author: Freedman, J.

text:
    Tolland Enterprises v. Commissioner of Transportation
    (12454)
    Heiman, Freedman and Cretella, Js.

      Argued March 30
    decision released September 13, 1994

      Arnold Sbarge, for the appellant (plaintiff).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Carolyn K. Querijero, assistant attorney general, for the appellee (defendant).
   Freedman, J.

This is an appeal by the plaintiff, Tolland Enterprises, brought pursuant to General Statutes § 51-197a from the assessment of damages for the taking of its property by eminent domain pursuant to General Statutes §§ 13a-73 (b) and 13b-23. The defendant, the commissioner of transportation, determined the value for the purpose of the taking to be $16,060. The plaintiff applied to the Superior Court, pursuant to General Statutes § 13a-76, for reassessment of damages. The trial court found that the defendant had properly determined the value of the property for the purpose of the taking. On appeal, the plaintiff claims that the trial court improperly (1) found that the rule against perpetuities does not apply to the state for the purpose of invalidating a repurchase provision contained in a quitclaim deed in which the state was the grantor and (2) failed to award severance damages notwithstanding its finding that the repurchase provision was enforceable. We affirm the judgment of the trial court.

The trial court found the following facts. The state acquired a strip of land sixty feet in width containing 2.13 acres on Cottage Grove Road in Bloomfield in conjunction with its plan to build a highway bypassing the city of Hartford and connecting 1-91 and 1-84 to the south and west of Hartford with the continuation of 1-91 north of Hartford. The plan was aborted, but the state retained title to the land in the belief that the bypass would be built in the future. Sometime after the state acquired the strip of land, the plaintiff began acquiring land along Cottage Grove Road for the development of an apartment complex. On October 18, 1963, the plaintiff purchased the sixty foot strip of land from the state “for one dollar and other valuable consideration.” The quitclaim deed conveying the strip of land to the plaintiff contained the repurchase provision that is at issue in this appeal.

The repurchase provision states: “As part consideration for this deed, the Releasees herein hereby agree, for themselves, their heirs and assigns, that the State of Connecticut or the Town of Bloomfield of said State of Connecticut shall have the right to purchase said premises, with all improvements thereon, together with access thereto from the adjacent land of the Releasees herein in said Town of Bloomfield, for the sum of $16,060.00 in the event said premises shall be required by either said State of Connecticut or said Town of Bloomfield for highway purposes, upon giving the owner of record sixty (60) days notice in writing to that effect.”

On January 16, 1991, twenty-seven years after the conveyance, the state notified the plaintiff that it intended to exercise its right to repurchase 2 acres of the 2.13 acre strip of land pursuant to the provision in the conveyance. Subsequent communications failed to resolve the matter, and, on September 4,1991, the state filed a notice of condemnation and assessment of damages that declared that the land taken was necessary for widening Route 218, Cottage Grove Road. The commissioner assessed damages in accordance with the repurchase provision in the amount of $16,060.

The plaintiff appealed the assessment of damages to the Superior Court claiming that the assessment was inadequate and requesting reassessment of the damages. The defendant answered, raising the repurchase provision as a special defense. The plaintiff’s reply to the special defense claimed that the repurchase provision is void because it violates the rule against perpetuities and also constitutes an unreasonable restraint against alienation. The plaintiff also claimed that it was entitled to recover severance damages, because the repurchase provision, if effective, would merely control the price of the land taken and not its claim for severance damages.

The trial court found as a matter of law that the repurchase provision created a repurchase option, and that in Connecticut a repurchase option must comply with the rule against perpetuities. See Neustadt v. Pearce, 145 Conn. 403, 143 A.2d 437 (1958). The trial court stated, however, that the “rule, designed to restrain the aggrandizement of family dynasties during the middle ages by limiting the time during which the alienability of land could be curtailed, ought not to be applied to a governmental body without first concluding that the policy of the rule in promoting the unrestricted alienability of land will otherwise be seriously frustrated.” The trial court concluded that “the rule against perpetuities ought not to be applied to invalidate a repurchase provision inserted into a conveyance by the state for the purpose of conserving the public exchequer in view of the likelihood that the land transferred will eventually be needed for a governmental purpose, such as widening a highway.” Because the repurchase provision was enforceable, the trial court held that the damages for the taking of the strip of land were limited to the $16,060 specified in the repurchase provision.

“The decisive issue [on appeal] is whether the covenant giving the right to repurchase is enforceable .... The covenant purported to grant ... a continuing option, unlimited as to time.... It attempted to create a contingent interest which might not vest until some uncertain date in the future. It falls clearly within the principle stated in H. J. Lewis Oyster Co. v. West, 93 Conn. 518, 530, 107 A. 138 [1919], and is void as violative of the rule against perpetuities.” Neustadt v. Pearce, supra, 145 Conn. 405. The state does not dispute that the repurchase option of this case is such a covenant. Neither of our appellate courts has addressed the question of whether the rule against perpetuities applies to the state for the purpose of invalidating a repurchase provision for the benefit of the state inserted in a conveyance by the state. We conclude that it does not.

The question of whether the rule against perpetuities applies to the state in this matter is a question of law. We, therefore, review this claim de novo. Stiefel v. Lindemann, 33 Conn. App. 799, 806, 638 A.2d 642 (1994); McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 750, 630 A.2d 1372 (1993).

“The underlying and fundamental purpose of the common law rule against perpetuities is the protection of society by allowing full utilization of land. As commonly noted, ‘[t]he rule [against perpetuities] evolved to prevent . . . property from being fettered with future interests so remote that the alienability of the land and its marketability would be impaired, preventing its full utilization for the benefit of society at large as well as of its current owners.’ ” Village of Pinehurst v. Regional Investments of Moore, 330 N.C. 725, 732, 412 S.E.2d 645 (1992).

“The compelling reasons for the rule against perpetuities are believed to be these. First, it strikes a fair balance between the satisfaction of the wishes of members of the present generation to tie up their property and those of future generations to do the same. The desire of property owners to convey or devise what they have by the use of trusts and future interests is widespread, and the law gives some scope to that almost universal want. But if it were permitted without limit, then members of future generations would receive this property already tied up with future interests and trusts, and could not give effect to their desires for the disposition of the property. Thus, the law strikes a balance between these desires of the present generation and of future generations.

“A further reason is that, other things being equal, society is better off, if property is controlled by its living members than if controlled by the dead. Thus, one policy back of the rule against perpetuities is to prevent too much dead hand control of property.” L. Simes & A. Smith, The Law of Future Interests (2d Ed. 1956) § 1117.

While the theories supporting the application of the rule against perpetuities clearly apply to individuals, we conclude that its application to the state is unjustified. Unlike persons, the state is perpetually in existence. Thus, the effect of future interests in yet unborn or contingent remaindermen, or of control of property by those long dead, are not legitimate concerns where the state is involved in the transaction. In addition, the state could have retained the land pending future construction of the bypass; instead, it chose to convey the land to a private party so that it could be utilized until such time as the state or the town of Bloomfield requires it for highway purposes.

Cases from other jurisdictions lend strong support to our conclusion that the rule against perpetuities does not apply to the state for the purpose of invalidating a repurchase provision inserted into a conveyance by the state.

In Southeastern Pennsylvania Transit Authority v. Philadelphia Transit Co., 426 Pa. 377, 233 A.2d 15 (1967), the Pennsylvania Supreme Court held that the rule against perpetuities does not apply to an option held by the city of Philadelphia for the purchase of a privately owned transportation system. The court held, in part, that for reasons of public policy, and under the particular facts of the case, the rule against perpetuities should not operate on the city of Philadelphia’s right to purchase.

In Warren v. Leesburg, 203 So. 2d 522, 526 (Fla. 1967), the city of Leesburg instituted an action to enforce the repurchase provision in a deed. The trial court found in favor of the city. The defendant claimed, for the first time in a petition for a rehearing, that the repurchase option in the original deed from the city was void because it violated the rule against perpetuities. The petition was denied without comment and the Florida District Court of Appeals recognized that the claim was not reviewable because it was not timely raised. Nevertheless, the court went on, noting the risk that its opinion may be considered obiter, to state: “There is also grave doubt in our opinion as to whether or not public bodies such as incorporated municipalities are included within the ban of the rule against perpetuities. Perpetual charitable trusts are not subject to the rule. While not strictly analogous, property owned by a City is in a very real sense so owned and held for the benefit of the public. If perpetual charitable trusts are not ‘within the spirit of the rule’ it would seem that by the same reasoning a public body would be in the same category.” Id., 526.

In West Indian Co. v. Government of the Virgin Islands, 844 F.2d 1007 (3d Cir. 1988), the United States Court of Appeals for the Third Circuit considered whether an agreement between the West Indian Company, and the government of the Virgin Islands should be considered contractually binding on the legislature. In 1913, Denmark, then the sovereign of the Virgin Islands, granted the West Indian Company a right of reclamation of certain lands. The agreement did not provide for any time limitations in which the West Indian Company could exercise its right of reclamation. In 1968, a dispute arose regarding the treaty granting the right of reclamation and an agreement was entered into to settle the dispute. The case addressed the enforceability of the latter agreement. Because the court resolved the issue under the settlement agreement, it did not address the assertion that the 1913 grant of the right of reclamation to the West Indian Company violated the rule against perpetuities. Nonetheless, the court went on to state in dicta: “We doubt that the act of a sovereign like Denmark’s concession to [the West Indian Company] can violate the rule against perpetuities . . . .” Id., 1017.

In Joseph Schonthal Co. v. Sylvania, 60 Ohio App. 407, 21 N.E.2d 1008 (1938), an action to quiet title to certain real estate, the trial court found in favor of the defendant. The issue was whether an executory limitation over to the village upon cessation of the use of the premises in accordance with the deed violated the rule against perpetuities. The court held that the rule against perpetuities existing in Ohio at the time of the creation of the deed in question was not violated by the deed. The court, however, went on to state: “Certainly no rule against perpetuities could ever be intended to apply to municipal corporations. On the contrary, they are designed and intended to be perpetual.” Id., 415.

Thus, we conclude that the rule against perpetuities does not apply to the state for the purpose of invalidating a repurchase provision contained in a quitclaim deed in which the state was the grantor.

The plaintiff next claims that the trial court improperly failed to award severance damages notwithstanding its finding that the repurchase provision inserted in the conveyance was enforceable. Specifically, the plaintiff claims that the taking by the state was a partial taking and, therefore, the plaintiff is entitled to the difference between the value of the whole parcel prior to the taking and the value of the property remaining as severed after the taking. We do not agree.

Severance damages compensate for the diminution in the fair market value of the remainder of the property owner’s land, which is both unique to that land and arises as the direct and immediate result of the taking of a portion of the lands by the condemning authority. See Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 298-99, 426 A.2d 280 (1979).

The plaintiff attempts to avoid the consequences of its agreement embodied in the repurchase provision by claiming that the damages it is seeking are for the remainder of the property and not for the strip of land taken by the state. At the time of the conveyance to the plaintiff, the plaintiff agreed to return the land to the state for $16,060. In the meantime, the plaintiff has enjoyed the use of the land and the benefit it has provided to the surrounding property for the past twenty-seven years. To award the plaintiff severance damages would contravene the agreement set forth in the repurchase provision and thus penalize the state for enforcing its rights.

We conclude that the trial court properly found that the plaintiff was not entitled to severance damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the repurchase provision is an unreasonable restraint on alienation. Here, however, the repurchase provision does not prohibit outright the sale of the property in question. Under our law, a restraint on alienation generally prohibits or penalizes the power of the owner to alienate his or her property freely. See Olean v. Treglia, 190 Conn. 756, 764, 463 A.2d 242 (1983). We conclude that the provision does not constitute an unreasonable restraint on alienation.

       “The rule against perpetuities states that ‘[n]o interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.’ J. Gray, The Rule Against Perpetuities (4th Ed. 1942), p. 191; Connecticut Bank & Trust Co. v. Brody, 174 Conn. 616, 623, 392 A.2d 445 (1978).” Texaco Refining & Marketing, Inc. v. Samowitz, 213 Conn. 676, 683, 570 A.2d 170 (1990).

       For a view to the contrary, see Haggerty v. Oakland, 161 Cal. App. 2d 407, 326 P.2d 957 (1958), where the California Appellate Court applied the rule against perpetuities against a municipality. Haggerty involved a lease held by the city of Oakland to private property that was to run for ten years after the completion of construction of the building that was the subject of the lease. The court found the lease void because it could violate the rule against perpetuities. Professor W. Barton Leach wrote an article criticizing the case; see W. Leach, “Perpetuities: New Absurdity, Judicial and Statutory Correctives,” 73 Harv. L. Rev. 1318 (1960); in which he stated: “The Rule Against Perpetuities is a device for protecting the public interest against private settlements which unduly tie up the basic resources of the community. But in this case the city is the public. It is at least arguable that the Rule should not apply at all to dispositions made by duly constituted public bodies. The judge-made Rule was never conceived as a limitation upon the sovereign, and the California constitution, incorporating the common-law Rule, should not be construed as a limitation on action by the state or any of its subdivisions.” (Emphasis in original.) Id., 1321.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Keith Johnson v. State of Connecticut
    (12591)
    O’Connell, Freedman and Spear, Js.
    Argued June 10
    decision released September 13, 1994

      Christopher Drew, law student intern, with whom were Brian J. Kornbrath, and, on the brief, Donald Mahoney, law student intern, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and Edward Narus, assistant state’s attorney, for the appellee (respondent).
   O’Connell, J.

Pursuant to General Statutes § 52-270, the petitioner brought this petition for a new trial on the ground of newly discovered evidence. Following an adverse ruling, the petitioner appealed to this court claiming that the trial court was obligated to order a new trial because the victim recanted his identification testimony. Related to this claim is the petitioner’s argument concerning the applicable standard for granting a petition for a new trial. In the alternative, the petitioner argues that the trial court abused its discretion by deciding that the victim’s recantation would not likely produce a different result in a new trial. We affirm the judgment of the trial court.

The record discloses that on September 25, 1990, a jury found the petitioner guilty of robbery in the first degree in violation of General Statutes § 53a-134, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 and assault in the second degree in violation of General Statutes § 53a-60. The petitioner was tried jointly with two other defendants who the state claimed were coparticipants in the crimes. The other defendants are not involved in this petition.

On October 12, 1989, at approximately 6:45 p.m., Timothy Wallace was assaulted and robbed by three men, two of whom were armed. The assailants took his Whalers jacket, his watch and some cash. Wallace reported the robbery immediately and gave the police descriptions of the assailants. At approximately 8 p.m. that same evening, on the strength of the descriptions, the police arrested the three men who would later be convicted of the crimes, one of whom was wearing a Whalers jacket.

The next day, Wallace returned to the police station to look at arrays of photographs. He was shown three eight picture arrays, each array containing a photo of one of the suspects arrested the night before. Wallace picked the suspects’ pictures out of the arrays and identified them as being of the men who had attacked and robbed him.

Almost one year later, in September, 1990, Wallace testified at trial that he was positive of the photographic identification and that he had no doubt that these men were his assailants. There was some discrepancy in his description of the petitioner’s height and weight, but his description of the petitioner’s coloring, hair length and clothing was consistent throughout the proceedings.

At his criminal trial the petitioner called five alibi witnesses: his mother, his sister, his brother, his sister-in-law, and a friend of his mother’s. They all testified that until approximately 7:30 p.m. on the night of the robbery the petitioner was with them, at the house he shared with his mother. At that time, according to this testimony, his brother and sister-in-law gave the petitioner a ride to the corner of Capen and Clark Streets, about ten blocks from the scene of the robbery. The petitioner was on his way from there to visit a friend on Elmer Street when he met Reginald Harris and Dwayne Saunders, the two men later convicted, along with the petitioner, of the robbery. The three men talked briefly and had begun walking together up the street when they were surrounded by police and arrested.

On September 27,1990, a day after the jury returned a guilty verdict and almost one year after the robbery, the petitioner’s mother saw Wallace at a neighborhood pharmacy about one block from the crime scene. She identified herself and told him about the guilty verdict. She then asked Wallace if he was sure that her son was one of Wallace’s assailants. Wallace replied that he was not sure.

Wallace did not communicate his doubt to the petitioner’s attorney. Upon learning of Wallace’s doubt from the petitioner’s mother, the petitioner’s attorney sent an investigator to take Wallace’s statement. On September 27,1990, Wallace told the petitioner’s investigator that “[w]hen I saw [the petitioner] in court I noticed he was taller [and] heavier, and was wearing glasses. . . . I did testify that day that [the petitioner] was involved in the robbery, however, I now think I may have made a mistake in identifying him.”

The next proceeding was a hearing on a motion for a new trial, held on October 12, 1990, at which time Wallace testified that he was about 40 percent sure of his identification; he could not say whether it was or was not the petitioner. The hearing on the petition for a new trial was held in December, 1992. At that hearing, Wallace testified that he was sure that the petitioner had not been one of his assailants. The petitioner’s mother, who had seen Wallace in the pharmacy numerous times since their initial meeting, testified that she neither threatened Wallace nor made him any promises in exchange for his recantation. The trial court denied the petitioner a new trial.

We first address the threshold issue of whether the trial court applied the proper standard in denying the petition for a new trial. Citing Pradlik v. State, 131 Conn. 682, 687, 41 A.2d 906 (1945), and Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987), the petitioner argues that there is a split of authority in Connecticut regarding the proper standard governing the granting of a petition for a new trial based on newly discovered evidence. We do not agree.

Connecticut has long recognized petitions for new trials based on newly discovered evidence. Lester v. State, 11 Conn. 415, 418 (1836); Gallup v. Fish, 2 Root (Conn.) 452 (1796); Ainsworth v. Sessions, 1 Root (Conn.) 175 (1790); Foster v. Hough, 1 Root (Conn.) 173 (1790). The modern standard, or an equivalent formulation, adopted by a majority of state and federal courts for granting such a petition is based on the landmark case of Berry v. State, 10 Ga. 511 (1851). Connecticut adopted this general standard as early as 1880 in Hamlin v. State, 48 Conn. 92, 93 (1880), and has since applied it in a long line of cases. Asherman v. State, supra, 202 Conn. 434; Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983); Pass v. Pass, 152 Conn. 508, 511, 208 A.2d 753 (1965). Under this standard, a new trial is granted if the petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence (1) is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence, (2) would be material on a new trial, (3) is not merely cumulative, and (4) is likely to produce a different result in a new trial. Asherman v. State, supra, 434. In analyzing the foregoing factors, trial courts are guided by the general principle that a new trial should be granted because of newly discovered evidence only if an injustice was done or it is probable that on a new trial a different result would be reached. Summerville v. Warden, 229 Conn. 397, 425-26, 641 A.2d 1356 (1994); Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955). The scope of review of a trial court’s decision to grant a new trial on the basis of newly discovered evidence is limited to whether the trial court abused its discretion. Summerville v. Warden, supra, 426.

Connecticut cases have employed this standard, which we will refer to as the Asherman standard, in several different contexts involving newly discovered evidence. Lombardo v. State, 172 Conn. 385, 389, 374 A.2d 1065 (1977) (new testimony of two witnesses, one of whom did not testify at trial and one of whom invoked fifth amendment at trial); Taborsky v. State, supra, 142 Conn. 624-25 (new evidence of mental disease); Krooner v. State, 137 Conn. 58, 66, 75 A.2d 51 (1950) (evidence by friends, doctors and fellow shipmates that defendant was drunk or mentally ill at time of murders); Link v. State, 114 Conn. 102, 157 A. 867 (1932) (newly discovered witness). The petitioner does not cite, nor does our research reveal, any Connecticut case employing the Asherman standard in a petition for a new trial based solely on a claim of false testimony, i.e., recantation.

A standard specifically addressing the issue of false testimony was enunciated in Larrison v. United States, 24 F.2d 82 (7th Cir. 1928). False testimony may be of two types: (1) where a material witness admits to perjuring himself at trial or, as in the present case, (2) where a material witness has recanted his testimony and claims he was mistaken as to what he said at trial. See generally 3 C. Wright, Federal Practice and Procedure (1982) § 557.1. In analyzing a petitioner’s claim under these circumstances, a new trial should be granted when (1) the court is reasonably well satisfied that the testimony of a material witness is false, (2) without it the jury might have reached a different conclusion, and (3) the party seeking a new trial was taken by surprise when the false testimony was given. Larrisan v. United States, supra, 87. Connecticut adopted this standard as applicable to recantations in Pradlik v. State, supra, 131 Conn. 687; see also Smith v. State, 141 Conn. 202, 104 A.2d 761 (1954); Smith v. State, 139 Conn. 249, 251, 93 A.2d 296 (1952); State v. Davis, 2 Conn. Cir. Ct. 257, 262, 197 A.2d 668 (1963). Appellate review of a trial court’s decision in this regard is likewise conducted under an abuse of discretion standard. Pradlik v. State, supra, 687.

Under the first prong of the Pradlik standard, a petition for a new trial based on a recantation should be granted only if the judge is convinced that the original testimony at trial was false. This, of course, requires the judge to examine the circumstances surrounding the recantation in order to determine whether it is credible. For example, in Smith v. State, supra, 139 Conn. 249, the Supreme Court affirmed the trial court’s denial of a petition for a new trial based on a witness’ recantation. A portion of the evidence adduced at the criminal trial centered on three witnesses who claimed that the petitioner drove a car similar to that used during the murder several days earlier. Id. One of those witnesses recanted her testimony at a deposition in Alabama while serving a prison sentence. Employing the Pradlik standard, the trial court found that the recantation was not credible and denied the petition. The Supreme Court affirmed the trial court’s decision under an abuse of discretion standard. Id., 253.

Similarly, in State v. Davis, supra, 2 Conn. Cir. Ct. 257, the Appellate Division of the Circuit Court applied the Pradlik standard to a witness’ recantation, stating that it was the trial court’s function to compare the character, weight and credibility of the witness’ recantation to that of the witness’ testimony at trial in order to determine whether a new trial was warranted. Id., 262.

A recent application of the credibility assessment under the Pradlik standard can be found in this court’s decision in Talton v. Warden, 33 Conn. App. 171, 179, 634 A.2d 912, cert. granted on other grounds, 228 Conn. 919, 636 A.2d 850 (1994), a case, like the present one, involving a victim’s recantation. This court concluded that the trial court must make a credibility determination of the recantation, i.e., it must be “reasonably well satisfied that the testimony given by a material witness [at the original trial] is false.” Id., 177. Accordingly, this court affirmed the habeas court’s findings that the victim’s testimony was not credible because it was based, inter alia, on feelings of remorse stemming from the victim’s knowledge of the lengthy sentence imposed as a result of the petitioner’s conviction.

Despite the petitioner’s assertion to the contrary, our research reveals no split in authority in Connecticut concerning the applicable standard for a petition for a new trial. Rather, there are two standards applicable to petitions for new trials based on newly discovered evidence — one for false testimony and one for all other evidence. In this case, the trial court assumed, without deciding, that the victim’s recantation constituted newly discovered evidence and thereafter limited its analysis to the fourth prong of the Asherman standard, namely, whether the recantation would likely produce a different result at trial. In doing so, the trial court assessed the credibility of the recantation and thereafter denied the petition.

The petitioner argues that the trial court properly applied the Asherman standard but in doing so, improperly assessed the credibility of the recanted testimony. He contends that the trial court was limited under the Asherman standard to an assessment of the impact the recantation testimony would have on a jury on retrial. Despite the legion of cases holding that a petition for new trial is addressed to the sound discretion of the trial court; Gillis v. Gillis, 214 Conn. 336, 340, 572 A.2d 323 (1990); Bernier v. National Fence Co., 176 Conn. 622, 628, 410 A.2d 1007 (1979); E.M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 610, 153 A.2d 463 (1959); the petitioner asks us to establish a rule of law that, when a defendant has been convicted solely on the basis of a witness who later recants, a petition for a new trial must automatically be granted under Asherman. Although the petitioner fails to cite any Connecticut cases holding that the trial court should be deprived of the time honored jurisdiction over the witnesses’ credibility in a petition for a new trial, the petitioner apparently feels that under the present circumstances a hearing serves no purpose and that the petitioner should have a new trial on demand.

In the alternative, the petitioner argues that should the Pradlik standard apply, the trial court failed under that test to make a proper credibility determination. We agree with that portion of the petitioner’s alternative argument that the trial court should have applied the Pradlik standard to the victim’s recanted testimony. We conclude, however, that the trial court properly applied that standard, albeit mistakenly, in its analysis of the fourth prong of the Asherman standard. In essence, the trial court’s analysis under the fourth prong of the Asherman standard encompassed the credibility determination mandated by the first prong under Pradlik. Accordingly, we now move to an analysis of whether the trial court properly denied the petition for a new trial on the basis of its credibility assessment of the victim’s recantation.

Recantation as grounds for a new trial has always been viewed with skepticism. Well over one hundred years ago, our Supreme Court enunciated this skepticism in Shields v. State, 45 Conn. 266, 270 (1877) as follows: “After the trial is over and the accused stands convicted, with the heavy penalty of the law impending and just ready to fall upon him, how easy by artful or even honest suggestion to awaken a sympathy even in the heart of the victim, who was the main, perhaps only witness against the accused, and who naturally feels responsible for the conviction; and how easy for such witness by a process of speculation, colored by feeling, to feel and express a doubt about the correctness of the opinion entertained at the time of the transaction.” See also Ainsworth v. Sessions, supra, 1 Root (Conn.) 176; 58 Am. Jur. 2d, New Trial § 440 (1989).

The trial court in this case described the victim’s recantation as “something akin to buyer’s remorse,” a characterization on which the petitioner’s argument that the trial court abused its discretion principally relies. The term “buyer’s remorse” is merely shorthand for the situation described in Shields v. State, supra, 45 Conn. 270, to wit, after the fact self-doubt brought on by the realization that one’s testimony has put another behind bars. The terms “buyer’s remorse” serves to distinguish this sort of recantation from that where the recanter admits to knowingly perjuring himself at trial and now allegedly wants to “come clean.”

In this case, Wallace’s recantation is of the former type. He never claimed that he lied when he identified the petitioner in the photo array. On the contrary, he was absolutely sure of his identification. Later, he says that he began having doubts at trial and stated at the hearing on the petition for a new trial that he could not identify the petitioner as the person who robbed him. The trial court noted this by stating “[wjhat began as an unexpressed doubt [at trial], graduated to the possibility of a mistake [upon seeing the petitioner’s mother after trial and] became a certainty of error in identification [at the hearing for a new trial].”

The seeds of doubt in Wallace’s mind were apparently not planted until almost one year after the robbery when, after having just finished testifying at the petitioner’s trial, he met the petitioner’s mother in the local pharmacy. During their conversation, the petitioner’s mother told Wallace who she was, said that her son was found guilty, and asked if he was sure it was her son who robbed him. It was only then that Wallace expressed’doubt about his prior identification, telling the petitioner’s mother that when he saw the petitioner at trial he looked bigger than he remembered and that he also was wearing glasses at the time of the robbery. Although Wallace testified at trial that the petitioner looked bigger than before, he did not communicate any doubt regarding his prior identification or his in-court identification of the petitioner during the trial. By the time of the hearing on the petition for a new trial, however, Wallace testified that he now had ho doubt that the petitioner was not involved in the robbery. This is a classic case of a Shields situation, an erosion of the victim’s confidence in his own memory.

The petitioner complains that the trial court made a credibility determination without delineating any objective reasons for not believing the recantation. We do not agree. In a memorandum of decision, the trial court found, inter alia, that (1) the victim’s recantation came about only after a conversation between the petitioner’s mother and the victim, (2) the victim conceded that his memory had diminished over time and was better at the time of his initial identification of the petitioner than at the time of the hearing on the petition for a new trial, and (3) the victim never recanted his identification of the petitioner’s photograph. We note, as the trial court did, that his recantation was limited to the petitioner’s height and weight and not his facial features. Significantly, the petitioner had gained a considerable amount of weight since the time of his arrest — from 238 pounds at the time of the crime to 283 pounds at the hearing on this petition. At his criminal trial, the petitioner had gained only five to ten pounds from the date of the crime. Moreover, the trial court found that Wallace had demonstrated under questioning during trial a difficulty in gauging the height of people present in the courtroom, casting doubt on whether his present uncertainty over the height and weight of the petitioner was believable.

The trial court also characterized Wallace’s testimony as having been influenced by the meeting with the petitioner’s mother and the sympathy associated with realizing that his identification resulted in a man’s going to prison. Finally, the trial court was aware of the petitioner’s extensive record and that he had not testified at his criminal trial because his attorney advised him that the jury would likely be swayed by his criminal record. Despite the petitioner’s argument to the contrary, we are satisfied that the trial court properly set forth the factors supporting its analysis of the credibility of Wallace and his recantation and in holding that Wallace’s testimony at trial was not false.

Despite the foregoing analysis provided by the trial court regarding the credibility of the recantation, we note that nowhere in the memorandum of decision did the trial court explicitly state that it did not believe Wallace. Even if we assume for the sake of argument that the trial court did not adequately set forth the reasons it found the recantation incredible, the petitioner did not file a motion for articulation asking the trial court to enunciate the reasons why the court felt the recantation unworthy of belief. The petitioner argues that such a motion would have been pointless because all of the facts were in the record. We point out that Practice Book § 4059 requires the trial court to set forth not only the factual basis of its decision but also its conclusions as to each claim of law raised by the parties.

If the petitioner complains that the trial court did not include in its memorandum of decision the reasons why it did not find the recantation credible, his first recourse was to ask the trial court, by way of a motion for articulation, why it so concluded. There may have been objective reasons, in addition to the ones cited, that the trial court could have furnished that would have assisted the petitioner in his obligation to furnish a proper record on appeal.

On the other hand, the trial court’s reasons for disbelieving the recanter may have been based, in part, on those myriad of tiny signals, such as tone of voice, manner of breathing, gesticulations, nervousness and the like that traditionally are used by triers of fact in assessing a witness’ credibility. A motion for articulation would not have helped the petitioner in this aspect nor are we prepared to require a trial judge to attempt to articulate such reaction to a witness.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-270 (a) provides in relevant part: “The superior court may grant a new trial of any action that may come before it, for . . . the discovery of new evidence . . . .”

       “The Whalers are a professional hockey team from Hartford.” State v. Harris, 28 Conn. App. 474, 476 n.1, 612 A.2d 123, cert. denied, 223 Conn. 926, 614 A.2d 828 (1992).

       Immediately after the robbery, Wallace described the robber later identified as the petitioner as five feet eight inches and 180 pounds. The next day, Wallace described him as five feet six inches with a medium build. At trial, Wallace said he remembered the man being five feet ten inches. The petitioner never stood up at trial. The petitioner’s mother testified at trial that the petitioner was six feet and 225 pounds at the time of the robbery. At one point Wallace testified that he himself was six feet or six feet one inch. At the hearing on the petition for a new trial, Wallace and the petitioner stood together, and the court noted that the petitioner was one and one-half inches to three inches shorter than Wallace.

       The petitioner and his mother live four or five blocks from where the crime took place. Wallace lived three or four blocks from the crime scene at the time of the robbery. He has since moved to New York City, but his family remains in the neighborhood.

       The trial court did not rule on the motion for a new trial because it was based on a claim of newly discovered evidence and thus could be the subject only of a petition for a new trial brought in accordance with General Statutes § 52-570 and Practice Book § 904.

       See 58 Am. Jur. 2d, New Trial § 415 (1989).

       One case employing the Asherman standard, State v. Edwards, 10 Conn. App. 503, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987), involved a claim made by the defendant’s sister that the complainant’s son had recanted his testimony. The son denied such a recantation. We, however, do not consider such disputed testimony a recantation.

       We note, however, that a conviction obtained by the prosecution’s “knowing use of peijured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” (Emphasis added.) United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).

       There has been some dispute as to the applicable standard of proof under this standard, i.e., whether a new jury “might,” or “would probably,” have reached a different result. See United States v. Stofsky, 527 F.2d 237, 245 (2d Cir. 1975). The petitioner neither raises the question nor seeks to apply the former standard, which has been considered by some to be more “lenient.” Id.; see generally comment, “Rethinking the Standard for New Trial Motions Based Upon Recantations as Newly Discovered Evidence,” 144 U. Pa. L. Rev. 1433 (1986). Because our disposition of this appeal does not require us to resolve this issue, we do not address it.

       We note that the recantation testimony in Taitón was in the context of a habeas corpus proceeding and not a petition for a new trial.

       The Supreme Court granted certification in Talton v. Warden, 228 Conn. 919, 636 A.2d 850 (1994). The first two questions certified demonstrate that the determination of credibility was a proper consideration for the trial court and did not have to be reserved for the jury at retrial. The first two certified questions are: (1) “Did the Appellate Court correctly conclude that, based on the record of the habeas proceeding, the habeas court properly determined that the recantation testimony of the victim-witness was not credible?” and (2) “If the recantation testimony of the victim-witness was credible, did the Appellate Court properly decline to find that the appellant’s due process rights were violated?” Id. The third certified question is not relevant to our discussion.

       We need not address the issue of exactly what kind of credibility assessment may be proper under the fourth prong of the Asherman standard. We note that a credibility type analysis has been applied under Asherman in certain factual circumstances; Lombardo v. State, supra, 172 Conn. 391 (under Asherman, trial court not persuaded that new witness’ exculpatory testimony credible enough to persuade jury). Such analysis is consistent with the principle that a petition for a new trial is addressed to the sound discretion of the trial court. Ridolfi v. Ridolfi, 178 Conn. 377, 379, 423 A.2d 85 (1979).
      Notwithstanding, the petitioner cites to a myriad of cases from other jurisdictions for the proposition that a trial court is limited under the Asherman standard, or its equivalent formulation, to an assessment of the impact the new evidence will have at a new trial. One such case, however, State
        v. Prudholm, 446 So. 2d 729, 737 (La. 1984), appears explicitly to endorse a credibility type analysis. In affirming the trial judge’s denial of the defendant’s petition for a new trial, the Louisiana Supreme Court stated that “[w]e agree with the trial judge that [the witness] would not have been a credible witness and that the repudiation of his testimony would not have been persuasive before a new jury.” Id.

       The petitioner admitted the following convictions: conspiracy to commit first degree robbery in 1987, third degree robbery in 1988, possession of narcotics in 1988, second degree larceny of a motor vehicle in 1989, the 1990 conviction that is the subject of this petition and a subsequent conspiracy to commit first degree robbery also in 1990.

       Practice Book § 4059 provides in relevant part: “[Wjhen rendering judgments in trials to the court . . . the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. The court shall include in its decision its conclusion as to each claim of law raised by the parties. . . .”


author: Schaller, J.

text:
    Woodside Village-Stratford Association v. Robert Hertzmark
    (12637)
    Foti, Heiman and Schaller, Js.
    Argued May 31
    decision released September 13, 1994

      Pamela A. Mitchell, with whom was Bruce J. Batts, for the appellant (defendant).

      W. Herbert Reckmeyer, for the appellee (plaintiff).
   Schaller, J.

The defendant appeals from the granting by the trial court of the plaintiffs request for an execution on a stipulated judgment. We dismiss the defendant’s appeal.

In September, 1991, the plaintiff leased an apartment that qualified as federally subsidized housing to the defendant, a mentally disabled man. The lease contained an agreement requiring the defendant to walk his dog in designated areas and to clean up the animal’s waste. In May, 1992, the plaintiff claimed that the defendant had failed to comply with these requirements, and commenced a summary process action against the defendant seeking possession of the apartment.

In August, 1992, the trial court approved a stipulated judgment whereby the plaintiff obtained a judgment of possession of the apartment with a stay of execution through February 10,1994. Pursuant to the judgment, the defendant agreed to walk his dog in a certain area and to dispose of the dog’s waste. Shortly thereafter, the plaintiff moved for immediate execution on the judgment, claiming that the defendant had failed to comply with its terms.

In October, 1992, the trial court approved a modified stipulated judgment whereby the judgment for possession remained in effect and the stay of execution was made a final stay through February 10,1994. The defendant again agreed to walk his dog in a designated area and to dispose of all waste. The plaintiff again moved for immediate execution on the judgment on the basis of its assertion that the defendant was not complying with the terms. On June 29,1993, the trial court granted the plaintiff’s request for execution on the judgment, and set a final stay of execution through July 31, 1993.

The defendant now appeals from this decision. On appeal, the defendant claims that, because of his mental disability, federal legislation requires the plaintiff to make reasonable accommodations in order to afford the defendant an equal opportunity to use and enjoy the apartment. The defendant contends that the plaintiff has failed to make such accommodations and seeks a reversal of the granting of the request for execution.

“A stipulated judgment has been defined by our Supreme Court as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990); Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement. Gillis v. Gillis, supra, 339-40.” Bank of Boston Connecticut v. DeGroff, 31 Conn. App. 253, 255, 624 A.2d 904 (1993).

“It necessarily follows that if the judgment conforms to the stipulation it cannot be [opened] or set aside without the consent of all the parties, unless it is shown that the stipulation was obtained by fraud, accident or mistake.” (Internal quotation marks omitted.) Gillis v. Gillis, supra, 214 Conn. 340; Bank of Boston Connecticut v. DeGroff, supra, 31 Conn. App. 256. A party seeking to open or set aside a judgment must do so by motion to the trial court. General Statutes § 52-212a; Practice Book § 326; see Gillis v. Gillis, supra, 340. “[T]he action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Gillis v. Gillis, supra, 340.

On appeal, the defendant challenges the validity of the stipulated judgment by asserting that, because the plaintiff has failed to accommodate the defendant reasonably, the plaintiff is not entitled to possession of the apartment. We cannot address this claim because the defendant failed to move to open or set aside the stipulated judgment. See General Statutes § 52-212a; Practice Book § 326. Because the defendant failed to challenge the judgment properly in the trial court, we dismiss the defendant’s appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-212a provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”

       Practice Book § 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. ...”


text:
    State of Connecticut v. Burton E. Merritt
    (12377)
    Dupont, C. J., and Schaller and Spear, Js.

      Argued March 30
    decision released July 29, 1994

      Conrad Ost Seifert, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Mary Jean Kanabis, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (l). The defendant claims that the trial court improperly (1) permitted testimony concerning the results of a horizontal gaze nystagmus (HGN) test without requiring that the state meet the criteria for the admission of scientific evidence as set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and (2) instructed the jury regarding consciousness of guilt on the basis of the defendant’s refusal to submit to a breath test. We affirm the judgment.

The jury reasonably could have found the following facts. Early in the morning of February 22,1992, Officer Matthew Roland of the East Lyme police department was on patrol on Route 156. The defendant, while driving a pickup truck, failed to obey a stop sign and made a left turn onto Route 156, almost colliding with the side of Roland’s cruiser. Roland swerved to avoid an accident, and subsequently followed the defendant’s vehicle to stop him for failure to obey a traffic sign. Because there were several people in the bed of the defendant’s pickup truck, Roland requested backup assistance before pulling over the vehicle. When assistance arrived, Roland pulled over the defendant’s vehicle and issued him a ticket for failing to stop at the stop sign.

Roland suspected that the defendant was intoxicated, as his breath smelled of alcohol, his eyes were bloodshot, his clothes were disheveled, he was swaying back and forth, and he spoke slowly. Officer Joseph Dunn, who was assisting Roland at the scene, also noticed that the defendant’s breath smelled of alcohol, his face was flushed, he was swaying back and forth, and he appeared to be experiencing difficulty in comprehending instructions. The defendant testified that during the eight hour period prior to Roland’s pulling him over, he had consumed four mixed drinks.

Roland conducted three field sobriety tests. He first asked the defendant to recite the alphabet. The defendant skipped letters “U” and “V.” Roland next required that the defendant walk in a straight line, heel to toe, with his hands at his sides, for ten steps, and then pivot and return. The defendant staggered when taking the steps, stopped at one point, and raised his arms to maintain his balance. Finally, Roland instructed the defendant to stand straight with his arms at his side and raise either leg six inches off the ground for a thirty count. The defendant had to put his foot down on counts twenty and twenty-eight.

Dunn then conducted a HGN test, in which he made three separate observations of the reactions of each of the defendant’s eyes to certain stimuli. On the basis of all his observations, including those derived from the HGN test, Dunn testified that, in his opinion, the defendant had a blood alcohol level well above the legal limit.

Upon the completion of the sobriety tests, Roland prepared to transport the defendant to the state police barracks in Montville. Roland radioed the barracks to determine if it had an operational breath testing machine. The barracks did not have a functioning machine, and the defendant was transported instead to the Jewett City police department. After unsuccessfully trying to contact his attorney, the defendant refused to take a breath test. Additional facts will be set forth as necessary.

I

A

REVIEWABILITY

In assessing the defendant’s claim regarding the applicability of the standard enunciated in Frye v. United States, supra, 293 F. 1013, we first examine whether the defendant properly preserved this issue for appeal. On direct examination, Dunn testified to the general nature of the HGN test. He explained that he conducted the HGN test by placing an object approximately fifteen inches in front of a suspect’s nose, moving it from side to side, and observing the reactions of the particular eye being tested in the following three respects: (1) whether the eye exhibited a “smooth pursuit” of the object from the center of the defendant’s face to a point at which the object could no longer be seen; (2) whether the eye was bouncing or still at the point at which the object could no longer be seen, namely, the “maximum deviation”; and (3) whether the eye began moving or bouncing involuntarily at a point prior to forty-five degrees as the object moved toward maximum deviation.

When Dunn stated that involuntary movement of an eye prior to forty-five degrees would indicate “more than likely that [an individual is] 0.1 or above — ,” the defendant objected, but before the trial court’s ruling, Dunn finished his statement with “ — above the legal limit.” Defense counsel explained his objection by stating that Dunn was testifying to an opinion, and requested voir dire regarding Dunn’s qualifications. The state countered that Dunn was merely testifying to generalities regarding the framework of the test, and the court overruled the objection.

Dunn then testified as to his particular observations when conducting the HGN test on the defendant. He stated that both eyes lacked smooth pursuit, and, that at the point of maximum deviation, the eyes exhibited a distinctive twitching or involuntary movement that commenced prior to forty-five degrees. The prosecutor then asked the following question: “Based on the defendant’s performance on this test, did you form an opinion as to his sobriety?” Defense counsel objected at this point, and a lengthy voir dire occurred outside the presence of the jury.

During the voir dire, Dunn testified that he did not have a medical degree, and that he did not know the scientific formula to convert the results of the HGN test to a finding regarding an individual’s specific blood alcohol content. Moreover, he could not identify a scientific journal or book that determines the accuracy of the HGN test. Defense counsel then stated that “under the Frye criteria . . . I would submit . . . that [Dunn is] not qualified to testify as an expert on the opinion of whether [the defendant] was under the influence .... Frye says that [Regarding evidence derived from innovative scientific techniques there has to be proof that there’s general acceptance by the scientific community. [See id., 1014.]”

In essence, the defendant objected to the state presenting opinion evidence that the results of the HGN test indicated that the defendant was under the influence. The defendant did not object when Dunn described the mechanics of the HGN test, but did object that a proper foundation had not been supplied for an opinion on the bases of the HGN test results. We conclude that the defendant timely objected to the admissibility of Dunn’s testimony on the ground that the Frye test had not been met with regard to the HGN test and its results. Accordingly, we will review his claim.

B

HORIZONTAL GAZE NYSTAGMUS TEST

We apply the following standard of review for evidentiary matters: “The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992).” State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993). The question here is whether the trial court improperly ruled that Dunn could testify to his opinion based in part on the HGN test results, without requiring that the HGN test meet the Frye standard for the admission of scientific evidence.

In Frye, the court set forth a special rule for the admission of testimony regarding scientific evidence. The court stated that “Cjjust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Emphasis added.) Frye v. United States, supra, 293 F. 1014.

Our Supreme Court has held that the Frye standard does not apply to all types of scientific evidence. In holding that the Frye test is “not a necessary precondition for the admission of expert testimony on battered woman’s syndrome”; State v. Borelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993); the court stated that it “does not apply the Frye test to all types of expert testimony, even if technical or scientific concepts are involved. In State v. Hasan, [205 Conn. 485, 489, 534 A.2d 877 (1987)], [our Supreme Court] noted that [it had] previously applied the Frye test to ‘innovative scientific techniques . . . [including] polygraph testing . . . and human leukocyte antigen testing for paternity.’ (Citations omitted.) See State v. McClary, 207 Conn. 233, 246, 541 A.2d 96 (1988) (finding that shaken baby syndrome is a diagnosis generally accepted in the medical field); State v. Tomanelli, 153 Conn. 365, 370, 216 A.2d 625 (1966) (applying the Frye test to the use of police radar). [The court has] found the Frye test appropriate when the experimental, mechanical or theoretical nature of the scientific evidence had the ‘potential to mislead lay jurors awed by an aura of mystic infallibility surrounding scientific techniques, experts and the fancy devices employed.’ (Internal quotation marks omitted.) State v. Hasan, supra, 490.

“Nevertheless, expert testimony need not satisfy the Frye test in cases where ‘the jury is in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert’s assertions based on his special skill or knowledge. . . . Furthermore, where understanding of the method is accessible to the jury, and not dependent on familiarity with highly technical or obscure scientific theories, the expert’s qualifications, and the logical bases of his opinions and conclusions can be effectively challenged by cross-examination and rebuttal evidence.’ (Citation omitted.) Id., 491.” State v. Borelli, supra, 227 Conn. 163-64.

Nystagmus is “[a]n abnormal and involuntary movement of the eyeballs from side to side or up and down, but usually from side to side. It is a sign of a number of ailments, usually of a nervous origin. It may, however, be due to simple fatigue of the eye muscles, as when watching a tennis game.” 3 J. Schmidt, Attorneys’ Dictionary of Medicine (1993); see T. Stedman, Medical Dictionary (25th Ed. 1990). “The theory behind the [HGN] test is that there is a strong correlation between the amount of alcohol a person consumes and the angle of onset of the nystagmus. Carper & McCamey, [Gaze Nystagmus: Scientific Proof of DUI?, 77 Ill. B.J. 146, 147 (1988)]; see Whitmore, Roadside Sobriety Tests: A Police Officers’ Guide to Making Drunk Driving Arrests Stand Up in Court § 5:05 (1987).” State v. Witte, 251 Kan. 313, 316, 836 P.2d 1110 (1992).

Here, Dunn, in his testimony regarding the mechanics of the HGN test, explained that the administration of the test requires no special equipment. Dunn stated that he instructed the defendant to keep his head stationary and to follow Dunn’s thumb as he moved it from side to side. As noted above, Dunn observed the reactions of each of the defendant’s eyes with regard to three criteria — whether each eye maintained a smooth pursuit of Dunn’s thumb, whether each eye exhibited nystagmus at the point of maximum deviation, and whether the angle of onset of the nystagmus occurred at a point prior to forty-five degrees.

Dunn’s testimony further reinforces the correlation between the angle of onset and incidence of nystagmus and alcohol consumption. Dunn explained that with regard to the second test, or maximum deviation, “[t]he effects of alcohol will make the eye bounce more as it’s going out to that maximum deviation point, and then when it gets there, it will start jerking and twisting.” Concerning the third part of the test, the angle of onset of nystagmus, Dunn stated that “if [the nystagmus] is prior to forty-five degrees, more than likely they’re 0.1 or above . . . the legal limit.” Dunn, therefore, asserted that a connection existed between the angle of onset of nystagmus, as well as the incidence of nystagmus, and alcohol consumption, but also acknowledged that several factors unrelated to alcohol consumption could impact the results of the test.

Our appellate courts have never determined whether the HGN test and its results are the type of scientific evidence that requires a special foundation for the admission of testimony concerning those matters. Courts in numerous other jurisdictions, however, have addressed this issue. Review of these decisions reveals that .the majority has concluded that an underlying scientific proposition is involved in the HGN test. See State v. Superior Court, County of Cochise, 149 Ariz. 269, 718 P.2d 171 (1986); People v. Leahy, 22 Cal. App. 4th 1109, 22 Cal. Rptr. 2d 322 (1993); State v. Gleason, 123 Idaho 62, 844 P.2d 691 (1992); State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991); People v. Buening, 229 Ill. App. 3d 538, 592 N.E.2d 1222 (1992); State v. Witte, supra, 251 Kan. 313; State v. Armstrong, 561 So. 2d 883 (La. App. 1990); State v. Hill, 865 S.W.2d 702 (Mo. App. 1993); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988); State v. Borchardt, 224 Neb. 47, 395 N.W.2d 551 (1986); People v. Erickson, 156 App. Div. 2d 760, 549 N.Y.S.2d 182 (1989); People v. Quinn, 153 Misc. 2d 139, 580 N.Y.S.2d 818 (1991); Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1994); Yell v. State, 856 P.2d 996 (Okla. Crim. App. 1993); State v. O’Key, 123 Or. App. 54, 858 P.2d 904 (1993); Commonwealth v. Moore, 430 Pa. Super. 575, 635 A.2d 625 (1993); Commonwealth v. Apollo, 412 Pa. Super. 453, 603 A.2d 1023 (1992); Commonwealth v. Miller, 367 Pa. Super. 359, 532 A.2d 1186 (1987); Howard v. State, 744 S.W.2d 640 (Tex. Crim. App. 1987); Emerson v. State, 880 S.W.2d 759 (Texas Crim. App. 1994); State v. Cissne, 72 Wash. App. 677, 865 P.2d 564 (1994); State v. Barker, 179 W. Va. 194, 366 S.E.2d 642 (1988).

Courts in a minority of jurisdictions have concluded that the HGN test does not involve scientific principles, and, therefore, neither the criteria set forth in Frye nor the appropriate state rule of evidence concerning scientific evidence must be met for admission. See Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Bresson, 51 Ohio St. 3d 123, 554 N.E.2d 1330 (1990); State v. Nagel, 30 Ohio App. 3d 80, 506 N.E.2d 285 (1986); State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993). These cases suggest that the HGN test is simply not a scientific test. Rather, the HGN test is comparable to other field sobriety tests that do not require further scientific foundation for admission. The Ohio Court of Appeals has noted that the HGN test “is not comparable ... to a polygraph test which requires the use of a machine, the scientific reliability of which may be questioned. The gaze nystagmus test, as do other commonly used field sobriety tests, requires only the personal observation of the officer administering it. It is objective in nature and does not require expert interpretation. Objective manifestations of insobriety, personally observed by the officer, are always relevant where, as here, the defendant’s physical condition is in issue.” State v. Nagel, supra, 80.

Of the majority of states that do consider the HGN test and its results as scientific evidence, several appellate courts have further determined that the HGN test meets the criteria for admissibility set forth in Frye or the pertinent state rule of evidence. In general, these jurisdictions have recognized that there is an underlying scientific proposition involved in the HGN test, namely, that alcohol consumption correlates to the increased incidence of and the angle of onset of nystagmus, and have determined, upon review of relevant case law and scientific publications, that the HGN test is a reliable indicator of intoxication. See, e.g., Fargo v. McLaughlin, supra, 512 N.W.2d 706.

Other courts have determined that a trial court, not an appellate court, provides the correct forum for the initial determination as to whether the criteria set forth in Frye or the appropriate state rule of evidence has been satisfied. These jurisdictions have generally concluded that the general acceptance of the HGN test is not a foregone conclusion. The Supreme Court of Kansas, for example, has stated that “[t]he reliability of the HGN test is not currently a settled proposition in the scientific community. . . . HGN evidence requires a Frye foundation for admissibility. If the Frye foundation is established to this court’s satisfaction, HGN evidence will be admitted in other cases without the need to satisfy the Frye test each time. Before this court rules on whether HGN evidence satisfies Frye admissibility requirements, a trial court first should have an opportunity to examine, weigh, and decide disputed facts to determine whether the test is sufficiently reliable to be admissible for any purpose in Kansas.” State v. Witte, supra, 251 Kan. 329-30; see also State v. Cissne, supra, 865 P.2d 569 (trial court must determine whether HGN test “is reliable as an indicator of the probability of impairment or specific blood alcohol level”). In Witte, the court stressed that research that indicated a high incidence of false positive results, as well as a variety of conditions unrelated to alcohol consumption that could cause nystagmus, rendered the accuracy of the HGN test with regard to alcohol consumption an uncertain proposition. State v. Witte, supra, 330-31.

Finally, we note that the majority of jurisdictions that grant the admission into evidence of the HGN test and its results allow the test and results only as evidence of intoxication, rather than conclusive proof of intoxication. The Appellate Court of Illinois, for example, has stated that “[although we also sanction the use of HGN test evidence to corroborate or attack chemical analysis of an accused’s blood-alcohol content, we are not saying that such evidence may be used to quantify it, in other words, utilized to establish a defendant’s [blood alcohol content] in the absence of a chemical analysis of the defendant’s blood, breath, or urine.” (Emphasis added.) People v. Buening, supra, 229 Ill. App. 3d 538.

On the basis of our review of the record, and in accord with the majority of jurisdictions that have addressed this issue, we conclude that the HGN test and its results are based on a scientific principle, namely, that there is a discernable correlation between the increased incidence of and the angle of the onset of nystagmus and alcohol consumption. The mechanics of the HGN test, we further conclude, unlike those of other field sobriety tests that probe an individual’s sense of balance, his coordination and his abilities to comprehend and follow instructions are not within the common knowledge of lay jurors. The reasons underscoring the nature of the HGN test are unfamiliar to jurors, and a juror would not be in a position to weigh the testimony concerning the HGN test and its results without abandoning common sense and sacrificing independent judgment to the expert’s assertions, which are based on understanding the technical aspects of the test. The scientific and theoretical nature of the HGN test and its results has the potential to mislead jurors in the absence of a foundation establishing the general acceptance of the test. The Frye test therefore should be applied to the admission of testimony derived from the HGN test and its results. State v. Borrelli, supra, 227 Conn. 162-65.

We conclude, therefore, that as a precondition to the admission of testimony concerning HGN testing and results, the party introducing the testimony must establish, pursuant to Frye, the general acceptance of the HGN test. We note that the state did not meet this burden at trial, and that the state conceded at oral argument that it had presented no evidence at trial concerning the underlying scientific principles or the general acceptance of HGN testing. We conclude, therefore, that the trial court should have applied the Frye test. Because it did not, the trial court abused its discretion in admitting the evidence in the absence of a showing that the HGN test and its results met the criteria set forth in Frye. We further note that our holding does not obviate the necessity, however, of also laying a proper foundation with regard to the qualifications of the individual administering the test and the procedures followed in conducting the test before the admission of the evidence.

C

HARMLESS ERROR

Although we conclude that the trial court improperly failed to determine whether the HGN test and its results met the criteria for the admission of testimony derived from scientific evidence set forth in Frye, our inquiry is not complete. We must also determine whether the trial court’s failure was harmless in light of the other evidence presented at trial. “ ‘It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.’ State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). The question is whether the claimed erroneous action of the trial court is likely to have affected the result of the trial. State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); State v. Gonzales, 196 Conn. 115, 119, 491 A.2d 1067 (1985).” State v. Torrice, 20 Conn. App. 75, 91, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989). We further note that our inquiry focuses on the impact of the improperly introduced evidence on the jurors’ perceptions and understanding of the other evidence presented in the case, rather than an analysis of the sufficiency of the remaining evidence to uphold the conviction in the absence of the admission of the evidence concerning the HGN test and its results. See Swenson v. Sawoska, 215 Conn. 148, 152-53, 575 A.2d 206 (1990).

The following facts are necessary for a review of this issue. Roland observed the defendant pass a stop sign. Roland testified that when he approached the defendant, the defendant’s breath smelled strongly of alcohol, his eyes were bloodshot, his clothes were disheveled, he was swaying back and forth, and his speech was slow. Dunn testified that prior to the administration of the field sobriety tests, the defendant had a difficult time standing up, he was staggering, his face was flushed, his breath smelled strongly of alcohol, and he was slow to comprehend various instructions. It is undisputed that the defendant had consumed four mixed drinks during the course of the evening.

Roland administered three field sobriety tests, and the defendant failed each test. He was unable to recite the alphabet, to stand on one leg for a thirty count, or to walk a straight line, heel to toe, for ten steps, to pivot and to return. Dunn administered the HGN test and stated, in essence, that the defendant had failed each of the three portions of the HGN test.

Roland stated that, on the basis of his training and experience and observations, he formed an opinion as to the sobriety of the defendant. The defendant’s performance on the field sobriety tests, as well as the odor of alcohol on his breath, his personal appearance, his slow response to questions and directions, and his operation of the vehicle led Roland to conclude that the defendant was intoxicated. Dunn stated that on the basis of his training, experience and observations, which included the defendant’s performance on all of the field sobriety tests, the defendant was “well above the legal limit of intoxication . . . . ”

The jury heard the officers’ observations of the defendant prior to the administration of the field sobriety test, as well as the results of three field sobriety tests, independent of the results of the HGN test. The admission of the testimony concerning the HGN test and its results did not hinder the jury’s ability to assess independently the weight and credibility to be given to each of the three field sobriety tests and the officers’ observations. We cannot conclude, therefore, that the jury’s perceptions of the other evidence presented in this case, such as the defendant’s consuming four mixed drinks, his failing to pass three other field sobriety tests, and his demeanor and appearance, were so affected by the improperly admitted testimony concerning the HGN test and results, that it is likely that the result of the trial would have been different in the absence of the HGN test.

II

The defendant further claims that the trial court improperly instructed the jury with regard to consciousness of guilt flowing from his refusal to submit to a breath test. The defendant took exception to the instruction on the factual ground that there “was no evidence that the breath testing machine at the Jewett City police department was functional and operational.” The defendant claimed that the instruction violated his due process rights to a fair trial pursuant to article first, § 8, of the Connecticut constitution. On appeal, the defendant launches a twofold attack. He contends that his refusal to submit to a breath test does not trigger a consciousness of guilt instruction. He also claims that the instruction was inappropriate absent proof that the machine was operational.

A

The defendant contends that the refusal to submit to a breath test does not trigger the consciousness of guilt instruction set forth in General Statutes § 14-227a (f). Section 14-227a (f) provides that in prosecutions pursuant to § 14-227a (a), “the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.” The defendant did not properly preserve this issue at trial. Practice Book § 852. His exception to the instruction related specifically to the fact that the trial court did not require that the state prove that the breath testing machine was operational. He did not claim that § 14-227a (f) did not provide for a consciousness of guilt instruction.

The defendant, however, attempts to characterize this unpreserved claim as constitutional in nature, thus implicating this court’s power of review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). In State v. Golding, supra, 239-40, our Supreme Court provided that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.”

Here, the claim fails under the second prong of Golding. Consciousness of guilt instructions, which permit, but do not mandate, an inference of a guilty conscience, are evidentiary rather than constitutional in nature. State v. Smith, 219 Conn. 160, 165-66, 592 A.2d 382 (1991); see also State v. Adams, 225 Conn. 270, 289-90, 623 A.2d 42 (1993). We, therefore, decline to review this unpreserved claim.

B

The defendant also alleges that the legislature intended that the state prove that the breath testing machine was operational in order to trigger a consciousness of guilt instruction. “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.) State v. Mattioli, 210 Conn. 573, 576, 556 A. 2d 584 (1989). “As we have stated in numerous other cases, ‘it is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.’ ” Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8 (1988).

The legislature did not condition the instruction on proof that the breath testing machine was operational, and we will not read such a requirement into the statute. The defendant claims, however, that in the absence of proof that the machine was operational, the trial court’s instruction violated his due process rights to a fair trial pursuant to article first, § 8, of the Connecticut constitution. The defendant provides no citations or analysis of case law to support his claim. Because this issue is inadequately briefed, we decline to review this question. State v. Tweedy, 219 Conn. 489, 510 n.17, 594 A.2d 906 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a provides in pertinent 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 . . . .”

       In Moore v. McNamara, 201 Conn. 16, 20, 513 A.2d 660 (1986), our Supreme Court expressly approved the use of the Frye test with regard to evidence derived from innovative scientific techniques, requiring proof of the general acceptance of such techniques in the scientific community, and in State v. Hasan, 205 Conn. 485, 490, 534 A.2d 877 (1987), and State v. Borelli, 227 Conn. 153, 629 A.2d 1105 (1993), the court clarified the circumstances under which the Frye doctrine applies. We note that in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 471 (1993), the United States Supreme Court held that with regard to all federal cases, the test for the admissibility of scientific evidence set forth in the Federal Rules of Evidence superseded the test set forth in Frye. Federal Rule of Evidence 702 provides in pertinent part: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” In State v. Borelli, supra, 163 n.10, our Supreme Court recognized the tension between the tests set forth in Frye and rule 702 of the Federal Rules of Evidence, but stated that it need not address the issue of the continued validity of the Frye test in Connecticut at that time. We, likewise, do not address the issue at this time.

       Although the court in Frye did not elaborate on the standard of general acceptance in the scientific community, various jurisdictions have refined the test to incorporate the indicia of reliability. For example, the Court of Appeals of New York has stated that “ ‘the test is not whether a particular procedure is unanimously indorsed by the scientific community, but whether it is generally accepted as reliable.’ ” People v. Quinn, 153 Misc. 2d 139, 151, 580 N.Y.S.2d 818 (1991), quoting People v. Middletown, 54 N.Y.2d 42, 50, 429 N.E.2d 100, 444 N.Y.S.2d 581 (1981); see also State v. Witte, 251 Kan. 313, 329-30, 836 P.2d 1110 (1992); Commonwealth v. Apollo, 412 Pa. Super. 453, 460, 603 A.2d 1023 (1992). While our Supreme Court has never explicitly adopted a statement of Frye that includes reference to the reliability of the scientific test or procedure, it has, in essence, affirmed that relationship. In State v. Hasan, 205 Conn. 485, 490, 534 A.2d 877 (1987), the court stated that “[t]he fact that a technique or method has gained general acceptance in the scientific community to which it belongs tends to ensure that the jury will not accord undue weight to the theories whose validity has not been adequately tested. People v. Kelly, [17 Cal. 3d 24, 31-32, 549 P.2d 1240, 130 Cal. Rptr. 144 (1976)].”

       In reciting the relevant facts in State v. Stevens, 224 Conn. 730, 733 n.5, 733-34, 620 A.2d 789 (1993), the court refers to the HGN test and notes that an officer administered an HGN test and utilized the results, along with other observations, to draw the conclusion that the defendant was intoxicated. Stevens focused on the authority of police officers from Stoning-ton to gather evidence in Rhode Island regarding the defendant’s intoxication. The question of the admissibility of the HGN test and its results on the grounds that they constituted scientific evidence was neither raised nor reviewed.
      We also note our opinion in State v. Royce, 29 Conn. App. 512, 616 A.2d 284 (1992). In Royce, the trial court granted the defendant’s motion to suppress the results of a blood alcohol test on the ground that the officer did not have probable cause to arrest the defendant. Id., 513. The HGN test and its results comprised part of the state’s evidence in support of its assertion that probable cause existed to arrest the defendant. Id., 515. At the hearing on the motion to suppress, the defendant introduced expert testimony concerning the reliability of the HGN test. Id. This court concluded, however, that “[tjhe issue of the validity of the horizontal gaze nystagmus test, including whether the condition resulted from some congenital defect or from the defendant’s ingestion of alcohol, may be relevant when the issue of the defendant’s guilt or lack thereof is determined. It is not, however, a proper issue to be used to negate the existence of probable cause when the evidence is examined from the viewpoint of the knowledge of the arresting officer. See [State v. Martin, 2 Conn. App. 605, 612B, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985)].” Id., 518.

       In State v. Bresson, supra, 51 Ohio St. 3d 128, the court stated: “We find that the HGN test has been shown to be a reliable indicator of [blood alcohol] levels.” “The trial court has broad discretion in admitting evidence based on scientific processes.” Id., 129. “The HGN test cannot be compared to other scientific tests, such as a polygraph examination, since no special equipment is required in its administration.” Id. “The admission of the results of the HGN test is no different from any other field sobriety test . . . .” Id. Although the court did not state directly that the HGN test does not represent scientific evidence, the tone of the opinion suggests that intention.
      In State v. Sullivan, supra, 310 S.C. 315, the court cited to State v. Nagel, supra, 30 Ohio App. 3d 80, regarding the comparison of the HGN test to other field sobriety tests. Although the court appeared to assert that the HGN test did not involve scientific evidence, the court failed to state that proposition explicitly.

       See State v. Superior Court, County of Cochise, supra, 149 Ariz. 269; State v. Garrett, supra, 119 Idaho 878 (in State v. Gleason, supra, 123 Idaho 62, the court reaffirmed the principles set forth in Garrett, but also noted that the proper standard for the admission of scientific evidence is found in rule 702 of the Idaho Rules of Evidence, which corresponds to rule 702 of the Federal Rules of Evidence); People v. Buening, supra, 229 Ill. App. 3d 538; State v. Armstrong, supra, 561 So. 2d 883; Fargo v. McLaughlin, supra, 512 N.W.2d 700; Howard v. State, supra, 744 S.W.2d 640 (subsequent to Howard, Texas developed a test for the admission of novel scientific evidence in accord with rule 702 of the Federal Rules of Evidence, and the Texas Court of Criminal Appeals addressed this issue under the standard set forth in rule 702 in Emerson v. State, supra, 880 S.W.2d 763-64).

       Various jurisdictions have examined the matter under the standard set forth in a state rule of evidence that is identical to rule 702 of the Federal Rules of Evidence. See State v. Gleason, supra, 123 Idaho 62 (reaffirming decision in State v. Garrett, supra, 119 Idaho 878, but noting that proper standard for admission is rule of evidence that corresponds to rule 702 of the Federal Rules of Evidence); State v. Clark, supra, 234 Mont. 222; State v. O’Key, supra, 123 Or. App. 54; Emerson v. State, supra, 880 S.W.2d 763 (HGN test and results are helpful and reliable).

       See People v. Leahy, supra, 22 Cal. App. 4th 1109; State v. Witte, supra, 251 Kan. 313; People v. Erickson, supra, 156 App. Div. 2d 760; State v. Cissne, supra, 865 P.2d 564; State v. Barker, supra, 179 W. Va. 194.
      In other cases, appellate courts have reviewed trial court determinations concerning the admission of HGN tests and have held that the state did not lay the proper foundation for admission pursuant to Frye. See Yell v. State, supra, 856 P.2d 996; Commonwealth v. Moore, supra, 430 Pa. Super. 575; Commonwealth v. Apollo, supra, 412 Pa. Super. 453; Commonwealth v. Miller, supra, 367 Pa. Super. 359. In at least two cases, appellate courts concluded that the state had laid a proper foundation pursuant to Frye. See State v. Hill, supra, 865 S.W.2d 702; People v. Quinn, supra, 153 Misc. 2d 139.

       In State v. Borchardt, supra, 224 Neb. 47, the court concluded that, pursuant to Nebraska’s rule of evidence corresponding to rule 702 of the Federal Rules of Evidence, the state had not produced any evidence at trial that the HGN test was valid.

       See Whitson v. State, supra, 314 Ark. 458; State ex. rel. Hamilton v. City Court of Mesa, 165 Ariz. 514, 799 P.2d 855 (1990); State v. Superior Court, County of Cochise, supra, 149 Ariz. 269; State v. Gleason, supra, 123 Idaho 62; State v. Garrett, supra, 119 Idaho 878; People v. Buening, supra, 229 Ill. App. 3d 538; State v. Armstrong, supra, 561 So. 2d 883; State v. Hill, supra, 865 S.W.2d 702; Fargo v. McLaughlin, supra, 512 N.W.2d 700; State v. Bresson, supra, 51 Ohio St. 3d 123; State v. Sullivan, supra, 426 S.E.2d 769; Emerson v. State, supra, 880 S.W.2d 759; Anderson v. State, 866 S.W.2d 685 (Tex. App. 1993); Howard v. State, supra, 744 S.W.2d 643; State v. Barker, supra, 179 W. Va. 194.

       The trial court instructed the jury as follows: “Now on the sobriety test refusal, let me instruct you relating to the consciousness of guilt. In this case the state is claiming that certain conduct on the part of the defendant constitutes consciousness of guilt.
      “Let me tell you about the law on that subject. Whenever a person is on trial for a criminal offense, it is proper to show that person’s conduct subsequent to the alleged offense which may fairly have been influenced by the criminal act, the manner in which the defendant conducted himself may also be shown. The person’s conduct may be shown because such conduct might tend to show a guilty connection between the defendant and the crime charged. The state of mind which is characterized as a guilty conscience or consciousness of guilt, is relevant evidence that the person is indeed guilty.
      “In this particular case, when a defendant is charged with a violation of [General Statutes] § 14-227a, it is permissible for the state to present evidence that the defendant was offered and refused a breath test after he had been made aware of the nature of the test and the effect of his refusal.
      “Evidence of the defendant’s refusal to take a breath test has been submitted in this case. If you find that the defendant refused to take a breath test after having been made aware of the nature of the test, and the effect of the refusal, I instruct you that such refusal, although admissible on the question of consciousness of guilt, is not sufficient standing alone and by itself, to establish the defendant’s guilt. Such refusal, however, is one fact which, if proved, may be considered by the jury in light of all the other facts found to be proven in deciding the question of whether the defendant is guilty or not guilty.
      “It is up to you as judges of the facts to decide whether certain conduct of the defendant claimed by the state was proven and then, if so, whether that reflects a consciousness of guilt and to give to it the weight which you think it is entitled to receive under the circumstances.”

       The complete text of the defendant’s exception is as follows: “The exception is to the consciousness of guilt and the negative inference charge flowing from [the defendant’s] refusal. The ground — the factual grounds are that— was that there was not evidence that the breath testing machine at the Jewett City police department was functional and operational. And I’m trying to carve out maybe a little new ground here in the law, and I’m suggesting that would be needed as a predicate before the consciousness of guilt and negative inference charge that Your Honor gave would be appropriate.
      “And on behalf of that, I would just cite the Connecticut constitution, article first, § 8, and the due process rights to a fair trial.”

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

       General Statutes § 14-227a (f) is readily distinguishable from General Statutes § 14-227a (c) (4), in which the legislature specifically requires that the state prove that the breath testing machine was operational prior to the introduction of the results of the test into evidence.

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions . . . [n]o person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”