text:
    William T. Evans v. George Bronson, Warden
    (7307)
    Dupont, C. J., Borden and Foti, Js.
    Argued June 22 —
    decision released September 5, 1989

      William T. Evans, pro se, the appellant (petitioner).

      Kevin T. Kane, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (respondent).
   Foti, J.

The petitioner appeals from the habeas court’s dismissal of his petition for a writ of habeas corpus, after granting the respondent’s motion to quash. The dispositive issue is whether the habeas court erred in concluding that the petitioner, who was charged with being a persistent dangerous felony offender for a crime committed after July 1,1981, was not exposed to a sentence of life imprisonment and, therefore, not entitled to a hearing in probable cause. We find no error.

The petitioner was charged in the first part of an information with committing robbery in the first degree on or about September 30, 1983, in violation of General Statutes § 53-134. In the second part of the information, he was charged with being a persistent dangerous felony offender in violation of General Statutes (Rev. to 1983) § 53a-40 (a). The petitioner was convicted after a jury trial on both counts of the information and, pursuant to General Statutes §§ 53a-40 (f) and 53a-35a, was sentenced to a term of twenty-five years in prison. He claims that he was entitled to a probable cause hearing pursuant to article first, section 8, of the Connecticut constitution as amended by article seventeenth of the amendments and General Statutes § 54-46a (a).

A person who is charged with a crime that is “punishable by death or life imprisonment” and “who has not been indicted prior to May 26, 1983,” is entitled to a “preliminary hearing [to determine whether] there is probable cause to believe that the offense has been committed and that the accused person has committed it.” General Statutes § 54-46a (a); Conn. Const., amend. XVII. Under this section, only a person who is exposed to a sentence of life imprisonment or death is entitled to a probable cause hearing.

The petitioner argues that a prerequisite for sentencing a persistent felony offender, pursuant to § 53a-40 (f), is that the court find that “extended incarceration and lifetime supervision will best serve the public interest.” He argues that this phrase subjects him to life “imprisonment,” and as a consequence, he was entitled to a probable cause hearing. The petitioner’s argument incorrectly equates “supervision” with “imprisonment,” and misconstrues the clear intent of § 53a-40 (f). We read the phrase “extended incarceration and lifetime supervision” as an expression of the legislature’s policy in enacting this statute, and therefore, not as mandating any particular sentence. Rather than imposing any particular sentence, § 53a-40 (f) merely authorizes a sentence for a class A felony and then directs the trial court to consult the applicable sentencing statute, depending on the date the offense occurred. See General Statutes §§ 53a-35a and 53a-35. Under the applicable statute in this case, the maximum prison sentence to which the petitioner was exposed was twenty-five years.

Pursuant to General Statutes § 53a-40 (f), a person who is convicted of being a persistent dangerous felony offender, either before or after July 1, 1981, may be sentenced to a term of imprisonment authorized by the applicable statutes for a class A felony. Prior to July 1, 1981, indeterminate sentencing was mandated for all felonies, and the maximum term for a class A felony, including murder, was life imprisonment. General Statutes § 53a-35 (a) and (b). For crimes committed on or after July 1,1981, however, General Statutes § 53a-35a mandates definite sentencing and sets forth the current sentencing scheme. Section 53a-35a distinguishes between two types of class A felonies and provides in pertinent part: “(2) for the class A felony of murder, a term not less than twenty-five years nor more than life; (3)for a class A felony other than murder, a term not less than ten years nor more than twenty-five years . . . . ” (Emphasis added.)

Because the petitioner was convicted after July 1, 1981, General Statutes § 53a-35a is applicable to his case. Since he was convicted of a “class A felony other than murder,” the maximum prison sentence that the court could have imposed under that section was twenty-five years. Under these circumstances, the petitioner could not have received a sentence of life imprisonment or death and, therefore, no probable cause hearing was required.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1983) § 53a-40 (a) provides in pertinent part: “PERSISTENT OFFENDERS: DEFINITIONS, DEFENSE; AUTHORIZED SENTENCES. A persistent dangerous felony offender is a person who (1) stands convicted of . . . robbery in the first or second degree . . . and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1,1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1,1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) or (2).”

       General Statutes (Rev. to 1983) § 53a-40 (f) provides: “When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1,1981, may impose the sentence of imprisonment authorized by said section for a class A felony. ” (Emphasis added.)

       General Statutes § 53a-35a provides in pertinent part: “imprisonment FOR ANY FELONY COMMITTED ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; TERMS AUTHORIZED. For any felony committed on or after July 1,1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows ... (2) for the class A felony of murder, a term not less than twenty-five years nor more than life; (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years; (4) for a class B felony, a term not less than one year nor more than twenty years, except that for a conviction under section 53a-55a, 53a-59 (a) (1), 53a-59a, 53a-70a, 53a-94a, 53a-101 (a) (1) or 53a-134 (a) (2), the term shall be not less than five years nor more than twenty years . . . .” (Emphasis added.)

       Article first, section 8, of the Connecticut constitution as amended by article seventeenth of the amendments, provides in pertinent part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       General Statutes § 54-46a (a) provides: “probable cause hearing for PERSONS CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE IMPRISONMENT. (a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.” (Emphasis added.)

       The phrase “lifetime supervision” is plain and clearly relates to parole or probation, and not to incarceration. Definite sentencing mandated by § 53a-35afor felonies committed after July 1,1981, effectively eliminated parole in Connecticut. State v. Dupree, 196 Conn. 655, 659, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985).

       General Statutes § 53a-35 provides in pertinent part: “imprisonment FOR ANY FELONY COMMITTED PRIOR TO JULY 1, 1981: INDETERMINATE SENTENCES; maximum and minimum terms, (a) For any felony committed prior to July 1, 1981, the sentence of imprisonment shall be an indeterminate sentence, except as provided in subsection (d). When such a sentence is imposed the court shall impose a maximum term in accordance with the provisions of subsection (b) and the minimum term shall be as provided in subsection (c) or (d).
      “(b) The maximum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows: (1) For a class A felony, life imprisonment; (2) for a class B felony, a term not to exceed twenty years; (3) for a class C felony, a term not to exceed ten years; (4) for a class D felony, a term not to exceed five years; (5) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime; and (6) for a capital felony, life imprisonment unless a sentence of death is imposed in accordance with section 53a-46a.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Richard Paladino
    (7038)
    Spallone, O’Connell and Norcott, Js.
    Argued June 20 —
    decision released September 5, 1989

      Julian Schlesinger, with whom, on the brief, was Michael Sucoll, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Herbert Carlson, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction of one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), one count of carrying a pistol without a permit in violation of General Statutes § 29-35 and one count of criminal use of a pistol in violation of General Statutes § 53a-217 (a).

On appeal, the defendant challenges only his manslaughter and assault convictions. He claims that the trial court erred (1) in instructing the jury on the duty to retreat, (2) in failing to give a unanimity charge, and (3) in improperly commenting on the evidence. We find no error.

The jury could reasonably have found the following facts. The defendant and the driver of another car were involved in an altercation at an intersection in New Britain on the evening of January 3,1987. The defendant displayed a .25 caliber pistol and, following a brief exchange of words, the other driver returned to his car and started to drive away. In an apparent attempt to disable the vehicle, the defendant shot at the left rear tire as it pulled away. The driver stopped his car, and he and his passenger, who carried a club, exited the vehicle and approached the defendant. They stopped approximately five to ten feet from the defendant at which time the defendant shot and fatally wounded the other driver. The passenger dropped the club and turned to run back toward the car when the defendant shot and wounded him in the leg. Immediately after the shooting, the defendant fled the scene. Additional facts are included in the discussion of the relevant claims of error.

I

The defendant’s first claim of error pertains to the trial court's instruction concerning the defendant’s obligation to retreat as part of his claim of self-defense. General Statutes § 53a-19 provides in pertinent part: “A person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety . . . by retreating . . . . ” (Emphasis added.) The court’s instruction did not include the factor of the defendant’s knowledge of his ability to retreat. The state concedes that this omission rendered the charge technically flawed but argues that, under the circumstances of the present case, the error was harmless. We agree.

In State v. Quintana, 209 Conn. 34, 47-48, 547 A.2d 534 (1988), our Supreme Court resolved the same question presented here. In Quintana, the jury was presented with conflicting versions of a stabbing. The defendant’s witness portrayed the stabbing as an act of self-defense in response to an unprovoked attack by the victim. There, as here, the trial court failed to instruct the jury properly on the defendant’s knowledge of his ability to retreat and thus to avoid the situation. The Supreme Court, however, found that failure to be harmless error. It held that the principal factual issues for the jury were dependent on which of the two versions of the stabbing it believed and not on the subtleties of the law of self-defense, such as the defendant’s subjective knowledge of the availability of safe retreat. Id.

In this case, as in Quintana, the jury was faced with two conflicting versions of the events of January 3, 1987. Therefore, the ultimate question before the jury was one of credibility and not of the defendant’s subjective knowledge of a safe avenue of retreat. The state presented a scenario in which one of the victims was unarmed and both had stopped five to ten feet away from the defendant, who was armed with a pistol. By contrast, the defendant’s version depicted the two victims charging toward him, one armed with a knife and the other armed with a club with a studded leather thong at one end. According to this version, the defendant was struck twice on the arm when the victim swung the club at his head and while the second victim was coming at him with a knife and yelling, “You’re dead!” Thus, the central issue for the jury was whether the defendant shot his victims to protect himself from further beatings and a possible stabbing, or whether he shot them while they stood stationary, five to ten feet away. Obviously, it found the state’s version more credible. Thus, in this context, the question of retreat was relatively insignificant.

It is fundamental that a portion of a jury charge is not to be judged in artificial isolation but must be considered in the context of the entire instruction. State v. Quintana, supra, 47; State v. Phillips, 17 Conn. App. 391, 394, 552 A.2d 837 (1989). The instruction must be examined from the viewpoint of its effect on the jury in guiding it to a proper verdict. State v. Quintana, supra. Read as a whole, the self-defense instruction in the present case, although not in strict accordance with § 53a-19 (b), “ 'presented the case to the jury in a manner so that no injustice . . . resulted].’ ” State v. Quintana, supra, quoting State v. DeJesus, 194 Conn. 376, 391, 481 A.2d 1277 (1984). We conclude that it is not reasonably possible that the jury was misled, and thus, the erroneous instruction does not amount to reversible error. State v. Quintana, supra, 50.

II

In his second claim, the defendant argues that the court erred in failing specifically to instruct the members of the jury that they had to agree unanimously on which of the four elements that disprove self-defense defeated the defendant’s claim. The defendant did not file a request to charge on the unanimity issue, nor did he take an exception to the instructions as given, as mandated by Practice Book §§ 852 and 4185. This court is not bound to consider any claim that is not properly preserved for appeal. Practice Book §§ 852, 4185; State v. Bailey, 209 Conn. 322, 328, 551 A.2d 1206 (1988); State v. Avila, 13 Conn. App. 120, 123-24, 534 A.2d 913 (1987). Despite his failure to preserve the claim for appeal, the defendant argues that the claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 526 (1973). We disagree.

Before allowing full review of unpreserved claims under Evans, we must first give the record a limited review to determine “whether the defendant’s claim is truly of constitutional proportions or is simply characterized as such by the defendant. In those instances in which the Supreme Court . . . has already clearly indicated that the particular claim is or is not of constitutional proportions and therefore reviewable or not reviewable, a summary ‘yes’ or ‘no’ answer may be sufficient.” State v. Bailey, supra, 329-30 n.4.

The present case qualifies for a summary “no.” As in Bailey, the record here discloses that the evidence was not of such complexity that it created a genuine danger of confusing the jury. Id., 337-38. “While the jury was instructed to consider several factors pertaining to the self-defense claim, these factors were applicable to a ‘short continuous incident’ that realistically could not be atomized into discrete, distinct events.” Id., 337. Therefore, the defendant’s claim of error is not of constitutional dimension, and we decline to review it. Id., 338.

III

In his third claim of error, the defendant argues that the court’s comments to the jury violated General Statutes § 54-89 in that they had the effect of directing a verdict against him. Section 54-89 provides in pertinent part: “[T]he court shall submit the facts to the jury without directing how to find their verdict.”

In disposing of this claim, we note that a trial court has liberal discretion to comment on the evidence as long as it does not misstate or unfairly summarize the evidence and thereby invade the province of the jury as the trier of the facts. State v. Mackor, 11 Conn. App. 316, 326, 527 A.2d 701 (1987). In some cases, the trial court has not only the right, but often the duty, to comment on the evidence. State v. Reid, 193 Conn. 646, 663, 480 A.2d 463 (1984). The record in this case does not disclose that the trial court’s comments exceeded proper bounds.

There is no error.

In this opinion the other judges concurred.


author: Per Curiam.

text:
    Susan Higgins et al. v. John Ambrogio et al.
    (6971)
    Borden, Daly and Norcott, Js.
    Argued June 15 —
    decision released September 5, 1989

      Mark Rademacher, for the appellants (plaintiffs).

      Richard C. Robinson, for the appellees (defendants).
   Per Curiam.

The plaintiffs appeal from the judgment of the trial court, Hon. Joseph W. Bogdanski, state trial referee, dismissing their action pursuant to Practice Book § 302 for failure to make out a prima facie case. The plaintiffs claim that the court erred by dismissing their action because they had made out a prima facie case. We find no error.

The plaintiffs are taxpayers of the town of Hamden. The named defendant, John P. Ambrogio, is the police chief of Hamden, and the other defendants are Ambrogio’s secretary, Lorraine Papa, the former mayor of the town, Peter Villano, and the town itself. The plaintiffs’ revised complaint, in thirteen counts, alleged in each count that in April, 1983, Ambrogio and Papa submitted to the town a claim asserting that Ambrogio was entitled to be paid by the town for 156 unused vacation days, thirty unused compensatory days, 120 unused sick days, and 23,293.5 hours of overtime. The complaint further alleged that each defendant knew or should have known that the town did not owe Ambrogio compensation for these claimed items, and that Villano paid Ambrogio $22,468.80 from the funds of the town. The complaint also alleged in each count that “[a]t the time he received such payment, defendant Ambrogio was not legally entitled to receive it,” and that at the time of the payment each defendant “knew or should have known that defendant Ambrogio was not legally entitled to receive the said payment.” The various prayers for relief were to require the defendants to repay the town the sum of $22,468.80. Although the various counts against the defendants are cast in differing legal theories, such as theft, fraud, negligence and conspiracy, the basic factual allegations are common to all counts.

Ambrogio and Villano moved to dismiss the complaint on the ground that the plaintiffs lacked standing because there was no increase in their taxes as a result of the claimed payment to Ambrogio. The trial court, Mulcahy, J., after an evidentiary hearing, rejected the defendants’ claims in a thorough and thoughtful memorandum of decision, and denied the motion to dismiss. After the plaintiffs had rested their case at trial, the trial court granted the defendants’ motion for judgment of dismissal pursuant to Practice Book § 302. This appeal followed.

Because it is based on subject matter jurisdiction, we first consider the defendants’ claim, presented as an alternate basis to sustain the judgment of the trial court, that the plaintiffs did not establish taxpayer standing. We disagree. Judge Mulcahy correctly applied the law of taxpayer standing; see, e.g., American-Republican, Inc. v. Waterbury, 183 Conn. 523, 526-28, 441 A.2d 23 (1981); to the facts found, and concluded that the money paid to Ambrogio came from local tax revenues, and that the plaintiffs demonstrated a sufficiently colorable claim to confer such standing on them. Id., 527.

We turn, therefore, to the plaintiffs’ claim that the court erred in concluding that they did not make out a prima facie case. Taking the plaintiffs’ evidence at its best, as we must in reviewing a judgment of dismissal pursuant to Practice Book § 302; see, e.g., Bolmer v. Kocet, 6 Conn. App. 595, 603, 507 A.2d 129 (1986); we conclude that the court did not err.

It is not necessary to relate all the evidence produced by the plaintiffs, which focused on claimed misrepresentations by Ambrogio and Papa regarding the documentation supporting Ambrogio’s claims for overtime, vacation days and sick time. No matter how one reads the plaintiffs’ complaint, it was critical to all their claims that they prove Ambrogio was not entitled to receive $22,468.80 from the town. The linchpins of all the counts of their complaint are the allegations that Ambrogio was not entitled to receive payment of that amount, and that the defendants knew or should have known that he was not so entitled. As the defendants argue, and the plaintiffs do not contend otherwise, only if the court were to conclude that he was not so entitled could it grant the relief required by the plaintiffs, namely, that the defendants repay the town that amount.

It is clear from this record, however, that the payment of that amount to Ambrogio consisted solely of compensation for unused vacation and compensatory time, and did not include payment for overtime or for unused sick days. It is also clear that, irrespective of how Ambrogio presented his claim, there was no evidence that he was not entitled to be paid that amount for those particular items. Indeed, the only evidence produced indicated that he was so entitled. Thus, the trial court was correct in rendering a judgment of dismissal pursuant to Practice Book § 302.

There is no error.

       An additional count was initially directed against the attorney for the town, but the plaintiffs ultimately withdrew the action against him.

       The prayer for relief against the town was that it reduce its current total tax bill by that amount. We read this request as derivative of and dependent on the claim for repayment by the individual defendants. The prayers for relief also asked for unspecified compensatory and punitive damages. It is clear, however, that these claims are also derivative of and dependent on the principal claim of the plaintiffs for repayment of the $22,468.80 paid to Ambrogio by the town.

       Practice Book § 302 provides in pertinent part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. . . .”

       We therefore decline to unsnarl the procedural tangle regarding standing that ensued at the trial, because it is unclear whether the state trial referee reconsidered the facts found by Judge Mulcahy and the law he applied to them, and neither side sought an articulation in that regard.


text:
    Stanislaw Geryk v. Atlantic Richfield Company et al. Edmund Lulewicz v. Thomas P. Roy et al.
    (7003)
    Spallone, O’Connell and Norcott, Js.
    Argued June 20 —
    decision released September 5, 1989

      Joseph B. Curran, with whom was Margaret Corrigan, for the appellants (defendants).

      William F. Gallagher, with whom, on the brief, were Donald G. Walsh and Evelyn A. Barnum, for the appellee (plaintiff Edmund Lulewicz).
   O’Connell, J.

This is the defendants’ appeal, after a jury trial, in an action for personal injuries sustained in a motor vehicle collision. The jury returned , a $10,000 verdict in favor of the plaintiff Edmund Lulewicz. The trial court set aside that verdict as inadequate and ordered a new trial limited to the issue of damages unless the parties agreed to an additur of $193,000. The defendants declined to agree and appealed seeking to have the jury’s verdict reinstated, or, in the alternative, a new trial on the issue of liability as well as damages. We find error.

The jury could reasonably have found that the plaintiff was a passenger in a car that was struck by a tractor trailer operated by the defendant Thomas P. Roy and owned by the defendant Atlantic Richfield Co.

It is rudimentary that litigants have a constitutional right to have issues of fact and damages determined by a jury. Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988); Gold v. University of Bridgeport School of Law, 19 Conn. App. 379, 380, 562 A.2d 470 (1989). As a result, a trial court should not set aside a jury’s verdict unless it “ ‘ “so shockfs] the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or Corruption.” Shea v. Paczowski, 11 Conn. App. 232, 233, 526 A.2d 558 (1987).’ Creem v. Cicero, 12 Conn. App. 607, 610, 533 A.2d 235 (1987).” Brennan v. Manlapaz, 19 Conn. App. 71, 74, 560 A.2d 988 (1989). “The evidence offered at trial ‘must be given the most favorable construction to which it is reasonably entitled in support of the verdict . . . . ’ ” Shea v. Paczowski, supra, 233-34, quoting Josephson v. Meyers, 180 Conn. 302, 313, 429 A.2d 877 (1980).

Here, the defendants argue that the $10,000 jury award constituted just and reasonable compensation for the plaintiffs injuries and that it was error for the trial court to set it aside. By contrast, the plaintiff argues that the verdict was inadequate as a matter of law. In support of this argument, the plaintiff points to evidence of medical expenses totaling $10,693.38, plus an additional $5000 to $6000 if he elects to undergo future surgery. He also points to lost wages and to evidence of permanent partial disability.

It is fundamental that a jury may accept a portion of the evidence and reject the remainder of it. Shea v. Paczowski, supra, 234. Thus, the jury in the present case could reasonably have accepted or rejected the plaintiffs evidence of permanent partial disability because the 10 percent rating of his left wrist was the only rating based on limitation of motion. His other disability ratings were based on his subjective complaints of pain. Similarly, it could have accepted or rejected the severity of his pain and suffering as well as his claimed residual scarring. In addition, the jury could reasonably have concluded that the plaintiff did or did not establish a causal connection between certain injuries and the collision. Such injuries included a deviated septum, of which he did not complain until approximately nine months after the accident, and hearing problems and dizziness. The jury could also have accepted or rejected the plaintiffs claimed medical expenses and lost wages.

We note, moreover, that the trial court twice returned the jury to the deliberating room to reconsider the amount of its award. In response, during its last deliberation, the jury sent the court a note asking: “What if we still believe this award was a fair and just amount? Is there a certain guideline we should follow, such as a minimum or maximum amount?” Furthermore, it stated, “We do understand that in finding for the plaintiffs, we are to award 100 percent of what we consider a fair and just amount.”

The trial court concluded, in its memorandum of decision, that the jury mistakenly applied the law when it rendered its verdict. From our review of the record, however, we disagree. There is no indication that the jury misapplied the law. To the contrary, we are satisfied that the verdict was carefully considered. In keeping with the premise that “ ‘[t]he amount of damages to be awarded is a matter particularly within the province of the jury’ Brennan v. Manlapaz, supra, quoting Shea v. Paczowski, supra; we conclude that the trial court erred in setting aside the jury’s verdict as inadequate as a matter of law.

There is error, the order of the trial court setting aside the verdict and ordering a new trial unless the defendants filed an additur of $193,000 is set aside and the case is remanded with direction to reinstate the jury’s verdict and to render judgment in accordance therewith.

In this opinion the other judges concurred.

       The two cases were consolidated at trial. Edmund Lulewicz is the sole plaintiff in this appeal.


text:
    State of Connecticut v. Pasquale Gaudio, Sr.
    (7542)
    Spallone, O’Connell and Norcott, Js.

      Argued June 20 —
    decision released September 5, 1989

      George H. Romania, for the appellant (defendant owner).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Strollo, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

This is an appeal from a judgment declaring a 1984 Chevrolet Blazer to be a nuisance and ordering the automobile forfeited to the Wallingford police.

The defendant is the owner of the vehicle at issue. He claims that the court erred (1) in failing to find that he had knowledge of the use of his vehicle for illegal purposes, and (2) in ordering the forfeiture in violation of his due process rights because he was an innocent owner. We find no error.

The following facts are pertinent to our resolution of this appeal. On August 2, 1988, Wallingford police officers executed a warrant to search the defendant’s vehicle and his two sons. The officers discovered approximately five and one-half grams of cocaine in the glove compartment of the Blazer, and the vehicle was seized pursuant to General Statutes § 54-33g. On October 18, 1988, after an in rem hearing, the trial court found the vehicle to be a nuisance, denied the defendant’s motion for its return and ordered it forfeited to the Wallingford police department.

The defendant’s first claim of error is that the trial court failed to make an explicit finding that the defendant knew of the illegal activities involving the use of his vehicle. He argues that such a finding is a prerequisite to a forfeiture order because the property of an innocent owner is not subject to confiscation under the statute.

The defendant misunderstands the purpose of § 54-33g. This statute provides for a civil action in rem, as opposed to a criminal proceeding, to determine whether property has been used in violation of the law and is thus subject to forfeiture. State v. One 1977 Buick Automobile, 196 Conn. 471, 485, 493 A.2d 874 (1985). The guilt or innocence of the owner is not an issue in this proceeding. Id.; State v. One 1981 BMW Automobile, 15 Conn. App. 589, 596, 546 A.2d 879 (1988).

Although the application of the statute may result in hardship in some cases; State v. One 1981 BMW Automobile, supra; “ ‘[wjhen the statute provides for such forfeiture in unequivocal language, making no exceptions in favor of the claims of innocent owners ... it must be assumed that the legislature deemed that such enactment was necessary effectively to curb violation of the law, and we cannot impute to it an intent to make the statute less drastic and effective by adopting a strained construction of the language used, and reading into it an exception which does not there appear.’ ” State v. One 1977 Buick Automobile, supra, quoting Alcorn, State’s Attorney v. Alexandrovicz, 112 Conn. 618, 623, 153 A. 786 (1931). “Any hardship suffered by an innocent owner is incidental to the state’s valid exercise of its sovereign authority to protect its citizens through means reasonably calculated to reduce the violation of the criminal laws.” Id., 486.

The defendant’s reliance on Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974), is unpersuasive. In that case, the United States Supreme Court stated in dicta that it could conceive of two possible situations in which strict application of forfeiture statutes would be inappropriate: (1) when the property subjected to forfeiture had been taken from its owner without his privity or consent; and (2) when an owner proved that he was not involved in nor aware of the wrongful activity, and that he had done all that reasonably could be expected to prevent the illegal use of his property. Id., 689.

We have not found, nor have the parties provided us with any cases in which the Supreme Court’s CaleroToledo dicta has proved controlling. Moreover, even if we were to find that dicta persuasive, the facts of the present case fail to meet either of the two situations described.

The evidence presented at the in rem hearing disclosed that the defendant’s sons made extensive use of the Blazer and had, in fact, installed a tape deck and had kept personal property in the vehicle. Although the defendant testified that his children were required to ask permission before using the vehicle, there was no indication that permission had ever been refused. Thus, the defendant cannot and did not claim that the vehicle had been taken without his consent.

Turning to the second situation mentioned in CaleroToledo, the trial court made a specific finding that the defendant failed to sustain his burden of establishing that he did all he reasonably could have done to avoid having his vehicle put to an illegal use. We are satisfied that this finding is amply supported by the record. Thus, even if we were to apply the Calero-Toledo dicta to the present case, the defendant’s knowledge of his sons’ illegal use of his vehicle is irrelevant and no explicit finding on this issue was necessary or required.

In light of our resolution of the defendant’s first claim of error, we need not address his second claim.

There is no error.

In this opinion the other judges concurred.

       This action should properly be entitled State v. One 1984 Chevrolet Blazer because this is an in rem action against the vehicle. For the sake of clarity, we refer to Gaudio as the defendant.

       “[General Statutes] Sec. 54-33g. summons to owner on seizure of property, in rem action for adjudication as nuisance, disposition of property, (a) When any property believed to be possessed, controlled, designed or intended for use or which is or has been used or which may be used as a means of committing any criminal offense has been seized as a result of a search incident to an arrest, a warrantless arrest or a search warrant, which the state claims to be a nuisance and desires to have destroyed or disposed of in accordance with the provisions of this section, the judge or court issuing the warrant or before whom the arrested person is to be arraigned shall, within ten days after such seizure, cause to be left with the owner of, and with any person claiming of record a bona fide mortgage, assignment of lease or rent, lien or security interest in, the property so seized, or at his usual place of abode, if he is known, or, if unknown, at the place where the property was seized, a summons notifying the owner and any such other person claiming such interest and all others whom it may concern to appear before such judge or court, at a place and time named in such notice, which shall be not less than six nor more than twelve days after the service thereof, then and there to show cause why such property should not be adjudged a nuisance and ordered to be destroyed or otherwise disposed of as herein provided. Such summons may be signed by a clerk of the court or his assistant and service may be made by a local or state police officer. It shall describe such property with reasonable certainty and state when and where and why the same was seized.
      “(b) If the owner of such property or any person claiming any interest in the same appears, he shall be made a party defendant in such case. Any state’s attorney or assistant state’s attorney may appear and prosecute such complaint.
      “(c) If the judge or court finds the allegations made in such complaint to be true and that the property has been possessed, controlled or designed for use, or is or has been or is intended to be used, with intent to violate or in violation of any of the criminal laws of this state, he shall render judgment that such property is a nuisance and order the same to be destroyed or disposed of to a charitable or educational institution or to a governmental agency or institution provided, if any such property is subject to a bona fide mortgage, assignment of lease or rent, lien or security interest, such property shall not be so destroyed or disposed of in violation of the rights of the holder of such interest. When any money or valuable prize has been seized upon such warrant and condemned under the provisions of this section, such money or valuable prize shall become the property of the state and when the property is money it shall be deposited in the general fund, provided any such property, which at the time of such order is subject to a bona fide mortgage, assignment of lease or rent, lien or security interest shall remain subject to such mortgage, assignment of lease or rent, lien or security interest. When any property or valuable prize has been declared a nuisance and condemned under this section, the court may also order that such property be sold by sale at public auction in which case the proceeds shall become the property of the state and shall be deposited in the general fund; provided, any person who has a bona fide mortgage, assignment of lease or rent, lien or security interest shall have the same right to the proceeds as he had in the property prior to sale. Final destruction or disposal of such property shall not be made until any criminal trial in which such property might be used as evidence has been completed.
      “(d) If the judge or court finds the allegations not to be true or that the property has not been kept with intent to violate or in violation of the criminal laws of this state or that it is the property of a person not a defendant, he shall order the property returned to the owner forthwith and the party in possession of such property pending such determination shall be responsible and personally liable for such property from the time of seizure and shall immediately comply with such order.
      “(e) Failure of the state to proceed against such property in accordance with the provisions of this section shall not prevent the use of such property as evidence in any criminal trial.”

       Our courts mentioned this dicta in State v. One 1977 Buick Automobile, 196 Conn. 471, 486, 493 A.2d 874 (1985); State v. Connelly, 194 Conn. 589, 592, 483 A.2d 1085 (1984); State v. One 1981 BMW Automobile, 15 Conn. App. 589, 597, 546 A.2d 879 (1988).

       We note that the yacht leasing company in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974), was completely unaware of the illegal activity for which its property was seized, yet the United States Supreme Court still upheld the forfeiture.


author: Norcott, J.

text:
    State of Connecticut v. Richard Lamme
    (7108)
    Dupont, C. J., Stoughton and Nokcott, Js.
    Argued May 9 —
    decision released September 5, 1989

      James J. Ruane, for the appellant (defendant).

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Susan Marks and Richard Palumbo, assistant state’s attorneys, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, after a jury trial, of one count of operation of a motor vehicle while under the influence of intoxicating liquor, in violation of General Statutes § 14-227 (a), and one count of operation of a motor vehicle while his license was under suspension, in violation of General Statutes § 14-215 (a). Prior to trial, the defendant moved to suppress evidence of all observations by the police involving the defendant’s performance of field sobriety tests. After a hearing, the trial court denied the defendant’s motion.

On appeal, the defendant claims that the trial court erred (1) in failing to suppress the evidence derived from the roadside sobriety tests, (2) in admitting the opinion testimony of certain police officers regarding the defendant’s intoxication, and (3) in instructing the jury on the principle of reasonable doubt. We find no error.

The jury could reasonably have found the following facts. In the early morning of October 23, 1987, Officer Richard Applebaum of the Trumbull police department was assigned to special duty at the Trumbull Marriott Hotel. Responding to a complaint from the hotel management concerning the defendant, Applebaum found the defendant asleep in a chair in the front lobby. Upon awakening him, Applebaum noticed a strong odor of alcohol on his breath. The defendant at first became irate, loud and boisterous, and Applebaum had to calm him by explaining that he was not arresting him but was merely asking him to leave the hotel lobby. After Applebaum offered to arrange a safe ride home for him, the defendant responded that his car was parked in a lot next to the Marriott and that he would wait in his car for a friend at the bar who would drive him home. At trial, Applebaum testified that he then observed the defendant walk, with an uncertain gait, to his automobile.

Applebaum then radioed police headquarters with a description of the defendant’s vehicle and asked that a police car be sent into the area. When he returned, the defendant’s vehicle was no longer in the parking lot. Applebaum called headquarters again to report this fact, and was informed that another Trumbull police officer had already stopped the defendant.

Thereafter, Applebaum joined Trumbull police officer Thomas Savarese at the side of the road near the entrance to the Merritt Parkway, where Savarese was completing field sobriety tests on the defendant. Savarese testified at both the hearing on the motion to suppress and at the trial that he stopped the defendant and told him that his vehicle had been stopped for failure to have headlights on. When the defendant responded to Savarese, the officer noticed a strong odor of alcohol on the defendant’s breath. Savarese further testified that, after he had administered the sobriety tests, he arrested the defendant for driving while under the influence and took him to headquarters where the defendant acted belligerently and spoke with slurred speech. Police officer Richard Bernaud testified that, during the booking procedure, the defendant was combative, his speech was slurred and he was hesitant in his movements. Bernaud also testified that he smelled the odor of alcohol on the defendant’s breath.

The defendant testified that he had consumed several drinks at the hotel bar but was not intoxicated.

I

The essence of the defendant’s first claim is that the trial court erred in determining that probable cause to arrest is not a condition precedent to the administering of a field sobriety test. The defendant argues that because the trial court found that probable cause for the defendant’s arrest did not arise until after the field sobriety tests, the court erred in admitting the observations by the police concerning those tests. The trial court rejected the defendant’s argument and held that the police had legally detained the defendant on a reasonable suspicion and that the roadside sobriety tests were a minimal intrusion on his constitutional rights. The trial court further held that the police “seized” nothing from the defendant and, accordingly, that the police testimony regarding the observations of the roadside tests was admissible.

The police may detain an individual for a brief period of time without probable cause to make an arrest, if they have a reasonable and articulable suspicion that the person is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983). The purpose of such a detention is to maintain the status quo while investigating the circumstances that give rise to the suspicion of criminal wrongdoing. See Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); State v. Carter, supra, 618. Once a lawful stop is made, a police officer’s suspicions may become further aroused and “the stop may be prolonged and the scope enlarged as required by the circumstances, provided the scope of the investigation remains within the limits created by the facts upon which the stop is predicated and the suspicion which they arouse. Terry v. Ohio, supra, 21-22, 29 . . . State v. Perez, 181 Conn. 299, 305, 435 A.2d 334 (1980).

The fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut guaranty the right to be secure against unreasonable searches and seizures. Connecticut cases have presumed that roadside sobriety tests are incident to the initial stop and that chemical blood and breath tests are incident to the arrest. See State v. Hancich, 200 Conn. 615, 618-19, 513 A.2d 638 (1986); State v. Rutledge, 17 Conn. App. 250, 252, 552 A.2d 435 (1989); State v. Smith, 16 Conn. App. 156, 158, 547 A.2d 69 (1988). The fourth and fourteenth amendments apply, however, “because stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents in order ‘ “to safeguard the privacy and security of individuals against arbitrary invasions. . . .” ’ Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 [98 S. Ct. 1816, 56 L. Ed. 2d 305] (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528 [87 S. Ct. 1727, 18 L. Ed. 2d 930] (1967). Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). The intrusion must be confined to what is “minimally necessary” under the circumstances. Terry v. Ohio, supra, 30.

In the present case, there is no question that the initial stop, made because the defendant was driving without headlights in the dark of night, was permissible. See Delaware v. Prouse, supra, 663. After making the stop near an entrance to the Merritt Parkway in Trumbull, Savarese detected a strong odor of alcohol on the defendant’s breath, and, suspicions aroused, he conducted field sobriety tests.

The state has a vital interest in keeping intoxicated drivers off the roads and highways. That interest is evinced by our legislature’s passage of General Statutes § 14-227a (a) (2), which makes it per se illegal for a person to drive “while the ratio of alcohol in the blood of [the driver] is ten-hundredths of one per cent or more of alcohol, by weight.” Balanced against that strong state interest is the intrusiveness of roadside sobriety testing, by which the police measure the physical performance of a suspected intoxicated driver before allowing that person to continue driving. The defendant relies heavily on People v. Carlson, 677 P.2d 310 (Colo. 1984), in which a Colorado court required that probable cause to arrest exist before the police administer field sobriety tests. The defendant strongly urges that we adopt the Carlson rule in Connecticut. Other jurisdictions, however, have held that the degree of intrusion by the governmental authority into a person’s affairs in administering such tests is minimal and therefore is outweighed by the strong governmental interest. See State v. Superior Court, 718 P.2d 171 (Ariz. 1986); State v. Golden, 171 Ga. App. 27, 318 S.E.2d 693 (1984) . We agree with the latter holdings. To hold otherwise and to accept the defendant’s position that we require the police to have the equivalent of probable cause to arrest before giving the field sobriety tests would seriously impair the state’s efforts to meet the enormous danger posed by the presence of intoxicated drivers on the highways. In rejecting the Carlson standard, we find the holding of State v. Superior Court, supra, to be the most compelling and persuasive. In that case, the Arizona Supreme Court held that “roadside sobriety tests that do not involve long delay or unreasonable intrusion, although searches under the fourth amendment, may be justified by an officer’s reasonable suspicion (based on specific, articulable facts) that the driver is intoxicated.” Against this standard, we conclude that the trial court correctly admitted evidence regarding the roadside sobriety tests.

The defendant also argues that article first, § 9, of the Connecticut constitution bars the admission of roadside sobriety tests. This section of our constitution provides that “[n]o person shall be arrested, detained or punished except in cases clearly warranted by law.” The gravamen of the defendant’s claim is that sobriety tests cannot be conducted when the detention is not “clearly warranted” and that the meaning of “clearly warranted” is the equivalent of probable cause. We find the defendant’s claim to be without merit.

Although we note that our Supreme Court has held that the provision of article first, § 7, of the Connecticut constitution provides more substantive protection to citizens than does the fourth amendment to the federal constitution in the determination of probable cause; State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985) ; the defendant’s reliance on that case is inapposite. Nowhere in that decision did the Supreme Court suggest that the Terry stop situation warranted the higher standard of probable cause. We have not found, nor has the defendant presented any support for his claim that “[t]he state constitution mandates a standard of probable cause for even the detention of an individual which exceeds that of the Federal Constitution.”

As we have previously noted, our Connecticut case law presumes that roadside sobriety testing is incident to the initial stop, based on the officer’s reasonable suspicion, rather than on the subsequent arrest. Nothing cited by the defendant has persuaded us to conclude the contrary. Thus, the question is whether the administration of a field sobriety test to a suspect on the basis of a reasonable, articulable suspicion in the absence of probable cause is “clearly warranted” within the meaning of the Connecticut constitution. On the basis of our reasoning with respect to the first claim of error, we answer that question in the affirmative. The trial court did not err in denying the defendant’s motion to suppress.

II

The defendant next contends that the trial court erred in admitting certain police opinion testimony regarding the defendant’s intoxication. The facts relevant to this claim are as follows: At trial, Applebaum testified that, from his observations of the defendant at the hotel, he believed that the defendant “was impaired at the very least and should not be allowed to operate [a vehicle].” Savarese later testified that he had observed the defendant driving his automobile without the headlights on and had pulled him over to the side of the road. Savarese testified that he had to bang on the defendant’s car window for about “twenty seconds” before the defendant rolled the window down, at which point the officer noticed a strong odor of alcohol. Believing he was confronting a possibly intoxicated driver, Savarese administered field sobriety tests to the defendant. Savarese also testified that, on the basis of his observations and the roadside sobriety tests, he believed that the defendant “was intoxicated and that he was unfit to drive a car safely.” The defendant now claims that the trial court erred in admitting the opinion testimony of Applebaum and Savarese because it concerned their opinions on the ultimate issue to be decided by the jury.

In addressing this claim of error, we first note that the trial court ruled that all the opinions before it were lay opinions on the issue of intoxication. The court’s ruling was that “under the law in the State of Connecticut, any person, even a lay person, may describe an individual that he has observed and state whether or not he believes that such individual was under the influence of alcohol.”

Accordingly, the trial court admitted the testimony of both Applebaum and Savarese as “lay opinion” on the issue of intoxication. The defendant claims that the trial court mistakenly characterized the opinion testimony before it and, the mischaracterization notwithstanding, erroneously allowed opinion evidence on an ultimate issue of fact.

We agree with the defendant, in part, in that the trial court improperly characterized Savarese’s opinion as that of a lay person. At trial, the state framed its offer of Savarese’s opinion as that of an expert, but the trial court rejected that offer. Prior to asking Savarese for his opinion on the defendant’s state of intoxication and ability to drive, the assistant state’s attorney had established Savarese’s particular training and experience in detecting intoxicated drivers as a patrol division officer.

“Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). Savarese’s training included “D.W.I.” training, which included, as he testified, “how to identify possible drunk drivers, [and] how to perform certain tests to determine if the subject [who] was pulled over for drunk driving [is] actually drunk.” It is clear from the record that his opinion, which included his interpretations of the results of the roadside sobriety tests, was based on this training. As such, his opinion qualified as that of an expert and should have been accorded that status. The defendant, however, contends that an expert witness is precluded from giving an opinion as to the ultimate issue of fact.

“An expert witness is not ordinarily permitted to express an opinion on an ultimate issue of fact which is to be decided by the trier of fact. State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988); Kowalewski v. Mutual Loan Co., 159 Conn. 76, 80, 266 A.2d 379 (1970). ‘ “Experts can sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.” ’ State v. Vilalastra, supra, quoting C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 7.17.3, p. 186.” State v. Mendez, 15 Conn. App. 531, 535, 545 A.2d 587, cert. denied, 209 Conn. 810, 548 A.2d 441 (1988). Savarese’s testimony, which included a description and interpretation of and conclusions regarding the roadside sobriety tests, was necessary for the jury intelligently to make a finding as to whether the defendant violated General Statutes § 14-227a (a) by “[operating] a motor vehicle while under the influence of intoxicating liquor or any drug or both.” The opinion portion of Savarese’s testimony differed from any other opinion testimony regarding the sobriety of an individual because it was based in great part on knowledge and skill beyond the ken of the average juror. We conclude that Savarese’s testimony fit the test for admission of expert testimony on the ultimate issue as set out in Vilalastra, and was therefore admissible.

The trial court’s admission of Savarese’s opinion testimony was correct, but the grounds for its admission were erroneous. “This court is not required to reverse a ruling of the trial court which reached a correct result, albeit for a wrong reason. Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).” Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274, 513 A.2d 1211 (1986).

With respect to the testimony of Applebaum, we find that the trial court did not err in admitting this evidence. The relevant part of Applebaum’s testimony regarding the defendant’s state of intoxication is as follows:

Mr. Palumbo: “When you observed him walking out, could you describe for us please how he walked?
“A. He walked rapidly but he was unsure of his gait.
“Q. Do you base your opinion as to how he was walking — your opinion is based upon your training and experiences as a police officer?
“A. That’s correct.
“Q. And, prior experience with arresting people for operating under the influence?
“A. Yes. That’s correct.
“Q. Okay. Again, based upon your experience, did you formulate an opinion as to whether he was fit to drive?
“A. Yes, I did.
“Q. What was that opinion?
“[Defense counsel:] Objection as to that opinion. That calls for an opinion on the ultimate issue.
* * *
“Q. Did you formulate an opinion, officer, as to his fitness to operate an automobile?
“A. Yes. It was my opinion he was impaired at the very least and should not be allowed to operate.”

Unlike Savarese’s testimony, Applebaum’s opinion was not based on any expertise or specialized skill. Any person who had observed the defendant in the Marriott hotel lobby would have been able to formulate an opinion as to the defendant’s sobriety or fitness to operate an automobile. Accordingly, the trial court was correct to characterize Applebaum’s conclusion as a lay opinion that could be measured and weighed against any other evidence that might suggest, for example, the defendant’s sobriety. The defendant argues, however, that the trial court erred in allowing lay opinion on the ultimate issue of operating under the influence of intoxicating liquor.

Applebaum’s opinion was based on events that occurred prior to the defendant’s ever entering his automobile. This opinion concerned the defendant’s condition in the hotel lobby, a condition from which Applebaum concluded that the defendant was unfit to drive. This opinion, however, did not go to the ultimate issue of fact that was to be decided by the trier of fact, namely, whether, as prohibited by General Statutes § 14-227a, the defendant was operating a motor vehicle while under the influence of intoxicating liquor. Applebaum’s testimony was decidedly distinguishable from that of Savarese, who not only observed the defendant operate the vehicle suspiciously, but also concluded from the application of his expert training that the defendant, in fact, operated that vehicle while intoxicated. Applebaum’s answers to the questions put to him did not require him to apply a legal principle or standard to certain facts or to state a legal conclusion therefrom with respect to the crime charged. See State v. Jones, 124 Conn. 664, 668, 2 A.2d 374 (1938).

“ ‘The general rule is that witnesses must state facts and not their individual opinions, but there are exceptions to this rule as well established as the rule itself.’ Sydleman v. Beckwith, 43 Conn. 9, 11 [1875].” Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971); see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.15. “Because ‘[t]he condition of intoxication and its common accompaniments are a matter of general knowledge’; State v. Jones, [supra], 667; Way v. Pavent, 179 Conn. 377, 380, 426 A.2d 780 (1979); State v. Katz, 122 Conn. 439, 442, 189 A. 606 (1937); Thomas v. Rose, 10 Conn. App. 71, 74, 521 A.2d 597 (1987); our Supreme Court has held that laymen may testify as to their opinion of whether a person is intoxicated. State v. Jones, supra; see also J. Wigmore, Evidence (Chadbourn Rev. 1986) § 1974; C. Tait & J. LaPlante, [supra] § 7.15 (c).” State v. McKenna, 11 Conn. App. 122, 136-37 n.9, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987). We conclude that the trial court did not err in allowing Applebaum to testify, as a lay person, as to his opinion of the sobriety of the defendant, a subject that was clearly relevant to the trial.

Ill

The defendant’s final claim is that the trial court erred in instructing the jury that a reasonable doubt is “a real or honest doubt [for which] a valid reason can be given” and one which “in serious affairs which concern you in your everyday life you would pay attention to and consider.” The defendant claims that these definitions unconstitutionally lowered the state’s burden of proof and thus constitute reversible error.

In a criminal case, the trial court must instruct the jury on the constitutional requirement that the state prove the defendant’s guilt beyond a reasonable doubt. State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983). “ ‘[Cjourts . . . [should] not use language in instructions which can be understood as diluting or in any way impairing the constitutional requirement of proof beyond a reasonable doubt.’ United States v. Pine, 609 F.2d 106, 108 (3d Cir. 1979).” State v. Smith, 183 Conn. 17, 28, 438 A.2d 1165 (1981). It is well established that the test to be applied on appellate review to a claim of instructional error is whether the charge as a whole presented the case to the jury so that no injustice has been done. State v. Lytell, 206 Conn. 657, 664, 539 A.2d 133 (1988); State v. Moss, 189 Conn. 364, 370, 456 A.2d 274 (1983); State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

After instructing the jury on the presumption of innocence and stating that the state bore the burden of proving each and every element of the crime charged, the trial court gave a detailed charge regarding reasonable doubt.

After reading and considering the charge as a whole, we conclude that it is not reasonably possible that the jurors were misled as to the burden that the state had to sustain. On appeal, we will not subject the language of the court’s charge to critical dissection or examine it in artificial isolation. See State v. DelVecchio, supra, 421. Reviewing the instruction in its entirety, we find that the trial court fairly apprised the jury of the reasonable doubt standard so that no injustice was done.

There is no error.

In this opinion the other judges concurred.

       Although the police attempted to administer an intoximeter test, they failed to follow the proper procedures, resulting in the exclusion of the test results from the trial.

       At trial, the state premised the admissibility of the sobriety test results on (1) probable cause, (2) the consent of the defendant, and (3) the contention that the test results were “nontestimonial evidence.” The trial court did not address the grounds of consent or “nontestimonial evidence” and the state has not pursued the ground of “consent” on this appeal. Accordingly, we will consider the state’s claim with respect to consent abandoned.

       Although the defendant challenges the admission of the roadside sobriety tests under article first, § 7, of the state constitution, he advances no argument for the separate treatment of the issue on appeal. We therefore consider only the federal and state constitutional claims actually briefed by him. See State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988); State v. Hall, 17 Conn. App. 502, 505 n.1, 554 A.2d 746, cert. granted, 211 Conn. 807, 559 A.2d 1141 (1989).

       During this part of the trial the following questions were put to Savarese by the assistant state’s attorney:
      “Q. Based upon your training and experience, did you form an opinion as to Mr. Lamme’s ability to safely operate an automobile?
      “Q. Did you form an opinion based on your training and experience as to whether Mr. Lamme was under the influence of intoxicating liquor?
      * ** *
      “Q. Based upon your training and experience and your observations, officer, and the tests which were performed upon Mr. Lamme, did you come to a conclusion as to whether or not you believed Mr. Lamme was under the influence of intoxicating liquor?”

       The defendant also suggests that expert opinion on the ultimate issue to be decided by the jury is inadmissible under General Statutes § 54-86. This claim was not raised at trial and, therefore, we will not review it. Practice Book § 4185.

       The trial court’s instructions regarding reasonable doubt were as follows: “A reasonable doubt, therefore, is a doubt for which a valid reason can be given. It is a doubt which is something more than a guess or a surmise. It is not a conjecture, nor is it a fanciful or capricious doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising a doubt, nor is it a doubt suggested by the ingenuity of counsel or of a juror which is not warranted by the evidence or lack of evidence in the case.
      “In other words, a reasonable doubt is a real or honest doubt. It is a doubt which has its foundation in the evidence or the lack of evidence produced in the courtroom. It is such a doubt as in the serious affairs which concern you in your everyday life you would pay attention to and consider.
      “Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except that which tends to support and is consistent with the defendant’s guilt and is inconsistent with any other rational conclusion. However, absolute certainty in the affairs of life is almost unattainable and for that reason absolute certainty on the part of the jury before it returns a verdict of guilty is not required.
      “What the law does require is that after reviewing all of the evidence which includes the exhibits, if there is something in the evidence or lack of evidence which leaves in the minds of the jurors as reasonable persons, a reasonable doubt as to the defendant’s guilt as to any particular charge, then the defendant must be given the benefit of that doubt ....
      “It necessarily follows that if the facts point equally in two separate directions, one way towards innocence and the other way towards guilt, then it must be given that direction which is towards innocence because to satisfy the burden of proving guilt beyond a reasonable doubt, it is incumbent upon the State to negate every supposition which is reasonable or probable.
      “If therefore you can, with reason, reconcile all the facts proved with any reasonable theory consistent with the defendant’s innocence, then you cannot find him guilty.”


author: Borden, J.

text:
    State of Connecticut v. Anthony Hawkins
    (7207)
    Borden, Daly and Norcott, Js.
    Argued June 15 —
    decision released September 5, 1989

      Christopher M. Cosgrove, assistant public defender, for the appellant (defendant).

      Jacqueline J. Footman, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree, in violation of General Statutes § 53a-55 (a) (l). The defendant claims that the trial court erred (1) in charging the jury that under General Statutes § 53a-19 (c) (l) the provocation does not need to be intentional, and (2) in charging the jury that § 53a-19 (c) (1) applied to this case, where the alleged provocation was committed through an assault on a third party. We find error.

The jury could reasonably have found the following facts. On September 28,1987, the defendant’s younger brother, Andre Portis, was involved in a verbal altercation with a group of six teenagers. In this group was Kenneth Mapp, the victim’s younger brother. At some point during the exchange, Portis produced a small handgun, pointed it at Mapp, and fired the weapon. Mapp was not struck by the shot. At that point, the parties dispersed. Portis returned to his house, while Mapp and two of his friends ran a few blocks away and obtained a sawed-off shotgun. Mapp loaded the gun and proceeded back toward the Portis house with his friends. En route, they were joined by the victim, Delbert Mapp. The group then proceeded to the front of the Portis house. At this time, Portis and the defendant were on or near their first floor porch.

The Mapp contingent called out for a one-to-one fight between Portis and Kenneth Mapp. The defendant also supported a one-to-one fight between Kenneth Mapp and Portis. After noticing that Delbert Mapp was holding the sawed-off shotgun, the defendant produced a small handgun, which he held while advocating a fair fight.

A fistfight between Portis and Kenneth Mapp then ensued. Jonathan Jones, a member of the Mapp contingent, testified that, just before the fight started, he had taken the sawed-off shotgun away from the scene. As the fight progressed and it became apparent that Portis was losing, the defendant struck Kenneth Mapp on the back of the neck with the butt of the handgun. Thereupon, Delbert Mapp rushed at the defendant. The defendant turned toward Delbert Mapp and fired two shots, one of them striking him in the chest and killing him. The defendant testified that he had heard someone in the crowd call out “shoot him” and that he looked up to see the victim rushing at him. He testified that he did not notice whether the victim was armed but stated that the victim was carrying the shotgun the last time he had looked at him. The defendant further testified that he was trying to “stop” the victim, not kill him.

The defendant was arrested and charged with the crime of murder, in violation of General Statutes § 53a-54a. Before the case was submitted to the jury, the defendant submitted to the trial court a written request that it charge, inter alia, on the lesser included offense of manslaughter in the first degree under General Statutes § 53a-55 (a) (1), and on the elements of self-defense as provided by General Statutes § 53a-19. The defendant’s request to charge included most of § 53a-19, including all of subsection (c), which provides in pertinent part: “Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person . . . .” See footnote 2, supra.

On appeal, the defendant’s assignments of error do not involve the trial court’s initial instructions to the jury, but involve the court’s response to the jury’s subsequent requests for clarification on the elements of self-defense. During its deliberations, the jury submitted five requests for further clarification of the trial court’s instructions, three of which were directed toward the elements of self-defense. The final request was as follows:

“One of the jurors thinks that Anthony’s act of hitting Kenneth on the back of the neck was not intentional provocation to get Del to rush so Anthony could shoot him — therefore his claim of self defense is legitimate. Other jurors feel that provocation does not have to be an intentional act done to get Del to ‘rush.’ They feel any ‘provocation’ is grounds to dismiss the defense of self defense. Please clarify.” (Emphasis in original.)

In response, the trial court had the jury listen to the audio tape of its original self-defense instructions, and then read the pertinent subsection of § 53a-19 (a) (1) verbatim. The trial court told the jury:

“You will note that in that quotation it starts out with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person. The word intentional is not in the statute before the word provoke. He provokes the use of physical force against such other person. So that should answer your question, ladies and gentlemen. That’s the way the statute is worded.
“I’ll read it again. [The court read the statute to the jury.] . . . The word intentional is — intent is only in the beginning, with intent to cause physical injury. There is not intent provided in the statute under— before the word provokes. He provokes the use of physical force. That should answer your question, I hope.”

The defendant took exception to that instruction on two grounds. First, the defendant claimed that, contrary to the court’s instructions, the phrase “with intent to cause physical injury or death to another person” did modify the word “provokes.” Second, the defendant claimed that subsection (c) applied to only two party situations, and did not contemplate a situation where the act of pro vocation, was directed toward a third party.

A trial court’s charge to the jury must be “correct in the law, adapted to the issues and sufficient to guide the jury.” State v. Shaw, 185 Conn. 372, 383, 441 A.2d 561 (1981), quoting State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). Whenever a claim of self-defense is raised, the defendant has a constitutional right to properjury instructions on the elements of self-defense. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). Our standard of review of a claim regarding improper instructions on the law of self-defense is “whether it is reasonably possible that the jury were misled.” Id.; State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984). We conclude that under the trial court’s instructions it is reasonably possible that the jury was misled.

We note initially that both of the defendant’s claims of error regarding the trial court’s instructions involve the statute’s utilization of the word “provokes.” Both of the defendant’s claims, therefore, are to a large extent dependent upon each other. Thus, our determination as to one issue necessarily controls our resolution of the other.

The defendant’s first claim is that the trial court erred in charging the jury that under § 53a-19 (c) (1) the provocation need not be intentional. The defendant argues that the phrase “with intent to cause physical injury or death to another person” modifies the words “he provokes the use of physical force by such other person.” We agree with the defendant.

“To provoke is to excite, to stimulate, to arouse.” State v. Warner, 34 Conn. 276, 279 (1867). While it appears that “provokes” is imbued with its own aspect of intent, § 53a-19 (c) (1) by its very words adds another measure of intent. General Statutes § 53a-5 provides that when a term such as “with intent” is used in a statute, “it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.” Thus, the phrase “with intent to cause physical injury or death to another person” must be presumed to apply to the word “provokes,” since no intent to limit such an application appears. Properly read, the phrase “with intent to cause physical injury or death to another person” describes the mental state that the provoker must have.

We note also that our Supreme Court’s language in State v. Corchado, supra, strongly buttresses our determination that under § 53a-19 (c) (1) the defendant must do more than just provoke the use of physical force. The court stated: “[General Statutes § 53a-19 (c) (1)] provides that ‘ [notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor . . . .’ (Emphasis added.) General Statutes § 53a-19 (c). [A] defendant, therefore, cannot avail himself of the justification provisions of subsection (a) where, under (c), he is proven to have acted with the requisite intent to provoke under (c)(1) or he is proven to be the initial aggressor under (c) (2). Whether [a] defendant did, in fact, act with such intent and whether he was the initial aggressor are critical circumstances in the jury’s evaluation of his claim of self-defense.” (Emphasis added.) State v. Corchado, supra, 664.

The Corchado court’s emphasis on the words “with intent” and “provokes” evinces a linkage between the words. The court’s recurrent subsequent use of the words “requisite intent” and “such intent” further cements this linkage. We hold, therefore, that the provocation element of subsection (c) (1) carries with it the requirement that the actor act with the specific intent to elicit the use of physical force by another person in order to cause physical injury or death to that person by, for example, retaliating with force against that person. It is not enough, then, merely that the defendant by his conduct elicited the use of physical force by Delbert Mapp; he must have embarked upon his conduct with the specific intent to provoke Delbert Mapp into using physical force, intending to cause Delbert Mapp physical injury or death. Therefore, the trial court erred in instructing the jury that “provoking the use of physical force” was all that the statute required.

This discussion also relates directly to the defendant’s second claim of error, namely, that the trial court erred by applying § 53a-19 (c) (1) to the facts of this case because the act that provokes the use of force by the victim must be directed to the same person whom the actor intends to harm or kill. We disagree with the defendant’s argument that § 53a-19 (c) (1) applies only to a two party situation, but we agree with the defendant that the court erred by applying § 53a-19 (c) (1) to the facts of this case.

Section 53a-19 (c) (1) is not confined by its terms to a two party situation. Thus, for example, § 53a-19 (c) (1) would apply, where the actor, intending to harm the victim by retaliation, intentionally provoked the victim, by attacking the victim’s loved one, into using physical force against the actor. In that three party situation, § 53a-19 (c) (1) would apply because the actor, “with intent to cause physical injury or death to another person,” namely, the victim, “provoke[d] the use of physical force by such other person,” namely, the victim, by means of attacking the victim’s loved one. Thus, it is true that under § 53a-19 (c) (1), both the object of the defendant’s intent to cause physical injury or death and the person provoked by the defendant’s conduct into using physical force against the defendant must be the same person. It is not true, however, that the defendant’s provocative conduct be directed only against the victim; that conduct may also be directed against a third party, as long as the defendant acts toward that third party with the intent to provoke the victim into using physical force against the defendant.

This leads us to conclude that the court erred in applying § 53a-19 (c) (1) to the facts of this case. Under our view of § 53a-19 (c) (1), it would apply to this case only if the jury could reasonably conclude from the evidence that the defendant, when he struck Kenneth Mapp, did so with the specific intent to elicit the use of force by Delbert Mapp in order to cause physical harm or death to Delbert Mapp. There was no evidence to support such an inference. Issues that are not supported by the evidence should not be submitted to the jury. State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 (1975). Because this error involved the specific question that the jury considered to be crucial, there can be no doubt that this instructional error was harmful.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) (1) provides: “A person is guilty of manslaughter in the first degree when: (1) with intent to cause serious physical injury to another person, he causes the death of such person or a third person.”

       General Statutes § 53a-19 provides: “use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), aperson is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace ofScer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       General Statutes § 53a-54a provides: “murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it-is a capital felony.”

       In his brief, the defendant states that these instructions were “thorough.”

       General Statutes § 53a-5 provides: “criminal liability; mental state required. When the commission of an offense defined in this title, or some element of an offense, requires a particular mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms ‘intentionally,’ ‘knowingly,’ ‘recklessly’ or ‘criminal negligence,’ or by use of terms, such as ‘with intent to defraud’ and ‘knowing it to be false,’ describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.”

       We disagree with the state’s argument that this claim is unreviewable because the defendant induced the claimed error. While it is true that the defendant included the text of General Statutes § 53a-19 (c) (1) in his written request to charge, we do not believe it induced the trial court to commit error. The request to charge did not address the application of § 53a-19 (c) (1), but concentrated on the other elements of self-defense. We note also that in taking his exception to the trial court’s instructions concerning this subsection, counsel for the defendant stated “[a]nd I think clearly there’s no way that the jury can find that Anthony Hawkins intended to provoke Delbert Mapp by hitting Delbert Mapp’s brother. So I think this is not particularly pertinent in here.”