text:
    Linda Labenski v. Louis Goldberg, Commissioner of Motor Vehicles
    (12221)
    Foti, Landau and Heiman, Js.
    Argued January 11
    decision released March 15, 1994

      Lawrence W. Berliner, for the appellant (plaintiff).

      Jane Rosenberg, assistant attorney general, with whom, on the brief, were Richard, Blumenthal, attorney general, and Alan N. Ponanski, assistant attorney general, for the appellee (defendant).
   Heiman, J.

The plaintiff appeals from the judgment of the trial court affirming the decision of the commissioner of motor vehicles suspending her license. On appeal, the plaintiff claims that the trial court improperly (1) found that the defendant’s reliance on hearsay evidence constituted reliable, probative and substantial evidence necessary to support the defendant’s findings of fact and legal conclusions, (2) concluded that the plaintiff’s substantial rights under the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; were not prejudiced by the defendant’s decision to impose a license suspension of an unlimited duration, (3) found that the defendant’s actions and decisions did not deprive the plaintiff of due process and equal protection of the laws, and (4) found that the defendant’s summary licensing suspension was moot. Because we agree with the plaintiff’s first claim, we reverse the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. The plaintiff suffers from an idiopathic seizure disorder. John Homblow, a neurologist, warned the plaintiff on multiple occasions not to operate a motor vehicle because of the disorder. On April 24, 1991, the plaintiff was injured in a motor vehicle accident. After the accident, she was treated by Melissa Klaus, an emergency room physician employed by Manchester Memorial Hospital, for a mouth laceration and facial contusions. On May 1,1991, Klaus sent a report to the department of motor vehicles informing them that she believed the accident was the result of the plaintiffs loss of consciousness due to a seizure. Klaus also stated in the report that she admonished the plaintiff not to drive and that part of her information concerning the plaintiff was obtained through a conversation with Hornblow.

On May 28,1991, the department of motor vehicles informed the plaintiff that her driver’s license would be suspended on June 8, 1991, pursuant to General Statutes § 14-111 (a), because her medical condition made the “continued operation of a motor vehicle . . . dangerous to [her] and others.” The plaintiff requested a hearing to challenge the suspension.

On October 2, 1991, the department notified the plaintiff that the hearing was scheduled to occur on November 7, 1991. The notice stated that (1) the purpose of the hearing was to determine if she met “the minimum physical standards to operate a motor vehicle safely on the highways of Connecticut,” (2) she would have an opportunity to respond to the claim that she failed to meet the health standards, (3) she could be represented by an attorney, and (4) if it was decided after the hearing that she failed to meet the physical requirements to drive a motor vehicle safely, her license could be suspended or made subject to periodic medical reporting to ensure future fitness to drive. The notice did not mention Klaus’ report to the department. At the November 7, 1991 hearing, Klaus’ report was received into evidence. The plaintiff testified that she had not been under the care of Hornblow for seven years, she was taking medication prescribed by Horn-blow for the seizure disorder at the time of the accident, the warnings from Hornblow about not driving occurred long ago, and she had been driving for thirty-six years. She also admitted to having a seizure disorder but doubted that a seizure caused the accident. The hearing officer suggested that she attempt to obtain a neurological report stating that she had been seizure free for at least six months and that the disorder was controlled by medication. The plaintiff did not obtain such a report.

On February 6,1992, the hearing officer found that Klaus attributed the cause of the accident to a seizure experienced by the plaintiff, that the plaintiffs seizure disorder was poorly controlled by medication, that the disorder was a longstanding one, and that the plaintiff had been warned by her physician not to drive. The hearing officer further found that the plaintiff proffered no medical reports refuting the opinions of Hornblow and Klaus. On the basis of these findings, the hearing officer concluded that the plaintiff failed to meet the minimum physical standards for safe operation of a motor vehicle within the ambit of General Statutes § 14-36 (e), and General Statutes §§ 14-46 through 14-46g. The hearing officer ordered the plaintiffs driver’s license suspended indefinitely and reinstated only upon the receipt of an “acceptable” neurological report.

On April 1, 1992, the plaintiff, pursuant to General Statutes § 4-183 (a), appealed the decision to the trial court. The plaintiff claimed in the trial court that (1) the notice of the administrative hearing was inadequate and denied her due process of law, (2) the decision of the hearing officer was unsupported by substantial evidence, (3) the suspension ought to have been stayed until the final decision was rendered by the hearing officer, and (4) the suspension deprived the plaintiff of the equal protection of the laws guaranteed to persons with physical disabilities by the Connecticut constitution.

On February 17, 1993, the trial court affirmed the decision of the department. The trial court stated that the notice of the hearing did not deny the plaintiff due process because it satisfied the four requirements in General Statutes § 4-177 (b), the decision was supported by substantial evidence, which consisted of Klaus’ report and the testimony of the plaintiff, the issue of whether the suspension ought to have been stayed was moot, and the suspension did not deprive the plaintiff of the equal protection of the laws because the state has a compelling interest in highway safety and the decision of the hearing officer was narrowly tailored to protect that interest. This appeal followed.

The plaintiff first claims that the trial court improperly found that the hearsay evidence relied on by the defendant constituted reliable, probative and substantial evidence necessary to support the defendant’s findings of fact and legal conclusions. The hearing before the department of motor vehicles is subject to the Uniform Administrative Procedure Act and the scope of review is very restricted. Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986); Carlson v. Kozlowski, 172 Conn. 263, 266, 374 A.2d 207 (1977); Neri v. Powers, 3 Conn. App. 531, 537, 490 A.2d 528, cert. denied, 196 Conn. 808, 494 A.2d 905 (1985). To prevail in this appeal, the plaintiff must prove “that substantial rights . . . have been prejudiced because” the decision to suspend her license to operate a vehicle in this state was “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” General Statutes § 4-183 (j) (5); Lawrence v. Kozlowski, 171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); Vicino v. Zoning Board of Appeals, 28 Conn. App. 500, 505, 611 A.2d 444 (1992). “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable.” Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990). The determination of whether substantial evidence exists is subject to de novo review by this court. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 21, 615 A.2d 1032 (1992). “Substantial evidence exists if the administrative record demonstrates a substantial basis of fact from which the fact in issue can be reasonably inferred. ...” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Department of Public Utility Control, 219 Conn. 51, 57, 591 A.2d 1231 (1991); Connecticut Light & Power Co. v. Department of Public Utility Control, supra, 216 Conn. 639.

The only evidence presented to the hearing officer that supported the contention that the plaintiffs idiopathic seizure disorder made her operation of a motor vehicle unsafe came from Klaus’ report to the department of motor vehicles. The report is hearsay evidence. “ ‘Hearsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein.’ ” State v. Paulino, 223 Conn. 461, 467, 613 A.2d 720 (1992); Raino v. Supermarkets General Corp., 28 Conn. App. 56, 59, 609 A.2d 1047, cert. denied, 223 Conn. 924, 614 A.2d 825 (1992). The statements in the report were written out of court and were offered into evidence to establish the truth of the statement that the plaintiff should not drive in Connecticut because of her disorder. Hearsay evidence, however, is not, as a matter of law, inadmissible in the hearing. General Statutes § 4-178; Tomlin v. Personnel Appeal Board, 177 Conn. 344, 348, 416 A.2d 1205 (1979); Carlson v. Kozlowski, supra, 267; Griffin v. Muzio, 10 Conn. App. 90, 93-94, 521 A.2d 607, cert. denied, 203 Conn. 805, 525 A.2d 520 (1987). “Under the ‘substantial evidence’ rule, the erroneous admission of evidence will not invalidate an administrative order unless substantial prejudice is affirmatively shown.” Madow v. Muzio, 176 Conn. 374, 382, 407 A.2d 997 (1978); Carlson v. Kozlowski, supra; Griffin v. Muzio, supra, 94; see General Statutes § 4-178 (3). “If hearsay evidence is insufficiently trustworthy to be considered ‘substantial evidence’ and it is the only evidence probative of the plaintiffs culpability, its use to support the agency decision would be prejudicial to the plaintiff, absent a showing . . . that the [plaintiff] knew it would be used and failed to ask the commissioner to subpoena the declarants.” Carlson v. Kozlowski, supra.

We must first determine the trustworthiness of the hearsay evidence. “[A] written report by a licensed physician who has examined the claimant and who sets forth in [her] report [her] medical findings in [her] area of competence may be received as evidence in a . . . hearing and, despite its hearsay character and an absence of cross-examination, and despite the . . . testimony by the [plaintiff] may constitute substantial evidence supportive of a finding by the hearing [officer] adverse to the [plaintiff . . . .” Richardson v. Perales, 402 U.S. 389, 402, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); see Carlson v. Kozlowski, supra; Altholtz v. Dental Commission, 4 Conn. App. 307, 311-12, 493 A.2d 917 (1985). The Richardson court concluded that the report constituted substantial evidence because, among other factors, the report was prepared by a practicing physician who had examined the plaintiff, the report was based on personal consultation and examination and rested on accepted medical procedures and tests, the report revealed a patient and careful endeavor by the examiner to ascertain the truth, and the report was written in the physician’s field of specialized training. Richardson v. Perales, supra, 402-406.

The factors enunciated in Richardson are not present in Klaus’ report. Klaus’ report fails to demonstrate that she performed any neurological examination of the plaintiff to determine if she had suffered a seizure. The report also makes clear that she based her opinion on a conversation with Hornblow, not on her own physical examination. The report further fails to show that Klaus attempted to ascertain whether the motor vehicle accident was in fact caused by the seizure. The report also fails to indicate when Hornblow last had professional contact with the plaintiff. Klaus is not a neurologist, but an emergency room physician and was writing concerning neurology, not her specialized field of training. Therefore, the report lacks the elements required to be considered sufficiently trustworthy to constitute substantial evidence.

We must next determine whether the hearsay evidence was the only probative evidence offered as to the plaintiff. At the hearing, the only evidence admitted was the testimony of the plaintiff and Klaus’ report. The plaintiff’s testimony was antithetical to the claim that the accident was related to a seizure. Although the plaintiff admitted to having been treated for a seizure disorder, she stated that she did not have a seizure prior to the accident. She also challenged the statements in Klaus’ report as false, hearsay and not substantial evidence because Klaus did not perform a neurological examination to determine if she had suffered a seizure. Therefore, the report by Klaus was the only probative evidence offered as to the plaintiff.

We must next determine whether the department established that the plaintiff knew that the report would be introduced and that the plaintiff failed to request that the commissioner subpoena the declarant. The department, in its brief, states that the plaintiff knew the nature of the claim being addressed — that she was not in adequate physical condition to operate a motor vehicle. The department, to satisfy its burden, must show that “it is highly likely that the plaintiff knew” that the report would be introduced at trial. O’Sullivan v. DelPonte, 27 Conn. App. 377, 384, 606 A.2d 43 (1992). In O ’Sullivan, we stated that it was highly likely that the plaintiff knew that a police report would be introduced at the hearing. This case is distinguishable from O’Sullivan. In O’Sullivan, the evidence revealed that the police arrived at the accident scene to investigate. Upon investigating the accident, the police must make a report of the investigation. General Statutes § 7-282. The plaintiff in O’Sullivan knew that the report existed and, therefore, was highly likely to be introduced at the hearing. Here, there is no evidence that the plaintiff knew that Klaus wrote a report to the department. The report does not indicate that the plaintiff received a copy nor does it state that the plaintiff was informed that Klaus notified the department of the incident. Klaus was not required to report the plaintiff. See General Statutes § 14-46. No evidence established that the plaintiff knew that the report would be introduced at the hearing or even that it existed.

We thus conclude that there is no reliable, probative and substantial evidence in the administrative record to support the agency’s findings of basic fact.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiff’s appeal.

In this opinion the other judges concurred.

       The report sent to the department of motor vehicles was in the form of a letter. Since the hearing officer treated the letter as a medical report, we will refer to the letter as a report.

       General Statutes § 14-111 (a) provides in pertinent part: “No provision of this chapter shall be construed to prohibit the commissioner from suspending or revoking any registration or any operator’s license issued under the provisions of any statute relating to motor vehicles, or from suspending the right of any person to operate a motor vehicle in this state, or from suspending or revoking the right of any nonresident to operate, or the right to any operation of, any motor vehicle within this state, for any cause that he deems sufficient, with or without a hearing. . . .”

       General Statutes § 14-36 (e) provides in pertinent part: “If any applicant or operator license holder has any health problem which might affect such person’s ability to operate a motor vehicle safely, the commissioner may require the applicant or license holder to demonstrate personally or otherwise establish that, notwithstanding such problem, he is a proper person to operate a motor vehicle, and he may further require a certificate of such applicant’s condition, signed by a medical authority designated by him, which certificate shall in all cases be treated as confidential by the commissioner. A license, containing such limitation as the commissioner deems advisable, may be issued or renewed in any case, but nothing in this section shall be construed to prevent the commissioner from refusing a license, either limited or unlimited, to any person or suspending a license of a person whom he determines to be incapable of safely operating a motor vehicle. . . .”

       General Statutes §§ 14-46 through 14-46g allow any physician to report to the commissioner the name of any person diagnosed by the physician to have periods of unconsciousness uncontrolled by medication. The statutes also establish a medical advisory board that is charged with assisting the commissioner in reviewing cases involving such impaired persons.

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes § 4-177 provides in pertinent part: “(a) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.
      “(b) The notice shall be in writing and shall include: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; and (4) a short and plain statement of the matters asserted. If the agency or party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished. . . .”

       Because of our disposition of the plaintiffs first claim, we do not reach the remaining issues.


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    State of Connecticut v. Connecticut Employees Union Independent, Inc.
    (12225)
    Lavery, Freedman and Schaller, Js.
    Argued November 30, 1993
    decision released March 15, 1994

      Edward T. Lynch, Jr., for the appellant (defendant).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (plaintiff).
   Schaller, J.

The defendant Connecticut Employees Union Independent, Inc., appeals from the judgment of the trial court vacating an arbitration award. The dispositive issue on appeal is whether the trial court improperly granted the plaintiffs motion to vacate the arbitration award pursuant to General Statutes § 52-418 (a) (4). That court determined that the arbitrator had failed to render a final and definite award. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. The union represents Kent Johnson, who had been employed by the state department of transportation (DOT) since 1982 under the job classification “Maintainer 2.” In April, 1991, the plaintiff sent Johnson a notice of layoff, effective May 16,1991. Since no other jobs in Johnson’s classification were vacant at that time, he was advised by the plaintiff to exercise whatever “bumping” rights he had under the collective bargaining agreement (contract). At the time of the notice of layoff, Johnson’s rights were governed by the July 1, 1988 to June 31,1991 contract negotiated by the union and the plaintiff.

Pursuant to the provisions of the contract, Johnson bumped a DOT employee within the Maintainer 2 classification, who held a job different from his. Johnson also filed a grievance with his superiors, pursuant to the contract, concerning the notice of layoff, but this grievance was denied at all steps. The union then proceeded to arbitration as set forth in the contract. Arbitration hearings were held on March 12 and 19, 1992. At the first hearing, the union and the plaintiff agreed to the following submissions: “Was the selection of the grievant for layoff and/or the notice of layoff issued to grievant on April 4, 1991 in violation of Article 12 and/or Article 13 of the NP-2 Contract? If so, what shall be the remedy?” After the hearings, the parties filed briefs. The arbitrator rendered his decision on June 8, 1992, in a twenty-two page opinion, accompanied by the following award: “The selection of the grievant for layoff and/or the notice of layoff issued to the grievant on April 4,1991 was in violation of Article 13 of the 1988-1991 NP-2 contract. The State shall immediately offer to reinstate the grievant, Kent Johnson, to his former position and make him whole for any lost wages and benefits which he incurred as a result of his layoff.”

The plaintiff filed an application to vacate the award pursuant to § 52-418 (a) (4) on the ground that the arbitrator had exceeded his powers or had so imperfectly executed them that the award was not final and definite. The defendant then filed a cross application to confirm the award pursuant to General Statutes § 52-417, as well as a counterclaim seeking compliance with the award. The trial court denied the application to confirm, and granted the application to vacate.

This court recently reviewed and presented the basic doctrines concerning the construction of arbitration awards in Bridgeport v. Connecticut Police Department Employees Local 1159, 32 Conn. App. 289, 628 A.2d 1336, cert. denied, 227 Conn. 925, 632 A.2d 703 (1993). In that case, we reaffirmed that “[arbitration awards are generally upheld and we give deference to an arbitrator’s decision since it is favored as a means of settling disputes. . . . The judicial review of an arbitration award is limited in scope by General Statutes § 52-418 and the terms of the parties’ contract. . . .

“If the submission does not contain limiting or conditional language, then the submission is unrestricted. ... If the submission is unrestricted, the award is final and binding, and cannot be reviewed for factual or legal error. ... In addition, if the submission is unrestricted, an arbitrator is not required to decide the issues presented according to law. . . . Thus, [wjhere the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved. ...” (Citations omitted; internal quotation marks omitted.) Id., 292-94.

Our Supreme Court has further noted that “[e]ven in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute; Caldor, Inc. v. Thornton, 191 Conn. 336, 344, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); (2) the award violates clear public policy; Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339, 555 A.2d 406 (1989); or (3) the award contravenes one or more of the statutory proscriptions of § 52-418. Carroll v. Aetna Casualty & Surety Co., [189 Conn. 16, 22-23, 453 A.2d 1158 (1983)].” Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1993). “In our construction of § 52-418 (a) (4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers. New Haven v. AFSCME, Council 15, Local 530, [208 Conn. 411, 415, 544 A.2d 186 (1988)]; O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 153, 523 A.2d 1271 (1987); Bic Pen Corporation v. Local No. 134, [183 Conn. 579, 584, 440 A.2d 774 (1981)].” Garrity v. McCaskey, supra, 7.

The submission in this case contained no limiting instruction on the power of the arbitrator, and, therefore, was unrestricted. The trial court determined that the failure of the arbitrator to designate more specifically what was meant by the phrase “make [Johnson] whole for any lost wages and benefits” rendered the award incapable of confirmation. We disagree.

The defendant maintains that it had waived any claim to overtime pay, and notes that, as a practical matter, since Johnson remained an employee of the state at all times, he lost no benefits. In essence, the defendant sought that Johnson be paid the difference between his wages prior to bumping and those after. The plaintiff contends that because the arbitrator mentioned benefits in his award, he must have been referring to some lost benefits that have not been clearly delineated, and, even if the only point in contention was lost wages, the arbitrator did not provide a clear framework for the computation of lost wages, such as the time period and the method of calculating back pay.

Here, although the arbitrator did not present a detailed explanation as to how Johnson should be “made whole,” the arbitrator provided sufficient guidance for the parties to satisfy the award. The arbitrator stated that Johnson should receive any lost wages or benefits. Wage tables for the jobs that Johnson held before and after the bumping are available for calculating the differential in Johnson’s wages. We conclude that the award was not rendered in violation of § 52-418 (a) (4), and that, as a result, the trial court should have granted the plaintiff’s application to confirm the award.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment granting the defendant’s cross application to confirm the arbitration award and denying the plaintiffs application to vacate the award.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in pertinent part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . . . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The defendant also claimed that the trial court improperly denied its motion to open the judgment and to reargue. Because we conclude that the trial court improperly granted the plaintifPs motion to vacate the award, we need not reach this issue.

       At one point, Johnson was promoted to “Maintainer 3,” but the position was subsequently reclassified as “Maintainer 2.”

       In general, the term “bump” refers to the process whereby one employee takes the position of an employee with a shorter record of service. See McKee v. Board of Education, 32 Conn. App. 6, 8 n.4, 627 A.2d 956 (1993). The contract provided specific procedures for the bumping of less senior employees.

       See footnote 1.

       General Statutes § 52-417 provides in pertinent part: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court . . . for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       Neither the memorandum of decision nor the judgment file included any disposition of the counterclaim. A judgment for the plaintiff on the counterclaim, however, is implicit in the trial court’s decision. See Machiz v. Homer Harmon, Inc., 146 Conn. 523, 526, 152 A.2d 629 (1959). The plaintiff has not appealed the decision on the counterclaim. We, therefore, do not review the issues raised in the counterclaim, nor do we consider the propriety of filing a counterclaim with the cross application to confirm.

       In the defendant’s motion to open the judgment, the defendant stated: “Counsel believes that during argument he indicated a claim for overtime was not applicable, or at least waived.” At oral argument before this court, the defendant maintained that it had waived any claim for overtime.

       The defendant appended a copy of the “Salary Plan” to its memorandum to open the judgment of the trial court vacating the arbitrator’s award, and noted in that memorandum that the “Contract is Exhibit A to Complaint and includes Salary Plan (wage tables for each pay grade and step for each year of the Contract’s duration).”
      We also note that although the defendant reiterated at oral argument that it was not seeking any benefits for Johnson, the contract provides a discussion of the various benefits that Johnson held prior to bumping, and if, for some reason, the benefits at Johnson’s new job were different, comparison of the benefits could be made to determine whether Johnson had been deprived of any benefits. Such comparison, like that involving wage differentials, would not invite application of discretion or judgment on the part of the parties, but merely an application of the data.


author: Heiman, J.

text:
    State of Connecticut v. Kenneth Lemoine, Jr.
    (11701)
    Dupont, C. J., Landau and Heiman, Js.
    Argued January 14
    decision released March 15, 1994

      Paul T. Edwards, special public defender, for the appellant (defendant).

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

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), risk of injury to a child in violation of General Statutes § 53-21, and two counts of assault of a peace officer in violation of General Statutes § 53a-167c (a) (l). On appeal, the defendant claims that the trial court improperly (1) denied his motions for a directed verdict and judgment of acquittal on the count of sexual assault in the third degree, (2) instructed the jury by failing to relate the issues of law to the facts of the case, and (3) instructed the jury on the crime of risk of injury to a child. Because we agree with the defendant’s second claim, we reverse the judgment of the trial court.

The jury could reasonably have found the following facts. On June 20, 1991, the victim, his mother, the defendant, Barbara Tirado and her daughter went to a lake. The victim was eight years old at the time. After staying at the lake, they drove to the home of the defendant’s mother, then to the home of his sister and then to Tirado’s home located on Maple Street in Meriden. The victim’s father later joined the group and the adults all began drinking. The victim fell asleep on the couch in Tirado’s home wearing his pants, shirt and underpants. The victim’s father was asleep on a chair near the couch and the victim’s mother was asleep in another room. The victim awoke to find the defendant placing his hands between the victim’s legs on the outside of the victim’s pants. The defendant was attempting to pull down the victim’s pants. The defendant was behind the victim on the couch and the victim was facing away from the defendant. The defendant told him to be quiet. The victim took off his pants while the defendant continued to touch the outside of the underpants between the legs and then the defendant cut the victim’s underpants. The victim was scared and ran to his mother’s room and told her what had just occurred.

The victim’s mother ran into the living room to wake the victim’s father. In the meantime, the defendant, who was wearing only a tee shirt, ran down the stairs and out the backdoor. Tirado caught the defendant outside and asked him “why he did it” and the defendant responded that he was sorry and the drugs made him do it. Tirado brought the defendant back upstairs. The victim’s father and the defendant then fought while the victim’s mother took off the victim’s underpants and dressed him. The victim then went downstairs with his parents and got into a van. The victim’s father began to drive on Main Street in Meriden to the police station when he observed the defendant driving a truck with Tirado as a passenger on Maple Street. The victim’s father blocked the defendant’s vehicle and the two vehicles collided. The victim and his mother exited the van and proceeded to the side of the road.

Officers Michael Merrigan, Mark Masse and Grant Treiber of the Meriden police department arrived at the scene in uniform shortly thereafter. Merrigan approached the father and was informed by him about the events that occurred at Tirado’s home. Masse and Treiber approached the defendant’s vehicle and asked him to exit it. As they attempted to open the door of the defendant’s vehicle and take the keys, the defendant hit Treiber in the face and drove the vehicle in reverse. The officers at that point were hanging onto the doors of the vehicle. The truck veered to the right and almost hit a building on Maple Street. Treiber fell off the side of the truck and Masse hit a door attached to the building with sufficient force to break a hole in the door. Masse sustained lacerations to his right hand, right forearm, shoulder and back. Treiber sustained bruises and injured his right hand. Treiber then placed the defendant under arrest.

At the crime scene, Robert Pocobello, a Meriden police detective, seized a pair of scissors and underpants. He discovered the scissors on a coffee table near the couch and the underpants on the couch. Pocobello processed the scissors for fingerprints. The processing revealed the presence of fingerprints that were not clear enough to be identified.

Ted Standish, another Meriden police detective, employed by the department’s sexual assault unit, interviewed the victim on June 21, 1991. The victim stated that after arriving at Tirado’s home, she told him to sleep on the couch, where the defendant was already sleeping. The victim further told Standish that he awoke when the defendant placed his hands on the victim’s “dinky” and that the defendant pulled at the victim’s pants. The victim also told Standish that the defendant told the victim to take off his pants and keep quiet. The victim then told Standish that the defendant tried to make him take off his underpants and when he refused, the defendant cut the underpants with scissors.

The defendant disputed the facts. He testified on his own behalf that he, the victim, Tirado and the victim’s mother arrived at Tirado’s home after they had spent the day at the lake. The defendant also testified that he left Tirado’s at 11 p.m., just after the victim’s father arrived, returned at around 4:30 or 5 a.m., and found Tirado and the victim’s father drinking and the victim asleep on the couch. The defendant also stated that he fell asleep on the couch, “opposite the victim” and awoke to find the victim’s father with his hand in the pocket of the defendant’s pants, which the defendant had on, and thought that the victim’s father was attempting to steal money. The defendant then testified that he tried to get up and that the victim’s father jumped on him and hit him in the face. The defendant then testified that Tirado offered to drive him to the hospital and that he accepted Tirado’s offer. He further testified that as Tirado drove him to the hospital, the victim’s father forced their vehicle to a stop on Maple Street. The defendant then testified that he moved into the driver’s seat, placed the truck in reverse and police officers tried to grab him, causing the truck to move in reverse.

I

The defendant first asserts that the trial court improperly denied his motions for directed verdict and judgment of acquittal on the count of sexual assault in the third degree. The defendant posits that the state failed to present sufficient evidence of the threat of use of force as discussed in State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987). We disagree.

“The record discloses that the defendant made a motion for judgment of acquittal at the close of the state’s case pursuant to Practice Book § 884. The trial court denied this motion. The defendant then proceeded to offer evidence on his own behalf. Under the existing rules, when a defendant elects to put on evidence after a denial of his motion for judgment of acquittal at the end of the state’s evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the completion of the state’s case. State v. Booker, 28 Conn. App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn. App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992). Thus, the defendant’s claim with regard to the sufficiency of the evidence at the completion of the state’s case is not reviewable. State v. Booker, supra, 41.” State v. Wolff, 29 Conn. App. 524, 527-28, 616 A.2d 1143 (1992). The defendant, however, is entitled to a review of the sufficiency of the evidence as presented in the entire case. State v. Booker, supra, 42.

In Hufford, the defendant did not exert force to effect the sexual contact. “The complainant had been legally rendered immobile for transport to the hospital and the defendant had only to open her blouse and pants to commit the sexual assault.” State v. Hufford, supra, 393. Here, the jury could have reasonably found from the evidence that the victim removed his pants after the defendant physically attempted to remove them forcibly and then the defendant cut the victim’s underwear. “The force used or threatened to be used in the course of committing sexual assault in the . . . third [degree] is that necessary to compel the victim to engage in sexual intercourse or to submit to sexual contact. State v. Rogers, 198 Conn. 53, 62, 502 A.2d 360 (1985).” State v. Jackson, 30 Conn. App. 281, 289, 620 A.2d 168, cert. denied, 225 Conn. 916, 623 A.2d 1026 (1993). We conclude that the defendant’s claim that the evidence was insufficient is without merit. We are satisfied that the evidence was sufficient to warrant the jury’s returning a verdict of guilty. If the case had been submitted to the jury under proper instructions, the verdict of guilty of sexual assault in the third degree involving the victim would have been proper. See State v. Wolff, supra, 529.

II

The defendant next claims that the trial court improperly instructed the jury by failing to relate the issues of law to the facts of the case. The defendant concedes that he failed to object to the jury charge. See Practice Book § 852. The defendant nevertheless claims that he is entitled to review under the doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree.

Certain additional facts are necessary for a proper resolution of this appeal. The defendant was charged with nine counts in the information. They included (1) sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), which related to the victim, (2) sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), which related to the victim, (3) risk of injury to a child in violation of General Statutes § 53-21, which related to the victim, (4) two counts of assault of a police officer in violation of General Statutes § 53a-167c (a) (l), each of which related to one of the police officers, (5) two counts of criminal attempt to commit assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and General Statutes § 53a-49 (a) (2), which related to the two police officers, and (6) two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63, one of which related to the victim’s father and the other to Tirado. After the close of evidence and after the final arguments of counsel, the trial court instructed the jury as to the law applicable to the charges in this case. The trial court first instructed the jury on the general principles of law applicable to the case, such as reasonable doubt, direct evidence, circumstantial evidence and other areas applicable to all criminal jury instructions. The trial court then instructed the jury as to the specific elements of the crimes charged in the information and on the use of constancy of evidence testimony as that concept related to the sexual assault and risk of injury charges. During deliberations, the jury asked for a playback of some testimony and asked to have charges on three counts reread. The only facts to which the trial court referred during its charge to the jury or in its recharge were that one count of assault of a peace officer and criminal attempt to commit assault in the first degree applied to Masse while the second count of assault of a peace officer and criminal attempt to commit assault in the first degree pertained to Treiber, and that one count of reckless endangerment pertained to the victim’s father while the second count pertained to Tirado.

The defendant asserts that the trial court’s instructions were constitutionally deficient because they failed to relate the issues of law to the facts of the case, thereby denying the defendant his right to due process of law as guaranteed by the fourteenth amendment to the constitution of the United States and by article first, § 8, of the constitution of Connecticut. As we have already indicated, this claim was not preserved before the trial court, but the defendant claims that it is, nonetheless, reviewable under State v. Golding, supra.

“Our standard of review in cases when the defendant claims that the instructions violate constitutional due process protections is whether the jury instructions were so deficient that it was reasonably possible that the jury was misled.” State v. Wolff, supra, 530; State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993). We will reverse a conviction only if, in the context of the whole charge, there is a “reasonable possibility that the jury was misled in reaching its verdict.” State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); State v. Wolff supra, 531.

We are first called on to consider whether the trial court’s instructions were so deficient as to implicate the defendant’s constitutional right to a fair trial. A jury instruction conforms with constitutional requirements if it provides the jury with a “clear understanding of the elements of the crime[s] charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992); State v. Plude, 30 Conn. App. 527, 537, 621 A.2d 1342, cert. denied, 225 Conn. 923, 625 A.2d 824 (1993). “An instruction that fails to satisfy these requirements . . . violate[s] the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.” State v. Avila, supra, 603; State v. Wolff, supra, 530. “The due process clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” State v. Roque, 190 Conn. 143, 157, 460 A.2d 26 (1983); State v. Salz, 226 Conn. 20, 28, 627 A.2d 862 (1993); State v. Wolff supra. “If justice is to be done . . . it is of paramount importance that the court’s instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime[s]. . . .” (Citations omitted; internal quotation marks omitted.) State v. Roque, supra; State v. Wolff, supra.

“[I]n reviewing jury instructions our task is also to view the charge itself as part of the whole trial. . . .” (Citation omitted; internal quotation marks omitted.) State v. Roque, supra; State v. Wolff supra, 531. We note that the defendant did not file specific requests to charge with the trial court and no exception was taken to the trial court’s failure to relate factual claims of the parties to the charge with respect to the elements of the crimes charged. Under these circumstances “we do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation.” State v. Wolff supra. Instead, we examine the charge as a whole to determine whether the charge adequately guided the jury toward a proper resolution of the issues presented to it. State v. Fleming, 198 Conn. 255, 268, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Wolff, supra. While “[j]ury instructions need not be exhaustive, perfect or technically accurate,” they must be correct in law, adapted to the issues presented by the case and sufficient to guide the jury properly in reaching a verdict. (Internal quotation marks omitted.) Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991); State v. Wolff, supra.

When a trial court instructs the jury, it “has not only the right but also the duty to comment on the evidence.” State v. Lee, 32 Conn. App. 84, 104, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993). “A charge cannot be given in the abstract without reference to the evidence sufficient to provide guidance to the jury in arriving at a just result.” State v. Wolff supra. It is the function of a jury charge to assist the jury in applying the legal principles set forth by the court to the facts that they may find to have been established by the evidence. Id.; see Jacques v. Carter, 2 Conn. App. 27, 33, 476 A.2d 621 (1984). The court’s instructions must “go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” State v. Sumner, 178 Conn. 163, 170-71, 422 A.2d 299 (1979); State v. Wolff, supra. The charge must be viewed in the context of the factual issues developed at trial. State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1983); State v. Wolff, supra. The trial court does not properly fulfill the role of giving proper jury instructions by simply laying down a series of general principles of law applicable to the case and then leaving it to the jury to apply them. State v. Wolff, supra, 531-32. Rather, it is the trial court’s obligation to inform the jury what the law is as applicable to the facts of the case as claimed to have been proven by the parties. Id., 532.

“While the degree to which reference to the evidence may be called for lies largely in the discretion of the court . . . reference to the evidence is required sufficient to guide the [jurors] in their application of the stated law to the evidence before them.” (Citation omitted; internal quotation marks omitted.) Mack v. Clinch, 166 Conn. 295, 297, 348 A.2d 669 (1974). If the issues presented to the jury are not complicated, the trial court must, at a minimum, refer to the essential facts surrounding each instruction. Amato v. Sawicki, 159 Conn. 490, 494, 271 A.2d 80 (1970). Further, the instruction must refer to the defendant’s claims made in his defense. Phoenix Mutual Life Ins. Co. v. Brenckman, 148 Conn. 391, 397, 171 A.2d 194 (1961). If the issues are complicated, the trial court must refer to the details of the evidence presented. State v. Wolff, supra; Jacques v. Carter, supra, 34. Because the trial court’s charge was devoid of any reference to the facts of the case, except a passing reference to the names of the victims in four counts, we need not determine whether the issues in the case are complicated. Amato v. Sawicki, supra.

Here, the charge failed to refer to any facts of the case, despite the nine count information involving five victims. “Even if we were to assume that the court correctly stated the rules of law in the abstract, with no further instructions applying the rules to the particular facts of this case, such a charge could not adequately serve to guide the jury in a determination [of the guilt of the defendant] .... See Vita v. McLaughlin, 158 Conn. 75, 78, 255 A.2d 848 (1969). Thus, a complete lack of facts in the jury charge creates a reasonable possibility, as a matter of law, that the jury was misled.

The judgment is reversed and the case is remanded for a new trial on those charges of which the defendant was found guilty.

In this opinion the other judges concurred.

       General Statutes § 53a-72a (a) provides in pertinent part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact . . . (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . . .”

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-167c (a) provides in pertinent part: “A person is. guilty of assault of a peace officer, fireman, employee of an emergency medical service organization or employee of the department of correction when, with intent to prevent a reasonably identifiable peace officer, fireman or employee of an emergency medical service organization, as defined in section 53a-3, or employee of the department of correction from performing his duty, and while such peace officer, fireman or employee is acting in the performance of his duties, (1) he causes physical injury to such peace officer, fireman or employee . . . .”

       Because we agree with the defendant’s second claim, we do not reach the defendant’s third claim.

       The victim testified that his underwear was left in Tirado’s bedroom. The victim’s mother testified that she did not remember where the underwear was left.

       Standish testified that the victim pointed to his penis when he used the word “dinky.”

       “Even though our resolution of this case on the issue of the jury charge would appear dispositive because the other issues are unlikely to arise in a retrial, we must address the sufficiency of the evidence claim since the defendant would be entitled to an acquittal of the charge on which he claims insufficient evidence if he prevails on this claim. State v. Dunn, 26 Conn. App. 114, 123, 598 A.2d 658 (1991).” State v. Wolff, 29 Conn. App. 524, 527 n.4, 616 A.2d 1143 (1992).

       “We previously recognized in State v. Booker, 28 Conn. App. 34, 42 n.8, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992), that the Connecticut Supreme Court has acknowledged the criticism of the waiver rule and its possible implications regarding the constitutional rights of a criminal defendant. See, e.g., State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984). Since the waiver rule is still the existing law in this state, we apply it in this case.” State v. Wolff, 29 Conn. App. 524, 527-28 n.5, 616 A.2d 1143 (1992); see State v. Battista, 31 Conn. App. 497, 502, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A.2d 694 (1993).

       Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       General Statutes § 53a-72a (a) provides in pertinent part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . .”

       See footnote 1.

       See footnote 2.

       See footnote 3.

       General Statutes § 53a-59 (a) provides in pertinent part: “Apersonis 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 JJ
      General Statutes § 53a-49 (a) provides in pertinent part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.”

       The fourteenth amendment to the United States constitution provides in part: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law.”

       We note that the defendant was acquitted of the charges involving criminal attempt to commit assault in the first degree and reckless endangerment in the first degree, as well as the first count charging him with sexual assault in the third degree.

       Although we rely on civil cases for this proposition, the criminal context, where we are concerned with the liberty of our citizens, certainly requires the minimal protections afforded to parties in civil cases where there is no liberty concern. See generally State v. Colon, 32 Conn. App. 402, 406-407, 628 A.2d 1347, cert. granted, 227 Conn. 926, 632 A.2d 705 (1993).


author: Landau, J.

text:
    Richard Carbone v. City of New Britain
    (12010)
    O’Connell, Landau and Heiman, Js.
    Argued December 2, 1993
    decision released March 15, 1994

      Alexander Aponte, corporation counsel, with whom, on the brief, was Joseph M. Musco, for the appellant (defendant).

      John J. Kennedy, Jr., with whom were Lori Welch-Rubin and Diana S. Marshall, for the appellee (plaintiff).
   Landau, J.

The defendant city of New Britain appeals from the judgment of the trial court rendered on a jury verdict awarding the plaintiff $944,000 in damages for injuries suffered as a result of the city’s violation of General Statutes § 13a-149.

The jury reasonably could have found the following facts. On July 20,1989, the plaintiff, Richard Carbone, was walking on a sidewalk under the control of the city of New Britain when he was caused to fall on a defective sidewalk. As a result of the fall, the plaintiff suffered serious injuries including a herniated disc and paresthesia in his legs. The plaintiff commenced an action, under § 13a-149, alleging that the city had breached its statutory duty to maintain the sidewalk in a safe condition. He further alleged that the city’s breach of such duty caused the injuries sustained in the fall, and that he was exercising due care at that time. After a trial, the jury returned a general verdict for the plaintiff in the amount of $944,000. The city filed a motion to set aside the verdict claiming that the trial court’s instruction as to contributory negligence was improper. The trial court denied the motion and the city appealed.

The sole issue on the city’s appeal is whether the trial court improperly charged the jury as to contributory negligence. The city complains that the trial court, in three separate portions of the charge, improperly charged as to the plaintiff’s burden of proving freedom from contributory negligence. The gist of the city’s argument is that the jury was inappropriately instructed when the trial court charged that the plaintiff was contributorily negligent if he had substantially or materially contributed to his injuries. The city contends, instead, that freedom from contributory negligence in the context of a defective highway action demands a showing of freedom from negligence that contributed in any way to the plaintiff’s injuries. At trial, the city submitted a request to charge the jury on the issue of contributory negligence in accordance with case law set out in Williamson v. Commissioner of Transpor tation, 209 Conn. 310, 321, 551 A.2d 704 (1988). The trial court declined to apply Williamson stating that the language used in Williamsm relating to contributory negligence was applicable only to third party negligence. The defendant took exception to the instructions.

Our standard of review concerning claims of instructional error is well settled. “[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . .” (Citations omitted; internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 475, 569 A.2d 10 (1990); see also Lemonious v. Burns, 27 Conn. 734, 739-41, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 823 (1992). “A court’s instructions must be adapted to the issues and not mislead the jury but reasonably guide it in reaching a verdict. Lemonious v. Burns, supra [740].” Sullivan v. Norwalk, 28 Conn. App. 449, 456, 612 A.2d 114 (1992).

Our review of the charge in its entirety leads us to conclude that the trial court’s instruction was an accurate statement of the law as to whether the sidewalk defect was the sole proximate cause 'of the plaintiff’s injuries. Pursuant to § 13a-149, the plaintiff was required to prove, by a fair preponderance of the evidence, the following to establish liability: “ ‘(1) that the [sidewalk] was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.’ Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).” Sullivan v. Norwalk, supra, 452-53. Our Supreme Court has held that “[a] defendant town is liable only if the defect is demonstrated to be the sole proximate cause of the plaintiff’s injury . . . .” (Emphasis in original.) White v. Burns, 213 Conn. 307, 316, 567 A.2d 1195 (1990). It opined that “when ‘the Superior Court finds that the wrongful act of the plaintiff’s driver [or the plaintiff himself] is a proximate cause of her injury, it finds a fact inconsistent with the liability of the town . . . .’ [Bartram v. Sharon, 71 Conn. 686, 696, 43 A. 143 (1899)].” Id. The inquiry then becomes whether the plaintiffs conduct amounts to a proximate cause of his injuries, and if so, the city’s liability will not exist. Our case law makes clear that “ ‘[pjroximate cause is ... an act or failure to act which is a substantial factor in producing a result.’ Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985).” Blancato v. Randino, 30 Conn. App. 810, 813, 622 A.2d 1032 (1993).

The trial court properly instructed the jury as to this essential element of statutory liability. The charge gave an accurate recitation of the law as to proximate cause. It stated that proximate cause “refers to a cause which was a substantial factor in causing the accident, and resulting injuries in question.” The trial court explained that the city’s conduct must be the sole proximate cause of the plaintiff’s injuries, and that the plaintiff’s conduct must not have substantially contributed to his injuries, i.e., not be a proximate cause of his injuries. The trial court, in its charge, stated: “The city is liable where its conduct is the sole proximate cause of the fall. But if you find that fault on the part of the plaintiff was a proximate cause, or substantial factor in causing his fall, that which we call contributory negligence, the city would not be liable."

Read in its entirety, the court’s charge to the jury set forth the legal requirements of contributory negligence in the context of a municipal sidewalk defect action, and did not mislead the jury. We conclude that the jury was properly guided by the court’s instructions in reaching its verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Lilly B. Sarkizi, Edi Sarkizi, Nili Sarkizi and Elvart Esdkondarian, and the city of New Britain were named as defendants. The individual defendants filed a motion for summary judgment on January 16,1991, which the trial court granted. On October 20,1992, the plaintiff filed a substitute complaint withdrawing the allegations against the individual defendants, but retaining the allegations against the city of New Britain.

       General Statutes § 13a-149 provides in pertinent part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.”

       Paresthesia is defined as “a sensation of pricking, tingling, or creeping on the skin that has no objective cause.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993).

       “The statute [General Statutes § 13a-149] includes injuries caused by defective public sidewalks over which a municipality has assumed control. Angelillo v. Meriden, 136 Conn. 553, 556, 72 A.2d 654 (1950).” Rodriguez v. New Haven, 183 Conn. 473, 475 n.1, 439 A.2d 421 (1981).

       The plaintiffs brief also claims that the city’s failure to certify the jury charge pursuant to Practice Book § 4013 did not provide this court with an adequate record upon which to afford review, and thus this appeal should be dismissed. On May 5, 1993, the plaintiff filed a motion to strike the November 25,1992 transcript of the jury charge on the same ground. After the plaintiff filed his brief for this appeal, this court denied that motion and ordered, sua sponte, that the city be permitted to file a late certificate. Having already ruled, we will not consider the plaintiff’s briefed issue regarding certification.

       The challenged portions of the charge are as follows: “[Y]ou must . . . determine whether any fault on the part of the plaintiff substantially contributed to any injuries that he may have sustained.”
      ‘ ‘If the plaintiff was guilty of negligence which contributed substantially in bringing about his injuries, he cannot recover . . . .”
      “That is, that the plaintiff was free from contributory negligence, the plaintiff did not materially contribute to his cause or injury.”

       In Williamson, our Supreme Court held that the following instruction by the trial court on third party negligence was a correct statement of the law: “ ‘If there has been an injury caused by a defect in the highway, and all other elements have been proven, the plaintiff may still not recover unless she shows that there is no negligence, carelessness or inattention by herself or a third person which contributed to such injury. That is to say that even if the road were defective, if there is any negligence by the [plaintiff], even one percent, she may not recover. Likewise, if a third person was careless, and that carelessness caused in any way the plaintiff’s injuries, she is not entitled to recover, which likewise, if a third person were careless, negligent, and that caused in any way the plaintiff’s injuries, she is not entitled to recover.’ . . . See Bartram v. Sharon, 71 Conn. 686, 690, 43 A. 143 (1899).” Williamson v. Commissioner of Transportation, 209 Conn. 310, 321, 551 A.2d 704 (1988). Although our Supreme Court approved the above language as it related to third party negligence, which is no different from a plaintiff’s negligence, the Williamson court, by doing so, did not mandate the use of this exact language. Here, the trial court’s charge was equally accurate. “While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” State v. Channer, 28 Conn. App. 161, 172, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992).

       While it is not necessary to rule on the trial court’s proposition that the language in Williamson prescribed a different standard for third party negligence in municipal highway actions, we note that our Supreme Court has held that the sole proximate cause standard for liability under the municipal highway liability statute applies to wrongful acts of both plaintiffs and third parties alike. White v. Burns, 213 Conn. 307, 316, 567 A.2d 1195 (1990).

       See Warner v. Liimatainen, 153 Conn. 163, 165 n.2, 215 A.2d 406 (1965), which states: “Contributory negligence ... is available as a defense whenever any negligence on the part of the plaintiff is a proximate cause of his injuries.” (Emphasis added.) See also Bartram v. Sharon, 71 Conn. 686, 690, 43 A. 143 (1899) in which the court addresses the contributory negligence issue as follows: “If the negligence of himself or of a third person is also a proximate cause, he cannot say with truth that he was injured by the defect . . . (Emphasis added.)

       The language in Sullivan v. Norwalk, 28 Conn. App. 449, 457, 612 A.2d 114 (1992), stating that “it is settled that the substantial factor test is not the proper method of analysis for establishing causation under the statute [General Statutes § 13a-149],” is not inconsistent with this opinion. The Sullivan court was addressing causation as it related to the defendant’s misconduct. In that context, the substantial factor test is not the appropriate test because the action is not one of negligence, but one for breach of a statutory duty on the part of the defendant.

       The trial court also instructed the jury that it must not focus myopically on any one part of the charge. “I instruct you not to single out any sentence, or any individual point, or instruction in this charge, and ignore others. You’re to consider all the instructions as a whole in light of each other.”


author: Per Curiam.

text:
    Martin Rosenfeld et al. v. Daniel McCann
    (11820)
    Dupont, C. J., Foti, Lavery, Landau and Schaller, Js.
    Considered February 3
    decision released March 22, 1994

      Martin Rosenfeld, pro se, the named plaintiff, in support of the motion.
   Per Curiam.

The plaintiffs in this appeal have filed a motion to reconsider the taxation of costs by the office of the chief clerk of the Appellate Court. The dispositive issue is whether the taxation of costs is proper where an appeal has been disposed of by affirming the trial court’s application of the doctrine of res judicata. We conclude that the taxation of costs is proper under such circumstances, and, thus, deny the plaintiffs’ motion to reconsider.

The procedural history of this case is not in dispute. In 1991, the pro se plaintiffs, Martin and Karen Rosenfeld, brought a small claims action against the defendant, Daniel McCann. The plaintiffs sought to recover damages for alleged fraudulent nondisclosure in connection with the sale of a motor vehicle by the defendant to them. On December 16, 1991, judgment was rendered in favor of the defendant.

The plaintiffs brought a second small claims action on December 30, 1991, based on admissions of fraud allegedly made by the defendant at the hearing of the initial small claims action. On January 16, 1992, the defendant’s motion to transfer the case from the small claims docket to the regular civil docket of the Superior Court was granted. Thereafter, on February 26, 1992, the defendant and the plaintiffs both filed motions for summary judgment. The defendant’s motion alleged that the doctrine of res judicata barred the plaintiffs’ claim. In a memorandum of decision filed on October 5, 1992, the trial court granted the defendant’s motion, denied the plaintiffs’ motion, and rendered judgment for the defendant with costs.

The plaintiffs appealed from the judgment on October 21,1992. This court affirmed the trial court judgment. Rosenfeld v. McCann, 31 Conn. App. 938, 626 A.2d 1346 (1993). The defendant filed a bill of costs on October 22, 1993, which the plaintiffs opposed. On October 27, 1993, the office of the chief clerk of the Appellate Court ordered the taxation of costs pursuant to the defendant’s bill of costs. In response, on November 4,1993, the plaintiffs filed a motion to reconsider the taxation of costs under Practice Book § 4119.

In their motion to reconsider, the plaintiffs contend that the trial court’s ruling that the doctrine of res judicata barred their claim was, in effect, a finding that the court lacked jurisdiction to hear the merits of the case, and that no costs may be taxed when that is the case. The plaintiffs properly contend that, where a matter is dismissed for lack of jurisdiction, costs should not be taxed. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 424, 426 A.2d 1324 (1980). They are incorrect in their claim, however, that their action was dismissed for lack of jurisdiction.

Res judicata does not implicate a court’s subject matter jurisdiction. The doctrine is invoked when a litigant alleges that a party is reasserting a claim that has already been decided on the merits. The doctrine must be raised as a special defense and may not be raised by a motion to dismiss, which is the appropriate vehicle to assert a lack of jurisdiction. Zizka v. Water Pollution Control Authority, 195 Conn. 682, 686-87, 490 A.2d 509 (1985).

In this case, the barring of the plaintiffs’ second action by res judicata is not equivalent to a dismissal for lack of jurisdiction. Id. The court had jurisdiction over the case. The issues raised, however, had already been decided in the previous small claims action. Therefore, taxation of costs by the clerk was proper. See Connecticut Light & Power Co. v. Costle, supra.

The plaintiffs’ motion to reconsider the taxation of costs is denied.

       Practice Book § 4119 provides in relevant part that “[a]ny party may within ten days after the issuance of the decision on the taxation of costs file a written motion . . . that the court review the clerk’s taxation of costs under its judgment. ...”


author: Dupont, C. J.

text:
    State of Connecticut v. Michael A. Walker
    (12841)
    Dupont, C. J., Heiman and Freedman, Js.
    Argued December 7, 1993
    decision released March 22, 1994

      Lori Welch-Rubin, special public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, was James Thomas, state’s attorney, for the appellee (state).

      Nancy Dart and Jennifer C. Jaff filed a brief for the Connecticut Women’s Education and Legal Fund et al. as amicus curiae.
   Dupont, C. J.

The state charged the defendant with murder in violation of General Statutes § 53a-54a. The jury, after twice deadlocking, found the defendant guilty of the charge. The defendant appeals from the judgment of conviction, alleging that (1) the trial court’s instructions given prior to voir dire violated the defendant’s constitutional rights, (2) the trial court’s “Chip Smith” jury charge pursuant to State v. Smith, 49 Conn. 376 (1881), violated the defendant’s constitutional rights, and (3) the evidence presented at trial was not sufficient to sustain the conviction.

The victim, Sylvester Meade, was shot and killed outside the Blue Hills Cafe in Hartford. Four witnesses identified the defendant as the person who shot the victim. Terry Meade, the victim’s niece, testified that she saw the shooting while standing next to a car in front of the cafe, and saw the shooter run toward Adams Street in Hartford. She recognized the gunman as the defendant, but, because she was afraid of the defendant, did not immediately identify him to the police, and instead gave the police a deliberately inaccurate description of the shooter.

Lee Baskerville testified that he saw the defendant, whom he had seen before, fire shots at the victim and then run toward Adams Street. Baskerville identified the defendant as the gunman from ,a photographic array, and also identified the defendant at trial.

Geraldine Conners testified that she heard gun shots while in her first floor apartment at 1347 Albany Avenue. She looked out a window and saw, in a well lit area, someone running from Albany Avenue toward Adams Street. About one year later, Conners selected a photograph of the defendant from a photographic array after viewing the array in her apartment. The following day, she again picked a photograph of the defendant from a photographic array, and gave a written statement to the police. At trial, Conners was not able to identify the defendant.

Diane Sims, Conner’s daughter, testified that she heard gun shots while in her second floor apartment at 1347 Albany Avenue. She looked out a window, and saw someone running through a vacant lot toward Adams Street. About one year after the shooting, when her mother was being shown the photographic array in her apartment, Sims entered the bedroom where the photographs were laid out on the bed. At that time, she told the police that she had seen someone the night of the shooting. The police asked her to look at the array, and she selected a photograph of the defendant. At trial, she was not able to identify the defendant.

Three witnesses testified that the defendant was not the shooter. Eddie Gant testified that he witnessed the shooting from a distance of twenty feet. He stated that the shooter had light skin and curly hair, and that he had never before seen the person. He also testified that he knew the defendant, and would have recognized him if he had been the gunman. Prior to his in-court testimony, Gant had told a police officer that he had not seen the shooting.

Bumess Wallace and Lillian Threet both testified that at the time of the shooting they were together in a car across the street from the victim’s car, and that the gunman had light skin. They also testified that they knew the defendant, and that they were sure the defendant was not the gunman. They both acknowledged that, although they knew that the defendant had been charged with the crime, they did not go to the police with their account.

At the time of the shooting, the defendant was in the custody of the department of correction, and living in the Watkinson halfway house as part of a work release program. The halfway house is approximately one mile from the cafe. On the evening of the crime, which occurred between 12:45 and 1 a.m., the defendant had left the house on an authorized furlough and was not there at 10 p.m., but was present at midnight and at 2 a.m. for facility head counts. The log indicated that the defendant had also signed out at about 11 p.m., and had returned about twenty minutes later, although he failed to sign in.

The defendant was assigned to room twenty-six on the second floor of the house. The whereabouts of those assigned to the house were monitored, most notably by means of a head count at two hour intervals. In order to leave or enter the facility after midnight, a resident had to check in with a counselor. Windows on the first floor were locked, but windows on the second and third floors were not. Residents were not confined to their rooms at night.

The facility had had security problems. First floor windows, which residents had access to, had been found unlocked, and other windows had been broken. A drainpipe that ran down from the room adjacent to the window of the defendant’s room had been pulled away from the building. A counselor at the facility testified that a resident could get out of the facility undetected between midnight and 2 a.m. Another counselor testified that it was possible to get back into the facility undetected.

I

The defendant claims that the trial court’s preliminary instructions to two separate panels of prospective jurors violated his state and federal constitutional rights to due process of law and to a fair trial by diminishing the state’s burden of proof. Although the defendant did not object to the instructions at trial, he seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

On March 6 and 7,1989, the trial court gave preliminary instructions to venire persons regarding general principles of criminal law. On March 6, during its instruction regarding the standard of proof beyond a reasonable doubt, the court stated that “you may not use your woman’s intuition to determine reasonable doubt.” On March 7, the trial court instructed a second panel of prospective jurors that a woman “may not use her woman’s intuition to determine reasonable doubt.” All of the jurors who served on the defendant’s jury were present during either the March 6 or March 7 preliminary instructions.

On March 20,1989, after the jury heard the case, the court gave the jurors their final instructions. This time, the court did not discuss “woman’s intuition” in explaining the concept of proof beyond a reasonable doubt. The defendant does not claim on appeal that the instructions given at the close of the case were improper. The defendant did not seek a curative instruction as to the preliminary instructions, either at the time they were given or when the final instructions were given.

After jury deliberations had begun, the trial court received two communications from the jury. The jurors informed the court that they could not reach a unanimous verdict, and that they wanted an explanation of the concept of reasonable doubt. At that time, the trial court restated the definition of reasonable doubt to the jurors. Several hours later, the jurors again notified the court that they could not come to a unanimous verdict. The court then instructed the jurors to reassess their positions in an effort to reach such a verdict.

Under State v. Golding, supra, 239-40, a defendant can prevail on an unpreserved claim of constitutional error “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 a constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

The first two conditions of Golding are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Graham, 33 Conn. 432, 442, 636 A.2d 852 (1994); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). The first two conditions of Golding are met here because there is an adequate record for review, and a claim that a jury instruction diminishes the state’s burden of proof is constitutional in nature. State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993). A defendant may prevail under the third prong of Golding on a claim of instructional error “only if, ‘considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.’ ” Id., 65. The defendant claims that the jury was misled, and cites as corroboration of his claim the fact that the jury requested an explanation of reasonable doubt and was twice deadlocked before reaching a verdict.

It is fundamental that the state must prove the guilt of a defendant in a criminal case beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. DelVecchio, 191 Conn. 412, 419, 464 A.2d 813 (1983). Because an explanation of the concept of reasonable doubt is “perhaps the most important aspect” of a trial court’s jury instructions, a defendant is entitled to a “clear and unequivocal” instruction by the court that guilt must be proved beyond a reasonable doubt. (Internal quotation marks omitted.) State v. DelVecchio, supra, 420. Although a court’s attempt to clarify the concept of reasonable doubt “by explanation, elaboration or illustration” is not necessarily reversible error, attempts to do so “more often than not tend to confuse or mislead.” (Internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 536-37, 610 A.2d 1113 (1992); State v. DelVecchio, supra, 420-21.

A trial court has the discretion, in a criminal case, to provide preliminary instructions to prospective jurors. State v. Lewis, 220 Conn. 602, 614, 600 A.2d 1330 (1991); State v. Woolcock, 201 Conn. 605, 622, 518 A.2d 1377 (1986). The final charge, however, supersedes and usually overrides earlier suspect remarks, particularly if the closing charge is temporally distant from the challenged preliminary remarks. See State v. Lewis, supra, 614; State v. DelVecchio, supra, 422; State v. Kelly, 23 Conn. App. 160, 168-70, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991). When a defendant challenges a preliminary instruction regarding a principle of criminal law, the issue is whether the court’s instructions at the conclusion of the trial correctly conveyed the concept to the jury, and whether the preliminary instructions affected the fairness or integrity of the proceedings. State v. Marra, supra, 537.

In this case, the court gave several examples of methods that cannot be used in determining reasonable doubt, including hunches, guesses, gut feelings, and itchy elbows. The court put a “woman’s intuition” in the same category. This attempt to clarify the concept of reasonable doubt was ill advised and totally inappropriate. Gender bias, particularly bias based on stereotypes, has no place in the courtroom. The court should not have placed its judicial imprimatur on a platitude that neither defines a legal concept nor enhances a bias-free atmosphere.

Nevertheless, nearly two weeks had elapsed between the challenged preliminary instructions and the correct and lengthier explication given at the close of the case. The court also correctly restated the concept of reasonable doubt to the jury during its deliberations. As a result, the jurors twice heard proper explanations of reasonable doubt, and received them at the stage of the trial when their attention was heightened. Since we conclude that the final instructions as to reasonable doubt overrode the earlier impermissible instructions, it is not reasonably possible that the jury was misled. No constitutional violation exists that clearly deprived the defendant of a fair trial. State v. Golding, supra.

II

The defendant next claims that the trial court’s supplemental “Chip Smith” charge violated the defendant’s constitutional rights under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant contends that the trial court improperly failed to remind the jurors of the state’s burden of proof and the defendant’s presumption of innocence when it instructed them to reassess their positions in an effort to reach a unanimous verdict after they had twice informed the court that they were deadlocked. The defendant did not object at trial to the instruction on the grounds he now claims, and does not claim review under State v. Golding, supra.

In this case, the first two conditions of Golding are met because there is an adequate record for review and the defendant has a constitutional right not to be convicted except by proof beyond a reasonable doubt. In re Winship, supra. Upon a review of the merits, however, we conclude that no constitutional violation exists that clearly deprived the defendant of a fair trial.

It is well established, in fact, over established, that a trial court may give a “Chip Smith” instruction when a jury informs the court that it is unable to reach a unanimous verdict. See State v. Pinnock, 220 Conn. 765, 795, 601 A.2d 521 (1992); State v. Colon, 28 Conn. App. 231, 245, 611 A.2d 902, cert. denied, 223 Conn. 922, 614 A.2d 827 (1992). We, however, have never held that, as the defendant now urges, the court must remind the jurors of the state’s burden of proof and the defendant’s presumption of innocence when it provides a “Chip Smith” instruction. Because the defendant did not object at trial to the “Chip Smith” instruction on these grounds, the trial court did not have the opportunity to consider amending the instruction to include a restatement of the burden of proof and the presumption of innocence. State v. Pinnock, supra, 796. Furthermore, although the trial court did not restate these two principles of criminal law, the court, in response to the jury’s request, did restate the definition of reasonable doubt prior to giving the “Chip Smith” instruction. We conclude, therefore, that a constitutional violation does not exist so clearly as to deprive the defendant of a fair trial.

Ill

This court next considers whether the evidence presented at trial was sufficient to sustain the conviction of the defendant. In order to evaluate the sufficiency of the evidence in a jury trial, the reviewing court first construes the evidence presented at trial in the light most favorable to sustaining the verdict, and then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from the facts, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993); State v. Gray, 221 Conn. 713, 719-20, 607 A.2d 391, cert. denied, U.S. , 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct. State v. Baldwin, supra; State v. Gray, supra, 720; State v. Allen, supra, 380-81.

In determining the sufficiency of the evidence, a reviewing court cannot pass on the credibility of witnesses. State v. Baldwin, supra, 367-68; State v. Robinson, 213 Conn. 243, 256, 567 A.2d 1173 (1989). The trier of fact, not the reviewing court, determines the credibility of witnesses and the weight accorded their testimony. State v. Baldwin, supra; State v. Robinson, supra. Furthermore, the jury is to draw from the evidence or the facts established by the evidence whatever inferences it deems reasonable and logical. State v. Stanley, 223 Conn. 674, 681, 613 A.2d 788 (1992); State v. Gray, supra, 721. The jury is not prevented from drawing inferences consistent with guilt nor is it required to draw inferences consistent only with innocence. State v. Stanley, supra; State v. Gray, supra.

In this case, the jury reasonably could have found that the evidence established guilt beyond a reasonable doubt. The jury reasonably could have concluded from the testimony presented at trial that the defendant left the halfway house undetected after the midnight head count, committed the crime outside the cafe, and returned to the facility in time for the 2 a.m. count. Although conflicting testimony was presented at trial, it is within the province of the jury to decide which witnesses are credible and which are not. We conclude, therefore, that the evidence was sufficient to sustain the conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant has made no separate analysis of his claim under Connecticut constitutional law, and we choose not to review the claim. See State v. Andrews, 33 Conn. App. 590, 592 n.3, 637 A.2d 787 (1994), and the cases cited therein.

       The trial court’s preliminary instructions regarding proof beyond a reasonable doubt on March 6, 1989, included the following: “The legal standard of proof in a criminal case is proof beyond a reasonable doubt. And I emphasize the word reasonable, because you must draw the doubt by the method of rationality, mental process of reason from the evidence or the lack of evidence. . . . That means that you do have to exclude certain things that — or certain procedures that govern the ordinary course of your lives when you’re making a determination of — as to what your conduct will be. You know, women, of course, if you ask them well, why did they do certain things or why did they do it now, or why did they do it in the way they did it, if the woman’s only answer is my woman’s intuition told me it was the proper thing to do, or the proper time to do it, or the proper way to do it, then you may not use your woman’s intuition to determine reasonable doubt, or facts or issues in a criminal case. Likewise, many of us bid on a lottery each week by using numbers from our birthdays, our telephone numbers, our license plate, our addresses. . . . Even if we win, you can’t look back and say that’s been done by a rational process or by the mental process of reason. It was a hunch, a guess. You cannot use hunches and guesses to determine reasonable doubt. Or facts or issues in a criminal case. Likewise, there’s a slang expression, I have a gut feeling that such and such is happening. You may not use gut feelings to determine reasonable doubt. Likewise, there are other biological symptoms that do raise doubts in our minds. . . . Every time I have an itchy elbow I think, well, maybe I should do that or maybe I shouldn’t do it now or maybe I shouldn’t do it in this way. But I can’t look at my itchy elbow and say, well, that’s based on a rationality or a mental process of reason. So you cannot use biological symptoms that may raise doubts in your mind if it’s not based on reason.”
      The trial court’s preliminary instructions on March 7,1989, were essentially the same as the March 6 preliminary instructions.

       The trial court’s final instructions on March 20,1989, regarding proof beyond a reasonable doubt provided in pertinent part that: “Each element of the charge against the defendant must be proved by the state by proof beyond a reasonable doubt. ... A reasonable doubt is not a slight doubt or a possible doubt, not a surmise, a guess or a conjecture. It doesn’t arise from feelings of sympathy or pity .... A reasonable doubt is one which is found on the evidence and flows naturally from the evidence or the lack of evidence. It is, in short, a doubt based on reason.”

       The defendant also contends that the trial court, by its preliminary instructions, singled out women jurors and questioned their ability to serve as fact finders.

       Canon 3B (5) of the Model Code of Judicial Conduct of the American Bar Association directs judges not to manifest by words or conduct bias or prejudice based on sex.

       Had the court made the remarks at the close of the case, our conclusion that the jury was not misled might well have been different. We also acknowledge that preliminary instructions could be so outrageous that they could not be erased by subsequent correct instructions and, thus, would mislead a jury.

       The trial court gave the following supplemental instruction pursuant to State v. Smith, 49 Conn. 376 (1881), after the jurors informed the court that they were deadlocked: “[Tjhere is no principle of law in the state of Connecticut for less than a unanimous verdict. Where there is no unanimous verdict, the case becomes mistried and must be tried all over again before another jury. For that reason, I’m going to give you a further opportunity to attempt to arrive at a unanimous verdict, with this further instruction. Although the verdict to which each juror agrees must be his own conclusion and not a mere acquiescence to the conclusions of his colleagues, yet in order to bring twelve minds to a unanimous result, the jurors should examine with candor the questions submitted to them and with due regard and deference to the opinions of each other, and, conferring together, the jury ought to pay proper respect to each other’s opinion and listen with an open mind to each other’s argument. If the much larger number of the panel are for conviction, a dissenting juror should consider whether the doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many others, equally honest, equally intelligent with himself. We have heard the same evidence, with the same attention, and with equal desire to arrive at the truth, and under the same sanctions which the law imposes upon them in the matter of their oath. And, on the other hand, if the majority are for acquittal, the minority ought to seriously ask themselves whether they may not reasonably and ought not to doubt a judgment which is not concurred in by most of those whom they are associated with and distrust the weight or sufficiency of that evidence which fails to carry conviction in the minds of their colleagues. Now, applying that principle, I request that you continue your deliberations.”

       Pursuant to Practice Book § 4185, we need not consider a claim on appeal unless it was distinctly raised at the trial or arose subsequent to the trial. “This court reviews rulings solely on the ground on which the party’s objection is based.” State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971); State v. Busque, 31 Conn. App. 120, 127, 623 A.2d 532, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993).
      Although the defendant did not seek State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or plain error review, we may consider an unpreserved claim under these alternative routes. See Practice Book § 4185; State v. Johnson, 26 Conn. App. 433, 438-39, 438 n.4, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992).

       Our Supreme Court has simply noted its approval of such a practice. See State v. Hopkins, 222 Conn. 117, 129, 609 A.2d 236 (1992).