source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    David Cummings v. Twin Manufacturing, Inc., et al.
    (10625)
    Dupont, C. J., Norcott and Heiman, Js.

      Argued June 10
    decision released September 22, 1992

      William C. Brown, for the appellants-appellees (defendants).

      Dean B. Kilbourne, for the appellee-appellant (plaintiff).
   Norcott, J.

The defendants appeal and the plaintiff cross appeals from the decision of the compensation review division of the workers’ compensation commission dismissing their appeals concerning the commissioner’s finding and award.

The defendants appeal from the review division’s affirmance of the commissioner’s decision to order out of state medical treatment for the plaintiff without first conducting a hearing. The plaintiff’s objections concern the finding that he attained maximum medical improvement in 1986, but became totally disabled again in November, 1989. We affirm the review division’s dismissal of the plaintiff’s appeal, and reverse its decision dismissing the defendants’ appeal.

The record discloses that during the course of his employment with the defendant Twin Manufacturing, Inc., the plaintiff suffered a traumatic brain injury in 1984 and was paid 156 weeks of permanent partial disability benefits between November, 1986, to November, 1989. In his finding and award of May 14, 1990, the commissioner found that the plaintiff had reached maximum medical improvement on October 30, 1986, but became totally disabled again on November 6, 1989. The commissioner ordered the defendants to provide the plaintiff with up to one year of in-patient hospitalization or treatment at a facility in Connecticut that treats traumatic brain injuries.

In May, 1990, the plaintiff filed a petition for review and reasons for appeal, contesting the finding that he had reached maximum medical improvement on October 30, 1986. In July, 1990, he moved to correct the commissioner’s finding, seeking permission to be treated outside Connecticut. Attached to his motion was a letter addressed to the commissioner from the Connecticut Traumatic Brain Injury Association, which indicated that appropriate facilities necessary to treat the plaintiff do not exist in Connecticut. The letter also contained a list of facilities that provide such treatment. The defendants objected to the plaintiff’s motion, and in October, 1990, the commissioner granted the motion without a hearing. The defendants then filed a petition for review, a request to submit additional evidence and reasons for appeal.

In November, 1990, the state’s Second Injury and Compensation Assurance Fund sent a memorandum to the commissioner, requesting that he add an addendum to his finding, stating that he authorized treatment “at a facility approved and recommended by the Second Injury Fund.” The commissioner granted this request conditioned on its approval by the plaintiff and his counsel. The defendants again filed a petition for review, a request to submit additional evidence and reasons for appeal. On August 29, 1991, the compensation review division dismissed both the plaintiff’s and the defendants’ appeals. In its memorandum of decision, the review division determined that no further hearing was required on the plaintiff’s request for out of state treatment because a full hearing had been conducted before the commissioner issued his May 14,1990 finding and award. The review division also determined that the commissioner’s ruling was proper because General Statutes § 31-294 permits him to order such changes. This appeal followed.

The defendants claim the commissioner improvidently granted the plaintiff’s motion to correct for several reasons. They contend that (1) the plaintiff lost his right to receive benefits, pursuant to General Statutes § 31-305, when he did not attend independent medical evaluations, (2) the proposed treatment was to occur in a nonmedical facility in violation of General Statutes § 31-294, (3) the commissioner lacks authority to order medical treatment out of state, (4) there was no evidence that the treatment to be rendered was for any compensable injury, and (5) no evidentiary hearing was conducted at which the defendants could challenge the report of the brain injury association. We agree with the defendants’ fifth reason.

I

At the outset, we note that, although General Statutes § 31-294 permits a compensation commissioner to order a change in medical providers, it is silent as to whether this encompasses care outside Connecticut. Although our appellate courts have yet to construe this portion of the statute, we conclude that a compensation commissioner is not prohibited from ordering out of state care when equally beneficial treatment is unavailable in Connecticut.

We commence our analysis with settled principles of statutory construction designed to ascertain and give effect to the apparent intent of the legislature. Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992). When a statute’s words are plain and unambiguous, we look no further for interpretive guidance because we assume the words themselves express the legislature’s intent. Norwich v. Housing Authority, 216 Conn. 112, 117-18, 579 A.2d 50 (1990). “That axiom only applies in full force, however, ‘[wjhere . . . the language of a statute is . . . absolutely clear’ on its face and where no ambiguity is raised in applying the statute in a particular case.” (Emphasis in original.) Rose v. Freedom of Information Commission, supra, quoting Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 692, 595 A.2d 313 (1991).

By contrast, when we are confronted with ambiguity in a statute, “ ‘we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.’ ” United Illuminating Co. v. Groppo, 220 Conn. 749, 756, 601 A.2d 1005 (1992), quoting Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987). In any event, “we do not interpret some clauses in a manner that nullifies others, but rather read the statute as a whole and so as to reconcile all parts as far as possible. . . . [Cjommon sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Citations omitted; internal quotation marks omitted.) West Haven v. Hartford Ins. Co., 221 Conn. 149, 157-58, 601 A.2d 1005 (1992).

In this case, the statute is not absolutely clear about whether a compensation commissioner can order treatment outside Connecticut. Rather, General Statutes § 31-294 provides, inter alia, that the employer “shall provide a competent physician or surgeon,” and “shall furnish such medical and surgical aid or hospital or nursing service, including medical rehabilitation services, as such physician or surgeon deems reasonable or necessary.” The statute also provides that such physician or surgeon is to be selected from an approved list of such health care providers. See also General Statutes § 31-279. Further, the physician chosen must be licensed to practice in Connecticut. See General Statutes § 31-275 (9).

Because our review of the legislative history fails to yield insight into the legislature’s intent regarding whether treatment outside Connecticut may be ordered, we look to the policy the statute was designed to implement, and to its relationship to existing legislation and common law principles applicable to the law of workers’ compensation. See United Illuminating Co. v. Groppo, supra. It is well settled that the legislature’s longstanding policy has been that our Workers’ Compensation Act, General Statutes § 31-275 et seq., is remedial in nature and “should be broadly construed to accomplish its humanitarian purpose.” (Internal quotation marks omitted.) Hansen v. Gordon, 221 Conn. 29, 32, 602 A.2d 560 (1992). At least since 1932, the compensation review division has construed General Statutes § 31-294 and its predecessors to permit out of state treatment when “there is good reason, such as the need for a specialized type of treatment”; J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985), p. 183 n.329, citing Dufresne v. Sears, Roebuck & Co., 9 Conn. Comp. Dec. 450 (1932); or under other “proper circumstances, as when a claimant in ‘a sparsely populated Connecticut area seeks medical attention in a nearby metropolitan community across the border . . J. Asselin, Connecticut Workers’ Compensation Practice Manual (1988 Sup.), p. 179 n.320, quoting Veillette v. State, 3 Conn. Workers’ Comp. Rev. Op. 135 (1987); see also Caldwell v. United States Aluminum Co., 131 Conn. 96, 38 A.2d 6 (1944) (upholding commissioner’s award of costs for medical care when employer failed to respond to nonresident claimant’s request for authorization of out of state treatment).

Although the legislature recently amended the Workers’ Compensation Act; Public Acts 1991, Nos. 91-32 and 91-339; it did not disturb the review division’s construction of General Statutes § 31-294 permitting medical care out of state. “[T]he inference of legislative concurrence with the [review division’s] interpretation [is] to be drawn from legislative silence concerning that interpretation, especially where the legislature makes unrelated amendments in the same statute.” (Internal quotation marks omitted.) Hansen v. Gordon, supra, 36. We conclude that under the circumstances of this case, the review division correctly determined that a compensation commissioner may order treatment outside Connecticut. This comports with the remedial nature of our workers’ compensation statutes; id., 32; and constitutes a reasonable and rational result, in accordance with the well established principle that statutes are to be construed with common sense and read as a whole so as to reconcile all their parts as far as possible. See West Haven v. Hartford Ins. Co., supra.

Courts in numerous other jurisdictions have reached this same conclusion. See, e.g., Alcan Electrical & Engineering Co. v. Bringmann, 829 P.2d 1187, 1189 (Alaska 1992); Braewood Convalescent Hospital v. W.C.A.B., 34 Cal. 3d 159, 168, 666 P.2d 14, 193 Cal. Rptr. 157 (1983); Lindsey v. J.R. & R. Enterprises, 575 So. 2d 1296, 1298 (Fla. App. 1990); Chaples v. Gilco, Inc., 280 A.2d 546, 548 (Me. 1971); R.C. Petroleum, Inc. v. Hernandez, 555 So. 2d 1017, 1022-23 (Miss. 1990); Reynaga v. Northwest Farm Bureau, 300 Or. 255, 262, 709 P.2d 1071 (1985); Roadway Express, Inc. v. W.C.A.B. (OSTIR), 520 A.2d 1261, 1263 (Pa. Comm. 1987); Ward v. Dixie Shirt Co., 223 S.C. 448, 459, 76 S.E.2d 605 (1953); see also McAree v. Gerber Products Co., 342 A.2d 608, 612 (R.I. 1975) (out of state treatment not prohibited by Rhode Island law).

In discussing why treatment out of state is not prohibited by statutory law, the Supreme Court of Rhode Island stated that its compensation statutes are designed to help “those who are ‘casualties of the modern industrial world’ . . . [which] is characterized by increased mobility and the destruction of artificial boundaries between countries as well as states. While the state is still recognized as a sovereign entity, capable of regulating within its borders, we must not ignore that the modern technological world, in particular the medical world, recognizes no such boundaries. Certain areas, such as Boston and New York, have become centers for medical research and advanced treatment techniques. Some hospitals or clinics have developed expertise in specific fields of research unmatched by any other in the country. This is not to disparage the quality of medical care available within the boundaries of our state, but merely to recognize that the increasingly specialized and technologically complex practice of medicine requires extensive capital investment and specially trained staffs which it would be economically unfeasible and wasteful to duplicate within any one geographical area.” McAree v. Gerber Products Co., supra, 613.

We agree with the Rhode Island court’s reasoning in McAree. In an age of medical specialization in which technology is advancing at a pace almost beyond our ability to comprehend, any blanket prohibition against treatment out of state for Connecticut compensation claimants would constitute an unwise “parochial view that adequate treatment is always available in this state.” Alcan Electrical & Engineering Co. v. Bringmann, supra.

II

Next, we must determine if an evidentiary hearing is required before a compensation commissioner can order medical care out of state. We conclude that such a hearing is required.

General Statutes § 31-294 provides in pertinent part that “[t]he commissioner may, without hearing, at the request of the employer or the injured employee, when good reason exists, or on his own motion, authorize or direct a change” in medical providers. Although our appellate courts have yet to construe this portion of the statute, judicial construction of other portions of the statute has repeatedly found that what is required or permitted must be reasonable. See, e.g., Collins v. West Haven, 210 Conn. 423, 429, 555 A.2d 981 (1989) (notice of claim to apprise city of request for heart and hypertension benefits); Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154, 158, 565 A.2d 8 (1989) (medical care); see also Pokorny v. Getta’s Garage, 219 Conn. 439, 455-57, 594 A.2d 446 (1991) (double recovery of medical costs not permitted).

Under the circumstances of this case, we believe that the same reasonableness requirement applies when a compensation commissioner orders out of state treatment. See J. Asselin, Connecticut Workers’ Compensation Practice Manual, supra, pp. 182-83 (“medical treatment furnished by the employer must be reasonably accessible to the employee”). In this context, th^ reasonableness and necessity of such care hinges on whether equally beneficial treatment is available in Connecticut. See 2 A. Larson, Workmen’s Compensation Law (1989) § 61.13 (b) (2), pp. 937-41. In order to resolve this question of fact, we believe it is proper for the commissioner first to conduct an evidentiary hearing. See J. Asselin, Connecticut Workers’ Compensation Manual, supra, p. 180.

Although our independent research fails to disclose other cases with precisely the facts we confront today, courts in other jurisdictions rely on the trier of fact to determine, after an evidentiary hearing, the reasonableness and necessity of treatment out of state for compensation claimants. See, e.g., Alcan Electrical & Engineering Co. v. Bringmann, supra; Braewood Convalescent Hospital v. W.C.A.B., supra, 166-67; Lindsey v. J.R. & R. Enterprises, supra; Menard v. Royal Ins. Co., 498 So. 2d 1164, 1165-66 (La. App. 1986); R.C. Petroleum, Inc. v. Hernandez, supra, 1019; Spann v. General Motors Corporation, 813 P.2d 541, 544 (Okla. App. 1991 ); McAree v. Gerber Products Co., supra, 612. We are persuaded that this is the proper approach and therefore conclude that on remand, the commissioner should conduct an evidentiary hearing as to whether treatment out of state is reasonable and necessary in light of whether equally beneficial treatment is unavailable in Connecticut.

Although a commissioner may order out of state treatment in appropriate circumstances, our holding is not to be interpreted as meaning that such treatment must be ordered in all circumstances. We reiterate that such treatment should be reasonable and necessary, and permitted only when equally beneficial treatment is unavailable in Connecticut. Thus, it follows that the commissioner need not always find that the proposed treatment is reasonable. See Pagliarulo v. Bridgeport Machines, Inc., supra, 159. In some circumstances, what constitutes reasonableness may require expert testimony to ascertain. Whether to accept or reject such testimony is a matter for the commissioner to determine, which will be afforded great deference by reviewing courts. Id.

Finally, we are mindful of the various concerns related to health care provided outside Connecticut. Although a compensation commissioner would be unable to subpoena physicians and documents not within his jurisdiction, we believe such situations can be remedied adequately. See Reynaga v. Northwest Farm Bureau, supra, 259 (“[a]ny state concern for availability of reports and testimony from out-of-state medical service providers would be satisfied by granting insurers a right to veto individual doctors who have demonstrated that they are unlikely to fully cooperate with reporting requirements”). Similarly, we are confident that commissioners also will ensure that no undue financial hardship inures to employers or insurers as a result of expenses claimants might incur in traveling to and from treatment out of state. See Chaples v. Gilco, Inc., supra; Ward v. Dixie Shirt Co., supra.

Concerning the plaintiffs cross appeal, our review of the record discloses that the compensation review division properly denied the motion to correct the trial commissioner’s findings because the commissioner is the trier of the facts; Kinney v. State, 213 Conn. 54, 59, 566 A.2d 670 (1989); McCurdy v. State, 26 Conn. App. 466, 469, 601 A.2d 560 (1992); and the conclusions he reaches must stand unless they result from an incorrect application of the law or from an inference illegally drawn from facts he found. Id. In this case, the commissioner found that “Dr. Dean Hokanson testified that the [plaintiff] had reached maximum medical improvement.” We therefore conclude that the evidence supported the commissioner’s finding.

The decision of the compensation review division dismissing the plaintiff’s appeal is affirmed. The decision dismissing the defendants’ appeal is reversed and the case is remanded to the compensation review division with direction to remand the matter to the workers’ compensation commissioner for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants are Twin Manufacturing, Inc., the plaintiff’s employer, and Frank B. Hall Risk Management, Inc., the insurer.

       In granting the motion, the trial commissioner wrote: “Said Motion is hereby Granted, and paragraph 3, page 6 of the Commissioner’s Finding and Award dated May 14, 1990 is modified so that the respondent shall provide Claimant with up to one year of in-patient hospitalization at New Medico Highwatch Rehabilitation Center, P.O. Box 99, Center Ossipee, New Hampshire.”

       Our review of the record fails to disclose, and the parties in their briefs do not identify, any document in which the plaintiff and his counsel agreed to the fund’s request.

       General Statutes § 31-294 (c) provides in pertinent part: “The employer, as soon as he has knowledge of any such injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish such medical and surgical aid or hospital or nursing service, including medical rehabilitation services, as such physician or surgeon deems reasonable or necessary. Such physician or surgeon shall be selected by the employee from an approved list of physicians and surgeons prepared by the commissioners, but, if such employee is unable to make the selection, the employer shall do so, subject to ratification by the employee or his next of kin, provided, however, where the employer has a full-time staff physician or a physician is available on call, the initial treatment required immediately following the injury may be rendered by such physician, but the employee may thereafter select his own physician as provided by this chapter for any further treatment without prior approval of the commissioner. In the event of the failure of the employer promptly to provide such physician or surgeon or such medical, surgical or hospital or nursing service, the injured employee may provide such physician or surgeon, selected from the approved list prepared by the commissioners, or such medical, surgical or hospital or nursing service at the expense of the employer; or, at his option, the injured employee may refuse the medical, surgical and hospital or nursing service provided by his employer and provide the same at his own expense. The commissioner may, without hearing, at the request of the employer or the injured employee, when good reason exists, or on his own motion, authorize or direct a change of such physician or surgeon or such hospital or nursing service. If it appears to the commissioner that an injured employee has refused to accept and failed to provide such reasonable medical, surgical or hospital or nursing service, all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure. . . .”
      General Statutes § 31-294 was repealed by Public Acts 1991, No. 91-32, § 40, effective July 1, 1991, and recodified in Public Acts 1991, No. 91-32. The above mentioned language has been reenacted and codified in Public Acts 1993, No. 91-32, § 12. The legislature’s action does not affect the appeals here. See Hansen v. Gordon, 221 Conn. 29, 32-33 n.1, 602 A.2d 560 (1992).

       General Statutes § 31-279 provides in pertinent part that the compensation commissioners “shall maintain an approved list of practicing physicians, surgeons, podiatrists and dentists from which an injured employee shall choose for examination and treatment under the provisions of this chapter. ...”

       General Statutes § 31-275 (9) provides: “ ‘Physician’ shall include any person licensed and authorized to practice a healing art as defined in section 20-1 and duly licensed under the provisions of chapters 370, 371, 372 and 373 to practice in this state.”

       This reasoning also leads ineluctably to the conclusion that treatment outside Connecticut may be proper when the claimant is referred to an out of state health care provider. See Pokorny v. Getta’s Garage, 219 Conn. 439, 456, 594 A.2d 446 (1991). General Statutes § 31-294 “ ‘clearly places responsibility on the employer to furnish all necessary medical and rehabilitative services. By statute, this includes not only the furnishing of a physician to attend the injured employee, but also whatever medical treatment or diagnostic procedures such physician deems reasonable or necessary. Thus, the employer is responsible not only for the initial treating physician, but also for any other physician, hospital, diagnostic or treatment center to which such treating physician refers the claimant . . ” (Emphasis added.) Id., citing J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) p. 178. See also Chaples v. Gilco, Inc., 280 A.2d 546, 548 (Me. 1971) (medical services rendered by out of state physician not licensed in Maine not improper when in state physician on panel selected to provide care by Maine Industrial Accident Commission referred claimant to out of state physician).

       The leading Connecticut commentator on the law of workers’ compensation recognizes that despite the language of General Statutes § 31-294, in certain circumstances a hearing may be appropriate. See J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985), p. 180. “If the claimant desires to change physicians, he should make such a request, in writing, to the commissioner having jurisdiction over the claim. The request should identify the physician the claimant desires to be authorized and the reasons for the request. Ordinarily, the commissioner will authorize such a change as long as there is no indication that the claimant is ‘shopping around’ for a more sympathetic physician. Experience indicates that should the respondent object, a formal hearing to establish that a ‘good reason exists’ may well be convened despite the language of the Act.” Id.

       General Statutes §§ 31-278 and 31-298 permit the trial commissioner to subpoena witnesses, including physicians, and medical records.

       “Maximum medical improvement is that time when there is no reasonable prognosis for complete or partial cure and no improvement in the physical condition or appearance of the injured body member can be reasonably made.” Cappellino v. Cheshire, 27 Conn. App. 699, 703 n.2, 608 A.2d 1185 (1992).


author: Landau, J.

text:
    State of Connecticut v. Larry Jenkins
    (10326)
    Dupont, C. J., Landau and Heiman, Js.

      Argued June 12
    decision released September 22, 1992

      Jon L. Schoenhorn, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Christopher Morano, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of the trial court, rendered after a jury trial, of guilty of the crime of attempted assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2). He claims that the trial court improperly instructed the jury as to (1) the use of the defendant’s prior felony conviction, (2) the definition of “dangerous instrument” as it related to the proof of an essential element of assault in the first degree, and (3) the issue of self-defense. The defendant concedes that none of these three claims was preserved at trial. He, therefore, seeks review for each claim under State v. Golding, 213 Conn. 232, 239-40, 567 A.2d 823 (1989). We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On March 15,1990, the victim was riding his bicycle on the sidewalk adjacent to Blue Hills Avenue in Bloomfield when the defendant, driving a car, stopped the vehicle nearby. The victim left his bicycle on the sidewalk and approached the driver’s side of the car. While the defendant was speaking with the victim, a passenger in the defendant’s car got out and threatened to hit the victim with a bottle. The victim returned to his bicycle and pulled out a gun. The passenger returned to the car and the defendant drove south, toward Hartford. After firing his gun two or three times in the direction of the retreating car, the victim continued to ride his bicycle, on the sidewalk, toward Hartford. As he was riding, he saw the defendant make a U-turn and begin to drive directly toward him. The victim, believing that the car was going to drive onto the sidewalk, drew his gun and fired at the car again. The car passed him, made another U-turn and came toward him a second time. In his attempt to avoid being hit by the car, the victim rode his bicycle toward the far side of the nearest tree. As he was riding, he heard the motor of the car grow louder, looked back over his shoulder and saw the defendant’s car mount the sidewalk. The car struck the victim, knocked him off the bicycle and then ran into the tree. The defendant then backed up the car, looked at the victim and drove off toward Hartford. The victim, screaming in pain, was taken to Mount Sinai Hospital in Hartford where he was treated for an injury to his right knee.

Initially, we will outline our standard of review as it relates to all three of the defendant’s unpreserved appellate claims. In State v. Golding, supra, 239-40, our Supreme Court held that a defendant can prevail on a claim of constitutional error not preserved at trial if all of the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate the harmlessness of the alleged constitutional violation beyond a reasonable doubt.” A defendant cannot prevail on an unpreserved claim unless all of the conditions are met, any one of which may be considered first. State v. Shaw, 24 Conn. App. 493, 497, 589 A.2d 880 (1991).

The defendant first claims that the trial court improperly instructed the jury on how it could use the evidence of his prior felony conviction. Specifically, the defendant argues that the trial court’s instructions amounted to an impermissible direction to the jury on how it was to evaluate the defendant’s testimony. He contends that this claim is reviewable because “it implicates a defendant’s right to testify on his own behalf, and thus suggests a denial of a fair trial.” We disagree.

In the portion of the charge to the jury relating to the credibility of witnesses the court stated as follows: “In this case, evidence was introduced to show that the defendant was — had been previously convicted of the crime of larceny in the second degree. Evidence of the commission of another crime other than the one charged is not admissible to prove the guilt of the defendant in this particular case. The commission of other crimes by this defendant has been admitted into evidence for the sole purpose of affecting his credibility. You must weigh the testimony and consider it along with all the other evidence in the case. You may take into consideration only the conviction of the defendant as bearing upon his credibility and you should determine that credibility upon the same consideration^] as those given to any other witness.”

The defendant’s claim involves one word out of this entire charge. He claims that the word “must” in the phrase “you must weigh the testimony and consider it along with all the other evidence” deprived the jury of its role in determining the defendant’s credibility. He asserts that the jury would have believed, from this one word, that it was obliged to find that the defendant was not a credible witness.

This claim is paradigmatic of the improper isolation of parts of an instruction. “It is well established that individual jury instructions are not to be judged in artificial isolation, but must be viewed in the context of the overall charge.” (Internal quotation marks omitted.) State v. Hardison, 16 Conn. App. 142, 145, 546 A.2d 968 (1988), quoting State v. Palmer, 206 Conn. 40, 46, 536 A.2d 936 (1988). Viewing the charge in its entirety, as we must, we are convinced that the jury was not misled into believing that it was required to consider the prior conviction in assessing the defendant’s credibility. See State v. Piskorski, 177 Conn. 677, 747, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975).

The court properly instructed the jury that “[a]n accused person having taken the witness stand stands before you just like any other witness and is entitled to the same considerations and must have his testimony measured in the same way as any other witness. . . .” The court also instructed the jury that “Credibility of the witnesses and the weight to be given their testimony is for you alone to determine. . . . You should, in short, size up the witnesses and make your own judgment as to their credibility and decide what portion-all, some or none — of any particular witness’ testimony you will believe . . . . You are entitled to accept any testimony which you believe to be true and to reject, either wholly or in part, the testimony of any witness you believe has testified untruthfully or erroneously. The credit that you will give to the testimony offered is, as I have told you, something which you alone must determine.” These comments properly apprised the jury of its role in assessing the credibility of the witnesses. State v. Ryerson, 201 Conn. 333, 348, 514 A.2d 337 (1986).

This claim, therefore, is not “of constitutional magnitude alleging the violation of a fundamental right.” State v. Golding, supra, 240. The defendant cannot demonstrate a violation of his constitutional rights by culling this single word from the entire charge. State v. Turcio, 178 Conn. 116, 122-23, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147 (1969), cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970). The second prong of Golding has not been met and, therefore, this claim must fail.

In his second claim, the defendant asserts that the trial court improperly instructed the jury on attempted assault in the first degree, regarding whether the automobile driven by the defendant was a dangerous instrument as defined by General Statutes § 53a-3 (7). The defendant argues that the trial court, by instructing the jury that a motor vehicle is a dangerous instrument, categorically removed this element from the jury’s consideration, thereby usurping the factfinding role of the jury. The defendant contends that the true issue was the circumstances under which the vehicle was being used; State v. Frazier, 7 Conn. App. 27, 39, 507 A.2d 509 (1986); and suggests that the court should have instructed the jury that “it must decide whether the motor vehicle was an instrument which possessed the potential for causing either death or serious physical injury under the specific circumstances in which it was used by the defendant.” He argues that this claim is reviewable because “it implicates his constitutional right to due process, which includes the requirement that the state prove all elements of the offense beyond a reasonable doubt.” Again, we disagree.

The trial court instructed as follows: “Now, a dangerous instrument — I’m not going to read the entire paragraph to you because it suffices to tell you that a dangerous instrument can be a motor vehicle and the evidence in this case is that [the defendant] used a motor vehicle to do that because the focus of [the] concept of a dangerous instrument is the deadly capability of the instrument under the conditions of the particular case.”

At the end of its instructions on attempted assault in the first degree, the court added: “If you find in this case that the State has proved that the defendant attempted to commit this crime — that is, the State has proved beyond a reasonable doubt that the defendant attempted to cause serious physical injury to another person by means of a dangerous instrument, then your verdict will be guilty of attempted assault in the first degree. If you find that the State has not proved all these elements beyond a reasonable doubt, you must find the defendant not guilty of the crime as charged.”

The instruction on the definition of a dangerous instrument given in the court’s charge on attempted assault in the first degree did not deprive the defendant of any constitutional right to a fair trial. The instruction, as it related to this charge, expressly stated that “a dangerous instrument can be a motor vehicle.” (Emphasis added.) The challenged comments merely point out that the jury was to consider only the automobile in assessing whether the instrument used by the defendant, under the specific circumstances in which he used it, possessed the potential for causing either death or serious physical injury. The court’s comment on the fact that the defendant used a motor vehicle in this case was an acceptable comment on the facts. See State v. Anderson, 16 Conn. App. 346, 355-56, 547 A.2d 1368, cert. denied, 209 Conn. 828, 552 A.2d 433 (1988). Additionally, the trial court instructed properly that “the focus of [the] concept of dangerous instrument is the deadly capability of the instrument under the conditions of the particular case.” Examining the charge as a whole, and considering it from the standpoint of its probable effect on the jurors in guiding them to a proper verdict in this case; State v. Foshay, 12 Conn. App. 1, 27, 530 A.2d 611 (1987); we find that the statement was a permissible comment on the evidence and did not relieve the jury of its obligation to determine whether the automobile, as used by the defendant, was a dangerous instrument.

The defendant has failed to satisfy the third prong of State v. Golding, supra. The alleged constitutional violation does not clearly exist and the defendant was not deprived of a fair trial. He, therefore, is not entitled to relief under State v. Golding, supra.

The defendant’s final claim presents a two-part challenge to the trial court’s instructions on self-defense. The defendant contends that the trial court, in its instructions on self-defense, (1) did not inform the jury that the state bore the burden of disproving justification beyond a reasonable doubt, and (2) impermissibly replaced the subjective-objective standard contemplated by General Statutes § 53a-19 (a) with a simple objective standard. The defendant contends that this claim is reviewable “inasmuch as due process is implicated ... [a] fundamental element of [which] is the right of a defendant charged with a crime to establish a defense.” Our review of the record reveals that the defendant’s right to present a defense was not implicated by the trial court’s instructions and, therefore, the alleged constitutional violation does not clearly exist and the defendant was not clearly deprived of a fair trial. State v. Golding, supra, 239-40.

A defendant charged with a crime has a constitutional right to present a defense incident to his right to due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). “ ‘This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. See General Statutes § 53a-12 (a).’ ” State v. Corchado, supra, 660, quoting State v. Miller, supra, 660-61. It is well established that the defense of self-defense, when asserted, requires the state to disprove such a defense beyond a reasonable doubt. General Statutes § 53a-12 (a); State v. Miller, supra, 663; State v. Gilchrist, 24 Conn. App. 624, 632, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991); State v. Holloway, 11 Conn. App. 665, 670, 528 A.2d 1176 (1987).

Here, the trial court gave a lengthy instruction on self-defense. The court began this portion of the instruction by explaining that: “A person is justified in the use of reasonable force when he reasonably believes that such force is necessary to protect himself or another person from the use or impending use of physical force by another.” The court also twice instructed the jury that it “must” find the defendant not guilty on the ground of justification, “unless the state had proven beyond a reasonable doubt any one of the following elements: The defendant did not believe that he was in imminent danger of death or injury and that the use of force was not necessary to protect himself. Two, he did not have reasonable grounds for such belief. Three, the force used was unreasonable.” And again, at the conclusion of its instructions on self-defense, the court reminded the jury that the burden is on the state to prove that the defendant did not act in self-defense.

These instructions correctly explained that the state bore the burden of proving beyond a reasonable doubt the lack of justification. Although the court stated the burden in the reverse of the usual instruction, that the state has to disprove the elements of self-defense beyond a reasonable doubt, the meaning of the instruction is identical and provides the jury with the appropriate guidance. In proving the negative of the self-defense elements, as required by the trial court’s instructions, the state necessarily disproves the defendant’s claim of self-defense in its more common, positively stated form. The fact that the court broke down the definition of self-defense into three elements merely aided the jury in its deliberations.

The trial court accurately and adequately informed the jury that the state bore the burden of proving beyond a reasonable doubt every element of attempted assault in the first degree. The trial court made it clear that the state must disprove the existence of self-defense. The charge, when taken as a whole, did not shift the burden of proof. It is, thus, not reasonably possible that the jury was misled by the court’s instruction on self-defense. State v. Quintana, 209 Conn. 34, 50, 547 A.2d 534 (1988); State v. Silveira, 198 Conn. 454, 468, 503 A.2d 599 (1986); State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); State v. Smith, 194 Conn. 213, 219, 479 A.2d 814 (1984); State v. Gilchrist, supra, 634-35. The defendant has not satisfied the third prong of State v. Golding, supra, with respect to the instruction on the burden of proof. He has failed to demonstrate that a constitutional violation clearly exists and that he was clearly deprived of a fair trial.

The second portion of this claim is that the trial court impermissibly replaced the subjective-objective standard contemplated by General Statutes § 53a-19 with a simple objective standard. The defendant relies on State v. Williams, 25 Conn. App. 456, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991), to support this claim. We are not persuaded.

The standard of review to be applied to this claim is whether it is reasonably possible that the jury was misled. State v. Corchado, supra. “The charge is to be read as a whole and individual instructions are not to be read in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984).

The “test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant’s belief ultimately must be found to be reasonable.” Id., 389 n.13; State v. Hall, 213 Conn. 579, 586 n.7, 569 A.2d 534 (1990); State v. Silveira, supra, 475-76. This statutory emphasis upon the defendant further demonstrates the function of the jury in their evaluation of the self-defense claim. State v. Quintana, supra, 46; State v. Corchado, supra, 663.

“The starting point of the jury’s inquiry into whether ‘reasonable force’ was used by a defendant is whether the defendant believed that [such] force was necessary to repel the attack. State v. DeJesus, supra [389 n.13]. Next, the jury’s inquiry should focus on the question of whether that belief was reasonable. Id.” (Emphasis in original.) State v. Williams, supra, 464.

Relying on State v. Williams, supra, the defendant argues that the trial court’s definition of reasonable force as “that force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and not more” was incorrect. Although in Williams we stated that this was an incorrect statement of the law, we concluded that, in the context of the entire jury instruction, and particularly in conjunction with an instruction that the jury was to view the defendant’s belief concerning danger from his standpoint, the improper instruction was harmless beyond a reasonable doubt.

Although this portion of the instruction was found to be improper in Williams, the charge as a whole, like the charge in Williams, properly instructed the jury that the danger claimed by the defendant had to be determined from his standpoint at the time of the attack and under all the existing circumstances. The jury was also instructed that the test is not what the other person actually intended but' what the aggressor’s act caused the defendant to believe was his intention.

We conclude that the trial court’s instructions, as a whole, properly included both the subjective and objective portions of the self-defense test. It properly directed the jury to consider the defendant’s personal belief about the danger he was facing and the necessity for the use of force. This portion of the claim, therefore, also fails.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The defendant was also convicted by the jury of the crime of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), but at the time of sentencing, the trial court granted his motion to set aside the verdict as to that count.

       General Statutes § 53a-3 (7) defines a dangerous instrument as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury, and includes a ‘vehicle’ as that term is defined in this section.”

       In its instructions on assault in the second degree the court stated, “I told you already that a motor vehicle is a dangerous instrument. So, I will not give you any further definition of that because I’ve already told you what that means . . . .” At sentencing, however; see footnote 2, supra; the trial court granted the defendant’s motion for judgment of acquittal as to the conviction of assault in the second degree.

       General Statutes § 53a-19 provides in relevant part: “(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.”


text:
    William T. Evans v. Warden, State Prison
    (9918)
    Norcott, Lavery and Landau, Js.

      Argued April 6
    decision released September 22, 1992

      Paula Mangini Montonye, deputy assistant public defender, for the appellant (petitioner).

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

The petitioner, William T. Evans, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the habeas court improperly (1) concluded that, as a matter of law, that he was required to present the testimony of a legal expert at his habeas corpus hearing in order to establish his claim of ineffective assistance of counsel, (2) failed to consider the transcript of his criminal trial that was presented at the habeas hearing, and (3) denied his posttrial motions. We agree with the petitioner’s second claim and, with respect to the first claim, do not agree that the testimony of a legal expert is required, as a matter of law, in every habeas corpus petition in order to establish ineffective assistance of counsel. We need not reach the petitioner’s third claim.

The petitioner was convicted after a jury trial of the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). In a subsequent proceeding, the jury also found the petitioner to be a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a). The trial court sentenced the petitioner to a term of twenty-five years imprisonment. The conviction was affirmed by the Connecticut Supreme Court. State v. Evans, 200 Conn. 350, 511 A.2d 1006 (1986).

Thereafter, the petitioner filed a petition for a writ of habeas corpus, claiming ineffective assistance of both trial and appellate counsel. After a hearing, the habeas court denied the petition. The petitioner then filed pro se motions to reargue and for a new trial, a petition for a new trial and a petition for a writ of habeas corpus addressed to the alleged ineffective assistance of his habeas corpus counsel. The court denied the petitioner’s motion and petition for a new trial on the ground that they were not timely filed and that the issues raised would better be considered in the pending habeas corpus petitions. The trial court did not rule expressly on the motion to reargue or on the petition for a new habeas trial.

We first address the effect of the habeas court’s failure to consider the transcript of the petitioner’s criminal trial. At the habeas hearing, upon stipulation of the parties, the transcript of the petitioner’s criminal trial was admitted into evidence. It is undisputed that the court did not view the transcript.

The petitioner argues that because the principal argument of his habeas corpus petition was that his trial counsel was ineffective in not presenting sufficient evidence to substantiate the petitioner’s claims, the habeas court could not come to any rational decision without reading the trial transcript. Thus, he argues, it was improper for the habeas court to refuse to review the transcripts. The state posits that the conduct of the habeas trial must necessarily be left largely to the discretion of the habeas judge, and that the habeas court implicitly concluded that the testimony presented at the hearing did not reach a threshold to warrant scrutiny of the transcripts.

“In a trial to the court, the trial judge performs a dual function; he is the authority who must adopt the correct principles of law to apply to the facts which he finds in leading to the judgment rendered.” Peck v. Jacquemin, 196 Conn. 53, 73, 491 A.2d 1043 (1985). “ ‘[T]he conduct of the trial must necessarily be left largely to the discretion of the presiding judge, a discretion which in its very nature cannot be made the subject of review by this court, except in a clear case of the abuse of that discretion.’ ” State v. Wood, 208 Conn. 125, 130, 545 A.2d 1026, cert. denied, 488 U.S. 895,109 S. Ct. 235, 102 L. Ed. 2d 225 (1988), quoting McKiernan v. Lehmaier, 85 Conn. 111, 119, 81 A. 969 (1911). “A committee, or other trier, is bound to consider all the evidence which has been admitted, as far as admissible, for all the purposes for which it was offered and claimed. Not to do so is an error of law no less than it would be to exclude the evidence when offered.” (Emphasis added.) State v. Suffield & Thompsonville Bridge Co., 82 Conn. 460, 465, 74 A. 775 (1909). Although a trial court need not expressly order a jury, as the trier of fact, to read the full text of each and every exhibit, it is within the sound discretion of the court to instruct the jury to give careful consideration to all the evidence in a case. State v. Wood, supra, 132. These principles are fully applicable in habeas corpus trials.

The habeas court, as the trier of fact, was required to make a finding of whether the petitioner presented sufficient evidence to meet his burden of proof as to the allegation that his trial and appellate counsel rendered ineffective assistance. Although the respondent urges us to find that “evidentiary representations” made by the state’s attorney at the conclusion of the habeas trial serve to support the threshold of evidence necessary to justify the habeas court’s verdict, it is black letter law that a court may make findings based only on evidence and not on mere representations of counsel. Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985); Savage v. Savage, 25 Conn. App. 693, 696, 596 A.2d 23 (1991). A full and fair review of the petitioner’s claim that his trial counsel failed to present sufficient evidence to substantiate the petitioner’s claims and that his appellate counsel provided ineffective assistance in failing to include a sufficiency of the evidence claim in his direct appeal required the habeas court to read the trial transcript. Just as a jury should give careful consideration to all the evidence in a case, so too should a habeas court give careful consideration to all the evidence; State v. Wood, supra; which, in this case, included the trial transcript. Although great deference must be given to the habeas court when considering a petitioner’s trial, we conclude that the habeas court’s refusal to read the trial transcript was an abuse of its discretion.

In his second claim, the petitioner argues that the habeas court improperly concluded that, as a general principle of law, expert testimony is required in order to establish a claim of ineffective assistance of counsel. The respondent argues that the trial court did not articulate as a general principle of law that expert testimony is a prerequisite to a finding of ineffective assistance of counsel, but merely noted the absence of expert testimony in this case and applied its own judgment to its finding that the evidence presented failed to demonstrate that the petitioner’s trial and appellate counsel were ineffective.

In making its oral ruling following the hearing on the petitioner’s application for a writ of habeas corpus, the court stated: “I think that under Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] and the other cases in Connecticut the insufficiency of counsel is an objective standard. We have no expert here. I don’t think that you can properly claim to me that the conduct of these attorneys, and I’ve heard very little of their conduct, is covered by the doctrine of res ipsa loquitur. I think without some evidence of an expert there is no way that this court could find that the trial counsel or the appellate counsel’s services were deficient. ... I really don’t think that I have any cause whatsoever to review the transcripts because I have not heard what I consider to be under Strickland the two most important things. One, an objective standard for the conduct of either trial counsel or appellate counsel, and I have not heard any evidence that the shortcomings that you have raised would — if they had been raised at either point, the outcome would have been different.”

Whether expert testimony is needed, as a matter of law, in a habeas corpus proceeding in order to establish ineffective assistance of counsel is a question of first impression in this state and has been afforded only limited consideration in other jurisdictions. See Hubbard v. State, 584 So. 2d 895, 901 (Ala. Crim. App. 1991) (expert testimony is not required for an ineffective assistance of counsel determination); State v. Carter, 56 Wash. App. 217, 228, 783 P.2d 589 (1989) (Winsor, J., dissenting) (distinguishing need for expert testimony in medical malpractice cases from need for expert testimony in habeas proceedings involving claims of ineffective assistance of counsel).

As a general rule, expert testimony is required “ ‘when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors’ Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 301, 589 A.2d 337 (1991), quoting Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961); Aspiazu v. Orgera, 205 Conn. 623, 630-31, 535 A.2d 338 (1987); Toomey v. Danaher, 161 Conn. 204, 210, 286 A.2d 293 (1971); Jaffe v. Department of Health, 135 Conn. 339, 350, 64 A.2d 330 (1949); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.16.5; which necessarily must be decided on a case-by-case basis. Although we have had the opportunity to apply this rule in a number of circumstances involving allegations of professional malpractice; Mather v. Griffin Hospital, 207 Conn. 125, 131, 540 A.2d 666 (1988); Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d. 1023 (1986); Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 718, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991); Vinchiarello v. Kathuria, 18 Conn. App. 377, 381, 558 A.2d 262 (1989) (medical malpractice); see Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990); Dunham v. Dunham, 204 Conn. 303, 317, 528 A.2d 1123 (1987); Somma v. Gracey, 15 Conn. App. 371, 374-75, 544 A.2d 668 (1988); Pearl v. Nelson, 13 Conn. App. 170, 173, 534 A.2d 1257 (1988) (legal malpractice); we have yet to apply this rule in the context of a Strickland inquiry.

We are'not persuaded that we should adopt an inflexible requirement that expert testimony must be presented in every case raising a Strickland inquiry. The case-by-case approach is appropriate in a situation involving ineffective assistance of counsel. Even in cases involving claims of medical and legal malpractice, a case-by-case analysis is employed and, although the general rule requires expert testimony where the specific conduct underlying the plaintiffs claim is such that it amounts to gross negligence, our courts have not required expert testimony. Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982); Console v. Nickou, 156 Conn. 268, 273-74, 240 A.2d 895 (1968); Vinchiarello v. Kathuria, supra, 381-82; Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 520-21, 509 A.2d 552 (1986) (plaintiff cannot prevail without expert testimony, except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary). We need not, however, decide in this case, whether the cases applicable to medical and legal malpractice are also applicable to ineffective assistance of counsel cases arising in habeas corpus petitions.

Here, the petitioner claims that because the standard for determining ineffective assistance of counsel is a legal standard, the question involved does not go beyond the field of the ordinary knowledge and experience of the habeas judge. It does not follow, however, that the habeas judge is cognizant of the required standard of “reasonable competence” displayed by lawyers with ordinary training and skill in the criminal law; Strickland v. Washington, supra, 687; at the time the challenged representation is alleged to have occurred. Such a determination must be made on a case-by-case basis.

The petitioner cites several examples of alleged ineffectiveness on the part of both his trial and appellate counsel, suggesting that this ineffectiveness would be manifest to the court without expert testimony. The claims themselves suggest otherwise. The issues may be of sufficient complexity to warrant assistance to the trial court in sifting through the petitioner’s claims and placing them in a context that would aid the habeas court. Thus, not every petitioner claiming ineffective assistance of counsel need present expert testimony, because as in some medical and other professional malpractice cases, the acts complained of will be such that the triers of fact will be able to determine whether there has been ineffective assistance of counsel without need of expert testimony. See State v. Carter, supra, 228 n.1 (Winsor, J., dissenting).

The judgment is reversed and the case is remanded for a new hearing on the habeas petition.

In this opinion the other judges concurred.

       The habeas court stated: “I really don’t think that I have any cause whatsoever to review the transcripts because I have not heard what I consider to be under Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] the two most important things.”

       The proper context for the court’s Strickland inquiry is the record of the trial court viewed as a whole. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see State v. Carter, 56 Wash. App. 217, 218 n.1, 783 P.2d 589 (1989).

       Whether a defendant is denied his right to effective assistance of counsel is “a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.” Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991). Combined issues of fact and law in a habeas corpus matter are heard by the court. General Statutes § 52-470; Practice Book § 536.

       The petitioner claims that the following actions, among others not specifically referred to, constituted ineffectiveness and would have been apparent on review of the transcript, and without expert testimony: (1) failure to address the inconsistencies in one of the eyewitnesses’ identification of the petitioner; and (2) failure to except to and, on appeal, challenge the trial court’s failure to give a limiting instruction regarding the destruction of evidence necessary for the petitioner’s alibi defense.


text:
    State of Connecticut v. Albert Indrisano
    (10659)
    Dupont, C. J., Daly and Norcott, Js.
    Argued June 11
    decision released September 22, 1992

      Sally S. King, with whom, on the brief, was Leny K. Wallen-Friedman, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Warren Murray, assistant state’s attorney, for the appellee (state).
   Norcott, J.

This case involves an attempt by the defendant to effect a peaceful, self-help recovery of a copy machine, which resulted in his being convicted of disorderly conduct and fined $250.

In this appeal from the judgment of conviction for violating General Statutes § 53a-182, the defendant claims that (1) the statute is unconstitutionally vague on its face and as applied to this case, (2) the evidence presented at trial was insufficient to support his conviction, (3) the trial court improperly rejected his claim of permissible use of force in defense of stolen property, and (4) the court improperly excluded certain statements on grounds of hearsay. We affirm the judgment of the trial court.

The following facts offer a rare glimpse into the trials and tribulations of the modern day “repo man.” On September 26, 1988, David Andrews Printing, a Nor-walk business, entered into a lease agreement with the Eaton Financial Corporation of Massachusetts for the use of a copy machine. The agreement provided, inter alia, that Eaton, as lessor, retained the right to repossess the machine in the event that Andrews defaulted on the required payments. After Andrews compiled a history of delinquent payments, Eaton gave notice in January, 1991, that the Norwalk business was again late in making payment and demanded the return of the copier. Eaton then instructed the defendant either to collect the outstanding debt or to repossess the machine. On January 22,1991, the defendant traveled to Norwalk to carry out his instructions.

Andrews’ office space included a common area shared with another tenant, Bonnie Orgovan. Andrews had placed the copy machine in this common area for its exclusive use. At 10 a.m., the defendant entered the common area and encountered Orgovan. He explained that he had come to collect the overdue payments or, alternatively, take possession of the copier. Gordon Anderson, also present in the common area, testified that the defendant entered the room waving a clipboard and that he was “very strident.” Orgovan then explained to the defendant that the owners were unavailable but would return shortly. Orgovan resumed her work and left the defendant in the common area with Anderson and the copy machine.

The defendant then telephoned Eaton and, after receiving permission to repossess the machine, unplugged it and began dragging it backward toward the door. When Orgovan realized what the defendant was doing, she reentered the common area, demanding that he await the return of Andrews’ owners. Moreover, she positioned herself between the defendant and the door, which she locked, to prevent him from leaving with the copier. At this point, the defendant exclaimed, “God damn, I don’t have to wait. God damn it!” Directing his attention to Anderson, the defendant said, “You, old man, stay out of this.” Determined to leave, however, the defendant physically wedged Orgovan away from the door by using his shoulders and buttocks. As soon as this physical contact ensued, Anderson called the police and the confrontation immediately ceased. The entire incident lasted about ten minutes.

In resolving this matter, we note that the right to peaceful, self-help repossession of goods has a long history in the common law. See generally J. McCall, “The Past as Prologue: A History of the Right to Repossess,” 47 S. Cal. L. Rev. 58 (1973). Private self-help remedies extend as far back as ancient Greece, where those entitled to seize chattels from a debtor were not prohibited from breaching the peace or physically injuring the debtor in the course of repossession. See F. Pringsheim, The Greek Law of Sale (1950) pp. 286-87. Early Roman law permitted similar self-help remedies, including the right to seize the person of a debtor, without court action, after a default in payment. See W. Buck-land, A Manual of Roman Private Law (1939) p. 352. Later, the right to repossess goods was recognized in the common law of England. See 2 W. Blackstone, Commentaries (Jones Ed. 1916) p. 1490 n.2; F. Pollock & F. Maitland, The History of English Law (2d Ed. 1923) p. 574.

Today, the same common law principle is embodied in General Statutes § 42a-9-503, which permits a secured party to forgo the judicial process and resort to self-help repossession, but without breaching the peace. Enticing as this mode of recovery may be to creditors, nonjudicial repossession nevertheless presents “an element of inherent danger.” Sanchez v. MBank of El Paso, 792 S.W.2d 530, 532 (Tex. App. 1990). Because the repossessor may commit a trespass in attempting to recover goods without the owner’s consent and, often, against his will, there is a considerable risk that breach of the peace, assault or other violence may occur. Id. With this brief historical background in mind, we commence our analysis.

The defendant first claims that General Statutes § 53a-182, our state’s disorderly conduct statute, is unconstitutionally vague on its face and as applied to the facts of this case.

Although the defendant’s vagueness challenge was not distinctly raised at trial, his claim of unconstitutional vagueness falls within the parameters of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and therefore warrants some appellate scrutiny. State v. Jones, 215 Conn. 173, 179, 575 A.2d 216 (1990). Golding review, however, will not allow the defendant to prevail because the record is inadequate for a fair consideration of whether the statute is unconstitutionally vague. State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991). We therefore decline to review this claim.

The defendant next claims that the evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt. We disagree.

This court has consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. First, we review the evidence in the light most favorable to sustaining the jury’s verdict. Second, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991). Reasonable and logical inferences may be drawn, but the jury may not resort to speculation and conjecture. State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990). Each essential element of the crime must be proved beyond a reasonable doubt. Id., 601.

Here, the prosecution was obligated to establish two elements under General Statutes § 53a-182: “(1) that the defendant intended to cause, or recklessly created a risk of causing, ‘inconvenience, annoyance or alarm’ and (2) that he did so by engaging ‘in fighting or in violent, tumultuous or threatening behavior . . . .’ ” State v. Leavitt, 8 Conn. App. 517, 522, 513 A.2d 744, cert. denied, 201 Conn. 819, 516 A.2d 886 (1986), quoting General Statutes § 53a-182 (a). As stated above, the prosecution established that the defendant resorted to cursing, screaming and physical force in attempting to remove Orgovan from the doorway and to repossess the copy machine. His alternative was to await thé lessees’ momentary return and then to discuss the obligations under the lease. Moreover, the defendant insisted on removing the copy machine despite being told of the owners’ imminent return. On the basis of this evidence, the trial court properly concluded, beyond a reasonable doubt, that the defendant engaged in “violent, tumultuous or threatening behavior” with the intent to cause inconvenience or annoyance, or recklessly to create a risk thereof. See also State v. Luirian, 194 Conn. 347, 359-60, 481 A.2d 48 (1984) (affirming conviction under § 53a-182 based on defendant’s yelling and cursing while at police station); State v. Leavitt, supra (affirming conviction under § 53a-182, where defendant yelled and screamed at daughter before inflicting physical harm).

The defendant’s third claim is that the trial court abused its discretion in rejecting his claim of justification pursuant to General Statutes § 53a-21. In essence, the defendant attempts to dismiss his use of physical force as a necessary incident to what he perceived was an act of larceny on the part of Andrews. We are unconvinced.

Pursuant to § 53a-21, “[a] person is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes it necessary ... to regain property which he reasonably believes to have been acquired by larceny . . . .’’To support his claim of legal justification, the defendant invokes General Statutes § 53a-119 (13) (A), the larceny provision of our penal code, which forbids a lessee’s sale or concealment of “leased personal property” when an agreement provides express terms specifying the duration of the lease and a designated place of return. In this case, the controlling lease is devoid of either of these terms and thus is not within the express language of § 53a-119 (13) (A). Thus, the terms of the lease support the trial court’s decision to reject the defendant’s asserted legal justification.

Moreover, the trial court found that the defendant’s use of force was an unreasonable response to the actions of Orgovan. This finding reflects the fact that Orgovan intended to ensure that her neighboring tenants had an opportunity to discuss the status of the copier. She urged the defendant to await the owners’ return to which he vociferously refused. On these facts, the court properly concluded that a reasonable person would not have resorted to physical force.

The defendant’s final claim is that the trial court improperly precluded him from testifying as to Orgovan’s statements made to him at the time of the attempted repossession. We disagree.

The following additional facts are pertinent to our resolution of this claim. At trial, defense counsel sought to elicit testimony from the defendant concerning statements made to him by Orgovan during the incident at issue. When the state objected, the defendant argued that Orgovan’s statements were being offered not for their truth, but to show their effect on him as the hearer. The court sustained the state’s objection that the statements were hearsay. The court reasoned that defense counsel had an opportunity earlier to cross-examine Orgovan when she testified as the state’s witness. The court found that because the defendant did not examine Orgovan as to the statements in question at that time, it was improper to elicit her statements from the defendant. Later, the defendant recalled Orgovan to testify.

Our standard of review regarding challenges to a trial court’s evidentiary rulings is clear. “ ‘Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.’ ” State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). “In reviewing claims that the trial court abused its discretion, ‘the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness; the ultimate issue is whether the court could reasonably conclude as it did . . . .’ Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979).” State v. Paulino, 26 Conn. App. 86, 92, 598 A.2d 666 (1991), cert. granted, 221 Conn. 907, 600 A.2d 1361 (1992). Further, when a constitutional violation is not at issue, the defendant bears the burden of demonstrating the harmfulness of the court’s ruling such that it is more probable than not that it affected the trial’s result. State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991).

We disagree with the trial court’s conclusion that the proffered statements by Orgovan were hearsay. It is well settled that statements offered to show their effect on the hearer are not hearsay. See, e.g., State v. Alvarez, supra, 310. The statements here were sought to cast light on the motive and intent underlying the defendant’s actions, and thus should have been admitted. Nevertheless, our review of the record leads us to conclude that the trial court’s refusal to admit the statements was harmless. No prejudice or injustice inured to the defendant, and the result of the trial would not have been different had the statements been admitted. Further, Orgovan was still available to testify at the time and, in fact, was later recalled and examined by the defendant.

Finally, we note that although the defendant may have been entitled to repossess the copy machine in the manner prescribed by article 9 of our commercial code, the right to engage in self-help does not license lessors and their agents to abuse physically any person in the course of repossession. See General Statutes § 42a-9-503. While it is true that the law has long recognized the right to forgo often costly and time-consuming judicial procedures in favor of peaceful, self-help repossession of chattels, it must not be forgotten that this “freedom given creditors in repossession must be balanced with the need to avoid possibly violent confrontations . . . .” Riley State Bank v. Spillman, 242 Kan. 696, 703, 750 P.2d 1024 (1988).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-182 (a) provides in pertinent part: “A person is guilty of disorderly conduct when, with the intent to cause inconvenience, annoyance ... or recklessly creating a risk thereof, he: (1) Engages in . . . violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct annoys or interferes with another person; or (3) makes unreasonable noise . . . .”

       According to the defendant, Orgovan advised Mm to return to the building in half an hour at which time the owners would be available. On the other hand, Orgovan testified that she told the defendant to wait ten minutes.

       At trial, there was conflicting testimony as to how the police became involved. Both Orgovan and the defendant insist that they initiated Anderson’s call to the police. Orgovan testified on direct examination that she asked Anderson to call 911. On cross-examination, she testified that the defendant had not requested the presence of the police. On the other hand, the defendant testified as follows: “I told [Orgovan] to call the police. She then turned to one of the gentleman there. She told him to call 911, and that was it.”

       General Statutes § 42a-9-503 provides in pertinent part: “Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.”

       Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional error beyond a reasonable doubt.” (Emphasis in original.) The burden of providing an adequate record rests with the defendant. State v. Leary, 217 Conn. 404, 416, 587 A.2d 85 (1991). “ ‘If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.’ ” State v. Irving, 27 Conn. App. 279, 284, 606 A.2d 17, cert. denied, 222 Conn. 907, 608 A.2d 694 (1992), quoting State v. Golding, supra, 240.

       In the words of the court, “this whole confrontation could have been avoided had the defendant acceded to the wishes of one who apparently had some sort of connection, to simply wait ten or fifteen minutes for the owners to come in. . . . [T]he Court concludes that the conduct of Mrs. Orgovan was reasonable under these circumstances, and the use by the defendant in the exercise of what he claimed was reasonable force to regain the property, was unreasonable.”

       Our independent research has failed to disclose case law in this jurisdiction construing the reference to breach of peace in General Statutes § 42a-9-503. Two commentators, however, have remarked upon the statute’s reference to self-help as follows: “When the creditor repossesses in disregard of the debtor’s oral protest, most courts find the creditor guilty of breach of peace. A rule that an oral protest is sufficient to foreclose nonjudicial repossession is wise because it does not beckon the repossessing creditor to the brink of violence.” J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 26-6, pp. 110-11.


author: Freedman, J.

text:
    Sagamore Group, Inc. v. Commissioner of Transportation
    (10799)
    Foti, Landau and Freedman, Js.

      Argued June 8
    decision released September 22, 1992

      Martin A. Clayman, for the appellant (plaintiff).

      George E. Finlayson, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Freedman, J.

The plaintiff appeals from the judgment of the trial court dismissing the plaintiff’s complaint for lack of subject matter jurisdiction. The plaintiff claims that the trial court improperly (1) refused to permit the plaintiff to present expert testimony at the hearing on the defendant’s motion to dismiss, (2) determined that the contract between the plaintiff and the defendant did not provide for “construction management” services for purposes of General Statutes § 4-61 (a) and thus that there was no waiver of sovereign immunity, and (3) determined that the statute of limitations contained in General Statutes § 4-61 (a) applied to the plaintiffs cause of action and precluded it from maintaining the action. We affirm the judgment of the trial court.

On December 30,1985, the plaintiff and the defendant entered into a contract for services. Under the contract, the plaintiff was to provide consulting and supportive services as specified in the contract, on behalf of the defendant, to disadvantaged business enterprises and women’s business enterprises (the enterprises) doing work on Connecticut department of transportation (DOT) projects. The contract provided that the defendant was to pay the plaintiff on an hourly basis for services rendered, with a maximum project cost of $881,400.

After the contract was executed, the plaintiff began providing the contract services on behalf of the defendant. The services included assisting the enterprises in obtaining certification and recertification for contracts with the DOT, reviewing all DOT contracts for contracting opportunities for the enterprises, making on-site visits to monitor the enterprises’ job progress and various details relating to their job performance, and serving several other functions related to the enterprises in their dealings and relationships with the DOT.

The plaintiff submitted bills totaling $153,184.20 to the defendant for services rendered. The defendant, however, paid only $95,013.20 for the services, leaving an unpaid balance of $58,171. The unpaid balance represented fees for services billed by the plaintiff, the validity of which was disputed by the defendant. The defendant did not issue a certificate of acceptance for any of the work performed by the plaintiff.

In March, 1987, the defendant suspended the plaintiffs performance of services under the contract pending an audit of the plaintiff’s books and records of account. The defendant refused to pay the plaintiff the balance due for the services previously rendered under the contract. On June 3,1987, the plaintiff notified the defendant by letter that it protested the suspension and notified the defendant of its intention to sue for a breach of contract. On September 25,1987, the defendant terminated the contract between the parties. The plaintiff commenced this action on April 19,1991, three and one-half years after the formal termination, claiming the unpaid balance due under the contract for the work performed before the suspension.

The defendant moved to dismiss the plaintiff’s complaint for lack of subject matter jurisdiction. In its motion, the defendant claimed that the contract at issue was not one for the provision of construction management services under General Statutes § 4-61 (a) and thus the defendant was shielded from liability under the doctrine of sovereign immunity. Alternatively, the defendant claimed that even if the contract did provide for construction management services under § 4-61 (a), the plaintiffs action was barred by the statute of limitations contained in that section.

At the hearing on the defendant’s motion to dismiss, the plaintiff was prepared to present expert testimony concerning the type of services it performed under the contract and whether those services were construction management services for purposes of § 4-61 (a). The plaintiff requested an opportunity to offer such expert testimony, but the trial court refused its request.

In its memorandum of decision, the trial court concluded that the contract between the parties did not call for the provision of construction management services by the plaintiff to the defendant. In reaching this conclusion, the trial court specifically stated: “The contract does not call for the plaintiff to supervise actual construction, to manage the building process, or to perform on state projects any construction or management duties. As a consequence, this court concludes the contract does not provide for ‘construction management’ services within the meaning of § 4-61 (a). See K.M. Cushman, Construction Litigation (1981) pp. 329-335.” The trial court also concluded, in the alternative, that even if the contract called for construction management services within the meaning of § 4-61 (a), the plaintiff’s action was barred by that section’s statute of limitations.

The plaintiff’s primary claim on appeal is that the trial court improperly determined that the contract was not one for construction management services within the meaning of § 4-61 (a) and, therefore, the trial court improperly dismissed the action for lack of subject matter jurisdiction because the action was barred by the doctrine of sovereign immunity. As a preliminary matter, however, we must first address the issue of whether the trial court properly denied the plaintiffs request to present expert testimony at the hearing on the defendant’s motion to dismiss.

I

“ ‘It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases’; Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983); Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972); Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963); ‘and that since the state can act only through its officers and agents a suit against a state officer is in effect one against the sovereign state.’ Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). . . . The state legislature . . . possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities. Id.” White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990).

“Section 4-61 of the General Statutes is an express waiver of sovereign immunity limited to actions brought against the state pursuant to certain types of contracts involving the construction of public works between the state and other parties.” Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 355, 422 A.2d 268 (1979). For purposes of the plaintiff’s action, the crucial phrase in the statute is the one defining the types of contracts that come within the law’s waiver: “a contract . . . for the design, construction, construction management, repair or alteration of any state highway, bridge, building or other public works of the state . . . .” General Statutes § 4-61 (a). The critical term “construction management” was added to the statute by Public Acts 1985, No. 85-113. That term is not defined in the statutes and the scant legislative history on the 1985 amendment provides us with little guidance as to the term’s meaning and interpretation. The plaintiff asserts that “construction management” includes the work described in and performed under its contract with the state, and that the state has therefore consented to be sued for a breach of that contract. We do not agree.

Practice Book § 143 permits a party to move for dismissal of an action on the basis of a lack of subject matter jurisdiction. A motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity bars the action. Wiley v. Lloyd, 4 Conn. App. 447, 449, 495 A.2d 1082 (1985). “[Wjhen a motion to dismiss does not seek to introduce facts outside of the record it is equivalent to our former motion to erase and admits all well pleaded facts, the complaint being construed most favorably to the plaintiff. Brewster v. Brewster, 152 Conn. 228, 233, 206 A.2d 106 (1964).” American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217, 459 A.2d 1031 (1983). A motion to dismiss may raise issues of fact and would, therefore, require a hearing to determine the facts. Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). Where, however, no genuine issue as to a material fact exists a hearing is not required because the motion merely presents a question of law as applied to the facts well pleaded.

The interpretation of statutes presents a question of law. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 139-40, 509 A.2d 1050 (1986). The interpretation of a contract, however, is generally a question of fact. Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991); Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987). In its motion to dismiss, the defendant did not contest any of the factual allegations contained in the plaintiff’s complaint. It accepted them as true. Because the trial court was required to interpret a statute in the context of a motion to dismiss, which admits all well pleaded facts; American Laundry Machinery, Inc. v. State, supra; the trial court properly decided the motion on the record alone. Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).

The sole question before the trial court was the definition of construction management as contemplated in the statute, and whether the services performed by the plaintiff, as alleged in its complaint and as evidenced in the record, fit within that definition. The definition of construction management was a question of law to be determined by the court. The proposed testimony regarding this definition would have provided a legal conclusion, and a witness is incompetent to offer a legal opinion except on the issue of foreign law. Orange Street Armory Associates, Inc. v. New Haven, 17 Conn. App. 166, 173, 551 A.2d 759 (1988); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) §§ 7.12.3, 7.17.2. As for the proposed expert testimony concerning the type of services the plaintiff performed under the contract, such testimony was unnecessary because the contract clearly identified the services to be performed by the plaintiff, and the defendant did not challenge the plaintiff’s claim that it performed those services. The trial court, therefore, properly refused to permit the plaintiff to present its expert testimony.

II

We turn now to the trial court’s interpretation of the term construction management. We afford plenary review to conclusions of law reached by the trial court. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992). Generally, “[w]hen a statute’s words are plain and unambiguous, we look no further for interpretive guidance because we assume the words themselves express the legislature’s intent. Norwich v. Housing Authority, 216 Conn. 112, 117-18, 579 A.2d 50 (1990). That axiom only applies in full force, however, [w]here . . . the language of the statute is . . . absolutely clear on its face and where no ambiguity is raised in applying the statute in a particular case. (Emphasis in original.) Rose v. Freedom of Information Commission, [221 Conn. 217, 225, 602 A.2d 1019 (1992)], quoting Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 692, 595 A.2d 313 (1991). [Conversely,] when we are confronted with ambiguity in a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Cummings v. Twin Mfg., Inc., 29 Conn. App. 249, 254, 614 A.2d 857 (1992).

We must also keep in mind the general principles controlling the interpretation of statute’s waiving the state’s sovereign immunity. “It is well established that statutes in derogation of the state’s immunity from suit should be strictly construed so that the state’s sovereignty may not be undermined. Berger, Lehman Associates, Inc. v. State, [supra, 355-56]; Spring v. Constantino, 168 Conn. 563, 570-71, 362 A.2d 871 (1975); 2A Sutherland, [Statutory Construction (4th Ed. Sands 1984)] § 58.04. ‘Under that rule of construction, the plaintiff must prove . . . that there is a precise fit between the narrowly drawn reach of the relevant statute, § 4-61, and the contractual language upon which the plaintiff depends. . . .’ Berger, Lehman Associates, Inc. v. State, supra, 356.” DeFonce Construction Corporation v. State, 198 Conn. 185, 188, 501 A.2d 745 (1985).

The statute and its limited legislative history regarding the legislature’s use of the term “construction management” offer no guidance in ascertaining the legislature’s intended meaning of the term. We therefore must look elsewhere to aid in discerning its meaning, and we may properly resort to such things as judicial opinions involving the statute, the common law, legal dictionaries and treatises to ascertain the meaning of the terms used in a statute. Rose v. Locke, 423 U.S. 48, 49-50, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975); State v. White, 204 Conn. 410, 416, 528 A.2d 811 (1987); State v. Pickering, 180 Conn. 54, 62-63, 428 A.2d 322 (1980).

“There is no single, widely accepted definition of construction management.” D. Hapke, Jr., Design and Construction Contracts: Representing the Owner (1987), p. 58. Generally, a construction manager “performs the management and coordination functions of the general contractor. However, the construction manager also performs services during and in connection with the design phase, some of which substitute for services which would otherwise be performed by the architect (such as cost estimating), and some of which (such as analyses of construction feasibility) are in addition to, or are performed to a greater degree than, those normally undertaken by the architect.” 1 S. Stein, Construction Law § 3.01 [1] [d] [i]. “[T]he essence of the concept centers around the introduction of a construction manager ... of the entire building process. The position is similar to that of the ‘master builder’ of ancient times, whose responsibilities spanned both the design and construction phases of the building process. Today, however, ‘he’ is more commonly a group, a company, or a partnership with two paramount characteristics: construction know-how and management ability. The construction manager assists the owner in arranging for the contractors and the architects who will actually do the work, seeing to it that their efforts are coordinated right from the very start of the design process to the final delivery of the completed facility.” K. Cushman, Construction Litigation (1981), pp. 331-32, quoting E. Davis & L. White, How to Avoid Construction Headaches, 51 Harv. Bus. Rev. 87, 89-90 (March-April 1973). “The American Institute of Architects’ General Conditions of the Contract for Construction, Construction Management Edition, which forms the basis of many owner-trade contractor contracts, specifies the [construction manager’s] duties as including: acting as the owner’s representative during construction and until the issuance of final payment, reviewing and processing all applications for payment by the contractors, rejecting work that does not conform to the contract (subject to the architects’ review), and reviewing shop drawings and samples. Of particular significance to specialty contractors is the [construction manager’s] obligation to schedule and coordinate the work: ‘The Construction Manager will schedule the work and coordinate the Work of all contractors on the project.’ ” J. Tieder & R. Cox, “Construction Management and the Specialty Trade (Prime) Contractors,” 46 Law and Contemporary Problems, 39, 43 (Winter 1983), citing, American Institute of Architects, General Conditions of the Contract for Construction, Doc. A201/CM (construction management edition, June 1980).

With these characterizations in mind, we conclude that the trial court properly found that the services performed by the plaintiff under the contract with the defendant were not construction management services within the meaning of General Statutes § 4-61 (a). The services performed by the plaintiff assisted disadvantaged and women’s enterprises in obtaining certification to bid on and obtain DOT contracts, to ensure that the DOT provided fair opportunities to these enterprises, to monitor the enterprises’ job progress and performance and to assist them in their dealings and relationships with the DOT. The plaintiff did not perform any specific construction management duties, such as coordinating and scheduling the work of all contractors on a specific construction project, nor did the contract require it to deal with any contractors on a specific project other than with regard to the disadvantaged and women’s enterprises. Because the contract between the parties was not one for construction management services, § 4-61 (a) did not waive the defendant’s immunity from suit under this contract.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 4-61 (a) provides: “Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may, in the event of any disputed claims under such contract, bring an action against the state to the superior court for the judicial district of Hartford-New Britain for the purpose of having such claims determined, provided notice of the general nature of such claims shall have been given in writing to the department administering the contract not later than two years after the acceptance of the work by the agency head evidenced by a certificate of acceptance issued to the contractor. No action shall be brought under this subsection later than three years from the date of such acceptance of the work by the agency head as so evidenced. Acceptance of an amount offered as final payment shall not preclude any person, firm, or corporation from bringing a claim under this section. Such action shall be tried to the court without a jury. All legal defenses except governmental immunity shall be reserved to the state. Any action brought under this section shall be privileged in respect to assignment for trial upon motion of either party.”

       Although the defendant contested the allegation that the services provided under the contract were construction management services, that allegation is not really an allegation of fact. “The allegations of the complaint as to the nature of the contract, which appear to claim that it is one for [construction management services], are . . . essentially legal conclusions. Practice Book §§ 108, 109. ‘[They are] to be tested by the facts alleged, and [add] nothing to the strength of the pleading.’ Weinstein v. Mutual Trust Life Ins. Co., 116 Conn. 654, 659, 166 A. 63 (1933); see also Andersen v. Colwell, 93 Conn. 61, 65, 104 A. 242 (1918).” American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217-18, 459 A.2d 1031 (1983).

       For an excellent discussion of the legal aspects of construction management from the standpoint of major participants in the process see 46 Law and Contemporary Problems 1 (Winter 1983). The entire issue is devoted to construction management.

       Because we conclude that this contract was not one for construction management services within the meaning of General Statutes § 4-61 (a), we need not address the question of whether the plaintiffs action was commenced within the section’s statute of limitations. We note, however, that the statute does not clearly identify the applicable time period for situations such as the one presented here, where the defendant never issued a certificate of acceptance.