text:
    State of Connecticut v. Michael Piorkowski
    (13537)
    O’Connell, Foti, Lavery, Landau, Heiman, Spear and Hennessy, Js.

      Argued September 28, 1994
    decision released March 21, 1995

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was Joseph G. Bruckman, public defender, for the appellant (defendant).

      Judith M. Rossi, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and James Bernardi, assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from a judgment of conviction of murder in violation of General Statutes § 53a-54a (a) rendered after he entered a plea of nolo contendere. He appeals from the judgment pursuant to General Statutes § 54-94a* and Practice Book § 4003 and asserts that the trial court improperly-denied his motion to suppress two statements that he gave to Norwalk police officers.

The state claims that we do not have subject matter jurisdiction because (1) § 54-94a does not permit a conditional plea of nolo contendere and appeal on the grounds asserted in the defendant’s motion to suppress, and (2) the appeal cannot be heard pursuant to Practice Book § 4003 because a court rule cannot create appellate subject matter jurisdiction. The defendant asserts that the language of § 54-94a is broad enough to encompass his claim that the defendant’s statement is “involuntary.” He asserts that, alternatively, we do have jurisdiction to hear his appeal pursuant to § 4003 or pursuant to our supervisory authority.

We conclude that neither § 54-94a nor § 4003 implicates our subject matter jurisdiction. We will not consider the merits of the defendant’s appeal, however, because it does not fit within the framework of § 54-94a, meet the requirements of § 4003 or present an appropriate occasion for the exercise of our supervisory power.

The following facts were made a part of the record by the state at the time the defendant entered his conditional plea of nolo contendere. The defendant was arrested on drug charges in early 1992. After the arrest, he was recruited as a confidential informant by the Norwalk police department. He told the police that Tim Lee was involved in marijuana trafficking, and, during the course of the investigation, he arranged to purchase marijuana from Lee. That transaction was observed by an officer of the Norwalk police department but, unbeknownst to the Norwalk police, the defendant also arranged to sell cocaine to Lee. On a later date, the defendant killed Lee during an argument over the defendant’s failure to deliver cocaine or to return Lee’s money. On October 21 and 22,1992, after the defendant was arrested on other charges, he confessed to the murder of Lee.

The defendant moved to suppress the October 21 statement on the grounds that (1) he had not waived his Miranda rights and (2) the statement was taken in violation of his right to a prompt arraignment pursuant to General Statutes § 54-lc.* *** In the same motion, the defendant moved to suppress the October 22 statement on the grounds that (1) the statement was the fruit of the illegal October 21 interrogation, and (2) the statement was taken in violation of his right to counsel pursuant to the sixth amendment to the United States constitution.

After a hearing, the trial court denied the motion to suppress. The defendant then entered a plea of nolo contendere to the charge of murder with the agreement of the state and the approval of the court. The defendant expressly conditioned his plea on the right to vacate it if his appeal of the trial court’s denial of the motion to suppress was “successful on either or both” of the statements. (Emphasis added.) The trial court and the parties expressed some reservations as to whether the defendant’s claims fit within the language of § 54-94a that allows a conditional plea and appeal “where there has been a denial of a motion to suppress based on the involuntariness of a statement.” (Emphasis added.) The trial court and the parties opined that the defendant’s claims appeared to be suitable for review pursuant to the Supreme Court’s supervisory authority even if they were not within the purview of § 54-94a. After the appeal was filed, the Supreme Court transferred the case to this court pursuant to Practice Book § 4023.

The threshold issue before us on appeal is whether this court has subject matter jurisdiction. The state asserts that we do not have subject matter jurisdiction pursuant to § 54-94a because the statute permits a conditional plea of nolo contendere and appeal only when the motion to suppress a statement is based on a claim of involuntariness. The state also asserts that § 4003 improperly attempts to confer subject matter jurisdiction on the appellate courts by rule. We disagree with the state’s claims.

I

Despite the defendant’s frustration over the state’s now challenging a plea to which it agreed in the trial court, it is axiomatic that whenever the question of subject matter jurisdiction is raised, the court must address it before proceeding further. Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1994); Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988). It is also axiomatic that the parties cannot confer subject matter jurisdiction on a court by agreement. Sadloski v. Manchester, supra, 84; Neri v. Neri, 35 Conn. App. 812, 817, 647 A.2d 1, cert. denied, 231 Conn. 916, 648 A.2d 154 (1994).

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it .... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it ... . Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.” (Citations omitted; internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 304-305, 610 A.2d 1147 (1992); Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987).

The power to hear appeals in criminal cases is conferred by General Statutes § 54-95. Pursuant to § 54-95, appellate criminal jurisdiction lies where there is an appeal from a final judgment. The thirty year sentence that was imposed on the defendant here constituted a final judgment. State v. Ayala, 222 Conn. 331, 339, 610 A.2d 1162 (1992); State v. Jackson, 32 Conn. App. 724, 731, 630 A.2d 164, cert. denied, 228 Conn. 903, 634 A.2d 297 (1993). This court is competent to entertain this action because appellate courts routinely review appeals that challenge trial courts’ denials of motions to suppress statements.

When viewed in light of the definition of subject matter jurisdiction and the statutes that create such jurisdiction, it becomes clear that § 54-94a neither confers nor curtails appellate subject matter jurisdiction. What § 54-94a does is abrogate, in certain circumstances, the waiver of constitutional rights that is implicit in a guilty or nolo contendere plea. “As a general rule, an unconditional plea of guilty . . . intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects . . . .” State v. Niblack, 220 Conn. 270, 276, 596 A.2d 407 (1991); see also Parker v. Commissioner of Correction, 27 Conn. App. 675, 683-84, 610 A.2d 1305, cert. denied, 223 Conn. 909, 612 A.2d 57 (1992), citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). Section 54-94a clearly states its purpose in its concluding sentence: “A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of non-jurisdictional defects in the criminal prosecution.” (Emphasis added.) In referring to § 54-94a, our Supreme Court has said: “The legislature in 1982 altered the broad waiver of constitutional rights implicit in a plea of guilty or nolo contendere . . . .” (Emphasis added.) State v. Madera, 198 Conn. 92, 98, 503 A.2d 136 (1985); see also State v. Gilnite, 202 Conn. 369, 374-75, 521 A.2d 547 (1987).

In enacting § 54-94a, the legislature created a new, expedited route to the appellate courts but it did not create a new jurisdictional doorway into those courts. Section 54-94a is intended to promote judicial economy by allowing the parties to litigate a suppression or dismissal issue fully in the trial court, and thereafter allowing the defendant to obtain review of an adverse ruling without the parties’ or the court’s expending additional resources.

The state posits the issue as one of subject matter jurisdiction, but we conclude that the only question presented with respect to § 54-94a is whether the defendant has satisfied its predicate requirements.

II

In order to utilize the benefits of § 54-94a, a defendant’s claim must fall within the purview of the statute. Specifically, the motion to suppress must challenge the voluntariness of the statement. The defendant asserts that his motion to suppress, which challenged the admission of the statements because they were made without the benefit of counsel, is a claim that is within the statute. He argues that the legal concept of “voluntariness” encompasses claims of both self-incrimination and right to counsel.

The defendant relies on an attorney’s statement to the joint committee on the judiciary in support of his contention that § 54-94a was intended to include statements taken in violation of a defendant’s right to counsel. While we may look at testimony and legislative history to determine legislative intent “when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” (Internal quotation marks omitted.) Frillici v. Westport, 231 Conn. 418, 430, 650 A.2d 557 (1994); Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992).

Having examined the statute, we conclude that the language is plain and unambiguous. Section 54-94a clearly enumerates the instances wherein a defendant has a right to take an appeal after entering a conditional plea of nolo contendere. Section 54-94a provides that a defendant may “appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss . . . .” (Emphasis added.) In accordance with the canons of statutory construction, we conclude that the legislature intended to grant a defendant an expedited appeal only in the three prescribed circumstances. Had the legislature intended to include uncounseled statements, such a provision would have been enumerated along with the other instances. There is nothing in the language of the statute that indicates that the word “voluntariness” is meant to include claims of right to counsel.

The defendant fails to cite any precedent in which our courts have held that a motion to suppress an uncounseled statement met the requirements set forth in § 54-94a. Nor has he cited any cases for the proposition that a statement that is made in the absence of counsel is involuntary per se. Our courts have held that in order for a defendant to appeal pursuant to § 54-94a the conditions therein must be satisfied, and the court will not liberally construe those requirements. See State v. Gilnite, supra, 202 Conn. 375-76. We, therefore, decline to read § 54-94a in the expansive fashion urged by the defendant.

III

The defendant relies in the alternative on § 4003 (b), which allows a conditional plea of guilty or nolo contendere with a reservation of “the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence . . . .’’(Emphasis added.) The state asserts that Practice Book § 4003 purports to confer subject matter jurisdiction on this court contrary to the dictates of § 54-94a. In support of this assertion, the state cites Simms v. Warden, 230 Conn. 608, 646 A.2d 126 (1994), for the proposition that appellate subject matter jurisdiction is created by statute, not rule of practice. We have no quarrel with that proposition; it simply does not apply here. Section 54-94a does not implicate the court’s subject matter jurisdiction for the reasons discussed in part I of this opinion, and § 4003 simply makes further inroads on the court-made waiver rule that applies where there has been an unconditional plea of guilty or nolo contendere.

The rule increases the number of situations wherein an appeal can be taken without the necessity for a full trial. This is consistent with the notions of judicial economy that underpin § 54-94a. Section 4003 also answers the concerns expressed by the Supreme Court in State v. Madera, supra, 198 Conn. 92. The Madera court noted that the conditional nolo contendere plea could be abused if not limited to dispositive matters. The court also stated that the trial courts should not “employ this procedural innovation except in situations plainly within the provisions of § 54-94a” until a rule was furnished to prevent abuse. Id., 102. Section 4003 provides such a rule to expedite appeals within the framework of the appellate courts’ existing subject matter jurisdiction and builds in these safeguards against abuse: (1) court approval of a conditional plea, (2) a determination by the court of whether an adverse determination of the motion would have a “significant impact on the disposition of the case,” and (3) a determination by the trial court of whether the record is adequate for appellate review. General Statutes § 51-14 (a) recognizes that the rule-making power of the appellate courts is “for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits. . . .” Section 4003 fulfills those purposes without in any way purporting to enlarge subject matter jurisdiction.

The defendant’s claims cannot be reviewed pursuant to § 4003 (b) because the rule provides that the judgment shall be set aside only if the defendant prevails on appeal. The defendant expressly conditioned his plea on the right to withdraw it if he should prevail as to either or both of the challenged statements. Partial success by the defendant is outside the contemplation and spirit of the rule. It would, in effect, modify the word “prevails” in the rule to “prevails in part.” Such an interpretation would run counter to, rather than advance the interests of, judicial economy and efficiency by allowing piecemeal appeals. If the defendant prevailed as to only one of the challenged statements, he could then withdraw his plea, go to trial and, if convicted, appeal again. An appellate court might then have to review this matter again on appeal, and the trial court would have had a full trial — exactly what the rule was designed to eliminate. This scenario is the antithesis of judicial economy.

The defendant’s appeal does not properly fit within § 4003 (b) because of his reservation of the right to vacate his plea even if he does not prevail. Therefore, we decline to review the defendant’s claims on the merits.

IV

The defendant lastly asserts that a refusal by this court to review his appeal pursuant to our supervisory authority will “overrule the Supreme Court case of State v. Chung, [202 Conn. 39, 519 A.2d 1175 (1987)].” (Emphasis in original.) In State v. Chung, supra, 39, the defendant pleaded nolo contendere in the trial court with the agreement of the state and the approval of the trial judge. The defendant, thereafter, appealed from the judgment of conviction and claimed that the trial court improperly denied his motion to suppress certain statements elicited from him. The version of § 54-94a in effect in Chung did not include the denial of a motion to suppress statements among the matters subject to a conditional nolo contendere plea. The Supreme Court stated that although the case was not within the ambit of § 54-94a, “this case is an appropriate situation for this court to exercise its inherent supervisory authority over the administration of justice to review the issue preserved by the defendant.” Id., 44. The court went on to say: “The admissibility of the defendant’s confession is the sole question presented to this court and it properly can be reviewed on the record available.” Id.

Supervisory authority is a necessary adjunct of appellate jurisdiction that is used “to facilitate business and advance justice.” O’Bymackow v. O'Bymachow, 10 Conn. App. 76, 78, 521 A.2d 599 (1987). We do not read State v. Chung, supra, 202 Conn. 39, as mandating that we review appeals that fail to satisfy § 54-94a or § 4003 pursuant to our supervisory authority because the parties agreed in the trial court that we should do so. The defendant’s assertion of a right to review pursuant to our supervisory authority is particularly inappropriate because his plea does not conform to § 4003 (b) as discussed in part III of this opinion. The court’s supervisory power “does not allow litigants to circumvent other rules of practice designed to promote judicial efficiency and justice.” North Park Mortgage Services, Inc. v. Pinette, 27 Conn. App. 628, 633, 608 A.2d 714 (1992).

Our Supreme Court stated in Chung: “Moreover, to force this defendant to go through an entire trial to preserve the right to appeal the pretrial ruling, under the facts of this case, would be a waste of judicial time and resources.” (Emphasis in original.) State v. Chung, supra, 202 Conn. 45. The emphasis on “this” defendant strongly suggests that Chung is limited to its facts. The case law also demonstrates the court’s reluctance to extend the scope of § 54-94a beyond the three instances enumerated in the statute. In State v. Madera, supra, 198 Conn. 98, the Supreme Court refused to review an appeal pursuant to § 54-94a that challenged the trial court’s denial of a motion to suppress a confession because the statute did not then include such a motion. The court cautioned that “[t]he conditional plea is susceptible to abuse . . . unless its use is carefully limited to significant issues the determination of which on appeal is likely to be dispositive of the case.” Id., 101. In State v. Gilnite, supra, 202 Conn. 376-80, the Supreme Court held that § 54-94a requires that a nolo contendere plea be made expressly conditional on the right to appeal.

We no.te also that in State v. Kelly, 206 Conn. 323, 537 A.2d 483 (1988), the Supreme Court refused to exercise its supervisory authority to review a juvenile transfer matter that was outside the ambit of § 54-94a. The language of Chung and the refusal of the Supreme Court to review the claims in Kelly counsel us to use our supervisory power only in appropriate circumstances. For the reasons stated in part II of this opinion, this case does not present such a situation.

The trial court improperly accepted the plea of nolo contendere because the condition could not be fulfilled under our procedures.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 54-94a provides: “conditional nolo contendere PLEA. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR DISMISS. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       Practice Book § 4003 provides: “(a) When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution. The court shall not accept a nolo contendere plea pursuant to this subsection where the denial of the motion to suppress would not have a significant impact upon the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere plea where the record available for review of the denial of the motion to suppress or motion to dismiss is inadequate for appellate review of the court’s determination thereof.
      “(b) With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw the conditional plea of nolo contendere after the case has been remanded to the trial court. The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not have a significant impact on the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.”

       The defendant does not claim that the other grounds asserted in his motion are included in the statutory language, nor does he claim that those other grounds are subsumed within his uncounseled statements claim.

       General Statutes § 54-lc provides: “admissibility of confession. Any admission, confession or statement, written or oral, obtained from an accused person who has not been presented to the first session of the court, or on the day specified for arraignment under the provisions of section 54-lg, or who has not been informed of his rights as provided by section 54-lb or section 54-64b, shall be inadmissible.”

       The sixth amendment to the constitution of the United States provides in pertinent part: “In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.”

       Practice Book § 4023 provides in pertinent part that the Supreme Court “may transfer a cause . . . from itself to the appellate court. ...”

       General Statutes § 54-95 provides in pertinent part: “(a) Any defendant in a criminal prosecution, aggrieved by any decision of the superior court, upon the trial thereof . . . may be relieved by appeal

       We note that during the floor discussion of the proposed § 54-94a, Representative Richard Tulisano stated: “[T]he right of appeal already exists based on this issue . . . it effectively speeds up the process and just gets the matter before the courts faster and saves the state a lot of money on the issue that is ultimately going to be argued anyway.” (Emphasis added.) 31 H.R..Proc., Pt. 2, 1988 Sess., p. 539.

       Attorney Brian Kornbrath’s statement to the joint committee on the judiciary was as follows: “We’re asking that the committee pass this resolution because there are a number of cases where the voluntariness of the statement based on both the fifth amendment and the sixth amendment privileges under the United States Constitution and Article I, Section 8 of the Connecticut Constitution is the only issue.

        “The basis for this claim obviously is judicial economy. It would save a lot of time and effort if a defendant could forgo his jury trial which would take a matter of weeks, obviously, and proceed right to the appellate level based on the one issue, the voluntariness of the statement.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1988 Sess., pp. 272-73.

       See footnote 3.

       Contrary to the state’s contention, this court properly reviewed appeals arising out of nolo contendere pleas in State v. Rutledge, 17 Conn. App. 250, 251 n.1, 552 A.2d 435 (1989); State v. Ballantyne, 17 Conn. App. 209, 211 n.2, 551 A.2d 770 (1988); State v. Scott, 16 Conn. App. 172, 173, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988); State v. Smith, 16 Conn. App. 156, 157-58 n.1, 547 A.2d 69, cert. denied, 209 Conn. 820, 551 A.2d 758 (1988). In each of these cases the conditions of § 4003 were satisfied although none of the cases came within the purview of § 54-94a.

       At the time Chung was decided, General Statutes (Rev. to 1987) § 54-94a provided for an appeal “from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss . . . .”

        Madera was decided before § 54-94a was amended in 1988 to include a motion to suppress involuntary statements.

       The defendant expressly conditioned his plea on full appellate review of his claims. Because we refuse to answer the issues raised by the defendant on appeal, the appeal, the plea and judgment thereon cannot stand. See State v. Madera, supra, 198 Conn. 111, where the court set aside the judgment rendered on a conditional plea after finding that the issues raised on appeal were not reviewable.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John Muldoon v. Homestead Insulation Company et al.
    (12112)
    (12113)
    Dupont, C. J., and Heiman and Spear, Js.
    Submitted February 15
    decision released March 21, 1995

      Karen P. Blado, with whom, on the brief, was Mary J. Ambrogio, for the appellants (defendant Cummings Insulation Company et al.).

      Kevin J. Maher, for the appellants (named defendant et al.).

      Robert F. Carter, for the appellee (plaintiff).
   Per Curiam.

This case is before us on remand from our Supreme Court reversing the judgment of this court and remanding the case to us for the resolution of the issues not previously decided. Muldoon v. Homestead Insulation Co., 231 Conn. 469, 650 A.2d 1240 (1994). The issues that remain unresolved are the defendants’ claims that the compensation review division of the workers’ compensation commission incorrectly (1) determined that the conduct of the plaintiff did not constitute wilful and serious misconduct, (2) found that the defendant Cummings Insulation Company is the last responsible employer of the plaintiff, and (3) refused to correct the findings as requested by the defendants. We are unpersuaded and affirm the decision of the compensation review division.

The underlying facts are adequately set out in the opinion of this court in Muldoon v. Homestead Insulation Co., 33 Conn. App. 695, 697-98, 638 A.2d 41 (1994), and the opinion of the Supreme Court in Muldoon v. Homestead Insulation Co., supra, 231 Conn. 471-73.

We have carefully reviewed the record and briefs of the parties concerning the unresolved issues and find them without merit. The remaining issues presented for review are fact bound in nature. It is the obligation of the compensation review division to hear appeals from the commissioner on the record; it is not empowered to retry the facts. Crochiere v. Board of Education, 227 Conn. 333, 346-47, 630 A.2d 1027 (1993). The power to determine the facts is vested solely in the commissioner. Id. The conclusions drawn by the commissioner from the facts as he found them must stand unless they result from an improper application of the law to the subordinate facts or from an improper or illegal inference drawn from them. Muldoon v. Homestead Insulation Co., supra, 231 Conn. 476.

Because the commissioner’s findings that the plaintiff had not engaged in wilful and serious misconduct and that Cummings Insulation Company was the plaintiff’s last responsible employer were not based on an incorrect application of the law to the subordinate facts and did not result from an inference illegally or unreasonably drawn from the subordinate facts; id., 478; Fair v. People’s Savings Bank, 207 Conn. 535, 546, 542 A.2d 1118 (1988); we conclude that the division, bound as it was by the findings of the commissioner, properly affirmed the commissioner’s decision.

Because we have concluded that the facts were properly found by the commissioner, it necessarily follows that the motion to correct was properly denied.

The decision of the compensation review division is affirmed.


author: Lavery, J.

text:
    Judith Clinton et al. v. Middlesex Mutual Assurance Company
    (14203)
    Dupont, C. J., and Foti, Lavery, Landau and Hennessy, Js.
    Considered January 26
    decision released March 21, 1995

      Frank F. Coulom, Jr., in support of the motion.

      Judith Clinton, pro se, and Edward Clinton, pro se, in opposition to the motion.
   Lavery, J.

The plaintiffs, Judith and Edward Clinton, appeal from the denial of a motion to reconsider the trial court’s denial of their motion for a temporary injunction. The defendant moves to dismiss the appeal for lack of a final judgment. We agree that the appeal must be dismissed for lack of a final judgment.

The plaintiffs are the insured under a homeowner’s insurance policy issued by the defendant. They brought an action against the defendant based on allegations that the defendant had refused to settle the plaintiffs’ insurance claims, which they submitted after a fire destroyed their home. After the commencement of the action, the defendant informed the plaintiffs of its decision to terminate their homeowner’s insurance coverage. The plaintiffs filed a motion for a temporary injunction seeking to enjoin the defendant from terminating the policy. After a full hearing on the motion for a temporary injunction, the trial court denied the request. The plaintiffs moved the court to reconsider its decision. The court, however, denied reconsideration. This appeal followed.

The principal purpose of a temporary injunction “is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits.” Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d 633 (1941). Our Supreme Court has consistently held that absent an applicable statutory rule to the contrary, a ruling granting, denying or dissolving a temporary injunction is not a judgment from which an appeal may be taken. See, e.g., Stamford v. Kovac, 228 Conn. 95, 99, 634 A.2d 897 (1993); Board of Education v. Shelton Education Assn., 173 Conn. 81, 88, 376 A.2d 1080 (1977); Olcott v. Pendleton, supra, 294-95. In this case, therefore, had the plaintiffs appealed from the denial of their motion for a temporary injunction, their appeal would have been dismissed.

“We can hear appeals only from final judgments; General Statutes §§ 51-197a, 52-263; Practice Book § 4000; and neither the parties nor the trial court can confer jurisdiction upon us. Ebenstein & Ebenstein, P.C. v. Smith Thibault Corporation, 20 Conn. App. 23, 25, 563 A.2d 1044 (1989).” Rhode Island Hospital Trust National Bank v. Trust, 25 Conn. App. 28, 32, 592 A.2d 417, cert. granted, 220 Conn. 904, 593 A.2d 970 (1991) (appeal withdrawn). In this case, the plaintiffs appealed from the denial of their motion to reconsider the denial of their motion for a temporary injunction. If we were to consider the plaintiffs’ appeal, we, in effect, would be allowing the plaintiffs to confer jurisdiction on this court through the filing of a motion to reconsider an underlying order that was not itself appealable. Consideration of such an appeal would encourage those parties who do not have a final judgment from which to appeal, to create for themselves a final judgment by filing a motion to reconsider.

Because the denial of the plaintiffs’ motion for a temporary injunction is not an appealable final judgment, the denial of the motion to reconsider that order is likewise a nonfinal judgment. As a result, this court lacks subject matter jurisdiction over this appeal.

The defendant’s motion to dismiss the appeal is granted.

In this opinion the other judges concurred.

       “Immediate review of temporary injunctions is authorized for appeals arising out of labor disputes; General Statutes § 31-118; French v. Amalgamated Local Union 376, 203 Conn. 624, 628 n.6, 526 A.2d 861 (1987); or for appeals involving matters of substantial public interest. General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678 n.1, 485 A.2d 1272 (1984).” Stamford v. Kovac, 29 Conn. App. 105, 109 n.4, 612 A.2d 1229 (1992), rev’d on other grounds, 228 Conn. 95, 634 A.2d 897 (1993).


author: Spear, J.

text:
    Eisele’s Nursery and Garden Center, Inc. v. Diane F. Kirkegard et al.
    (13250)
    Dupont, C. J., and Foti and Speak, Js.

      Argued January 12
    decision released March 21, 1995

      James J. Farrell, for the appellant (plaintiff).

      Thomas J. Allingham, for the appellees (defendants).
   Spear, J.

The plaintiff appeals from a judgment rendered in favor of the defendants on their motion for summary judgment. On appeal, the plaintiff asserts that the trial court improperly granted the defendants’ motion for summary judgment because (1) there was no basis for the court’s finding that the plaintiff was collaterally estopped from pursuing its claim, and (2) the defendants are joint obligors with Howard Fowler and their liability is not discharged by an unsatisfied judgment against Fowler. We agree with the plaintiff’s first claim and reverse the judgment.

The pertinent facts are as follows. The plaintiff alleged in a four count complaint that (1) it had entered into a written contract with the defendant Diane Kirkegard and Howard Fowler requiring it to provide landscaping services and materials for which Kirkegard and Fowler agreed to pay, (2) the defendants, Diane Kirkegard and Christopher Kirkegard, were unjustly enriched by the landscaping services and materials provided by the plaintiff, (3) the defendants were indebted to the plaintiff on an open account at an agreed price, and (4) Fowler was the agent of the defendants in contracting with the plaintiff.

The defendants filed two special defenses alleging (1) that the plaintiff was “collaterally estopped by res judicata” from relitigating the issues because of a prior final judgment on its claim and (2) the plaintiff was equitably estopped from joining the defendants in a new action because of its prior suit in New York on this claim against Fowler.

The defendants filed a motion for summary judgment based on their claim of collateral estoppel supported by an affidavit from a paralegal who was employed by the defendants’ attorney. The affidavit stated that the paralegal had spoken by telephone with a clerk at the Rockland county clerk’s office in New York and had learned that the plaintiff had brought an action against Fowler only and had obtained a judgment against Fowler. The telephone call was followed with a letter to the Rockland county clerk, and the letter and response thereto were attached to the paralegal’s affidavit. The New York judgment was not submitted. The defendants filed a request to admit at the same time that they filed the motion for summary judgment. The case was decided by the trial court without oral argument.

The trial court granted the motion for summary judgment relying on Scalzo v. Danbury, 224 Conn. 124, 617 A.2d 440 (1992). In Soalzo, the trial court granted a party’s motion for summary judgment on the ground that res judicata barred the plaintiff’s claims. The Supreme Court affirmed the summary judgment, but on different grounds. The court held that the party was collaterally estopped because the issue had been fully and fairly litigated. Because the trial court in this case cited Soalzo as its authority for granting the summary judgment, we conclude that that court based its decision on the issue of collateral estoppel, which is also known as issue preclusion.

“Under Connecticut law, [cjollateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” (Citations omitted; emphasis added; internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 751, 643 A.2d 1226 (1994).

The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A trial court “must view the evidence in the light most favorable to the nonmoving party” when deciding a motion for summary judgment. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Remington v. Aetna Casualty & Surety Co., 35 Conn. App. 581, 583, 646 A.2d 266 (1994).

Viewing the evidence in the light most favorable to the plaintiff, we discern no basis for the trial court’s finding of issue preclusion. Neither the complaint nor the judgment in the New York action that the plaintiff brought against Fowler were before the trial court. That court, therefore, could not have decided from the paralegal’s affidavit and the attachment thereto what issues were actually litigated or necessarily determined in the New York action.

“When reviewing a trial court’s ruling on a motion for summary judgment, we must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 292, 596 A.2d 414 (1991). We conclude that the trial court had no basis to conclude that the defendant was entitled to judgment as a matter of law on the basis of issue preclusion. It is not necessary, therefore, to consider the plaintiff’s other claim.

The judgment is reversed and the case is remanded to the trial court for further proceedings.

In this opinion the other judges concurred.

       Although the defendants incorporated the words “res judicata” in this claim, the case was presented in the trial court, decided and appealed on the issue of collateral estoppel.

       The paralegal’s letter requested a copy of the judgment in the case of Eisele’s Nursery & Garden Center v. Fowler, Index Number: 185/91. The clerk returned the letter with the following handwritten notation at the bottom: “Per our conversation this date order granting judgment enter 3-15-93 - Judgment not submitted.”

       The request to admit states: “The defendants, Diane Kirkegard and Christopher Kirkegard, hereby request the Plaintiff to admit that it obtained a full final . . . judgment against Howard Fowler in an action based on the claim it is now maintaining against them as evidenced by an affidavit from the clerk of the Supreme Court of New York, County of Rockland, certifying that on March 15, 1993, final judgment entered against the Defendant, Howard Fowler, in favor of Eisele’s Nursery & Garden Center, and that no other defendants were named in the action, attached hereto.” At the time the motion for summary judgment was granted, there had been no response to the request.


author: Foti, J. Hennessy, J.,

text:
    State of Connecticut v. Keith Laws
    (12860)
    Foti, Heiman and Hennessy, Js.
    Argued September 29, 1994
    decision released March 21, 1995

      G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered following a jury trial, on a seven count information. The defendant was convicted of threatening in violation of General Statutes § 53a-62 (a) (l), carrying a pistol without a permit in violation of General Statutes § 29-35, criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1991) § 53a-217, two counts of interfering with an officer in violation of General Statutes § 53a-167a, using a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b,* ** and escape from custody in violation of General Statutes § 53a-171. On appeal, the defendant claims that (1) his conviction for escape from custody is not supported by the evidence, (2) the trial court improperly instructed the jury as to an essential element of the crime of escape from custody, (3) his convictions of carrying a pistol without a permit and criminal possession of a pistol violate the state and federal constitutional prohibitions against double jeopardy, and (4) the trial court improperly instructed the jury on an alternate means of committing interference with an officer that was not supported by the evidence. We affirm the judgment of the trial court.

The following facts could reasonably have been found by the jury. On May 15, 1992, at 12:30 p.m., Officer Michael Atkins of the Bridgeport police was patrolling the west side of Bridgeport when he was informed that there was a man carrying a gun on Yale Street. Atkins radioed in and went to investigate. Atkins observed the defendant on Wordin Avenue and motioned for the defendant to approach the patrol car. The defendant approached the patrol car while fumbling with something under his sweatshirt. Suspecting that the defendant might be armed, Atkins exited the cruiser without turning it off or removing the keys from the ignition. He walked toward the rear of the cruiser, keeping the vehicle between himself and the defendant. When Atkins circled the cruiser, the defendant began to run south on Wordin Avenue, and Atkins pursued him.

As they were running, the defendant pointed a gun at Atkins and yelled at him to get back. Atkins fell to the ground. He then got up, drew his gun and continued to pursue the defendant. The defendant again turned and pointed his gun at Atkins, and the chase continued. The defendant turned onto Hanover Street and Atkins lost sight of him.

As Atkins searched for the defendant, he heard dogs barking in the rear yard of 46-50 Wordin Avenue. As he entered the yard, he was joined by fellow officer Michael Muckro. Muckro was responding to Atkins’ earlier radio call. He had seen Atkins’ cruiser sitting in the middle of Wordin Avenue with the engine running. A bystander pointed in the direction that the defendant and Atkins had run. When Muckro saw Atkins in the yard of 46-50 Wordin Avenue, he exited his cruiser and joined him.

The officers noticed that the barking dogs were looking up to the second and third floor porches of the house at 46-50 Wordin Avenue. Atkins and Muckro decided to climb the back stairs of the house. With Atkins in the lead, they reached the third floor and Atkins saw the defendant’s foot on the porch. Atkins pointed his gun at the defendant and yelled for him to freeze. The defendant yelled something in response. Atkins ordered the defendant to show his hands. The defendant said that he did not have anything, and Atkins proceeded onto the third floor porch.

On the porch, Atkins found the defendant with both legs over the railing, apparently preparing to jump. While still pointing his gun, Atkins told the defendant he was under arrest. Atkins then reholstered his weapon and grabbed the defendant by his sweatshirt. The defendant broke away and jumped from the porch, landing on the hatchway to the cellar. Atkins remained on the third floor porch holding the hood that had ripped off of the defendant’s sweatshirt.

Atkins and Muckro ran down to the backyard and searched for the defendant. Someone from an adjacent house approached the officers and told them that the defendant had run toward the front of the house. Atkins and Muckro returned to the house to search for the gun. As they searched, they heard police sirens and saw police lights heading up the street.

On Wordin Avenue, a cruiser driven by Officer James Sheffield was responding to the scene. As Sheffield turned from State Street onto Wordin Avenue, he saw the defendant jump into Atkins’ cruiser, which was still running, and speed off. Sheffield and Officer Ronald Henderson, who arrived in another cruiser, chased the defendant. The defendant hit two parked cars and a fence with Atkins’ cruiser and then the engine stalled. Henderson and Sheffield exited their cruisers and attempted to get the defendant out of Atkins’ cruiser, but the defendant locked the doors. After unsuccessfully attempting to smash the cruiser windows with a nightstick, Henderson drew his gun and shot out the rear window of the cruiser.

The defendant restarted Atkins’ cruiser and sped away. Henderson and Sheffield returned to their own cruisers and resumed the chase. On Bird Street, in the P.T. Barnum apartment complex, the defendant jumped out of the moving cruiser. The cruiser continued onto a sidewalk where it hit a barrier and stopped. The defendant disappeared behind a building and was not apprehended until three weeks later.

I

The defendant’s first claim on appeal is that there was insufficient evidence for the jury to have convicted him of escape from custody. He argues that (1) he was never in custody for the purposes of General Statutes § 53a-171, (2) the state failed to prove that he had the requisite intent to escape from custody, and (3) the state failed to prove that he was in custody pursuant to a court order or an arrest for robbery. The defendant concedes in his brief that these claims were not raised in the trial court. He asserts reviewability under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof. See State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993).

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). “ Tn this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ ” State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993).

A

Section 53a-171 provides that “[a] person is guilty of escape from custody if he escapes from custody.” Custody is defined by General Statutes § 53a-168 (2) as “restraint by a public servant pursuant to an arrest or court order . . . .” The substitute information filed by the state in this case alleged that “on the 15th day of May, 1992, at or about 12:30 p.m. at 46-50 Wordin Avenue, Bridgeport, [the defendant], while charged with the crime of Robbery in the First Degree, a felony, did escape from custody, in violation of Section 53a-171 (a) of the Connecticut General Statutes.” The defendant argues that Atkins’ telling him he was under arrest and grabbing his sweatshirt hood did not constitute “restraint by a public servant pursuant to an arrest.” General Statutes § 53a-168 (2). The defendant urges us to find that custody is not complete merely upon the utterance of words of arrest by a police offi-. cer. The defendant claims that it is necessary for a police officer to exercise control over the defendant before the defendant is in custody from which he can escape in violation of § 53a-171. We do not agree.

A person who is lawfully placed under arrest is in the legal custody of the police. See State v. Blyden, 165 Conn. 522, 533, 338 A.2d 484 (1973). “ ‘Precisely when an arrest occurs is a question of fact which depends on an evaluation of all the surrounding circumstances.’ ” State v. Derrico, 181 Conn. 151, 158, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). “ ‘To constitute an arrest, there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.’ ” Id., 159.

The defendant did not question that he was actually “arrested.” He did not object to the jury instruction that placed on the state the burden of proving beyond a reasonable doubt that he “was placed under arrest by Officer Michael Atkins . . . .” One of the elements that the jury was required to find was that there was an arrest.

“A finding of fact will not be overturned on appeal unless it is clearly erroneous. State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989); State v. Young, 191 Conn. 636, 652, 469 A.2d 1189 (1983); see Practice Book § 4061. Where a constitutional issue turns upon a factual finding, however, this court has applied a stricter standard of review of the factual finding. ‘The issue is factual, but our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence. Columbe v. Connecticut, 367 U.S. 568, 605, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).’ State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982).” State v. Damon, 214 Conn. 146, 154, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990).

We conclude, after an examination of the record, that the evidence presented during trial was sufficient to support the conclusion that the defendant was placed under arrest. Certainly, the officer’s intention was to effectuate an arrest. The defendant should reasonably have understood that he was not free to leave because he was under arrest when Atkins, a policeman in uniform, pointed his service revolver at him and said “freeze” and “you are under arrest.” While nothing further may have been necessary, Atkins also took hold of the defendant. Although an argument may be made that the grabbing was not sufficient to exercise “control” over the defendant, we do not deem “control” to be a determining factor for an arrest. The defendant was actually or, at the very least, constructively detained when Atkins pointed his gun at him and told him he was under arrest. We agree that the legislative definition of “custody” in § 53a-168 (2) makes custody a prerequisite to the crime of escape from custody pursuant § 53a-171. We conclude, however, that a formal arrest was completed and, therefore, the defendant was in custody. See State v. Pittman, supra, 209 Conn. 608. Because the defendant was arrested, he was in custody, and we need not determine whether actual restraint was employed, or whether the defendant submitted to the custody of Officer Atkins.

B

The defendant also argues that the state failed to prove the requisite intent for an escape from custody. He claims that he fell from the porch and that this fall, being an accident, was not voluntary and did not satisfy the intent necessary to commit escape from custody. The defendant, who elected not to testify on his own behalf, says that the state failed to disprove that he accidentally fell.

No specific intent is necessary to commit the crime of escape. The ordinary intent required to constitute the crime of escape is the intent to voluntarily do the act that results in the unlawful liberation from lawful custody. State v. Roy, 173 Conn. 35, 46, 376 A.2d 391 (1977). Whether the defendant intentionally jumped or accidentally fell was a question of fact for the jury to decide. Marian Straubel, who lived on Wordin Avenue and was on her back porch at the time of the incident, testified that she “saw someone jump from the third floor, from the porch . . . .” Atkins testified that the defendant was “going over the railing like he was going to jump . . . .” The evidence was sufficient for the jurors to find that the defendant either fell or jumped. They determined, by their verdict, that he jumped. Although the defendant argues that it was the intent he had when he “left” the third floor porch that matters, this is not true. The jury was free to consider all of his actions before that “departure” to determine whether he intended to jump or if he merely fell. Although it is not essential to our determination, we also note that the defendant continued to evade the police after he reached the ground. This is indicative of his entire pattern of activity, which was aimed at his not being apprehended. The jury’s function as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist. State v. Wideman, 36 Conn. App. 190, 203, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995).

C

The defendant further claims that the state did not meet its burden of proving that his arrest was pursuant to a charge of robbery in the first degree, as claimed in the information. We do not agree.

The state’s burden of proof for a conviction of escape from custody was to prove that the defendant was in custody, that he escaped from that custody, that the custody was pursuant to an arrest, and, for purposes of classification as a class C felony rather than a class A misdemeanor, that the escape was the result of being arrested for, charged with, or convicted of, a felony. See General Statutes § 53a-171 (b).

The defendant notes that the only evidence that he had been charged with or convicted of a felony at the time of his escape was by stipulation. The stipulation was that on the date in question there was a charge of robbery in the first degree pending against the defendant. The defendant argues that his stipulation that a charge of robbery in the first degree, a felony, was pending and outstanding, meant nothing unless it was related to the events of May 15,1992, when the escape occurred.

The stipulation regarding the charge of escape from custody was as follows: “[T]he state and the defendant stipulate that one of the essential elements of the crime to wit: That the defendant . . . had previously been convicted of a felony is hereby stipulated. . . . The state and the defendant stipulate that on May 15, 19.92 . . . the defendant ha[d] a pending felony offense outstanding against him and that he was aware of said charges and we further stipulate that since one of the essential elements of that crime is that there be a pending felony offense from another case . . . the pending count [named in the seventh count of the information] being robbery in the first degree.” For purposes of § 53a-171 (b), the defendant stipulated not only that the charge of robbery in the first degree was pending and outstanding, but also that this satisfied an element of escape from custody. We conclude that the stipulation was sufficient to relieve the state of any burden of proof relative to § 53a-171 (b) and the outstanding robbery charge, and that the defendant cannot now challenge that stipulation on appeal.

II

The defendant next claims that the trial court improperly instructed the jury as to an essential element of the crime of escape from custody. He argues that the trial court, in instructing the jury as to the stipulation of the parties, was required to include as part of the instruction that the jury find proven beyond a reasonable doubt that a court order of some type to take the defendant into custody was outstanding.

We agree that in order to conclude that the jury acted in a fair manner, we must first conclude that a basic instruction was given that included an identification of each and every essential element for which the state has the burden of proof beyond a reasonable doubt. State v. Brown, 35 Conn. App. 699, 712-13, 647 A.2d 17, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994). Failure to charge on an essential element of a crime is a constitutional defect. State v. Tweedy, 219 Conn. 489, 510-11, 594 A.2d 906 (1991). As previously discussed, however, the evidence in the form of a stipulation was sufficient to establish that a robbery in the first degree charge was pending and outstanding and that the defendant knew of it when he was placed under arrest by Atkins. Our review of the trial court’s instruction leads us to conclude that it was sufficient to enable the jury to consider each and every essential element of the crime of escape from custody.

Ill

The defendant next claims that his convictions and the punishments imposed for carrying a pistol without a permit, pursuant to § 29-35, and criminal possession of a pistol, pursuant to § 53a-217, violate the double jeopardy prohibitions of both the federal and state constitutions. We disagree.

The fifth amendment to the United States constitution provides in relevant part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” This provision of the fifth amendment applies to the states through the due process clause of the fourteenth amendment; Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); and “prohibits multiple trials for the same offense as well as multiple punishments for the same offense in a single trial . . . .” State v. Gross, 35 Conn. App. 631, 635, 646 A.2d 933, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994). “Although the Connecticut constitution does not include a specific double jeopardy provision . . . [t]he due process and personal liberty guarantees provided by article first, §§ 8 and 9, of the Connecticut constitution . . . have been held to encompass the protection against double jeopardy.” (Citations omitted.) State v. Lonergan, 16 Conn. App. 358, 363-64, 548 A.2d 718 (1988), aff'd, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990).

The defendant failed to raise his double jeopardy claim at trial. Nevertheless, he claims he is entitled to review of this claim under the constitutional bypass doctrine of Evans-Golding. State v. Golding, supra, 213 Conn. 233; State v. Evans, supra, 165 Conn. 61. Evans-Golding review of an unpreserved claim is warranted when “(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.” (Internal quotation marks omitted.) State v. Velez, 30 Conn. App. 9, 20, 618 A.2d 1362, cert. denied, 225 Conn. 907, 621 A.2d 289 (1993). “The first and second prongs of the Golding test dictate whether an issue will be reviewed, and the third and fourth prongs constitute review of the issue on its merits.” State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992). We will review this claim under Evans-Golding because the record is adequate for appellate review and the claim of double jeopardy is of constitutional magnitude. See State v. Chicano, 216 Conn. 699, 704-705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State v. McCall, 187 Conn. 73, 89, 444 A.2d 896 (1982); State v. Fudge, 20 Conn. App. 665, 669 n.3, 569 A.2d 1145, cert. denied, 214 Conn. 807, 573 A.2d 321 (1990).

A

The defendant’s federal constitutional claim fails under the third prong of Evans-Golding. This court and our Supreme Court have consistently applied the test of Blockburger v. United States, 284 U.S. 229, 52 S. Ct. 180, 76 L. Ed. 306 (1932), to double jeopardy claims arising from multiple punishments in the course of a single prosecution. State v. McCall, supra, 187 Conn. 89-90; State v. Truppi, 182 Conn. 449, 467-68, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); State v. Rmsell, 25 Conn. App. 243, 250, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991); State v. Blackwell, 20 Conn. App. 193, 196, 565 A.2d 549, cert. denied, 213 Conn. 810, 568 A.2d 794 (1989). Pursuant to the Blockburger test, “[wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Internal quotation marks omitted.) State v. Russell, supra, 250, citing Blockburger v. United States, supra, 304. The Blockburger test has been described, however, only as a means for determining the legislative intent that two crimes are the same for double jeopardy purposes. Albernaz v. United States, 450 U.S. 333, 340, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981). Therefore, if there is a clear indication that the legislature did or did not intend multiple punishments under the relevant statutes, such legislative intent will override the strict application of the Blockburger test. Id.; see also State v. Woodson, 227 Conn. 1, 11, 629 A.2d 386 (1993). The defendant has not brought to our attention any relevant history to indicate that these two crimes were intended to be punished as one.

Employing the Blockburger test, we have previously held that conviction and punishment imposed pursuant to convictions for both §§ 29-35 and 53a-217 in a single trial do not violate the federal constitutional prohibitions against double jeopardy. State v. Ortiz, 15 Conn. App. 749, 751, 546 A.2d 338, cert. denied, 209 Conn. 820, 551 A.2d 757 (1988); State v. King, 15 Conn. App. 330, 332, 544 A.2d 261 (1988). Thus, in this case the alleged violation of the federal constitutional double jeopardy prohibition does not clearly exist.

B

The defendant’s state constitutional claim merits independent scrutiny. “Connecticut courts have consistently followed the double jeopardy analysis used in the federal courts . . . .” State v. Blackwell, supra, 20 Conn. App. 195. We can find no case, however, where either this court or our Supreme Court has held that the state constitutional protection against double jeopardy parallels the federal constitutional protection. In the past, our election to apply only a federal constitutional analysis to double jeopardy claims has been based on the claimant’s failure to provide independent analysis of the state constitutional prohibition against double jeopardy. See, e.g., State v. Ford, 33 Conn. App. 143, 145, 634 A.2d 1188 (1993), cert. granted, 228 Conn. 918, 636 A.2d 849 (1994); State v. Russell, supra, 25 Conn. App. 249; State v. Blackwell, supra, 195-96. Here, the defendant has presented an exhaustive analysis, employing the criteria enunciated by our Supreme Court in State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), as to why our state constitution affords greater protection than the federal constitution in the context of double jeopardy. Therefore, we will address, for the first time, the question of whether the state constitutional bar against double jeopardy is coextensive with the double jeopardy prohibition of the fifth amendment to the United States constitution.

“ ‘We may find greater protection of individual rights under our state constitution than that provided by the federal constitution. It is well established that federal constitutional law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . Moreover, we have held that in the area of fundamental civil liberties . . . our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law. . . . Recognizing that our state constitution is an instrument of progress ... is intended to stand for a great length of time and should not be interpreted too narrowly or too literally ... we have concluded in several cases that the state constitution provides broader protection of individual rights than does the federal constitution.’ (Citations omitted; internal quotation marks omitted.) State v. Miller, 227 Conn. 363, 379-80, 630 A.2d 1315 (1993).” State v. Ross, 230 Conn. 183, 247-48, 646 A.2d 1318 (1994).

When analyzing whether the state constitution affords more protection for individual rights than the federal constitution, our Supreme Court has identified six factors to be considered: “(1) the text of the constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of our constitutional forebears; and (6) contemporary understandings of applicable economic and sociological norms. State v. Geisler, [supra, 222 Conn. 684-86].” State v. Ross, supra, 230 Conn. 249.

There is no textual ban on double jeopardy in the Connecticut constitution; instead the state constitutional prohibition on double jeopardy is implied through the due process provisions of article first, §§ 8 and 9. State v. Lonergan, supra, 16 Conn. App. 363-64. It follows that there is no textual or historical reason for interpreting our own constitutional double jeopardy bar differently from the federal constitutional bar. Furthermore, when a federal double jeopardy claim is raised in the course of a single prosecution, most federal and state courts, including Connecticut courts, address the claim under the federal constitution through straightforward application of the Blockburger rule. See, e.g., State v. McCall, supra, 187 Conn. 89-90; State v. Ortiz, supra, 15 Conn. App. 751.

The defendant argues that two of our sister states, Louisiana and Michigan, have departed from the Block-burger rule in cases involving single prosecutions, and urges us to adopt similar reasoning. We decline to do so, as we do not find this precedent persuasive.

Although Louisiana has adopted the same evidence test in determining whether two crimes are the same for purposes of double jeopardy, the Blockburger test has not been abandoned. Instead, the Louisiana Supreme Court “has recognized two different standards” and although that court has “principally relied on the ‘same evidence’ test when evaluating double jeopardy claims” they have not forsworn reliance on the Blockburger test. State v. Miller, 571 So. 2d 603, 606 (La. 1990); see also State v. Willis, 591 So. 2d 365, 372 (La. App.), cert. denied, 594 So. 2d 1316 (La. 1992) (holding both Blockburger test and same evidence test compel finding that two crimes are same for double jeopardy purposes).

Michigan is the only state that has truly abandoned the Blockburger test for determining when punishments for violations of two different statutes imposed in a single prosecution constitute double jeopardy. In People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984), the Michigan Supreme Court explained that because Blockburger was merely a test for statutory construction, not a principle of constitutional law, it was within that court’s power to abandon that test. In Robideau, Michigan courts were instructed to engage in a case-by-case analysis, without reference to Blockburger, of whether the legislature intended the statutes at issue to prohibit conduct violative of distinct social norms. Id., 484-86. The Michigan Supreme Court further held that “[wjhere two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments.” Id., 487.

Prior holdings of Connecticut courts support a finding that the implied double jeopardy clause of our own constitution is coextensive with that found in the federal constitution. “Our Supreme Court has repeatedly held that, as a general rule, ‘the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations.’ State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982); Caldor’s Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 343 (1977).” State v. Leroux, 18 Conn. App. 223, 229-30, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989). Furthermore, this court has noted that in an independent analysis of a state constitutional provision, departure from federal constitutional precedent is usually justified only “where the United States Supreme Court ‘has created exception to or deviated from rules previously enunciated by it . . . .’ ” State v. Miller, 29 Conn. App. 207, 222-23, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993), quoting State v. DeFusco, 27 Conn. App. 248, 256, 606 A.2d 1 (1992), aff'd, 224 Conn. 627, 620 A.2d 746 (1993). When we find that our citizens have relied on an understanding of their constitutional rights that is more expansive than that afforded under a recent interpretation of the federal constitution by the United States Supreme Court, we will be inclined to interpret our state constitution as affording greater protection to preserve those rights. See, e.g., State v. Oquendo, 223 Conn. 635, 646-52, 613 A.2d 1300 (1992). Otherwise, we will continue to follow the persuasive analysis of the United States Supreme Court. State v. Miller, supra, 222-23.

The Blockburger rule had its genesis in Gavieres v. United States, 220 U.S. 338, 31 S. Ct. 421, 55 L. Ed. 489 (1911). Over the last fifty years, it has consistently been applied by Connecticut courts in analyzing double jeopardy claims arising from multiple convictions and punishments imposed in a single trial. See, e.g., State v. McCall, supra, 187 Conn. 89-90; State v. Ortiz, supra, 15 Conn. App. 751. Connecticut’s citizens have no realistic expectation that they will have these double jeopardy claims scrutinized by a test that is more protective than the Blockburger test. Therefore, we decline the defendant’s invitation to find that our state constitution affords any greater due process rights than those afforded under the federal constitution’s double jeopardy clause.

IV

The defendant’s final contention is that the trial court improperly instructed the jury on an alternative means of committing interference with an officer that was not supported by the evidence. Again, this claim was not preserved at trial and the defendant claims review under the constitutional bypass doctrine of Evans-Golding. State v. Golding, supra, 213 Conn. 239-40; State v. Evans, supra, 165 Conn. 70. As the record is adequate to review the alleged claim of error, and because the claim implicates the defendant’s fundamental right to be convicted only on proof beyond a reasonable doubt, we will review this claim. See State v. Allen, 216 Conn. 367, 388, 579 A.2d 1066 (1990); State v. John, 210 Conn. 652, 687, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

General Statutes § 53a-167a (a) provides: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.” The information charged the defendant in one count with interfering with Atkins, and in a second count with interfering with Henderson and Sheffield.

The instruction given by the trial court, in connection with each count of interfering, explained: “Now, a person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer in the performance of his duties. . . . There are two essential elements of the crime of interfering with an officer — that the defendant obstructed, resisted, hindered or endangered a peace officer and that the conduct of the defendant occurred while the peace officer was in the performance of his duties.

“With respect to the first element, there are four words describing the ways interference may be committed. Obstructs means to interpose obstacles or impediments, to hinder, to impede or, in any manner, intrude or prevent. This word, in its definition, does not necessarily imply the employment of direct force or the exercise of any direct means. Resists means to oppose by direct active force or quasi-forcible means. Hinders means to make slow or difficult the progress of, it means to hold back, delay, impede or prevent action and endangers means to expose to danger or harm.”

The defendant argues that because the charge to the jury assigns each word in § 53a-167a a distinct meaning, these four words necessarily represent four distinct ways that the crime of interfering with an officer can be committed. The defendant claims that because there was no evidence that he had in fact “resisted” either Atkins or Henderson and Sheffield, pursuant to the definition propounded by the trial court, he could have been improperly convicted for having committed interference by resisting.

“General Statutes § 53a-167a . . . defines ‘interfering’ to include obstruction, resistance, hindrance or endangerment.” (Emphasis added.) State v. Biller, 5 Conn. App. 616, 621, 501 A.2d 1218 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146, cert. denied, 478 U.S. 1005, 106 S. Ct. 3296, 92 L. Ed. 2d 711 (1986). “By using those words it is apparent that the legislature intended to prohibit any act which would amount to meddling in or hampering the activities of the police in the performance of their duties.” (Emphasis added; internal quotation marks omitted.) State v. Beckenbach, 1 Conn. App. 669, 679, 476 A.2d 591 (1984), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985). We have previously held that “[t]he purpose of the statute, which had its origin in the common law, is to enforce orderly behavior in the important mission of preserving the peace; and any act that is intended to thwart that purpose is violative of the statute.” (Internal quotation marks omitted.) Id. Today, we further clarify the interpretation of § 53a-167a by explicitly holding that the four means of interfering listed in that statute are not conceptually distinct, and do not constitute disjunctive methods by which interfering with an officer can be committed.

This analysis of § 53a-167a is supported by our Supreme Court’s holding in State v. Smith, 212 Conn. 593, 563 A.2d 671 (1989). In Smith, our Supreme Court rejected an argument that the statutory alternatives listed in § 53a-8 were each distinct methods of being an accessory to a crime. The trial court in Smith had instructed that the defendant could be convicted as an accessory if he “ ‘solicited or requested or commanded or importuned or intentionally aided another person in the commission of a murder.’ ” Id., 602. The trial court went on to define these terms as follows: “[solicit means] to ask earnestly; [request means] to ask for or express a desire for; [command means] to order or direct; [importune means] to command, urge, or incite; and [aid means] to assist, help or support.” (Internal quotation marks omitted.) Id., 606. Our Supreme Court explained that “[i]t is clear from these definitions that the alternative bases of liability under § 53a-8 are practically indistinguishable. They represent slightly different characterizations that can be given the defendant’s particular conduct, all of which make a defendant an accessory to a crime.” Id., 606-607.

Although the issue in Smith was whether an instruction should be given requiring the jury to decide unanimously under which alternative the defendant was liable should be given, the analysis is equally applicable in determining whether the statutory alternatives are a disjunctive means of committing a crime or merely descriptive of possible ways that a single crime might be committed. In this case, the definitions in the trial court’s charge to the jury demonstrate that “obstructs,” “hinders,” “resists” and “endangers” are nothing more than slightly different characterizations of “interference.” We hold that these slightly different characterizations do not rise to the level of being conceptually distinct bases of liability under § 53a-167a. The defendant’s claim that the trial court improperly instructed on a statutory alternative that was not supported by the evidence is, therefore, without merit.

The judgment is affirmed.

In this opinion Heiman, J., concurred.

Hennessy, J.,

dissenting. I concur with parts III and IV of the majority opinion. I write separately because I disagree with part I A, where the majority holds that there was sufficient evidence for the jury to convict the defendant of escape from custody in violation of General Statutes § SZa-Yll.*

The majority holds that “custody” as defined in General Statutes § 53a-168 (2), which is a prerequisite to escape from custody as defined by § 53a-171, is accomplished by a police officer’s pointing a gun at a suspect and telling the suspect that he is under arrest. The majority reaches its holding by explaining that “[t]he defendant should reasonably have understood that he was not free to leave because he was under arrest when Atkins, a policeman in uniform, pointed his service revolver at him and said ‘freeze’ and ‘you are under arrest.’ ” I do not agree.

It is settled law that if a reasonable person would not feel free to leave, the suspect is “in custody” so as to trigger the right to receive Miranda warnings prior to police interrogation. See State v. Rasmussen, 225 Conn. 55, 76, 621 A.2d 728 (1993); State v. Pittman, 209 Conn. 596, 608, 553 A.2d 155 (1989). An arrest is not necessary for a person to be “in custody” for purposes of custodial interrogation. State v. Rasmussen, supra, 76; State v. Pittman, supra, 608. I disagree with the majority’s incorporation of the custodial interrogation language in the definition of “custody” for purposes of escape from custody for the following reasons.

First, “custody” in the context of escape is qualitatively different from “custody” in the context of police interrogation. The judicial implementation of an expansive concept of what it means to be “in custody” for purposes of custodial interrogation reflects the importance of the constitutional right not to incriminate oneself through coerced statements. See State v. Hoeplinger, 206 Conn. 278, 286, 537 A.2d 1010 (1988). In contrast, defining custody for purposes of escape from custody requires the interpretation of a penal statute that should be strictly construed in favor of the accused. State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989).

Second, the legislative definition of “custody” in § 53a-168 makes it clear that an arrest is always prerequisite to the crime of escape from custody as defined in § 53a-171. “ ‘Custody’ means restraint by a public servant pursuant to an arrest . . . .” (Emphasis added.) General Statutes § 53a-168 (2). To hold that custody as defined by § 53a-168 can occur without an arrest contradicts the plain language of the statute. See Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987); Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn. 341, 347, 170 A.2d 883 (1961). Thus, for purposes of escape from custody, I do not agree with the majority’s use of the standard that custody exists whenever a reasonable person would not feel free to leave.

The testimony of Atkins at trial was that when he arrived on the third floor porch at 46-50 Wordin Avenue, the defendant had both legs over the porch railing. Atkins then told the defendant he was under arrest and reholstered his weapon. At this point, Atkins attempted to grab the defendant, but he succeeded in grabbing only the hood of the defendant’s sweatshirt. The defendant then jumped from the third floor porch, causing the hood to rip off of his sweatshirt, and he successfully evaded the police. From these facts, it is clear that Atkins attempted to arrest the defendant, but that the arrest was never completed. Therefore, escape from custody could not occur.

When the plain language of a statute is unambiguous, we do not look further in ascertaining its meaning. University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). To the extent that the language of §§ 53a-168 and 53a-171 can be viewed as ambiguous, it is appropriate to look at the history of these statutes to determine their meaning. Nationwide Mutual Ins. Co. v. Pasion, 219 Conn. 764, 768, 594 A.2d 468 (1991). These statutes were adopted in their present form as part of the revision of the Connecticut penal code in 1969. There was no discussion in the legislature as to the enactment of the escape statutes, even though this was the first time flight from arrest had been criminalized as escape from custody. In drafting the Connecticut penal code, however, our legislature “ ‘relied heavily upon the Model Penal Code and various state criminal codes, especially the penal code of New York. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1969 Sess., p. 11.’ State v. Hill, 201 Conn. 505, 517, 523 A.2d 1252 (1986). Thus, [in the absence of legislative history] we may turn to the parallel statutory provisions set forth in the Model Penal Code and the New York Revised Penal Law, effective September 1,1967, for guidance. State v. Hill, supra, 516-17; In re Juvenile Appeal (Docket No. 9268), 184 Conn. 157, 163-64 nn. 8-9, 439 A.2d 958 (1981).” State v. Havican, 213 Conn. 593, 601, 569 A.2d 1089 (1990).

New York’s escape statutes parallel the law in Connecticut by providing that “[a] person is guilty of escape . . . when he escapes from custody” and that “ ‘[c]ustody’ means restraint by a public servant pursuant to an authorized arrest . . . .” N.Y. Penal Law §§ 205.00 and 205.05 (McKinney 1984). Applying this statutory scheme, the Fourth Appellate Division of the New York Supreme Court held that when a police officer approached the defendant and told him he was under arrest, and the police officer grabbed at the defendant, but the defendant avoided the officer’s grasp and fled from the area, no escape had taken place. People v. Caffey, 134 App. Div. 2d 923, 521 N.Y.S.2d 937, cert. denied, 70 N.Y.2d 930, 524 N.Y.S.2d 681 (1987). The Caffey court held that “escape involves conduct occurring after a person has been arrested” and is to be distinguished from “the crime of resisting arrest [which] involves conduct occurring at the time of the arrest itself.” (Emphasis added.) Id., citing People v. Becoats, 88 App. Div. 2d 766, 451 N.Y.S.2d 497 (1982). In Caffey, as in the present case, “[defendant's conduct in avoiding the officer’s grasp occurred at the time of arrest and defendant was not sufficiently restrained to have been in custody.” People v. Caffey, supra, 923.

I believe, in this case, that without restraint of the defendant by Atkins, there was no arrest, and no custody for the purpose of the escape from custody statute. As the defendant’s flight was from an attempted arrest and not from “restraint pursuant to arrest,” it cannot result in a lawful conviction under § 53a-171. For this reason, I would remand the case to the trial court with direction to vacate the defendant’s conviction of escape from custody.

Accordingly, I respectfully dissent.

       General Statutes § 53a-62 provides in relevant part: “(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

       General Statutes § 29-35 provides in relevant part: “(a) No person shall carry any pistol or revolver upon his person, except where such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28.”

       General Statutes (Rev. to 1991) § 53a-217 provides in relevant part: “(a) A person is guilty of criminal possession of a pistol, revolver or electronic defense weapon when he possesses a pistol, revolver or electronic defense weapon and has been convicted of a capital felony, a class A felony, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196a, a class C felony, except a conviction under section 53a-87, 53a-152, 53a-153 or 53a-196b, or a felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. . . .”

       General Statutes § 53a-167a (a) provides: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       General Statutes § 53a-119b provides in relevant part: “(a) A person is guilty of using a motor vehicle without the owner’s permission when: (1) He operates or uses, or causes to be operated or used, any motor vehicle unless he has the consent of the owner . . . .”

       General Statutes § 53a-171 (a) provides: “A person is guilty of escape from custody if he escapes from custody.”

       We note that we do not have before us as an issue a determination of whether the defendant was “seized” within the meaning of the fourth amendment to the United States constitution and article first, §§'7 and 9, of the Connecticut constitution. See State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992); State v. Ostroski, 186 Conn. 287, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982).

       The defendant, in excepting to the court’s charge, never once questioned the arrest. In noting his exception to the court’s charge, defense counsel stated: “Thank you, Your Honor. And the other item again, in the escape from custody charge, we may have to, at one point, look at that only because it seems as though that when Officer Atkins arrested Mr. Laws it was for an outstanding robbery one and that’s not the requirement of the statute. Only that at the time of the commission of the offense there was already pending a charge known to him, so that when Atkins arrested him, he arrested him knowing that he already had a charge of robbery one but he didn’t arrest him for robbery one.”

       “For however strong the natural desire of liberty may be, yet every man is bound to submit himself to the restraints of the law.” State v. Doud, 7 Conn. 384, 387 (1829).

       General Statutes § 53a-171 (b) provides: “If a person has been arrested for, charged with or convicted of a felony, escape from such custody is a class C felony, otherwise, escape from custody is a class A misdemeanor.”

       See footnote 2.

       See footnote 3.

       Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . .
      Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       We note further, that neither the Louisiana nor Michigan Supreme Court suggests that it draws any distinction between the applicable test under the double jeopardy clause of its state constitution and the applicable test under the fifth amendment to the United States constitution. Thus, the departure from the Blockburger rule in Louisiana and Michigan applies in the analysis of both federal and state constitutional claims. See State v. Miller, 571 So. 2d 603 (La. 1990); People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984).

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

      I offer no opinion on parts IB, IC and II because my dissent from part I A makes it unnecessary to address those issues.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       This language is also used to define when a “seizure” has taken place for purposes of article first, § 7, of the Connecticut constitution. See State v. Oquendo, 223 Conn. 635, 653, 613 A.2d 1300 (1992) (“seizure” has taken place for purposes of article first, § 7, whenever “a reasonable person would have believed he was not free to leave”).

       Prior to the 1969 adoption of the penal code, crimes of escape encompassed only escape from a prison or jail, and escape while being transported to or from a prison or jail. See General Statutes (1963 Rev.) § 53-155 et seq.

       Our Supreme Court has previously turned to the criminal code of New York for guidance in defining “escape” as it is used in our General Statutes. State v. Lubus, 216 Conn. 402, 408, 581 A.2d 1045 (1990).

       Several of our other sister states have also held that words of arrest uttered by a peace officer are insufficient to effect an arrest or to impose custody for purposes of escape from custody. See Ex Parte McReynolds, 662 So. 2d 886, 888 (Ala. 1994); People v. Kosyla, 143 Ill. App. 3d 937, 951, 494 N.E.2d 945 (1986); State v. Daley, 411 A.2d 410, 412 (Me. 1980).

       I would not hold that actual restraint is the only means of effecting an arrest. I am inclined to favor the law of several of our sister states that an arrest occurs when the suspect is restrained or submits to the authority of the person making the arrest. See State v. Sanchez, 145 Ariz. 313, 315, 701 P.2d 571 (1985), citing Ariz. Rev. Stat. § 13-3881; People v. Kosyla, 143 Ill. App. 3d 937, 494 N.E.2d 945 (1986), citing Ill. Rev. Stat., e. 38, par. 107-5 (a) (1983); State v. Logan, 8 Kan. App. 2d 232, 233, 654 P.2d 492 (1982), citing Kan. Stat. Ann. § 22-2405 (1); State v. Daley, 411 A.2d 410, 412 (Me. 1980), citing State v. Powers, 386 A.2d 721, 727 (Me. 1978); State v. Nicholson, 839 S.W.2d 593, 597 (Mo. App. 1992), citing California v. Hodari D., 499 U.S. 621, 627-28, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991); People v. Caffey, supra, 134 App. Div. 2d 923. In this case the defendant’s refusal to submit to Atkins’ authority is evidenced by his remaining poised, with his legs over the porch railing, and ultimately jumping from the porch, despite Atkins’ words of arrest.

       I advance no opinion as to whether the defendant’s conduct in this case would have provided a sufficient basis for a conviction of resisting an officer pursuant to General Statutes § 53a-167a.