text:
    Douglas Johnson v. Commissioner of Correction
    (12146)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued November 2, 1993
    decision released April 4, 1994

      Donald D. Dakers, special public defender, for the appellant (petitioner).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Dupont, C. J.

In this appeal from a judgment of dismissal of a petition for habeas corpus, the petitioner claims that the habeas court improperly determined that neither his trial counsel nor his appellate counsel gave him ineffective assistance during his trial or on direct appeal from his conviction for murder, first degree arson and sixth degree larceny. The petitioner argues that the ineffective assistance of trial counsel was the failure (1) to move to strike the testimony of four witnesses whose tape-recorded pretrial statements had been destroyed, and (2) to object to a comment made diming closing argument by the state that was allegedly impermissible under the principles of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), and Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). The claimed ineffective assistance of appellate counsel is the failure on the direct appeal to raise the Doyle and Griffin issues as prosecutorial misconduct that deprived the petitioner of a fair trial.

The habeas court found that under the standards established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the petitioner failed to show that either trial or appellate counsel’s performance was ineffective or outside the range of competence displayed by lawyers with ordinary training and skill in the criminal law and that their performance contributed to the convictions orto the affirmance, on appeal, of the judgments of convictions. Commissioner of Correction v. Rodriquez, 222 Conn. 469, 477, 610 A.2d 631 (1992); Johnson v. Commissioner, 218 Conn. 403, 424, 589 A.2d 1214 (1991); see Summerville v. Warden, 29 Conn. App. 162, 170, 614 A.2d 842, cert. granted, 224 Conn. 918, 617 A.2d 172 (1992). The Strickland test “requires a conclusive showing that (1) the attorney’s performance was so deficient and the errors made by counsel were so egregious that the attorney was not functioning as counsel . . . and (2) there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ...” (Citations omitted; internal quotation marks omitted.) Summer-ville v. Warden, supra, 171, quoting Ostolaza v. Warden, 26 Conn. App. 758, 761, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

Some facts relating to the petitioner’s trial are necessary background to the disposition of this appeal from the habeas court’s judgment of dismissal. The petitioner left a bar with the victim and the petitioner’s cousin after an evening of drinking. The cousin drove them to the victim’s apartment building where the cousin left them at about 2 a.m. The victim’s landlord testified that he heard the victim and another person walking upstairs toward the victim’s apartment at approximately 2 a.m., and that about one-half hour later he heard what sounded like a body falling out of a bed. A babysitter in the victim’s apartment building testified that sometime between 12:30 and 2 a.m., he heard the victim crying and the voice of a “smooth educated man.” The babysitter later identified the petitioner’s voice as one of two possible voices he had heard that night. The victim was stabbed with a barbecue fork and strangled with an antenna wire, and her room was set on fire. The petitioner had blood stains on his shirt inconsistent with his own blood type and consistent with the victim’s blood type. At about 5:15 a.m., some of the contents of the victim’s purse were found strewn along a street located between the victim’s apartment and the petitioner’s house. The barbecue fork and other items from the purse were found in a storm drain located along a path between the victim’s apartment and the petitioner’s house.

The petitioner did not take the stand. According to the testimony of his trial counsel at the habeas hearing, the petitioner’s trial strategy was to emphasize his cooperative attitude with the police to show his lack of guilt and to provide the jury with a reasonable doubt that he had committed the crimes. A police officer testified at trial that during the course of a search of the petitioner’s house, pursuant to a warrant, the two had a conversation. The petitioner had been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prior to the conversation, but had not yet been arrested, although he was aware that he was a suspect, and had hired an attorney. The petitioner said he would like to talk to the officer but the petitioner’s wife entered the room and the conversation stopped. Later, when the officer and the petitioner were alone on the petitioner’s front porch at the invitation of the officer, the officer asked if he would still like to talk, and the petitioner said yes. The officer told him that maybe he should talk to his attorney but the petitioner said that he did not need an attorney and wanted to talk to the officer “man-to-man.” He said that he would call the officer the next day, which he did. During that telephone conversation, he made an appointment to meet the officer but did not keep it. This testimony was given without objection by defense counsel. The prosecutor reiterated the testimony during closing argument and then commented as follows: “Now what is it that he would have said . . . that he hadn’t said in previous statements. Something obviously that he hadn't said back then. And he wanted to talk man-to-man. I would just ask you to consider that in your mind. What additional information he wanted to relay that he had not related previously.”

I

Competency of Trial Counsel

No expert testimony was proffered in the habeas proceeding as to the trial counsel’s lack of effective assistance. The habeas court concluded that without such testimony, the petitioner could not prevail on the claims relating to that counsel’s alleged incompetency.

Whether expert testimony is required in a particular case is determined on a case-by-case basis and its necessity is dependent on whether the issues are of sufficient complexity to warrant the use of the testimony as assistance to the habeas court. Evans v. Warden, 29 Conn. App. 274, 281-82, 613 A.2d 327 (1992). It is the habeas court, therefore, that must initially decide whether, in order to make intelligent findings, it needs expert testimony on the question that it must decide. State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). A trial court has broad discretion in determining whether expert testimony is needed. See id., 45. In this case, because of the complexity of the issues, the habeas court determined that expert testimony was necessary for a determination of whether the trial counsel’s performance was incompetent, and that, without such expert testimony, no finding as to competency could be made. The habeas court also stated that even if it assumed that the claimed delicts of the trial counsel amounted to incompetency, the alleged incompetency did not contribute to the defendant’s convictions. We conclude that the habeas court did not abuse its discretion in requiring expert testimony in this case. A discussion of the issues will suffice to show that the trial court acted properly in concluding that expert testimony was needed and in concluding, having assumed ineffectiveness of counsel, that that ineffectiveness did not contribute to the defendant’s conviction.

The petitioner argues that trial couiisel should have moved to strike the testimony of four witnesses and that, if he had, the trial court would have had to grant the motion to strike the testimony in order to avoid reversible error. The petitioner claims that counsel was ineffective in failing to move to strike the testimony and that the failure to so move caused the inclusion of the testimony and establishes a probability sufficient to undermine confidence in the guilty verdict.

Some discussion of the direct appeal and the trial are needed to resolve these claims. On the direct appeal from his convictions, the petitioner claimed that the testimony of five witnesses whose tape-recorded statements had been erased should have been stricken. There was an objection at trial to the introduction of one of the witnesses’ testimony, but none as to the four other witnesses. It is the testimony of these four witnesses that is the subject of the petitioner’s habeas claim. The direct appeal determined that because the four tapes were not destroyed in bad faith, there could be no automatic reversal of the petitioner’s convictions because of the destruction. The direct appeal also determined that the testimony of the fifth witness, which was the subject of a motion to strike by the petitioner, would not require a reversal of the petitioner’s conviction because the state had met its burden of proving that it was more probable than not that the state’s nonproduction of the tape was harmless. State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990). That witness provided the most damaging testimony against the petitioner and, had the claim as to the other four witnesses been preserved by trial counsel, it is unlikely that the result would have been different.

The petitioner also claims as ineffective assistance of trial counsel the failure to object to the comment made during closing argument about the defendant’s failure to keep an appointment at the police station, asking the jury to consider what he wanted to relay “man-to-man” that he had not related to the police previously.

The petitioner did not take the stand and the comment, therefore, could not have been used directly to impeach his credibility by attacking an explanation or defense offered at trial. Doyle v. Ohio, supra, 426 U.S. 610, established the principle that after Miranda warnings are given the state may not use the silence of a defendant, which is “insolubly ambiguous,” to impeach the defendant’s testimony. See State v. Apostle, 8 Conn. App. 216, 225, 512 A.2d 947 (1986). Nor may the silence be used to imply guilt or to indicate a consciousness of guilt. State v. Cooper, 227 Conn. 417, 437, 630 A.2d 1043 (1993).

The petitioner is not claiming that the testimony of the police officer recounting the petitioner’s expressed desire to talk to the police was a comment on silence. The alleged comment on silence, according to the petitioner, was the asking of the jury what he would have said at trial or at the police station had he broken his silence. See State v. Canty, 223 Conn. 703, 613 A.2d 1287 (1992); State v. Esposito, 223 Conn. 299, 613 A.2d 242 (1992); State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Pellegrino, 194 Conn. 279, 480 A.2d 537 (1984); State v. Apostle, supra, 8 Conn. App. 216.

The strategy of the petitioner was to induce the jury to believe because of his cooperation with the police that someone other than he had committed the crimes. The comment does not attack that strategy but does imply that if the petitioner had kept his appointment with the police officer, he might have corrected his original statement that he had not entered the victim’s apartment on the night of her murder and confessed that he had entered the apartment. Expert opinion would have helped the trial court to determine whether the failure to object to the comment was ineffective assistance of counsel or trial strategy to show the jury the cooperative attitude of the petitioner.

The petitioner also claims that trial counsel was ineffective because he failed to object to the comment even though it was impermissible under Griffin v. California, supra, 380 U.S. 609. The fifth and fourteenth amendments to the United States constitution forbid comment by the prosecution or the court about a defendant’s failure to testify in his own behalf. Id.; State v. DeMartino, 7 Conn. App. 292, 508 A.2d 809 (1986); see State v. Arline, 223 Conn. 52, 612 A.2d 755 (1992). The Connecticut legislature has affirmed this constitutional right by mandating that, unless the accused requests otherwise, the court must instruct the jury that it may draw no unfavorable inferences from an accused’s failure to testify. General Statutes § 54-84 (b).

The test to determine whether the comment violated the fourteenth amendment is whether a jury would naturally and necessarily understand the remarks to be a comment on the failure of the accused to testify. State v. Correia, 33 Conn. App. 457, 636 A.2d 860 (1994). Here, the remarks called on the petitioner for an explanation that only he could provide and implied that he would have expanded his previous statement. It was not, however, a direct comment on his failure to testify but a comment on his failing to speak to the police. Even if the comment was constitutionally impermissible, as a Griffin violation, the final question to be answered is whether the failure of trial counsel to object contributed to the petitioner’s conviction. Presumably, the charge required by § 54-84 (b) was given. If so, the jury would have had to deal with two conflicting themes, namely, the instruction to draw no unfavorable inferences from the failure of the defendant to testify, and the comment by the state that might be construed as asking the jury to question why the defendant did not take the stand to explain why he did not keep his appointment with the police. Expert testimony would have assisted the trial court in determining whether the claimed delict was outside of the range of competence displayed by lawyers with ordinary training and skill and if there was a probability sufficient to undermine confidence in the verdict. The court was correct in concluding that the petitioner should not prevail without expert testimony.

II

Competency of Appellate Counsel

The petitioner also argues that appellate counsel improperly failed to claim on appeal that the comment in the state’s closing argument about the testimony of the police officer violated the principles of Doyle v. Ohio, supra, 426 U.S. 610, and Griffin v. California, supra, 380 U.S. 609, thereby interfering with the petitioner’s right to a fair trial. The petitioner produced an expert witness whose opinion was that the failure to raise these issues on appeal was ineffective assistance of counsel.

The test is not whether the issue, had it been raised on direct appeal, might have entitled the defendant to relief but whether the failure to raise the issue resulted in a miscarriage of justice. Bunkley v. Commissioner of Correction, 222 Conn. 444, 461, 610 A.2d 598 (1992). The petitioner’s expert witness as to the ineffectiveness of appellate counsel testified that a reasonably competent appellate counsel would have raised the unpreserved claims that the remarks of the prosecutor improperly commented on both the petitioner’s right to remain silent after receiving Miranda warnings and his decision not to testify at trial.

The comment implicated the petitioner’s right to a Miranda induced silence, and possibly his right not to testify. Any comments about the failure to testify are forbidden because that silence implicates a defendant’s due process as well as fifth and fourteenth amendment rights under the United States constitution. Griffin v. California, supra, 380 U.S. 609. The reasons for the petitioner’s failure to testify on his own behalf at trial or his failure to break a post -Miranda silence may have been his guilt, his reliance on the state’s assurance that he could remain silent, his reliance on his own knowledge of his constitutional right not to incriminate himself, his timidity or nervousness, or an instruction from his lawyer. On direct appeal, if the issue had been raised, the comment of the prosecutor might have been deemed violative of Griffin. See State v. Arline, supra, 223 Conn. 67; see also Doyle v. Ohio, supra, 426 U.S. 610. An analysis would have then been undertaken to determine if it was clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible comment. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); see also State v. Apostle, supra, 8 Conn. App. 227.

In order to prevail on a constitutional claim of ineffective assistance of counsel by way of habeas, the petitioner must establish both a deficient performance and actual prejudice. Commissioner of Correction v. Rodriquez, supra, 222 Conn. 477. “[T]o establish prejudice resulting from his appellate counsel’s deficient performance, he must establish that, as a result of that performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal.” Bunkley v. Commissioner of Correction, supra, 222 Conn. 454. The petitioner must establish that he would have been entitled to a reversal on appeal and that the deficiency raises a probability sufficient to undermine confidence in the verdict. A petitioner must establish both and, if either is lacking, the petitioner is not entitled to habeas relief. Id., 454. The test for the first prong — would a reversal and a new trial have been required on direct appeal — depends on whether the state could show that the constitutional violation was harmless beyond a reasonable doubt. The test for the second prong — whether a petition for habeas requires the petitioner’s conviction to be set aside and a new trial to be awarded — depends on whether the deficiency in appellate counsel’s performance was so egregious as to have burdened the petitioner by an unreliable determination of guilt. A successful petition for habeas corpus is a “bulwark against convictions that violate fundamental fairness.” (Internal quotation marks omitted.) Brecht v. Abrahamson, U.S. , 113 S. Ct. 1710, 1719, 123 L. Ed. 2d 353 (1993).

“The principle that collateral review is different from direct review resounds throughout our habeas jurisprudence.” Id. Different problems prevail when a conviction is set aside on direct appeal than when a conviction is set aside following a habeas writ. “These considerations counsel strongly in favor of requiring a habeas corpus petitioner who seeks to establish prejudice from his appellate counsel’s performance to show that, as a result of the performance, it is reasonably probable that he remains burdened by an unreliable conviction.” Bunkley v. Commissioner of Correction, supra, 222 Conn. 463.

The validity of the jury verdict here was not undermined due to the failure of appellate counsel to raise a Griffin or Doyle issue. Even if the petitioner could establish that he would have been entitled to a reversal of his conviction had the issue been raised on appeal, he has not shown that the error was egregious enough to warrant the extraordinary remedy of habeas corpus. Thus, he cannot prevail on his claim of ineffective assistance of appellate counsel.

The judgment of the habeas court is affirmed.

In this opinion the other judges concurred.

       The facts underlying the convictions are set forth in State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990).

       The petitioner also argues that his trial counsel “acted incompetently in failing to object to testimony of a police officer concerning the petitioner’s exercise of his post -Miranda right of silence.” We do not address this issue because it was not addressed by the habeas court and the petitioner’s expert witness testified that the failure to object to the testimony was not ineffective assistance of trial counsel. See Safford v. Warden, 223 Conn. 180, 188, 612 A.2d 1161 (1992).

       The test enunciated in Strickland v. Washington, supra, 466 U.S. 668, applies to ineffective assistance of both trial and appellate counsel. Bunkley v. Commissioner of Correction, 222 Conn. 444, 458, 610 A.2d 598 (1992).

       The principles of Doyle v. Ohio, supra, 426 U.S. 610, apply to silence after Miranda warnings, regardless of whether the warnings were given before or after arrest. State v. Esposito, 223 Conn. 299, 318-19, 613 A.2d 242 (1992); State v. Plourde, 208 Conn. 455, 466, 545 A.2d 1071 (1988). “The fact that the defendant has or has not been arrested at the time of a statement given after Miranda warnings is . . . irrelevant.” State v. Apostle, 8 Conn. App. 216, 223 n.5, 512 A.2d 947 (1986).

       Although the petitioner offered the testimony of an expert witness as to appellate counsel’s performance only, the expert witness testified that neither appellate nor trial counsel was ineffective because of their failure to object to or to raise an issue as to the testimony. See footnote 2.

       Appellate counsel argued on the direct appeal that it was not necessary at trial to move to strike the testimony of each of the five witnesses because at the hearing on a motion in limine by the state to determine the effect of the destruction, the petitioner had unsuccessfully argued that all the tapes must be produced or the testimony stricken. Counsel claimed that Practice Book § 4185 did not require further objection. That section provides in pertinent part: “In jury trials, where there is a motion ... in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon . . . the matter shall be deemed to be distinctly raised at trial . . . without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.” The Supreme Court held, nevertheless, that it was “incumbent on the defendant to seek a definite ruling on the striking of each witness’ testimony after each had testified at trial in order fully to comply with the requirements of our rales of practice for preserving his claim of error with respect to each of those witnesses.” State v. Johnson, 214 Conn. 161, 170, 571 A.2d 79 (1990).

       The petitioner also claims the failure to raise this claim on his direct appeal was ineffective assistance of appellate counsel.

       The petitioner had previously told the police that he accompanied the victim to her apartment but that, after walking her to the door, he went directly home, never entering her apartment.

       This claim of misconduct by the state’s attorney could have been raised on direct appeal by use of the principles of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because it was a constitutional claim and the record was sufficient for review. Because it was reviewable, it is not certain that the petitioner could be prejudiced by this deficiency in trial counsel’s performance. See Bunkley v. Commissioner of Correction, 222 Conn. 444, 446 n.3, 610 A.2d 598 (1992).

       The standard in federal habeas courts on review of a claim that a conviction is constitutionally flawed because of a constitutional trial error is no longer that of harmless beyond a reasonable doubt; see Chapman v. California, supra, 386 U.S. 18; and now is based on Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), with the burden of proof on the petitioner to show that the error had a substantial and injurious effect or influence in determining the jury verdict. Brecht v. Abrahamson, U.S. , 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). Although Brecht concerned a Doyle silence, Brecht applies to all constitutional errors, of the trial type, when reviewed by way of a habeas corpus writ. Brecht does not apply to claims of ineffective assistance of counsel raised by way of habeas.


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    State of Connecticut v. Clinton Savage
    (11964)
    Lavery, Freedman and Schaller, Js.

      Argued October 26, 1993
    decision released April 26, 1994

      Gregory T. D’Auria, special public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Eva Lenczewski, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant, Clinton Savage, appeals from the judgment of conviction, rendered after a jury trial, for sale of narcotics in violation of General Statutes § 21a-277. The defendant presents the following issues on appeal: whether the trial court improperly (1) excluded the exculpatory statement offered by the defendant as a declaration against the declarant’s penal interest, (2) admitted evidence under a consciousness of guilt theory, and (3) failed to grant the defendant’s motion for a new trial. Because we find that the resolution of the first issue is dispositive of this appeal, we need not address the second and third claims.

The jury reasonably could have found the following facts. On January 21,1992, the tactical narcotics team of the Waterbury police department conducted surveillance on North Main and Elizabeth Streets in Waterbury. At about noon, Detective Nicholas DeMatteis began to observe the area from the fourth floor of an old manufacturing building. Shortly thereafter, DeMatteis saw the defendant walking back and forth near Hurdle’s Package Store. Thomas Hickson eventually approached the defendant and the two men briefly conversed. Hickson then gave the defendant money, and the defendant gave Hickson a small object, which Hick-son then placed in his right glove. On the basis of his training and experience, DeMatteis believed that the men were engaged in the sale of drugs.

DeMatteis then radioed his fellow team members with a description of both individuals. Sergeant Michael Ricci and Officer Edward Daponte stopped Hickson and searched him. They found a glassine packet containing a white powder in Hickson’s right glove. This substance later tested positive for heroin. After arresting Hickson, Ricci and Daponte then arrested the defendant.

Ricci and Daponte transported Hickson and the defendant to police headquarters. The officers conducted a strip search of the defendant, in which they instructed him to remove each article of his clothing. Ricci and Daponte examined the articles and found $56 in the defendant’s pants pocket. Ricci also testified that when the defendant removed his left sock, the defendant grabbed four or five glassine packets from the sock. These packets were held together by a rubber band and contained a white substance. Ricci and Daponte briefly struggled with the defendant, attempting to retrieve the packets, but the defendant swallowed them. The packets were not recovered.

I

The defendant contends that the trial court improperly excluded testimony offered under the declaration against penal interest exception to the hearsay rule. The following additional facts are necessary for a discussion of this claim. At trial, the defendant attempted to present a statement made by Hickson through the testimony of Leonard Williams, who had investigated the case for the public defender’s office. Hickson was not present at trial, as Williams was unsuccessful in three attempts to serve Hickson with a subpoena at his place of residence. The trial court assumed Hick-son’s unavailability, and addressed the merits of the defendant’s claim that a statement by Hickson should be admissible under the declaration against penal interest exception to the hearsay rule.

Williams testified before the jury that he met with Hickson five weeks after the alleged incident. Williams had explained to Hickson that he was investigating the alleged incident on behalf of the defendant. At this point, defense counsel stated that she intended to offer Hickson’s statements through the witness under the declaration against penal interest exception to the hearsay rule. In the absence of the jury, the defendant made the following offer of proof regarding the statement:

“[Defense Counsel]: On February 28 when Mr. Williams met with Mr. Hickson, he indicated to Mr. Williams that he did have a brief encounter with [the defendant] on that day, that he asked Mr. Hickson if he could have a cigarette. Mr. Hickson didn’t have a cigarette but [he had] two dimes and a nickel. The defendant then asked Mr. Hickson for the twenty-five cents. Mr. Hickson then gave the defendant two dimes and a nickel. Mr. Hickson dropped the nickel as he was giving it to the defendant. Mr. Hickson admits that he did have one bag of heroin on him but it was purchased not by or from Mr. Clinton Savage, that he had it on him. ” (Emphasis added.)

Noting the defendant’s interest in the portion of the declarant’s statement that the narcotics were not purchased by or from the defendant, the court ruled as follows: “While it may be said that Mr. Hickson’s admission that he had what he knew to be narcotics or a narcotic substance on his person, well, that may be said to affect him adversely. Certainly his gratuitous comment that he did not acquire those from the defendant . . . has no bearing whatsoever on his own penal well-being. . . .” We agree with the defendant that the trial court improperly failed to characterize the proffered declaration as a statement against Hick-son’s penal interest.

In State v. DeFreitas, 179 Conn. 431, 450-51, 426 A.2d 799 (1980), our Supreme Court adopted a rule, “consistent with Chambers v. Mississippi, [410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)], and in accord with rule 804 (b) (3) of the Federal Rules of Evidence, which provides that trustworthy third party statements against penal interest which are éxculpatory to the defendant, are admissible if the declarant is unavailable.” (Internal quotation marks omitted.) State v. Payne, 219 Conn. 93, 114, 591 A.2d 1246 (1991); State v. Rosado, 218 Conn. 239, 243-44, 588 A.2d 1066 (1991); State v. Mayette, 204 Conn. 571, 576, 529 A.2d 673 (1987); State v. Bryant, 202 Conn. 676, 692, 523 A.2d 451 (1987); see also State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980); State v. Gold, 180 Conn. 619, 630, 430 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980).

“The determination [of] whether a third party declaration against penal interest is trustworthy lies in the sound discretion of the trial court. State v. DeFreitas, supra, [179 Conn. 452] . . . .” State v. Bryant, supra, 202 Conn. 694. The threshold determination of whether a statement is actually against the declarant’s penal interest, however, is a matter of law. United States v. Bagley, 537 F.2d 162, 165-66 (5th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S. Ct. 816, 50 L. Ed. 2d 794 (1977); see also United States v. Brainard, 690 F.2d 1117, 1124 (D.C. Cir. 1982), cert. denied, 471 U.S. 1099, 105 S. Ct. 2320, 85 L. Ed. 2d 839 (1985) (whether statement is against penal interest is threshold inquiry); United States v. Barrett, 539 F.2d 244, 251 (1st Cir. 1976) (rule 804 [b] [3] requires two step analysis — whether statement is against penal interest is first step, trustworthiness is second step). In adopting the substance and rationale of rule 804 (b) (3), the Supreme Court “rejected] a narrow and inflexible definition of a statement against penal interest in favor of a definition which includes not only confessions, but other remarks which would tend to incriminate the declarant . . . .” State v. Bryant, supra, 695, quoting State v. Gold, supra, 642. Further, “[t]he ‘against interest’ exception is not limited to a defendant’s direct confession of guilt. See, e.g., United States v. Alvarez, 584 F.2d 694, 699-700 (5th Cir. 1978); United States v. Barrett, [supra, 251]; Commonwealth v. Keizer, 377 Mass. 264, 270, 385 N.E.2d 1001 (1979).” State v.Bryant, supra, 695.

Rule 804 (b) (3) applies “as well to statements that ‘tend’ to subject the speaker to criminal liability. United States v. Palumbo, 639 F.2d 123, 127-28 (3d Cir.), cert. denied, 454 U.S. 819, 102 S. Ct. 100, 70 L. Ed. 2d 90 (1981); United States v. Alvarez, supra, [584 F.2d 700]. . . . Considered in context, the term ‘tend’ in rule 804 (b) (3) reaches ... as ‘against interest’ [those] remarks that strengthen the impression that the declarant had an insider’s knowledge of the crimes. United States v. Palumbo, supra, 132 [Adams, J., concurring]; United States v. Alvarez, supra [700]; United States v. Barrett, supra, [539 F.2d 252].” State v. Bryant, supra, 202 Conn. 695. In Bryant, the statement at issue included both disserving and self-serving aspects, and the court determined that “[o]ur view is that where the disserving parts of a statement are intertwined with self-serving parts, it is more prudential to admit the entire statement and let the trier of fact assess its evidentiary quality in the complete context. See 2 F. Wharton, Criminal Evidence (14th Ed. 1986) § 295.” Id., 696-97.

In this case, the statement maybe said to incorporate disserving and contextual components, rather than dis-serving and self-serving components. Under these circumstances, the analysis of our Supreme Court in Bryant suggests that it is more prudent to characterize the entire statement as a declaration against penal interest, to allow the jury to examine the statement in its context and to assign the proper weight to the evidence. Id. Applying the broad definition of a statement against penal interest, as set forth in both federal and Connecticut cases, we conclude that the declarant’s entire statement that “he did have one bag of heroin on him but it was purchased not by or from Mr. Clinton Savage, that he had it on him,” was a statement against his penal interest.

Although characterized by the trial court as gratuitous, the portion of the statement exculpating the defendant, in the context of the entire statement, does tend to incriminate the declarant by suggesting the declarant’s involvement in the possession of the heroin. The contested portion of the statement provides context for the rest of the statement. The trial court, therefore, improperly failed to characterize the statement as a declaration against penal interest, and, as a result, failed to determine whether the statement met the criteria of trustworthiness necessary for admission as a declaration against penal interest offered to exculpate the defendant.

II

Before we can remand this case for a new trial, however, we must determine whether the failure of the trial court to characterize the statement as a declaration against penal interest amounts to harmless error. The trial court’s improper ruling that Hickson’s statement was not a declaration against penal interest does not implicate a constitutional right. “ ‘Because the defendant’s claim does not involve the violation of a constitutional right, the burden rests upon him to demonstrate the harmfulness of the court’s error.’ State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980); Chapman v. California, 386 U.S. 18, 24, 26, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). To demonstrate harmfulness, the defendant must show that it is more probable than not that the court’s action affected the result of his trial. State v. Payne, 219 Conn. 93, 102-103, 591 A.2d 1246 (1991); State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988); State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).” State v. Pinnock, 220 Conn. 765, 786, 601 A. 2d 521 (1992).

We cannot conclude that the failure to admit the statement was harmless. The following additional facts are necessary for a review of this issue. In the defense case, Douglas Jackson, who was standing with the defendant at the time of the alleged transaction, and the defendant presented the following: When Hickson approached the defendant, the defendant asked Hick-son for a cigarette. Hickson did not have a cigarette, but gave the defendant some change with which the defendant could buy some loose cigarettes. During the exchange of money, some change dropped and both the defendant and Hickson bent over to retrieve it. Hick-son then left the scene. In the context of the other evidence presented at trial, the introduction of the statement made by Hickson, an individual present during the alleged transaction, would provide further support for the defendant’s explanation of the events.

In addition, the evidence presented by the prosecution was not overwhelming. The prosecution’s prime witness, DeMatteis, observed the alleged transaction from a fourth floor window. Although drugs were found on Hickson, no drugs were found on the defendant, as the police failed to order tests to determine if the items that the defendant allegedly swallowed during the strip search actually contained narcotic substances. We conclude that the trial court’s action in determining that Hickson’s statement was not a statement against his penal interest more probably than not affected the result of the defendant’s trial. As a result, we reverse the judgment and remand for a new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 21a-277 provides in pertinent part: “(a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned. ...”

       Rule 804 of the Federal Rules of Evidence provides in pertinent part: “(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness .... (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. . . .”

       We note that, in making a statement that exculpates the accused, the declarant need not inculpate himself for the same crime for which the accused has been charged. “Thus, in [United States] v. Bagley, 537 F.2d 162 ([5th Cir.] 1976), cert. denied, 429 U.S. 1075, 97 S. Ct. 816, 50 L. Ed. 2d 794 (1977), we held to be against penal interest a statement that the declarant had given the accused a package of heroin instead of a package of Valium. Although the statement did not confess to the crime charged against the accused (possession with intent to distribute heroin), the statement implied the declarant’s guilt of a felony, knowing possession of heroin.” United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978). Similarly, we also note that in making an exculpatory statement, the innocence of the accused need not “itself be prejudicial to the declarant.” United States v. Barrett, 539 F.2d 244, 252 (1st Cir. 1976). In that case, the court determined admissible pursuant to rule 804 (b) (3) the part of the declarant’s statement that exculpated the accused and inculpated another person.

       There is a four part test to determine trustworthiness: “(1) the time the declaration is made and the party to whom it is made; (2) the existence of corroborating evidence; (3) the extent to which the statement is really against the declarant’s penal interest; and (4) the availability of the declarant as a witness.” State v. Mayette, supra, 204 Conn. 577; State v. Bryant, supra, 202 Conn. 693; State v. Gold, supra, 180 Conn. 633; State v. DeFreitas, supra, 179 Conn. 451.

       Courts have admitted portions of several statements by unavailable declarants that extend beyond a mere admission of guilt. The United States Court of Appeals for the First Circuit held that the statement of the declarant, after he had implicated himself in a crime, that “Bucky [the accused] wasn’t involved. It was Buzzy” was admissible as a declaration against penal interest. United States v. Barrett, supra, 539 F.2d 252-53. Similarly, in a trial for robbery, the defense made an offer of proof regarding an unavailable declarant’s statement that “he had been involved in the Merit Gas Station armed robbery with two other people, neither of which was Stephen Keizer [the accused].” Commonwealth v. Keizer, supra, 377 Mass. 270 n.7. The court ruled that although the part of the statement exculpating Keizer was not so much against the declarant’s interest, the declaration satisfied the standards of rule 804 (b) (3). Id., 270. In United States v. Alvarez, supra, 584 F.2d 699-700, the court allowed into evidence part of the statement of a middleman in a drug trafficking scheme that “the heroin was Gilberto Alvarez’ [the accused],” as the statement implied the declarant’s personal participation in the crime. In United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978), the court determined the statement of the declarant that “they ought to let Rowland Thomas [the accused] go, he didn’t have anything to do with it,” to be against the declarant’s penal interest.

       In Bryant, a jury had found the defendant guilty of sexual assault, burglary, and unlawful restraint. State v. Bryant, supra, 202 Conn. 677. The defendant had tried to introduce the statement of the declarant that he had broken into a house and that a woman “was laying there [and that he] could have raped her.” Id., 691. By admitting the burglary, but not the sexual assault, the declarant made a statement with both disserving (admission of burglary) and self-serving (no admission of sexual assault) components.

       In this case, where the statement is offered to exculpate the defendant, the statement could be presented to the jury only after the trial court determines that the declarant is unavailable and that the statement is “trustworthy.” See footnote 4. The trial court did not make a determination of trustworthiness. Our Supreme Court had noted that in a rare situation an appellate court could make a determination of the trustworthiness of a statement. State v. DeFreitas, supra, 179 Conn. 453. For purposes of our analysis and in order to reach the dispositive issue in this appeal, we will assume that the statement satisfies the trustworthiness criteria.

       For example, in context, the statement suggests that although the declarant did not obtain the heroin from the defendant, the declarant had knowledge at a time prior to his arrest that he had heroin, rather than some other substance.

       We note that while the defendant argues that the failure to admit the statement is a violation of his constitutional rights, we are reviewing only whether the trial court improperly ruled that Hickson’s statement was not against his penal interest. This ruling alone does not implicate the defendant’s constitutional rights.


author: Freedman, J.

text:
    In re Bruce R. et al.

    (12662)
    Dupont, C. J., Heiman and Freedman, Js.

      Argued January 13
    decision released April 26, 1994

      Sean Orion Lebas, for the appellant (respondent).

      Edward R. Giacci, for the appellee (petitioner).

      Mary B. Androski, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Freedman, J.

The respondent mother appeals from the order of the trial court terminating the parental rights of the petitioner father. On appeal, the respondent claims that the trial court improperly (1) utilized the termination procedure provided for in General Statutes § 45a-715 et seq. to terminate the parental rights of the petitioner, (2) found that termination of the petitioner’s parental rights was in the best interests of the children, (3) refused to order the petitioner to file a financial affidavit pursuant to Practice Book § 463, and (4) sustained the petitioner’s objection to the respondent’s counterclaim.

The following facts are not in dispute. During the petitioner’s marriage to the respondent, they had two children issue of the marriage, a son born June 18, 1980, and a daughter, born December 2, 1987. On March 25, 1988, their marriage was dissolved by the Superior Court. In the decree of dissolution, the respondent was granted custody of the two minor children and the petitioner was granted liberal rights of visitation. The decree further ordered the petitioner to pay $75 per week for the support of each minor child, maintain medical and life insurance for their benefit, and to pay one-half of all their unreimbursed medical expenses. After the dissolution, problems arose between the petitioner and respondent that affected the petitioner’s rights of visitation.

On May 14,1991, the petitioner filed petitions in the Court of Probate for the district of Derby seeking to terminate his parental rights with respect to both children. Both petitions alleged the following reasons for seeking such termination of parental rights: “Since the date of dissolution, the children have been used as pawns. I have been denied visitation when requested. Allegations have been raised that I am not a fit father which led the Superior Court to enter supervised visitation. Since that order, additional problems with visitation have arisen which are now affecting the well-being of the children. In mid-winter 1990/1991, Respondent, mother of the minor child, suggested that in the best interest of the children, that I consent to termination of my parental rights. After careful consideration and thought and after reviewing the inability of Respondent and me to discuss any difficulties that we have, including important matters in the [children’s] life, it is clear that I agree with her contention that my parental rights be terminated. The [children’s] well-being is affected adversely by the difficulties between Respondent and me which I do not believe can be cured through counseling. It is further clear that the ultimate best interest of the children will be served by the termination of my parental rights to allow Respondent to live her life without any concern for me or of me and thereby ease the pressure on the [children] emotionally.” Along with the petitions seeking to terminate parental rights, the petitioner executed and filed the consent form required by General Statutes § 45a-715 (d). The Court of Probate appointed an attorney for the children and ordered the department of children and youth services (DCYS) to make an investigation and subsequent written report regarding the proposed termination. DCYS contracted with a private agency, Community Children and Family Services, to conduct the investigation and that private agency thereafter submitted a written report to the Court of Probate. The report was based on the information gathered from interviews with the petitioner, the respondent, and both children. The report recommended that the petitions for termination of parental rights be denied on the ground that “it does not seem to bear that inability to get along with his ex-wife relieves [the petitioner] from responsibility for providing for his children.”

On motion of the respondent, the petitions for termination of parental rights were ordered transferred from the Court of Probate to the Superior Court, Juvenile Matters, pursuant to General Statutes § 45a-715 (g). On July 7,1992, the attorney for the children requested that the court issue an order to obtain updated evaluations of the petitioner, the respondent, and the minor children. By agreement of all counsel, Ralph S. Welsh was appointed to conduct these evaluations. The evaluations were conducted on December 8 and 29, 1992, and written reports were submitted to the trial court. The trial court conducted a hearing regarding the termination of the petitioner’s parental rights on May 21 and 24, 1993. The petitioner, the respondent, Welsh, and the son’s therapist, Annette Bonomo, testified at the hearing. The trial court granted the petitions to terminate the petitioner’s parental rights on May 24,1993. This appeal followed.

I

The respondent first claims that the trial court improperly utilized the termination procedure provided in § 45a-715 et seq. to terminate the parental rights of the petitioner. The thrust of the respondent’s argument is that the statute was “not conceived” to allow a parent to seek and receive a termination of his or her own parental rights “absent pending adoption [or] state custodial placement.” We do not agree.

First, it is clear from the language of § 45a-715 that a parent may be the one to initiate a petition seeking termination of his or her own parental rights. Section 45a-715 (a) provides that “[a]ny of the following persons may petition the court of probate to terminate parental rights of all persons who may have parental rights regarding any minor child ... (1) [ejither or both parents . . . .” Second, “the termination of parental rights is part of the adoption process [and] it is clear that adoption cannot proceed unless the parents’ rights are terminated in the first instance. The converse is not true. The parents’ rights can be terminated without an ensuing adoption. . . . Although petitions for termination are presumably seldom brought unless prospective adoptive parents are available . . . it is clear that there are circumstances wherein termination of a parent’s rights is not followed by adoption.” (Citation omitted.) In re Theresa S., 196 Conn. 18, 30-31, 491 A.2d 355 (1985).

We conclude that under the present statutory scheme a parent may petition for the termination of his or her own parental rights and that a petition for the termination of parental rights is not dependent on a pending adoption or state custodial placement.

II

The respondent next claims that the trial court improperly found that termination of the petitioner’s parental rights was in the best interests of the children. We agree. General Statutes § 45a-717 (f) provides in pertinent part that “[a]t the adjourned hearing . . . the court may approve the petition terminating the parental rights ... if it finds, upon clear and convincing evidence that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child ... .”

General Statutes § 45a-717 (e) (1) provides: “The court may, and in any contested case shall, request the commissioner of children and youth services or any child-placing agency licensed by the commissioner to make an investigation and written report to it, within ninety days from the receipt of such request. The report shall indicate the physical, mental and emotional status of the child and shall contain such facts as may be relevant to determine whether the proposed termination of parental rights will be for the welfare of the child, including the physical, mental, social and financial condition of the natural parents, and any other factors which the commissioner or such agency finds relevant to determine whether the proposed termination will be for the welfare of the child.” (Emphasis added.) Clearly this was a contested case, in that the mother of the children sought to prevent the father from terminating his parental rights. While it is true that the petitioner consented to the termination of his parental rights, the respondent filed an answer denying the allegations of the petitions and requested that the petitions be denied. A full hearing was held in the trial court at which the respondent vigorously opposed the granting of the petitions. Because this was a contested case, the Court of Probate properly requested DCYS to make an investigation and issue a written report.

While § 45a-717 (h) is specific as to what the court must consider in determining whether to terminate the parental rights of a nonconsenting parent, it does not explicitly set forth such considerations in the case of a consenting parent. We are guided, however, by the portion of the statute that establishes the areas that must be investigated and reported to the court in a contested case. Section 45a-717 (e) (1) provides, inter alia, that the report “shall contain such facts as may be relevant to determine whether the proposed termination of parental rights will be for the welfare of the child, including the physical, mental, social and financial condition of the natural parents . . . (Emphasis added.)

The language of § 45a-717 (e) (1) is not clear and may be subject to different interpretations. One interpretation is that the determination of whether the financial condition of the parents is relevant is left to the discretion of DCYS or its representative when making the investigation and subsequent report. Another interpretation is that the statute mandates that the report contain information regarding the financial condition of the parents, the relevancy of which is to be determined by the trial court. When a statute is subject to differing interpretations, we will construe the statute so as to obtain a result that is neither incongruous nor irrational. See Ancona v. Norwalk, 217 Conn. 50, 56, 584 A.2d 454 (1991), and cases cited therein.

Here, the responsibility rests with the trial court to determine whether termination of parental rights is in the best interests of the children. Therefore, the question of what is relevant to that determination “is a judicial function and can be accomplished only by one clothed with judicial authority.” Valante v. Valante, 180 Conn. 528, 532-33, 429 A.2d 964 (1980). Because the determination of the relevancy of the financial condition of the parents is a judicial function, it would be “incongruous” and “irrational” to interpret the statute in such a manner as to allow DCYS or its representative to make that determination.

Additionally, “[b]oth state and national policy has been, and continues to be, to ensure that all parents support their children and that children who do not live with their parents benefit from adequate and enforceable orders of child support. Turner v. Turner, 219 Conn. 703, 713-20, 595 A.2d 297 (1991); 42 U.S.C. § 651 et seq. (Part D of Title IV of the Social Security Act). Child support is now widely recognized as an essential component of an effective and comprehensive family income security strategy. See generally A. Houseman, ‘Poverty Law Developments and Options for the 1990s,’ 24 Clearinghouse Review 2, 5-7 (1990); P. Roberts, ‘Child Support and Beyond: Mapping a Future for America’s Low-Income Children,’ 22 Clearinghouse Review 594 (1988).” Mulholland v. Mulholland, 31 Conn. App. 214, 224, 624 A.2d 379, cert. granted, 227 Conn. 905, 632 A.2d 693 (1993).

We conclude, therefore, that the statute requires the trial court to consider, as one of the elements necessary to make the determination of what is in the best interests of the children, the financial condition of the natural parents. We do not hold, nor do we imply, that the financial condition of the parents may alone determine the best interests of a child. We do hold that the trial court must be adequately apprised of such financial condition, must give it due consideration, and must accord it as much weight in its decision as the trial court in its discretion deems appropriate in light of all of the other facts and circumstances surrounding the proposed termination of parental rights.

While the respondent urges us to conclude that there was insufficient evidence to find that the termination of the petitioner’s parental rights was in the best interests of the children, she does not specifically refer to the statutory provisions that we conclude require examination of the financial condition of the parents in a contested case. She does, however, refer to the strong public policy concern regarding the financial support of children and the fact that the trial court did not consider the financial condition of either parent in making its determination. To the extent that the respondent does not raise the issue of the statutory mandate that the trial court consider the financial condition of the natural parents, we review this issue under the plain error doctrine. Practice Book § 4185; see Colby v. Colby, 33 Conn. App. 417, 421, 635 A.2d 1241 (1994).

Our review of the trial court file, the exhibits before the trial court, and the transcript of the trial court hearing reveals that the trial court did not have sufficient information before it to consider the financial condition of the natural parents adequately. The only reference in the trial court file or the exhibits to such financial condition was that contained in the report by Community Children and Family Services. There, the only references even touching on the “financial condition of the natural parents” were the following: “[the respondent’s] opinion concerning [termination of parental rights] is that [the petitioner] is only petitioning the court in the hope that he will gain financial relief from his obligations as their father. . . . The basis for her allegations concerning his wish to obtain relief from financial obligation is the substantial amount owed to her in child support payments which are in arrears and the fact that he has the ability to pay based upon his current income. . . . [The respondent] states that she is not financially able to care for her children without support from their father. She feels that children who only have one parent should not have that parent taken away to work long hours when another parent has abdicated all responsibility for them. She currently holds a part time position of driving a school bus which enables her to spend a good deal of time with them. She feels she will have few opportunities for meaningful employment because of her limited education and job skills.”

During the hearing before the trial court, there were two brief colloquies with the respondent that touched on her financial condition. The first was an inquiry by her attorney that produced a statement by the respondent that the children needed the financial support of the petitioner. The second was an inquiry by the petitioner’s attorney, asking the respondent who was residing in the family home, and what contribution, if any, others made to the expenses of the family home. No information was presented to the trial court regarding the financial condition of the petitioner.

In addition, before the hearing commenced, the respondent requested an exchange of financial affidavits and the trial court denied the request. Without any meaningful inquiry into the financial condition of the natural parents, we conclude that the trial court was unable to determine properly what was in the best interests of the children.

III

The respondent next claims that the trial court improperly refused to order the petitioner to file a financial affidavit pursuant to Practice Book § 463. Even though we reverse the decision of the trial court and remand the matter for a new hearing, we address this claim because it is likely to arise again at the new hearing.

Practice Book § 463 provides in pertinent part that “[a]t the time a motion concerning alimony, support or custody is filed, or at the time a dissolution of marriage, legal separation or annulment action is claimed for a hearing, the moving party shall file a sworn statement ... of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income. ...” The respondent argues that because the result of the termination of the petitioner’s parental rights will result in a termination of the child support payments, this action comes under the ambit of Practice Book § 463. We do not agree.

A petition for the termination of parental rights is neither a motion concerning alimony, support or custody, nor is it an action for dissolution of marriage, legal separation or annulment. We conclude, therefore, that Practice Book § 463 does not apply to a petition for termination of parental rights.

IV

The respondent’s final claim is that the trial court improperly sustained the petitioner’s objection to the respondent’s counterclaim. The respondent’s counterclaim consisted of a claim for attorney’s fees and a request that the trial court suspend the petitioner’s “rights of custody and visitation of the minor children.”

It is well settled that the duty to provide us with a record adequate to afford review rests with the appellant. Practice Book § 4061; Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 553, 636 A.2d 1370 (1993); Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993). Here, the respondent did not fulfill her duty to provide us with an adequate record for review. At the commencement of the hearing, the petitioner objected to the respondent’s counterclaim and the trial court sustained the objection. The trial court did not state the basis on which it sustained the objection and the respondent made no effort to obtain an articulation pursuant to our rules of practice.

Because the record is inadequate and because the respondent has failed to take the proper steps to present us with an adequate record, we decline to review this claim. Dime Savings Bank of Wallingford v. Cornaglia, supra, 33 Conn. App. 553-55; Holmes v. Holmes, supra, 32 Conn. App. 323.

The judgment terminating the petitioner’s parental rights is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 45a-715 (d) provides in pertinent part: “[E]ach consenting parent shall acknowledge such consent on a form promulgated by the office of the chief court administrator evidencing to the satisfaction of the court that the parent has voluntarily and knowingly consented to the termination of his parental rights. . .

       The department of children and youth services has since been renamed the department of children and families. Public Acts 1993, No. 93-91, § 1.

       The respondent also argues that the statute was “not conceived” to allow a parent to terminate his or her own parental rights “merely . . . when the parent ... no longer wished to pay support for his [or her] children.” As will be seen from the balance of this opinion we agree with the respondent in this regard.

       The respondent claims that the trial court failed to follow the mandatory provisions in General Statutes § 45-717 (h) which apply in a case where the parent, whose rights are being terminated, does not consent. We note that even though we conclude that this is a contested case, since the petitioner has not only consented to the termination of his parental rights but was in fact the movant, the provisions in the statute which set forth the framework for termination of parental rights where the parent does not consent do not apply. See footnote 5.

       General Statutes § 45-717 (h) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       Practice Book § 4061 provides in pertinent part: “It is the responsibility of the appellant to provide an adequate record for review.”


author: Per Curiam.

text:
    Richard P. Lawlor v. Louis Goldberg, Commissioner of Motor Vehicles
    (12141)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued January 18
    decision released April 26, 1994

      Alan N. Ponanski, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Thomas P. Heslin, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the judgment of the trial court sustaining the plaintiff’s appeal from the defendant’s decision suspending the plaintiff’s driver’s license, pursuant to General Statutes § 14-227b, for operating a vehicle while under the influence of intoxicating liquor and refusing to submit to chemical breath tests. The trial court sustained the plaintiffs appeal on the sole ground that a Wethersfield police officer had unlawfully pursued the plaintiff from the town of Wethersfield into the town of Glastonbury under General Statutes § 54-lf.

At the time that the police officer first observed the plaintiff, he noted that the plaintiff was operating his motor vehicle at what appeared to be an excessive rate of speed and unlawfully changing lanes. Thus, at the time that the officer pursued the plaintiff into Glastonbury, he suspected only that the defendant had committed motor vehicle violations under General Statutes §§ 14-218a and 14-236. When the officer stopped the plaintiff’s vehicle in Glastonbury, the investigation that he conducted led him to believe that the plaintiff had been operating his vehicle while under the influence of liquor. The officer thereupon arrested the plaintiff and charged him with a violation of General Statutes § 14-227a (a). The trial court found that the officer had unlawfully stopped the plaintiff in Glastonbury for violations of §§ 14-218a and 14-236 and, thus, had unlawfully arrested the plaintiff for operating a vehicle while under the influence of liquor in violation of § 14-227a (a). As a result, the trial court found the commissioner’s decision clearly erroneous. This appeal followed.

This case is controlled by our Supreme Court’s recent decision in State v. Harrison, 228 Conn. 758, 638 A.2d 601 (1994). In Harrison, our Supreme Court interpreted the term “offense” as used in § 54-If to include motor vehicle violations. Id., 765. Therefore, in accordance with Harrison, we conclude that the Wethersfield officer had lawfully pursued the plaintiff across town lines, had lawfully stopped the vehicle and had lawfully arrested the plaintiff. Thus, the trial court improperly determined that the commissioner’s decision was clearly erroneous.

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

       General Statutes § 14-227b (f) provides that a hearing to determine the suspension of a driver’s license for driving while under the influence of liquor “shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for manslaughter in the second degree with a motor vehicle or for assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. . . .”

       General Statutes § 54-lf (c) provides in pertinent part: “Members of any local police department . . . when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. ...”

       General Statutes § 14-218a (a) provides in pertinent part: “No person shall operate a motor vehicle upon any public highway of the state . . . at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions. . . .”

       General Statutes § 14-236 provides in pertinent part: “When any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety .... Violation of subdivision (1) of this section shall be an infraction.”

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


author: Landau, J.

text:
    State of Connecticut v. Tracey Turmon
    (12232)
    O’Connell, Landau and Schaller, Js.

      Argued January 19
    decision released April 26, 1994

      Jeffrey D. Hutcoe, for the appellant (defendant).

      Pamela S. Meotti, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kathleen McNamara, deputy assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of failure to appear in the first degree in violation of General Statutes § 53a-172 (a). He claims that the trial court improperly (1) held that the evidence was sufficient to sustain his conviction for failure to appear in the first degree, and (2) instructed the jury as to wilful intent pursuant to General Statutes § 53a-172. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. As a result of an incident on September 28,1990, the defendant was arrested and charged with the crimes of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), and possession of narcotics in violation of General Statutes § 21a-279 (a). Upon his postarrest release, the defendant signed an appearance bond indicating his obligation to appear and knowledge that failure to appear would result in forfeiture of the bond and other penalties. The defendant pleaded not guilty to the charges and elected to be tried by a jury.

On February 7, 1992, the defendant failed to appear in court as scheduled. The defendant visited the Mount Sinai Hospital emergency room that morning and was diagnosed as having bronchitis and sinusitis. The hospital records indicate that he was there for forty-three minutes. He made no attempt to contact the court, either prior to his scheduled hearing or at any other time, to notify it that he would be unable to appear. The bond was forfeited and a rearrest warrant was ordered on February 7, 1992. On March 11, 1992, the defendant was arrested and arraigned for failure to appear on the underlying drug possession charges. Some time thereafter, the court ordered a pretrial hearing scheduled on August 17, 1992.

On August 17, 1992, the defendant again failed to appear. The defendant was at the courthouse on August 17, and requested that a clerk pull his file. The defendant then waited in the courtroom for a conference with the prosecutor. At one point, the prosecutor approached him in the courtroom and told him that his wait would be longer.

A bail bondsman, Carl Schwartz, saw the defendant outside the courtroom on August 17, and told him that he was due in court and that the judge and the prosecutor were waiting for him. The defendant mumbled something and left the courthouse. The defendant returned to the courthouse later that day. After the clerk informed him that the court had ordered a bond forfeiture and a rearrest, the defendant filled out the forms for a motion to vacate. He then mentioned for the first time that he was not feeling well.

The defendant was charged subsequently with two counts of failure to appear in the first degree in violation of § 53a-172. On December 1,1992, the jury found the defendant not guilty of possession of narcotics with intent to sell by a person who is not drug-dependent, and returned a guilty verdict on the remaining charges.

The defendant first claims that there was insufficient evidence to support the conviction for failure to appear in the first degree in that the state did not offer sufficient proof as to his wilfulness. “The standard of review of an insufficiency claim is twofold.' We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Milardo, 224 Conn. 397, 402-403, 618 A.2d 1347 (1993); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).” (Internal quotation marks omitted.) State v. Harris, 227 Conn. 751, 757, 631 A.2d 309 (1993).

On the basis of the evidence and the inferences reasonably drawn therefrom, the jury could have concluded beyond a reasonable doubt that the defendant failed to appear pursuant to § 53a-172 (a). “ '[I]n order to prove the “wilful” element of General Statutes § 53a-172, the state must prove beyond a reasonable doubt either that the defendant received and deliberately ignored a notice to appear or that he intentionally embarked on a course of conduct designed to prevent him from receiving such notice.’ State v. Candito, 4 Conn. App. 154, 157, 493 A.2d 250 (1985).” State v. Cerilli, 222 Conn. 556, 583-84, 610 A.2d 1130 (1992).

There was no dispute that the defendant had received notice of his obligation to appear in court on February 7, and August 17,1992. The question then becomes whether there was sufficient evidence presented so that a jury could have reasonably concluded that the defendant deliberately ignored the notice to appear in both instances.

The defendant claims that, on February 7, his sole intent was to seek medical assistance, not to violate the law. The Mount Sinai Hospital emergency room records indicate that the defendant did, in fact, seek medical care there. His visit, however, lasted only forty-three minutes. Upon his release, the defendant went to a pharmacy to fill a prescription. The defendant did not attempt to contact the court, the prosecutor, or his attorney during this time period. He returned his attorney’s telephone call when he arrived home. The jury reasonably could infer from the facts that the defendant was well enough to travel, and to have contacted the court, the prosecutor or his attorney by telephone to explain his need for medical care. It was reasonable for the jury to conclude that his failure to do so was a deliberate act to ignore the notice to appear. The defendant admitted knowing that he had a scheduled appearance in court at the precise time he went to the hospital. He admitted having sufficient knowledge of court procedure to know that a continuance would have postponed his case. The jury reasonably could conclude that, by failing to take the necessary steps, the defendant acted deliberately in ignoring his obligation to appear in court as scheduled.

On August 17,1992, the defendant was again scheduled to appear in court, but failed to do so. He claims that he experienced a diarrhetic accident that prevented him from appearing; that he was at the courthouse that day but left to change his clothing. The jury reasonably could have found that the defendant had the opportunity and knowledge either to file an application for a continuance, which would have avoided a failure to appear charge, or to appear and explain his circumstances. Prior to his scheduled court appearance, he spoke to the court clerk, he spoke to the prosecutor, and, at the moment he was due in court, he spoke to the bail bondsman in the corridor. He did not mention to the clerk or to the prosecutor that he was feeling ill, nor did he adequately communicate to the bail bondsman that he was unable to appear as scheduled. It was only after he returned to the courthouse to file a motion to vacate the rearrest that he mentioned to the clerk that he had been ill. Given these facts, the jury reasonably could have concluded that the defendant deliberately failed to appear.

The defendant next claims that the jury instructions were inaccurate as to the element of intent. He first argues that the court defined wilfully without using the word “purposefully,” thereby diluting the state’s burden of proof. Second, he contends that the charge shifted the burden of proving his innocence to him because it permitted the jury to infer wilfulness from a finding that the defendant knew he was scheduled to appear and then failed to appear. Not having preserved these claims at trial, the defendant seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “Pursuant to State v. Golding, supra, 239-40, a defendant may prevail on an unpreserved claim of constitutional error only by meeting all of the following conditions: ‘(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ State v. Marra, 222 Conn. 506, 527, 610 A.2d 1113 (1992). In harmony with the objective of Golding, the defendant’s claim may be disposed of ‘by focusing on whichever condition is most relevant in the particular circumstances.’ State v. Golding, supra, 240; State v. Pinnock, [220 Conn. 765, 778, 601 A.2d 521 (1992)].” State v. Cooper, 227 Conn. 417, 440, 630 A.2d 1043 (1993). In this case, the defendant’s claims do not satisfy the third criterion of Golding because the alleged constitutional violations do not exist.

The defendant attacks the charge for its failure to include the word “purposefully” in defining the element of intent as required under General Statutes § 53a-172. “In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. State v. Snook, 210 Conn. 244, 275-76, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988).” State v. Ober, 24 Conn. App. 347, 358, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 26 (1991). “The charge is not to be judged in artificial isolation from the overall charge. State v. Kelly, 23 Conn. App. 160, 164, 580 A.2d 520 (1990), cert. denied, 216 Conn. 831, 583 A.2d 130, cert. denied, 449 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991).” State v. Falcon, 26 Conn. App. 259, 269, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992). An error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Bailey, supra, 209 Conn. 338.

“While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” State v. Channer, 28 Conn. App. 161, 172, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992). Our review of the charge indicates that the jury was adequately instructed on the element of intent and there is no reasonable possibility that the jury was misled by the charge. The trial court charged that “an act is done willfully if done knowingly, intentionally or deliberately.” Our approval in State v. Candito, 4 Conn. App. 154, 157, 493 A.2d 250 (1985), of an instruction for failure to appear in the first degree that included the word “purposefully” in its definition of intent, does not make this charge incorrect. It is not critical that a jury instruction include the exact language of previously approved definitions. What is crucial is that the charge include words that adequately communicate the meaning of “wilful” as required under § 53a-172. State v. Channer, supra, 172. The proper definition of wilfulness under General Statutes § 53a-172 was set forth in State v. Candito, supra, 157, requiring that “the state prove beyond a reasonable doubt either that the defendant received and deliberately ignored a notice to appear or that he intentionally embarked on a course of conduct designed to prevent him from receiving such notice.” See also State v. Cerilli, supra, 222 Conn. 583-84. The trial court in the present case used this exact language in its jury charge, and, therefore, delivered an accurate instruction as to intent. We conclude that there was no reasonable possibility that the jury was misled in returning the verdict. Thus, as to the alleged omission in the charge, we conclude that the defendant has failed to demonstrate that the court’s charge constituted a clear constitutional violation.

We next address the defendant’s unpreserved claim that the charge permitted the jury to infer wilfulness from a finding that the defendant knew that he was scheduled to appear and then faded to appear, and shifted the burden of proof on the element of intent to him. He cites Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), for the proposition that the instruction violated his rights to due process because the state was not required to prove beyond a reasonable doubt each and every element of a charged offense.

“In Sandstrom, v. Montana, [supra, 442 U.S. 517-24], the United States Supreme Court held that a jury instruction that the law presumes that a person intends the ordinary consequences of his voluntary acts violated the defendant’s due process rights because a reasonable jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. See Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) .... We have, however, recognized that the rule of Sandstrom must not be oversimplified. State v. Mason, 186 Conn. 574, 582-83, 442 A.2d 1335 (1982); State v. Pina, 186 Conn. 261, 263, 440 A.2d 967 (1982). Sandstrom does not invalidate, for example, the use of an entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant. Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979); see State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 1195 (1985); State v. Arroyo, 180 Conn. 171, 175, 429 A.2d 457 (1980). A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion. State v. Amarillo, 198 Conn. 285, 300-302, 503 A.2d 146 (1986); see also State v. Shine, 193 Conn. 632, 644-45, 479 A.2d 218 (1984); State v. Johnson, 185 Conn. 163, 167-69, 440 A.2d 858, aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Vasquez, 182 Conn. 242, 246-48, 438 A.2d 424 (1980). State v. Palmer, 206 Conn. 40, 47-48, 536 A.2d 936 (1988).” (Internal quotation marks omitted.) State v. Cooper, supra, 227 Conn. 443-44.

We must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. State v. Ober, supra, 24 Conn. App. 358. The challenged charge proposes an entirely permissive inference or presumption that suggests a possible conclusion to be drawn, but does not require the jury to draw that conclusion. The court charged: “You may infer that his failure to appear was wilful.” (Emphasis added.) In the context of the entire charge, the jury could not have misunderstood the court’s instruction to require a conclusion be drawn because the court’s use of the word “may” contradicts such a possibility. Because the charge did not require the jury to entertain a conclusive presumption, we conclude that the defendant has failed to demonstrate that the court’s charge constituted a clear constitutional violation.

The defendant cannot prevail on his unpreserved claims of error because he has not satisfied the third prong of Golding. Therefore, we will not review his unpreserved claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also convicted of possession of narcotics in violation of General Statutes § 21a-279 (a) but does not challenge that part of the judgment.

       General Statutes § 53a-172 (a) provides: “A person is guilty of failure to appear in the first degree when, while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear.”

       The defendant makes two arguments with respect to the jury instruction.

       The motion to vacate was later heard and denied on September 4,1992.

       The defendant did not address his sufficiency challenge to any other elements of the crime of failure to appear.

       Although the record indicates that the defendant objected to the charge on the ground that the word “purposefully” was not included in the definition of intent, he failed to request an exception to the trial court’s ruling.

       The defendant contends that the following sentence of the trial court’s charge was constitutionally violative: “If you find beyond a reasonable doubt that the defendant received notice of the date on which he was to appear before the court and that he failed to appear on that date, then you may infer that his failure to appear was wilful.”


text:
    Peter F. Duncan v. Louis S. Goldberg, Commissioner of Motor Vehicles et al.
    (12676)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued January 18
    decision released April 26, 1994

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Jon L. Schoenhorn, for the appellee (plaintiff).
   Per Curiam.

The defendants appeal from the judgment of the trial court sustaining the plaintiff’s appeal from the defendants’ decision suspending the plaintiff’s driver’s license, pursuant to General Statutes § 14-227b, for operating a vehicle while under the influence of intoxicating liquor and refusing to submit to chemical breath tests. The trial court sustained the plaintiff’s appeal on the sole ground that a Farmington police officer had unlawfully pursued the plaintiff from the town of Farmington into the town of Avon under General Statutes § 54-lf. At the time that the police officer first observed the plaintiff, he noted that the plaintiff was operating his motor vehicle at what appeared to be an excessive rate of speed. Thus, at the time that the officer pursued the plaintiff into Avon, he suspected only that the defendant had committed a motor vehicle violation under General Statutes § 14-219 (c). When the officer stopped the plaintiffs vehicle in Avon, the investigation that he conducted led him to believe that the plaintiff had been operating his vehicle while under the influence of liquor. The officer thereupon arrested the plaintiff and charged him with a violation of General Statutes § 14-227a (a). The trial court found that the officer had unlawfully stopped the plaintiff in Avon for a violation of § 14-219 (c) and, thus, had unlawfully arrested the plaintiff for operating a vehicle while under the influence of liquor in violation of § 14-227a (a). As a result, the trial court found the commissioner’s decision clearly erroneous “in view of the reliable, probative and substantial evidence on the whole record.” This appeal followed.

This case is controlled by our Supreme Court’s recent decision in State v. Harrison, 228 Conn. 758, 638 A.2d 601 (1994). In Harrison, our Supreme Court interpreted the term “offense” as used in General Statutes § 54-lf to include motor vehicle violations. Id., 765. Therefore, in accordance with Harrison, we concluded that the Farmington officer had lawfully pursued the plaintiff across town lines, had lawfully stopped the vehicle and had lawfully arrested the plaintiff. Thus, the trial court improperly determined that the commissioner’s decision was clearly erroneous.

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

       The defendants are Louis Goldberg, commissioner of motor vehicles, and the department of motor vehicles.

       General Statutes § 14-227b (f) provides that a hearing to determine the suspension of a driver’s license for driving while under the influence of liquor “shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for manslaughter in the second degree with a motor vehicle or for assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle.”

       General Statutes § 54-lf (c) provides in pertinent part: “Members of any local police department . . . when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. . . .”

       General Statutes § 14-219 provides in pertinent part: “(a) No person shall operate any motor vehicle (1) upon any highway ... at such a rate of speed as to endanger the life of any occupant of such motor vehicle, but not the life of any other person than such an occupant; or (2) at a rate of speed greater than fifty five miles per hour upon any highway. . . .
      “(c) Any person who violates any provision of subdivision (1) of subsection (a) of this section or who operates a motor vehicle (1) on a multiple lane, limited access highway at a rate of speed greater than seventy miles per hour but not greater than eighty-five miles per hour or (2) on any other highway at a rate of speed greater than sixty miles per hour but not greater than eighty-five miles per hour shall be fined not less than one hundred dollars nor more than one hundred fifty dollars, provided any such person operating a truck, as defined in section 14-260n, shall be fined not less than one hundred fifty dollars nor more than two hundred dollars.”

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