author: Schaller, J. Hennessy, J.,

text:
    State of Connecticut v. James Cooper
    (12762)
    Schaller, Spear and Hennessy, Js.

      Argued February 16
    decision released August 8, 1995

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

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Zuk, deputy assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1) and one count of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (2). The defendant claims (1) that the trial court improperly instructed the jury in several respects: (a) in directing the jury to find that Interstate Route 1-84 was a public highway; (b) in instructing the jury that it could consider the results of the defendant’s blood alcohol tests in determining whether to convict him for a violation of § 14-227a (a) (1); (c) in failing to instruct the jury that facts essential to proof of an element of a crime must be proven beyond a reasonable doubt; (d) in failing to relate the facts to the law; and (e) in instructing the jury in a manner that deprived the defendant of a fair trial, (2) that the trial court improperly denied a motion to suppress, and (3) that the defendant’s convictions under both subdivisions of § 14a-227a (a) violate the double jeopardy provisions of the federal and state constitutions. We reverse the judgment of the trial court only as to the conviction under § 14-227a (a) (1).

The jury reasonably could have found the following facts. At approximately 8:25 p.m. on December 21, 1991, Sergeant William Marchand of the state police saw a pickup truck traveling without lights on 1-84. Marchand drove behind the vehicle and signaled the driver to pull over. After it had come to a stop, Mar-chand approached the vehicle, which was operated by the defendant, James Cooper.

On the basis of his observations, Marchand had the defendant exit the vehicle and called for another officer to conduct field sobriety tests. About ten minutes later, Trooper Michael Smart arrived. Smart conducted five field tests on the defendant, including several after his initial determination that the defendant was intoxicated. Smart arrested the defendant and drove him to the state police barracks in Southbury where he conducted two breathalyzer tests of the defendant. The first test, performed at 9:28 p.m., measured the defendant’s blood alcohol level at 0.261 percent. The second test, at 10:15 p.m., measured the level at 0.228 percent.

The defendant originally was charged with operating a motor vehicle while under the influence of intoxicating liquor pursuant to § 14-227a. The state subsequently filed a substitute information containing two counts of operating a motor vehicle while under the influence of intoxicating liquor pursuant to subdivisions (1) and (2) of § 14-227a (a). The jury found the defendant guilty of both counts.

I

A

The defendant first claims that the trial court improperly instructed the jury “that the highway in question is a public highway. So you need not deal with that element and you need not make that finding.” The defendant claims that the trial court thereby violated his right to trial by jury pursuant to the fifth, sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 19, of the Connecticut constitution. Because the defendant did not preserve this claim at trial, to prevail he must meet the conditions set out in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

“In State v. Golding, [supra, 213 Conn. 233] our Supreme Court reformulated the test of reviewability in [State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973)]. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. ...” (Citation omitted; internal quotation marks omitted.) State v. Velez, 30 Conn. App. 9, 20-21, 618 A.2d 1362, cert. denied, 225 Conn. 907, 621 A.2d 289 (1993); see also State v. Gamble, 27 Conn. App. 1, 13, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992). If any one of these conditions is not established, the defendant’s claim will fail.

We find the defendant’s claim reviewable. In examining the first prong of Golding, we note that it was designed to avoid remands for the purpose of supplementing the record. State v. Stanley, 223 Conn. 674, 690, 613 A.2d 788 (1992). Our review of the record indicates that the facts are sufficiently clear and unambiguous for this court to determine whether a constitutional violation has occurred.

The second prong of Golding is also satisfied. “An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). Improper jury instructions on an essential element of the crime charged implicate a fundamental constitutional right. See State v. Wilkinson, 176 Conn. 451, 408 A.2d 232 (1979); State v. Kwaak, 21 Conn. App. 138, 572 A.2d 1015, cert. denied. 215 Conn. 811, 576 A.2d 540 (1990).

We must consider next whether the defendant met his burden as to the third requirement of Golding. “We must inquire whether the alleged constitutional violation clearly exists and, if so, whether it clearly has deprived the defendant of a fair trial.” State v. Leroy, 33 Conn. App. 232, 236, 635 A.2d 300 (1993), rev’d, 232 Conn. 1, 653 A.2d 161 (1994). The defendant claims that the trial court improperly instructed the jury by removing from the jury’s consideration a necessary element under both offenses of driving while intoxicated, in violation of the defendant’s constitutional rights to a fair trial.

According to § 14-227a (a), a necessary element of the charged offense is that the defendant operate a motor vehicle on a public highway. In its instructions to the jury, the trial court charged the jury as follows: “The second element is that the defendant operated the motor vehicle on a public highway of the state. I am going to charge you that the highway in question is a public highway. So you need not deal with that element and you need not make that finding.”

The defendant argues that this instruction violated the Sandstrom doctrine against a mandatory presumption; Sandstrom v. Montana, 442 U.S. 510, 517-24, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); thereby rendering “irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon that evidence.” Connecticut v. Johnson, 460 U.S. 73, 85, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983). We need not decide whether the Sandstrom doctrine applies to this case because the defendant waived his right to require the state to prove the public highway element of the offense beyond a reasonable doubt.

In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial. The due process clause prescribes that the defendant has a right to require the fact finder to determine each element of an offense charged beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). “ ‘It is the duty of the Government to establish . . . guilt beyond a reasonable doubt. This notion — basic in our law — is a requirement and a safeguard of due process of law in the historic, procedural content of “due process.” ’ ” In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), quoting Leland v. Oregon, 343 U.S. 790, 802-803, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952) (Frankfurter, J., dissenting). Under the circumstances, however, the record reveals that the defendant conceded the element in question, and, therefore, waived his right to require the fact finder to determine the element.

In this case, the state offered evidence that 1-84 is public. Marchand testified without objection that 1-84 is a public highway, that the general motoring public has access to the road, and that the state department of transportation maintains the highway, plows the road when it snows and is responsible for cleaning oil spills. The defendant did not challenge that testimony either by cross-examination or by presenting evidence to the contrary. The defendant’s attorney, in fact, referred to the highway as the “interstate” in the course of cross-examination. Moreover, in arguing a motion for judgment of acquittal, the defendant’s attorney argued that the second officer “didn’t actually testify that he was unfit to operate upon the public highways.” Counsel moved for a “directed verdict of acquittal concerning the opinion by those officers as to the inability to operate on the public highway.” Further, the defendant’s attorney stated that the tests were given in “a flat area maybe slightly downhill but it certainly wasn’t in the grass off the side of the public highway.” In short, failure to prove the public highway element was not a ground of the defendant’s motion.

Furthermore, the state’s attorney, in closing argument, argued that the evidence was uncontroverted that the defendant operated on a public highway. The defendant’s attorney, in his summation, did not dispute that fact. The state’s attorney further informed the jury in the initial summation that “the Judge will tell you that 1-84 is a public highway.” Once again, the defendant’s attorney did not challenge that assertion in his closing argument. To the contrary, the defendant’s attorney referred to the highway at issue as “out there on Interstate 84, either right on the Interstate or right off the Interstate.” He added that “it was the same area where that poor fellow got hit by the trailer truck, ’ ’ referring to an incident testified to in which a state trooper had been struck on 1-84.

In addition, the defendant’s attorney argued that the officer, after stopping the defendant, “had him driving off the highway because he was in the truck lane.” While no express stipulation as to the public nature of the highway was ever placed on the record by either attorney or by the trial court, the trial court instructed the jury as to the public nature of the highway without objection by the defendant. The statements by counsel, which were tantamount to a stipulation as to the public highway element, therefore amounted to an implied waiver by the defendant.

A defendant in a criminal prosecution may waive one or more of his or her fundamental rights. State v. Patterson, 230 Conn. 385, 392, 645 A.2d 535 (1994). In Patterson, our Supreme Court stated that “[i]n some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made. ... In other circumstances, waiver can be implied.” (Citations omitted.) Id., 396. In that case, the Supreme Court held that waiver of the due process right to “judicial supervision of the entire voir dire in a criminal case . . . can be made by counsel, and will ordinarily be inferred from the absence of an objection.” Id. Our Supreme Court has similarly held that a defendant may waive his constitutional right to be present during trial merely by an unexplained absence. State v. Simino, 200 Conn. 113, 125-30, 509 A.2d 1039 (1986). Furthermore, the guarantees against double jeopardy provided by the fifth and fourteenth amendments, as well as an individual’s Miranda rights, may also be impliedly waived. State v. Almeda, 211 Conn. 441, 448, 560 A.2d 389 (1989); State v. Kuskowski, 200 Conn. 82, 88, 510 A.2d 172 (1986).

While our Supreme Court has acknowledged that the state usually must prove all undisputed elements of a crime beyond a reasonable doubt, an element may be conceded by the defendant; State v. Guthridge, 164 Conn. 145, 152-53, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); and we have not required an express waiver of the right to require the state to prove each element of a crime. State v. Day, 12 Conn. App. 129, 133, 529 A.2d 1333 (1987). “ ‘Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results.’ ” State v. Simino, supra, 200 Conn. 132-33, quoting Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S. Ct. 330, 78 L. Ed. 674 (1934). “To allow the defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal. See State v. Collette, 199 Conn. 308, 318, 507 A.2d 99 (1986); State v. Silveira, 198 Conn. 454, 467, 503 A.2d 599 (1986); State v. Vilhotti, 11 Conn. App. 709, 713, 529 A.2d 235 (1987).” State v. Day, supra, 134. We conclude that waiver of the right to require the state to prove each element of a crime may be made by counsel and may be inferred from the absence of an objection. See State v. Patterson, supra, 230 Conn. 396.

Under the circumstances of this case, proof of the public highway element clearly was not in dispute; on the contrary, the record supports an inference that the defendant waived proof of that element. We conclude, accordingly, that the defendant waived his due process right to require the state to prove that element. See id., 396; State v. Almeda, supra, 211 Conn. 448; State v. Simino, supra, 200 Conn. 130; State v. Kuskowski, supra, 200 Conn. 88; State v. Graham, 36 Conn. App. 573, 651 A.2d 1339 (1995); State v. Brelsford, 24 Conn. App. 287, 587 A.2d 1062 (1991).

B

The defendant next claims that the trial court improperly instructed the jury that it could consider the results of the defendant’s blood alcohol tests in its determination as to whether to convict him of a violation of § 14-227a (a). The trial court instructed the jury on the charges in the information as follows: "In considering whether the defendant was under the influence you need not consider evidence of the defendant’s blood alcohol content. You may conclude beyond a reasonable doubt that the defendant operated under the influence without any reference [to a] scientific test. You may however consider [a] scientific test, if you wish, in addition to other evidence in this case.”

The defendant was charged with violation of both subdivisions of § 14-227a (a). Evidence of the blood alcohol test results was admitted by the trial court as to § 14-227a (a) (2). The instruction that the trial court gave was appropriate for the § 14-227 (a) (2) charge. General Statutes § 14-227a (d), however, provides: “In any prosecution for a violation of subdivision (1) of subsection (a) of this section, reliable evidence respecting the amount of alcohol ... in the defendant’s blood ... at the time of the alleged offense, as shown by a chemical analysis of the defendant’s . . . breath . . . otherwise admissible under subsection (c) of this section, shall be admissible only at the request of the defendant.”

The state concedes that the defendant did not request the admission into evidence of the blood alcohol test results in relation to the behavioral subdivision. The defendant, conceding the failure to preserve this issue at trial, claims review under Golding or, alternatively, plain error review. We conclude that the defendant is not entitled to review under the Golding doctrine because the claim does not implicate a constitutional right. See State v. Gross, 35 Conn. App. 631, 646 A.2d 933, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994). The claim is subject, however, to plain error review. Noncompliance with a mandatory statutory provision constitutes plain error. See State v. Cobb, 199 Conn. 322, 507 A.2d 457 (1986); State v. Tatem, 194 Conn. 594, 483 A.2d 1087 (1984); State v. Carrione, 188 Conn. 681, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983); State v. Boulware, 183 Conn. 444, 441 A.2d 1 (1981); State v. Carter, 182 Conn. 580, 438 A.2d 778 (1980); State v. Burke, 182 Conn. 330, 438 A.2d 93 (1980); State v. Sinclair, 20 Conn. App. 586, 569 A.2d 551 (1990); State v. Thurman, 10 Conn. App. 302, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

We conclude that the trial court failed to comply with the mandatory provisions of § 14-227a (d). That section specifically provides that evidence of the amount of alcohol in the defendant’s blood as shown by a chemical analysis of the defendant’s breath is admissible with respect to the behavioral subdivision only at the request of the defendant. The defendant, unquestionably, did not make such a request. The trial court, therefore, permitted the jury to consider the blood alcohol test results in determining the defendant’s guilt under the behavioral subdivision; General Statutes § 14-227a (a) (1); in direct contravention of the mandate of the pertinent statute. The result was that, in convicting the defendant under the behavioral subdivision as well as under the nonbehavioral subdivision, the jury was at liberty to use the results to buttress the state’s case under § 14-227a (a) (1). See State v. LeRoy, 232 Conn. 1, 653 A.2d 161 (1994); State v. Janson, 20 Conn. App. 348, 566 A.2d 1377 (1989), cert. denied, 213 Conn. 815, 569 A.2d 550 (1990).

Substantial defective compliance with that statutory provision requires reversal “ ‘even if no particular prejudice is shown and even if there is overwhelming evidence of guilt.’ State v. Varricchio, 10 Conn. App. 265, 270, 522 A.2d 843 (1987).” State v. Smith, 18 Conn. App. 368, 377, 558 A.2d 257 (1989). We conclude that the trial court’s instruction constituted one of “those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address [this] issue. . . .” Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 671, 594 A.2d 958 (1991). The defendant’s conviction for violation of § 14-227a (a) (1) must be reversed.

C

The defendant claims that the trial court failed to instruct the jury that facts essential to proof of an element of a crime must be proven beyond a reasonable doubt. Although the defendant failed to preserve this claim at trial, it is reviewable under Golding, “because it implicates the fundamental constitutional right that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, [supra, 397 U.S. 361]; State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).” State v. McDonough, 205 Conn. 352, 354, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). The defendant argues specifically that two critical facts, namely, the results of the two intoximeter tests, form the basis for the extrapolation of the defendant’s blood alcohol level at the time of arrest. Those two subordinate facts, according to the defendant, must be proven beyond a reasonable doubt because they provide the basis for the conviction. We disagree.

The defendant relies on State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985), to support his position that “where a particular subordinate fact is essential to the proof of an element of the crime ... it must be proved beyond a reasonable doubt.” Id., 58 n.1; see State v. Crafts, 226 Conn. 237, 246, 627 A.2d 877 (1993); State v. Rivera, 24 Conn. App. 670, 675, 591 A.2d 440, cert. denied, 219 Conn. 914, 593 A.2d 139 (1991); State v. Sullivan, 11 Conn. App. 80, 94, 525 A.2d 1353 (1987). That proposition, which was questioned by Justice Callahan’s concurring opinion in State v. McDonough, supra, 205 Conn. 352, generally has been limited to situations where a single subordinate fact is essential to the proof of an element. State v. Grant, 219 Conn. 596, 605, 594 A.2d 459 (1991), quoting State v. McDonough, supra, 355; State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). In this case, no single fact was essential to the proof of the element. Rather, consideration of the two test results, together with the testimony on extrapolation, was required. The state was not required to prove each of the subordinate facts beyond a reasonable doubt. The trial court’s instruction on the standard of proof for each element of the offenses wvs correct. The defendant’s claim as to the standard of proof for subordinate facts fails in this case. State v. McDonough, supra, 352; State v. Grant, supra, 596.

D

The defendant next claims that the trial court improperly failed to relate the facts of the case to the law. Once again, the defendant seeks Golding review of this claim. Even if we assume, arguendo, that this claim involves a constitutional right, an examination of the record compels us to conclude that the defendant was not deprived of a fair trial.

The defendant argues that the trial court did not refer to any facts in the course of the charge. In particular, the trial court failed to mention which witnesses had been qualified as experts and what scientific tests had been admitted. The defendant cites several cases including State v. Wolff, 29 Conn. App. 524, 616 A.2d 1143 (1992), as authority for his claim. In that case, we stated that the “issues . . . were complicated, peculiar, and capable of differing constructions because the case involved two separate victims and similar crimes. . . . In such a case, ‘where the issues are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary.’ Jacques v. Carter, [2 Conn. App. 27, 33-34, 476 A.2d 621 (1984)].” Id., 532. We further note that “[a] court’s charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial. See State v. Rose, [169 Conn. 683, 687, 363 A.2d 1077 (1975)].” State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).

This case involves a simpler factual and legal background than did State v. Wolff, supra, 29 Conn. 524. This case involved a two count information and was based on the testimony of three witnesses, two police officers and a state toxicologist. The evidence portion of the trial was completed within a period of three days. Viewed in the context of the factual issues raised at trial, the instructions clearly set forth the crimes charged and sufficiently related the law to the facts of the case. Because we cannot determine, therefore, that the alleged constitutional violation clearly exists, we conclude that the defendant has failed to satisfy the third prong of Golding.

E

The defendant further claims that, taken as a whole, the trial court’s instructions deprived the defendant of a fair trial. “To determine whether an error in the charge to the jury exists, we review the entire charge to determine if, ‘taken as a whole, the charge adequately guided the jury to a correct verdict.’ ” State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989), quoting State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

The defendant makes no specific claim beyond those raised in the context of his other claims, with three exceptions: (1) the instruction that a reasonable doubt constitutes “a doubt for which a valid reason may be assigned”; (2) a statement that the reference to the number of witnesses presented by each side “doesn’t apply here”; and (3) what the defendant calls a “sinister interaction” between the instructions on burden of proof, the public highway instruction and the failure to relate facts to law. The defendant took no exception to the charge in any of these respects and we conclude that the trial court did not mislead the jury as to the appropriate burden of proof, elements of the crime, or evidence before it. State v. Walker, 33 Conn. App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994), quoting State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). The defendant has failed to demonstrate how this unpreserved claim satisfies the Golding requirements. Accordingly, the claim is without merit.

II

The defendant next claims that the trial court improperly denied his motion to suppress the results of his intoximeter tests because no probable cause existed for the defendant’s arrest. The defendant asserts on appeal that the test results were obtained by virtue of an invalid Terry stop.

The defendant claims that the issue was properly preserved because his motion to suppress the results of the intoximeter test was denied during the course of trial. He claims Golding review to the extent that the issue was not preserved. We assume, for purposes of this discussion, that the defendant did not properly preserve this claim and that the first and second prongs of Golding have been satisfied. The defendant’s claim fails, however, as to the third prong of Golding.

Both the state and the defendant agree that the appropriate analysis of the initial stop in this case is under the Terry guidelines. The defendant argues, first, that the initial stop lacked probable cause and, second, that, even if probable cause existed, the stop was extended beyond its proper boundaries because the manner of the stop was intrusive, the defendant was moved and the length of the detention was excessive.

In justifying the intrusion, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991); State v. Whitfield, 26 Conn. App. 103, 110, 599 A.2d 21 (1991). In evaluating the validity of such a stop, courts consider whether, in light of “the totality of the circumstances — the whole picture,” the police officer had “ ‘ “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” ’ United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). . . .” (Citations omitted.) State v. Mitchell, 204 Conn. 187, 195, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). Review of a trial court’s determination of whether a reasonable and articulable suspicion exists “involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). “ ‘The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.’ ” State v. Cofield, supra, 44.

In this case, Marchand observed the defendant’s vehicle traveling without lights on 1-84 and signaled it to pull over. After the vehicle had come to a stop, Mar-chand approached the vehicle. On the basis of his observations of the defendant, Marchand had the defendant exit the vehicle and called for another officer to conduct field sobriety tests.

We conclude that, under the totality of the circumstances, the trooper had a reasonable and articulable suspicion, on an objective basis, that the defendant may have been operating a motor vehicle while under the influence of liquor or drugs or both. See State v. Harrison, 30 Conn. App. 108, 618 A.2d 1381 (1993). The facts of this case clearly support the trial court’s determination that the trooper had such a reasonable and articulable suspicion when he approached the defendant, creating the right to a brief investigatory intrusion. The trial court’s determination is not clearly erroneous. “ ‘The facts [previously detailed] justified the defendant’s detention for the limited intrusion of field sobriety testing to confirm or dispel the officer’s suspicion.’ ” Id., 113, quoting State v. Gruver, 27 Conn. App. 370, 376, 606 A.2d 39 (1992). We conclude that this was a valid Terry stop.

Ill

The defendant finally claims that the defendant’s convictions under both subdivisions (1) and (2) of § 14-227a (a) violated the double jeopardy provisions of the United States and Connecticut constitutions. In light of our reversal of the conviction under § 14-227a (a) (1), we need not address this claim.

The judgment is reversed and the case is remanded with direction to render judgment of guilty of violating § 14-227a (a) (2) and not guilty of violating § 14-227a (a) (1).

In this opinion Spear, J., concurred.

Hennessy, J.,

dissenting. The majority holds that after a criminal defendant elects to be tried by a jury, it is nevertheless permissible for the trial judge to remove an essential element of the crime from the jury’s consideration without an express waiver of the defendant’s right to have the jury find every element of the crime charged beyond a reasonable doubt. Because I believe that this is in direct contravention of the constitutional right to a trial by jury, I respectfully dissent.

“The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty without ‘due process of law’; and the Sixth, that ‘[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury.’ . . . [T]hese provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, U.S. , 115 S. Ct. 2310, 2313, 132 L. Ed. 2d 444 (1995); see also Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). The essence of this right is that “the jury, rather than the judge, reach the requisite finding of‘guilty.’ See Sparf v. United States, 156 U.S. 51, 105-106, [15 S. Ct. 273, 39 L. Ed. 343 (1895)]. Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence. Ibid. See also United States v. Martin Linen Supply Co., 430 U.S. 564, [572-73, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977)]; Carpenters v. United States, 330 U.S. 395, 410, [67 S. Ct. 775, 91 L. Ed. 973 (1947)].” Sullivan v. Louisiana, supra, 508 U.S. 277.

In the recent decision of United States v. Gaudin, supra, 115 S. Ct. 2310, the United States Supreme Court rejected an argument, advanced by the government, that a jury’s role in a criminal trial is merely to deliver factual findings, and that the trial judge is free to decide elements of a crime that involve application of the law to the facts found. Emphasizing the “historical and constitutionally guaranteed right of criminal defendants to demand that the jury decide guilt or innocence on every issue, which includes application of the law to the facts . . . [the court held that] the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.” United States v. Gaudin, supra, 115 S. Ct. 2315-16.

The reversal of the conviction obtained in Gaudin rested on the theory that the removal of an element from the jury’s consideration, even one involving a mixture of law and fact, prevents the jury from exercising its exclusive power to render the ultimate finding of guilt or innocence. The controlling principle of law, therefore, as aptly stated by the Second Circuit Court of Appeals, is: “ ‘The plea of not guilty places every issue in doubt, and not even undisputed fact may be removed from the jury’s consideration, either by direction or by omission in the charge.’ ” United States v. Singleton, 532 F.2d 199, 206 (2d Cir. 1976), quoting United States v. Natale, 526 F.2d 1160, 1167 (2d Cir. 1975); see also United States v. Mentz, 840 F.2d 315, 320 (6th Cir. 1988); United States v. Argentine, 814 F.2d 783, 788 (1st Cir. 1987); United States v. White Horse, 807 F.2d 1426, 1430-32 (8th Cir. 1986).

An essential element of the crime of operating a motor vehicle while under the influence of liquor pursuant to General Statutes § 14-227a is that the forbidden act take place “on a public highway.” In this case, the trial court instructed the jury: “The second element is that the defendant operated the motor vehicle on a public highway of the state. I am going to charge you that the highway in question is a public highway. So you need not deal with that element and you need not make that finding” (Emphasis added.) It is normally presumed that the jury follows the instructions given by the trial court. State v. Jimenez, 228 Conn. 335, 342, 636 A.2d 782 (1994); State v. Fernandez, 27 Conn. App. 73, 83, 604 A.2d 1308 (1992). The conclusion is inescapable, therefore, that because of this instruction the jury did not find one of the essential elements of the crime charged, and did not make the ultimate conclusion of guilt or innocence. Thus, the defendant’s conviction was obtained in violation of his constitutional right to a trial by jury. See United States v. Gaudin, supra, 115 S. Ct. 2310; Sullivan v. Louisiana, supra, 508 U.S. 275.

The majority recognizes that the trial court’s instruction implicates the defendant’s constitutional rights, but concludes that no constitutional violation took place because “the defendant conceded the element in question.” I cannot agree.

Although it is true that a criminal defendant may waive one or more of his fundamental rights, it is well established that “[i]n some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made.” State v. Patterson, 230 Conn. 385, 396, 645 A.2d 535 (1994). One of the cases cited in Patterson for this proposition is State v. Shockley, 188 Conn. 697, 453 A.2d 441 (1982), which holds that the sixth amendment right to a jury trial is a right that can be waived only expressly. See id., 706-707.

“The principles that govern waiver of a right to a jury trial are not in dispute. ‘The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be “knowing and intelligent,” as well as voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 74 L. Ed. 2d 854 (1930).’ State v. Marino, [190 Conn. 639, 643, 462 A.2d 1021 (1983)]; see State v. Shockley, [supra, 188 Conn. 705-707], . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. State v. Shockley, supra, 707; see Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).” (Citations omitted.) State v. Williams, 205 Conn. 456, 460-61, 534 A.2d 230 (1987).

In this case, there was no express waiver of the right to have the jury, and not the judge, find each essential element of the crime charged. It is not proper to presume a waiver of this right in order to save a conviction that contravenes the dictates of the fifth and sixth amendments. Id., 456. Therefore, the trial court’s instruction removing an essential element from the jury’s consideration without a valid waiver by the defendant, is reversible error. United States v. Mentz, supra, 840 F.2d 332; United States v. Argentine, supra, 814 F.2d 789; United States v. White Horse, supra, 807 F.2d 1432; Hoover v. Garfield Heights Municipal Court, 802 F.2d 168, 178 (6th Cir. 1986); United States v. Singleton, supra, 532 F.2d 207.

It is important to recognize that the issue raised by the defendant’s claim is not whether 1-84 is a public highway, but whether the trial court usurped the jury’s province as sole finder of fact and ultimate arbiter of guilt or innocence. I would reverse the conviction not because I doubt that 1-84 is a public highway, but because the conviction has been obtained in violation of the defendant’s constitutional right to a trial by jury in the absence of a knowing, voluntary and intelligent waiver. I share the sentiment and concern of the Supreme Court of Utah, articulated almost one-half century ago: “We, who live with it, have a fervent devotion to the jury system, in spite of its faults. We would not like to see it destroyed nor whittled away. If a court can take one important element of an offense from the jury and determine the facts for them because such facts seem plain enough to him, then which element cannot be similarly taken away, and where would the process stop?” State v. Lawrence, 120 Utah 323, 330-31, 234 P.2d 600 (1951).

       General Statutes § 14-227a provides in relevant part: “(a) operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state . . . (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       “Although the defendant invokes the state constitution in support of his [claim] . . . ‘we limit our analysis to the federal guarantee in light of his failure independently to analyze the state constitution.’ State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).” State v. Shanks, 34 Conn. App. 103, 113 n.10, 640 A.2d 155, cert. denied, 229 Conn. 921, 642 A.2d 1216 (1994).

       “In Sandstrom v. Montana, [supra, 442 U.S. 517-24], the United States Supreme Court held that a jury instruction that the law presumes that a person intends the ordinary consequences of his voluntary acts violated the defendant’s due process rights because a reasonable jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. See Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975)....’’ (Internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 443-44, 630 A.2d 1043 (1993).

       Because the defendant conceded the element in question and the trial court’s instruction to the jury did not amount to a presumption of guilt with respect to the remaining elements of § 14-227a (a) (1) and (2), we conclude that the defendant’s sixth amendment right to a jury verdict of guilty beyond a reasonable doubt was also not implicated. Sullivan v. Louisiana, supra, 508 U.S. 277-78. Here, the trial court clearly instructed the jury that “it is not sufficient for the state to make out a case of probable guilt or call on the accused to refute it. You may not convict on the basis of mere suspicion. The state must prove guilt beyond a reasonable doubt.” Thereafter, the jury rendered a verdict of guilty, the defendant having waived his fifth amendment right to require the state to prove the element in question. Therefore, this case concerns only the sufficiency of the defendant’s waiver as a means of proving a single element beyond a reasonable doubt as required by the fifth amendment. Contrary to the dissent’s characterization of our holding, we do not hold that a trial judge may remove an essential element of the crime from the jury’s consideration. In this case, where the defendant conceded the element in question, the trial judge’s instruction merely represents an explanation to the jury of the party’s action. In such a situation, the sixth amendment right of the defendant is not implicated.

       See part IA for analysis of the conditions of review under State v. Golding, supra, 213 Conn. 233.

       The defendant, in his brief, raised plain error review as an alternative to Golding review. The state declined to address the issue in its brief but did address the claim in oral argument.

       See part I A for analysis of the conditions of Golding review.

       See part I A for analysis of the conditions of Golding review.

       We note that “[w]hereas the first two conditions of Golding are determinations of whether a defendant’s claim will be reviewed, the third prong constitutes a review of the merits.” State v. Leroy, supra, 33 Conn. App. 236 n.2.

        Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       See part I A for analysis of the conditions of Golding review.

       Because I believe reversal is required on the defendant’s first claim, I would not reach the remaining claims and therefore offer no opinion on parts II and III of the majority opinion.

       In Gaudin, the trial court instructed the jury that to convict the defendant of making false statements on federal loan applications in violation of 18 U.S.C. § 1001 the government was required to prove that the alleged false statements were material. The court further instructed, however, “‘[t]he issue of materiality . . . is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed that the statements charged in the indictment are material statements.’ ” United States v. Gaudin, supra, 115 S. Ct. 2313.

       The problem in this case is not whether the jury’s verdict was correct, but whether the jury reached a verdict that satisfies the fifth and sixth amendments, i.e., a finding of each and every element beyond a reasonable doubt. “The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action . . . it requires an actual jury finding of guilty.” Sullivan v. Louisiana, supra, 508 U.S. 280.

       The majority opinion focuses on the defendant’s due process right to have the state prove every element beyond a reasonable doubt. Only in footnote 4 does the majority acknowledge the distinct but interrelated right, under both the fifth and sixth amendments, to have the jury, not the judge, find every element of the crime charged and render the ultimate verdict of guilty or not guilty.

       The defendant’s claim that the trial court violated his constitutional right to trial by jury by improperly removing an essential element of the crime from the jury’s consideration is an issue of first impression in Connecticut. It is important to note that no case cited by the majority squarely addresses whether the fifth and sixth amendments are violated by the removal of an essential element from the jury’s consideration without an express waiver of the right to have the jury find every element of the crime charged.

       In Lawrence, the jury had been instructed that: “ ‘Grand Larceny so far as it might be material in this case is committed when the property taken is of a value exceeding $50.00. In this case you will take the value of this property as being in excess of $50.00 and therefore the defendant, if he is guilty at all, is guilty of grand larceny.’ ” State v. Lawrence, supra, 120 Utah 326. The Supreme Court of Utah reversed the conviction because this instruction “was an invasion of [the jury’s] province as the exclusive triers of the fact and was prejudicial error.” Id., 331.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Amy Bower et al. v. David D’Onfro et al.
    (12161)
    Lavery, Hennessy and Freedman, Js.

      Argued January 12
    decision released August 8, 1995

      Roger J. Frechette, with whom was Matthew E. Frechette, for the appellants (defendant Bradley D. Ausmus et al.).

      Wesley W. Horton, with whom were Susan M. Cor-mier, and, on the brief, Anthony Nuzzo, Jr., and Tanya Feliciano, certified legal intern, for the appellees (plaintiffs).
   Lavery, J.

The defendants Bradley D. Ausmus and Lin Ausmus appeal from a judgment awarding money damages after a jury trial in an automobile negligence case. They claim that the trial court improperly (1) refused to permit testimony and evidence of the plaintiffs failure to wear a seat belt on the basis of General Statutes § 14-100a (c) (4), (2) applied the collateral sources statute to this case, (3) awarded prejudgment interest under the offer of judgment statute, General Statutes § 52-192a, (4) excluded judicial and evidentiary admissions, (5) permitted evidence of racing, and (6) found that there was sufficient evidence of negligence by the defendant to have proximately caused the accident. We affirm the judgment in part and reverse in part.

The jury could have reasonably found the following facts. The plaintiff Amy Bower was a passenger in a car owned and operated by David V. D’Onfro. They were traveling west on Higgins Road in Cheshire at a high rate of speed when D’Onfro lost control, veered off the road into woods and smashed into a tree. The plaintiff was thrown through the open window on the driver’s side of the vehicle onto the middle of the highway. The defendant Bradley Ausmus was driving at a high rate of speed close behind the D’Onfro vehicle. As Ausmus came to the top of a hill, he braked suddenly, skidded into the plaintiff and dragged her sixty-eight feet.

I

At trial, the trial court, pursuant to § 14-100a (c) (4), excluded any evidence that the plaintiff was not wearing a seat belt. Additional facts peculiar to each claim will be set forth in the discussion of each claim.

The defendants argue that the trial court’s failure to. permit evidence that the plaintiff failed to wear a seat belt deprived them of their constitutional rights. The defendants claim that because § 14-100a (c) (4) bars the testimony and evidence of the plaintiff’s failure to wear a seat belt and because that failure impacts on the cause of the accident, on the plaintiff’s negligence and on the defendant’s negligence, the defendants were deprived of their constitutional rights to due process, to access to courts, to equal protection, against impermissible discrimination, and to a jury trial. We will address the constitutionality of § 14-100a (c) (4) both on its face and as applied in this case.

General Statutes § 14-100a (c) (4) provides: “Failure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible in any civil action.”

We are bound by the principle that “[a] party who challenges the constitutionality of a statute ‘bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality.’ ” State v. Mer-dinger, 37 Conn. App. 379, 382, 655 A.2d 1167 (1995). Also, the defendant must show that § 14-100a (c) (4) adversely affects a constitutionally protected right. Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 569, 409 A.2d 1020 (1979). Courts exercise their power to declare a statute unconstitutional “ ‘with caution and in no doubtful cases.’ ” Fair Cadillac-Olds Isuzu Partnership v. Bailey, 229 Conn. 312, 316, 640 A.2d 101 (1994). We uphold this statute as constitutional.

A

The defendants’ first claim is one of substantive due process. They argue that it was the plaintiff’s failure to wear her seat belt that caused her injuries and not Bradley Ausmus’ reckless driving. The defendants claim, therefore, that they cannot constitutionally be liable for the plaintiff’s injuries because Ausmus did not cause her to be thrown from D’Onfro’s vehicle.

The defendants’ due process argument is based on their assertion that a defendant cannot be held liable for an injury when his conduct does not directly cause the injury. This argument ignores the fact that the legislature can assign statutory responsibility for certain injuries. Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 627 A.2d 1296 (1993), for example, held that the plaintiff could not prevail on her claim that the legislature intended that the public treasury, rather than the landowner, be required to bear the cost of the cleanup of the contaminated property; the legislature could legitimately have determined that an owner’s lack of culpability for the existence of a contaminated condition was outweighed by the state’s interest in protecting public resources. Therefore, the fact that the defendants claim that the statute would punish people who did not directly cause an injury does not make the statute irrational.

Even if we were to adopt the defendants’ premise that a party must have caused an injury in order to be liable for damages, the defendants’ definition of causation is unworkable. The plaintiffs alleged and presented evidence at trial to show that Bower’s injuries were caused by the joint negligence of D’Onfro and Bradley Ausmus, which began before Bower was thrown from the D’Onfro vehicle. The plaintiffs showed that the conduct of Ausmus and D’Onfro was concurrently negligent, and that the defendants would be liable for Bower’s injuries even had she not been thrown from the car. See Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983). In Tetro, our Supreme Court stated: “ ‘Proximate cause is ordinarily a question of fact. . . . The test for finding proximate cause “is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” . . . The foreseeable risk may include the acts of the plaintiff and of third parties.’ ” Id.

Despite the fact that the jury could reasonably have found that Ausmus was speeding, was driving recklessly, did not apply his brakes quickly enough, followed D’Onfro’s vehicle too closely and failed to maintain a proper lookout, the defendants’ position appears to be that it is irrational for the legislature to have abolished the seat belt defense, especially where the plaintiff is thrown from the vehicle. This issue was addressed in legislative debate. “The failure to wear a seat belt would be in no way involved in the issue of causation of the accident. The courts have clearly held that the failure to wear a seat belt doesn’t cause the accident.” 28 H.R. Proc., Pt. 23, 1985 Sess., pp. 8352, 8354, remarks of Representative Robert Farr.

Cases such as the present case were anticipated and addressed by the legislature. During the legislative debates, the possibility was discussed that a passenger could suffer an injury that he would not have suffered but for the failure to wear a seat belt. Id., p. 8354. It was made clear that the seat belt defense could not be raised in such a case. Id. Representative Farr stated that “[tjhis amendment says . . . you can never raise that defense.” Id. Clearly the legislature has decided not to allow arguments such as the defendants’ to prevent redress for injured plaintiffs.

The legislature focused on the action of the driver, not on the use of a seat belt. The legislature in its debate went so far as to consider that a passenger or driver might have an accident, remove a seat belt, and lose consciousness. Such persons might be barred from seeking redress for damages sustained, a result that the legislature did not want. 28 H.R. Proc., Pt. 23, 1985 Sess., pp. 8343, 8348.

As the statute is not irrational, and the defendants were afforded a full and fair trial as to their liability, the defendants were not denied due process of law. Due process is denied when the legislature enacts a law that prescribes new or alters existing rules of evidence or prescribes methods of proof that altogether deny a party his or her constitutional rights. 29 Am. Jur. 2d, Evidence § 6 (1994). Eliminating the seat belt defense on the issue of causation did not preclude the defendants from making other defenses as to causation.

B

The defendants’ second claim is that § 14-100a (c) (4) deprived them of access to the courts in violation of article first, § 10, of the Connecticut constitution. They claim that § 10 preserved the right to defend against liability by showing contributory negligence and that § 14-100a (c) (4) closed the courts to the defendants by not allowing them to present the seat belt defense.

The defendants rely on Gentile v. Altermatt, 169 Conn. 267, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976), to prove that they were deprived of access to the courts. Gentile holds that “[t]he adoption of article first, § 10, recognized all existing rights and removed from the power of the legislature the authority to abolish those rights in their entirety. Rather, the legislature retains the power to provide reasonable alternatives to the enforcement of such rights.” Id., 286. There are three flaws in the defendants’ argument.

First, there has never been an established common law duty to wear a seat belt in Connecticut. Prior to the enactment of § 14-100a (c) (4), Superior Court decisions were split as to the duty to wear a seat belt. As there is no common law duty, the defendants cannot claim that they have been deprived of a common law right.

Second, because § 10 preserved only those rights that existed in 1818, the defendants have to prove that contributory negligence existed as an established defense in 1818. Although there was an English case that addressed this issue in 1809, it was not until 1824 that there was an American case in Massachusetts. W. Kee-ton & W. Prosser, Torts (5th Ed. 1984) § 65, p. 451 n.l. There was no case in Connecticut on this issue until 1844. New-Haven Steam-Boat & Transportation Co. v. Vanderbilt, 16 Conn. 420, 429-30 (1844); see also Beers v. Housatonic Railroad Co., 19 Conn. 566, 575 (1849); cf. Carpenter v. Meachum, 229 Conn. 193, 640 A.2d 591 (1994).

Third, Gentile does not apply § 10 to a defense. Because of the no-fault law, the plaintiffs in Gentile were completely barred from bringing a cause of action. Yet, in the present case, the statute did not bar the defendant from bringing a cause of action, but from presenting a defense. Despite § 14-100a (c) (4), the defendants were left with reasonable alternative defenses. Because the defendants had alternative defenses, they cannot claim that their § 10 right to defend liability was impaired by the legislature. Therefore § 14-100a (c) (4) does not conflict with Gentile and the defendants’ access to the courts under article first, § 10, was not hindered.

C

The defendants third claim is that § 14-100a (c) (4) violates their equal protection rights under the Connecticut constitution and the United States constitution. They argue that the statute distinguishes between plaintiffs and defendants and deprives the defendants of property and money without a compelling state interest.

This court must first determine the appropriate constitutional standard to apply to this equal protection claim. The defendants argue that their claim deserves strict scrutiny because § 14-100a (c) (4) interferes with their fundamental right of access to the courts. Strict scrutiny is not the appropriate standard for three reasons. First, § 10 does not confer a fundamental right that merits strict scrutiny. Ryskiewicz v. New Britain, 193 Conn. 589, 597-98, 479 A.2d 793 (1984). Second, the defendants have not been denied the fundamental right of access to the courts, as discussed previously. Third, the defendants have failed to identify any suspect class against which § 14-100a (c) (4) discriminates. The defendants in this case were treated no differently than any other similarly situated defendant would have been because all defendants are barred under the statute from presenting the seat belt defense. The group identified by the defendants is not the sort of “discrete and insular” minority for whom strict scrutiny is necessary to uphold its rights. Graham v. Richardson, 403 U.S. 365, 372, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971). “If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge.” Ryskiewicz v. New Britain, supra, 597. State action concerning social and economic regulation, with some exceptions will survive an equal protection challenge if it satisfies a rational basis test. Daly v. Del-Ponte, 225 Conn. 499, 513, 624 A.2d 876 (1993). Therefore, the defendants claim merits rational basis review.

Under rational basis review, this court may not sit “ ‘as a superlegislature to judge wisdom or desirability or legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines. . . .’ ” Blue Sky Bar, Inc. v. Strat-ford, 203 Conn. 14, 27, 523 A.2d 467 (1987), quoting New Orleans v. Duke, 427 U.S. 297, 303-304, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976). Instead “ ‘[tjhis strong presumption of legislative validity is overcome only when it plainly appears that the terms of the legislation are not reasonable or that they are not rationally adapted to the promotion of public health, safety, convenience, or welfare. . . .’The party challenging the enactment bears the burden of overcoming this presumption.” (Citations omitted.) Id., 24. The defendants have not met this burden and it has already been demonstrated in the previous discussion of due process that this statute is rationally related to a legitimate state purpose. The equal protection clause of neither the federal nor state constitution has been violated by § 14-100a (c) (4).

D

The defendants’ fourth claim is that § 14-100a (c) (4) interferes with the right to a trial by jury under article first, § 19, of the Connecticut constitution because the statute bars the seat belt defense. In interpreting § 19, our Supreme Court has held “that the right to a jury trial exists both in cases in which it existed at common law at the time of the adoption of the constitutional provisions preserving it and in cases substantially similar thereto.” Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 50, 578 A.2d 1054 (1990); Spitzer v. Haims & Co., 217 Conn. 532, 539-41, 587 A.2d 105 (1991). Our Supreme Court also found that there is the right to protect the jury trial from procedural changes that in fact change the substance of the jury institution. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 49-53. The defendants have not successfully argued a violation of either of these rights.

The first part of the defendants’ claim is that their right to have questions of fact resolved by a jury was interfered with. As there is no right to present facts to a jury on a defense not recognized by law, the defendants appear to be making the argument that the seat belt defense is a legal defense. In Caciopoli v. Acam-para, 30 Conn. App. 327, 620 A.2d 191 (1993), a defense recognized by law was at issue; the case at hand is distinguishable as the defense is not recognized by law. The second part of the defendants’ claim is that § 14-100a (c) (4) interfered with a procedural aspect of their right to a jury trial. When the trial court excluded Bower’s failure to wear a seat belt it was not a “summary decision,” but instead the trial court was simply complying with the clear mandate of § 14-100a (c) (4). In conclusion, there is no violation of the defendants’ article one, § 19 rights because there was no interference with the jury’s fact-finding function or the substance of the jury trial.

II

The defendants’ second claim concerns collateral source payments and tort reform. The defendants’ first claim is that the $400,000 the plaintiffs received from D’Onfro is a collateral source payment that must be deducted from any recovery received by the plaintiffs. The jury rendered an award of $1,000,000 and apportioned liability, finding D’Onfro 50 percent negligent and Ausmus 50 percent negligent. Under General Statutes § 52-225a, the defendants claim that the collateral source setoffs are deducted from their percentage of the award rather than the whole award. We disagree.

The procedural facts surrounding the collateral source issue are as follows. The plaintiffs brought this action against David D’Onfro, the driver of the vehicle in which the plaintiff was riding, Bradley Ausmus, the driver of the vehicle that hit the plaintiff as she lay in the road, and Lin Ausmus, the owner of the vehicle driven by Bradley Ausmus. Prior to trial, the plaintiffs settled their claim against D’Onfro for $400,000. The case proceeded to a trial before a jury against the remaining defendants, Bradley Ausmus and Lin Ausmus. The jury returned a verdict of $1,000,000, finding Bradley Ausmus to be 50 percent negligent and D’Onfro to be 50 percent negligent.

Following the jury’s verdict, the defendants argued that the $400,000 settlement, as well as $43,345.10 received by the plaintiffs for payment of medical bills, should be deducted from the $500,000 verdict rendered against them. The trial court concluded that the $400,000 settlement payment should not be considered as a collateral source and that the $43,345.10 medical payment should be deducted from the $1,000,000. Specifically, the trial court held that, although Tort Reform I; General Statutes (Rev. to 1987) § 52-225b; seemed to require the court to deduct settlement payments as a collateral source, the legislature amended § 52-225b with the enactment of Public Acts 1987, No. 87-227, § 5 (Tort Reform II), which excluded amounts received as a settlement from the definition of a collateral source. Section 52-225b was amended in Tort Reform II. The trial court further concluded that the public act was passed to clarify an existing statute and should be applied retroactively. As the trial court noted in Turner v. Turner, 219 Conn. 703, 717, 595 A.2d 297 (1991): “According to well established principles of statutory construction, an amendment that construes and clarifies a prior statute operates as the legislature’s declaration of the meaning of the original act. . . . If an amendment is enacted soon after controversies arise regarding the interpretation of the prior act, it is logical to regard the amendment as a legislative interpretation of the original act . . . .” (Citations omitted; internal quotation marks omitted.) Therefore, “an act that has been passed to clarify an existing statute . . . is ... to be applied retroactively.” Rudewicz v. Gagne, 22 Conn. App. 285, 288, 582 A.2d 463 (1990). The trial court, therefore, refused to deduct the $400,000 payment as a collateral source. We agree with the well reasoned decision of the trial court in applying Tort Reform II and Turner v. Turner, supra, 703, in finding that settlements are not collateral source payments and we adopt its findings and reasoning as set forth above.

The trial court deducted the $43,346.10 in medical payments from the $1,000,000 jury verdict, rather than from the defendants’ $500,000 proportionate share, leaving a balance of $956,653.90. The trial court then rendered judgment against the Ausmus defendants in the amount of $478,326.95, representing their 50 percent proportional negligence. We agree, subject to the economic damage finding hereinafter set forth.

Fleming v. Garnett, 231 Conn. 77, 646 A.2d 1308 (1994), a case recently decided by our Supreme Court, is directly on point on the issue of deducting the collateral source from the total award. Fleming holds that the trial court, in interpreting § 52-225, properly applied the net collateral source reduction to the total amount of damages determined by the jury rather than to a proportionate share. This interpretation of the statute comes from the Supreme Court’s well established principles of statutory construction. The Supreme Court has said: “Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Id., 91-92.

With these principles of statutory construction in mind, our Supreme Court examined the defendant’s claim in Fleming. Section 52-225a provides that the net collateral source reduction must be applied to the “damages . . . awarded to compensate the claimant.” The defendant asserted that the term “award,” as used in this context, means the defendant’s proportionate share of the recoverable damages. The court found no support for this reading of the statute and found that the challenged language, “which contains no express qualification of the amount of the award, supported the trial court’s application of the collateral source reduction to the total damages found by the jury.” Fleming v. Garnett, supra, 231 Conn. 92.

“Subsequent revisions to the collateral source reduction provision of Tort Reform I comport with our [Supreme Court’s] construction. Section 52-225a was revised effective October 1,1987, by No. 87-227 of the 1987 Public Acts (Tort Reform II), for the purpose of clarifying the manner in which the collateral source reduction and other offsets are to be applied in the calculation of a claimant’s recoverable damages. See, e.g., 30 H.R. Proc., Pt. 16,1987 Sess., p. 5664, remarks of Representative Richard D. Tulisano. Under Tort Reform II, when ‘damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h . . . .’ General Statutes (Rev. to 1993) § 52-225a.” Id., 92-93. According to our Supreme Court, the current statute defines “ ‘award’ in terms of a claimant’s total loss, as opposed to the liability assessed against any particular defendant.” Id., 93. Therefore, the Supreme Court concluded that the collateral source reduction of § 52-255a should be applied against the total damages found by the jury necessary to compensate the plaintiff.

The defendants also dispute the jury award of $100,000 to Bower for past economic damages and challenge the accuracy of the $43,346.10 in medical payments that the trial court did set off as a collateral source payment.

The defendants contend that past due economic damages do not amount to $100,000, but instead amount to $65,019.40, a sum not disputed by the plaintiff. General Statutes § 52-572h (a) defines economic damages as “(1) . . . compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages; (2) ‘noneconomic damages’ means compensation determined by the trier of fact for all non-pecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering . . . .” Therefore, the economic damages should be reduced from $100,000 to $65,019.40, the amount actually spent or owed that was proven and conceded by both parties.

As for the medical payments, there is no dispute that the plaintiffs received $43,346.10 from Blue Cross and Blue Shield. That is the only amount “paid for the benefit of the claimant.” General Statutes § 52-225a (b). Nothing in § 52-225b that defines collateral sources authorizes a further reduction as claimed by the defendants. The trial court properly deducted the $43,346.10 in medical insurance payments from the $1,000,000 award and divided that amount by two, to arrive at a net figure of $478,326.95. This approach follows § 52-225a, which directs the court to “reduce the amount of such award” by collateral source payments to the claimant. “Such award” refers to the “damages awarded to compensate the claimant” by the trier of fact. In this case, the jury found the plaintiffs damages to be $1,000,000.

The trial court properly applied the collateral source statute in determining both the appropriate reductions and method of calculating the net figure for which the defendants were responsible, but it should have reduced the economic damages to the amount actually proven, $65,019.40. The entire jury award should, therefore, have been reduced to $965,019.40. After deducting the medical payments received by the plaintiffs and dividing that amount by two, the judgment against Lin and Bradley Ausmus should have been $460,836.65.

Ill

The defendants’ third claim concerns an offer of judgment pursuant to § 52-192a. The issue is whether the plaintiffs’ verdict of $500,000 against the Ausmuses should be increased by 12 percent annual interest on that amount.

On February 14, 1990, pursuant to Practice Book § 346, the plaintiffs filed the following offer of judgment. “The plaintiffs, Amy Bower and Edward K. Bower, pursuant to § 346 of the Connecticut Practice Book, offer to stipulate the judgment against all Defendants for the sum of $700,000. This offer is subject to the following conditions: 1. That the Defendant, David V. D’Onfro, pay the sum of $400,000; 2. That the Defendants Bradley D. Ausmus and Lin Ausmus pay the sum of $300,000; and 3. That an offer of less than the sum of $700,000 from any Defendant shall not be accepted by the Plaintiffs.”

The defendants moved to strike the offer of judgment and the plaintiffs filed an amended offer of judgment which read as follows: “The plaintiffs in the above-entitled action, pursuant to Practice Book Section 346 et seq. and C.G.S. Section 52-192a, hereby offer to take judgment of the Defendants in the amount of SEVEN HUNDRED THOUSAND and 00/100 ($700,000.00) Dollars.” The motion to strike was never heard or decided. The only offer of judgment by the plaintiffs before the trial court was the amended offer. Subsequent thereto, the defendant David V. D’Onfro on June 6,1990, filed an offer of judgment, which read as follows: “The undersigned defendant hereby offers to settle the claim underlying this action and stipulate to a judgment in the amount of Four Hundred Thousand ($400,000) Dollars without interest or costs to either party.”

The offer of judgment was accepted and the judgment was entered by the court on March 12, 1992, under the following terms: “Judgment shall enter on behalf of the plaintiffs, Amy Bower and Edward K. Bower as against the defendant, David D. D’Onfro, aka David V. D’Onfro in the amount of three hundred thousand dollars ($300,000); judgment shall further enter on behalf of the plaintiffs, Amy Bower and Edward K. Bower, in the amount of one hundred thousand dollars ($100,000) as against the defendant David D. D’Onfro, aka David D’Onfro. (Case still open against the defendants Bradley Ausmus and Lin Ausmus.)” The May 12, 1992 memorandum filed by the plaintiffs concedes that the offer of judgment was accepted by the plaintiffs.

The plaintiffs, pursuant to Practice Book §§ 345 through 350 and General Statutes § 52-192a, filed a motion to compute interest on the verdict. The defendants, Lin Ausmus and Bradley Ausmus, objected to the plaintiffs’ motion on the grounds that the plaintiffs’ amended offer of judgment was for $700,000 and was indivisible. The defendants further stated that after the plaintiffs settled a portion of the case with D’Onfro, the plaintiffs did not file a new offer of judgment. The defendants than argued that the plaintiffs therefore did not recover an amount equal to or greater than the amount in the offer of judgment because the judgment rendered against the Ausmuses is less than the $700,000 offer of judgment.

The trial court overruled the defendants’ objection and found that the plaintiffs were entitled to the 12 percent interest. The trial court reasoned that as the amended offer reflected the sum of the initial figures as a total potential liability of all defendants and § 52-192a precluded the plaintiffs from filing a second offer of judgment after the claims against D’Onfro were settled, the most equitable solution necessitated dividing the offer equally between the two sets of defendants and, therefore, determined that the offer of judgment against the Ausmus defendants was $350,000. The court concluded that because the jury award of $500,000 against the Ausmuses was greater than the $350,000, the plaintiffs were entitled to interest on the $500,000 award. We disagree with the trial court as there is no authority to divide the $700,000 between the two sets of the defendants, and the plaintiffs are bound by the $700,000 amended offer of judgment.

Civiello v. Owens-Corning Fiberglass Corp., 208 Conn. 82, 90, 544 A.2d 158 (1988), holds that it is a judgment, not a verdict, that controls under § 52-192a (b). In Civiello, our Supreme Court stated, “The issue turns upon whether the term ‘recovered’ in the statute refers to the verdict as returned by jury or the judgment thereon as rendered by the court. . . .’’Id. Therefore, we hold that the judgment that the plaintiffs received in the present proceeding against the Ausmuses must exceed $700,000 in order to satisfy § 52-192a (b).

In the case at hand the jury returned a verdict of $1,000,000 and apportioned liability, finding D’Onfro 50 percent negligent and the Ausmuses 50 percent negligent. The trial court then properly deducted the $43,346.10 in medical insurance payments from the $1,000,000 award, divided that figure by two and rendered a judgment of $478,326.95 against the Ausmuses. The $478,326.95 judgment is not in excess of the $700,000 offer of judgment nor is the corrected judgment of $460,836.65. The statute does not apply and the verdict should not be increased by 12 percent annual interest. Therefore, the trial court improperly applied the offer of judgment statute, § 52-192a, and we reverse that part of the judgment.

IV

The defendants’ fourth claim has two elements. The defendants first claim it was improper to preclude them from inquiring into the settlement between the plaintiffs and David D’Onfro. Second, the defendants claim that the plaintiff’s evidential and judicial admissions were admissible.

A

As to the claims regarding settlement, § 52-216a prohibits such testimony. The plaintiffs filed a motion to preclude the defendants from “mentioning, commenting on, questioning about, or inquiring into the settlement of any claim between the plaintiffs and David V. D’Onfro.” The defendants filed an objection to the plaintiffs’ motion concerning § 52-216a. The defendants claim that § 52-216a does not prohibit them from asking the plaintiffs if they had sued another tortfeasor, and if, as a result of that complaint, they had obtained a monetary recovery.

The defendants’ claim ignores the plain language of § 52-216a, which provides that an agreement not to sue or a release “shall not be read to a jury or in any other way introduced into evidence by either party . . . .” (Emphasis added.) Section 52-216a “was intended to ensure that jury verdicts would not be influenced by the knowledge of a partial settlement.” Civiello v. Owens-Corning Fiberglass Corp., supra, 208 Conn. 93; Belanger v. Village Pub I, Inc., 26 Conn. App. 509, 514, 603 A.2d 1173 (1992). Therefore the trial court properly excluded any evidence of the settlement.

B

The defendants also claim that the judicial admissions should have been allowed in as evidence. On March 9, Bradley Ausmus filed a memorandum in support of his offer that the prior complaints were admissible as evidential admissions and the current complaint as a judicial admission. The trial court prohibited Bradley Ausmus from inquiring of the plaintiff as to her evidential and judicial admission that appears in paragraph six of the original complaint. Paragraph six provides: “Suddenly, the defendant, David V. D’Onfro so steered, controlled and operated the course of movement of the vehicle he was driving so as to leave the travel portion of the road, skidding sideways and then turning completely over in mid air, causing the plaintiff, Amy Bower, to be ejected from the vehicle and thrown into the east bound lane resulting in her being run over by the vehicle operated by the defendant [Bradley Ausmus] . . . .” (Emphasis added.) The Ausmuses believe that this admission is critical to Bradley Ausmus’ case and it is the same as his claim of nonnegligence. It is the Ausmuses’ claim that D’Onfro caused the plaintiff to be ejected from the vehicle and that D’Onfro caused her to be thrown into the eastbound lane, which caused and resulted in her being run over by the vehicle operated by Bradley Ausmus. It is this admission by the plaintiff that the Ausmuses wanted to bring to the jury’s attention, and to inquire of her as to that issue, to which she testified that she has no knowledge. The amended substitute complaint, which was submitted to the jury, contained the identical allegation making it a judicial admission as to causation, as to fault, and as to a lack of, or freedom from, negligence by the Ausmuses.

The trial court was incorrect in excluding judicial and evidential admissions in the pleadings. “Statements in pleadings that are inconsistent with claims advanced at trial are admissible as judicial admissions.” Schenck v. Pelkey, 176 Conn. 245, 248, 405 A.2d 655 (1978). In Schenck, the original complaint against the Pelkeys was introduced into evidence as a judicial admission on the issue of proximate cause. The defendants acknowledge that the amended substitute complaint contained the precise allegations that the defendants claim they were prohibited from presenting to the jury. As the judicial admissions were actually admitted, the error is harmless, as their admission would be cumulative.

V

The defendants’ fifth claim is that the term “racing” should not have been used. The trial court permitted two of the plaintiffs’ witnesses to utilize the term racing in their testimony. The defendants’ objection is based on the fact that the complaint contains no allegation of racing pursuant to General Statutes § 14-224. The plaintiffs denied making any claim of racing in violation of that statute. Rather, the plaintiffs alleged that Bradley Ausmus, in operating his vehicle at a high rate of speed, was both negligent and reckless. One of the plaintiffs’ witnesses testified, “I seen two cars driving very fast and both of them were weaving across the yellow line like racing sort of, you know.” He later defined what he meant by racing, “Going too fast, like I said, weaving, going like as if to pass.” This testimony was relevant as tending to prove both speed and recklessness. Lay opinion on such matters has long been held admissible in Connecticut. Squires v. Reynolds, 125 Conn. 366, 5 A.2d 877 (1939); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.15.3. When viewed in context, the witness’ use of the word racing appears to have been simply to describe the speed and manner in which Bradley Ausmus and D’Onfro were driving. Neither he nor anyone else testified that they were engaged in a contest and therefore racing within the context of § 14-224.

Since the testimony was relevant to the allegations in the complaint and involved only violations actually alleged, the trial court properly refused to strike the witness’ use of the word racing.

VI

The defendants’ sixth and final claim is insufficiency of the evidence. On the basis of the evidence presented at trial, the jury could have reasonably found the following: The posted speed limit for the road on which the accident occurred was twenty-five miles per hour. The Ausmus vehicle was closely following the D’Onfro vehicle in which the plaintiff was a passenger. Both cars were going at high rates of speed weaving back and forth across the yellow line trying to pass each other. The accident occurred after Bradley Ausmus came over the crest of a hill. At the top of that hill there was a blind spot. Bradley Ausmus admitted to driving at forty-five miles per hour at the blind spot. Just prior to the impact, he was driving fifty-two to sixty miles per hour. Had he been driving at the posted speed limits of twenty-five miles per hour, he would have had sufficient time to stop prior to hitting the plaintiff as she lay in the road. Instead, he jammed on his brakes, lost control of his vehicle, and skidded into the plaintiff and dragged her sixty-eight feet.

Applying the trial court’s charge on proximate and concurrent cause to the evidence, the jury could have reasonably concluded that the defendants were liable for the injuries sustained by the plaintiff. Bielaska v. Waterford, 196 Conn. 151, 156, 491 A.2d 1071 (1985); Pagani v. BT II, Ltd. Partnership, 24 Conn. App. 739, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991).

The judgment is reversed in part and the case is remanded with direction to render a judgment of $460,836.85 without any prejudgment interest.

In this opinion the other judges concurred.

       The case against the named defendant was settled prior to trial. As used in this opinion, the defendants refers to Bradley D. Ausmus and Lin Ausmus. The named plaintiffs father Edward K. Bower sought to recover for medical expenses incurred. As used in this opinion, the plaintiff refers to the named plaintiff.

       Article first, § 10, of the Connecticut constitution provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       Article first, § 20, of the Connecticut constitution provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex.”
      The fourteenth amendment to the United States constitution provides in relevant part: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

       Article first, § 19, of the Connecticut constitution provides: “The right of trial by jury shall remain inviolate.”

       Under Tort I, General Statutes (Rev. to 1987) § 52-225b defined collateral sources to be “any payments made to the claimant, or on his behalf, (1) by any person as compensation for personal injury or wrongful death attributable to the incident giving rise to the cause of action . . . .” General Statutes (Rev. to 1989) § 52-225b, as amended by Public Acts 1987, No. 87-227, § 5, provides that “ ‘[cjollateral sources’ do not include amounts received by a claimant as a settlement.”

       General Statutes § 52-192a (b) provides in pertinent part: “After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount . . .

       General Statutes § 14-224 provides: “evasion of responsibility in OPERATION OF MOTOR VEHICLES. RACING. REQUIRED REMOVAL OF MOTOR VEHICLE from traveled portion OF highway, (a) Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person, and if such operator of the motor vehicle causing the death or serious physical injury of any person is unable to give his name, address and operator’s license number and registration number to the person injured or to any witness or officer, for any reason or cause, such operator shall immediately report such death or serious physical injury of any person to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the death or serious physical injury of any person and his name, address, operator’s license number and registration number.
      “(b) Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury, as defined in section 53a-3, to any other person or injury or damage to property shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to the owner of the injured or damaged property, or to any officer or witness to the physical injury to person or injury or damage to property, and if such operator of the motor vehicle causing the physical injury of any person or injury or damage to any property is unable to give his name, address and operator’s license number and registration number to the person injured or the owner of the property injured or damaged, or to any witness or officer, for any reason or cause, such operator shall immediately report such physical injury of any person or injury or damage to property to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the physical injury of any person or the injury or damage to property and his name, address, operator’s license number and registration number.
      “(c) No person shall operate a motor vehicle upon any public highway for a wager or for any race or for the purpose of making a speed record.
      “(d) Each person operating a motor vehicle who is knowingly involved in an accident on a limited access highway which causes damage to property only shall immediately move or cause his motor vehicle to be moved from the traveled portion of the highway to an untraveled area which is adjacent to the accident site if it is possible to move the motor vehicle without risk of further damage to property or injury to any person.
      “(e) No person who acts in accordance with the provisions of subsection (d) of this section may be considered to have violated subsection (b) of this section.
      “(f) Any person who violates the provisions of subsection (a) of this section shall be fined not more than five thousand dollars or be imprisoned not less than one year nor more than five years or be both fined and imprisoned.
      “(g) Any person who violates the provisions of subsection (b) or (c) of this section shall be fined not less than seventy-five dollars nor more than six hundred dollars or be imprisoned not more than one year or be both fined and imprisoned, and for any subsequent offense shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned not more than one year or be both fined and imprisoned.”


author: Schaller, J.

text:
    City of New Haven v. Local 884, Council 4, AFSCME, AFL-CIO
    (13525)
    O’Connell, Schaller and Freedman, Js.

      Argued May 1
    decision released August 8, 1995

      Steven G. Mednick, corporation counsel, with whom, on the brief, was Karen A. Goodrow, assistant corporation counsel, for the appellant (plaintiff).

      J. William Gagne, Jr., with whom, on the brief, was Harry B. Elliott, Jr., for the appellee (defendant).
   Schaller, J.

The plaintiff city of New Haven appeals from the judgment of the trial court denying its application to vacate an arbitration award by the state board of mediation and arbitration (board). The dispositive issue on appeal is whether the trial court improperly denied the application to vacate the arbitration award on a finding that the arbitrators had committed misconduct in violation of General Statutes § 52-418 (a) (3). We reverse the judgment of the trial court and remand this case with direction to render judgment vacating the arbitration award.

The trial court found the following facts. On April 18, 1986, the plaintiff terminated the grievant, Benedetto Minichino, from his position as a sanitarian. The matter was brought to the board, and the plaintiff appealed to the trial court from an award in favor of the grie-vant. The matter was returned to the board, where each party sought and received at least one continuance. It was then assigned for what was to be a final hearing on August 14, 1991.

Clifton E. Graves, Jr., the attorney handling the matter for the plaintiff, became ill the night before the scheduled hearing. Graves called the board offices the next morning and spoke first to the attorney for the defendant. She advised him that the granting of a continuance was the board’s decision. The board chairperson then told Graves that the hearing would be held in his absence and that he could send someone else.

A proposed agreement was read to Graves after he spoke with counsel for the defendant, and Graves agreed to a resolution. The court concluded that although a continuance should have been granted, when Graves proceeded to negotiations, “he waived any defect in the proceedings up to that point.”

The issue before us is whether the trial court was required to grant the application to vacate the arbitration award upon a finding that the arbitrators’ failure to grant a postponement was misconduct in violation of the provisions of § 52-418 (a) (3).

Section 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 ... (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown . . . .” (Emphasis added.)

Our interpretation of § 52-418 (a) (3) is governed by “well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature.” State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). “To determine the intent of the legislature, we first consider whether the statutory language yields a plain and unambiguous resolution. ... If the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature . . . and we need inquire no further . . . .” (Citations omitted; internal quotation marks omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). The statute is clear on its face that upon a finding of misconduct of the board, vacatur is mandatory.

The word shall has an accepted statutory meaning. “As used in statutes, contracts, or the like, this word is generally imperative or mandatory. ... It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning . . . .” Black’s Law Dictionary (6th Ed. 1990). As used in the statute, the word shall requires the trial court to vacate the arbitration award upon a finding of misconduct by the board.

The trial court, in its memorandum of decision, concluded that the board was guilty of misconduct pursuant to § 52-418 (a) (3) when it refused the city’s request for a postponement on August 14,1991: “The court agrees with the plaintiff’s first claim, that it was improper to deny Graves a continuance because of illness. This same request under these circumstances made to this court would have produced an affirmative response and the matter would be reassigned. The court recognizes the need to move business and afford litigants speedy results. However, a sudden illness and the lack of an available replacement should not determine the rights of parties. It was misconduct on the part of the board to refase to postpone the hearing under these circumstances” (Emphasis added.)

“The concept of arbitral ‘misconduct’ does net lend itself to a precise definition but is, instead, best illustrated by example. See generally A. Rothstein, ‘Vacation of Awards for Fraud, Bias, Misconduct and Partiality,’ 10 Vand. L. Rev. 813 (195'0- . . .An award may . . . be set aside on the basis of procedural error by an arbitration panel if, for instance, the panel arbitrarily denies a reasonable request for postponement of a hearing; Fairchild & Co. v. Richmond, F. & P. R. Co., 516 F. Sup. 1305, 1313 (D.D.C. 1981); see Two Sisters, Inc. v. Gosch & Co., 171 Conn. 493, 499 n.4, 370 A.2d 1020 (1976) . . . .” (Citations omitted.) O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 146-47, 523 A.2d 1271 (1987). “The presumptive validity of consensual arbitration awards depends upon the underlying integrity of the arbitration process. When that integrity is tainted either by actual impropriety or the appearance of impropriety, the arbitration award cannot be permitted to stand. See Commonwealth Coatings Corporation v. Continental Casualty Co., 393 U.S. 145, 147-48, 89 S. Ct. 337, 21 L. Ed. 2d 301 (1968), reh. denied, 393 U.S. 1112, 89 S. Ct. 848,21L. Ed. 2d 812 (1969).” O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 148.

The finding of misconduct pursuant to § 52-418 (a) (3) is a question of fact for the trial court. “ ‘The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses.’ (Citations omitted.) Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990).” Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993). “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. . . .” (Citations omitted; internal quotation marks omitted.) Id., 41. We are unable to conclude, on the basis of the record before us, that the trial court’s finding of misconduct was clearly erroneous.

Once a determination of misconduct was made, the trial court was required to vacate the award pursuant to § 52-418 (a) (3). The court failed to vacate the award, finding instead that “although the continuance should have been granted, once Graves went on to negotiate, he waived any defect in the proceedings up to that point.” This issue need not have been reached by the court. Once a finding of misconduct was made, the court was required to vacate the award. It was improper as a matter of law for the trial court to consider the issue of waiver rather than order vacatur upon a finding of arbitral misconduct.

“Courts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for adding them.” State v. Nelson, 126 Conn. 412, 416, 11 A.2d 856 (1940). Section 52-418 (a) (3) is clear and unambiguous that, upon a finding of misconduct, an application to vacate must be granted. While it is true that the attorney for the city engaged in negotiations after being told by the board that the hearing would be held without him, the issue of waiver was not properly before the court. Once the court found misconduct by the board, § 52-418 (a) (3) required vacatur of the award.

Because we reverse on this claim, it is unnecessary to reach any of the plaintiff’s other claims.

The judgment is reversed and the case is remanded with direction to grant the plaintiff’s application to vacate the arbitration award.

In this opinion the other judges concurred.