author: PER CURIAM.

text:
    JOHN CLAUDIO v. BETTER BEDDING, INC., ET AL.
    (AC 27082)
    Schaller, Harper and Hennessy, Js.
    Argued September 18, 2006
    officially released September 25, 2007

      Clayton J. Quinn, for the appellant (named defendant).

      Nicholas W. Francis, for the appellee (plaintiff).
   Opinion

PER CURIAM.

This appeal arises out of a workers’ compensation action brought by the plaintiff, John Claudio, against the defendant Better Bedding, Inc. On appeal, the defendant claims that the workers’ compensation review board (board) affirmed improperly the determination of the workers’ compensation commissioner (commissioner) that the plaintiffs injury was compensable. On the basis of the procedural posture of the case, however, we dismiss the appeal for lack of a final judgment.

The plaintiffs workers’ compensation claim arose out of a fall that occurred while he was working in the defendant’s warehouse, storing mattresses. In a written decision dated February 11, 2004, the commissioner concluded that the plaintiffs injury was compensable, among other things. In addition, although it was not listed as an issue for the hearing, the commissioner found that the injuries sustained by the plaintiff “left him totally disabled, at least through the date of the last hearing, June 4, 2003.” On the basis of this finding, the commissioner “strongly recommended” that the defendant pay the plaintiffs medical bills and total temporary benefits from January 18, 2000, to June 4, 2003.

The defendant appealed from the commissioner’s decision to the board pursuant to the procedures set forth in General Statutes § 31-301 (a). In its opinion dated October 19, 2005, the board upheld the commissioner’s findings as to the compensability of the plaintiffs injuries, yet concluded that the commissioner improperly considered whether the plaintiffs injury rendered him disabled and the amount of compensation to which he was entitled. Accordingly, the board ordered the parties to disregard the commissioner’s findings as to plaintiffs disability status and announced that the statements concerning payment of the plaintiffs medical expenses were “without legal consequence.” The board did not, however, explicitly issue a remand ordering the commissioner to determine whether the plaintiffs injuries rendered him disabled and, if so, the proper amount of any damages award. This appeal followed.

It is well settled that a party must await the rendering of a final judgment by the board before appealing claims of law and fact to this court. See Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 293, 695 A.2d 1051 (1997). “The test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand; if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed. ” Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990).

In Hummel v. Marten Transport, Ltd., 282 Conn. 477, 923 A.2d 657 (2007) (en banc), our Supreme Court concluded that a judgment was interlocutory, and therefore not final, where the board upheld the commissioner’s determination regarding compensability but where further proceedings, involving the exercise of independent judgment, would be required to determine the amount of the award. As in this case, the board in Hummel did not issue an express remand. For purposes of final judgment, we find that case to be materially indistinguishable from the one at bar. Here, the board upheld the commissioner’s findings as to the compensability of the plaintiffs injuries, but reversed the commissioner’s findings as to the plaintiffs disability status and his recommendations as to the payment of total temporary benefits and bills resulting from the plaintiffs fall. Because the board’s decision left unresolved the question of whether the plaintiff was disabled, and if so, the appropriate amount of damages, further proceedings before the commissioner will be necessary. A determination of these remaining issues will require the commissioner to exercise independent judgment and discretion, as well as to consider additional evidence from the parties. Accordingly, under the principles established in Szudora and affirmed in Hummel, we conclude that this appeal must be dismissed for lack of a final judgment.

The appeal is dismissed.

       The workers’ compensation insurer for Better Bedding, Inc., Seaco Insurance Company, also is a defendant but is not a party to the appeal. We therefore refer in this opinion to Better Bedding, Inc., as the defendant.

       General Statutes § 31-301 (a) provides in relevant part: “At any time within twenty days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board . . .

       The Supreme Court stated that although it is preferable for the board to use explicit remand language, the court was “confident that parties ordinarily will have little difficulty in ascertaining when such proceedings are contemplated even if the board decision is silent in that regard.” Hummel v. Marten Transport, Ltd., supra, 282 Conn. 489.


source: Caselaw Access Project

author: MCDONALD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. GLENN L. DOYLE
    (AC 25460)
    Flynn, C. J., and DiPentima and McDonald, Js.

      Argued January 4
    officially released September 25, 2007

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Thomas R. Garcia, assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Glenn L. Doyle, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The defendant claims that (1) the trial court improperly denied his motion to suppress evidence of incriminating statements that he made to police because the statements were made during a custodial interrogation and he was not apprised of his Miranda rights, (2) his confession was not voluntary, and (3) the court improperly admitted evidence of his desire to consult with an attorney before signing a written statement and his refusal to give a written statement. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the issues on appeal. Before his trial, the defendant moved to suppress statements made during a May 23,2002 police interview, arguing that he was in custody at the time, was not given Miranda warnings and was misled as to the purpose of the interview.

The offenses concerning the defendant’s appeal were alleged to have occurred in the kitchen and in the bedroom in the victim’s home in East Hartford. The victim, bom January 23, 1991, reported that she was sexually assaulted there by the defendant. She stated that these incidents occurred between February, 2001, and February, 2002, once in the kitchen when the defendant had the victim manipulate his penis, and he ejaculated on her and her shirt, and again in the victim’s bedroom when the defendant touched her vaginal area. The victim described the defendant’s conduct to a friend, who told the friend’s mother, a child advocate. The child advocate notified the department of children and families, which in turn notified the police. The victim also alleged that sexual contact had occurred in Manchester. The police in East Hartford and Manchester began an investigation. After watching a taped interview of the victim, the police sought an interview with the defendant.

The record of the hearing on the defendant’s motion to suppress held before the trial reveals that Lieutenant Timothy McConville of the East Hartford police department telephoned the defendant and requested that he come to the East Hartford police station for an interview. McConville told the defendant that the police wanted to talk to him about his relationship with his sister’s family and the victim. The interview initially was scheduled for May 22,2002, but because the defendant’s daughter was hospitalized following an overdose of pills while at school, the interview was rescheduled for May 23,2002. At about 12 p.m. on May 23,2002, the defendant drove to the East Hartford police department where he was met in the lobby by McConville and Detective Wayne Mora of the Manchester police department. Both McConville and Mora were in civilian clothes, and Mora had a handgun in a belt holster. The officers accompanied the defendant to an interior room in the police department. The room was eight feet by fourteen feet, and the door was closed during the interview. McConville told the defendant that the interview would not take long and that he was free to leave at any time. McConville also told the defendant that he was not in custody, and no Miranda warnings were given during the interview.

McConville explained that he wanted to talk to the defendant about a situation at the victim’s home in East Hartford, which the defendant often visited. McConville then questioned the defendant about his relations with the victim and other family members. The defendant denied that anything inappropriate occurred. As the interview continued, the defendant related two incidents in which the victim had walked in on him, once while he was naked while urinating in a bathroom, and once while he was masturbating in a bedroom in the victim’s home. The defendant denied that any inappropriate behavior occurred at these times or at any other time.

McConville asked the defendant about an incident in the kitchen of the victim’s home when the defendant ejaculated on the victim. The defendant denied that this had occurred. At this point, McConville pointed to a plastic bag that McConville had placed in the interview room prior to the defendant’s arrival. The bag contained a shirt and was labeled “DNA Evidence.” There was no DNA evidence on the shirt. The defendant indicated that he did not recognize the shirt in the bag. McConville said the defendant should recognize it because it was the shirt that the victim was wearing when he ejaculated on her, leaving his DNA in the semen. Mora then asked the defendant if he remembered coming into the kitchen, walking to the victim, pulling out his penis and masturbating in front of the victim and ejaculating on her face. The defendant began crying and admitted that conduct, claiming that it was because the victim kept touching his leg with her foot. As he made this statement, the defendant lowered his head, crying and sobbing. He then asked if he was under arrest. McConville responded that he could leave at any time, that the officers wanted to find out what happened, and that he could leave right then and there. The defendant stated that his life was going well and that his relationship with his daughter had been good. He stated that he had impulses he could not control, a problem for which he needed help.

The detectives then asked the defendant whether any other similar situations had occurred. The defendant related another incident in the victim’s bedroom about six months before the police interview, when he rubbed and touched the victim’s backside, and may have brushed against her vagina and then ejaculated on her bedsheets. Mora and McConville previously had not mentioned a bedroom incident or questioned the defendant about it, and the victim’s description of the bedroom incident varied from the defendant’s version. Mora also asked the defendant about a similar incident at a barbeque in Manchester. The defendant indicated that he did not remember and had been drinking that day.

The detectives then asked the defendant to sign a written statement, and the defendant indicated that he wanted to speak with a lawyer first. McConville told the defendant he was free to leave and asked the defendant to call after speaking to a lawyer to arrange a time for the written statement. Throughout the interview, the defendant was not handcuffed or physically restrained. McConville then went with the defendant to the lobby. The defendant drove away at approximately 1:10 p.m. and later called to say that he would not give a written statement. He was not arrested until June 13, 2002.

After hearing testimony from McConville and Mora, the court denied the motion to suppress before trial, finding that there had been no custodial interrogation. The court found that the defendant was not given Miranda warnings, no arrest was made at the time of the interview and the defendant was not actively misled as to the purpose of the interview. The court concluded that no reasonable person could have thought that he was in custody at the time the statements were made, where the defendant knew he could leave, was told that he could leave more than once and did leave when he indicated that he was going to talk to a lawyer before reducing his inculpatory statements to writing. The court also concluded that the defendant’s statements were freely and voluntarily made with a full understanding of his ability to leave at any time.

At the defendant’s trial, the state introduced evidence that the defendant was arrested on June 13, 2002, by the Manchester police. At that time, he was informed of his Miranda rights and waived them. The defendant then stated that he had earlier confessed to the kitchen incident in East Hartford, but did not remember confessing to the bedroom incident in East Hartford.

At the trial, the defendant testified and described the circumstances of his May 23, 2002 interview in East Hartford. He stated that he did not believe the police claim that his DNA was found on the victim’s shirt because, if true, the police would not even be interrogating him. The defendant also testified that he had previous felony convictions.

I

The defendant claims that the court improperly determined that he was not in custody when he initially was questioned at the East Hartford police station on May 23, 2002, without Miranda warnings. We disagree.

Our Supreme Court has stated: “Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation.” (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 757, 670 A.2d 276 (1996); see also Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994) (per curiam). We first observe that “[t]he defendant bears the burden of proving custodial interrogation.” State v. Pinder, 250 Conn. 385, 409, 736 A.2d 857 (1999).

“ [Although the circumstances of each case must certainly influence a determination of whether a suspect is ‘in custody’ for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (Internal quotation marks omitted.) State v. Atkinson, supra, 235 Conn. 757; see Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); State v. Pinder, supra, 250 Conn. 409.

“A person is in custody only if, in view of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. United States v. Mendenhall, 446 U.S 544, 553-54, 100 S. Ct. 1870, 64 L. Ed. 2d 497, reh. denied, 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Pinder, supra, 250 Conn. 409. “[N]o definitive list of factors governs a determination of whether a reasonable person in the defendant’s position would have believed that he or she was in custody.” (Internal quotation marks omitted.) State v. Atkinson, supra, 235 Conn. 758. Generally, a defendant’s claim that he was entitled to Miranda warnings on the basis of a custodial interrogation will be foreclosed where he voluntarily went to the police station and was free to leave at any time. See State v. Turner, 267 Conn. 414, 436, 838 A.2d 947, cert. denied, 543 U.S. 809, 125 S. Ct. 36, 160 L. Ed. 2d 12 (2004). “[W]hen [an] individual has not been arrested, a finding of custody requires some indication that the officer would not have heeded his or her request to depart.” (Emphasis added; internal quotation marks omitted.) State v. Atkinson, supra, 760 n.18; State v. Torres, 85 Conn. App. 303, 311, 858 A.2d 776, cert. denied, 271 Conn. 947, 861 A.2d 1179 (2004). In this respect, “whether interrogating officers have focused their suspicions upon the individual being questioned ... is not relevant for purposes of Miranda.” (Internal quotation marks omitted.) State v. Turner, supra, 442 n.17, quoting Stansbury v. California, supra, 511 U.S. 326.

Our Supreme Court has stated that appellate review of this issue requires us to conduct a plenary, scrupulous examination of the record in order to make an independent determination on the ultimate issue of custody, but we must defer to the trial court’s historical findings of fact unless they are clearly erroneous. State v. Finder, supra, 250 Conn. 410-12; see also State v. Lapointe, 237 Conn. 694, 725, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996).

Circumstances similar to the present case arose in State v. Turner, supra, 267 Conn. 438, in which “the defendant voluntarily went to the police station. He was told several times that he was not under arrest. He was told several times that he was free to leave at any time, and, in fact, he did leave as soon as [police] had finished questioning him.” On the basis of those facts, our Supreme Court held that any appeal claiming Miranda warnings were required would have been frivolous. Id., 439.

The defendant argues that the use of the false DNA evidence during the interview created a custodial situation requiring Miranda warnings. In support of this argument the defendant cites Tankleff v. Sendowski, 135 F.3d 235 (2d Cir. 1998). In that case, the petitioner was told untruthfully that his dying father had recovered from a coma and named him as his assailant, a kind of coercive pressure that, in the circumstances, would cause one to believe he was not free to end police interrogation by leaving. Id., 244. The United States Court of Appeals for the Second Circuit held that the petitioner was in custody and should have been advised of his Miranda rights at that time. Id. Contrary to the circumstances in Tankleff, in this case, the defendant was told he could leave the police station at any time, and he was not brought to the police station by the officers or subjected to hostile questioning for five hours. Cf. id., 240-41. Referring to Tankleff, the Second Circuit in United States v. Newton, 369 F.3d 659, 677 (2d Cir.), cert. denied, 543 U.S. 947, 125 S. Ct. 371, 160 L. Ed. 2d 262 (2004), stated that although coercive pressures might lead one to believe he was not free to leave police interrogation, the ultimate inquiiy is whether there was a formal arrest or restraint of the degree associated with a formal arrest.

This court has considered and rejected the argument that a ruse by police renders the interview custodial. In State v. DeJesus, 91 Conn. App. 47, 82, 880 A.2d 910 (2005), cert. granted on other grounds, 279 Conn. 912, 903 A.2d 658 (2006), the defendant voluntarily agreed to go to the police station to answer questions, was told by police that he was free to leave at any time and was not restrained in any way. During the interview, the police officer posed a hypothetical to the defendant: “If [police] told [the defendant] that the police had some physical evidence regarding the matter, would the defendant change his mind about whether he had engaged in any sexual contact with the victim?” Id., 79. After this question, the defendant recanted his denials and admitted having had sexual involvement with the victim. Id. We held that the defendant’s statements were admissible because the defendant was not in custody at that time, and, therefore, Miranda warnings were not required. Id., 83.

In this case, the record reveals that the defendant drove to the police station. There, the detectives told him several times during the approximately one hour interview that he was not under arrest and could leave when he wanted to do so. The interview took place in an interior, closed room in the police station with the door unlocked, and the defendant was never physically restrained in any way. At the end of the interview, the defendant left the police station by himself. We conclude that a reasonable person would not have believed he was not free to leave because he did, in fact, leave.

Throughout the interview, the defendant was not handcuffed or physically restrained in any way or ordered into a confined area such as a police cruiser. See State v. Atkinson, supra, 235 Conn. 760; State v. Northrop, 213 Conn. 405, 413-15, 568 A.2d 439 (1990). He also was repeatedly told he was free to leave at any time. See State v. Northrop, supra, 415. The ruse of the DNA evidence was the only false representation by the police during the interview. See State v. Lapointe, supra, 237 Conn. 706 n.16. Finally, the defendant had prior experience with law enforcement. See State v. Pittman, 209 Conn. 596, 607, 553 A.2d 155 (1989). The record also establishes that before leaving the police station, the defendant was asked to reduce his statements to writing and that he stated that he would consult with an attorney before doing so.

The defendant testified at trial as to the circumstances of his confession and stated that he did not believe the police claim that his DNA was found on the victim’s shirt because, if true, the police “would not even be interrogating him.” After testifying that he had a felony record, he reasoned that if the police had such evidence, they would not have attempted to interview him, but simply would have arrested him. Considering that testimony, the use of the DNA ruse did not change the nature of the interrogation to custodial interrogation. We conclude that there was substantial evidence supporting the court’s conclusion that the defendant was not in custody. Accordingly, we conclude that the court did not improperly admit the defendant’s inculpatory statements.

Finally, we note that the defendant’s subsequent confession admitted at his trial rendered any alleged error harmless. In considering this issue, we turn to evidence presented during the defendant’s trial. See State v. Lapointe, supra, 237 Conn. 704 n.15. At the trial, there was evidence that the police arrested the defendant on June 13, 2002, and advised him of his Miranda rights, which he waived, and that thereafter he stated that he had confessed to the kitchen incident, but could not recall confessing to the bedroom incident. The defendant on appeal does not argue that the June 13, 2002 statements were inadmissible, and those statements render the admission of his prior oral statement as to the kitchen incident harmless. See United States v. Newton, supra, 369 F.3d 679-80; Tankleff v. Sendowski, supra, 135 F.3d 244-45. In Tankleff because the petitioner was advised of his Miranda rights shortly after his first confession, waived those rights and then repeated his confession, the Second Circuit upheld the admission of his later confession and upheld his conviction in part. Tankleff v. Sendowski, supra, 244-46.

II

The defendant next claims that his confession was involuntary because the circumstances of the interview overbore his will. He argues that the ruse of representing to him that police had DNA evidence linking him to a crime forced his involuntary confession. We disagree.

Our standard of review for a constitutional claim of error as to the voluntariness of a confession is plenary. State v. Pinder, supra, 250 Conn. 421. “A trial court determines the voluntariness of a confession on the basis of the circumstances. The factors may include the age of the accused, his level of education, his intelligence, whether he was advised of his constitutional rights, the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep. . . . Other factors are the accused’s prior interaction with the criminal justice system . . . and voluntary use of illegal drugs or alcohol.” (Citations omitted; internal quotation marks omitted.) State v. Spyke, 68 Conn. App. 97, 101, 792 A.2d 93, cert. denied, 261 Conn. 909, 804 A.2d 214 (2002). “[Statements by the police designed to lead a suspect to believe that the case against him is strong are common investigative techniques and would rarely, if ever, be sufficient to overbear the defendant’s will and to bring about a confession to a serious crime that is not freely self-determined . . . .” State v. Lapointe, supra, 237 Conn. 732; see Frazier v. Cupp, 394 U.S. 731, 739-40, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969). Our Supreme Court recently in State v. Lawrence, 282 Conn. 141, 176, 920 A.2d 236 (2007), cited Lapointe to this effect.

Upon our review of the whole record, there is no indication that the police techniques used here were sufficient to overbear the defendant’s will. The defendant was a sober adult who drove to the police station at the detective’s request. The interview lasted only slightly more than one hour and took place in the middle of the day. As pointed out previously, the defendant testified at trial that he did not believe the statements by the police that there was DNA evidence linking him to a crime. He had prior experience with law enforcement and refused a police request to put his confession in writing without first speaking with an attorney. These facts clearly demonstrate that the defendant’s will was not overborne.

The defendant also contends, as he testified, that his fragile emotional state, brought on by his daughter’s recent overdose, was an additional factor that forced an involuntary confession. In considering all the factual circumstances, the court may “consider the psychological impact on an accused and evaluate the legal significance of how an accused reacted.” State v. Madera, 210 Conn. 22, 41, 554 A.2d 263 (1989). In this case, there is no indication that the defendant’s emotional state was such that his will was overborne by police questioning. Accordingly, we conclude that it was not improper to admit the defendant’s voluntary confession into evidence.

Ill

The defendant claims that the court improperly admitted evidence before the jury that he had requested to speak with an attorney before he would provide written admissions and that he subsequently refused to sign a written statement. He argues that Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), was thereby violated. Our Supreme Court in State v. Leecan, 198 Conn. 517, 521, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), restricted the application of Doyle to post-Miranda warning silence as has the United States Supreme Court in Jenkins v. Anderson, 447 U.S. 231, 235, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980). The defendant recognizes those precedents would uphold the court’s ruling, but raises the issue for subsequent higher court review. We accordingly reject this argument.

The defendant also makes an evidentiary argument against the admission of this silence evidence. Before the trial court, he claimed that the evidence was “inappropriate, irrelevant [and] unnecessary.” The defendant does not argue on appeal that the testimony was irrelevant, and our Supreme Court has held that even after Miranda warnings, evidence of the defendant’s refusal to sign a written statement and his request to consult with counsel after an oral admission is not inadmissible if offered for a permissible purpose and not to establish his guilt through his invocation of his fifth amendment rights. See State v. Cabral, 275 Conn. 514, 520-28, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600 (2005). The evidence was presented on cross-examination of the defendant after he testified on direct examination that he felt compelled to give a false confession in order to end the police interview and care for his daughter. The fact that he did not give a written statement was raised only to ask the defendant if he had told McConville that the May 23, 2002 oral statement was untrue when the defendant called to tell McConville that he would not sign a written statement. See State v. Hull, 210 Conn. 481, 492-95, 556 A.2d 154 (1989). Even if we assume arguendo there is merit to the defendant’s argument, it is clear that admission of the evidence was harmless. The case against the defendant was strong in view of his admissions. The prosecutor did not highlight the silence evidence in summation to the jury except to point out that it bore on the defendant’s claim of compulsion. We accordingly reject the defendant’s argument.

The judgment is affirmed.

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (“[pjrior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed”).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       The victim also reported two additional incidents, one in which the defendant placed his penis in her mouth at the East Hartford home and another in Manchester in which he touched her vaginal area. The defendant thereafter was charged with risk of injury to a child and sexual assault in the third degree in connection with the Manchester incident, and sexual assault in the first degree and risk of injury to a child in connection with the East Hartford incident. He was found not guilty.

       As to custody, the defendant urges us to adopt a different standard under the Connecticut constitution than has been adopted under the United States constitution. This standard would require warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), whenever one is subject to police interrogation. After careful consideration of the defendant’s arguments under the analytical framework described in State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992), we decline to do so. “In order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach ... (2) holdings and dicta of this court, and the Appellate Court ... (3) federal precedent ... (4) sister state decisions or sibling approach ... (5) the historical approach, including the historical constitutional setting and the debates of the framers . . . and (6) economic/sociological considerations.” (Citations omitted.) Id.
      Arricie first, § 8, of the Connecticut constitution provides in relevant part that “[n]o person shall be compelled to give evidence against himself . . . .” The fifth amendment to the United States constitution provides in relevant part that “[n]o person shall ... be compelled in any criminal case to be a witness against himself . . . .” The defendant argues that by omitting the phrase “any criminal case,” the drafters of the Connecticut constitution intended these protections to apply beyond a criminal proceeding that is initiated by arrest. The argument is unpersuasive because the first sentence of article first, § 8, provides in relevant part: “In all criminal prosecutions . . . .” The provisions of article first, § 8, therefore, prescribe rights arising in a criminal prosecution.
      Our Supreme Court and this court have not extended the application of Miranda warnings beyond what is provided by the United States constitution. “Miranda, warnings are independently required under article first, § 8, of the Connecticut constitution to the same extent that they are required under the federal constitution. . . . Miranda warnings, therefore, are required only for a custodial interrogation.” (Citation omitted.) State v. Williams, 227 Conn. 101, 115, 629 A.2d 402 (1993).
      The defendant argues that a sister state, Oregon, has extended Miranda protections beyond custodial interrogations under its state constitution. See State v. Magee, 304 Or. 261, 265, 744 P.2d 250 (1987) (per curiam). In Magee, the Oregon Supreme Court adopted a rule that “before questioning, police must give Miranda, warnings to a person who is in full custody or in circumstances that create a setting which judges would and officers should recognize to be compelling.” (Internal quotation marks omitted.) State v. Roble-Baker, 340 Or. 631, 638, 136 P.3d 22 (2006); see also State v. Smith, 310 Or. 1, 7, 791 P.2d 836 (1990); State v. Magee, supra, 265. The circumstances of Magee, however, are unlike the present case because in Magee, the defendant was told by police that he was not free to leave the police station prior to interrogation. State v. Magee, supra, 263. We also note that Oregon’s position has not been adopted by any other state. See, e.g., State v. R. B., Docket No. 41618-9-1, 1998 Wash. App. LEXIS 1482, *10 (Wash. App. October 19, 1998).
      Finally, we see no overriding policy reason for the change proposed by the defendant. “Miranda was grounded squarely in the Court’s explicit and detailed assessment of the peculiar nature and setting of . . . in-custody interrogation .... It was the compulsive aspect of custodial interrogation . . . which led the court to impose the Miranda requirements with regard to custodial questioning.” (Citation omitted; internal quotation marks omitted.) Beckwith v. United States, 425 U.S. 341, 346-47, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976). We therefore decline, under the Connecticut constitution, to extend the warnings required by Miranda to a noncustodial police interview.

       The defendant stated, during the court’s oral ruling on the motion to suppress, that he had not raised any claim regarding voluntariness. Nonetheless, the court ruled that “the statements were freely, voluntarily made, with a full understanding of the ability to leave at any time.” Because “[t]his 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); the claim is unpreserved. The state does not argue, however, that the claim was unpreserved, and we therefore review this claim.


author: DiPENTIMA, J.

text:
    LEANNA PUTMAN v. CHRISTOPHER B. KENNEDY
    (AC 25425)
    Flynn, C. J., and DiPentima and West, Js.
    Argued May 21
    officially released September 25, 2007

      Susan M. Phillips, for the appellant (defendant).

      Susan Boyan, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The sole claim in this appeal requires us to examine the breadth of General Statutes § 46b-15. The defendant, Christopher B. Kennedy, appeals from the judgment of the trial court granting the application for a restraining order, filed by the plaintiff, Leanna Putman, pursuant to § 46b-15, for the protection of their two minor daughters. The defendant claims that the court’s order constituted an abuse of its discretion because there was no factual basis from which the court could have found that the defendant presented a continuous threat of present physical pain or physical injury to his daughters within the meaning of the statute. We agree with the defendant and reverse the judgment of the trial court.

The record reflects the following facts and procedural history. Following the dissolution of the parties’ marriage in May, 2002, the court granted a motion filed by the plaintiff in February, 2003, for sole custody of the parties’ three minor children, subject to reasonable visitation by the defendant. On January 8, 2004, the trial court, Scholl J., issued an ex parte restraining order, pursuant to § 46b-15, against the defendant for the protection of his minor children. The court additionally suspended his visitation rights. Following three days of hearings, the court, J. Kaplan, J., continued the restraining order as to the son, including the suspension of his visitation, for six months and entered an order precluding the defendant from attending the son’s school conferences during that time. The court reinstated the defendant’s visitation with the daughters.

On March 19, 2004, the plaintiff filed another application for an ex parte restraining order against the defendant on behalf of her two minor daughters. The plaintiffs affidavit, filed with her application, included the following allegations about the events of the previous few days: On March 16, 2004, the defendant filed an application for an ex parte restraining order against the plaintiff in the Hartford Superior Court, which contained false statements and did not disclose that there was a restraining order in effect against the defendant in another judicial district. The restraining order was granted, and copies were sent to the children’s schools. On March 18, 2004, the defendant picked up the daughters from their school, in violation of the court-ordered visitation schedule. The defendant also attempted to pick up his son, in violation of the restraining order against him. The son’s school, faced with conflicting restraining orders, called the police to resolve the situation. The Hartford order against the plaintiff eventually was vacated, and all three children were returned to the custody of the plaintiff.

On the basis of the plaintiffs affidavit, the court, J. Kaplan J., issued an ex parte restraining order against the defendant and additionally ordered him not to enter the children’s school. Pursuant to the dictates of § 46b-15, the court scheduled a hearing for April 5, 2004.

At the hearing before the court, Hon. Lawrence C. Klaczak, judge trial referee, the plaintiff testified that she was very concerned for the safety of her daughters and that she believed “the only thing that stopped something bad from happening was that [the defendant] was not able to get a hold of [the son].” She also testified that she feared the daughters were in physical danger on the basis of the defendant’s prior physical altercation with the son, and her belief that the defendant is unstable and willing to go to any lengths to punish her for the divorce.

At the conclusion of the hearing, the court continued the restraining order for a period of six months. In its oral ruling, the court focused on the manner in which the defendant dealt with the custody issue, i.e., by going to a different judicial district and obtaining a contradictory restraining order, which the court characterized as frightening. The court additionally stated that it was greatly concerned that the children might have been endangered as a result of the defendant’s actions and that there was instability in the defendant’s life. The defendant appealed from the judgment granting the plaintiff’s application for a restraining order on May 6, 2004.

While the defendant’s appeal was pending, the restraining order expired by its own term. Accordingly, this court dismissed the defendant’s appeal as moot. After granting certification to appeal limited to the issue of mootness, our Supreme Court reversed that decision and remanded the case to this court for a decision on the merits. See Putman v. Kennedy, 279 Conn. 162, 900 A.2d 1256 (2006). On November 2, 2006, this court granted the defendant’s motion to file supplemental briefs, which both parties filed.

The defendant’s claim requires us to interpret § 46b-15. “Statutory construction is a question of law and, therefore, our review is plenary.” (Internal quotation marks omitted.) State v. Strich, 99 Conn. App. 611, 633, 915 A.2d 891, cert. denied, 282 Conn. 907, 920 A.2d 310 (2007). “When construing a statute, [ojur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007).

General Statutes § 46b-15 (a) provides in relevant part: “Any family or household member . . . who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member . . . may make an application to the Superior Court for relief under this section.”

We agree with the defendant that the court improperly issued the restraining order under § 46b-15. Although the court had a reasonable concern that the defendant’s actions may have endangered the daughters, that concern does not fall within the plain meaning of the statute. Section 46b-15 specifically requires a direct causal link between the defendant and the continuous threat of physical harm to the subject. See Putman v. Kennedy, supra, 279 Conn. 171 (“domestic violence restraining orders will not issue in the absence of the showing of a threat of violence”). The legislature promulgated § 46b-15 to provide an expeditious means of relief for abuse victims. See id., 172. It is not a statute to provide a remedy in every custody and visitation dispute, however urgent. There are other more appropriate avenues to seek relief in such situations using the provisions of General Statutes § 46b-56, which provide for orders of custody, visitation and other matters related to the best interests of the children.

Here, there was no evidence to support a conclusion that the daughters were subjected to a continuous threat of present physical pain or physical injury. The court expressly stated that it was most concerned with the defendant’s actions in obtaining a restraining order in another judicial district to countermand the one extant against him. Such actions, while improper, do not provide the basis on which to determine that the daughters were in present physical danger within the meaning of § 46b-15. We conclude that a restraining order issued pursuant to § 46b-15 was not the proper avenue for relief in this situation. Nothing in our conclusion, however, should be construed as condoning the defendant’s behavior or limiting the plaintiff from pursuing other forms of legal action on the basis of these events.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs application for a restraining order.

In this opinion the other judges concurred.

       General Statutes § 46b-15 provides in relevant part: “(a) Any family or household member . . . who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member . . . may make an application to the Superior Court for relief under this section.
      “(b) . . . Upon receipt of the application the court shall order that a hearing on the application be held not later than fourteen days from the date of the order. The court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant and such dependent children or other persons as the court sees fit. Such order may include temporary child custody or visitation rights and such relief may include but is not limited to an order enjoining the respondent from (1) imposing any restraint upon the person or liberty of the applicant; (2) threatening, harassing, assaulting, molesting, sexually assaulting or attacking the applicant; or (3) entering the family dwelling or the dwelling of the applicant. If an applicant alleges an immediate and present physical danger to the applicant, the court may issue an ex parte order granting such relief as it deems appropriate. . . .”

       The defendant appealed to this court from the judgment issuing that order, and we affirmed the judgment. See Putman v. Kennedy, 104 Conn. App. 26, 932 A.2d 434 (2007).

       The order restraining the defendant as to his minor son was still in effect at that time.

       On March 29, 2004, the defendant filed a motion to recuse Judge Kaplan. The trial court did not take action on that motion.

       The court stated: “I can tell you what you did in Hartford causes me great concern. There was a restraining order against you issued by Judge Kaplan. [You] went to Hartford. You got a restraining order ex parte there, knowing that there was one here, and you got one in direct conflict with the one that was here, by not providing information to the court in Hartford.”

       The defendant had also filed, on April 21, 2004, a motion for mistrial, a motion to reargue and a motion for clarification, all of which were denied by the court on April 26, 2004.

       On November 17, 2004, the parties appeared before this court to argue whether the appeal was rendered moot by the expiration of the order.

       Our Supreme Court reasoned that the adverse collateral consequences to a person subject to a restraining order warranted a decision even if the order had expired. Putman v. Kennedy, 279 Conn. 162, 175-76, 900 A.2d 1256 (2006).

       We note that under General Statutes § 46b-15 (g), a motion for contempt for violation of a restraining order is also available.


text:
    LEANNA PUTMAN v. CHRISTOPHER B. KENNEDY
    (AC 25220)
    Flynn, C. J., and DiPentima and West, Js.

      Argued May 21
    officially released September 25, 2007

      Susan M. Phillips, for the appellant (defendant).

      Susan Boyan, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant, Christopher B. Kennedy, appeals from the judgment of the trial court granting the application of the plaintiff, Leanna Putman, for a restraining order against the defendant for the protection of their minor son, pursuant to General Statutes § 46b-15. The defendant claims that the court’s order constituted an abuse of its discretion because there was no factual basis from which the court could have found that the defendant presented a continuous threat of present physical pain or physical injury to his son as required by the statute. We affirm the judgment of the trial court.

The record reflects the following facts and procedural history, which inform our disposition of the defendant’s appeal. Following the dissolution of the parties’ marriage in May, 2002, the court granted a motion filed by the plaintiff in February, 2003, for sole custody of the parties’ three minor children, subject to reasonable visitation by the defendant. On December 31, 2003, at the conclusion of the children’s visitation with the defendant, a dispute arose between the defendant and his son, resulting in a physical altercation between them.

On January 7, 2004, the plaintiff filed an application on behalf of herself, her boyfriend and her three minor children for an ex parte restraining order, pursuant to § 46b-15, on the basis of the December 31, 2003 events. The application also requested the suspension of the defendant’s visitation rights. The next day, the court, Scholl, J., granted the plaintiffs requested ex parte relief only as to the minor children and, in accordance with the dictates of § 45b-15, scheduled a hearing for January 20, 2004. The court, J. Kaplan, J., held three days of hearings from January 20 through 22, 2004.

The defendant and the son both testified that as the children were preparing to return to the plaintiffs house, a dispute arose between them over some objects that the son had packed to take to her house. The son took the bag of items to the car, despite the defendant’s instruction not to do so. The defendant followed the son outside, reached past him to get the items out of the car and threw them onto the porch. The son hit the car window and took a step toward the porch to retrieve the items. At this point, the testimony of the defendant and the son diverged.

According to the defendant, he lowered the son to the ground in order to restrain him from hurting himself or the defendant and to “deescalate the situation.” The defendant further testified that he considered his actions to be good parenting. The son could not recall exactly how he ended up on the ground, but he believed that the defendant had caused him to fall. The son further testified that while the defendant was pinning him down on the ground, he reached up and grabbed the defendant by the collar, ripping the defendant’s shirt in the process. According to the son, the defendant also slapped him across the face, causing the younger daughter, who was ten years old at the time, to exit the car and shove the defendant, yelling at him to get off the son. The son further testified that as a result of the physical altercation with the defendant, he had a swollen ear and marks on his chest and neck area. In response to the defendant’s question, the son claimed that he was not afraid of the defendant but also stated that for the time being, he did not want a relationship with him. At the conclusion of the hearing, the court found that the defendant physically had thrown the son to the ground and that he posed a continuous threat of present physical pain or physical injury to the son. Accordingly, the court continued the restraining order as to the son, including the suspension of his visitation, for six months and entered an order precluding the defendant from attending the son’s school conferences during that time. The court reinstated the defendant’s visitation with the daughters.

On January 30, 2004, the defendant filed a postjudgment motion to reargue. The court, J. Kaplan, J., held a hearing on February 26, at the conclusion of which it denied the motion. On March 8, the defendant filed a motion for clarification postjudgment, which was denied on March 22. The defendant appealed on March 9 from the judgment modifying the restraining order.

While the defendant’s appeal was pending, the restraining order expired by its own term. Accordingly, this court dismissed the appeal as moot. After granting certification to appeal limited to the issue of mootness, our Supreme Court reversed that decision and remanded the case to this court for a decision on the merits. See Putman v. Kennedy, 279 Conn. 162, 900 A.2d 1256 (2006). On November 2, 2006, this court granted the defendant’s motion to file supplemental briefs, which both parties filed.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.” (Internal quotation marks omitted.) Weinstein v. Weinstein, 280 Conn. 764, 774, 911 A.2d 1077 (2007). Likewise, “[a] prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.” (Internal quotation marks omitted.) Raph v. Vogeler, 45 Conn. App. 56, 63, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997).

“In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 280 Conn. 775.

The defendant’s claim also requires us to interpret § 46b-15. “Statutory construction is a question of law and, therefore, our review is plenary.” (Internal quotation marks omitted.) State v. Strich, 99 Conn. App. 611, 633, 915 A.2d 891, cert. denied, 282 Conn. 907, 920 A.2d 310 (2007). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Pizzuto v. Commissioner of Mental Retardation, 283 Conn. 257, 264-65, 927 A.2d 811 (2007); see Gervais v. Gervais, 91 Conn. App. 840, 849-50, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).

General Statutes § 46b-15 (a) provides in relevant part: “Any family or household member . . . who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member . . . may make an application to the Superior Court for relief under this section.”

The plain meaning of the language in § 46b-15 requires a continuous threat of present physical pain or physical injury, which the court found existed in this case. The defendant challenges that conclusion, as well as its factual underpinnings. We conclude, however, that the court’s findings are supported by the record, and it did not abuse its discretion in issuing the restraining order.

The defendant first asserts that the court’s finding that he had thrown his son to the ground was clearly erroneous because neither the defendant, nor his son, specifically testified as to that occurrence. The defendant’s argument lacks merit.

The court had before it the son’s testimony that he did not recall exactly how he ended up on the ground, but that he believed that the defendant had caused him to fall. The son further testified that he did recall that the defendant pinned him down and slapped him across the face. Also before the court were the defendant’s alternating explanations that the altercation with his son was an accident or that he merely lowered his son to the ground for his son’s protection. The court specifically chose not to credit the defendant’s explanation and, instead, inferred from the defendant’s testimony that the defendant had physically grabbed his son and thrown him to the ground. As the trier of fact, the court has a duty to draw reasonable inferences from the testimony and other evidence. Levy, Miller, Maretz, LLC v. Vuoso, 70 Conn. App. 124, 130, 797 A.2d 574 (2002). The trier also serves as the ultimate judge of the credibility of the witnesses and deteimines the weight to be accorded their testimony. See State v. Hawthorne, 176 Conn. 367, 371, 407 A.2d 1001 (1978). Accordingly, the court’s finding that the defendant had thrown his son to the ground was not clearly erroneous.

The defendant further challenges the court’s conclusion that he posed a continuous threat of physical pain or physical injury to his son. The defendant argues that the altercation was an isolated occurrence, for which the defendant was partially to blame, that there was no prior history of violence on the defendant’s part and that when asked at the hearing, his son stated that he was not afraid of the defendant.

The court reached its conclusion that the defendant posed a continuous threat of physical pain or physical injury to his son on the basis of its explicit finding that the defendant had committed a violent, aggressive act that resulted in physical injury to his son, and on the defendant’s refusal to accept responsibility for that act, or to acknowledge that he should have handled the situation differently. On the contrary, the defendant blamed his son as the aggressor, testified that he believed that such force was necessary and that stopping a child from disobeying is good parenting, even if it involves physical force. Nothing in the language of § 46b-15 prevents the court from considering this evidence in its assessment of whether the defendant posed a continuous threat to his son, nor do we consider that evidence to be irrelevant on the issue.

Furthermore, neither a pattern of abuse nor the son’s subjective fear of the defendant is a requirement for the finding of a continuous threat. Had the legislature intended these factors to be requirements, the statute would have stated so explicitly. See Farmers Texas County Mutual v. Hertz Corp., 282 Conn. 535, 546-47, 923 A.2d 673 (2007) (“[i]t is well settled that we decline to engraft additional requirements onto clear statutory language” [internal quotation marks omitted]); see also Fedus v. Planning & Zoning Commission, 278 Conn. 751, 770 n.17, 900 A.2d 1 (2006) (noting that legislature knows how to enact legislation consistent with its intent). We further think that although both factors are appropriate for the court’s consideration, neither can be dispositive of the question of whether a continuous threat exists. It would defy the prophylactic purpose of the statute to impose an absolute bar on relief until the person for whom protection was sought had suffered multiple physical abuses.

Similarly, we would not hold that absent a specific statement of fear on the part of a minor, the court is without authority to find that he was subject to a continuous threat of present physical pain or physical injury. We are very reluctant to restrict the necessarily broad discretion trial courts must retain in dealing with such sensitive and fact specific matters. Instead, like any other testimony, the son’s statement regarding his fear should be weighed and assessed by the court. In doing so, the court was free to consider his age, his demeanor, the rest of his testimony and all of the other evidence. The court then could decide whether, in light of the totality of the evidence, there was a continuous threat of physical harm or physical injury.

After a careful review of the record, we conclude that the factual findings of the court are supported by the record and that it reasonably concluded that the defendant posed a continuous threat of present physical pain or physical injury to his minor son within the meaning of § 46b-15.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-15 provides in relevant part: “(a) Any family or household member . . . who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member . . . may make an application to the Superior Court for relief under this section.
      “(b) . . . Upon receipt of the application the court shall order that a hearing on the application be held not later than fourteen days from the date of the order. The court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant and such dependent children or other persons as the court sees fit. Such order may include temporary child custody or visitation rights and such relief may include but is not limited to an order eiyoining the respondent from (1) imposing any restraint upon the person or liberty of the applicant; (2) threatening, harassing, assaulting, molesting, sexually assaulting or attacking the applicant; or (3) entering the family dwelling or the dwelling of the applicant. If an applicant alleges an immediate and present physical danger to the applicant, the court may issue an ex parte order granting such relief as it deems appropriate. . . .”

       On January 20,2004, the defendant filed a motion to vacate the restraining order, claiming that no allegations had been made as to the plaintiff, her boyfriend or the two minor daughters.

       On November 17, 2004, the parties appeared before this court to argue whether the appeal was rendered moot by the expiration of the order.

       Our Supreme Court reasoned that the adverse collateral consequences to a person subject to a restraining order warranted a decision even if the order had expired. Putman v. Kennedy, 279 Conn. 162, 175-76, 900 A.2d 1256 (2006).


author: WEST, J.

text:
    PAULETTE N. TERIO, ADMINISTRATRIX (ESTATE OF PHILIP S. TERIO), ET AL. v. MYL RAMA
    (AC 27103)
    Schaller, DiPentima and West, Js.

      Argued March 15
    officially released September 25, 2007

      Ernest F. Teitell, with whom were Paul A. Slager and Amanda R. Whitman, for the appellants (plaintiffs).

      Charles W. Fleischmann, for the appellee (defendant).
   Opinion

WEST, J.

The plaintiff, Paulette N. Terio, individually and as administratrix of the estate of her husband, Philip S. Terio (decedent), appeals from the judgment of the trial court in favor of the defendant physician, Myl Rama, a general practitioner, rendered after a jury trial in this medical malpractice action. On appeal, the plaintiff challenges the propriety of several of the court’s evidentiary rulings. On the basis of those claimed improprieties, the plaintiff contends that the court improperly denied her motion to set aside the verdict and for a new trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. In the summer of 2001, the decedent was to participate in a Boy Scout camping event with his two children and needed to have a medical evaluation form completed by a physician. On June 25, 2001, the decedent went to the defendant’s practice and asked if the form could be completed by the defendant without an examination. The defendant instructed his staff to schedule an appointment that same afternoon so that he could examine the decedent. The decedent came back in the afternoon and was examined by the defendant. That examination consisted of the decedent’s vital signs being taken by both staff and the defendant, and a medical history, which revealed that the decedent was an active person, generally. At the time of the examination, the decedent displayed no symptoms of heart trouble such as shortness of breath, chest pains or dizzy spells. The examination included a cardiovascular assessment to determine risk factors for heart disease, but an electrocardiogram (EKG) was not done at the examination. On the basis of that examination, the defendant found no reason to limit the decedent’s physical activity and indicated such on the Boy Scout medical evaluation form. At the time of the examination, the decedent was given a laboratory slip for routine blood work. Three or four days later, the laboratory results showed that the decedent had high cholesterol. The defendant left several messages for the decedent and finally was able to speak with him. The defendant advised the decedent that he needed to begin treating the high cholesterol with medication and to return for further testing, but the decedent refused to do so. The decedent died in October, 2001, due to ischemic heart disease. The plaintiff brought this medical malpractice action against the defendant, claiming, inter alia, that the defendant failed to examine, to evaluate and to treat the decedent’s medical condition adequately. The defendant asserted that the examination was not a full, comprehensive examination, but merely a “camp physical.” The issue for the jury was whether the defendant had adhered to the relevant standard of care when, in the course of performing the examination, he chose not to perform an EKG. A trial was held, at the conclusion of which the jury found in favor of the defendant. The plaintiff thereafter filed a motion to set aside the verdict and for a new trial on the ground, inter alia, that the court improperly excluded certain evidence establishing that the defendant billed the decedent, through his insurance carrier, for the cost of a full, comprehensive examination. By memorandum of decision filed October 25, 2005, the court denied the motion and rendered judgment accordingly. On appeal, the plaintiff challenges the court’s evidentiary ruling on that singular issue. Additional facts will be set forth as necessary.

Our review of claims of evidentiary impropriety are governed by well established principles. This court “will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . [B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result. When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. . . . In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Citation omitted; internal quotation marks omitted.) Kalams v. Giacchetto, 268 Conn. 244, 249, 842 A.2d 1100 (2004); Midler v. Benjamin, 95 Conn. App. 730, 735, 898 A.2d 258 (2006). In other words, our two part review requires the party seeking a new trial on the basis of a claimed evidentiary impropriety first to establish that the court abused its discretion in its ruling. Only if the plaintiff succeeds in surmounting that first hurdle will this court then consider whether the impropriety was harmful in that it likely affected the result. It is a difficult task to insert ourselves into the realm of the trial while being careful to avoid supplanting the role of the fact finder. The two part review helps to ensure that our role is that of reviewer and not fact finder.

With those important principles in mind, we review the evidence that the plaintiff sought to have admitted. During the course of the trial, the defendant indicated that he performed only a “camp physical,” which he explained was “somewhat less detailed than a comprehensive” examination. The defendant also testified that the billing code submitted to the decedent’s insurance company listed the physical as a “camp physical.” In contradiction of that testimony, the plaintiff attempted to introduce evidence by way of testimony from her expert witness, Mark Korsten, a board certified internist, and a representative of ConnectiCare, Inc., a managed care organization, to establish that the defendant had billed the decedent’s insurance carrier for the cost of a full, comprehensive examination, which should have included an EKG, rather than a “camp physical,” and that the billing code submitted to the insurance carrier designated a comprehensive preventive care physical. The plaintiff also sought to introduce the American Medical Association’s current procedure terminology code book (code book) to show the definition of the billing code number used by the defendant. Last, the plaintiff sought to cross-examine the defendant about the particular code that he used for billing purposes. The plaintiff maintained that she was entitled to have the juiy apprised of the billing code and its significance with respect to the type of examination that was conducted to demonstrate that the examination of the decedent was deficient. The court excluded the plaintiffs proffered evidence, ruling that the code used for billing purposes was not relevant to the ultimate issue of whether the defendant’s actions fell below the standard of care and would be unduly prejudicial. In her motion to set aside the verdict and for a new trial, the plaintiff reasserted her argument that the evidence concerning the billing code was relevant and should have been admitted. The court again rejected the plaintiffs arguments and reiterated its reasoning more precisely that the evidence was not relevant, was unduly prejudicial and was in some instances hearsay.

The central issue in the plaintiffs case was whether the defendant failed to provide an adequate examination, evaluation and subsequent treatment of the decedent. “Generally, evidence is admissible to prove a material fact that is relevant to the cause of action alleged by the plaintiff. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.” (Citation omitted; internal quotation marks omitted.) Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 378, 805 A.2d 130 (2002); see also Conn. Code Evid. § 4-1. Our Supreme Court and this court have emphasized on several occasions that “[t]o be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.” (Internal quotation marks omitted.) State v. Peeler, 267 Conn. 611, 635, 841 A.2d 181 (2004); United Technologies Corp. v. East Windsor, 262 Conn. 11, 29, 807 A.2d 955 (2002); Hayes v. Casper, Ltd., 90 Conn. App. 781, 797-98, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005); State v. Marshall, 87 Conn. App. 592, 601, 867 A.2d 57 (“Evidence does not have to be absolutely necessary in order to be admissible. Rather, any evidence that is relevant is admissible unless some other rule makes it inadmissible.”), cert. denied, 273 Conn. 925, 871 A.2d 1032 (2005). The type of examination that the decedent was given at his June 25, 2001 visit was in dispute. Although the defendant maintained that it was a “camp physical,” the plaintiff claimed that the examination was a full, comprehensive examination and that the defendant did not provide the proper tests that should have been included in such an examination. Evidence that would help to establish the type and nature of the examination given to the decedent had a “logical tendency to aid” in the determination of the issue presented in this case. Moreover, whether the examination was merely a “camp physical” or a more comprehensive examination was dependent, in part, on the credibility of the defendant’s testimony. We conclude, therefore, that evidence of the code used for billing purposes was relevant, albeit marginally, to the central issue in the case, i.e., whether the defendant breached the standard of care.

We also conclude that the admission of the evidence would not have created undue prejudice. The fact that the evidence would have had an adverse effect on the defendant does not mean that it was overly prejudicial, especially when weighed against its probative value. We have recognized that “[e]vidence that is inadmissibly prejudicial is not to be confused with evidence that is merely damaging. ... All evidence adverse to a party is, to some degree, prejudicial. To be excluded, the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted.” (Emphasis in original; internal quotation marks omitted.) Ramos v. Ramos, 80 Conn. App. 276, 281, 835 A.2d 62 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1175 (2004); Chouinard v. Marjani, 21 Conn. App. 572, 576, 575 A.2d 238 (1990). On the basis of the facts and circumstances of the present case, the slight evidence concerning the code used for billing purposes did not have the potential to create undue prejudice if admitted into evidence. Accordingly, we conclude that the court abused its discretion when it excluded the evidence relating to the billing code.

Having concluded that the court abused its discretion by excluding certain evidence concerning the billing code, we now must consider whether the plaintiff has proven that impropriety to be harmful error requiring that she receive a new trial. As stated previously and worth repeating, “ [e] ven when a trial court’s evidentiary ruling is deemed to be improper, [as is the case here] we [still] must determine whether that ruling was so harmful as to require a new trial. ... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. . . . [T]he standard in a civil case for determining whether an improper ruling was harmful is whether the . . . ruling [likely] would [have] affect[ed] the result.” (Internal quotation marks omitted.) Prentice v. Dalco Electric, Inc., 280 Conn. 336, 358, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007); Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 530, 832 A.2d 1180 (2003); see also Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990) (rejecting standard that would have required treating as harmless error “any evidentiary ruling, regardless of its effect upon the verdict, so long as the evidence not implicated by the ruling was sufficient as a matter of law to sustain the verdict”). When making such a determination, “the reviewing court is constrained to make its determination on the basis of the printed record before it. . . . In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Internal quotation marks omitted.) Dinan v. Marchard, 279 Conn. 558, 567, 903 A.2d 201 (2006); Kalams v. Giacchetto, supra, 268 Conn. 249-50.

In the present case, the plaintiff has not met that burden of demonstrating harmful error. The exclusion of evidence of the billing code did not prevent the jury from considering relevant and material evidence that affected the ultimate issue or prevent the plaintiff from proving whether the defendant had breached the standard of care. Both parties had experts testify as to the standard of care used by the defendant, and the absence of the billing code evidence did not detract from their testimony. With respect to the probative value of the evidence in challenging the defendant’s credibility, we note that there was corroborating evidence, which supported the defendant’s testimony that the examination provided was a “camp physical,” and thus lent itself to establishing his credibility. Regardless of how the examination subsequently was billed to the insurance carrier, that in and of itself did not change the nature of the actual examination or alter the circumstances in which the decedent sought to have the examination performed, i.e., in order for the defendant to be able to complete the Boy Scout medication form. Moreover, the plaintiff was not precluded from cross-examining the defendant about the type of examination given to the decedent and, in fact, did so extensively. It is highly unlikely that the jury would have reached an opposite conclusion on the basis of that slight evidence about the billing code, and, therefore, the court’s ruling was not likely to have affected the result of the trial. Although we conclude that evidence of the code used for billing purposes was marginally relevant to the central issue in the case, i.e., whether the defendant breached the standard of care, we further conclude that the court’s impropriety in excluding that evidence was harmless.

The plaintiff contends that the court improperly refused to set aside the verdict on the basis of her evidentiary claims that we have already addressed. We disagree.

“The proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict ... is the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Milardo v. Kowaleski, 101 Conn. App. 822, 825, 924 A.2d 142 (2007).

For all of the reasons already set forth, we must conclude that the court did not abuse its discretion in denying the motion to set aside the verdict and for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The decedent became a new patient of the defendant’s on June 4, 2001, and had been seen one time prior to the June 25, 2001 visit.

       The decedent’s overall cholesterol level was 283, which included the following breakdown: triglyceride level, 243; LDL cholesterol, 204; and HDL cholesterol ratio of 7.3.

       In its October 25, 2005 memorandum of decision, the court restated its reasons for excluding the evidence concerning the billing code. “The court precluded the evidence for several reasons. First, there was no claim of fraudulent billing in the case, and, therefore, the evidence, even if relevant, was highly and unfairly prejudicial and subject to be excluded on that ground. .... Second, [the defendant] provided the physical exam requested by [the decedent] and required by the Boy Scouts to allow [the decedent] to go on a scout trip with his son. No EKG was sought or required, and the representative for the insurance company testified [that] the code used by [the defendant’s] office was the only code that could properly be used. Third, the evidence offered tended to show that [the defendant] perhaps should have performed an EKG, and this type of standard of care testimony is not properly admissible through insurance billing code standards. The court also precluded the introduction of a . . . code book, which lists billing codes for physicians for the same essential reasons, and because it was hearsay.” (Citation omitted.)
      With respect to the code book, we note that the plaintiff sought to have the book introduced, not for the substance of the codes, but rather to show that the defendant had knowledge of the codes. See Conn. Code Evid. § 8-1.

       See also Conn. Code Evid. § 4-1 (defining relevant evidence as “evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence”).

       In determining whether the court’s improper exclusion warrants a new trial, we must look to the unique facts and circumstances of each particular case to determine whether the impropriety was harmful. “The determination of [harmful error] lies in the record.” (Internal quotation marks omitted.) 566 New Park Associates, LLC v. Blardo, 97 Conn. App. 803, 812, 906 A.2d 720 (2006). The cases cited by the plaintiff are factually distinguishable and not persuasive. See Hayes v. Manchester Memorial Hospital, 38 Conn. App. 471, 475, 661 A.2d 123 (exclusion determined to be harmful where “plaintiff was deprived of the right to have the jury, as trier of fact, weigh the credibility of the expert witness by assessing his motives for testifying as he did”), cert. denied, 235 Conn. 922, 666 A.2d 1185 (1995); Chouinard v. Marjani, supra, 21 Conn. App. 577-78 (“court’s evidentiary ruling prevented the jury from considering relevant and material evidence affecting the ultimate issue as to whether the defendant had the plaintiffs oral consent for the bilateral surgery”). In the present case, the billing code submitted on the insurance form was done after the examination and was only marginally relevant to the central issue in the case, unlike the evidence excluded in the cases cited by the plaintiff.