text:
    State of Connecticut v. Leroy Dukes
    (11147)
    Daly, O’Connell and Heiman, Js.
    Argued September 14
    decision released November 3, 1992

      Donald D. Dakers, special public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Reidy, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2). The defendant claims that the trial court improperly (1) held that the rape shield law, General Statutes § 54-86f, did not prohibit the state from introducing into evidence a statement made by the victim to her treating physician as to her lack of prior sexual relations, (2) found that the probative value of the statement made by the victim to her treating physician concerning her lack of prior sexual experience outweighed the possible prejudicial effect on the defendant, and (3) permitted the state to substitute the crime of sexual assault in the fourth degree for a charge of sexual assault in the first degree after granting a judgment of acquittal as to the more serious offense, thereby violating the defendant’s due process rights. We affirm the trial court’s judgment.

The following evidence was available for the consideration of the jury, some of which was apparently rejected by it in light of its verdict. The victim, the sister of the defendant’s wife, often baby-sat for her sister’s three children when both the defendant and his wife were working. The defendant’s wife worked at a health care facility from 11 p.m. to 7 a.m. The defendant was employed by a New Haven newspaper, and usually began work at approximately 3 a.m. When she babysat, the victim stayed the night at the apartment occupied by the defendant, his wife and his wife’s children. She slept on a couch in the living room that folded out into a bed.

On November 6, 1989, at about 10:40 p.m., the defendant picked up the victim at her Hamden residence and brought her to his New Haven residence to care for his wife’s children. The defendant left the residence to take his wife to work. While he was away, the victim opened the couch. She fell asleep wearing a housedress, a skirt, underpants and stockings. Her sister’s three year old daughter slept with her on the couch.

At about 11:30 p.m., the victim awoke and observed the defendant, clad only in undershorts standing in the living room. She turned away from him. He then got into bed with the victim and the child. The defendant fondled the victim’s breasts and thighs, and touched her vaginal area with his fingers and inserted his fingers into her vagina through her underpants. He kept telling the victim that he wanted to make a woman out of her. The victim repeatedly told the defendant to stop, but he refused. The child remained on the couch during the incident. The victim subsequently left the couch to take the child to the bathroom, telling the defendant that he should be gone when she returned. When she returned from the bathroom with the child, the defendant had gone into his bedroom. The victim was afraid to call anyone for fear that the defendant might hear her and beat her.

The defendant fell asleep in his bedroom and the victim fell asleep on the couch. At about 4 a.m., the victim awoke and heard the defendant snoring and realized that he had not left for work. She got up from the couch and knocked on the bedroom door to awaken the defendant. The defendant indicated that he did not have to work that day. He also told the victim that he wanted to apologize for his earlier actions. The victim told the defendant that any apology would have to be made in his wife’s presence. He replied that it was his house and he could do what he wanted.

The defendant then grabbed the victim and pulled her onto his bed. The victim was still fully clothed. The defendant pulled up the victim’s dress and touched her breasts with his mouth. He repeatedly told the victim that he wanted to make a woman out of her. The victim asked the defendant to stop. He refused. The defendant removed the victim’s underpants and, after fondling her breasts, buttocks and vaginal area, penetrated her vagina with his fingers and his penis. The victim tried to push the defendant off of her, but was unable to do so.

After the incident, the defendant remained in the bedroom and the victim returned to the couch. She did not call anyone because she continued to fear what the defendant might do if he heard her.

At about 7 a.m., the victim arose and prepared the children for school. When her sister returned, the victim did not tell her what had occurred, fearing that her sister would not believe her. When she returned to the Hamden residence, which she shared with her grandmother, the victim did tell her grandmother about the incidents, and her grandmother called the police.

A New Haven police officer took the victim’s statement and transported her and her grandmother to Yale-New Haven Hospital. At the hospital, the victim told Craig Newton, a social worker, and Witler Christensen, a detective from the New Haven police department, that she had been sexually assaulted by the defendant.

Patricia Rodrigues, a resident physician in obstetrics and gynecology, examined the victim. Prior to the physical examination, Rodrigues took a medical history from the victim who related that she suffered from sickle cell disease and irregular menstrual periods. She also told Rodrigues that she had never been sexually active prior to the assaults on her. The physical examination of the victim revealed that the hymenal ring had been disrupted and the vaginal cavity contained nonmotile sperm.

Prior to his arrest by the New Haven police, the defendant gave a statement to Christensen in which he admitted that he had engaged in two sexual encounters with the victim. He claimed, however, that the encounters had both been consensual.

The defendant was charged in a four count information stemming from the two alleged sexual assaults occurring at 11:30 p.m. and 4 a.m. At the completion of the state’s evidence, the defendant moved for a judgment of acquittal on each of the four counts of the information. The trial court heard argument, and, without objection on the part of the defendant, permitted the state to file an amended information charging the defendant with the crime of sexual assault in the fourth degree, after first indicating its belief that the state had failed to produce sufficient evidence to permit submitting the original first count charge of sexual assault in the first degree to the jury. The trial court also rendered a judgment of acquittal on the third count of the original information charging unlawful restraint arising out of the first claimed assault. The trial court permitted the count of sexual assault in the first degree that alleged a sexual assault occurring at about 4 a.m. to be submitted to the jury and, at the request of the defendant, charged the jury that sexual assault in the fourth degree was a lesser included offense thereof. The trial court also submitted to the jury a single count of unlawful restraint in the first degree arising out of the sexual assault that was alleged to have occurred at about 4 a.m.

The jury found the defendant not guilty of sexual assault in the first degree but guilty of the lesser included offense of sexual assault in the fourth degree. The jury also found the defendant guilty of sexual assault in the fourth degree on the basis of the actions that were alleged to have occurred at about 11:30 p.m. on November 6, 1989. The jury found the defendant not guilty of the crime of unlawful restraint in the first degree.

The trial court sentenced the defendant to a term of one year on the first conviction of sexual assault in the fourth degree and to a period of six months on the second conviction, to run consecutively. This appeal followed.

I

The defendant claims that the trial court improperly permitted into evidence a statement made by the victim to the examining physician at the hospital as to her lack of sexual activity prior to the sexual assaults on her by the defendant. He claims that the trial court incorrectly found that the probative value of the evidence outweighed its prejudicial nature. We do not agree.

Prior to admitting the evidence, the trial court held a hearing in the absence of the jury to determine what the testimony would be. After that hearing, the trial court indicated that it would admit the testimony and would give the jury an instruction limiting its use of the testimony. The trial court made its ruling on the basis of its determination that it would balance any potential prejudice to the defendant by its limiting instruction.

Rodrigues, in the presence of the jury, testified that the victim stated that she had never been sexually active until this event. The subject matter of this answer was in the medical history that the physician had obtained from the victim at the time of her examination. The defendant took exception.

When objecting to evidence, counsel must succinctly reveal the basis of the objection. State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153 (1975); State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971); Casalo v. Claro, 147 Conn. 625, 628-29, 165 A.2d 153 (1960); State v. Manluccia, 2 Conn. App. 333, 341-42, 478 A.2d 1035, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984). Practice Book § 288 provides: “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. ... An exception to the ruling must be taken in order to make it a ground of appeal.” The purpose of this rule is to apprise the trial court of “the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.” State v. Braman, 191 Conn. 670, 684, 469 A.2d 760 (1983).

“This court reviews rulings solely on the ground on which the party’s objection is based.” State v. Manning, supra. Our review of the trial court’s ruling on an objection is limited to the grounds asserted by the party at trial. State v. Braman, supra, 684-85; State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982); State v. Manluccia, supra. We have consistently stated that we will “not consider . . . evidentiary rulings . . . where no claim of error was preserved for review on appeal by proper objection and exception.” State v. Hoffler, 174 Conn. 452, 461, 389 A.2d 1257 (1978). “Only the most exceptional circumstances will save a claim, constitutional or otherwise, from the fatal consequences of a defendant’s failure to make a timely objection. . . . The policy behind this rule is both ancient and sound and does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal.” (Citations omitted; internal quotation marks omitted.) State v. Baker, 182 Conn. 52, 56, 437 A.2d 843 (1980).

Nothing in the record indicates in any way that the trial court or the state’s attorney was alerted to the specific ground on which the defendant wanted to object. Despite the defendant’s present claim that the trial court improperly found that the probative value of the evidence outweighed its prejudicial effect, this claim was not properly preserved before the trial court. No basis was offered by the defendant as to his motion to strike Rodrigues’ testimony about the victim’s lack of prior sexual activity. No specific objection was made by the defendant to the limiting instruction given by the trial court, nor does the record reveal that the defendant ever requested the trial court to change its limiting instruction or expand on it. The defendant failed to comply with Practice Book § 288 by not placing on the record his specific ground as to the basis of his claim as to the inadmissibility of the proffered evidence. The record is also devoid of any exceptional circumstance that would mandate our review of this unpreserved claim, and we thus decline to afford review. See State v. Baker, supra, 56.

II

The defendant next asserts that the trial court improperly permitted the state to file an amended information charging the defendant with sexual assault in the fourth degree after granting a motion for judgment of acquittal as to the original charge of sexual assault in the first degree. The defendant concedes, as he must, that he failed to preserve this claim for review, but claims that it is reviewable under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We are unpersuaded.

In State v. Golding, supra, 239-40, our Supreme Court articulated four conditions that must exist before a defendant may prevail on an unpreserved claim of constitutional error: “(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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis added.) We are free to focus our attention on whichever condition is most relevant in the circumstances of the particular case under review. Id., 240.

We are persuaded that the defendant cannot satisfy the third prong of Golding that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.

Additional facts are necessary for a full understanding of our disposition of this issue. At the completion of the state’s evidence, the defendant moved for a judgment of acquittal on all four counts of the information pursuant to Practice Book § 883. The trial court appears to have granted the defendant’s motion as to the count of the information charging the defendant with the crime of sexual assault in the first degree that was alleged to have occurred at 11:30 p.m. on November 6, 1989, and as to the count charging the defendant with unlawful restraint alleged to have occurred at the same time. The trial court, with the acquiescence of defense counsel, allowed the state to file an amended information substituting a charge of sexual assault in the fourth degree for the count upon which the trial court had apparently granted the judgment of acquittal. The defendant conceded, both at oral argument and in his brief, that he had acquiesced in the filing of the amended information about which he now complains.

The right of the state to file amendments to the information after the commencement of the trial is controlled by Practice Book § 624. “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant. ” (Emphasis added.) Practice Book § 624. The rules of practice that relate to the filing of amendments to the information have their genesis in the mandate that requires that a defendant’s rights be protected by his receiving “fair and adequate notice of the charges against him so as to afford him an opportunity to prepare an adequate defense.” State v. Cole, 8 Conn. App. 545, 550, 513 A.2d 752 (1986); see also State v. Young, 191 Conn. 636, 644-46, 469 A.2d 1189 (1983). Because the defendant permitted the filing of the amended information without objection and acquiesced in the proceedings, it necessarily follows that the prophylactic purpose of the rule to require adequate notice has been fulfilled.

Here, the defendant was advised that the court anticipated that the state would file a substituted information charging him with “[sexual] assault in the fourth degree that will be the charge on count one.” His attorney made the unsolicited comment, “Okay.” Counsel for the defendant also indicated at the same time that he intended to request that the trial court charge the jury that sexual assault in the fourth degree is a lesser included offense of sexual assault in the first degree, a request that the trial court granted. This request coupled with counsel’s affirmative response to the court’s statement as to the filing of the substituted information is, in our judgment, tantamount to his express consent to amend the information. See State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987).

It is, in our judgment, disingenuous for a defendant to request a charge on sexual assault in the fourth degree as a lesser included offense as to the remaining count of sexual assault in the first degree, respond to the court’s indication that he was going to permit an amendment to the information to charge sexual assault in the fourth degree as a substitute for another count of sexual assault in the first degree by responding “okay,” and claim now that this action constituted erroneous action on the part of the trial court. Action induced by the appellant cannot, under ordinary circumstances, be a ground of error. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983).

Further, the defendant did not contest that he had engaged in two sexual encounters with the victim, but rather admitted to the police that he had twice engaged in sexual conduct. He argued that the encounters had been consensual. Thus, nothing in the filing of the amended information could prejudice the defendant since it would not change his defense that any sexual contact with the victim had been consensual. See State v. Franko, 199 Conn. 481, 490-91, 508 A.2d 22 (1986).

Since the defendant cannot satisfy his burden of establishing the third requirement of State v. Golding, supra, we decline to afford review.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-73a (a) (2) provides: “A person is guilty of sexual assault in the fourth degree when ... (2) such person subjects another person to sexual contact without such other person’s consent. . . .”

       This claim was expressly withdrawn by the defendant at the time of oral argument.

       The original information charged the defendant in count one with sexual assault in the first degree arising out of the 11:30 p.m. incident, count two with sexual assault in the first degree arising out of the 4 a.m. incident, count three with unlawful restraint in the first degree arising out of the 11:30 p.m. incident and count four with unlawful restraint in the first degree arising out of the 4 a.m. incident.

       Amended information count three.

       Amended information count one.

       The issue of whether General Statutes § 53a-73a (2) is a lesser included offense of § 53a-70 (a) has not been raised by the defendant, and, therefore, is not before us in this case.

       Amended information count two.

       In its ruling, the trial court stated: “And I’m doing that [admitting the testimony and giving a limiting instruction] in terms of what is prejudicial and what’s not. So, I think that’s the best way I can balance the rights of everybody here, and that’s what I’m going to do. Okay.”

       See footnote 6, supra.

       After the testimony had already been elicited, the following occurred:
      “[Attorney Dakers, Special Public Defender]: Before you go any further, I should make these two objections. Before I asked that the information be stricken as to her response that the patient indicated that she was not sexually active.
      “[The Court]: And I trust that you claim that the question [is] in that history. Attorney Reidy?
      “[Attorney Reidy, Assistant State’s Attorney]: I claim it. It’s very relevant, Your Honor.”
      The trial court then gave its limiting instruction, after which the following occurred:
      “[Attorney Dakers]: Exception, Your Honor.
      “[The Court]: You have an exception. Please proceed, Attorney Reidy.”

       See footnote 12, infra.

       While the trial court never expressly granted the motion for judgment of acquittal, the following occurred after the completion of the arguments by counsel on the motion:
      “[The Court]: My anticipation is that the state will file a substituted information for assault in the fourth [sic] degree that will be the charge on count one.” [The charge originally set forth in count one was the sexual assault in the first degree alleged to have occurred on November 6,1989, at about 11:30 p.m.]
      “[Attorney Dakers, Special Public Defender]: Okay.
      “[The Court]: Count two will be all in the first degree [sexual assault in the first degree] with a lesser included with [sexual] assault in the fourth degree.”
      Before the arguments by counsel and the charge by the court, the trial judge spoke with the jury and informed them: “Now the third count [of the amended information] and last count, there are now three counts, not four. The third count pertains to the first incident, that is, the November 6th, at 11:30. It is now the only count that pertains to that incident, and it now is sexual assault in the fourth degree. Which is a little different than sexual assault in the first degree. ... So now, essentially what we have with respect to the first incident is one count of sexual assault in the fourth degree


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. Michael Rose
    (10471)
    Dupont, C. J., Foti and Freedman, Js.

      Argued September 21
    decision released November 10, 1992

      Deborah Del Prete Sullivan, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, and John W. Watson, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4). He was sentenced to a term of twenty years imprisonment on the first count and five years imprisonment on the second count, with the sentences ordered to run consecutively. On appeal, the defendant claims that the trial court improperly (1) failed to suppress identification evidence, (2) declined to allow an in-court lineup, and (3) failed to sever the offenses. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At approximately 12:40 a.m. on March 16,1990, a black male approached the service counter at the Shell Food Mart at 144 Arch Street in Hamden. He was wearing a San Francisco 49ers jacket, a T-shirt, and jeans. He had a gun drawn and ordered the cashier, Lori Kemp, to remove the cash register drawer and place it on the counter. Kemp did as she was told, and the man took money from the drawer. He then asked her if more money was available, and she gave him additional money from beneath the counter. The robber took between $150 and $200 before fleeing. A security camera recorded the incident on videotape.

Later that day at police headquarters, Kemp viewed 200 to 300 photographs but was unable to identify the robber. On April 6, 1990, the police visited her at another place of employment and showed her an array of eight photographs. She selected the defendant’s photograph and identified him as the robber. At trial, Kemp again identified the defendant as the robber.

Five days after the robbery, on March 21, 1990, at approximately 10 p.m., two black males entered the same Shell Food Mart. One of the men, who wore a long heavy jacket, was armed with a gun. At that time, Kemp’s mother, Beverly LaFreniere, was working behind the cashier’s counter. Also present in the store was the owner, Theresa Kubick, who was arranging merchandise in one of the aisles. One of the robbers grabbed Kubick and pushed her behind the counter, while the other, with the gun, ordered LaFreniere to open the cash register. She complied, and the second man took between $100 and $200 from the cash drawer. The armed robber then asked about money under the counter, and instructed the second robber to look beneath the counter for additional money. Kubick stated there was no more money, and the robbers departed. This incident was also recorded by the security camera.

On April 5,1990, the police visited LaFreniere at the Shell Food Mart and showed her an array of eight photographs. She picked out the defendant’s photograph as that of the robber with the gun. On the following day, Kubick separately viewed the same array and also selected the defendant’s photograph as that of the robber with the gun. At trial, both LaFreniere and Kubick made in-court identifications of the defendant as the robber with the gun.

I

The defendant first claims that the trial court should not have admitted into evidence the three out-of-court identifications and the three in-court identifications, because the photographic identifications were unnecessarily suggestive and unreliable. He therefore alleges that his due process rights were violated.

“An in-court identification must be excluded, as violative of the defendant’s due process rights, only if it is the product of an unconstitutional pretrial identification procedure.” State v. Tatum, 219 Conn. 721, 726-27, 595 A.2d 322 (1991). “In determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the ‘totality of the circumstances.’ ” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); see also State v. Johnson, 28 Conn. App. 645, 648-49, 612 A.2d 799 (1992).

To determine whether an identification that resulted from an unduly suggestive procedure is nevertheless reliable, we must weigh the corrupting effect of the suggestive procedure in light of certain factors such as “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [that person’s] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Internal quotation marks omitted.) State v. Theriault, supra, 373-74; State v. Lago, 28 Conn. App. 9, 18, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992).

The defendant, as the one seeking to suppress identification evidence, bears the initial burden of proving that the identification resulted from an unconstitutional procedure. State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991); State v. Johnson, supra, 649. We conclude that the defendant has failed to establish that the photographic array was impermissibly suggestive. While in light of this failure we need not address the reliability of the out-of-court identifications; State v. Outlaw, 216 Conn. 492, 503, 582 A.2d 751 (1990); even if we were to assume that the procedure was unnecessarily suggestive, the defendant has also failed to meet his burden of proving that, under the totality of the circumstances, these identifications were so unreliable as to be inadmissible into evidence. See State v. Mayette, 204 Conn. 571, 529 A.2d 673 (1987).

The general description of the armed robber given by the witnesses was of a black male in his early twenties, who was clean shaven and wore a flattop hairstyle with the sides shaved. It is the defendant’s claim that while the eight photographs in the array shown to the witnesses all depicted young black males of that general age group, only the defendant’s photograph matched the entire description of the robber. He contends that the hairstyles of some were different, that some had beards and mustaches, that some appeared older than the “early twenties,” and that some appeared heavier than the robber described by the witnesses. As such, the defendant argues, the array was unnecessarily suggestive in that it focused the witnesses’ attention on the defendant’s photograph, thereby conveying a message to them that the police suspected him.

At the suppression hearing, Kemp indicated that she had selected the defendant’s photograph because of the hairstyle and the cold, uncaring eyes which she recognized as those of the robber. She also observed that one photograph resembled the defendant and showed a clean shaven, young black male, with hair cut close on the sides. The person in the photograph may have had a flattop hairstyle, but she could not tell because “the top of the picture is cut off.” The other six photographs showed men with either a beard or a mustache, and five of those six depicted men without flattop hairstyles. The record is silent as to whether the defendant’s photograph was among the hundreds of pictures Kemp viewed on the night of the crime.

LaFreniere testified during the suppression hearing that of the eight photographs shown to her, the defendant’s and two others had flattop hairstyles, with two others depicting men with mustaches. She eliminated those because the face of one was totally different from that of the robber and the eyes and face of the second were unlike the robber’s eyes and large nose, which she felt made the robber appear mean. She selected the defendant’s photograph on the basis of facial features.

Kubick selected the defendant’s photograph on the basis of his eyes and long neck. Like LaFreniere, she excluded the others not because of facial hair or hairstyle, but because of facial features.

We conclude that the defendant has not established that the photographic arrays were impermissibly or unnecessarily suggestive. See State v. Hamele, 188 Conn. 372, 377-78, 449 A.2d 1020 (1982). Having so concluded, we need go no further. State v. Holliman, 214 Conn. 38, 49, 570 A.2d 680 (1990). Nevertheless, we will consider the reliability of the resulting identifications. See State v. Johnson, 22 Conn. App. 477, 483, 578 A.2d 1085 (1990).

Under the totality of the circumstances, the victims’ identifications of the defendant were reliable. They had ample opportunity to view the unmasked defendant at close range, face-to-face. In each confrontation, there was sufficient lighting and all three victims focused on the robber as he pointed a gun at them. The three victims were able to give him a high degree of attention. As victims, and not mere spectators, they were apt to be more reliable sources of identification. State v. Payne, supra, 109. They were able to give accurate and detailed descriptions initially, and they showed no hesitation, but rather a high degree of certainty in their individually selecting the defendant’s photograph from the array. The fact that fourteen, fifteen and twenty-one days had passed between the crime and the extrajudicial identifications does not render those identifications unreliable. See State v. Payne, supra (less than one month between the crime and the identification); State v. Arroyo, 13 Conn. App. 687, 690, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988) (eighteen days between the crime and the identification). Thus, we conclude that the trial court reasonably could have found the out-of-court identifications to have been reliable under the totality of the circumstances, even had an impermissibly suggestive identification procedure occurred. Because the out-of-court identifications are deemed to be reliable, the in-court identifications are also deemed to be reliable. State v. Piskorski, 177 Conn. 677, 745, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Johnson, supra, 22 Conn. App. 484.

We therefore conclude that the trial court properly denied the defendant’s motion to suppress.

II

The defendant next claims that the trial court abused its discretion by denying his motion for an in-court lineup. This denial was made immediately following the court’s ruling that the out-of-court identifications were not unnecessarily suggestive, were reliable and, therefore, were admissible.

The defendant concedes that he has no constitutional right to a lineup. “ ‘There is no constitutional requirement that an in-court identification confrontation be conducted as a lineup or be otherwise free of suggestion. An in-court testimonial identification must be excluded if it is the product of an out-of-court confrontation arranged by the state, which was unnecessarily suggestive and conducive to irreparable misidentification.’ ” State v. Smith, 200 Conn. 465, 469-70, 512 A.2d 189 (1986), quoting Commonwealth v. Wheeler, 3 Mass. App. 387, 391, 331 N.E.2d 815 (1975). We earlier concluded that the out-of-court identification procedure in this case was not unnecessarily suggestive and was reliable. The decision whether to allow the defendant an in-court lineup was therefore within the discretion of the trial judge. State v. Smith, supra, 470; State v. Cubano, 9 Conn. App. 548, 555, 520 A.2d 250 (1987); see also State v. Felder, 7 Conn. App. 489, 494-95, 509 A.2d 542 (1986) (procedure for in-court identification is left to trial judge’s discretion). We find no abuse of discretion in the trial court’s denial of the defendant’s motion.

The trial court also denied the defendant’s request to have his brother seated next to him at trial. The purpose of that request was to allow another type of lineup. The trial court did not abuse its discretion in denying this request.

Ill

Finally, the defendant argues that the trial court improperly denied his motion to sever the offenses. He claims that the cumulative effect of the evidence presented on the two crimes so confused the jury that he was prejudiced and that substantial injustice resulted.

When a defendant stands accused of two or more similar offenses, they may be joined at trial if they are based on related acts that evince a common scheme, intent or motive. State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988). The question of joinder or severance rests on the sound discretion of the trial court. State v. Boscarino, 204 Conn. 714, 720, 529 A.2d 1260 (1987); State v. Carpenter, 19 Conn. App. 48, 62, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). The defendant bears the heavy burden of showing that a denial of severance resulted in substantial injustice beyond the curative power of jury instructions. State v. Herring, 210 Conn. 78, 95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Whether a joint trial will be substantially prejudicial to the rights of the defendant means something more than that it will be less advantageous to the defendant. State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982).

Our Supreme Court has held that a trial court should consider several factors in determining whether severance is required. “These factors include: (1) whether the charges involved discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Citations omitted; internal quotation marks omitted.) State v. Jennings, 216 Conn. 647, 658, 583 A.2d 915 (1990). Our review of the record leads us to conclude that joinder did not result in substantial injustice.

While the perpetrators of the two robberies were not identically dressed, and the armed robber was perhaps holding a different type of revolver in a different hand, the crimes were so similar as to lead reasonably to the conclusion that they were part of a continuing course of criminal conduct and a common scheme. Not only were the crimes at the same location, they occurred within five days of each other, and were generally similar in nature. The armed robber in each incident appeared similar, used a revolver, and demanded money from the cash register. While money was not usually kept beneath the service counter, the robber of March 16 was given money from under the counter, and the robber of March 21 specifically asked for money he thought might be kept under the counter. The victims at both robberies were female employees.

We conclude that the trial court did not abuse its discretion in denying the defendant’s motion for severance since the two robberies were similar events. See State v. Greene, supra.

Even if we accept the defendant’s argument that the evidence of one robbery would have been inadmissible at the trial of the other, we cannot agree that we must therefore conclude that severance was required. First, while the two events were similar, the charges were based on specific facts that were discrete and easily distinguishable, with different victims as witnesses. The state’s presentation of the case was comprehensible to the jury and logically presented; it was organized chronologically by separate incident. Before evidence was presented, the trial court read to the jury the state’s allegations as to separate robberies occurring on two separate dates. The crimes were not of a violent nature, nor did they involve brutal or shocking conduct by the defendant. The trial was neither complex nor long; it was completed in two days with six witnesses and twenty-three exhibits. Additionally, the trial court gave an instruction that emphasized to the jury that the defendant was on trial for two separate crimes of first degree robbery, that its findings in each case should be separate and distinct from its findings in the other, and that each offense should be considered separately.

We conclude that the trial court’s decision on joinder did not result in substantial injustice and that the trial court did not abuse its discretion in denying the defendant’s motion to sever.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing con-tamed in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       The defendant’s claim that the denial of his motion to suppress deprived him “of due process of law” is limited to a federal constitutional claim since he made no separate state constitutional claim. Although we do not do so here, this does not mean that we cannot make a separate state constitutional analysis if we choose to. State v. Hernandez, 28 Conn. App. 126, 131 n.2, 612 A.2d 88, cert. denied, 223 Conn. 902, 610 A.2d 177 (1992); State v. Geisler, 25 Conn. App. 282, 284 n.2, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992).


text:
    Frances Roswell v. State of Connecticut
    (10982)
    Foti, Heiman and Cretella, Js.
    Argued September 25
    decision released November 10, 1992

      Edward T. Dodd, Jr., for the appellant (plaintiff).

      Robin L. Wilson, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (state).
   Foti, J.

The plaintiff appeals from the decision of the workers’ compensation review division affirming the commissioner’s denial of additional specific benefits that she claims are due on behalf of her deceased husband, Frank Roswell. The issue is whether on the date of his death Roswell was entitled to an amended specific benefits award for an additional 50 percent permanent partial disability, payable to the plaintiff. We affirm the review division’s decision.

The record discloses that on July 16, 1984, Roswell, while employed by the state at the Southbury Training School, suffered a compensable myocardial infarction that was the subject of a voluntary agreement reciting a 25 percent permanent partial disability of his heart. Roswell reached maximum medical improvement on June 20, 1985. Specific benefits were paid as they became due and concluded on March 13, 1989. Roswell died on March 14, 1989, from congestive heart failure, and the plaintiff is presently receiving death benefits as provided by law.

The plaintiff sought additional specific benefits on the basis of a rating by Dennis Dobkin, a board certified cardiologist, who began treating Roswell in February, 1987. Roswell’s condition deteriorated after the maximum improvement date of June 20,1985, and he underwent bypass surgery in March, 1987. Recovery from that surgery did not go smoothly and additional hospitalizations were required, as were frequent adjustments in medication. Roswell was totally disabled through December, 1987. In March, 1988, his condition further deteriorated and he was again hospitalized. Significant heart problems persisted, and he continued to be disabled from March, 1987, until his death. In February, 1989, Dobkin issued a report stating that Roswell had a 75 percent impairment of his heart. The commissioner found that this level of impairment rendered Roswell totally disabled.

As part of his finding and award, the workers’ compensation commissioner found that Roswell was totally disabled from the time of the March, 1987 surgery until his death. The commissioner therefore suspended payment of specific benefits that had been provided for in the voluntary agreement as of March 1, 1987, and ordered that total disability benefits be paid from that date to the date of Roswell’s death. Thereafter, the plaintiff was awarded the specific benefits that Roswell would otherwise have received from March 1, 1987, through March 13, 1989.

The plaintiff, in her appeal before the review division, sought to receive specific benefits for an additional 50 percent permanent partial loss of the function of the heart, to reflect Roswell’s 75 percent impairment. The review division affirmed the commissioner’s finding and award and dismissed the plaintiff’s appeal. The review division held that whether Roswell should receive permanent partial benefits or should be considered totally disabled was within the discretion of the commissioner as trier, and that the commissioner’s conclusion was not so unreasonable as to justify judicial interference.

The plaintiff alleges that she is entitled to additional specific benefits and dependency benefits under General Statutes § 31-308, and also claims applicability of Public Acts 1989, No. 89-346.

Public Acts 1989, No. 89-346, which amended General Statutes § 31-308 by adding subsection (e), effective October 1, 1989, is not applicable. Our Supreme Court has clearly indicated that “new workers’ compensation legislation affecting rights and obligations as between the parties, and not specifying otherwise, applie[s] only to those persons who received injuries after the legislation became effective, and not to those injured previously.” Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988). This date of injury rule was first stated in Schmidt v. O.K. Baking Co., 90 Conn. 217, 220-21, 96 A. 963 (1916), and continues today. Nothing in the language or history of Public Acts 1989, No. 89-346 leads us to believe that the legislature intended that its applicability would not be controlled by the traditional date of injury rule. The law in effect on July 16, 1984, the date of Roswell’s injury, is therefore the law that applies to all claims arising out of his disability and death.

“It is the power and the duty of the commissioner, as the trier of the fact, to determine the facts.” Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). The commissioner is also called upon to exercise discretion in determining whether a claimant should receive permanent partial benefits or be considered totally disabled. Osterlund v. State, 129 Conn. 591, 600, 30 A.2d 393 (1943).

There is a distinction between an award for total or partial disability and one for specific indemnity. The former is for loss or impairment of earning power, the latter for the resulting handicap through life because of the loss or loss of use of certain members of the body. Panico v. Sperry Engineering Co., 113 Conn. 707, 710, 156 A. 802 (1930). The decedent was totally disabled at the time of his death. Had he lived, he would have been entitled to temporary total benefits, not specific compensation or permanent partial disability benefits. The commissioner may also, in his discretion, award total disability benefits even after maximum medical improvement has been attained. Osterlund v. State, supra.

The permanent partial disability benefits to which Roswell was entitled concluded on March 13, 1989, the day prior to his death. While Roswell had reached maximum medical improvement on February 8, 1989, and payment of specific benefits began at that time, there was neither a voluntary agreement nor a commissioner’s award granting such benefits. See Morgan v. East Haven, 208 Conn. 576, 546 A.2d 243 (1988); Forkas v. International Silver Co., 100 Conn. 417, 123 A. 831 (1924). Without such an award or voluntary agreement, the plaintiff has no right to claim benefits that would become due in the future. Just as an estate of a decedent is not entitled to permanent partial disability benefits that have not matured at the time of death; McCurdy v. State, 26 Conn. App. 466, 470-71, 601 A.2d 560, cert. granted, 221 Conn. 920, 608 A.2d 686 (1992); a dependent is not entitled to specific benefits, in the absence of an award or voluntary agreement, that have not accrued at the time of the decedent’s death. We, therefore, conclude that the review division properly determined that the commissioner did not abuse his discretion.

The decision of the compensation review division is affirmed.

In this opinion the other judges concurred.

       The plaintiff is Frances Roswell, the surviving dependent widow of the decedent, Frank Roswell.

       Public Acts 1989, No. 89-346 provides: “Section 31-308 of the general statutes is amended by adding subsection (e) as follows:
      “(NEW) (e) Any award for compensation made pursuant to this section shall be paid to the employee, or in the event of such employee’s death, to his surviving spouse or, if he has no such spouse, to his dependents in equal shares or, if he has no such spouse or dependents, to his children, in equal shares, regardless of their age.”


author: O’Connell, J.

text:
    Teresa Moran Carey v. Thomas E. Carey
    (11061)
    O’Connell, Landau and Heiman, Js.

      Argued September 23
    decision released November 10, 1992

      Robert S. Kolesnik, with whom, on the brief, was Maureen E. Norris, for the appellant (plaintiff).

      Thomas E. Carey, pro se, the appellee (defendant).
   O’Connell, J.

The plaintiff appeals from the trial court’s decision on her motion to modify child support. The plaintiff claims that the trial court improperly (1) refused to consider the child support guidelines where the modification was based on earning capacity rather than actual earnings, and (2) refused to consider the defendant’s second wife’s income in computing the child support to be ordered. At oral argument, the plaintiff stated that if we reverse the trial court on her first claim, she would withdraw the second claim. We reverse and remand for a new hearing on the first claim; accordingly, the second claim is deemed withdrawn.

The marriage of the parties was dissolved on December 1, 1981, at which time the defendant was ordered to pay $50 per week for support of their one minor child. At the time of the dissolution, the defendant’s employment yielded him a net weekly wage of $196. After the dissolution, the defendant remarried and voluntarily left his job in order to devote time to his two businesses and household duties. In exchange for the defendant’s agreement to perform household duties, his second wife agreed to provide his support.

The trial court found that when the defendant voluntarily left his employment, his annual salary was $19,596 and that, if he had not terminated his employment, his salary at the time of the modification would have been $28,386. The court also found that the defendant’s current reported net income was below $135 per week. The court concluded that the defendant’s termination of employment and resulting loss of employer provided medical benefits for the child, coupled with an increase in the child’s medical needs, constituted a substantial change in circumstances, thereby justifying a modification of the original support order pursuant to General Statutes § 46b-86.

The plaintiff relied on the child support guidelines in asserting that the support payments should be increased to $145 per week based on the defendant’s earning capacity. The court held, however, that “the guidelines do not serve as an effective criteria where a support order must be predicated upon earning capacity as distinguished from actual earnings. This is especially true here where the defendant’s reported income is a weekly amount below the $135 set by the Commission for Child Support Guidelines . . . .’’Accordingly, the court increased the support payments to $100 per week. The plaintiff appealed.

General Statutes § 46b-215a created a commission charged with establishing “criteria for the establishment of guidelines to ensure the appropriateness of child support awards.” General Statutes § 46b-215b mandates that “[t]he child support and arrearage guidelines . . . shall be considered in all determinations of child support amounts . . . within the state,” subject to a rebuttable presumption that the amount so determined is the proper figure for a support award. (Emphasis added.)

Although the trial court correctly recognized that the guidelines generally are not applicable to parents with a weekly net income below the self-support reserve of $135, the trial court failed to consider the entire mandate of the guidelines. They state that “[ejxcept as provided under the deviation criteria, the guidelines do not apply to a parent whose net weekly income is less than $135.” (Emphasis added.) Connecticut Child Support Guidelines § (b) (2). As a result, even where income does not exceed the self-support reserve, the guidelines are applicable and must be considered “as provided under the deviation criteria.”

Among the enumerated deviation criteria set forth in the general principles of the guidelines is the “present and potential earning capacity of a party. ” (Emphasis added.) Connecticut Child Support Guidelines § (a) (3) (B). This reflects the well recognized family law principle that, in a marital dissolution proceeding, the court may base financial awards on the earning capacity rather than the actual earned income of the parties. Miller v. Miller, 181 Conn. 610, 611-12, 436 A.2d 279 (1980). This principle is particularly applicable where, as here, the person to be charged has intentionally terminated his employment thereby substantially reducing or eliminating his actual earnings. Schmidt v. Schmidt, 180 Conn. 184, 189-90, 429 A.2d 470 (1980).

We are unable to discern any intent in the statute or the deviation criteria that they should not be considered in a determination of a support order based on earning capacity rather than support orders based on actual income. We recognize that while the statute requires the court to consider the guidelines, it does not require that they be rigidly applied to all determinations of child support. Battersby v. Battersby, 218 Conn. 467, 468-69, 590 A.2d 427 (1991). The guidelines are the starting point for the determination of a support order. The amount derived from consideration of the guidelines is presumed to be the amount of support to be ordered. This presumption, however, may be rebutted by the trial court’s finding on the record that the guideline amount would be inequitable or inappropriate in a particular case based on the deviation criteria set forth in the commission’s general principles.

In the present case, the trial court improperly refused to consider the child support guidelines in accordance with the statutorily mandated procedure.

The plaintiff’s second claim is not reached.

The support order is reversed and the case is remanded for a new hearing on the plaintiff’s motion for modification consistent with this opinion.

In this opinion the other judges concurred.

       The trial court found that the defendant’s two businesses were “minuscule” and did not contribute materially to his income.

       At the time of the hearing, two children had been born into the second marriage.

       General Statutes § 46b-86, as amended by No. 91-76, § 1, of the 1991 Public Acts provides in relevant part: “(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support. . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines . . . unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. . . . After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstance was contemplated at the time of dissolution. . . .”

       General Statutes § 46b-215a, as amended by No. 91-391, § 7, of the 1991 Public Acts provides in relevant part: “The commission for child support guidelines is established to review the child support guidelines promulgated pursuant to section 8 of public act 85-548, to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards and to issue updated guidelines not later than January 1, 1991, and every four years thereafter. ...”

       General Statutes § 46b-215b, as amended by No. 91-391, § 8, of the 1991 Public Acts provides: “(a) The child support and arrearage guidelines promulgated pursuant to section 8 of public act 85-548 and any updated guidelines issued pursuant to section 46b-215a shall be considered in all determinations of child support amounts and payment on arrearages and past due support within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support or payment on any arrearage or past due support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.
      “(b) In any proceeding for the establishment or modification of a child support award, the child support guidelines shall be considered in addition to and not in lieu of the criteria for such awards, established in sections 46b-84, 46b-86, 46b-130, 46b-171, 46b-172, 46b-198, 46b-215, 17-324 and 17-578.”


author: Heiman, J.

text:
    Valdenor DeAlmeida v. M.C.M. Stamping Corporation et al.
    (10977)
    Landau, Heiman and Freedman, Js.

      Argued September 24
    decision released November 10, 1992

      David A. Kelly, with whom was Jennifer Hoch, for the appellants (defendants).

      William R. Jones, for the appellee (plaintiff).
   Heiman, J.

The defendants appeal from a decision of the compensation review division (review division) of the workers’ compensation commission. The review division affirmed the finding and award of the workers’ compensation commissioner (commissioner) as well as his denial of the defendants’ motion to vacate. On appeal, the defendants assert that the review division incorrectly (1) affirmed the finding and award when the commissioner failed to hold an evidentiary hearing to require the plaintiff to establish the causation of the plaintiff’s injuries and (2) affirmed the commissioner’s denial of the defendants’ motion to vacate when the plaintiff’s notice of claim failed to include a warning about the preclusive effect of General Statutes § 31-297 (b). We affirm the decision of the review division.

The facts necessary to the resolution of this appeal may be summarized as follows. The plaintiff, Yaldenor DeAlmeida, had been employed by the defendant M.C.M. Stamping Corporation at its plant in Danbury from February 10, 1986, until February 10, 1988.

On January 26, 1988, the plaintiff went to the Dan-bury Hospital complaining of back pain. He was given medication and thereafter attempted to return to work. On February 10, 1988, the plaintiff left work because of the pain associated with his back.

On April 1, 1988, the defendants attempted to give notice of their intention to contest liability for compensation, but failed to comply with the requirements of General Statutes § 31-321 in that the notice was mailed by ordinary and not by certified or registered mail as mandated by the statute. On September 9, 1988, the plaintiff’s employer received, by certified mail, a notice of claim for compensation, setting forth that the plaintiff had sustained injuries from February 10,1986, until January 26,1988, in the nature of low back strain syndrome and degenerative disc disease at L5-S1. The defendants failed to file a notice of contest served in the manner mandated by § 31-321 within the time limitation for the service of such notice mandated by General Statutes (Rev. to 1987) § 31-297 (b). The plaintiff filed a motion to preclude the defendants from contesting either the plaintiffs right to receive compensation on any ground or the extent of his disability, based on the defendants’ failure to comply with the time constraints of § 31-297 (b) and their additional failure to comply with the service requirements of § 31-321. After a formal hearing on the motion to preclude, the commissioner entered an order dated March 15, 1989, granting the motion to preclude and ordering the defendants to pay to the plaintiff the “benefits under Chapter 568, C.G.S., to which he now is and may hereafter become entitled.”

On August 14,1990, the commissioner filed his finding and award, taking administrative notice of his prior order granting the plaintiff’s motion to preclude. The commissioner also took administrative notice that the defendants had appealed from his order granting the plaintiff’s motion for preclusion and that the appeal had been voluntarily withdrawn. The defendants claimed before the commissioner that the preclusion afforded pursuant to General Statutes § 31-297 (b) was not absolute, but rather still required the plaintiff to establish that a “causal relationship to the injury alleged of the sequelae claimed and . . . [that] those sequelae” exist. The plaintiff asserted that the preclusion was absolute and that the prohibitions in § 31-297 (b) must be read literally. He asserted that once preclusion is ordered, the defendants had “no right to question the causal relationship of the sequelae claimed by him to the injury for which it had been conclusively presumed to have accepted responsibility.”

The commissioner held that since a motion to preclude had been granted and an appeal from that order had been voluntarily withdrawn, the language of the statute must be given its plain meaning and the defendants “now have no right to contest the [plaintiffs] right to receive compensation on any grounds or the extent of his disability resulting from the alleged back injury, compensability of which has been conclusively presumed to have been accepted . . . .”

After the commissioner denied the defendants’ motion to correct, the defendants appealed to the review division, claiming, inter alia, that No. 90-116, § 9, of the 1990 Public Acts modifies the provisions of General Statutes § 31-297 (b). This section provides that the employer shall not be conclusively presumed to have accepted compensability when the written notice of claim fails to include a warning that the employer shall be precluded from contesting liability unless a notice contesting liability is filed within the time limits set forth in the statute. The defendants claimed that that statute is procedural in nature and should be applied retroactively. The defendants also claimed that the finding and award of the commissioner was incorrect because the commissioner failed to hold an evidentiary hearing to establish the existence of causation. The compensation review division rejected both of the defendants’ claims and this appeal followed. We affirm the decision of the review division.

I

The defendants first claim that the review division incorrectly affirmed the finding and award of the commissioner when there had not been an evidentiary hearing held before the commissioner to establish causation. The defendants posit that despite the absolute preclusion language contained in General Statutes § 31-297 (b), it may, nonetheless, challenge the subject matter jurisdiction of the commissioner. It further argues that subject matter jurisdiction requires proof, not only of the employment relationship between the parties, but also proof that the injury arose out of and in the course of employment. Thus, the defendants’ argument is that the issue of causation is a jurisdictional fact not established by preclusion under the statute. We do not agree.

The workers’ compensation statutes provide a vehicle to “ ‘compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.' ” Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 193, 588 A.2d 194 (1991), quoting Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); Pagani v. BT II, Limited Partnership, 24 Conn. App. 739, 743, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991). These statutes “compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985); Pagani v. BT II, Limited Partnership, supra, 744. Thus, in order to meet the legislative purpose of creating a quick vehicle for the recovery by the claimant for work related injuries, time constraints as mandated by the statute are a critical method of ensuring that the purpose of the statute will be fulfilled. See Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 540, 494 A.2d 555 (1985); Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276, 281, 535 A.2d 1321, cert. denied, 207 Conn. 805, 540 A.2d 393 (1988).

The jurisdiction of workers’ compensation commissioners is “ ‘confined by the Act and limited by its provisions.’ ” Castro v. Viera, 207 Conn. 420, 426, 541 A.2d 1216 (1988), quoting Gagnon v. United Aircraft Corporation, 159 Conn. 302, 305, 268 A.2d 660 (1970); Tufaro v. Pepperidge Farm, Inc., 24 Conn. App. 234, 236, 587 A.2d 1044 (1991). Administrative agencies, including the workers’ compensation commission, constitute tribunals of limited jurisdiction and their jurisdiction is limited to the express grant of power ceded to them by the legislature. Castro v. Viera, supra, 428. Thus, where the question of the existence of subject matter jurisdiction is raised, it must be considered and decided by the commissioner. Id., 430. The issue of whether the commissioner has subject matter jurisdiction is not barred by the conclusive presumption of General Statutes § 31-297 (b), where the issue of subject matter jurisdiction has been clearly raised. Id.

The workers’ compensation commissioner has subject matter jurisdiction when he finds as a fact that a contract of employment exists between the employer and employee. Id., 426, 433. The employer-employee relationship is “threshold to the rights and benefits under the act; a claimant or his representative who is not an employee has no right under this statute to claim for and be awarded benefits. The act is not triggered by a claimant until he brings himself within its statutory ambit.” Id., 433. The relationship of employer and employee is a “jurisdictional fact to be proven in this case to bring the plaintiffs within the class that the legislature obviously intended be covered.” Id. Here, the commissioner made the requisite jurisdictional finding, not attacked by the defendant, that the relationship of employer and employee existed between the plaintiff and the defendant. This conferred subject matter jurisdiction on the commissioner. See id.

The concept of subject matter jurisdiction as including the issue of causation finds no support in either statutory or case law. To adopt the construction of the statute that would exclude the issue of causation from those matters subject to the doctrine of preclusion would be effectively to disregard our duty to interpret statutory enactments in such a manner as to effectuate their manifest purpose or objective. See Manaker v. Manaker, 11 Conn. App. 653, 661, 528 A.2d 1170 (1987). The language of § 31-297 (b) is absolute in its terms. “If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury . . . and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability. ” (Emphasis added.) General Statutes § 31-297 (b). We are obligated to interpret the legislative meaning inherent in the statutory enactment. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310, 592 A.2d 953 (1991). Where the language used in a statutory enactment is clear and unambiguous, we “assume that the words themselves express the legislature’s intent and there is no need to look further for interpretative guidance.” Id. “We are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained.” Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988), quoting Schurman v. Schurman, 188 Conn. 268, 273, 449 A.2d 169 (1982). We will not read into “clearly expressed legislation provisions which do not find expression in its words.” Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., supra. The manifest purpose of the preclusion statute is to ensure that employers investigate claims promptly and that employees be timely advised of the specific reason for the denial of their claim. Castro v. Viera, supra, 431. Extending the exception beyond that of subject matter jurisdiction would be at variance with the legislative intent. See id.

The case law in this area is also clear. While the issue of the requisite contract of employment is not barred by the conclusive presumption under § 31-297 (b); id., 430; the right to contest liability is, however, subject to the preclusive action of the commissioner where the defendant fails to file the requisite notice to contest liability within the time limited by statute. Adzima v. UAC/Norden Division, 177 Conn. 107, 113-14, 411 A.2d 924 (1979); LaVogue v. Cincinnati, Inc., 9 Conn. App. 91, 93, 516 A.2d 151, cert. denied, 201 Conn. 814, 518 A.2d 72 (1986); Bush v. Quality Bakers of America, 2 Conn. App. 363, 372-74, 489 A.2d 820, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). Statutory and case law both demonstrate that the employer is precluded from asserting that an injury did not arise out of and in the course of employment if it fails to contest liability. Adzima, v. UAC/Norden Division, supra; LaVogue v. Cincinnati, Inc., supra; Bush v. Quality Bakers of America, supra.

We conclude that the issue of causation does not affect the subject matter jurisdiction of the commissioner. The review division correctly determined that where a motion for preclusion has been granted, the issue of causation is subject to it and is, thus, conclusively presumed.

II

The defendants next assert that the review division acted improperly in failing to give retroactive effect to an amendment to General Statutes § 31-297 (b) contained in No. 90-116, § 9, of the 1990 Public Acts. The defendants claim that the amendment is procedural not substantive, and, thus, the review division incorrectly-failed to give it retroactive effect. We do not agree.

It is undisputed that the notice of claim given by the plaintiff to the defendants did not contain language required by the provisions of No. 90-116, § 9, of the 1990 Public Acts. It is also undisputed that the effective date of the amendment was October 1,1990, two years after the notice of claim was issued by the plaintiff. It is clear that the notice given by the plaintiff to the defendants complied with the provisions of § 31-297 (b) as it existed at the time of the injury and on the date of notice.

Our Supreme Court has consistently expressed reluctance to “construe statutes retroactively where the statutes affect substantial changes in the law, unless the legislative intent clearly and unequivocally appears otherwise.” State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); Rudewicz v. Gagne, 22 Conn. App. 285, 288, 582 A.2d 463 (1990). Procedural statutes generally will be applied retroactively absent contrary legislative intent. State v. Lizotte, supra; Rudewicz v. Gagne, supra. This rule, however, is not purely mechanical in its application. State v. Lizotte, supra. Absent an express legislative intent, a statute will not be applied retroactively, even if it is procedural, when “considerations of good sense and justice dictate that it not be so applied.” (Citations omitted; internal quotation marks omitted.) American Masons ’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 223, 384 A.2d 378 (1978). “These aids to legislative interpretation apply with equal force to amendatory acts which effectuate changes in existing statutes.” Id.

Here, the amendment would effectuate a change in the substantial vested rights enjoyed by the plaintiff and would effectively deprive him of his right of action. If the amendment were applied retroactively, the plaintiff, by virtue of failing to have performed an act not commanded by the statute at the time of his injury or on the date of his claim, would be deprived of the benefit of preclusion to which he was entitled on both the date of his injury and the date on which he gave notice. Thus, the amendment actually brings about a change in the substantive rights enjoyed by the plaintiff at the time of his injury. Id., 223. No. 90-116, § 9, of the 1990 Public Acts contains no clear legislative mandate that it is to be applied retroactively. Absent a clear legislative mandate, it defies common sense, justice and fair play to apply this amendment retroactively, and we decline to do so. See Carvette v. Marion Power Shovel Co., 157 Conn. 92, 96, 249 A.2d 58 (1968); Rudewicz v. Gagne, supra.

Our Supreme Court has also made it abundantly clear that workers’ compensation legislation affecting rights and obligations between the parties would apply only to those injured after the adoption of the legislation and not those previously injured. Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988). The General Assembly is presumed to be aware of the decisional law of our courts, and thus if the legislature “intends for legislation to change the interpretation of a judicially created concept [here, the date of injury rule], it must make that intent specific. ...” (Citation omitted; internal quotation marks omitted.) Id., 223. The legislation in no way shows that the legislature wanted to depart from the date of injury rule. We thus con-elude that the legislature intended that the amendment apply only prospectively from its effective date. Id., 224.

The review division correctly found that No. 90-116, § 9, of the 1990 Public Acts was not to be applied retroactively.

The decision of the review division is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-321 provides in pertinent part: “Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. . . .”

       General Statutes (Rev. to 1987) § 31-297 (b), as it existed on the date of the alleged injury, provided in pertinent part: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice . . . . If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.”

       No. 90-116, § 9, of Public Acts 1990 provides in pertinent part that “the employer shall not be conclusively presumed to have accepted compensability when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that the employer shall be precluded from contesting liability unless a notice contesting liability is filed within the time period set forth in this section.”


author: Freedman, J.

text:
    State of Connecticut v. Marvin Beasley
    (10691)
    Dupont, C. J., Lavery and Freedman, Js.
    Argued October 2
    decision released November 10, 1992

      Suzanne Zitser, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Freedman, J.

The defendant was charged with the crime of murder in violation of General Statutes § 53a-54a. After a trial by a jury of twelve, the defendant was found not guilty of murder but was found guilty of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). Thereafter, the trial court sentenced the defendant to be imprisoned in the Connecticut Correctional Institution at Somers for a term of twenty years, the maximum term allowed.

On appeal, the defendant claims that the “trial court violated the defendant’s rights to trial by jury and due process of law by sentencing him to the statutory maximum term of incarceration in order to punish him not only for the lesser included charge on which he was convicted but also for the greater charge on which he was acquitted.” We disagree.

The defendant did not properly preserve this claim in the trial court. The defendant can prevail on an unpreserved constitutional claim only if all of the conditions of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), are met. Here, we conclude that although there is an adequate record to review the claim and it is a claim of constitutional magnitude, the alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial. See id., 239-40.

The defendant bases his claim on two remarks made by the trial court prior to imposing sentence. The first remark followed a statement to the trial court by the victim’s mother expressing her disillusionment with the judicial system because the jury found the defendant not guilty of murder. The court responded to the victim’s mother by stating that it appreciated her statement “very sincerely” and went on to say that “[i]t was not the court who found this man guilty of manslaughter. It was the jury.”

The second remark, made by the trial court immediately prior to imposing sentence, was in pertinent part as follows: “Mr. Tytla [the state’s attorney] was wondering about what was missing as far as the charge of murder is concerned. And I can tell you, Mr. Tytla, it appeared to me from what the jury said, and I discussed this with them, they didn’t believe that there was a specific intent shown. My only reply to that is that shooting a man five times in the back is pretty specific as far as I’m concerned. I’ve had experience with guns in my service time. I’ve shot .45’s on more than one occasion. And I don’t believe that a .45 gun is going to go ta, ta, ta, ta, without somebody’s finger being there. I may be paraphrasing Mr. Beasley’s testimony, but that essentially is what he said. As far as this court is concerned, the facts and circumstances involved in this case, as I heard them in this courtroom, dictate that the court is to impose the maximum penalty.”

“[I]f a sentence is within statutory limits it is not generally subject to modification by a reviewing court. ... A sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he [or she] may and should consider matters that would not be admissible at trial. ... To arrive at a just sentence, a sentencing judge may consider information that would be inadmissible for the purpose of determining guilt . . . evidence of crimes for which the defendant was indicted but neither tried nor convicted . . . evidence bearing on charges for which the defendant was acquitted . . . and evidence of counts of an indictment which has been dismissed by the government.” (Citations omitted; internal quotation marks omitted.) State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986).

“The trial court’s discretion, however, is not completely unfettered. As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability. ... As long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he [or she] uses to fashion his [or her] ultimate sentence, an appellate court should not interfere with his [or her] discretion.” (Citation omitted.) Id., 127.

We have carefully examined the sentencing proceedings in this matter and conclude that the trial judge considered only information that met the test of reliability and that he had a reasonable and persuasive basis for relying on that information in fashioning the sentence. Consequently, the defendant’s claim must fail because the alleged constitutional violation does not clearly exist. State v. Golding, supra, 240.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Daly, J.

text:
    State of Connecticut v. David C. Wityak
    (10721)
    Daly, Foti and Lavery, Js.
    Argued September 16
    decision released November 10, 1992

      Mary Miller Haselkamp, assistant public defender, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Nanay Dolinsky, deputy assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (l). On appeal, the defendant claims that the trial court improperly admitted into evidence the testimony of state witnesses whose pretrial statements were not disclosed by the state as required under General Statutes § 54-86b and Practice Book § 752. The pretrial statements were not disclosed because the twenty-four hour broadcast tape on which they were recorded was erased according to routine police procedure.

From the evidence presented, the jury could reasonably have found the following facts. On September 10, 1990, at about noon, Francis Keith, the owner of a liquor store located on Main Street in Seymour observed a white Corvette parked across the street in a bank parking lot. Keith saw a male exit the Corvette and stagger across the street toward his establishment. When the male entered Keith’s store, he asked to purchase two cases of beer. Keith recognized the defendant. Because the defendant smelled strongly of urine and slurred his speech, Keith believed the defendant was inebriated. He therefore denied the defendant’s request to purchase some beer. The defendant then exited the premises. After staggering back across the street to his white Corvette, the defendant drove south in the northbound lane of the street.

Keith believed that the defendant might cause an accident and searched for a police officer without success. He noticed Michael Driscoll, the deputy fire marshal of Seymour, exit the restaurant adjacent to the liquor store. Keith approached Driscoll, explained what he had observed, and expressed his concern that the defendant might cause an accident. Keith asked Driscoll to contact the police department by the town radio that Driscoll carried with him. Keith then returned to his store. Subsequently, Driscoll walked to his vehicle and used the radio to notify the police dispatcher, Officer Jill DeFelice, of the information that Keith had relayed to him.

Officer John Cronin received a radio dispatch while on patrol at about noon on the same day. The dispatch warned him to be on alert for a white Corvette operated by an intoxicated person. Cronin knew that the defendant owned a white Corvette. Consequently, he went to the defendant’s residence on Brother’s Court to see whether the defendant’s Corvette was there. Upon arrival, he did not see the car in the defendant’s driveway and searched the town in an attempt to locate it. Cronin drove by the defendant’s driveway a number of times without seeing the car and then proceeded to police headquarters.

When Cronin returned to Brother’s Court the Corvette was not at the defendant’s residence. Cronin left Brother’s Court by way of Chamberlain Road, the only outlet. While stopped at the intersection of Chamberlain Road, a dead-end street, and Walnut Street, Cronin saw a white Corvette turn onto Chamberlain Road from Walnut Street. As the Corvette passed his police cruiser, Cronin recognized the defendant as the operator of the Corvette. At that time, Cronin did not observe any erratic driving by the defendant. Cronin momentarily lost sight of the Corvette during the short time he took to turn his cruiser around to pursue the defendant. Cronin testified that throughout his investigation, he probably contacted the dispatcher on his police radio to update the department on his search.

At the defendant’s residence, Cronin saw the Corvette parked in the defendant’s driveway, with the defendant standing alongside it. Cronin approached the defendant and asked to speak with him. The defendant’s condition was poor. He was soaked with urine from the chest down, his eyes were glassed over, he appeared confused, and he had great difficulty walking.

Concluding that the defendant was highly inebriated, Cronin arrested him at 1:18 p.m. for operating a motor vehicle while under the influence of intoxicating liquor. The results of the defendant’s breathalizer tests indicated that the defendant had a blood alcohol level of 0.33 percent at the time he was operating his vehicle prior to his arrest.

Before the defendant’s trial commenced, the defendant filed three pretrial motions to preclude the testimony of Keith, Driscoll, and Cronin because the twenty-four hour tape containing the broadcasts by Driscoll and Cronin had been erased, effectively making the state’s compliance with General Statutes § 54-86b and Practice Book § 748 et seq. impossible. The Seymour police department uses twenty-four hour tapes to record 911 calls, nonemergency calls, town radio transmissions, and department radio transmissions. The twenty-four hour tape is changed daily and is stored for one month before being reused. Thus, the recorded statements of Driscoll and Cronin were unavailable because the twenty-four hour tape in question had been reused according to routine procedure on October 10, 1990, one month after this incident took place.

After hearing the testimony of Keith, Driscoll, Cronin, and DeFelice, the trial court denied the defendant’s motions to preclude. The court found that Keith’s conversation with Driscoll did not amount to a statement as defined in Practice Book § 749 because it was not a verbatim transcription of Keith’s comments. With respect to the testimony of Driscoll and Cronin, the trial court determined that the erasure of the tape was not executed in bad faith. The court found that the state’s failure to preserve the tape did not prejudice the defendant and that the defendant’s right to confront Driscoll and Cronin would not be impaired. The defendant took exception.

Following the state’s direct examination of the three witnesses, the defendant requested production pursuant to Practice Book § 752 of all notes and statements made by the witnesses claiming that they were statements within the meaning of § 749. Because the broadcast tape had been reused, the statements on the broadcast tape were not available for cross-examination. Accordingly, the defendant moved to strike the testimony of Keith, Driscoll, and Cronin under Practice Book § 755. The trial court denied each of these three motions for the same reasons it had denied the motions to preclude. The defendant took exception to each of the trial court’s rulings.

The defendant challenges the trial court’s denial of his motions to preclude and to strike because the trial court improperly determined that (1) Keith’s conversation with Driscoll did not constitute a statement under the definition in Practice Book § 749, (2) the broadcasts made by Driscoll and Cronin did not constitute statements under the definition set forth in Practice Book § 749, and (3) the state satisfied its burden of showing nonproduction of the recorded broadcasts to be harmless. We affirm the judgment of the trial court.

The defendant first claims that Keith’s comments in his conversation with Driscoll constituted a statement subject to disclosure under Practice Book § 752. The defendant argues that the call made by Driscoll over the town radio was actually the statement of Keith, and, therefore, the trial court should not have admitted Keith’s testimony because the state failed to disclose the recording of Driscoll’s radio broadcast.

“Practice Book § 749 limits the disclosures governed by §§ 748 through 755 to two categories of materials: (1) A written statement made by a person and signed or otherwise adopted or approved by him; or (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement. State v. Myers, 193 Conn. 457, 470, 479 A.2d 199 (1984).” (Internal quotation marks omitted.) State v. Belle, 215 Conn. 257, 266, 576 A.2d 139 (1990). Therefore, materials that satisfy either of the § 749 definitions must be disclosed by the state upon proper request by the defendant under Practice Book § 752. State v. Cain, 223 Conn. 731, 746-47, 613 A.2d 804 (1992); State v. Hinton, 196 Conn. 289, 301, 493 A.2d 836 (1985).

To determine whether the trial court properly allowed Keith’s testimony into evidence, we must initially consider whether his conversation with Driscoll fell within the definition of statement set forth in Practice Book § 749. State v. Monteeth, 208 Conn. 202, 216, 544 A.2d 1199 (1988); State v. Black, 23 Conn. App. 241, 244, 579 A.2d 1107, cert. denied, 216 Conn. 827, 582 A.2d 204 (1990). The defendant claims that Keith’s testimony falls within the second definition of “statement.” We disagree.

The trial court ruled that the conversation was not a statement that the state was required to disclose under the requirements of Practice Book § 752. “[T]he trial court exercises broad discretion [in this determination] . . . and its findings will be disturbed only if they are clearly erroneous.” (Citations omitted.) State v. Black, supra. The trial court’s finding is supported by the fact that there is no indication that the conversation was taped or transcribed. Furthermore, Driscoll testified that when he contacted the police to inform them of Keith’s observations, he spoke in his own words. Thus, he did not relay Keith’s information verbatim. Nor was his call to the dispatcher made contemporaneously with Keith’s comments. This demonstrates that the erased tapes did not contain a substantially verbatim recital of Keith's oral statements. Therefore, Keith’s comments to Driscoll did not constitute a statement as defined in § 749 (2). Accordingly, we conclude that the trial court properly allowed Keith’s testimony into evidence.

We turn to the defendant’s second claim that the trial court improperly admitted the testimony of Driscoll and Cronin into evidence. The defendant argues that the state violated the disclosure provisions of the rules of practice when it failed to produce the twenty-four hour tape on which Driscoll’s call over the town radio and Cronin’s broadcast over the police radio were recorded. We find that the tape recording of Driscoll’s call and Cronin’s broadcasts were not statements according to the meaning of Practice Book § 749.

Before any court implements the disclosure provisions of the rules of practice, it must find that the statements in question fall within the meaning of statement set forth in Practice Book § 749 and General Statutes § 54-86b. State v. Belle, supra, 266. Our Supreme Court has recently determined that 911 emergency telephone calls are not statements that the state is required to disclose under our rules of practice. State v. Cain, supra. In the present case, as in Cain, a twenty-four hour tape, containing the statements requested by the defendant, was erased according to the routine procedure of the police department. This case, however, does not involve a 911 emergency telephone call. Instead, the tape requested by the defendant included recordings of Driscoll’s call over the town radio, and Cronin’s police radio broadcasts between approximately noon and the time of the defendant’s arrest. The defendant asserted at oral argument that this fact distinguishes the present case from State v. Cain, supra. The defendant’s claims to the contrary notwithstanding, we conclude that our Supreme Court’s opinion in Cain is dispositive of this appeal.

In State v. Cain, supra, our Supreme Court explained that Practice Book § 749 was not intended to encompass short emergency calls such as 911 emergency telephone calls. The court explained that the definition of statement found in our rules of practice was modeled after the definition set forth in the federal Jencks Act, 18 U.S.C. § 3500. State v. Cain, supra, 749. “The thrust of the definition of ‘statement’ under that act was to guard against the risk of quotation out of context from a ‘lengthy oral recital.’ Palermo v. United States, [360 U.S. 343, 78 S. Ct. 1217, 3 L. Ed. 2d 1287 (1959)].” State v. Cain, supra, 752-53. The rules of practice governing the disclosure to the defendant of statements made by the state’s witnesses guard against the same risk.

The same rationale relating to tapes of 911 emergency telephone calls applies to the recordings of the broadcasts made by Driscoll and Cronin. As with the 911 calls in Cain, there is no evidence to suggest that the radio broadcasts in question in this case were the lengthy, thorough descriptions that Practice Book § 749 contemplates. See State v. Cain, supra, 753. Driscoll’s call on the town radio was particularly similar to a 911 call because Driscoll was merely reporting a potentially dangerous driver to the police, the same way a person making a 911 emergency telephone call might. There is also no indication that Cronin’s broadcasts during the time in question were lengthy and detailed descriptions of every circumstance Cronin observed.

Our Supreme Court recognized that a rule requiring the preservation of every twenty-four hour tape would impose a heavy burden on municipalities. The state was therefore not required to produce the twenty-four hour tape on which the 911 emergency telephone call was recorded. Id., 734. The burden of storing the recordings of the town radio and the police radio broadcasts would be as heavy as the burden for the storage and administration of tapes of the 911 emergency telephone calls because the same twenty-four hour tape records 911 calls, town radio broadcasts, and police broadcasts. The same intolerable financial and administrative burdens for the preservation of 911 tapes as those enumerated in Cain would pertain to the storage of the tapes at issue here. We are not persuaded that this case is distinguishable from Cain. For these reasons, we find that Driscoll’s call over the town radio and Cronin’s broadcast over the police radio were not statements that the state was required to disclose.

Because the broadcasts are not statements that the state is required to produce under our rules of practice, our decision on this issue is dispositive of this appeal. Therefore, we need not consider the defendant’s claims involving harmlessness.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also charged with one count of operating a motor vehicle while the ratio in the blood of such person is ten-hundredths of one percent or more of alcohol, by weight, in violation of General Statutes § 14-227a (a) (2). He was found guilty on that count also. The trial court, in effect, dismissed that second count by not imposing a sentence on it.

       General Statutes § 54-86b provides: “(a) In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use.
      “(b) If the prosecution fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”

       Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       The state did not call DeFelice to testify at the trial.

       Practice Book § 749 provides: “The term ‘statement’ as used in Sec. 748 means:

        “(1) A written statement made by a person and signed or otherwise adopted or approved by him; or
      “(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       Practice Book § 755 provides: “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”

        State v. Cain, 223 Conn. 731, 746-47, 613 A.2d 804 (1992), was issued after the briefs in this ease were filed.