether this appeal was taken from a final judgment. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

I

The jurisdiction of this court is restricted to appeals from judgments that are final. General Statutes § 52-263; Practice Book § 4000; Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, 520 A.2d 605 (1987); Doublewal Corp. v. Toffolon, 195 Conn. 384, 388-89, 488 A.2d 444 (1985). “The expeditious resolution of disputes counsels against appellate review of trial court rulings that do not finally dispose of all the issues between the litigating parties.” Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 409, 521 A.2d 566 (1987). Orders not disposing of all the issues between the litigating parties are appealable only “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, supra, 191 Conn. 31.

There is no steadfast or comprehensive definition of “final judgment” that applies in all cases. Rather, we must look to the circumstances of each case to determine whether a final judgment exists to invoke the jurisdiction of an appellate court. In the present case, count one of the complaint seeks a declaratory judgment. Count two alleges breach of contract and seeks monetary damages for Maryland’s refusal to cover Walsh and Exel under Maryland’s insurance policy with Hyde. In rendering its decision, the trial court spoke only to the remedy of the declaratory judgment requested in count one, on which issue it found in favor of Maryland. There is no question that the trial court’s rendering of a declaratory judgment is a final judgment as to count one. The court did not, however, expressly decide the breach of contract claim in count two. We therefore must determine whether the declaratory judgment nevertheless resolves the issues raised by the plaintiffs in count two.

Count two is predicated on the premise that Maryland is contractually bound to provide a defense and to pay any award or costs connected with the Arpin suit that are incurred by Walsh and Exel. In granting summary judgment in favor of the defendant, the trial court expressly held that “Walsh and [Exel] do not qualify as insureds, by definition” and that “Maryland . . . does not have a duty to defend [Exel] and Walsh.” Because the court held that Walsh and Exel are not covered by the policy, the court, in effect, determined that the plaintiffs cannot prevail on a claim of breach of contract.

We therefore hold that the trial court’s judgment in this case, although seemingly interlocutory, is appeal-able as a final judgment because the trial court’s actions so conclude the rights of the parties that further proceedings cannot affect them. Id. We further hold that under the second prong of Curdo, this court has jurisdiction to hear and determine this appeal.

II

Under Connecticut case law, “ ‘it is the claim which determines the insurer’s duty to defend; and it is irrelevant that the insurer may get information from the insured, or from any one else, which indicates, or even demonstrates, that the injury is not in fact “covered.” ’ ” Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 112, 230 A.2d 21 (1967), quoting Lee v. Aetna Casualty & Surety Co., 178 F.2d 750, 751 (2d Cir. 1949). The insurer’s duty to defend “arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage.” LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 255, 268 A.2d 663 (1970). In the present case, Maryland’s duty to defend Exel and Walsh must be determined by the allegations contained in the Arpin suit.

The trial court thoroughly reviewed the allegations in both the Arpin suit and the Exel suit, and relied on the specific allegations of the Arpin suit to determine whether Maryland has a duty to defend Exel and Walsh. It concluded that the Arpin suit does not state a cause of action that on its face appears to be within the terms of the insurance policy. We agree.

Applying the aforesaid law to the allegations contained in the Arpin suit, we conclude that Maryland had no duty to defend and indemnify Walsh and Exel. The trial court’s conclusions under the facts and circumstances of this case are in complete accord with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    STATE OF CONNECTICUT v. ANDRE BOISVERT
    (14338)
    Dupont, C. J., and Foti and Spallone, Js.
    Argued November 1, 1995
    decision released February 27, 1996

      Robert J. McKay, with whom, on the brief, was Gregory A. Thompson, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John Davenport, assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered by the court, following his plea of nolo contendere, to the offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). The dis-positive issue in this appeal is whether a roadside sobriety checkpoint, established for the purpose of detecting violations of § 14-227a (a), violates the provisions of article first, §§ 7 and 9, of the Connecticut constitution.

The trial court found the following facts. On September 10, 1993, at approximately 11 p.m., the defendant was operating a motor vehicle on Wolcott Road, which is Route 69, in the town of Wolcott. At that time, five Wolcott police officers, together with five or six members of the state police, were conducting a sobriety checkpoint near the intersection of Wolcott and Nichols Roads. The defendant stopped his automobile at the checkpoint, and a Wolcott patrol officer engaged the defendant in a brief conversation, inquiring where the defendant was coming from and whether he knew the time. The defendant did not know the correct time, emitted an odor of alcohol on his breath, and slurred his speech. The officer instructed the defendant to pull his vehicle into an adjacent parking lot and turn off his vehicle’s engine. Thereafter, the defendant failed certain field sobriety tests. The officer also determined that the defendant’s driver’s license was under suspension. Upon completion of the field tests, the police officers arrested the defendant and transported him to police headquarters where they administered breathalyzer tests. The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a) and operating a motor vehicle while his license was under suspension in violation of General Statutes § 14-215 (c).

On November 5, 1995, prior to the commencement of trial, the defendant filed a motion to dismiss the charges against him, alleging that “there is neither statutory or state constitutional authority, absent probable cause, to stop a driver on the Connecticut roadways.” The trial court denied the defendant’s motion and filed a written memorándum of decision that addressed the defendant’s claim “that the initial stop of his vehicle during the sobriety checkpoint constituted an unreasonable and unlawful seizure in violation of the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the Connecticut constitution.”

The trial court, in a well reasoned memorandum of decision, rejected the defendant’s claim that sobriety checkpoints violate article first, § 7, of our state constitution. The court analyzed the constitutionality of sobriety checkpoints by employing a test that balanced the competing interests of the state against the individual’s liberty, as had been done by our Supreme Court in State v. Januszewski, 182 Conn. 142, 148, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). The defendant conceded during oral argument, and we agree, that this balancing test, as adopted by the trial court, is the proper test to use in this case. The defendant argues, however, that the test was not properly employed. He argues that the stop of an automobile for the purpose of a sobriety check, even if conducted pursuant to neutral criteria and even if involving only a brief and unobtrusive stop, is not permissible under article first, § 7. The defendant contends that stopping a motor vehicle at a sobriety checkpoint is unreasonable without a suspicion of wrongdoing because an individuars right to privacy must outweigh the state’s interest in safety. We do not agree.

There is no question that the initial detention of the defendant at the sobriety checkpoint was for general investigatory purposes and did not constitute an actual arrest of his person or a complete seizure of his person or automobile. Nonetheless, a sufficient restraint on the defendant’s liberty is evident and implicates his right under article first, § 7, to be secure in his person against “unreasonable searches and seizures.” The question, therefore, is simply whether the stop was reasonable. “[T]here can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” Camara v. Municipal Court, 387 U.S. 523, 536-37, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). We judge the permissibility of a particular law enforcement practice by balancing its intrusion on the individual’s interests against its promotion of legitimate state governmental interests, and examine the intrusion to determine whether it is the minimum search necessary under the circumstances. State v. Lamme, 19 Conn. App. 594, 599, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990).

“The state has a vital interest in keeping intoxicated drivers off the roads and highways. . . . Balanced against that strong state interest is the intrusiveness of roadside sobriety testing, by which police measure the physical performance of a suspected intoxicated driver before allowing that person to continue driving.” Id. While the results of a sobriety test are admissible if the test does not involve long delay or unreasonable intrusion and is administered on the basis of a reasonable and articulable suspicion; id.; the defendant goes one step further and argues that the initial stop itself must be based on “reasonable or articulable suspicion,” otherwise, the defendant maintains, the stop does not pass state constitutional standards under article first, §7.

Article first, § 7, of the Connecticut constitution may provide more substantive protection to citizens than does the fourth amendment of the United States constitution. State v. Miller, 227 Conn. 363, 379, 630 A.2d 1315 (1993); State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985). “Just as the commands of the fourth amendment are not absolute, neither are those of article first, § 7, of the state constitution.” State v. Geisler, 222 Conn. 672, 691, 610 A.2d 1225 (1992). In this case, we must decide whether greater protection is afforded by article first, § 7, of the Connecticut constitution than by federal law, specifically in forbidding the use of sobriety checkpoints. We conclude that sobriety checkpoints are a valid exercise of police power under our state constitution, that no requirement of a “reasonable or articulable suspicion” must exist for the initial stop, and that the balancing test, which is not challenged herein, is the proper test to be utilized. That test determines whether the strength of the public interest in combating the threat to public safety of operators of motor vehicles whose ability to operate may be impaired due to the consumption of intoxicating liquor, and the effectiveness of roadside checkpoints outweigh the minimal intrusion on a motorist’s privacy. Our inquiry, however, does not end here. We must determine whether the trial court properly utilized the balancing test to conclude as it did.

While we may not disturb facts found by the trial court unless the finding is clearly erroneous; State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985); because the issue involves a claimed constitutional right, we examine the record thoroughly to determine whether the subordinate facts justify the trial court’s conclusion that the initial stop of the defendant was constitutionally valid. State v. Howard, 221 Conn. 447, 454, 604 A.2d 1294 (1992).

A citizen’s reasonable right to privacy may not be subject to random or arbitrary intrusions merely at the whim of law enforcement. Minimal intrusion in the interest of public safety may be allowed in the form of checkpoint stops when the stop is conducted pursuant to a practice embodying neutral criteria. The trial court recognized these concerns in applying the balancing test to the facts of this case and determined that on September 10, 1993, the Wolcott police, assisted by the state police, conducted the spot check and kept interference with individual liberty to a minimum. Moreover, the trial court found that the majority of drivers were stopped for only one or two minutes, were required to answer a few questions and produce the expected papers, and that there was no evidence of abusive or threatening conduct by the police against individuals stopped. No persons were singled out arbitrarily for investigation, and the officers in the field had no discretion whatsoever as to whom to stop. All drivers were stopped except during one brief period when a supervisor, in order to alleviate a traffic backup, ordered that a number of cars should be allowed to pass.

The procedure in conducting this spot check was in accordance with state police guidelines promulgated by the commissioner of public safety in § 16.1.6, entitled “Spot Checks,” of the department of public safety’s Administration and Organizational Manual. Among other things, these procedures require that the establishment and method of operation be approved in advance by certain ranking officers, that the location, date and time be carefully chosen after considering many factors, including the safety of the public and those conducting the operation and the potential inconvenience to the public. The guidelines also specify that notice of a spot check be given to the news media at least three days in advance, giving the name of the town and approximate time. Upon stopping a vehicle, the law enforcement officer must reassure the driver that the spot check is a routine traffic operation. The guidelines also delineate criteria for the selection of the area and the procedure to conduct the initial stop consistent with safety and uniformity. The trial court found that “although a press release was issued in August of 1993, it did not specify the date or approximate time of the spot check planned for September, and no evidence was introduced to prove that publication did, in fact, occur prior to September 10, 1993. ” The court, however, found that the Wolcott and state police officers conducted the September 10, 1993 checkpoint in substantial compliance with the guidelines.

The trial court weighed the gravity of the public concern served by protecting the public from drunken drivers, the effectiveness and adequacy of the sobriety checkpoint and the severity of the interference with the individual’s liberty. In performing the state constitutional law analysis, the trial court properly considered federal precedent, decisions of other states, and other trial court decisions in Connecticut. The court noted that “[n]umerous United States and Connecticut Supreme Court opinions have emphasized the magnitude of the drunk driving problem and a state’s interest in eradicating it. The enormity of this problem and the tragic consequences it has for society cannot be seriously disputed.” See also State v. Hickam, 235 Conn. 614, 668 A.2d 1321 (1995).

We agree that the initial stop of the defendant’s motor vehicle at the sobriety checkpoint, without reasonable and articulable suspicion, was not precluded by article first, § 7. All of the significant aspects of the guidelines, from site selection to the police procedures and conduct employed during the stops, were followed with safety being the paramount consideration. The trial court’s conclusion in utilizing the balancing test that “ [t]he need to prevent loss of lives, personal injury and property damage clearly outweighs the modest intrusion on the individual driver’s rights to privacy which occurred that evening in Wolcott when they were briefly stopped at the checkpoint,” is justified by the subordinate facts found.

The defendant contends, in the alternative, that even if the roadblock or sobriety checkpoint is constitutionally valid, the trial court improperly determined that law enforcement personnel followed the guidelines and procedures. As previously discussed, the trial court specifically found that police officers conducted the September 10, 1993 sobriety checkpoint in Wolcott in accordance with the state police guidelines. The defendant, who had no objection to the guidelines’ being accepted into evidence, did not demonstrate how or why the court’s findings are clearly erroneous. The record shows that the court’s conclusions are justified by the subordinate facts found as to the operation of the checkpoint in accordance with the guidelines.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plea was entered conditional on 1 he light to 1 ake an appeal pursuant to General Statutes § 54-94a and Practice Book § 4003.

       General Statutes § 14-227a (a) provides: “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 or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (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-hundredths of one per cent or more of alcohol, by weight.”

       Article first, § 7, of the constitution of Connecticut provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
      Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       Although the police charged the defendant with operating a motor vehicle while his driver’s license was under suspension in violation of General Statutes § 14-215 (c) there is no disposition in the trial court record regarding this charge. The defendant has not raised any issues concerning this charge on appeal.

       The defendant did not claim a violation of article first, § 9, of the constitution of Conned icut in his motion to dismiss. The defendant filed no motions to dismiss, amend or rectify his motion to dismiss. Therefore, the scope of § 9 is not currently before us, as the trial court did not address it and it is raised for the first time on appeal. If this court was to consider the defendant’s claims pursuant to article first, § 9, one of our state constitutional provisions that guarantees due process of law, we would be guided by our Supreme Court’s holding that, a brief investigatory detention, even without probable cause, passes state constitutional muster. State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990).

       The defendant also briefed a claim that “the seizure of the defendant was unreasonable and unsupported by reasonable and articulable suspicion” and that a “totality of circumstances” test should have been employed requiring an objective basis for stopping the defendant. At oral argument, however, the defendant abandoned his argument based on the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (momentary detention of individual by police for investigative purposes justified if officer able to point to specific, articulable facts taken together with rational inferences from them, reasonably warrant intrusion, even if no probable cause for stop), but argues that a condition precedent to a lawful stop under our state constitution, requires a particular suspicion of wrongdoing as opposed to stops of all motorists driving within a particular locale.

         Although the trial court found, and the state conceded, that the stopping of a motor vehicle at a sobriety checkpoint constitutes a “seizure” under our state constitution, we do not necessarily view this intrusion and restraint as such; see State v. Williams, 227 Conn. 101, 115, 629 A.2d 402 (1993); nor do we deem such a finding necessary for the proper disposition of this appeal. We recognize that pursuant to the fourth amendment to the United States constitution a “seizure” occurs when an automobile is stopped and its occupants detained even if the stop is limited and the detention brief. Marshall v. Barlow’s, Inc., 436 U.S. 307, 312, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978).

       The court determined that, while advance publication is usually preferred, it is not considered constitutionally necessary.

       The trial court found that the Wolcott police were briefed on the manner of conducting a sobriety checkpoint in accordance with the state police guidelines and that the checkpoint in question was conducted according to neutral criteria. In addition, the trial court determined that of the 675 drivers previously stopx>ed at four separate checkpoints at the same location, police arrested fourteen drivers, 2 percent, for violating § 14-227a (a).


text:
    JANE DOE ET AL. v. BRIDGEPORT HOSPITAL ET AL.
    (15200)
    Dupont, C. J., and Lavery, Landau and Spear, Js.
    Considered November 29, 1995
    decision released February 27, 1996

      Monica Copertino Chioffi, in support of the motion.

      Craig A. Fontaine, in opposition to the motion.
   LANDAU, J.

The plaintiffs, Jane Doe and John Doe, have filed a motion for review of the trial court’s decision denying articulation of the granting of summary judgment in favor of the defendant Fred Braun. They seek relief because the trial court, in its attempt to articulate, adopted by reference the defendant’s conclusions of fact and law presented in his memorandum in support of his motion for summary judgment. We conclude that the court’s practice in this case is improper and, therefore, grant review of the plaintiffs’ motion and grant the relief requested therein.

The following procedural history is relevant to our disposition of this motion. The plaintiffs brought this action against the defendant as a result of damages suffered after Jane Doe was informed that she tested positive for the human immunodeficiency virus (HIV) when, as alleged by the plaintiffs, Jane Doe is not HIV positive. The defendant moved for summary judgment on all counts against him on the grounds that there were no material facts in dispute and he was entitled to judgment as a matter of law. The trial court granted the defendant’s motion. The plaintiffs’ appeal followed.

Pursuant to Practice Book § 4051 the plaintiffs moved the trial court to articulate the factual and legal bases for its decision granting summary judgment for the defendant. The court responded, “The motion for articulation is denied. In granting the defendant’s motion for summary judgment the trial court necessarily agreed with the defendant that there was ‘no genuine issue as to any material fact and that the party [was] entitled to judgment as a matter of law.’ Practice Book § 384. While it is improper for the court to import verbatim into a memorandum of decision a moving party’s claimed facts and conclusions of law; Grayson v. Grayson, 202 Conn. 221, 223, 520 A.2d 225 (1987); still, ‘in this day of suffocating court dockets’; Fengler v. Northwest Connecticut Homes, Inc., 215 Conn. 286, 292, 575 A.2d 696 (1990); it is or ought to be acceptable for the trial court, on a pretrial motion such as that giving rise to this appeal, to adopt by implied or express reference that party’s statements of material facts and conclusions of law. Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 23 (7th Cir. 1992); see also Pepsico, Inc. v. Redmond, 54 F.3d 1262, 1267 (7th Cir. 1995), and cases cited therein. This the [trial] court has done.”

In decisions that “constitute a final judgment for purposes of appeal under Sec. 4000, the court shall, either orally or in writing, state its decision on the issues in the matter. The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. ...” Practice Book § 4059 (a) (5). In this case, the trial court’s response, incorporating by reference the defendant’s memorandum in support of his motion for summary judgment, does not constitute adequate compliance with the mandates of § 4059.

The situation created by the court’s response in this case is similar to those cases in which the trial court has not given any indication of the basis of its decision. Appellate review in each situation requires this court to cull through the record in an attempt to surmise the trial court’s conclusions. See State v. Hoeplinger, 27 Conn. App. 643, 646, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). We will not review the defendant’s memorandum to surmise what facts the trial court considered material and what law the trial court applied to determine that the defendant is entitled to judgment. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Gallant v. Esposito, 36 Conn. App. 794, 798, 654 A.2d 380 (1995).

We have in the past emphasized the inadequacy of a trial court’s adoption of a party’s factual or legal conclusions as the basis for the court’s decision. In Grayson v. Grayson, 4 Conn. App. 275, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987) (certification improvidently granted), the trial court filed a memorandum of decision that adopted, essentially verbatim, the plaintiffs requested findings of fact. Although we affirmed the trial court’s decision because those findings were supported by the evidence, we emphasized that “the practice of adopting parties’ proposed findings of fact invites error or sloppy analysis on the judge’s part. More importantly, the appearance of justice is just as important as the reality, and a verbatim adoption of the facts proffered by one of the advocates invites a public suspicion of the trial court’s decision. The perceptions by the public and by the losing litigant of our system of justice are surely not enhanced by such a practice.” Id., 284.

In Hartford v. Tucker, 8 Conn. App. 209, 512 A.2d 944 (1986), the trial court adopted and incorporated by reference in its memorandum of decision a party’s lengthy trial brief as the basis for its decision, rather than finding its own facts and making independent conclusions. We found this practice to be even less acceptable than that displayed in Grayson “since a trial brief is not drafted by a party so much to present an adequate factual basis for deciding the case as it is by design and the rules of advocacy to provide a legal basis for decision in favor of the subscriber. It is not to be treated by the court as judicial precedent might be considered in a decision.” (Emphasis in original.) Id., 214-15 n.10.

The trial courts in Grayson and Tucker each issued a memorandum of decision in which the court articulated the party’s conclusions on which it relied. Therefore, although we disapproved of the courts’ means for reaching their conclusions, we nonetheless had before us in each case a memorandum of decision to review. In this case, however, we must review the defendant’s memorandum in support of his motion for summary judgment to attempt to determine the trial court’s conclusions. Furthermore, in Grayson and Tucker we did not consider the issue of the trial courts’ adoption of the parties’ conclusions as the bases for their decisions until we had reviewed the merits of the appeals. We could, therefore, grant relief in those cases only to the extent that the courts’ decisions warranted reversal. The issue of the court’s adoption of the defendant’s conclusions in this case comes before us through a motion for review under Practice Book § 4054. That section provides this court with the authority to “direct any action it deems proper.” We are at a much earlier stage of the proceeding in this case than in Grayson and Tucker, and, therefore, in a position to remedy the trial court’s adoption of the defendant’s conclusions as the basis for its decision.

We understand the trial court’s dilemma in denying articulation of its decision and adopting the defendant’s conclusions because of the “suffocating court dockets” and its desire to hasten the procurement of justice. Such concerns are certainly valid and should be considered in the adjudication of court cases. See State v. Guess, 39 Conn. App. 224, 233, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995). We note, however, that the trial court’s practice in this case, albeit well intentioned, has increased the docket rather than decrease it. Because an adequate record for review is not available to this court, we must now direct the trial court to articulate its decision.

The plaintiffs’ motion for review is granted; the relief requested is granted in that the trial court is directed to articulate the bases for granting the defendant’s motion for summary judgment.

In this opinion the other judges concurred.

       Also named as defendants are Bridgeport Hospital and David Baker. We refer in this opinion to Braun as the defendant.

       The trial court in fact denied the plaintiffs’ motion for articulation, but then stated that it adopted the defendant’s statement of facts and conclusions of law.

       Practice Book § 4051 provides in relevant part,: “Any motion . . . seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues .... The action of the trial judge as regards such a correction or addition may be reviewed by the court in which the appeal is pending under Sec. 4054. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based. . . ."