author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. JAMES L. COLLINS
    (AC 15675)
    Landau, Spear and Healey, Js.
    Argued January 28
    officially released April 29, 1997

      Joseph G. Bruckmann, public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Maureen Vallerie Omousky, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims that the trial court improperly failed to charge the jury on larceny in the sixth degree by receiving stolen goods as a lesser included offense of robbery. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On the morning of November 21, 1994, approximately between 5:45 and 5:50 a.m., Robert Works parked his car at the train station on Manhattan Street in Stamford. Streetlights illuminated the area. Works proceeded toward the platform. After walking beneath a train bridge, he was grabbed from behind by the defendant. The defendant pointed a double-edged knife with a three to four inch blade at Works, demanding his money. Works handed the defendant his wallet, which contained, among other things, money, credit cards, a train pass and identification.

Works asked the defendant to take the money and to leave the train pass and wallet, but the defendant ran toward Atlantic Street with the wallet. Works called the police from his cellular phone while pursuing the defendant. Sergeant Ryan Devaney met Works within one minute. A possible suspect was questioned at 660 Atlantic Street, but Works could not identify the suspect as the robber. Devaney and Works continued to search the area.

Officer Thaddeus Colcott was also patrolling Atlantic Street in response to a radio dispatch concerning the incident. Near 660 Atlantic Street, he observed the defendant, who fit the description of the perpetrator. When Colcott approached, the defendant fled south on Atlantic Street. Colcott notified headquarters and chased the defendant on foot. Devaney joined the chase and the defendant was apprehended.

Works was initially hesitant to make a positive identification of the defendant because he did not recognize the defendant’s clothing. When Works did identify the defendant’s face as that of the perpetrator, Devaney searched him. The defendant was in possession of a sum of money equal to that reported to have been in Works’ wallet as well as Works’ identification. Neither the wallet nor the knife were found in the defendant’s possession. The entire incident, from the robbery to the identification of the defendant, lasted about fifteen minutes.

The relevant procedural history is as follows. On the final day of the criminal trial, the defendant submitted a request for a jury charge on the lesser included offense. The trial court denied the request and charged only on robbery in the first degree. The jury rendered a guilty verdict, and the defendant was sentenced to an effective term of ten years imprisonment. This appeal followed.

The defendant claims that the trial court improperly denied his request to charge on larceny in the sixth degree as a lesser included offense of robbery. The defendant contends that, as a matter of law, the identity of the perpetrator was sufficiently in dispute to permit the jury to find the defendant guilty of larceny, but innocent of robbery. We disagree.

“The law governing the right of a defendant to an instruction on a lesser included offense than that charged by the state is well established.” State v. Chance, 236 Conn. 31, 54, 671 A.2d 323 (1996). “There is no fundamental constitutional right to a jury instruction on every lesser included offense; State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980); rather, the right to such an instruction is purely a matter of common law.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260, 681 A.2d 922 (1996). “Connecticut law entitles a defendant to a lesser included offense charge if his request satisfies the four requirements set forth in State v. Whistnant, [supra, 588].” State v. Crafts, 226 Conn. 237, 250, 627 A.2d 877 (1993). The Whistnant requirements are as follows: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra, 588.

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense.” State v. Tomasko, supra, 238 Conn. 260. “Evidence is ‘sufficiently in dispute’ where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. State v. Manley, 195 Conn. 567, 579, 489 A.2d 1024 (1985).” State v. Montanez, 219 Conn. 16, 23, 593 A.2d 149 (1991). “On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense. State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982).” (Internal quotation marks omitted.) State v. Arena, 235 Conn. 67, 73-74, 663 A.2d 972 (1995).

The parties are at issue only on the fourth prong of the Whistnant test: whether the element of the crime of robbery that differentiates it from the lesser offense of larceny was sufficiently in dispute. The differentiating element of robbery is the use or threatened immediate use of physical force, in this case, the use or threatened immediate use of the knife. State v. Tinsley, 181 Conn. 388, 398, 435 A.2d 1002, cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); State v. Torrence, 37 Conn. App. 482, 488-89, 657 A.2d 654 (1995). The defendant, however, does not dispute the existence of the knife. The defendant contends that the lesser included offense should have been charged because there was a question as to the identity of the perpetrator of the robbery, but no question that the defendant was in possession of the stolen items. Thus, the defendant claims that there was a sufficient dispute to permit the jury to find the defendant not guilty of robbery but guilty of larceny. We reject this contention.

In effect, “[t]he defendant’s request was for a charge concerning his culpability for a separate and distinct crime, that is, a charge as to an alternate offense, not a lesser included offense.” State v. Vitale, 197 Conn. 396, 408, 497 A.2d 956 (1985). The defendant was not charged with wrongfully taking, obtaining or withholding property of the victim fifteen minutes after the alleged robbery. See General Statutes § 53a-119. The defendant was charged with the commission of a robbery during an interaction with the victim. Larceny, to be a lesser included offense of this robbery, would have to have occurred during such interaction. “[W]e have never abandoned the general rule that one crime is not a lesser included offense of another if the greater can be committed without a simultaneous commission of the lesser.” State v. Barletta, 238 Conn. 313, 335, 680 A.2d 1284 (1996).

Because the defendant failed to meet the fourth prong of the Whislnant test, he was not entitled to a jury instruction on larceny in the sixth degree as a lesser included offense of robbery in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant, part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . .

       The request included the following proposed charge: “If the state has failed to convince you beyond a reasonable doubt that it was Mr. Collins who committed a robbery as I have previously defined that offense for you—you may then go on to consider whether the state has proven the lesser offense of larceny in the sixth degree. Under our law, a person can be found guilty of this offense if he receives or [retains] stolen property knowing that it has been stolen or believing that it has probably been stolen. As used here, the term ‘receive’ means to acquire possession or control of such property.
      “Legal Basis: General Statutes §§ 53a-118 (a) (6), 53a-119 (8), 53a-133.”

       General Statutes § 53a-125b (a) provides: “A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       In the defendant’s request for the lesser included offense charge, he did not raise any contention as to the use of a knife in the course of the offense. Moreover, at trial, no evidence was presented contradicting the victim’s claim that the offense was committed with the use or threatened use of a knife. The defendant’s argument in this case therefore resembles the argument rejected by the Connecticut Supreme Court in State v. Tinsley, supra, 181 Conn. 399. In Tinsley, the defendant relied upon “evidence elicited upon cross-examination to show that [the victim] had misidentified the culprit, not that the culprit took [the victim’s] money but without force or threat of immediate force.” Id. In the case at hand, the defendant argued that “the element [at] issue here—we’re not claiming it’s the knife for purposes of this lesser included offense request, rather [whether] he was the perpetrator of the robbery itself.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. SCOTT GRAHAM
    (AC 15121)
    Dupont, C. J., and Landau and Spear, Js.
    Argued January 27
    officially released April 29, 1997

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Robert Katz, assistant state’s attorney, for the appellant (state).

      Abram Keister, with whom, on the brief, was John W. Imhoff, Jr., for the appellee (defendant).
   Opinion

SPEAR, J.

The state appeals from the judgment of the trial court imposing a ninety day suspended sentence following the defendant’s conviction for violating General Statutes § 14-215 (c). The state claims that the trial court improperly failed to impose the mandatory minimum thirty day jail sentence. The defendant claims that the trial court properly imposed the suspended sentence pursuant to § 14-215 (b) because the state failed to present a two part information in accordance with Practice Book § 619, State v. Torma, 21 Conn. App. 496, 574 A.2d 828 (1990), and State v. Jones, 234 Conn. 324, 662 A.2d 1199 (1995). We reverse the judgment of the trial court.

On August 2, 1992, the defendant was arrested for operating a motor vehicle while his license was under suspension. Thereafter, the defendant was charged in a one count information with violating § 14-215 (c). During the course of trial, the state elicited evidence to prove that the defendant’s license was under suspension at the time of his arrest as a result of a prior conviction pursuant to General Statutes § 14-227a. The defendant did not object to this evidence. The jury found the defendant guilty of violating § 14-215 (c). After the jury rendered its verdict, the defendant filed a motion in arrest of judgment, arguing that he was prejudiced by the state’s failure to charge him in a two part information. The defendant thereafter filed another motion in arrest of judgment, arguing that because the trial judge was absent during jury selection, he was entitled to a new trial. The trial court granted his second motion and the state appealed to this court. This court reversed the judgment of the trial court and remanded the case for sentencing in State v. Graham, 36 Conn. App. 573, 651 A.2d 1339 (1995).

On July 31, 1995, at the sentencing hearing, the state indicated it was seeking the mandatory minimum thirty day sentence pursuant to § 14-215 (c). The defendant argued that because the state did not file a two part information, he suffered prejudice and, therefore, should be sentenced in accordance with § 14-215 (b). In addition, the defendant argued that certain equitable factors mandated a suspended sentence. The trial court found that a two part information was not required, but noted that since the date of the defendant’s arrest in 1992, the defendant had stopped drinking, started supporting his wife and child, and had his license reinstated. In light of these factors, the trial court imposed a sentence of ninety days, execution suspended, with one year probation. In response to the state’s objection, the trial court stated: “I don’t want to give him the minimum mandatory sentence because I think that would constitute a gross injustice, just a flagrant injustice of what has transpired in this man’s life in the last year and a half.” The state was granted permission to file this appeal.

I

The defendant claims that the suspended sentence should be affirmed because the state failed to charge him by way of a two part information and, therefore, he was properly sentenced under the provisions of § 14-215 (b). The claim that a two part information was required could have been raised as an alternate ground of affirmance in State v. Graham, supra, 36 Conn. App. 573, but the defendant failed to do so. He may not raise the issue now in derogation of this court’s remand directing the trial court “to render judgment of guilty in accordance with the jury verdict.” Id., 576.

“In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. . . . Compliance means that the direction is not deviated from. ... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court .... No judgment other than that directed or permitted by the reviewing court may be rendered . . . .’’(Citations omitted; emphasis in original; internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 312, 341 A.2d 858 (1988); see also Patron v. Konover, 43 Conn. App. 645, 651, 685 A.2d 1133 (1996).

By asking the trial court to sentence him under the provisions of § 14-215 (b), the defendant was in effect asking the court to circumvent our remand. Because the jury found the defendant guilty of violating § 14-215 (c) and we remanded the case with direction to enter judgment accordingly, the trial court was without power to sentence him under § 14-215 (b).

II

The state claims that the trial court improperly failed to impose the mandatory minimum sentence of thirty days pursuant to § 14-215 (c). We agree.

Section 14-215 (c) provides: “Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.” (Emphasis added.)

It is well established that “the legislature may impose mandatory minimum terms of imprisonment for certain crimes, and may preclude the probation or suspension of a sentence.” State v. Darden, 171 Conn. 677, 680, 372 A.2d 99 (1976); see also State v. Lopez, 197 Conn. 337, 353, 497 A.2d 390 (1985). “A trial court’s power to impose a particular sentence is defined by statute, and the constitution does not require that the judiciary be given discretion in sentencing.” State v. Lopez, supra, 353.

Section 14-215 (c) clearly states that where a defendant operates a motor vehicle while his license was under suspension for a prior conviction pursuant to § 14-227a, the trial court cannot impose a sentence of less than thirty days. Because the defendant was convicted of violating § 14-215 (c), the trial court was without discretion to suspend the sentence.

The judgment is reversed and the case is remanded with direction to sentence the defendant pursuant to the provisions of General Statutes § 14-215 (c).

In this opinion the other judges concurred.

       General Statutes 14-215 provides: “(a) No person to whom an operator’s license has been refused, or whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked.
      “(b) Except as provided in subsection (c) of this section, any person who viólales any provision of subsection (a) of this section shall be fined not less than one hundred fifty dollars nor more than two hundred dollars or imprisoned not more than ninety days or be both fined and imprisoned for the first offense, and for any subsequent offense shall be fined not less than two hundred dollars nor more than six hundred dollars or imprisoned not more that one year or be both fined and imprisoned.
      “(c) Any person who operates any motor vehicle during the period his operator's license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.”

       Practice Book § 619 provides: “Where the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two separate parts, each signed by the prosecuting authority. In the first part, the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged. In alleging the former conviction, it is sufficient that the information allege the date when, the town or city where, and the court wherein such conviction was obtained and the crime of which the defendant was convicted, all of which may be stated in accordance with the provisions of Sec. 618.”

       Even if the claim here could be considered as an alternative ground of affirmance, it is without merit. Practice Book § 619 applies where a former conviction is alleged in addition to the principal offense charged. Here, the suspension based on the prior conviction is an element of the charged offense. In State v. Torma, supra, 21 Conn. App. 496, we held that the defendant must be sentenced pursuant to § 14-215 (b) where a violation of § 14-215 (c) was not specifically alleged. In this case, the state did specifically allege a violation of § 14-215 (c). In State v. Jones, supra, 234 Conn. 324, our Supreme Court held that the trial court should have granted a motion in limine to bifurcate evidence of the essential element of a prior murder conviction in a capital felony case. Here, the defendant did not file a motion in limine to bifurcate evidence of his prior conviction and resulting suspension. In addition, Jones was a capital felony case requiring heightened scrutiny and the Supreme Court carefully pointed out that such bifurcation was not required in all cases.


text:
    AMY JEANNE CONWAY v. TOWN OF WILTON ET AL.
    (AC 13524)
    Landau, Schaller and Spear, Js.

      Submitted on briefs November 1, 1996
    decision released April 29, 1997

      Ira B. Grudberg and David T. Grudberg filed a brief for the appellant (plaintiff).

      Hugh W. Cuthbertson and Dana Shaw MacKinnon filed a brief for the appellee (defendant Connecticut Association of Secondary Schools).
   Opinion

SPEAR, J.

This case, in which the plaintiff claims that she was injured while participating in a tennis tournament on municipally owned property, comes to us on remand from our Supreme Court. Conway v. Wilton, 238 Conn. 653, 680 A. 2d 242 (1996) (Conway II). The Supreme Court reversed our decision in Conway v. Wilton, 39 Conn. App. 280, 664 A.2d 327 (1995) (Conway I), in which we held that the trial court properly rendered summary judgment in favor of all of the defendants in light of Manning v. Barenz, 221 Conn. 256, 603 A.2d 399 (1992). In Manning, our Supreme Court determined that a municipality could be immune from liability pursuant to the Recreational Land Use Act (act), General Statutes §§ 52-557f through 52-557h, if it met the requirements of the act. Id.

In Conway II, however, the court reversed Manning and held that the legislature never intended for the act to confer immunity on municipalities. Consequently, the Supreme Court reversed Conway I and remanded the case to us with direction to remand the case to the trial court for further proceedings as to the defendant town and the defendant parks and recreation director. As to the remaining defendant, the Connecticut Association of Secondary Schools (association), the Supreme Court directed us to consider “whether the association is an ‘owner’ under § 52-557f (3) in order to define the scope of the association’s liability . . . .” The Supreme Court stated that this question arises because it did not certify any question as to “what duty the association would owe if Manning is indeed overruled, thereby stripping the town of its immunity, and concomitantly, whether the association can nevertheless be an ‘owner’ under the act even though it has not opened its property to the public. Although the Appellate Court concluded that the association was an ‘owner’ under the act; [Conway I], supra, 39 Conn. App. 287; that decision was made in the context of our holding in Manning, which we have now overruled.” Conway II, supra, 238 Conn. 681. We now conclude that the summary judgment in favor of the association should be reversed because Conway II creates potential issues of material fact that are different from those addressed by the trial court in Conway I.

The relevant facts are set out in Conway II, supra, 238 Conn. 655. “The plaintiff, Amy Jeanne Conway, brought this action against the town of Wilton (town), David Dixon, the parks and recreation director for the town, and the [association], for personal injuries sustained while participating in a state high school tennis tournament sponsored by the association on premises owned by the town. The plaintiff alleged that on June 9,1986, the Connecticut Interscholastic Athletic Conference (conference) held a championship tennis tournament for high school girls at the Wilton High School tennis courts. No fee had been charged for the use of the tennis courts. The plaintiff further alleged that, while competing in the tournament, she fell as a result of a defect in the courts and sustained serious injuries to her knee and ankle. Additionally, the plaintiff alleged that the proximate cause of her injuries was the negligence of Dixon and his staff in maintaining the tennis courts, and the negligence of the association in failing to inspect the courts in order to ensure that the town repair any unsafe conditions and in failing to supervise the administration of the tournament.”

In Conway II, the Supreme Court held that the word “owner,” as used in § 52-5571 (3), contains a latent ambiguity. After a comprehensive review of the legislative history, the court concluded that the legislature intended that “owner” means “private, not municipal, fee owners.” Id., 676. In addition, because municipalities “are in the business of providing parks, pools, ball fields, etcetera, the legislature had less incentive to dangle the carrot of immunity to encourage municipalities to do what they historically have always done.” Id., 671-72. “At the time the act was enacted, the legislature was interested in increasing the availability of land for public recreational use. . . . Consequently, municipalities would have had to identify additional land and pay large sums to purchase and maintain it in order to accomplish that goal had the legislation not succeeded. The legislature’s sole motive [in granting immunity] was to encourage private citizens to donate their land as an alternative to this costly enterprise.” Id., 673.

The association conducted the tennis tournament at a recreation facility owned by a municipality. On the basis of the municipal-private owner dichotomy that underpins Conway II, we conclude that it is necessary to know the nature of the association, its functions and its relationship to the municipality before we can determine whether the act applies.

The material fact about which the trial court found there was no genuine issue was whether the association was in control of the premises during the relevant time period. Such control was conceded by the plaintiff for purposes of the act. At that time, there were no issues as to what kind of entity the association is or what its relationship to the municipality was. The plaintiff contended in the trial court and in this court that the association was subject to liability despite its control of the premises pursuant to the act.

We are persuaded that Conway II creates other potential issues of material fact that are relevant to the question of immunity for the association. Whether the association is funded by municipalities, whether it performs municipal functions and whether it acts as an agent of the municipalities that it serves are among the factual issues that could be relevant in determining whether immunity is consistent with the purpose of the recreational use statute as interpreted by our Supreme Court.

The question presented to us on remand is one of law. It requires, however, a factual predicate involving a material fact that can be established only in the trial court. Although the remand does not specifically direct us to remand any issues with respect to the association to the trial court, we construe the order as implicitly allowing a remand to the trial court if necessary.

The summary judgment in favor of the defendants is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       General Statutes § 52-557f provides: “As used in sections 52-557f to 52-557i, inclusive:
      “(1) ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land;
      “(2) ‘Land’ means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty;
      “(8) ‘Owner’ means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises;
      “(4) ‘Recreational purpose’ includes, but is not limited to, any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding, hang gliding, sport parachuting, hot air ballooning and viewing or enjoying historical, archaeological, scenic or scientific sites.”
      Section 52-557g provides: “(a) Except as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes.
      “(b) Except as provided in section 52-557h, an owner of land who, either directly or indirectly, invites or permits without charge, rent, fee or other commercial service any person to use the land, or part thereof, for recreational purposes does not thereby: (1) Make any representation that the premises are safe for any purpose; (2) confer upon the person who enters or uses the land for recreational purposes the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of the owner.
      “(c) Unless otherwise agreed in writing, the provisions of subsections (a) and (b) of this section shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.”
      Section 52-557h provides: “Nothing in sections 52-557Í to 52-557Í, inclusive, limits in any way the liability of any owner of land which otherwise exists: (1) For wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; (2) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this section.”

       Pursuant to the remand, we directed the parties to file supplemental briefs to address “(1) [w]hether [the association] is immune, under these circumstances, as an owner pursuant to General Statutes § 52-557g, in light of the Supreme Court’s [reversal of Manning v. Barenz, supra, 221 Conn. 256] and (2) [w]hether the record supplies this court with a sufficient factual predicate to determine whether [the association] is an owner pursuant to General Statutes § 52-557?”

       During oral argument, the plaintiffs counsel made several statements conceding that the association was an owner. He stated that the association “was at one point an owner,” that it had “a very brief period of control,” and that the association took certain actions “while in control of the land.” Counsel also stated that the association’s duties were “prior to taking control of the land,” that “the time frame in which [the association] was an owner was quite narrow” and that the association’s “temporary status as owner should not confer immunity.”

       We note that “[i]n carrying out a mandate of [the Supreme Court,, we are] limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that [the Supreme Court] must observe. . . . [This] court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. . . Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 522, 686 A.2d 481 (1996), quoting West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 312, 541 A.2d 858 (1988).


author: PER CURIAM.

text:
    GARY ROGERS v. NORTHEAST UTILITIES
    (AC 15508)
    Foti, Spear and Hennessy, Js.
    Argued March 20
    officially released April 29, 1997

      William F. Gallagher, with whom, on the brief, was Thomas J. Airone, for the appellant (plaintiff).

      Patricia E. Reilly, with whom, on the brief, was Richard W. Bowerman, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff appeals from the judgment rendered for the defendant following a jury trial. The plaintiff claims that the trial court improperly (1) refused to grant a continuance for rebuttal evidence and (2) excluded evidence of mental distress and resulting disability from possible exposure to radiation contamination. The defendant asserts that the general verdict rule applies, precluding appellate review of the plaintiffs claims. We agree with the defendant and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 12,1989, the plaintiff, a union carpenter employed by the C. N. Flagg Power, Inc., was working at a nuclear power plant owned by the defendant that had been shut down. The plaintiff was constructing support staging of tubular steel pipes and wooden platforms. He was working in the containment area and wore protective covering. As the plaintiff attempted to go around a leaking valve, he slipped on a lubricant spilled by other laborers and fell to the staging below. He landed in a pool of water that he believed was contaminated.

The plaintiff filed a one count complaint alleging negligence. The defendant denied the allegations of negligence and raised contributory negligence as a special defense. The jury returned a general verdict in favor of the defendant; neither party had filed interrogatories for the jury. The defendant’s verdict form, used by the jury, read: “To be used if you find Defendant, Northeast Utilities, not legally liable or if you find the Plaintiff, Gary Rogers, comparatively responsible to the extent of 51% or more.” (Emphasis in original.)

The general verdict rule provides that “if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the juiy found every issue in favor of the prevailing party.” Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). The defendant’s denial of the plaintiffs allegations of negligence and the defendant’s special defense of contributory negligence constituted two separate and distinct defenses, either of which may have supported the verdict for the defendant. See Mazuroski v. Hernovich, 42 Conn. App. 574, 577, 680 A.2d 1007, cert. denied, 239 Conn. 922, 682 A.2d 1003 (1996).

The plaintiff argues that because the defendant offered no liability witnesses or evidence other than facts impacting on the plaintiffs credibility, the jury could not have found that the defendant proved its special defense, and the general verdict rule, therefore, should not be applicable. We do not agree. The trial court charged the jury on the defendant’s special defense without objection by the plaintiff. The evidence was sufficient for the jmy to find the special defense proven, even if only through the testimony of the plaintiff.

The plaintiff also claims that even if the general verdict rule technically applies, his claims should be reviewed because “credibility trumps the general verdict rule.” He argues that the trial court should have permitted him to present rebuttal evidence bearing on the issue of his credibility. Specifically, he contends that the trial court should have allowed him to present evidence of his mental distress resulting from his possible exposure to contaminated water, which, he claims, impacts on his credibility.

Our review of the record leads us to conclude that both issues claimed go to damages rather than liability. Because the jury rendered a defendant’s verdict, it never had to consider damages. Even if the court acted improperly in either or both of these rulings, any such error would be harmless. The impeachment evidence introduced by the defendant affected only damages, not liability. It went to the claim presented by the plaintiff that he was unable to work. Rebuttal evidence in this area would not affect liability, nor would liability be affected by evidence of the plaintiffs mental distress.

While it may be argued that, under the maxim falsus in uno, falsus in omnibus, any issue relevant to credibility may necessarily affect a fact finder’s determination as to Lability, the circumstances presented on the record before us lead us to conclude that the plaintiffs claims relate only to the issue of damages. Our application of the general verdict rule, therefore, precludes review of the plaintiffs claims.

The judgment is affirmed.

       This maxim expresses the general principle of law that where a witness has testified falsely as to some material matter, the jury may be free to disregard that witness’ testimony in other respects, unless it is corroborated by other proof.


author: HENNESSY, J.

text:
    TERESA BLACKWELL ET AL. v. TODD BRYANT ET AL.
    (15920)
    Spear, Hennessy and Stoughton, Js.

      Argued March 5
    officially released April 29, 1997

      Susan King Shaw, for the appellants (plaintiffs).

      Paul T. Edwards, for the appellee (defendant ELRAC, Inc.).
   Opinion

HENNESSY, J.

The plaintiffs, Teresa Blackwell and Edwin Blackwell, appeal from the judgment of the trial court granting summary judgment in favor of the defendant ELRAC, Inc., doing business as Enterprise Rent-A-Car. On appeal, the plaintiffs claim that the trial court improperly granted summary judgment because (1) the rental contract was not dispositive of the defendant’s liability as a matter of law, (2) an issue of material fact existed as to whether Edwin Blackwell was able to operate the rental vehicle safely on the night of the accident and (3) it failed to consider whether the defendant unreasonably or unconscionably attempted to restrict the class of authorized users of the vehicle.

The following facts are pertinent to the resolution of the issues. On July 2, 1992, Edwin Blackwell and Todd Bryant went to the defendant’s office in Hamden to rent a vehicle. Edwin Blackwell informed the defendant’s agent that he and his mother, Teresa Blackwell, needed the car to drive to South Carolina to attend a wedding. He also indicated that he wanted Bryant to be an authorized driver of the rental car. The agent, however, typed the words “no others” into the space in the permission box authorizing additional drivers. On the return trip from South Carolina on July 6, 1992, the vehicle was involved in an accident. At the time of the accident, Bryant was driving the rental car, and Teresa and Edwin Blackwell were passengers. Both of the plaintiffs were injured as a result of the accident.

The plaintiffs subsequently brought an action against Bryant for negligent operation of the vehicle and against the defendant pursuant to General Statutes § 14-154a. The trial court denied the defendant’s motion for summary judgment, holding that a genuine issue of material fact existed as to whether Bryant had the authority to operate the vehicle. The defendant again moved for summary judgment claiming that the decision in Pedevillano v. Bryon, 231 Conn. 265, 648 A.2d 873 (1994), controlled the outcome of this case. After a hearing, the trial court granted the defendant’s motion.

We must first decide whether this appeal is moot because the plaintiffs withdrew their claim against Bryant. “Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Citations omitted; internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93, 671 A.2d 345 (1996).

The defendant argues that under § 14-154a, its potential liability is equivalent to that of the operator if the operator had been the owner of the vehicle. Accordingly, because Bryant, the operator of the vehicle, bears no further liability to the plaintiffs, the defendant maintains that it can bear no further liability under the statute. We disagree with the defendant’s interpretation of § 14-154a.

The defendant cites no authority in support of its position. In fact, the case law does not support its argument. In Hughes v. National Car Rental Systems, Inc., 22 Conn. App. 586, 577 A.2d 1132 (1990), the plaintiff brought a claim against the owner of a vehicle under § 14-154a without filing suit against the driver of the vehicle. Moreover, the purpose of the statute would be furthered by permitting a plaintiff to file an action against an owner independent of any action against the operator. For these reasons, we conclude that the appeal is not moot.

We next address the plaintiffs’ claim that the trial court improperly granted summary judgment and found the defendant not hable solely on the basis of the terms of the rental contract. The plaintiffs maintain that in Pedevillano v. Bryon, supra, 231 Conn. 265, and its Superior Court progeny, our courts have recognized a variety of factual situations relative to contract interpretation, performance and formation that are material for purposes of determining the owner’s liability under § 14-154a. They further argue that, here, the trial court should have conducted a factual inquiry as to the circumstances surrounding the formation and execution of the rental contract to determine whether Bryant was an authorized driver, instead of relying solely on the terms of the contract. We disagree.

In Pedevillano, the plaintiff argued that, literally construed, § 14-154a imposes unconditional liability on a lessor for injuries caused by any user of the lessor’s vehicles. Our Supreme Court readily disposed of this broad contention stating: “We have consistently construed the statute as imposing on one who rents or leases a motor vehicle to another the same liability as that of its operator, provided the vehicle, at the time in question, is being operated by one in lawful possession of it pursuant to the terms of the contract of rental.” (Emphasis in original.) Id., 268. The court also rejected the plaintiffs contention that § 14-154a imposes unlimited liability on any lessor for injuries caused by a person who uses the vehicle with the permission of an authorized lessee. Id. Here, the rental contract clearly provided that no one other than Edwin Blackwell was authorized to operate the vehicle. Furthermore, Pedevillano makes clear that the lessor is not liable under the statute even when the lessee allows another party to drive the vehicle. Thus, Bryant was not in lawful possession of the vehicle under the terms of the contract. The trial court properly concluded that the defendant was not liable under § 14-154a solely on the basis of the terms of the lease agreement.

In the plaintiffs’ second claim on appeal, they maintain that the existence of an emergency situation was a genuine issue of material fact with respect to the liability of the rental company, rendering summary judgment inappropriate. We disagree.

The plaintiffs argue that an emergency situation existed because Edwin Blackwell was too tired to operate the rental car safely, and, therefore, Bryant was compelled to drive the vehicle. Thus, they contend that the defendant remains liable under § 14-154a. We conclude that the trial court correctly ruled that the plaintiffs claimed exhaustion was insufficient to give rise to such an emergency exception as a matter of law. Even if we accept as true that Edwin Blackwell believed that he was too tired to drive, he nevertheless could have stopped to rest. Such a situation does not create an issue of material fact as to whether there was an emergency warranting an unauthorized driver to operate the vehicle.

The plaintiffs’ final claim is that summary judgment was improper because they raised genuine issues of material fact concerning the defendant’s restriction of authorized drivers. The plaintiffs argue that the defendant’s failure to authorize Bryant as a driver or to provide for others to drive in emergency situations was unconscionable or unreasonable or both. The plaintiffs, however, failed to cite adequately either factual or legal support for their claim that the rental provision disallowing additional drivers was unreasonable or unconscionable. We conclude that these issues are not adequately briefed; therefore, we will not review them. See Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 47, 668 A.2d 1346 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs withdrew their claims against the named defendant, Todd Bryant. In this opinion, we refer to ELRAC as the defendant.

       General Statutes § 14-154a provides: “Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.”

       The judgment was subsequently affirmed after the trial court granted Bryant’s motion for reargument and heard additional argument on the summary judgment motion.

         In Fisher v. Hodge, 162 Conn. 363, 369, 294 A.2d 577 (1972), our Supreme Court stated that “[t]he purpose of the statute was not primarily to give the injured person a right of recovery against the tortious operator of the car, but to protect the safety of traffic upon highways by providing an incentive to him who rented motor vehicles to rent them to competent and careful operators by making him liable for damage resulting from the tortious operation of the rented vehicles.”

       We note that in Pede,villano, our Supreme Court overruled certain dictum from Fisher v. Hodge, supra, 162 Conn. 363, in which the court had stated that § 14-154a imposes liability on a lessor “regardless of the provisions of the rental contract restricting the use of the automobile to specified individuals . . . .” Id., 368-69. The Supreme Court ruled that that dictum was inconsistent with its decisions in preceding and subsequent cases. Pedevillano v. Bryon, supra, 231 Conn. 270 n.3.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. EBONY CASEY
    (AC 15847)
    Landau, Schaller and Shea, Js.

      Argued January 21
    officially released April 29, 1997

      DanielS. Blinn, special public defender, with whom, on the brief, was Gale E. Bedeles of the Pennsylvania Bar, special public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Jason Schroder, certified legal intern, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Ebony Casey, appeals from the judgment of conviction rendered after a conditional plea of nolo contendere made pursuant to General Statutes § 54-94a to the charges of robbery in the first degree in violation of General Statutes § 53a-134 and felony murder in violation of General Statutes § 53a-54c. On appeal, the defendant claims that the trial court improperly (1) refused to suppress her custodial statement and (2) refused to suppress detention scene identifications. We affirm the judgment of conviction.

The following facts are necessary for the resolution of this appeal. On June 14, 1994, at approximately 5 p.m., the defendant was driving through Rockville in a turquoise Chevrolet Beretta with Edwin Ross and two other males. While driving, they spotted Benny Cruz and targeted him as a possible robbery victim. Before approaching Cruz, they dropped off one of the passengers at a video store in Rockville and returned to the area where they had spotted Cruz. When they saw him, they called to him to come over to the car. When Cruz got near the car, the defendant exited the vehicle, stuck a pistol in his chest, demanded that he give her his money and removed a gold chain from his neck. Cruz then threw $7 on the ground and ran away.

After robbing Cruz, the defendant and the two passengers drove to the residence of Joey Michaud. Upon arriving, they went to the rear of Michaud’s residence. When Michaud came to the window to see who was there, he was confronted by the defendant and the two other individuals who demanded that he give them drugs or other valuables. When Michaud refused, the defendant took out her pistol and shot him through the window. Michaud died from the gunshot wound. The defendant and the two other individuals immediately fled from Michaud’s home in the Beretta. On their way out of Rockville, they stopped at the video store and picked up the passenger.

Shortly after the shooting, Sergeant Richard Simon and Detective Bart Zamichiei of the Vernon police department were dispatched to Michaud’s house on a report that Michaud had been shot. They arrived at Michaud’s house at approximately 5:25 p.m. At approximately 5:35 p.m., Simon and Zamichiei spoke with Lauren Vitale who was in the house with Michaud when he had been shot. Vitale told them that she and Michaud had been watching television in Michaud’s bedroom when they heard knocking on the rear door of the apartment. She indicated that when Michaud went to the window to see who was knocking she was able to see the individuals who were standing outside. She indicated that she saw the defendant and two black males standing outside and that all three individuals wore their hair in dreadlocks. She described the female as wearing a black T-shirt with white lettering, one male as tall, wearing a white T-shirt and green jeans, and the other male as a short “kid” wearing a gray shirt and blue jeans. Vitale also stated that she overheard the defendant ask Michaud if he had any drugs and that when Michaud indicated that he did not, she heard a loud cracking or popping noise and heard Michaud exclaim that he had been shot.

After the Vitale interview, Zamichiei interviewed Brian Grosjean, who lived in the second floor apartment of Michaud’s residence. Grosjean told Zamichiei that he had heard the gunshot. He also indicated that he had noticed a dark colored vehicle parked in front of the house and saw a black female teenager emerge from it and walk toward the house.

While Simon and Zamichiei were investigating the murder scene, Officer Christopher Meyers, who was at the Vernon police station, overheard the initial radio dispatch of the Michaud shooting and responded to the crime scene. En route, he saw one of Michaud’s friends, Duane Bailey, on Talcott Avenue. Meyers stopped Bailey and spoke with him. Bailey told Meyers that shortly before the shooting he had seen a turquoise Grand Am type vehicle driving through the area and that he thought there were three black males in the vehicle. Meyers radioed this information to the police station at 5:34 p.m.

When Meyers arrived at the crime scene, he spoke with Matt Brown, Jeremy Kennan and Jeff Hansen. These individuals told Meyers that, approximately fifteen minutes before the shooting, a turquoise Beretta that was occupied by two black males and the defendant pulled up to them. They stated that the defendant was wearing braids and that she looked like a boy. They also indicated that she was in the front passenger seat of the Beretta. They told Meyers that when the Beretta pulled up next to them, the defendant asked if they knew where Cruz was and when they said that they did not, the Beretta drove off. Meyers radioed this new information to the police station at approximately 5:40 p.m. During the course of his investigation, Meyers also spoke to Donald Banning who told him that he was with Cruz earlier that evening when the defendant robbed Cruz at gunpoint.

Meanwhile, at approximately 5:38 p.m., Officer Richard Riggs of the South Windsor police department was dispatched to a service station on Sullivan Avenue on a report that a motor vehicle involved in a shooting in Vernon was in the area. The dispatch indicated that the vehicle in question was a turquoise Grand Am type vehicle occupied by three black males or two black males and one black female. The information regarding the vehicle’s location had been obtained from a motorist who had been listening to his police scanner and had overheard the dispatcher relate the information originally obtained by Meyers. While Riggs was en route to the area where the vehicle was spotted, he received additional information from his dispatcher that the vehicle in question was in fact a Chevrolet Beretta with license plate number 494JMG. Subsequently, Riggs spotted the vehicle on Sullivan Avenue and began following it. Shortly thereafter, Officer Michael Russotto, who was also responding to the dispatch, pulled onto Sullivan Avenue directly behind the Beretta. At approximately 5:40 p.m., as the Beretta turned right onto Route 5 in South Windsor, Russotto activated his lights and pulled the vehicle over to the right shoulder. Both Riggs and Russotto parked their cruisers directly behind the Beretta. Because the dispatch had indicated that the occupants were involved in a shooting, Riggs and Russotto waited for Officer Daniel Martin and Sergeant Michael Ritter to arrive before taking any action. When Martin and Ritter arrived, the officers performed a “high risk felony stop.” Ritter supervised the stop. lie closed down the southbound lane of Route 5 and appointed Riggs as cover officer. Riggs maintained constant visual contact with the Beretta. Russotto acted as the control officer. He spoke through the cruiser’s public address system and ordered the defendant and the other suspects out of the Beretta one at a time with their hands on their heads. When they were outside of the vehicle, Russotto told them to place their hands on the roof of the car and to turn completely around and walk backward toward Martin. Russotto then directed each of them to kneel on the ground. Martin handcuffed and frisked the defendant and the other suspects and then placed them in one of two police vehicles. Officer Paul Audette, who arrived on the scene shortly after the felony stop began, assisted Riggs and Russotto. All five officers had their guns drawn during this procedure, which lasted approximately ten minutes.

After securing the defendant and the other suspects, the officers obtained their names, addresses and biographical information and radioed the police station to check for outstanding warrants. This check was negative. The officers then checked the Beretta’s driver and passenger areas for weapons and opened the trunk for the sole purpose of ensuring that no other person was hiding in it. While searching the backseat of the Beretta, Russotto discovered a lock-blade knife. Audette and Martin searched the driver and passenger areas a second time to ensure that other weapons had not been overlooked. During this search, Martin found a .22 caliber shell casing. After this discovery, the officers removed the defendant and the other suspects from the police cruisers and frisked them a second time for weapons. None was found.

While the felony stop was being conducted, a dispatch came over the radio further describing the suspects in Michaud’s shooting. The defendant and the other suspects generally matched the descriptions.

At approximately 5:50 p.m., Ritter directed his dispatcher to notify the Vernon police that witnesses were needed to identify the suspects. Zameichiei, Meyers and Simon received this dispatch and, in the next fifteen minutes, gathered Vitale, Grossjean, Brown, Kerman, Hansen and Banning to participate in a show-up identification procedure at the detention site. At approximately 6:05, the Vernon officers and the six witnesses left Vernon for South Windsor. Commuter traffic was heavy and the parties did not reach the detention site until 6:29 p.m.

When the officers and the six witnesses arrived in South Windsor, they stopped approximately 150 yards from the detention area. Before they began, Simon conferred with Ritter and the other officers about the identification procedure. The witnesses were instructed on more than one occasion not to discuss the case either before or after they viewed the suspects. Thereafter, the suspects were removed from the police cruisers and positioned on the side of the road. All of the suspects were handcuffed with their hands behind their backs. Each witness was individually driven to the area where the suspects were standing and viewed the suspects from inside the car at a distance of fifty feet. Vitale identified the defendant as the girl who was outside the window at Michaud’s house. She said she was “200 percent sure” of her identification. She also identified Ross as the man who was with the defendant at Michaud’s residence. Grosjean did not identify any of the suspects or the Beretta. Keenan identified the defendant, Ross and the vehicle. Hansen identified only the defendant. Brown identified the defendant and one of the other suspects. Banning identified the defendant, Ross and the vehicle. The last identification was made at 7:06 p.m.

After the identifications were made, the officers arrested the defendant and the other three suspects and transported them to the Vernon police station. While in custody, the defendant gave a statement in which she indicated that she was present when the robbery and shooting took place. Two of the men taken into custody gave statements implicating the defendant in the robbery and the shooting.

The defendant filed a motion to suppress her inculpatory statement and to suppress the identifications. The trial court denied the defendant’s motion to suppress and ruled that the Terry stop was valid. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The trial court further concluded that the identification procedure was not unnecessarily or impermissibly suggestive and, on the basis of the totality of the circumstances, that the identifications were, nevertheless, reliable.

I

The defendant first claims that the trial court improperly refused to suppress her inculpatory statement following her arrest. The defendant claims that because the actions of the police exceeded the permissible limits of an investigatory detention, any subsequent statement given by her should be excluded as product or “fruit” of police conduct in violation of the fourth amendment. See State v. Miller, 29 Conn. App. 207, 215, 614 A.2d 1229 (1992), citing Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

At the suppression hearing and in oral argument before this court, the defendant conceded that the initial Terry stop was proper. See United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985) (if police have reasonable suspicion grounded in specific and articulable facts that person encountered involved in or wanted in connection with completed felony, then Terry stop permitted to investigate suspicion); State v. Mitchell, 204 Conn. 187, 195-96, 527 A.2d 1168, cert denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). We therefore need not address the propriety of the initial stop. See State v. Bowden, 15 Conn. App. 539, 543-44, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A. 2d 438 (1988). The constitutional issue raised by this stop, therefore, is whether the actions of the police officers exceeded the permissible limits of an investigative detention under Terry v. Ohio, supra, 392 U.S. 1.

“A Terry stop that is justified at its inception can become constitutionally infirm if it lasts longer or becomes more intrusive than necessary to complete the investigation for which that stop was made. . . . Like the determination of initial justification, this inquiry is fact-bound. . . . The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Mitchell, supra, 204 Conn. 197; see also State v. Torres, 197 Conn. 620, 626, 500 A.2d 1299 (1985). “One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. A police officer who has proper grounds for stopping a suspect has constitutional permission to immobilize the suspect briefly in order to check a description or an identification, so long as his conduct is strictly tied to and justified by the circumstances which rendered its initiation permissible. . . . Determination of the means that are reasonably necessary to maintain the status quo necessarily depends on a fact-bound examination of the particular circumstances of the particular governmental intrusion on the personal security of a suspect.” (Citations omitted; internal quotation marks omitted.) State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985); see also State v. Whitfield, 26 Conn. App. 103, 112, 599 A.2d 21 (1991).

The defendant claims that the investigatory stop became constitutionally infirm and more intrusive than was necessary to complete the investigation for which the stop was made because the police (1) removed her and the other suspects from the vehicle at gunpoint, (2) searched the vehicle, her and the other suspects twice, (3) handcuffed her and the other suspects and placed them in the back of police cruisers, and (4) detained her and the other suspects for an hour before identifications necessary for the probable cause to arrest her could be made. The defendant conceded at oral argument that all of the foregoing factors standing alone are under certain circumstances permissible pursuant to a valid Terry stop. See State v. Wylie, 10 Conn. App. 683, 687-88, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987) (mere fact that officers removed defendant and other suspects from vehicle at gunpoint does not automatically convert Terry stop into arrest); State v. Holloman, 20 Conn. App. 521, 526, 568 A.2d 1052, cert. denied, 214 Conn. 805, 573 A.2d 317 (1990) (permissible in course of Terry stop for officers to have revolvers drawn when ordering occupants out of car where report of occupants involved in armed robbery in which handgun stolen); State v. Williams, 157 Conn. 114, 118, 249 A.2d 245 (1968), cert. denied, 395 U.S. 927, 89 S. Ct. 1783, 23 L. Ed. 2d 244 (1969) (as matter of common law, when officer justified in believing that individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to officer or others, it would be clearly unreasonable to deny officer power to take necessary measures to determine whether person is in fact carrying weapon and to neutralize threat of physical harm); State v. Kyles, 221 Conn. 643, 660-61, 607 A.2d 355 (1992), citing Terry v. Ohio, supra, 382 U.S. 1, and Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983) (officers justified in conducting frisk of suspect to determine if person is carrying weapon if officers reasonably believe suspect may be armed and dangerous, and authorized to conduct search of passenger area for weapons); State v. Braxton, supra, 196 Conn. 689-90 (officer who has articulable grounds to believe that crime has been committed and to detain someone who may be implicated in dime must be permitted to make reasonable use of resources at disposal at site of investigatory stop); State v. Mitchell, supra, 204 Conn. 198, citing United States v. Sharpe, 470 U.S. 675, 686-88, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (no specific time limit on investigative stops); see also 4 W. LaFave, Search and Seizure (3d Ed. 1996) § 9.2 (d), pp. 34-42. The defendant argues, however, that the cumulative effect of all these factors changed a valid Terry stop into an unconstitutional intrusion on the defendant’s rights.

The proper way to identify the limits of an investigatory stop is to balance the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion. State v. Mitchell, 7 Conn. App. 46, 60, 507 A.2d 1017 (1986), rev’d on other grounds, 204 Conn. 187, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987), citing United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 604 (1985); see also United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989) (rejecting “least intrusive means” test for Terry stop). Applying this balancing test, we conclude that the scope of the investigative stop of the defendant was reasonable under all of the circumstances. The police made the stop of the vehicle on a report that the defendant and the other occupants may have been involved in a shooting in Vernon. The nature, seriousness and recency of the crimes in this case dictated the need for a continued detention of the defendant and the other suspects. The officers’ actions took into account the safety of the public as well as of themselves. They limited their searches of the defendant and the passenger compartment of the vehicle to searches for weapons. Finally, they acted diligently to pursue a means of investigation, namely, the display of the defendant to six possible witnesses, which was likely to confirm or dispel their suspicion quickly. “[Detaining a suspect to effectuate a viewing by witnesses to a crime has been deemed to be a permissible investigative technique.” State v. Mitchell, supra, 204 Conn. 199. In this case, the investigation obviously required the continued detention of the defendant. Accordingly, the one hour that elapsed from the time of the shooting until probable cause arose for the defendant’s arrest was reasonable under all the circumstances.

We conclude that, under the circumstances of this case, the actions of the police officers did not exceed the permissible limits of an investigative detention under Terry and that the defendant’s motion to suppress was properly denied.

II

The defendant claims next that the trial court improperly denied her motion to suppress the witnesses’ out-of-court identifications of her because they were unnecessarily suggestive and unreliable. The trial court ruled that the procedure used by the police in this case, though suggestive, was not unnecessarily or impermissibly suggestive, and on the basis of the totality of the circumstances that the identifications were, nevertheless, reliable.

To determine whether an identification procedure violated a defendant’s due process rights, “the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and, second, if it is found to have been so, it must be determined whether the identification was nevertheless rehable based on an examination of the ‘totality of the circumstances.’ ” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). “The standard by which we review a trial court’s decision to admit evidence of identifications is well settled. [W]e will reverse the trial court’s ruling only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in eveiy reasonable presumption in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 155, 665 A.2d 63 (1995). To prevail on her claim, the defendant must demonstrate that the trial court improperly ruled on both of its determinations regarding suggestiveness and reliability of identifications under the totality of the circumstances. State v. Wooten, 227 Conn. 677, 685, 631 A.2d 271 (1993).

We first address the defendant’s claim that the identification procedure was unnecessarily suggestive. The defendant contends that because she and the other suspects were standing in a line-up, handcuffed behind their backs, surrounded by police officers and police cruisers and next to the Beretta in which they were stopped, the show-up identification procedure was unnecessarily suggestive. She also contends that this suggestiveness was heightened when Vitale was told by the Vernon police officers on the way to the identification scene that the South Windsor police were detaining four black persons who had been stopped in a blue-green Chevrolet Beretta and who were suspected of shooting Michaud. The state does not dispute that the identification was suggestive. See State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986); Williams v. Bronson, 21 Conn. App. 260, 264, 573 A.2d 330 (1990). The state contends, however, that the trial court correctly decided that the identification process, although suggestive, was not unnecessarily so.

“An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” State v. White, 229 Conn. 125, 161-62, 640 A.2d 572 (1994). Here, “ ‘the exigencies of the situation justified the [identification] procedure.’ ” State v. Wooten, supra, 227 Conn. 686. We conclude, therefore, that the trial court did not abuse its discretion in finding that the identification procedure, though suggestive, was not unnecessarily so.

Accordingly, we conclude that the trial court properly denied the defendant’s motion to suppress evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       The defendant entered this plea conditional on the right to appeal the trial court’s denial of her motion to suppress evidence.

       The officers testified that the defendant was not as thoroughly frisked as the male suspects because the South Windsor police department regulations do not permit male officers to pat down female suspects.

       Ritter testified at the suppression hearing that at the time he made the call for witnesses, he did not have probable cause to arrest the defendant and the other suspects and that if witnesses could not be provided he was going to have to let them go.

       The evidence that the defendant seeks to be suppressed is her statement.

       In any event, the trial court properly determined that the identification procedure was rehable. The following factors are to be considered in determining the reliability of an identification procedure: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of prior description of the criminal, the level of certainly demonstrated at the confrontation, and the time between the crime and the confrontation. State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992), citing Mason v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). “Because the issue of the reliability of an identification involves the constitutional rights of an accused, [however] we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Internal quotation marks omitted.) State v. Figueroa, supra, 235 Conn. 155; State v. Johnson, 22 Conn. App. 477, 482-83, 578 A.2d 1085, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990). In this case, the trial court considered the witnesses’ degree of attention during the roadside show-up, the accuracy of their prior descriptions, their levels of certainty, and the length of time between the crimes and the identifications. We are satisfied after our thorough review of the record that the trial court correctly concluded that the identification procedure was rehable under the totality of the circumstances.


author: FOTI, J.

text:
    MELANIE TARKA v. ANTON FILIPOVIC ET AL.
    (AC 15153)
    Foti, Heiman and Schaller, Js.

      Argued December 10, 1996
    officially released May 6, 1997

      John R. Williams, for the appellant (plaintiff).

      Donald R. Kiefer, with whom, on the brief, was David Kelso McConnell, for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiff, Melanie Tarka, appeals from the trial court’s decision rendering judgment in accordance with an attorney trial referee’s report. On appeal, the plaintiff claims that the trial court improperly concluded that the facts found did not constitute (1) an invasion of privacy and (2) a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

After trial before an attorney trial referee (attorney referee), the attorney referee submitted a twenty-six page report of her findings and recommendations. The trial court rendered judgment in accordance with the report, which found that the plaintiff prevailed on her claim that the defendants, Anton Filipovic and Rosanda Filipovic, had failed to return her security deposit (count one), awarding $1600 plus interest, and on her claim for emotional distress (count four), awarding damages in the amount of $1500. Further, the trial court rendered judgment for the defendants on all remaining counts of the plaintiffs nine count amended complaint, and rendered judgment for the plaintiff on the defendants’ counterclaim.

The attorney referee found the following relevant facts. The plaintiff entered into a lease agreement with the defendants for a one bedroom unit on the first floor of 297 Bruce Park Avenue, Greenwich, for $800 a month. The plaintiff entered into possession of the apartment in March, 1988. After numerous incidents between the plaintiff and the defendants over the next several months, the relationship soured. The defendants demanded that the plaintiff vacate the premises no later than November 30, 1988. The plaintiff voluntarily vacated the premises.

The facts relevant to the claim of invasion of privacy concern notes referring to the plaintiffs psychiatric care. There was conflicting testimony as to how the defendants came into possession of the notes, but the attorney referee determined that the plaintiff failed to prove her claim that the defendants wrongfully entered her apartment and removed the notes. Nevertheless, the attorney referee found that, once the defendants came into possession of the notes, they read them and retained them despite the fact that it must have been clear that they contained information of a personal and private nature. The defendants showed the notes to their attorney. The defendants’ attorney made known the basic contents of the notes to the plaintiffs attorney. The notes were then filed with the trial court in connection with discovery proceedings. The attorney referee found that the defendants’ conduct in circulating the notes was wrongful and found them liable under the plaintiffs claim of emotional distress. The attorney referee then determined whether the act of publishing the notes constituted an invasion of privacy. She found that the defendants did not circulate or make the notes known to the general public. The attorney referee concluded that the defendants gave the notes to their attorney as part of discovery and that, therefore, no invasion of privacy occurred.

The facts relevant to the CUTPA claim concern the defendants’ actions as the plaintiffs landlord. The plaintiff claims that the defendants failed to place her security deposit into an interest bearing account, that they turned off the electricity in the apartment and that the circulation of the notes constituted a violation of CUTPA. The attorney referee determined that, while the defendants’ conduct was “injudicious, ill-advised and tortious,” it did not constitute a violation of CUTPA.

I

As a prehminary matter, we must examine the procedures that govern matters heard by an attorney referee. See Practice Book § 428 et seq. An attorney referee “is obliged to report to the court ‘the facts found and the conclusions drawn therefrom,’ but the report may be supplemented with a ‘memorandum of decision including such matters as [the attorney referee] may deem helpful in the decision of the case . . . .’ Practice Book § 434.” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 503, 508 A.2d 415 (1986). The parties may seek additions or corrections in the facts contained in this report by filing a motion to correct with the attorney referee pursuant to Practice Book § 438. After the attorney referee responds to any motions to correct, the parties may file with the trial court exceptions to findings of fact pursuant to Practice Book § 439 or objections to factual conclusions or rulings pursuant to Practice Book §440. Seal Audio, Inc. v. Bozak, Inc., supra, 503, 518.

In Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. 518, the seminal case examining the procedures for matters heard by an attorney referee, our Supreme Court held that “[w]ith respect to the various claims of error relating to the merits of the factual findings made by the attorney referee, as well as the judgment rendered by the trial court based thereon, the defendant is precluded from effective appellate review by its failure to file a motion to correct the report of the referee pursuant to Practice Book § 438 or an objection to acceptance thereof pursuant to Practice Book § 440.” The court declined to review the factual findings because “[a] litigant cannot wholly ignore established procedures for the protection of its rights . . . and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” Seal Audio, Inc. v. Bozak, Inc., supra, 518.

Here, the plaintiff took no action pursuant to the postreport procedures pursuant to Practice Book §§ 438,439 or 440. The trial court accepted the findings of fact and factual conclusions and rendered judgment in accordance with the report of the attorney referee.

The plaintiff claims that she is not contesting the findings of fact or factual conclusions of the attorney referee. She asserts, rather, that the trial court, by adopting the report of the attorney referee, improperly applied the law to the facts as found by the attorney referee. “The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.” Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. 510. While we do not condone the plaintiffs failure to raise such challenges to the attorney referee in a motion to correct, exceptions or objections to the trial court, we must evaluate the trial court’s adoption of the attorney referee report as it applies the law to the facts.

II

The plaintiff claims that the defendants invaded her personal privacy by publishing the notes to their attorney and causing him to publish the notes to the court, and by summarizing the contents of the papers to her attorneys, thereby, damaging her relationship with them. We do not agree.

Our Supreme Court has described the four types of invasion of privacy: “(1) appropriation, for the defendant’s benefit or advantage, of the plaintiffs name or likeness; (2) intrusion upon the plaintiffs physical solitude or seclusion; (3) publicity, of a highly objectionable kind, given to private information about the plaintiff even though it is true and no action would lie for defamation; and (4) publicity which places the plaintiff in a false light in the public eye.” Venturi v. Savitt, Inc., 191 Conn. 588, 591 n.l, 468 A.2d 933 (1983). “Section 652D of the Restatement (Second) of Torts defines a tort action for the invasion of personal privacy as being triggered by public disclosure of any matter that ‘(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.’ ” Perkins v. Freedom of Information Commission, 228 Conn. 158, 172, 635 A.2d 783 (1993). “Comment (c) of § 652D recognizes, however, that not all personal and private information is protected from public disclosure: ‘The rule stated in [§ 652D] gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable [person].’ ” Id., 173.

The attorney referee determined that, although the facts constituted an intentional infliction of emotional distress, they did not constitute an invasion of privacy. Whether filing the notes with the court is “highly offensive” is a factual determination. The attorney referee found that the defendants did not circulate or make the notes known to the general public. They gave them to their attorney who filed them with the court in connection with discovery. On the basis of her unchallenged factual findings, the attorney referee concluded that the defendants did not invade the plaintiffs privacy. The trial court accepted the attorney referee’s conclusion. We do not find this determination to be an improper application of the law.

The plaintiff argues that the defendants unreasonably intruded on her solitude. Neither the attorney referee nor the trial court addressed that argument explicitly. In her report, the attorney referee did not address that theory of invasion of privacy. The attorney referee did not find that the defendants physically intruded on the plaintiffs space or even improperly investigated the plaintiffs private matters.

The plaintiffs failure to comply with the rules of practice governing procedures by which a party may challenge the findings of fact and factual conclusions of the attorney referee proves fatal to this claim. Practice Book §§ 438 and 439 specifically provide a procedure by which a party can challenge the omission of facts in an attorney referee’s report. Because the plaintiff did not raise an alternative theory for finding an invasion of privacy in a postreport motion, we are unable to review this argument.

Ill

The plaintiff claims that the facts found constitute a violation of CUTPA. She contends that the defendants’ conduct violated CUTPA because it was unfair and caused her substantial injury. We do not agree.

Connecticut applies the so-called cigarette rule, which sets out the standard for a CUTPA violation: “(1) [wjhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [or competitors or other businessmen].” (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591-92, 657 A.2d 212 (1995). “ ‘All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.’ ” Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d 1130 (1992).

The attorney referee found that, while the defendants failed to place the plaintiffs security deposit in an interest bearing account, they have acknowledged that they owe her interest on the deposit. The attorney referee determined that this conduct arose out of the defendants’ ignorance of their obligations. The attorney referee further determined that, although the defendants were not justified in turning off the electricity, the situation was quickly remedied. In addition, the attorney referee awarded the plaintiff damages for emotional distress because the defendants submitted the notes to their attorney, who filed the notes with the trial court in connection with discovery. Nevertheless, the attorney referee did not find the defendants’ behavior to rise to the level of a CUTPA violation.

“Whether a practice is unfair and thus violates CUTPA is an issue of fact.” DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466, 578 A.2d 144 (1990). Although the attorney referee found that the defendants were liable for failure to return the deposit plus interest and for emotional distress caused by the circulation of the notes, it did not find in favor of the plaintiff on any of her other claims. The attorney referee implicitly concluded, on the basis of her unchallenged factual findings, that the defendants’ conduct did not rise to the level of “unscrupulous, oppressive, immoral or causing substantial injury” and, therefore, did not constitute a violation of CIJTPA. The trial court accepted the attorney referee’s conclusion. We do not find this determination to be improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff alleges a claim of invasion of privacy and intentional infliction of emotional distress in count four. The attorney referee awarded damages for emotional distress, but did not award compensatory or punitive damages for the claim of invasion of privacy.

       The plaintiff alleged (1) unauthorized entry in violation of General Statutes § 47a-16 (d) and damages in accordance with General Statutes § 47a-18a (count two), (2) theft under General Statutes §§ 52-564 and 53a-119 for items allegedly taken during the unauthorized entry and treble damages under § 52-564 (count three), (3) peaceable entry and detainer under General Statutes § 47a-43 (a) (3) and writ of restitution under General Statutes § 47a-45 (count five), (4) deliberate utility shutoff in violation of General Statutes § 47a-13 and damages and attorney’s fees under the statute (count six), (5) refusal to allow the plaintiff to use the laundry facilities in contravention of an alleged oral agreement in violation of General Statutes § 47a-9 and retaliatory eviction in violation of General Statutes § 47a-20 (count seven), (6) retroactive rent abatement for failing to install smoke detectors in violation of General Statutes §§ 29-292 (a) (1), 47a-7 (a) (1) and 47a-4a (count eight), and (7) violation of CUTPA, General Statutes § 42-110a et seq. (count nine).

       The defendants claimed that the plaintiff damaged the apartment by causing smoke damage to the walls and ceilings and by burning and staining the carpeting.

       These incidents will be discussed where relevant to the claims on appeal.

       The contents of the notes were the subject of many of the interrogatories filed by the defendants and the notes themselves were attached as exhibits to the defendants’ request to admit.

       The plaintiffs other claims of improper conduct on the part of the defendants are not included in review of this CUTPA claim because the attorney referee found in favor of the defendants on the remaining claims and the plaintiff does not challenge these findings.

       Practice Book § 438 provides in relevant part: “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the committee, he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him. . . .”

       Practice Book § 439 provides in relevant part: “If a committee fails to correct a report or finding in compliance with a motion to correct, the moving party may, within ten days after the decision on the motion to correct, file exceptions seeking corrections by the court in the report or finding. The court will not consider an exception unless its subject matter has been submitted to the committee in a motion to correct, provided that this requirement shall not apply to exceptions taken to corrections in the report or finding made after it was filed; nor will the court correct a finding of fact unless a material fact has been found without evidence or the committee has failed to find an admitted or undisputed fact, or has found a fact in such doubtful language that its real meaning does not appear. . . .”

       Practice Book § 440provides in relevant part: “A party may file objections to the acceptance of a report on the ground that conclusions of facts stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted. . . .”

       Our Supreme Court in Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. 518, refers to exceptions pursuant to Practice Book § 440 instead of objections. It appears the defendant in Seal Audio, Inc., failed to file a motion to correct pursuant to Practice Book § 438, exceptions pursuant to Practice Book § 439 or objections pursuant to Practice Book § 440.
      Recently, the court stated that “[i]n the absence of a motion to correct the report or an objection to its acceptance because the facts had been improperly found, we examine these facts solely to determine whether the referee’s findings were clearly erroneous.” (Emphasis added.) Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 727-28, 652 A.2d 446 (1995). This statement is criticized by the authors of the annotated Practice Book. See W. Moller & W. Horton, 1 Connecticut Practice Series: Practice Book Annotated (Sup. 1997) § 438, authors’ comments. They refer to this dictum as a non sequitur because “[f]indings of fact are always reviewed on the clearly erroneous test.” Id. Citing Naftzger v. Naftzger & Kuhe, Inc., 26 Conn. App. 521, 525, 602 A.2d 606 (1992) (failing to file motion to correct or objection to acceptance of report precludes party from effective appellate review) in their comments to § 440, the authors suggest that a plain error review should apply in the absence of a motion to correct. W. Moller & W. Horton, supra, § 440, authors’ comments. They presumably base that suggestion on the argument that the failure to file a motion to correct should create an even more ratified standard of review than the customary standard used in reviewing factual findings.

       It appears that if the appellant had complied with the rules of practice, traditional appellate review would apply. See Naftzger v. Naftzger & Kuhe, Inc., 26 Conn. App. 521, 525, 602 A.2d 606 (1992).

       The defendants, however, filed amotion to correct. The plaintiff objected to the motion to correct, but did not file her own motion to correct. The attorney referee corrected a typographical error, but did not make any other corrections requested by the defendants. The parties did not further challenge the attorney referee report by filing exceptions or objections pursuant to Practice Book §§ 439 and 440.