author: HEALEY, J.

text:
    STATE OF CONNECTICUT v. TROY LEWIS
    (AC 18635)
    Foti, Zarella and Healey, Js.

      Argued June 8
    officially released October 3, 2000

      Pamela S. Nagy, assistant public defender, with whom, on the brief, were Christy Doyle and Kerry Robair, certified legal interns, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (state).
   Opinion

HEALEY, J.

The defendant, Troy Lewis, appeals from the judgment of conviction, rendered after a jury trial, of three counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and one count of conspiracy to commit robbery in violation of General Statutes § 53a-48. These charges stem from three separate incidents that resulted in three informations, which the trial court consolidated for trial. On appeal the defendant claims that the trial court improperly (1) consolidated the three cases against him thus depriving him of a fair trial, (2) refused to dismiss the charges against him because his arrest was without probable cause and in violation of his constitutional rights, (3) admitted his police statement because there was no waiver of his Miranda rights and his statement was not voluntary and (4) refused to grant a mistrial after playing back highly prejudicial testimony to the jury beyond that which was requested by the jury during their deliberations, thus denying him a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The three robberies involved were committed in Stratford between December 24, 1996, and January 4, 1997. On December 24,1996, at about 2:15 a.m., Ramona Hemon was working as a night auditor at the Ramada Inn in Stratford. At that time, Hemon was in the lobby area with Howard Unger, the building’s security guard. A man came in and asked about the price of a room. After Hemon gave him that information, the man left explaining that he had to check with his girlfriend.

Shortly thereafter, two black men wearing ski masks entered the hotel and ran up to the counter behind which Hemon stood. The men jumped over the counter, one man placed a shotgun against Hemon’s chest, and the other was holding a baseball bat. The man with the bat used it to club Unger, who lost consciousness briefly.

One of the masked men asked Hemon where the safe was, to which she replied that there was none. He then asked where the cash drawer was, and she showed him. After the man pulled the cash drawer out, he jumped back over the counter. As both men were exiting toward the front door, one of them turned to Hemon and told her that if she moved he would blow her brains out. Then both men fled taking about $250 with them. After they had gone, Hemon’s son noticed a duffel bag directly in front of the counter. Hemon was certain that it had not been there before the two masked men entered the hotel.

On December 30, 1996, Maria Guerra was working as the general manager at the Howard Johnson Motel in Stratford. Stanley Colten, a security guard, was working with Guerra that night. At about 11:30 p.m., a man came in and inquired of Guerra about the price of a room. When Guerra told him the cost, the man said that it was too expensive and left.

A few minutes later, two men in long coats and masks entered the motel. Guerra testified that one of the men was the man who had come in earlier and inquired about a room. One of the men had a shotgun and yelled for Colten to get down on the floor. He then hit Colten on the side of the head with the shotgun, knocking him out for a few moments. When Colten came to, he heard the men yelling at Guerra to give them the money. Guerra testified that the man with the shotgun put it to her neck and said, “Bitch, open the register or we’re gonna blow your head off.” Guerra had difficulty opening the register as it was going through the day’s audits and temporarily would not open. When she did get it open, she threw it at the men. One of the men put the register in a duffel bag and they both ran out. The register contained about $430.

On January 4, 1997, John Walker and Penelope Por-teous were working at Krauszer’s convenience store in Stratford. At about 11 p.m., Walker went to the front door of the store to lock it for the night. While doing so, Walker saw a man with a shotgun standing outside the store. That man told Walker to let him in or he would “blast” him. While Walker was trying to comply, another man ran up to Walker and started punching and choking him as well as banging his head against the glass door. At the time of trial, Walker identified the defendant as the man who had assaulted him.

During the attack on January 4, Porteous was in the back room counting the money in the cash drawer. Upon hearing Walker yell, she looked out and saw the scuffle. When she tried to dial 911, one of the men ran back and prevented her from doing so. They took about $55 from the cash drawer and Porteous’ wallet.

The Stratford police, with the assistance of the Federal Bureau of Investigation, were able to trace to Judith Lichtenberger the social security number written in ink in the interior section of the duffel bag left at the scene of the Ramada Inn robbery. At trial, Lichtenberger identified the duffel bag as hers and testified that it had been kept in her garage at her home on Holland Street in Bridgeport. She also testified that she rarely stayed at the Holland Street address, but rather chose to five with her mother in Stratford. She did, however, say that her eighteen year old son, Ryan Simmons, and her sixteen year old daughter, Emily Minor, lived at the Holland Street address. In addition, Lichtenberger said that the defendant had been her daughter’s boyfriend during the fall of 1996, and that her daughter had worked at Krauszer’s for a brief time during this period.

Minor, who testified for the state, confirmed that the defendant had been her boyfriend in the fall of 1996, and that she had worked briefly at Krauszer’s. She also testified that the defendant had stored a sawed-off shotgun at her house in late November or early December, 1996, and that it had been concealed in the same duffel bag found at the scene of the Ramada Inn robbery. In addition, she also testified that the defendant had told her that he and his friend “Dell” had committed the Krauszer robbery.

On January 29,1997, at about 6:45 p.m., the defendant and Lydell Jefferson were arrested on warrants for an unrelated robbery in Naugatuck and both were then taken to the Stratford police department. There, after being informed of his rights and signing a written waiver of rights form, the defendant agreed to talk to the police. Thereafter, he gave a signed sworn statement in which he admitted his participation in the Ramada Inn, Howard Johnson and Krauszer robberies. He also admitted that he had planned and carried out all three robberies with Jefferson and Shane Barnes. The cases were consolidated and went to trial. The defendant was convicted on all charges against him. This appeal followed. Additional facts will be discussed where necessary.

I

The defendant claims that the trial court improperly granted the state’s motion to consolidate the three cases. Specifically, he claims that joinder of these cases was improper because (1) it allowed the jury to aggregate the evidence from all three incidents to convict him of all the charges, (2) the cases were factually similar but legally unconnected, (3) the allegations of the violent attacks in each of the three cases fatally prejudiced his right to a fair trial and (4) the prejudice caused by the improper joinder was not cured by the court’s instruction. We disagree.

Prior to the trial, the state filed a motion to consolidate the three cases. The trial court held a hearing on the issue of joinder and granted the motion. “General Statutes § 54-57 and Practice Book § [41-19 (formerly § 829)] expressly authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court’s instructions. . . . [W]hether a joint trial will be substantially prejudicial to the rights of the defendant . . . means something more than that a joint trial will be less advantageous to the defendant. . . .

“We recognize that an improper joinder may expose a defendant to potential prejudice for three reasons. First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him .... Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . presents] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all. . . . Nevertheless, because join-der foster[s] economy and expedition of judicial administration ... we consistently have recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion, we will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges.

“The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve 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. Delgado, 243 Conn. 523, 531-33, 707 A.2d 1 (1998); State v. Boscarino, 204 Conn. 714, 722-25, 529 A.2d 1260 (1987).

The defendant, in arguing against joinder, claims that the three cases, while factually similar, were legally unconnected. Upon application of the factors enumerated in Boscarino to the present case, however, we are persuaded that the court was not required to sever the trial.

First, each of the three cases had discrete, easily distinguishable factual scenarios. As the state points out, the incidents took place on different dates, at different locations and involved different victims. Furthermore, the state presented the evidence in a manner unique to each case to avoid “spilling over” of the evidence as much as possible. The state began by presenting the circumstances of the Ramada Inn robbery. It presented the testimony of the victims of that robbery, Hemon and Unger. That evidence was followed by the testimony of Guerra and Colten regarding the circumstances of the Howard J ohnson robbery. Following that, the state presented the testimony of Walker and Por-teous regarding the third robbery at Krauszer’s. Then, after presenting the evidence as to the circumstances of each robbery, the state presented police witnesses who testified about how the duffel bag left at the scene of the Ramada Inn robbery led them to Minor, which ultimately resulted in the ascertainment of the defendant’s involvement in these robberies. “Where the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jurors to consider the evidence relevant to each offense separately and distinctly, we will not conclude that the trial court has manifestly abused its discretion in denying the defendant’s motion for severance.” (Internal quotation marks omitted.) State v. Marsala, 43 Conn. App. 527, 534-35, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997).

Furthermore, regarding the defendant’s argument that the three cases were not legally connected, while the robberies may not be considered signature crimes, all three were of that degree of similarity that the evidence could reasonably give rise to an inference that the participants were the same persons. The evidence of the duffel bag left at the Ramada Inn is significant, not only as to its part in the first robbery, but particularly as to how it supported both Lichtenberger and Minor’s testimony implicating the defendant in the three robberies, in that it supplied not only a factual connection in the three cases, but vital legal connections in these cases. It was reasonable, therefore, for the court to conclude that the three cases presented discrete and easily distinguishable factual scenarios.

Second, we consider the defendant’s claims that the allegations of the violent attacks in each of the three cases were so brutal and shocking that the court abused its discretion in consolidating the cases. “State v. Jennings, [216 Conn. 647, 583 A.2d 915 (1990)], cites both Boscarino and [State v. Herring, 210 Conn. 78, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989)], to reiterate that when both crimes charged can be characterized as violent, the test becomes whether the facts of one are ‘so brutal or shocking’ as to amount to prejudice if tried together.” State v. Stevenson, 43 Conn. App. 680, 690, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997).

In the first robbery, the assailant beat the victim with a baseball bat. In the second robbery, the assailant beat the victim with the butt of a shotgun. In the third robbery, one of the assailants beat the victim with his fist and banged his head against a glass door. Hence, the factual scenarios of each of the three cases involved similar acts of violence. Therefore, it is reasonable for the court to conclude that no one incident was so brutal or shocking as to amount to prejudice if tried together.

In claiming that joinder was improper, the defendant places great weight on State v. Horne, 215 Conn. 538, 577 A.2d 694 (1990). In Home, the defendant was charged in four separate informations involving incidents in four retail stores. In three of them, he was charged with robbery in the first degree in violation of § 53a-134 (a) (4). Id., 542. With reference to the fourth information, he was charged with robbery in the first degree in violation of § 53a-134 (a) (4), sexual assault in the first degree in violation of General Statutes § 53a-70 and sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a. Id. In the first three incidents, the defendant threatened each victim with a gun and robbed each victim. Id., 540-41. As to the fourth incident, after robbing that victim, the defendant also forced her to lie face down on the floor, pulled her slacks and underpants off and sexually assaulted her while holding her by the neck. Id., 542. The court denied the defendant’s pretrial motion to sever the fourth information from the other three cases and also denied the defendant’s motion to that effect made later in the trial. Id., 543. In addition, although the defendant asked the court to give a preliminary instruction because of the risk of confusion between the cases, it ultimately failed to do so. The court, over the defendant’s objection, ordered all four cases joined for trial. After a consolidated trial, the jury found the defendant guilty on all counts. Id.

On appeal to our Supreme Court, the defendant argued that “he was prejudiced because the jury, faced with the evidence of factually similar but legally unrelated cases, probably commingled the evidence in one case with another and was probably inflamed by the brutal and shocking sexual assault of one of the victims.” Id., 544. He also argued that the court’s one time jury instruction, during its final instructions, did not mitigate the prejudice claimed. Our Supreme Court agreed and reversed all the convictions. Id., 545-46. We do point out, however, that in doing so, our Supreme Court in Home indicated that on the retrial, the court, in the careful exercise of its discretion might consolidate the three robberies that did not involve the sexual assault if it issued “adequate instructions to the jury, at the beginning and during the course of the proceedings ... to keep the facts of each robbery separate, thereby minimizing the risk that the jury would commingle the facts.” Id., 553.

In the present case, in contrast to Home, the court did, in our view, give such instructions at the beginning and during the course of the proceedings. Moreover, as we have pointed out, we believe, again in contrast to Home, that the three robberies in this case were legally connected. Furthermore, the court’s timely and specific instructions to keep the cases separate mitigated the possibility that the jury would cumulate all the evidence and convict the defendant on the theory that he was a bad person. Also, Home is different from this case in that the sexual assault in Home was carried out with brutality and committed under “ ‘very, very traumatic circumstances ....’” Id., 550. That aspect of Home weighed heavily with our Supreme Court. See id., 552. In the present case, all three crimes involved similar acts of violence. Therefore, the facts of one crime cannot be considered so brutal or shocking as compared to the others.

Third, in considering the duration and complexity of the trial, there was no reason for the court to sever the cases for trial. The state’s case took only four days to present. The evidence was not complex and was presented in an orderly and logical fashion. The defense case took one day, followed by a short rebuttal. In State v. Herring, supra, 210 Conn. 97, a double murder case that took eight days to try and involved testimony from twenty-three witnesses, the court concluded that neither the duration of the trial nor its complexity created a sufficient risk of confusion to require severance. In State v. Delgado, supra, 243 Conn. 536, a case involving a trial on first degree manslaughter and risk of injury to a child, the trial consumed eleven days and involved testimony from twenty-five witnesses. The court concluded that it was not too lengthy or complex so as to present a likelihood of jury confusion. Id., 536-37.

As pointed out, the defendant bears a heavy burden in showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the trial court’s instructions. See id., 531; State v. Herring, supra, 210 Conn. 94-95; State v. Boscarino supra, 204 Conn. 721.

Furthermore, even if the defendant’s conduct could be fairly seen as brutal or shocking, we must still decide whether the court’s jury instruction cured any prejudice that might have occurred. “[Ajlthough a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissible other crimes] evidence . . . where the likelihood of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the defendant’s right to a fair trial has been preserved.” (Internal quotation marks omitted.) State v. Hermann, 38 Conn. App. 56, 63-64, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). ‘‘Barring contrary evidence, we must presume that juries follow the instructions given them by the trial judge.” (Internal quotation marks omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 32, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997); 1 B. Holden & J. Daly, Connecticut Evidence (1988) § 35, p. 155.

The trial court instructed the jury on two occasions to consider the evidence separately as it related to each count. The instructions came after the jury was sworn in and before the evidence began, as well as during the court’s final jury instruction. In State v. Herring, supra, 210 Conn. 97, the court concluded that “[w]hile any murder involves violent and upsetting circumstances, it would be unrealistic to assume that any and all such deaths would inevitably be so ‘brutal and shocking’ that a jury, with proper instructions to treat each killing separately, would necessarily be prejudiced by a joint trial.” Therefore, we conclude that the court gave adequate jury instructions so as to avoid confusion. We conclude, therefore, that the defendant has failed to meet his heavy burden of demonstrating that the court manifestly abused its discretion in ordering the joinder of these three cases so as to result in substantial injustice and the denial of a fair trial.

II

Before the presentation of evidence, the trial court held a hearing on certain pretrial motions filed by the defendant. He filed a motion to dismiss and a motion to suppress his statement to the police. The court denied both motions. The defendant claims on appeal that the court improperly denied his motion to dismiss and improperly denied his motion to suppress. We disagree.

The following additional facts are relevant. On January 29, 1997, at approximately 6:45 p.m., Thaddeus Walewski of the Stratford police department received direction from the police dispatcher to investigate a suspicious car with two occupants on Seymour Street. At this time of the evening, most of the businesses in the area were closed and there were no other cars on the street. The police department had dispatched Walewski to Seymour Street after receiving an anonymous call from a person who was working in a building on that street. The dispatcher told Walewski that the caller felt that the car “was out of place” as it was parked in a business area and it was suspicious because it had two occupants.

Upon arriving at Seymour Street, Walewski parked his patrol car behind the suspicious vehicle. He was alone and did not have his flashing lights on. He exited his patrol car carrying his flashlight. He approached the suspicious vehicle, tapped on the window and asked what they were doing there. The driver, Jefferson, told Walewski that the car was broken down and that they were waiting for assistance. Walewski then asked Jefferson for some identification. He said that he did not have any and then started to put his hand in his pocket, at which time Walewski told him to take his hand out of his pocket because he felt that if Jefferson did not have any identification there was no need for him to go into his pocket. Walewski then asked Jefferson his name, and Jefferson responded honestly. Walewski recognized Jefferson as someone wanted on a Nauga-tuck warrant. Walewski, after verifying that he had the right person for the Naugatuck warrant, arrested Jefferson.

While Walewski was addressing Jefferson, Officer Albert Peurea, a nine year veteran of the Stratford police department, drove up in his patrol car. Peurea walked to the front passenger window and asked the passenger, the defendant, his name, to which he responded, “Troy Brazel.” When Peurea asked him for some identification, he could not produce any and Peurea had him exit the car. Peurea, after seeing Jefferson get arrested, patted the defendant down for safety reasons.

At the time the passenger exited the car, both Walew-ski and Peurea knew there was a Naugatuck warrant out for a “Mr. Lewis” from a flyer issued by Naugatuck police, but they did not specifically know that the passenger was Troy Lewis. Not only because the passenger was with Jefferson, but also because he fit the general description they had of Lewis, Walewski suspected that he was possibly the other person wanted on the Nauga-tuck warrant. At that time, the defendant was standing outside the car and was not handcuffed. Because Jefferson was wanted for robbery, the officers were not going to let them walk freely back to the car, fearing that there could have been weapons there. Peurea then placed the defendant in the patrol car until he or Walewski could ascertain his identity.

Shortly thereafter, Detective Ri chard Yoemans of the Stratford police department arrived at the scene. Yoe-mans checked the Naugatuck warrants and positively identified the defendant as Troy Lewis. The defendant admitted his true identity, was arrested, handcuffed and brought to Stratford police headquarters.

Upon their arrival at police headquarters, Peurea read the defendant his Miranda rights, including a waiver of those rights, from a police department issued Miranda form. Peurea made sure that the defendant understood them, had him initial each of the five individual rights and then had him sign his signature at the bottom. Peurea read the defendant his rights, and the defendant read them for himself. During this process, Peurea asked the defendant if he had any questions and he did not.

After Yoemans returned to police headquarters, he interviewed Jefferson. Jefferson gave Yoemans a written statement. Thereafter, Yoemans, who knew Pernea had already given the defendant his Miranda rights, began interviewing the defendant. In doing so, Yoemans told the defendant that Jefferson had implicated him in the Stratford robberies. He also showed the defendant the duffel bag recovered from the Ramada Inn robbery as well as a composite sketch that the police artist had made from a description by Walker, a victim in the Krauszer’s robbery. A few minutes after Yoemans began interviewing the defendant, the defendant willingly gave Yoemans a statement as to his involvement in the three Stratford robberies. When the defendant finished giving his statement, Yoemans gave him a copy of it to let him read. Furthermore, the defendant was not threatened or promised anything for giving the statement and he did not appear to be under the influence of alcohol or drugs or emotionally upset at the time. Thereafter, the defendant was charged with three counts of robbery and one count of conspiracy to commit robbery.

Prior to trial, the defendant filed a motion to suppress his statement because, as he claims on appeal, it was not voluntarily given and he did not validly waive his Miranda rights. The court denied that motion. Furthermore, the defendant filed a motion to dismiss the case because the officers were without a reasonable and articulable suspicion of criminal activity to detain the defendant. The court also denied that motion. The court found that the police had a right to investigate complaints of suspicious cars being in a neighborhood, at a time in which cars are not normally seen there and in a location in which cars are not normally parked. It further found that such right to inquire led the police to determine that one of the two passengers, Jefferson, was in fact a person wanted on a robbery warrant by the Naugatuck police. As to the defendant, the court found that the police could not properly identify him and they had a right to detain him for the purpose of learning his identity. It stated that it would be a “sad state” if police would be so thwarted in their ability to investigate into someone’s identity, especially, as here, when one of the individuals was indeed wanted by the police and the other person was unable to present any identification at all. In addition, the court found that the defendant’s arrest was made properly and probable cause had been determined in the Naugatuck warrant. It also determined that the interrogation of the defendant took place after he was legally in custody and after he voluntarily waived his Miranda rights. Furthermore, it found that the police made no threatening gestures, used no coercive measures, made no promises and did not deceive the defendant into making his police statement.

A

The defendant first claims that there was no reasonable and articulable suspicion for the police to have detained him and no probable cause to arrest and, because his federal and state constitutional rights were violated, the charges against him should have been dismissed. We disagree.

“Under both the federal and state constitutions, police may detain an individual for investigative purposes if there is a reasonable and articulable suspicion that the individual is engaged or about to engage in criminal activity. . . . Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . The police officer’s decision . . . must be based on more than hunch or speculation. . . . In justifying the particular intrusion, [t]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that [intrusion]. . . . Once a reasonable and articulable suspicion exists, the detaining officer may conduct an investigative stop of the suspect to confirm or dispel his suspicions ....

“The determination of whether a reasonable and arti-culable suspicion exists involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” (Citations omitted; internal quotation marks omitted.) State v. DaEria, 51 Conn. App. 149, 154-55, 721 A.2d 539 (1998).

“Article first, §§ 7 and 9 of our state constitution permit a police officer in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes even though there is no probable cause to make an arrest. ... In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity. ... A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. . . . These standards, which mirror those set forth by the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, §§ 7 and 9 of our state constitution.” (Citations omitted; internal quotation marks omitted.) State v. Lipscomb, 58 Conn. App. 267, 271-72, 753 A.2d 415 (2000).

Our Supreme Court has determined that “article first, §§ 7 and 9 of the Connecticut constitution affordfs] greater protection to the citizens of this state than does the federal constitution in the determination of what constitutes a seizure.” (Internal quotation marks omitted.) State v. Donahue, 251 Conn. 636, 645, 742 A.2d 775 (1999). “Police have the right to stop for investigation short of arrest where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . . [I]n justifying the particular- intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. ... [A] police officer’s decision to detain an individual for investigatory purposes must be predicated on more than a mere hunch. ... An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Citations omitted; internal quotation marks omitted.) State v. Lipscomb, supra, 58 Conn. App. 272-73.

In his reply brief, and at oral argument before this court, the defendant argues that our Supreme Court’s recent decision in State v. Donahue, supra, 251 Conn. 636, is squarely on point and requires that this court conclude that Walewski did not have a reasonable and articulable suspicion to stop and detain the defendant.

In Donahue, a state police officer was on routine patrol at 1:50 a.m. on December 10, 1997, in Windham. Specifically, he was patrolling a cemetery next to a public housing project where drug dealing and prostitution often took place. As he was leaving the cemetery, he noticed a car turn abruptly into a vacant parking lot of a social club that had closed for the evening. Id., 639. The defendant had a passenger in the car. The officer drove his car across the street toward the defendant’s car. When he entered the parking lot of the social club, the officer made a U-turn so that he could pull his car behind the defendant’s car, which was facing the exit of that lot. Id., 640. The officer activated his overhead flashing lights when he pulled up behind the defendant. Id.

Before exiting his car, the officer radioed the defendant’s license number to the police barracks and learned that the car was not stolen and that there were no outstanding warrants. The officer approached the defendant’s car and asked him for his license and registration. The defendant rolled down his window when he saw the officer. At that point, the officer detected alcohol on the defendant’s breath, and after the defendant failed a sobriety test, the officer arrested the defendant for operating a motor vehicle while under the influence of intoxicating liquor. Id.

At his trial, the defendant moved to suppress evidence obtained after his initial detention on the ground that the detention had been unlawful. He claimed that the officer lacked a reasonable and articulable suspicion to stop his vehicle and that he was denied his federal and state constitutional rights. That motion was denied and the defendant appealed. Id., 640-41. Our Supreme Court found that the police officer’s “detention of the defendant was based on nothing more than the location of the defendant’s vehicle at an early hour in the morning.” Id., 645.

The present case, however, is readily distinguishable from Donahue. First, in Donahue, the police officer pulled behind the car and activated his overhead flashing lights, thereby showing a sign of authority over the defendant. Our Supreme Court concluded that it would not disturb the trial court’s conclusion that pulling the patrol car behind the defendant and activating the overhead flashing lights would cause any reasonable person to feel as though they were not free to leave; therefore, at that point, he was considered seized. Id., 643. In the present case, Walewski was responding to a call from the dispatcher telling him to investigate a suspicious car with two individuals inside. He pulled up behind the car the defendant was in, but did not activate his overhead flashing lights. Once he pulled up behind the car, which contained two people, he exited his patrol car carrying his flashlight. He then proceeded to ask the driver, Jefferson, what he was doing there and for some identification. Because he was dispatched to a scene with what was described as a suspicious car, a short inquiry of the driver was completely reasonable behavior by Walewski. Applying Donahue to this case, we conclude that a seizure had not occurred. When Walewski asked, the driver told him his name was Lydell Jefferson. Walewski recognized his name as possibly being a man wanted on a Naugatuck warrant in connection with a robbery. This would certainly constitute a reasonable and articulable suspicion.

Second, in Donahue, the police officer just happened to be in the neighborhood and saw a car in a high crime area and decided to investigate. In the present case, the officer was dispatched to the scene. The dispatcher relayed a telephone call from someone working in a building on Seymour Street who said that there was a suspicious car outside. The caller described the location of the car, the time the car was parked there and that there were two occupants inside. Walewski was, in effect, following a directive, as was his duty, from the police dispatcher. When he arrived, he saw the car that the caller described and decided to investigate.

Third, in Donahue, our Supreme court stated that “[t]he state’s argument [that the officer’s stop of the defendant was not a seizure] is difficult to sustain in light of its counsel’s concession, at oral argument before this court, that under the circumstances in the present case, he—or any other reasonable person—would not have felt free to leave after [the officer] pulled up behind the defendant’s car and activated the vehicle’s overhead flashing lights.” (Emphasis added.) Id., 643. Here, the state made no concessions.

Fourth, in Donahue, the state argued five factors as to why the officer had a reasonable suspicion to pull the car over. Our Supreme Court determined that none of these factors generated the requisite reasonable and articulable suspicion that the defendant was engaged or about to engage in criminal activity. In the present case, none of these factors fairly applies or was raised by the state. Therefore, in looking at all the distinguishing factors between Donahue and the present case, we can fairly state that Donahue is a different case than this one.

After verifying Jefferson’s name as that of the man wanted, Walewski arrested Jefferson. While this was taking place, Peurea asked the defendant his name. The defendant lied about his name and when Peurea asked him for identification he could not produce any. Peurea asked him to get out of the car. At this time, Walewski suspected that the defendant could be Troy Lewis, the other person wanted on the Naugatuck warrant, not only because he knew that Jefferson had an accomplice, but because the defendant fit Lewis’ general description. Knowing that Jefferson was wanted in connection with robberies and that those robberies were committed by more than one person, Peurea patted the defendant down and had him sit in the back of the patrol car until he could positively identify him. The defendant claims that such behavior by the police officers violated his constitutional rights because the officers did not have a reasonable and articulable suspicion to detain him.

If Walewski was constitutionally prohibited from investigating a dispatcher’s report regarding a suspicious car and making brief inquiries of its occupants, not only would it stifle basic police work and be inexplicably unprotective of the general public, but it would logically require the dispatcher who received the complaint in the first instance to tell the anonymous caller that there was nothing the police could do. Furthermore, prohibiting this behavior would greatly disserve the experience of sensible police officers in evaluating the totality of the circumstances, which must be taken into account. Under the circumstances, the officers were clearly not operating on hunches. The police officers, therefore, acted appropriately in arresting the defendant, and the evidence reasonably supports the court’s decision to deny the defendant’s motion to dismiss.

B

The defendant claims that the trial court improperly refused to suppress his statement when it was not given after a knowing and intelligent waiver of his Miranda rights. We disagree.

“Pursuant to the fifth and fourteenth amendments to the United States constitution, a statement made by a defendant during custodial interrogation is admissible only upon proof that he . . . waived his rights [under Miranda] .... To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. . . . Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. . . .

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings . . . his level of intelligence, including his IQ . . . his age . . . his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication ... his emotional state . . . and the existence of any mental disease, disorder or retardation.” (Citations omitted; internal quotation marks omitted.) State v. Fernandez, 52 Conn. App. 599, 610-11, 728 A.2d 1, cert. denied, 249 Conn. 913, 733 A.2d 229, cert. denied, 528 U.S. 939, 120 S. Ct. 348, 145 L. Ed. 2d 272 (1999). Furthermore, “[a] defendant’s express written and oral waiver is strong proof that the waiver is valid.” (Internal quotation marks omitted.) State v. Northrop, 213 Conn. 405, 418, 568 A.2d 439 (1990).

The trial court found that Peurea had read the defendant his rights and also gave him ample opportunity to read his rights for himself. Furthermore, there was no evidence that the defendant did not understand them or that he did not sign the form voluntarily. It also found that at a later time when he was questioned by Yoemans, his rights were again presented to him on the statement itself, which he eventually initialed and signed and, therefore, he had another opportunity to be advised of his rights.

The trial court concluded that he was interrogated after he was properly in custody, Miranda warnings were properly given to him, he understood them and he voluntarily and willingly participated in the statement that he gave. Furthermore, the defendant was of an age, educational experience and appeared to be in a mental and physical condition to be of the capacity to comprehend what he was doing. There were no threats, promises, coercive or deceptive measures used, no evidence of any physical punishment, or anything designed to overcome his will to resist questioning. Our scrupulous review leads us to conclude that the defendant knowingly, willingly and voluntarily waived his Miranda rights which were properly and timely administered to him.

C

The defendant also claims that the trial court improperly refused to suppress his statement when it was not given voluntarily. We disagree.

“[ T]he use of an involuntary confession in a criminal trial is a violation of due process. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Miranda v. Arizona, 384 U.S. 436, 461-63, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. DeAngelis, 200 Conn. 224, 232, 511 A.2d 310 (1986). The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence.” (Internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 418, 736 A.2d 857 (1999).

“Our Supreme Court has recently clarified the proper scope of appellate review of a trial court’s determination of voluntariness. ... To begin, we note the established rule that the [t]riai court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous. ... As [is] trae concerning appellate review of determinations of custodial interrogation, although we give deference to the trial court concerning these subsidiary factual determinations, such deference is not proper concerning the ultimate legal determination of voluntariness. In its review of state court determinations of voluntariness, the United States Supreme Court long has concluded that the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination. . . . Consistent with the well established approach taken by the United States Supreme Court, we review the voluntariness of a confession independently, based on our own scrupulous examination of the record. The ambiguity apparent in [prior Connecticut Supreme Court] cases is that, while correctly citing to the relevant federal case law for the proposition that we will conduct an independent determination of voluntariness . . . [our Supreme Court has also] continued to state in these same cases that [o]n the ultimate issue of voluntaiiness . . . we will conduct an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Pin, 56 Conn. App. 549, 556-57, 745 A.2d 204, cert. denied, 252 Conn. 951, 748 A.2d 299 (2000).

“In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker. . . . If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process. . . . The determination of whether a confession is voluntary must be based on a consideration of the totality of circumstances surrounding it . . . including both the characteristics of the accused and the details of the interrogation. . . . Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Citations omitted; internal quotation marks omitted.) State v. James, 237 Conn. 390, 410-11, 678 A.2d 1338 (1996).

During his trial testimony, the defendant denied that the signature of “Troy Lewis” on his police statement had been written by him and that he had not seen, until he came to court, his police statement dated January 30, 1997. In addition, he said that the acts described in the statement were not his acts. The state again produced much evidence contradicting these claims.

Applying the factors previously discussed to the present case, we conclude that the facts of this case overwhelmingly substantiates the court’s conclusion that the defendant’s police statement was voluntary. The defendant was twenty-one years of age, had completed three years of high school and was literate. He had been thoroughly advised of, and understood, his constitutional rights. He expressed the willingness to speak to the police. He gave his statement about six hours after he was arrested and his interrogation was not constant over that period. There were no threats, promises, coercive or deceptive measures used to elicit a waiver. Therefore, upon our review of the entire record, we agree with the trial court’s conclusion that the defendant’s police statement was voluntarily made.

Ill

The defendants final claim is that the trial court improperly denied his motion for a mistrial because the court monitor allegedly played back more testimony than the jury requested. The defendant claims that this deprived him of a fair trial because it allowed the monitor to play back the portion of Walker’s highly prejudicial in court testimony identifying the defendant as the man who attacked him. We decline to review this claim.

The following additional facts are relevant. On Tuesday, May 5, 1998, at the lunch break, the jury had the note presented to the court and the court, along with counsel, discussed it. The jury returned, the court read the note and indicated to the jury that it obtained the items of testimony for playback. The playback started with the defendant’s testimony and then went to Walker’s testimony. The problem is, the transcript does not contain a restatement of what specific testimony the monitor played back as to either the defendant or Walker.

On Wednesday, May 6, 1998, while court was in session, the court stated that it understood that the jury had reached a verdict but it would permit defense counsel to put something on the record concerning the playback of the previous day. Therefore, the defendant objected saying that part of the playback contained Walker’s in-court identification of the defendant and that was outside the scope of the request. The court then noted that the playback, having already occurred, could not be taken back and that, taken in context, it was helpful. It further stated that it would not advise the jury otherwise. Thereupon, the defendant suggested that the effect could rise to the legal grounds for a mistrial. The court took that as a request for a mistrial and denied it.

The defendant claims that the trial court abused its discretion in refusing to grant a mistrial because of the alleged over playing of Walker’s testimony by the court monitor. In doing so, he maintains that the playback included portions of Walker’s testimony that were harmful as it placed undue emphasis on the testimony of the state’s sole identification witness and that it deprived him of a fair trial.

We decline to review this claim. “It is up to the appellant to provide a record adequate to review his claims. Practice Book § 61-10. In the absence of an adequate record, we cannot conclude that the court abused its discretion.” Rosenblit v. Williams, 57 Conn. App. 788, 796, 750 A.2d 1131, cert. denied, 254 Conn. 906, 755 A.2d 882 (2000). “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Summerbrook West, L.C. v. Foston, 56 Conn. App. 339, 347, 742 A.2d 831 (2000). We simply do not know what portion of Walker’s testimony was played back by the court monitor. We cannot say, without speculating or guessing, whether it was within the jury’s request. In considering the appellant’s burden to provide an adequate record to support his claims of error, “[i]t is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly. . . . Rather, it must be assumed that the trial court acted properly.” (Citations omitted; internal quotation marks omitted.) State v. One 1977 Buick Automobile, 196 Conn. 471, 480-81, 493 A.2d 874 (1985).

An appellant is not without recourse, i.e., a motion for rectification under our rules of practice, to assist him in sustaining his burden of providing an adequate record for review. See Practice Book § 66-5. As noted, we do not have the evidence before us that is the factual predicate for the legal issue that the defendant asks us to consider. We must decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 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 contained 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.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Ilemon’s seven year old son was asleep on one of the couches in the lobby.

       Because both men wore ski masks, Hemon only saw their eyes and not their entire faces.

       At the trial, Guerra identified the man as the person shown in state’s exhibit twenty, which was described later in the trial as a photograph of Lydell Jefferson.

       Neither of the two assailants was wearing masks, yet they told both Walker and Porteous not to look at their faces.

       Shortly after this robbery, Walker, working with a police artist, helped create a composite sketch of the man who assaulted him.

       The defendant testified on his own behalf at the trial. At that time, he denied giving a statement to the police and denied that the statement and rights form contained his signature and initials. He also raised an alibi defense, maintaining that he had been with his fiance, Janice McDuffie, at the time of all three robberies. McDuffie corroborated the defendant’s alibi.

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book § 41-19 provides: “The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”

         In Home, after the verdict, the trial court dismissed the count alleging sexual assault in the first degree in violation of § 53a-70. State v. Horne, supra, 215 Conn. 543.

       In expressing its view of the sexual assault in Home, the Supreme Court stated: “Short of homicide, [sexual assault] is the ultimate violation of self.” (Internal quotation marks omitted.) State v. Horne, supra, 215 Conn. 550, quoting State v. Havican, 213 Conn. 593, 599 n.3, 569 A.2d 1089 (1990).

         “Now, as I indicated, this is a four count information, and while the matters are being tried at the same time, they are separate, the first three counts, the first three charges of robbery are separate incidents, and they are—that are being presented.
      “Now, when you listen to the testimony you may recognize that some of the testimony will overlap one incident to the other or have some relationship, that’s up to you to determine, and it may relate to all three matters in some respects. But, each must be taken on its own. In other words, the evidence that you consider as to each of the charges should be separated in your minds when you are deliberating on them.
      “And, if you were to find, let’s say for an example, that the state was successful in proving the defendant’s guilt on one or more of these charges, that cannot in and of itself be used as a reason to find him guilty on the others if the evidence on another charge is not sufficient to satisfy the burden of proof beyond a reasonable doubt. In other words, each charge stands or falls on its own and I, of course, ask you to keep that in mind.
      “The simple reason why they’re tried together is really for judicial economy purposes because some of the same witnesses will be involved in the presentation of each of the cases.”

       “This is a four count information which has been prepared by the state’s attorney’s office and has been read to you before. And I remind you again that while these matters are being tried at the same trial, they are separate incidents that are being presented.
      “While some of the testimony may have overlapped and would relate to all of them in certain respects, each must be taken on its own. In other words, the evidence that you consider as to each of the charges should be separated in your minds when you are deliberating on them. And if you were to find, let’s say for an example, that the state was successful in proving the defendant’s guilt on one or more of these charges, that cannot, in and of itself, be used as a reason to find him guilty on the others if the evidence on any other charge is not sufficient to satisfy the burden of proof beyond a reasonable doubt. In other words, they stand or fall on their own, and I ask you to keep that in mind.
      “The reason they’re tried together is really for judicial economy purposes and because some of the same witnesses were involved in the presentation of each of the cases.”

       Regarding the motion to suppress his statement, the court held a hearing in which evidence was produced.

       On appeal regarding the motion to suppress, the defendant claims that the trial court’s denial was improper because (1) he did not voluntarily and intelligently waive his Miranda rights and (2) he did not voluntarily give his statement to the police.

       At the time, Walewski was a twelve year veteran of the police department.

       Seymour Street is in a business district.

       The anonymous caller did not recognize this car as belonging to the caller’s business or any businesses there.

       Stratford Police Officer Albert Peurea had also been dispatched to Seymour Street and he arrived shortly after Walewski. Two cars are always dispatched to calls received by the Stratford police department.

       To the surprise of Walewski, instead of placing both hands on his lap, Jefferson placed both hands on the steering wheel.

       Peurea was also dispatched to the scene.

       As to the method of taking the statement, it was taken on a computer word processor with Yoemans sitting in front of it and the defendant sitting to his left. As the defendant told Yoemans what he wanted to put in the statement, Yoemans typed it.

       Detective John Cratty of the Stratford police department, who was present throughout the taking of the statement, acted as a witness to the defendant’s signing and acknowledging the statement. Lieutenant Thomas Rodia of the Stratford police department administered the oath to the defendant acknowledging his statement.

       The defendant did not make any changes in his statement after he read it.

       In Donahue, “the state argue[d] that the following five factors produced a reasonable suspicion that the defendant was engaged or about to engage in criminal activity: (1) he was driving in a deserted area late at night; (2) he made an abrupt tmn into the parking lot; (3) he pulled into an empty, unlit parking lot of an establishment that had closed for the evening; (4) his vehicle was in an area that had experienced a rise in criminal activity; and (5) his behavior was ‘consistent with the type of behavior that often preceded the criminal activity [the officer] was out on patrol investigating.’ ” State v. Donahue, supra, 251 Conn. 647.

       The defendant chose not to testify at the pretrial hearing on his motion 1o suppress. At trial, however, he testified that he told the Stratford police that he did not want to waive his Miranda rights and that the signature of “Troy Lewis” on the fingerprint form used on the night of the arrest was not written by him. Obviously, such evidence was contrary to that produced by the state.
      We recognize that, on appeal in order to determine whether a defendant’s constitutional rights have been infringed upon, we review the record in its entirety and are not limited to the evidence before the trial court at the time the ruling challenged on appeal was made. See State v. Shifflett, 199 Conn. 718, 729, 508 A.2d 748 (1986). It is significant that the defendant never asked the trial court to reconsider its findings made at the suppression hearing in the light of his trial testimony.

       These rights not only included his right to remain silent, but also his right to seek the assistance of an attorney.

       The jury sent a note to the court during its deliberations asking to hear a portion of the testimony. The court responded as follows: “All right. At the—just at the lunch break, the jury gave the clerk a note which I have discussed with counsel. It asks [us to] read . . . some testimony from [the defendant] and also from Mr. Walker. The court monitor has indicated that she believes she has earmarked those areas and has them ready for playback. Is that correct? Right? Okay. So, when the jury comes out, I’ll have—I’ll read the note for the record and make this part of the record. Call them out, please. . . .
      “Record will so reflect. All right, for the record, the court is in receipt of a note from the jury and I’ll read it for the record and make this court’s exhibit 1. First—first notation is as follows, [the defendant’s] testimony regarding the documents which he did or did not sign and the manner in which he signs his name. Second part of this reads as follows, John Walker testimony regarding composite, review of police photos and timing of same.
      “All right, ladies and gentlemen, we believe we have obtained those items of the testimony for playback, and hopefully we’ve got all of the portions that you’re looking for. If, for any reason, what you’re seeking does not sound like it’s in the playback, when you go back in 1he room you can send me out another note. All right. You can start with [the defendant’s].”
      Whereupon, the court monitor played back the recording of the testimony.

       Defense counsel did not object to any of the playback at the time it took place.

       “[Defense Counsel]: I just wanted to object to part of the playback .... [Fallowing the request from the jury of the read back of Walker’s composite and review of the photos and timing of same, during the course of that playback there was . . . testimony about an in-court identification that he made, and that would be out of the scope of the request.”

       “The Court: All right. That has already been played back for the jury, so we can’t take it back at this point in time. I think it was all in context, however, with what they were seeking and it helped them understand the circumstances relating to the photo, especially the composite, so I think that it was proper. I would not advise them otherwise, and it’s actually at this stage, it’s already an accomplished fact. So, I can’t unplay it. Your objection is noted for the record.”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    SHARON BENDER v. MARK BENDER
    (AC 18968)
    Lavery, C. J., and Landau and Mihalakos, Js.
    Argued June 8
    officially released October 3, 2000

      Barry T. Pontolillo, for the appellant (defendant).

      Joseph R. Galotti, Jr., for the appellee (plaintiff).
   Opinion

LANDAU, J.

This is an appeal from a judgment rendered in a dissolution proceeding involving property division, alimony and support and custody orders. The principal issue in this appeal is whether the trial court’s award of a nonvested pension benefit held by the defendant, Mark Bender, was impermissibly speculative. The defendant claims, inter alia, that the court should have used the known present value of the nonvested pension benefit in determining its final orders rather than the nonvested future benefit. We affirm the judgment of the trial court.

The relevant procedural and factual background is as follows. The parties were married in November, 1976. The defendant has been employed as a firefighter by the city of Meriden for approximately nineteen years and is entitled to a pension as a firefighter in the event that he reaches twenty-five years of service. Thus, his pension, at the time of trial, was nonvested except for purposes of disability.

The principal cause for the breakdown of the marriage was that most of the defendant’s free time was spent in pursuits that did not include the plaintiff, Susan Bender, or their children, such as his hobbies of motorcycling, boating and fishing. The court found that there had been some violence in the family. The defendant also had been sexually intimate with at least one other woman during the marriage, a relationship that continued to the time of trial. Despite a fairly good income and extremely small housing expenses, the parties acquired few assets and little savings. Nearly all discretionary income during the marriage was expended on the defendant’s personal pursuits. The sole substantial asset of the marriage is the defendant’s nonvested pension right.

The court ordered, inter alia, that “[u]ntil such time, if any, as [the] defendant’s right to receive retirement benefits from the city of Meriden vests, [the] plaintiff shall be the beneficiary of, and be entitled to receive, the refundable contributions, with accrued interest or yield thereon, if any, made by or on behalf of [the] defendant if such contributions, etc. . . . shall ever become payable by the city of Meriden. And there is hereby entered a qualified domestic relations order assigning to [the] plaintiff one half of the disability and/ or retirement benefits earned by [the defendant] from his employment by the city of Meriden for his labors for said city through the date of this decree. (The court is aware that [the] defendant’s right to receive retirement benefits has not yet vested.)”

The defendant claims first that the court “engaged in unbridled speculation” when it awarded the nonvested future benefit to the plaintiff instead of utilizing the known present value of the contributions into the pension in determining its financial orders. The defendant argues that the only evidence introduced at trial was the present value of his contributions into the pension fund, which the court found to be $27,741. Therefore, there was no factual basis contained within the record to support the actions of the court.

“There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within [General Statutes] § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution).” Krafick v. Krafick, 234 Conn. 783, 792-93, 663 A.2d 365 (1995). It is important to note what is not at issue here. Neither party challenges the authority of the court to award nonvested pension rights. See id., 794-95 n.20, 798-99 n.23. The present case, therefore, concerns the proper treatment of the defendant’s nonvested pension under the last two stages of our equitable distribution scheme. Thus, we must determine how the nonvested pension benefit of the defendant should be valued and distributed.

The guidance of the Krafick court is extremely helpful. Although the facts in that case involved a vested and not, as we have here, a nonvested pension, for our purposes, it is a difference without a distinction. The same lessons that are applicable in that case are applicable here. “There are three widely approved methods of valuing and distributing pension benefits. The first, called the present value or offset method, requires the court to determine the present value of the pension benefits, decide the portion to which the nonemployee spouse is entitled, and award other property to the nonemployee spouse as an offset to the pension benefits to which he or she is otherwise entitled. 3 Family Law and Practice [A. Rutkin ed., 1995] § 36.13 [3], p. 36-72 . . . .” (Citations omitted.) Krafick v. Krafick, supra, 234 Conn. 800. This “method has the advantage of effecting a clean break between the parties. . . . [It] ... is not feasible, [however,] when there are insufficient other assets by which to offset the value of the pension . . . .” (Citations omitted; internal quotation marks omitted.) Id., 802.

“The second and third recognized methods for valuing and distributing pensions involve delaying distribution until the pension matures. . . . Under the ‘present division’ method, the trial court determines at the time of trial the percentage share of the pension benefits to which the nonemployee spouse is entitled. The court may then, through a [qualified domestic relations order] for pensions covered by [the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.] ERISA or some equivalent if the nonERISA plan permits, presently divide or assign the pension benefits between the spouses. ... In other words, the court will declare that, upon maturity, a fixed percentage of the pension be distributed to each spouse. . . .

“Alternatively, under the ‘reserved jurisdiction’ method, the trial court reserves jurisdiction to distribute the pension until benefits have matured. Once matured, the trial court will determine the proper share to which each party is entitled and divide the benefits accordingly.” (Citations omitted.) Id., 803.

“These methods are favored when there are insufficient assets to offset the award of the pension to the employee spouse alone or when the evidence is inadequate to establish present value. . . . These methods are not exclusive. A trial court retains discretion to select any other method to take account of the value of a pension asset that might better address the needs and interests of the parties. . . . The touchstone of valuation, as well as the ultimate distribution of pension benefits, is the court’s power to act equitably. . . . We note that, although not expressly required by statute, a trial court, when utilizing a method to ascertain the value of a pension, should reach that value on the record. Casting the judgment in specific amounts will make the result more comprehensible for the litigants and will facilitate appellate review as often as such review may become necessary.” (Citations omitted; internal quotation marks omitted.) Id., 804.

“The scope of our review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . Moreover, we do not retry the facts. ... In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action. . . . The conclusions which we might reach, were we sitting as the trial court, are irrelevant.” (Internal quotation marks omitted.) Lowe v. Lowe, 47 Conn. App. 354, 361, 704 A.2d 236 (1997).

Upon a careful reading of the record, it is clear that the trial court adopted the present division method as outlined in Krafick. It determined the percentage share of the pension benefit to which the nonemployed spouse would be entitled when the pension vests. Here, upon hearing testimony regarding what portion of the defendant’s ultimate monthly pension benefit he had earned during the course of the marriage, the court employed the present division method, awarding the plaintiff one half of the only substantial asset of the marriage. Thereafter, in a well-reasoned effort to address the needs of the plaintiff in the event that, for whatever reason, the defendant’s pension did not vest, the court exercised its authority to act equitably by ordering that term life insurance, listing the plaintiff as the beneficiary, be purchased until such time as the pension does vest.

We conclude that the court appropriately exercised its wide discretionary authority in its financial award and therefore affirm its decision.

The judgment is affirmed.

In this opinion the other judges concurred.

       If the defendant were to leave the fire department before twenty-five years, other than for disability, he would receive only his contributions. They are valued at approximately $27,741.

         The defendant admitted to hitting the plaintiff in self-defense and putting his son’s head through a wall. He also admitted to hitting his daughter and placing his hands around her neck. He was arrested for an incident involving his daughter, at which time the court imposed a restraining order.

       A pension specialist for the city of Meriden testified that if the defendant were permitted to retire at the time of trial, he would be entitled to receive monthly distributions in the amount of $2270.

       To the extent that 1he defendant raises on appeal the court’s not taking into account the plaintiffs ability to receive a nonvested future pension from the city of Meriden, we decline to review that claim. The record indicates that contrary to the defendant’s claim, the plaintiff is not employed by the same employer as the defendant, the city of Meriden, but is employed by the Meriden board of education. No testimony was elicited before the trial court as to her entitlement to any pension benefits. Equally as important is the fact that no claim was made to the trial court as to this issue. See Practice Book §§ 5-2, 60-5.


author: SPALLONE, J.

text:
    DOROTHY DREHER v. CHARLES JOSEPH, JR., ET AL.
    (AC 18576)
    Foti, Landau and Spallone, Js.

      Argued December 13, 1999
    officially released October 3, 2000

      Arnold L. Beizer, for the appellant (plaintiff).

      Constance L. Epstein, with whom, on the brief, was Marla L. Seligson, for the appellee (named defendant).

      Thomas It Gerarde, for the appellee (defendant borough of Jewitt City).
   Opinion

SPALLONE, J.

In this action sounding in negligence, the plaintiff, Dorothy Dreher, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the defendant Charles Joseph, Jr. On appeal, the plaintiff claims that the court improperly concluded as a matter of law that absent a statute or ordinance to the contrary, the state does not recognize a cause of action against abutting landowners for injuries caused by defective public sidewalks. We affirm the judgment of the trial court.

The following facts are relevant to a resolution of this appeal. On October 19, 1995, the plaintiff slipped and fell on a raised and uneven portion of the public sidewalk adjacent to a building owned by the defendant. Thereafter, the plaintiff brought a three count complaint asserting negligence against Joseph, his tenant, Charlene Schultz, and the borough of Jewett City for injuries allegedly sustained as a result of the fall, claiming that the defendants failed to keep the sidewalk in proper repair.

On February 6, 1998, Joseph filed a motion for summary judgment on the ground that there was no genuine issue as to any material fact and that Connecticut law does not recognize a cause of action against an abutting landowner for injuries caused by defects in a public sidewalk, absent a statute or ordinance to the contrary. The court granted the defendant’s motion on May 18, 1998. This appeal followed.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .

“On appeal . . . [b]ecause the trial court rendered judgment ... as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).” (Citations omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 57 Conn. App. 41, 43-44, 746 A.2d 820, cert. granted on other grounds, 253 Conn. 911, 754 A.2d 161 (2000).

The plaintiff claims that the court improperly granted the defendant’s motion for summary judgment because § 21 of the charter of the borough of Jewett City (charter) renders abutting landowners liable for injuries caused by defective public sidewalks. We do not agree.

General Statutes § 13a-149 provides in relevant part that “[a]ny person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. . . .” General Statutes § 13a-99 further provides in relevant part that “[t]owns shall, within their respective limits, build and repair all necessary highways and bridges . . . except when such duty belongs to some particular person. . . .” (Emphasis added.)

Section 21 of the charter provides that “[e]very person owning land within the Borough upon or adjacent to which is or may be a sidewalk paved, concreted, constructed or worked, shall at all times keep such sidewalk in a safe, convenient condition for the use of the public and shall forthwith repair all defects which may occur in said sidewalk and at all times remove therefrom and keep the same free from all obstructions which in any way would impede public travel upon said sidewalk.”

We note that a fair reading of the charter charges the abutting landowner with an obligation to keep the adjacent sidewalk in repair. Nothing in the language of § 21, however, expressly makes the abutting landowner liable for injuries caused by the defective condition of such a sidewalk.

Moreover, “[a]butting owners have only been held liable for injuries from defective sidewalks where under charter provisions they were not only charged with the duty of keeping sidewalks in repair but also expressly made liable for injuries occasioned by defective condition thereof.” Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937).

Furthermore, “[i]t is a general rule of construction of statutes or ordinances which impose upon property owners the performance of a part of the duty of a municipality to the public that a legislative intent is indicated, unless it is plainly expressed otheiwise, that a breach thereof shall be remedial only by the municipal government or by enforcement of a penalty prescribed therein, and that there is no right of action to an individual citizen specially injured in consequence of such breach. The most conspicuous cases of this sort are those that deny liability to private suit for violation of the duty imposed by ordinance upon abutting property owners to maintain sidewalk pavements or to remove snow and ice from the walks.” (Internal quotation marks omitted.) Id.

In 1981, the legislature enacted General Statutes § 7-163a, which not only permits a town to adopt an ordinance that requires abutting landowners to remove snow and ice on public sidewalks, but also empowers the town to shift liability to the abutting landowner for injuries caused by a violation of the ordinance. We are not aware, however, of any statutory counterpart that specifically enables a municipality to shift liability for raised or uneven sidewalks to abutting landowners.

“[ W]hen a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent.” (Internal quotation marks omitted.) State v. Anderson, 220 Conn. 400, 404, 599 A.2d 738 (1991). Nothing in the language of § 21 of the charter shifts the liability for injuries caused by defective sidewalks to abutting landowners. We assume that the drafting of the ordinance and its enactment by the municipality was done within the framework of § 7-163a, which authorizes towns to impose an obligation on abutting owners of adjacent sidewalks for injury caused by the presence of ice and snow. The fact that the municipality in this case did not expressly shift liability to the landowner suggests that the municipality may have concluded that it had no power to do so and that the draftees were aware of this limitation. We cannot assume that the municipality acted in violation of its authority.

The plaintiff claims that the Superior Court, in Dumas v. Schumanski, Superior Court, judicial district of New London at Norwich, Docket No. 105155 (May 23, 1996) (16 Conn. L. Rptr. 613), interpreted § 21 of the charter in the context of § 13a-149 to mean that an abutting property owner can be held liable for injuries caused by a defective sidewalk. Id., 614. In Dumas, the court concluded that the language of § 13a-149, which provides that “[a]ny person injured ... by means of a defective road or bridge may recover damages from the party bound to keep it in repair(emphasis added); clearly and unambiguously places liability for injuries caused by a defective road, including a sidewalk, on the party primarily responsible for its maintenance which, under § 21, is the abutting property owner. Id., 614.

Dumas, however, is not binding precedent, and, for the reasons previously stated, it also is not persuasive. Neither § 21 of the charter nor § 13a-149 explicitly makes abutting landowners liable for injuries caused by defective sidewalks; see Willoughby v. New Haven, supra, 123 Conn. 454; and it is the general rule of construction that even where an ordinance imposes on property owners a duty normally performed by the municipality, there is no private right of action unless plainly expressed in the ordinance. Id.

We conclude that the court acted properly and in accordance with applicable law when it granted the defendant’s motion for summary judgment. See H.O.R.S.E. of Connecticut, Inc. v. Washington, supra, 57 Conn. App. 43.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original two count complaint, dated April 21, 1997, was brought against Joseph and Schultz, who operated a restaurant on the premises known as Charlene’s Diner. The plaintiff amended the complaint on September 8, 1997, to add a statutory cause of action against the borough of Jewett City.

       All subsequent references to the defendant are to Charles Joseph, Jr., unless otherwise noted.

       It should be noted that the defendant Schultz filed a motion to strike the count against her on July 21, 1997, which was granted by the court on December 8,1997. The action against the borough of Jewett City is pending. The decision granting summary judgment for the defendant, Charles Joseph Jr., however, is a final judgment for purposes of appeal. Practice Book § 61-3 provides that “[a] judgment disposing of only a part of a complaint . . . is a final judgment if 1 hat judgment disposes of all causes of action in that complaint . . . brought by or against a particular party or parties. Such a judgment shall be a final judgment regardless of whether judgment was rendered on the granting of a motion to strike . . . [or] by summary judgment . . . .” See Connecticut National Bank v. Rytman, 241 Conn. 24, 34-35, 694 A.2d 1246 (1997).

       General Statutes § 7-163a provides in relevant part: “(a) Any town, city, borough, consolidated town and city or consolidated town and borough may, by ordinance, adopt the provisions of this section.
      “(b) Notwithstanding the provisions of section 13a-149 or any other general statute or special act, such town . . . shall not be liable to any person injured ... by the presence of ice or snow on a public sidewalk unless such municipality is the owner or person in possession and control of land abutting such sidewalk ....
      “(c) The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to the presence of ice or snow on such sidewalk toward the portion of the sidewalk abutting his property as the municipality had . . . and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury. . . .”

       In granting the motion, the court, relied on the conclusion in Sbriglio v. Hatch, Superior Court, judicial district of Hartford, Docket No. 554466 (July 9, 1999), that “[ujnless a person in possession or control of property which abuts a sidewalk has created the defect, he has no liability to third parties injured on the defective sidewalk.” We discourage a trial court, however, from adopting the decision of another trial court without its own finding of facts.