author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. SAMUEL SAEZ
    (AC 18069)
    Spear, Zarella and Healey, Js.
    Argued February 29
    officially released October 3, 2000

      Tracey M. Lane, with whom was Jon L. Schoenhom, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Samuel Saez, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). The defendant claims that the state’s attorney impermissibly bolstered the victim’s testimony during closing argument and impermissibly commented on the defendant’s election not to testify, thereby depriving him of a fair trial. He also claims that the trial court improperly instructed the jury on consciousness of guilt because there was no adequate foundation in the evidence for such a charge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, L, met the defendant in September or October, 1994, when she was fifteen years old. The defendant gave the victim and a friend a ride home from the Westfarms Mall. Approximately eight months later, on May 24, 1995, L encountered the defendant again. The defendant was driving a black Acura Vigor and the victim recognized him. They began a conversation and the victim asked the defendant for a ride. After stopping at a clothing store and a package store, the defendant drove to 52 Atwood Street in Hartford and parked in the back of an apartment building. The victim, although at first uncomfortable, agreed to go upstairs to an apartment with the defendant.

Once in the apartment, the defendant drank a beverage called Cisco. The victim took a sip, but she did not like it. At the defendant’s suggestion, the victim then tried on a new outfit that she had purchased at the clothing store. When she walked into the living room in the outfit, the defendant complimented her by saying that she looked nice. The victim then went back to the bathroom to change. The defendant tried to come into the bathroom with her, but she pushed him away and locked the door. After she changed her clothes, she opened the bathroom door and the defendant attempted to kiss her. Ultimately, the defendant engaged in forcible vaginal intercourse with the victim.

After the defendant finished the sexual assault, he and the victim returned to his car. He allowed the victim to drive. She parked the car in front of her house, went in and reported what had happened to her aunt. The victim’s aunt had her boyfriend attempt to block the defendant from leaving by placing his car in the street in a position that prevented the defendant from going forward. The defendant backed up the street and left the scene.

The defendant was subsequently arrested and convicted of sexual assault in the first degree. This appeal followed.

I

The defendant claims that the prosecutor improperly bolstered the victim’s credibility by telling the jury that, in his opinion, she was truthful. The following comments were made by the prosecutor during closing arguments: “Again, the demeanor on the stand. You saw her testify. . . . You listened to her answers. Not only the ones that I posed but the cross-examination questions of [defense counsel] posing questions to her. How did she answer those questions? Was she evasive? Did she say she’s unsure of things? She directly answered those questions and I suggest to you, if you look at her testimony, she was very forthright. She was asked a question, she would answer it. She would answer it however it is and not pull any punches. I think that’s an issue of credibility. She’s not sitting there fabricating, thinking and contemplating and coming up with answers and being hesitant in doing that.

;{C i{C

“If you look at those circumstances I think you can find that she acted reasonably in what we would consider to be an appropriate course of action and I think that’s what makes her credible. . . .

^ % ífc

“I mean, when people make up stories don’t they use the best evidence. They’re self-serving statements. They don’t tell you things that make you doubt their credibility or question their credibility, do they? And I think that that’s what makes it more credible is that she does tell you those things because they [happened]. ... I think if you look at that, I mean, this is not a John Grisham novel. You know, is this the stoiy, did she create this, create all these details, somehow, someway? I don’t think so. I think if you examine it, you’ll find it’s not the case. I think what you’re going to find is this is a young girl who put herself in harm’s way. . . .

JjC

“She has no motive to lie to you and make this story up. She’s told you everything from the get go about what she did and why. Plain out. Same way I speak.”

The defendant failed to object to these remarks at trial but seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Our Supreme Court has previously “acknowledged that prosecutorial misconduct can occur in the course of closing argument. State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996). Furthermore, it is improper for a prosecutor to express his or her own opinion, either directly or indirectly, as to the credibility of witnesses. State v. Hammond, 221 Conn. 264, 289, 604 A.2d 793 (1992); State v. Williams, 204 Conn. 523, 541, 529 A.2d 653 (1987). It is well settled, however, that a defendant may not prevail under Golding . . . unless the prosecu-torial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial .... Finally, we must review the challenged comments in the context of the entire trial, with due regard to the extent to which the objectionable remarks were invited by defense conduct or argument. State v. Williams, 231 Conn. 235, 246-47, 645 A.2d 999 (1994); State v. Richardson, 214 Conn. 752, 759-60, 574 A.2d 182 (1990).” (Internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 564-65, 710 A.2d 1348 (1998).

We must determine whether the claimed remarks were improper. None of the challenged remarks improperly bolstered the victim’s credibility because the prosecutor was commenting on the evidence and reasonable references as to credibility that the jury could draw from the evidence. The prosecutor noted that the victim was forthright, direct and unhesitant in answering questions. He also argued that she was credible because she told things that were not self-serving and had indeed put herself in harm’s way. In each instance where the prosecutor used the phrase “I think,” he was discussing evidence that supported the victim’s credibility. This claim, therefore, is clearly without merit.

II

The defendant’s second claim of improper argument is that the prosecutor commented on the defendant’s failure to testify. The defendant asserts that the prosecutor’s statement, “We don’t know what’s in his mind,” was an improper comment on the defendant’s failure to testify. The defendant failed to raise any objection to the statement at trial and now seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40.

We have held that a claim that a prosecutor improperly commented on a defendant’s failure to testify does qualify for Golding review. The state does not dispute that the claim here is of constitutional magnitude alleging the violation of a fundamental constitutional right and that the record is adequate for appellate review. “Appellate review of similar belated claims of prosecutorial comment on a criminal defendant’s failure to testify has frequently been granted. State v. Marra, 222 Conn. 506, 533, 610 A.2d 1113 (1992); State v. Walker, 206 Conn. 300, 306-307, 537 A.2d 1021 (1988); State v. Magnotti, 198 Conn. 209, 215, 502 A.2d 404 (1985); State v. Evans, 165 Conn. 61, 70-71, 327 A.2d 576 (1973).” State v. Johnson, 44 Conn. App. 125, 132, 688 A.2d 867 (1997). Although the claim is reviewable, we conclude that it founders on the third prong of Golding in that there was no violation of the defendant’s constitutional rights that infringed on his right to a fair trial.

The prosecuting attorney is not allowed to comment on the defendant’s failure to testify because to do so would violate the fifth amendment to the United States constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965). We disagree with the defendant’s claim that there was such an improper comment here. With respect to this claim, we apply the following test: “Was the language used manifestly intended to be, or was it of such character that the juiy would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Internal quotation marks omitted.) State v. Lemon, 248 Conn. 652, 659, 731 A.2d 271 (1999).

First, we must set the context for the prosecutor’s statement. The defense in this case was that the victim consented to the sexual intercourse, and defense counsel argued to the jury as follows: “People are tempted with sexual temptations from time to time, lawful, consensual sexual temptations, both men and women. It’s our contention that he perhaps fell victim to this, that he weakened, that he cheated on the woman that bore him a child and who he’s had this long relationship with. Not an angel but that does not make him a rapist.” Responding to this argument, the prosecutor argued as follows: “[Defense counsel] tells you a lot of things that are in the defendant’s mind to suggest that this is what happened or he gave into temptation or he weakened, things like that, that that’s in his mind. Well, we don’t know what’s in his mind.” This comment is not attacked by the defendant as being improper. The prosecutor went on to argue that “You don’t have any evidence of what was in his mind. You can’t draw inferences. He’s asking you to speculate by looking at what happened and say, well, this is what he could have been doing.”

Continuing his argument that defense counsel was asking the jury to speculate on the motives of the parties, the prosecutor argued: “Now, you know, [defense counsel] wants to speculate and say, well, you know how or what sixteen year old girls might do and stuff. Well, what might twenty-three year old boys do? Get a girl back to their room. I mean, he’s suggesting that while boys are trained to do this. Maybe they are, maybe they aren’t. I don’t know. It depends on the kid, I suppose. We can’t generalize. We don’t have that information. We don’t know what’s in his mind. We know what’s in her mind. She was not going to do that but she lost control of that situation. He became the boss. He was empowered. He controlled her actions and her movements.” The defendant challenges that portion of the prosecutor’s remarks that we have emphasized.

It is clear from the context of the prosecutor’s argument that he was rebutting the defendant’s invitation to the jury to speculate that the defendant succumbed to temptation and engaged in consensual sexual relations with the victim without any evidence that that was in fact the case. As the state correctly points out, this argument was a refutation of the defendant’s claim of consent and did not lead the jury naturally and necessarily to conclude that the prosecutor was commenting on the defendant’s failure to testify. It was perfectly appropriate for the prosecutor to argue that there was no evidence to support the claimed defense. See State v. Satchwell, supra, 244 Conn. 565.

Ill

The defendant’s final claim is that the court improperly gave a consciousness of guilt instruction. The first prong of this three part claim is that the charge was improper because the defendant lied the scene out of fear for his physical safety. This claim was not made at trial, and, therefore, we decline to review it. We are not required to review a claim that was not distinctly raised at trial. See Practice Book § 60-5; Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000). This claim also does not qualify for Golding or plain error review.

Next, the defendant claims that the evidence was insufficient to support a consciousness of guilt instruction because the evidence merely showed that he left the scene. We disagree.

The defendant left the scene after the victim’s aunt told him that she knew about the rape. He struck the car of the aunt’s boyfriend and backed down the street a considerable distance to get away. We have held that “all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” (Internal quotation marks omitted.) State v. Cox, 50 Conn. App. 175, 186, 718 A.2d 60 (1998), aff'd 251 Conn. 54, 738 A.2d 652 (1999).

The defendant finally claims that the court surprised him with the flight instruction. He asserts that this surprise made the instruction an abuse of the court’s discretion. In support of his claim, the defendant asserts that a request for a consciousness of guilt instruction must be made before a defendant rests so that the defendant has an opportunity to explain the flight.

Practice Book § 16-22, which governs the timing of the filing of requests to charge, provides in relevant part: “Written requests to charge the jury . . . must be filed . . . before the beginning of [closing] arguments or at such an earlier time as the judicial authority directs . . . .” The defendant does not claim that the state’s request was made after closing arguments began or in violation of any court order directing the state to file its requests to charge. He cites no authority for the proposition that a request to charge on consciousness of guilt must be filed before the defendant rests his case. He, therefore, cannot prevail on this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims that the court improperly refused to give a missing witness instruction at his request. Our Supreme Court abandoned the missing witness rule in criminal cases in State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). This court has decided that Malave applies retroactively. See State v. Quinones, 56 Conn. App. 529, 533, 745 A.2d 191 (2000).

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of conslitutional 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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The court instructed the jury as follows: “Now, flight when unexplained tends to prove consciousness of guilt. The flight of a person accused of a crime is a circumstance which, when considered together with all the facts of the case, may justify a finding of the defendant’s guilt. However, flight, if shown, is not conclusive. It is to be given the weight to which you the jury think it’s entitled to under the circumstances. In this case, the state has presented evidence through the testimony of [M] that after being told by her niece that the defendant had raped her and was sitting in the car, she approached the defendant to engage him in conversation until the police arrived. The defendant inquired whether [L] was coming out. [M] replied, ‘No, I know what you did to her.’ The defendant replied, T don’t know what you’re talking about.’ [M] then stated, ‘You raped her.’ The defendant denied doing so and backed his car all the way down the street.”


source: Caselaw Access Project

author: ZARELLA, J.

license: Public Domain

text:
    A & F CONSTRUCTION COMPANY, INC. v. ZONING BOARD OF APPEALS OF THE CITY OF WEST HAVEN ET AL.
    (AC 19387)
    Mihalakos, Zarella and Dupont, Js.
    Argued April 24
    officially released October 3, 2000

      Leonard A. Fasano, for the appellant (plaintiff).

      Brian G. Enright, for the appellee (named defendant).
   Opinion

ZARELLA, J.

The plaintiff, A & F Construction Company, Inc., appeals from the judgment of the trial court dismissing its appeal of the denial of its variance application by the defendant zoning board of appeals of the city of West Haven (board). On appeal, the plaintiff claims that the trial court improperly (1) refused to find that the lot was irrevocably committed to a use as a residential lot prior to the adoption of the zoning regulations in 1995, (2) applied the doctrine of merger and (3) failed to find that the denial of the variance amounted to a confiscation in violation of the Connecticut constitution. We affirm the judgment of the trial court.

The following facts and procedural history are necessary to the disposition of this appeal. The plaintiff is the owner of an unimproved lot in West Haven. On July 14, 1997, the plaintiff applied for variances to build a single-family house on the lot. In 1995, West Haven adopted zoning regulations that required a minimum lot size of 8000 square feet in an R-2 residential zone. Additionally, the regulations required ten foot side yards and minimum frontage of sixty feet.

The lot that was the subject of the variance request was 4000 square feet and had forty feet of frontage. The plaintiff sought a variance to the side yard requirements to permit side yards of five feet and eight feet. Additionally, the application sought a variance to the frontage and lot size requirements.

At the board hearing, Fr ank Furmento, president of the plaintiff company, testified that the lot was purchased in early 1996 and that the plaintiff realized that the lot would need a variance. At the variance hearing, the plaintiff presented an assessor’s map that showed the property as a separate lot. Additionally, Furmento testified that the plaintiff paid taxes to the town as a building lot.

The board denied the application. The plaintiff appealed in a timely fashion to the trial court which, after finding that the plaintiff was an aggrieved party, dismissed the appeal.

I

The plaintiff claims first that the court improperly found that the lot was subject to the 1995 zoning regulations. The plaintiff claims that the vacant lot located in a residential zone was irrevocably committed to residential development so as to qualify it as a preexisting use and not subject to subsequently enacted zoning regulations. We disagree.

The defendant argues that General Statutes § 8-2 protects preexisting nonconforming uses from subsequently enacted zoning regulations if the property is irrevocably committed to this use. The plaintiff claims that it demonstrated that the parcel was irrevocably committed to use as a single-family dwelling.

The burden is on the plaintiff to demonstrate that the lot was a preexisting nonconforming use, or that it was irrevocably committed to the particular use when West Haven adopted its zoning regulations in 1995. “A non-conforming use is merely an existing use the continuance of which is authorized by the zoning regulations. . . . Such a use is permitted because its existence predates the adoption of the zoning regulations. ... It is well established that [t]o be a nonconforming use the use must be actual. It is not enough that it be a contemplated use [or] that the property was bought for the particular use. The property must be so utilized as to be irrevocably committed to that use. . . . The plaintiff bears the burden of proving the existence of a nonconforming use.” (Citations omitted; internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 789, 639 A.2d 519 (1994).

The parties agree that the property was a vacant lot when the zoning regulations were adopted in 1995 and when the plaintiff purchased the lot in 1996. The fact that, prior to the enactment of the 1995 zoning regulations, the proposed development of the lot may have been lawful or that when the lot was purchased, development was contemplated fails to demonstrate the existence of a nonconforming use. See id., 789-90. The court, therefore, properly concluded that the plaintiff failed to demonstrate the existence of a nonconforming use. Nor can the plaintiff successfully argue that the lot was irrevocably committed to a particular use prior to the adoption of the zoning regulations in 1995 and, therefore, that it is afforded protection under § 8-2. “[T]o be irrevocably committed to a particular use, there must have been a significant amount of preliminary or preparatory work done on the property prior to the enactment of the zoning regulations which unequivocally indicates that the property was going to be used for that particular purpose. ” Karls v. Alexandra Realty Corp., 179 Conn. 390, 399, 426 A.2d 784 (1980). No such evidence was offered at the administrative hearing.

Alternatively, the plaintiff requests that this court create a “good faith extension of the law” to require the zoning board of appeals to grant a variance that would allow the plaintiff to make use of the parcel in the most “minimally intrusive use available in that zone.” The law is well established in Connecticut that variances can be granted by boards only when an unusual hardship or difficulty would result by applying the zoning ordinances to a specific parcel of land. General Statutes § 8-6. Further, § 8-6 does not allow for the granting of a variance where it is inconsistent with the intent of the ordinance or adversely affects the public health, safety or welfare. It is not the function of this court to adopt an extension of the law that is contrary to long-standing Supreme Court precedent.

We therefore conclude that the court did not improperly find that the 1995 zoning regulations applied to the lot.

II

The plaintiff next claims that the court improperly applied the merger doctrine. We disagree.

The trial court commented that “although you cannot require a merger . . . value exists in both subject parcel and an adjoining parcel which would be enhanced by sale of the subject property to the adjoining owner or vice versa.” The court merely referred to the merger doctrine in its memorandum of decision because it was a topic of discussion at the zoning hearing and in noting the similarity of the facts in Grillo v. Zoning Board of Appeals, 206 Conn. 362, 537 A.2d 1030 (1988), to the facts of the present matter.

Neither the court nor the board applied the merger doctrine or relied on it in dismissing the appeal. We therefore conclude that the plaintiffs claim is without merit.

Ill

The plaintiffs final claim is that the court failed to find that the denial of the variance amounted to a taking within the meaning of article first, § 11, of the Connecticut constitution. We disagree.

Our Supreme Court has held that a taking occurs “by a substantial interference with private property which destroys or nullifies its value or by which the owner’s right to its use or enjoyment is in a substantial degree abridged or destroyed.” Textron, Inc. v. Wood, 167 Conn. 334, 346, 355 A.2d 307 (1974); see Tamm v. Burns, 222 Conn. 280, 284, 610 A.2d 590 (1992).

“The plaintiff may prevail on his claim of a constitutional deprivation if the board’s denial of the variance constituted a taking, either as a practical confiscation of his property or by application of a balancing test. ... As we have recently reiterated, however, the plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination. ... To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Francini v. Zoning Board of Appeals, supra, 228 Conn. 792.

We are not persuaded that the board’s denial of the plaintiffs application for a variance to build a single-family residence mies out any reasonable use of his property. The board concluded only that construction of a dwelling with variances for lot size, frontage requirements and side yard requirements would not be in harmony with the general intent of the ordinances. The plaintiff has not sustained its burden of proof, however, that the board will not allow any reasonable use of its property.

We conclude, therefore, that the denial of the variance did not constitute a taking within the meaning of article first, § 11, of the Connecticut constitution.

The judgment is affirmed.

In this opinion the other judges concurred.

       We granted the plaintiffs petition for certification to appeal.

       General Statutes § 8-6 (a) provides: ‘'The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; (2) to hear and decide all matters including special exceptions and special exemptions under section 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration lor conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.”

       At the hearing, the following colloquy occurred:
      “[Jim Hill, Planning and Development Commissioner]: You have a series of 40 [foot] lots. You understood in the regulations at the time acquired which are the current regulations that we’re under and you’re familiar with those regulations as you have done business in this city for a number of years. You merged . . . those 40 [foot] lots and one 57 [foot] lot to create lots that would conform to the regulations. You did that both as a partner in [the plaintiff company] and as an individual owner. You conveyed the 57 [foot] lot to [the plaintiff] so that the merge could happen and a conforming lot could be created. Correct? Where the same ownership situation, hypothetically speaking, well not hypothetically, but it’s the same situation, [the plaintiff] owns [lot] 243 and you own [lot] 242. Was there ever any consideration to doing with [lot] 242 and [lot] 243 what you did on Grove Place with the 57 [foot] lot and the 40 [foot] lots?
      “[Plaintiffs Counsel]: Mr. Hill, if I may, whether there is or is not and I’ll answer correctly and there is not, it is relatively irrelevant. If I own a piece of property with my wife and myself and I own a piece of property next door, and both are nonconforming . . . the law is that you have to combine nonconforming lots on the same title. They do not merge under any way, shape or form. They’re just based upon that.
      “[Mr. Hill]: Point well taken, I’m asking these questions for the education of the board who may not be familiar with what went on because the issue was before the planning commission not before the [board].”

       Article first, § 11, of the Connecticut constitution provides: “The property of no person shall be taken for public use, without just compensation therefor.”

       Furthermore, the court found that the lot had some value. No evidence was presented by the plaintiff to demonstrate that the cost of the lot to the plaintiff did not reflect the reduced value occasioned by the adoption of the 1995 zoning regulations.


text:
    MICHAEL W. RICHTER v. DANBURY HOSPITAL ET AL.
    (AC 19090)
    Hennessy, Zarella and Peters, Js.
    Argued May 3
    officially released October 3, 2000

      Thomas M. Cassone, with whom, on the brief, was Lawrence M. Lapine, for the appellant (plaintiff).

      Michael N. LáVelle, for the appellee (named defendant).
   Opinion

ZARELLA, J.

The plaintiff, Michael W. Richter, appeals from the judgment of the trial court rendered following the granting of the motion for summary judgment filed by the defendant Danbury Hospital (hospital). On appeal, the plaintiff claims that the court, in granting the motion as to the fifth and seventh counts of the fifth amended complaint, improperly concluded that a genuine issue of material fact does not exist. We reverse in part the judgment of the trial court.

The record reveals the following undisputed facts. The defendant William B. Goldstein has maintained a contractual relationship with the hospital since 1968. Under the terms of the contract, Goldstein agreed to become the chief of radiological services and the director of the radiological department of the hospital. The contract charged Goldstein with the responsibility for the selection of all department of radiology personnel, including medical, technical, secretarial and nontechnical personnel. It provided that the technical, nontechnical and secretarial personnel would be employees of the hospital. The contract stated that Goldstein and his associates “shall be and at all times are acting and performing as independent contractors as physicians practicing their profession of medicine and specializing in radiological diagnosis and treatment.” Further, the contract provides that Goldstein “may enter into a separate contract with each of your associate radiologists and may pay them directly. In each case you will fully inform the Administrator of the arrangements that you have made with each associate.” The contract also provided that Goldstein operate the department in accordance with the ethical and professional standards of the American Medical Association and the American College of Radiology. There was no specific provision in the contract indicating that the contract was exclusive.

The plaintiff is a duly licensed physician and a board certified radiologist. In May, 1973, Goldstein, on behalf of the defendant Danbury Radiological Associates, P.C. (Radiological Associates), entered into an employment contract with the plaintiff. In conjunction with and as a requirement of his employment with Radiological Associates, the plaintiff applied to the hospital for appointment to its medical staff and for privileges.

After completing the application process, the plaintiff was appointed to the medical staff and granted “in-house” privileges at the hospital. As part of the application process, the plaintiff acknowledged that he had “received and read the Medical Staff and Hospital Bylaws, and Rules and Regulations, and agreed to be bound by them if granted membership.”

On July 9,1991, the board of directors of Radiological Associates voted to terminate the plaintiffs employment with Radiological Associates “without cause.” It is undisputed that the plaintiffs termination was not on the basis of professional competence. In accordance with the terms of his contract with Radiological Associates, the plaintiff was given a ninety day notice of termination. The plaintiff sought a meeting with the president of the hospital, Gerard D. Robilotti, and was advised that because Robilotti construed the hospital’s contract with Goldstein to be exclusive, the hospital would be unable to develop a separate relationship with the plaintiff.

On August 9, 1991, the plaintiff, through his counsel, advised the hospital that the impairment of his privileges without a hearing was a violation of the hospital’s bylaws. No response was forthcoming. On August 21, 1991, Goldstein ordered the plaintiff to leave the hospital and told him not to return. This was within the ninety day notice of termination period under the Radiological Associates employment contract.

On September 3, 1992, the plaintiff submitted his biennial request for “in-house” privileges to the hospital. This was the same category of privileges that he had maintained for the previous eighteen years when he was employed by Radiological Associates. Goldstein, as chairman of the department of radiology, recommended to the executive committee that the plaintiff be granted “private office” privileges. The executive committee approved the recommendation on October 20, 1992. The executive committee’s recommendation was forwarded to the hospital’s board of directors, which failed to take any action.

An action was commenced by the plaintiff in eight counts. Counts four, five and seven are directed against the hospital. Count four alleges that the hospital engaged in unfair and deceptive practices in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Count five alleges that the hospital breached its contract with the plaintiff by not allowing him to exercise the privileges granted to him to use the facilities and equipment. Count seven alleges that the hospital breached its contract with the plaintiff when it failed to grant him a hearing on his termination or reduction in privileges as provided for under the fair hearing plan provisions of the bylaws. The hospital filed a motion for summary judgment, which was opposed by the plaintiff. After oral argument, the court in a written memorandum of decision granted the hospital’s motion as to counts four, five and seven. The plaintiff claims that the court improperly granted the motion with respect to counts five and seven because issues of material fact exist.

“The standard of review of a trial court’s decision to grant summary judgment is well established. [W]e 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.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).” (Internal quotation marks omitted.) Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 792, 749 A.2d 1144 (2000).

On appeal, the scope of our review of the granting of a motion for summary judgment is plenary. Doucette v. Pomes, 247 Conn. 442, 453, 724 A.2d 481 (1999). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.” D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . .” (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).

We conclude that the hospital has failed to sustain its burden of demonstrating that there are no material facts in dispute and that it is entitled to judgment as a matter of law. We begin by reviewing the bylaws of the hospital in light of the claims made by the parties. In count five of the fifth amended complaint, the plaintiff claims that he entered into a contractual arrangement with the hospital whereby he agreed to abide by the bylaws and rules and regulations of the hospital, and that the hospital agreed to allow the plaintiff the use of the hospital facilities. He further alleges that he was denied access to those facilities in breach of the agreement. The plaintiff alleges in count seven that the hospital breached the agreement when it failed to afford him a hearing under the fair hearing plan. The hospital counters by claiming that the granting of privileges does not create a contract between the hospital and the plaintiff and, therefore, absent a contract there can be no breach. Further, the hospital argues that if a contract exists, then its terms are conditioned on the plaintiffs continued employment by Radiological Associates.

In Gianetti v. Norwalk Hospital, 211 Conn. 51, 52, 557 A.2d 1249 (1989), the plaintiff physician brought an action against Norwalk Hospital, alleging breach of contract and antitrust violations. The action arose out of the alleged illegal refusal of the defendants to reappoint the plaintiff to the medical staff of the hospital. Id. The Supreme Court found that the bylaws, in and of themselves, did not constitute an enforceable contract. Id., 59. The court further stated: “An examination of the hospital’s medical staff bylaws discloses that the hospital clearly intended that membership on its medical staff was a ‘privilege’ that it might or might not extend to a physician. It can hardly be said that the hospital must extend the privileges to every physician who seeks them. Once this hospital, however, has agreed to extend privileges to a physician, the hospital has changed its position with reference to that physician. By agreeing to extend privileges to the plaintiff physician, the hospital has then done something it was not already bound to do. . . . In granting privileges, this hospital extended to the plaintiff those benefits to his medical practice that are to be gained by the use of the hospital, including its facilities and admissions to the hospital.” (Citations omitted.) Id., 62-63.

In Gianetti, the Supreme Court further stated: “Whatever else the granting of staff privileges may connote, it is clear . . . that it [at least] involves a delegation by the hospital [to the physician] of authority to make decisions on utilizations of its facilities. ... In return for that, the plaintiff agreed to abide by its medical staff bylaws. Therefore, the requisite contractual mutuality was then present. . . . This agreement was supported by valid consideration. . . . The hospital changed its position by granting medical staff privileges and the plaintiff physician has likewise changed his position in doing something he was not previously bound to do, i.e., to abide by the hospital medical staff bylaws. Therefore, there is a contractual relationship between the hospital and the plaintiff.” (Citations omitted; internal quotation marks omitted.) Id., 63.

“The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence. ... To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. ... To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties.” (Citations omitted; internal quotation marks omitted.) L & R Realty v. Connecticut National Bank, 53 Conn. App. 524, 534, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999).

In this case, the hospital denies the existence of any contract. It claims that the plaintiffs contract is with Radiological Associates. The plaintiff claims, however, that he has a contract with Radiological Associates and with the hospital. In offering the hospital bylaws and his application for privileges, the plaintiff adequately has demonstrated that there is a genuine issue of material fact as to whether a contract exists between him and the hospital.

The hospital further argues that it is entitled to summary judgment even if a contractual relationship exists because it could not, as a matter of law, grant access to the facility and equipment due to the alleged exchisive nature of its relationship with Goldstein. Further, the hospital argues that the plaintiffs right to use its facilities and equipment was conditioned on his continued employment by Radiological Associates.

We also note that whether the contractual arrangement between Goldstein and the hospital is an exclusive arrangement is, under the circumstances of this case, a factual issue. The hospital offers, in support of its claim of exclusivity, the 1968 contract between Goldstein and the hospital as well as the affidavit of the president of the hospital. The plaintiff offers in opposition to this claim the 1968 contract, his observations of the actual practices employed by the hospital and the American College of Radiology policy on exclusive contracts.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact; Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987). . . . Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994).” Bank of Boston Connecticut v. Scott Real Estate, Inc., 40 Conn. App. 616, 621, 673 A.2d 558, cert. denied, 237 Conn. 912, 675 A.2d 884 (1996).

The contract between Goldstein and the hospital contains no definitive language indicating an exclusive arrangement. Thus, the intent of the parties to the contract is a question of fact in need of determination by the trier of fact. Factors that may enter into the trier’s consideration of the intent of the agreement may be the parties’ agreement that the department of radiology would be run “in accordance with the ethical and professional standards of the American Medical Association and the American College of Radiology.” The plaintiff presented, in opposition to the motion for summary judgment, the American College of Radiology policy on exclusive arrangements between hospitals and individual doctors or groups. The policy appears to prohibit the type of arrangement that the hospital claims the 1968 agreement created. This weighs against the hospital’s claim that the agreement is exclusive. Additional facts may include whether others who are not members of Radiological Associates have access to the radiology facilities and equipment. The hospital and the plaintiff disagree over whether other departments or physicians have such access. The plaintiffs affidavit dated October 30, 1996, in opposition to the motions for summary judgment specifically alleges facts in support of his contention that Goldstein (or Radiological Associates) is not the sole provider of radiology services.

The hospital also argues, in the alternative, that the plaintiffs contract with the hospital was conditioned on his continued association with Radiological Associates. This, however, also is in dispute. The plaintiff claims to have been unaware of any of the terms of the Goldstein contract, including the alleged exclusive nature of the contract. Additionally, the hospital bylaws provide for a mechanism to qualify any privileges granted. See footnote 3. The documents offered, in support of or in opposition to the hospital’s motion for summary judgment, do not indicate that the privileges granted the plaintiff had any qualification attached. Thus, whether there was any such understanding is a factual issue.

Furthermore, the plaintiff’s affidavit clearly establishes that he was denied use of the facilities and equipment by Goldstein and the hospital after he was notified that Radiological Associates was terminating his employment. The plaintiff has raised an issue of fact with respect to whether the denial of the use of the equipment constitutes a breach of contract.

In count seven of the fifth amended complaint, the plaintiff alleges that the hospital breached its contract with him by refusing to grant him a hearing under the fair hearing plan provisions of the hospital bylaws. The court found that because the language of the bylaws regarding the fair hearing plan “clearly and unambiguously requires a hearing only for matters bearing on professional competency and conduct, the hospital was not required to provide [the plaintiff] with a hearing.” In granting summary judgment, the court found that there existed no issue of material fact with respect to professional competence and conduct. We disagree that there are no issues of material fact.

The hospital bylaws provide that whenever there is an adverse recommendation, there is a right to a hearing. An adverse action is defined in the bylaws as a recommendation that would adversely affect a practitioner’s appointment or privileges at the hospital. The fair hearing plan was incorporated into the bylaws of the hospital as appendix I. The fair hearing plan provides for a hearing whenever “a practitioner’s appointment, status, or clinical privileges” are adversely affected.

A subsequent section of the fair hearing plan provides that the hearing provided for in the bylaws is to “resolve, on an intraprofessional basis, matters bearing on professional competence and conduct. . . .” The hospital argues that since there was no dispute about the level of professional competence of the plaintiff, there was no requirement that a hearing be held, as the issues at the hearing are limited to “professional competence.”

The plaintiff’s affidavit in opposition to the motions for summary judgment, however, claims that he was released by Radiological Associates because of Goldstein’s belief that he was not cooperative. Whether the plaintiff’s conduct was appropriate is a question of fact. It is a material fact because, if proven, it may amount to “conduct” that entitles the plaintiff to a healing prior to discharge. We conclude that there are material issues of fact that preclude summary judgment.

The judgment is reversed in part and the case is remanded with direction to deny the hospital’s motion for summary judgment as to counts five and seven, and for further proceedings according to law.

In this opinion the other judges concurred.

       In addition to the hospital, the defendants are William B. Goldstein and Danbury Radiological Associates, P.C. (Radiological Associates). Goldstein and Radiological Associates filed motions for summary judgment as to the counts in the plaintiffs fifth amended complaint that were directed to them. The court granted in part the motions for summary judgment. Thus, there still are pending counts in the trial court with respect to Goldstein and Radiological Associates. The hospital is, therefore, the only defendant to this action on appeal.

       This contract was between Goldstein and the hospital, and there was no evidence that it has ever been assigned by Goldstein to any other entity. At some later time, Goldstein formed Danbury Radiological Associates, P.C., which was the vehicle by which he retained associates to work at the hospital.

       Article III, § (B), of the hospital bylaws states in relevant part,: “1. The applicant has the burden of producing adequate information for proper evaluation of his professional competence, character, ethics, and other qualifications; and for resolution of any doubts about such qualifications. An incomplete application will not be processed.
      “2. Departmental Action. . . . The completed application will be sent to the Department in which privileges are being sought. After the applicant has been interviewed, the Department, will make a recommendation to the Executive Committee within a reasonable time supported by reference to the application and other documentation. The recommendation will be to:
      “a. Accept the applicant for membership stating: the category of privileges, the delineation of clinical privileges, whether admitting privileges are recommended, and other conditions, if any;

      “b. Reject the applicant, for membership; or
      “c. Defer action on the application, for no more than thirty days.
      “3. Executive Committee Action. . . . the Executive Committee may:
      “a. Recommend Appointment stating the category of privileges, delineation of clinical privileges, status of admitting privileges, and any other conditions;

      “b. Make an adverse recommendation in which case the practitioner will be entitled to the due process rights provided for in APPENDIX I, THE FAIR HEARING PLAN. The reason for an unfavorable recommendation will be written and supported by reference to the information the Committee considered; or,
      “c. Defer action for aperiod of up to thirty days at which time the Executive Committee must make either a favorable or an adverse recommendation.
      “4. Board of Directors’ Action. At the next Board meeting after the Executive Committee action, the Board, after consideration of the Executive Committee recommendation and all other information will:
      “a. Accept the applicant for membership, stating the category of privileges, delineation of clinical privileges, status of admitting privileges, and special conditions, if any;
      “b. Rejed the applicant, in which case the applicant shall be entitled to the procedural rights in APPENDIX I, THE FAIR HEARING PLAN; or,
      “c. Refer the application back to the Executive Committee for a period of up to thirty days, for reconsideration stating the reasons therefore [sic].
      “d. If there is an adverse recommendation by the Executive Committee or a rejection by the Board, final Board action will be taken only after the applicant has waived or exhausted his procedural rights provided for in the Bylaws.
      “e. When the Board’s proposed decision is contrary to the recommendation of the Executive Committee, the Board will submit the matter to the Medical Affairs Committee, for a recommendation, as provided for in THE FAIR HEARING PLAN, before the Board renders its final decision.” (Emphasis added.)

       “Private office” privileges are not nearly as extensive as the “clinical” privileges the plaintiff maintained for eighteen years.

       On appeal, the plaintiff does not challenge the granting ol' summary judgment as to count four.

       Count five of the fifth amended complaint states in relevant part: “16. The Defendant Hospital, by granting the Plaintiff staff and clinical privileges, entered into an agreement with the Plaintiff whereby the Plaintiff agreed to abide by the Hospital’s rules and regulations, and the Defendant Hospital agreed to allow the Plaintiff the use of its Hospital facilities, including, inter alia, its facilities and admission privileges.
      “17. The Defendant Hospital, by refusing to allow the Plaintiff the use and enjoyment of the Hospital facilities, has breached its contract with the Plaintiff.”

       In its memorandum of decision, the court stated in part that “[i]n the present case, it is clear the Danbury Hospital bylaws constitute a part of the contract between the hospital and [the plaintiff], and neither party argues otherwise. See Gianetti v. Norwalk Hospital, 211 Conn. 51 [557 A.2d 1249 (1989)].” While it may be true, as the court noted, that neither party argued that no contract existed between the plaintiff and the hospital, the hospital on appeal argues that the granting of privileges does not amount to a contract. The hospital argues in its brief that “[h]aving never had a contract with Danbury Hospital, [the plaintiffs] entire case depends upon his assumption of a material fact which does not appear as evidence; namely, that the term ‘privileges' when used in any hospital’s bylaws becomes a legal term of art which ‘necessarily’ imposes a right of access and use of hospital departments for physicians.” It appears, therefore, that the hospital does not concede that a contract exists with the plaintiff.

       We also note that we are not deciding by implication whether an exclusive contract between Goldstein and the hospital would provide the hospital with a valid defense to the breach of contract claim brought by the plaintiff. Rather, our decision is limited to determining that the issue of exclusivity in this case is one of fact and, therefore, on that basis, summary judgment is not appropriate.

       The plaintiffs affidavit in opposition to the motions for summary judgment states in relevant part: “That Danbury Radiological Associates, P.C., is not the sole provider of radiological diagnostic imaging services at the Defendant Danbury Hospital . . .
      “That nuclear medicine; cardiac nuclear medicine; cardiac angiography; cardiac ultrasound; peripheral vascular ultrasound; obstetrical ultrasound examinations; endoscopic retrograde eholangiopancreatographs; transbron-chia.1 brushings and biopsies; retrograde urography are all forms of diagnostic imaging performed in whole or in part by various Danbury Hospital departments other than the Department of Radiology, and often in a manner different than at many other hospitals, where said services are performed by the Department of Radiology.” (Emphasis in original.)

       The application for privileges form contains a section entitled “Department Chairman Recommendation” and another section entitled “Executive Committee Recommendation.” Both sections have a place to recommend either “unconditional reappointment,” “conditional reappointment,” “temporary reappointment” or “other action.”

       See Gianetti v. Norwalk Hospital, supra, 211 Conn. 63, in which the Supreme Court stated that “it is inherent in this contractual relationship that the hospital must obey its own bylaws. It is crucial to understand that the medical staff bylaws, per se, do not create a contractual relationship between the hospital and the plaintiff but because of the undertakings of the plaintiff and the hospital and because the hospital has a duty to obey its bylaws, the bylaws have now become ‘an enforceable part of the contract’ between the hospital and this physician to whom it has given privileges at the hospital.” (Emphasis in original.)

       Article III, § (B), of the hospital bylaws provides in relevant part: “3. At its next regular meeting after receipt of the Departmental recommendations and supporting materials, the Executive Committee may . . . b. Make an adverse recommendation in which case the practitioner will be entitled to the due process rights provided for in APPENDIX I, THE FAIR HEARING PLAN. . . .
      “4. Board of Directors Action. At the next Board meeting after the Executive Committee action, the Board, after consideration of the Executive Committee recommendation and all other information, will . . . b. Reject the applicant, in which case the applicant shall be entitled to the procedural rights in APPENDIX I, THE FAIR HEARING PLAN . . . .”

       The plaintiffs affidavit states in relevant part: “He [Goldstein] has stated that his reason for firing me had to do with my not sharing beepers or pagers with my colleagues and his belief that I hoarded these beepers when I put two of them on his desk . . . .”

       The requirements for reappointment in article III, § 5 (4), of the hospital bylaws state in relevant part: “Recommendations concerning reappointment and delineation of clinical privileges will be based upon the following . . .
      “k. Cooperation with, and general attitude toward, other practitioners, Hospital personnel, and the public . . .


author: DUPONT, J.

text:
    CAS CONSTRUCTION COMPANY, INC. v. DAINTY RUBBISH SERVICE, INC.
    (AC 17943)
    Hennessy, Pellegrino and Dupont, Js.
    Argued May 30
    officially released October 10, 2000

      William F. Gallagher, with whom, on the brief, were Cynthia C. Bott and Mark A. Balaban, for the appellant (defendant).

      Brendan T. Flynn, with whom, on the brief, was Lawrence G. Rosenthal, for the appellee (plaintiff).
   Opinion

DUPONT, J.

This is an appeal by the defendant, Dainty Rubbish Service, Inc., from the judgment for the plaintiff, CAS Construction Company, Inc., in the amount of $31,643.87 plus costs, and from the denial of its motion to open the judgment. The issue is whether the defendant’s motion to open the judgment should have been granted. We reverse the judgment and remand the case to the trial court.

The plaintiff commenced this action against the defendant by writ, summons and complaint on June 18, 1997, seeking damages arising from an alleged breach of an oral contract involving the storage of topsoil. The complaint was returnable on July 8, 1997. On August 7, 1997, the trial court, Stanley, J., issued a notice that the case had been placed on the fast track and that counsel had 180 days from the return date to close the pleadings.

On August 12, 1997, the plaintiff filed a motion for default for failure to plead that was acted on by the court clerk and granted that same day. The notice of the default issued on August 15, 1997. On August 22, 1997, the plaintiff filed a claim for a hearing in damages.

Thereafter, the defendant filed a request to revise on September 2, 1997, which was dated August 25, 1997. The plaintiffs objection to that request was dated August 29, 1997, and also was filed on September 2, 1997. The plaintiff argued in its objection that the defendant was limited to filing an answer. On September 25, 1997, the defendant moved to open the default. The plaintiff filed an objection to this motion on October 6, 1997. The motion to open the default was never decided and, at the time judgment was rendered, it remained pending. According to the plaintiff, the motion to open the default, although scheduled on the short calendar for October 20, 1997, was never marked “ready” by the defendant, and therefore the court marked it “off.” Thereafter, on October 27, 1997, the court clerk placed the plaintiffs objection to the motion to open the default on the short calendar, but it also was marked “off’ because the plaintiffs counsel was out of state.

The trial court, Hodgson, J., was unaware of the defendant’s motion to open the default that had been filed on September 25,1997, when it sustained the plaintiffs objection to the request to revise on October 14, 1997. In sustaining the objection to the request to revise, the court stated that because “the defendant has not moved to set aside the default but is apparently depending on the automatic reopening feature of [Practice Book] § 363A [now § 17-32], it is limited to filing an answer. See Whalen v. Ives, 37 Conn. App. 7 [654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995)].”

On October 24, 1997, the defendant moved to reconsider and reargue the sustaining of the plaintiffs objection to its request to revise in light of the fact that the defendant had moved to open the default, although the trial court was unaware of that fact. The plaintiff filed an objection to the defendant’s motion for reconsideration on November 6, 1997. The trial court, Hodgson, J., denied the defendant’s motion to reconsider and reargue on November 17, 1997. Defense counsel received notification of the court’s denial of the motion to reconsider and reargue the October 14,1997 decision late in the afternoon on November 18,1997. The following day, November 19, a hearing in damages proceeded before the trial court, Stanley, J., in spite of the defendant’s oral motion for a continuance, and the court rendered judgment for the plaintiff in the amount of $31,643.87 plus costs.

On November 21, 1997, the defendant filed a motion to open the judgment rendered by the court, Stanley, J., and attached an answer to the complaint with four special defenses and a counterclaim. The plaintiff filed an objection to the defendant’s motion to open the judgment on December 2, 1997. In its objection, the plaintiff incorrectly stated that the defendant had never filed a motion to open the default. The court, Stanley, J., denied the motion to open the judgment on December 8, 1997. The plaintiff corrected its misstatement in an amended objection to the defendant’s motion to open and filed that objection on December 9,1997. The plaintiffs amended objection, although now correctly stating that the defendant had moved to open the default in September, was filed after the trial court had already sustained the objection, and, therefore, the correction of this salient fact came too late to have affected the trial court’s denial of the plaintiffs motion to open the judgment.

On December 26,1997, the defendant, without objection from the plaintiffs counsel, moved to reconsider and reargue the December 8, 1997 decision in light of the amended objection, which correctly acknowledged that the defendant had filed a motion to open the default. The trial court, Stanley, J., denied the motion on January 13, 1998. There is no articulation of the trial court’s decision, nor could there be, Judge Stanley having died shortly after the motion was denied. On February 23, 1999, however, a motion for rectification was filed by the plaintiff, which was granted by agreement of the parties. The rectification motion was heard by the court, Gordon, J., on July 19, 1999. The parties agree that the court, Stanley, J., which conducted the hearing in damages, indicated that the defendant would be able to move to reargue any potential judgment after the hearing, if done in a timely manner. After the plaintiff presented evidence at the hearing in damages on one of its four counts, upon inquiry by the court, the defendant informed the court that it intended to file a motion to open the expected judgment the next day. The court then indicated that it did not appear necessary for the plaintiff to proceed with evidence on the additional counts. The court, while addressing the defendant’s counsel, also stated: “I would hope in the interim you could talk to your client. I don’t know what happened between these .... But something went wrong here. Maybe you can straighten it out and make eveiybody happy and avoid the necessity of coming back in for litigation.”

The issue that is dispositive of this appeal concerns whether the plaintiff properly claimed the case to the trial list for a hearing in damages. The question is whether the failure of the court to act on the defendant’s motion to open the default prevented the hearing in damages from being properly scheduled.

Although the opening of a judgment properly rendered is a discretionary act of the court; Automotive Twins, Inc. v. Klein, 138 Conn. 28, 34, 82 A.2d 146 (1951); a judgment improperly rendered, as a matter of law, must be set aside. See Bonner v. American Financial Marketing Corp., 181 Conn. 57, 434 A.2d 323 (1980). Whether a court has the power to exercise discretion at all is governed by the statutes and the mies of practice. Because we are concerned with the interpretation of the mies of practice, which interpretation is controlled by the same mies of constmction as statutes; Whalen v. Ives, supra, 37 Conn. App. 11; we are dealing with a question of law rather than a question of the discretion of the court.

A default is an interlocutory mling that establishes that a plaintiff is entitled to judgment, but requires further proceedings to determine the amount of money due the plaintiff if the action is one for monetary damages. Segretario v. Stewart-Warner Corp., 9 Conn. App. 355, 359, 519 A.2d 76 (1986). The entry of a default is an order precluding a defendant from making any further defense with regard to liability and allows a court to proceed, at the request of a party, to a hearing in damages unless the defendant moves to set aside the default. Culetsu v. Dix, 149 Conn. 456, 458, 181 A.2d 116 (1962). Unless proper procedure is followed, a judgment can become void. Bonner v. American Financial Market ing Corp., supra, 181 Conn. 57. In Bonner, because the rules of practice required that a motion for judgment be made after a default is ordered, the trial court, without a motion for judgment, improperly render judgment for the plaintiff. Id. Thus, in Bonner our Supreme Court concluded that the trial court should have granted the defendant’s motion to open the judgment. The court reasoned that the purpose of the rule of practice that required a motion for judgment to follow a motion for default was to put the defendant on notice that if it failed to take any action to protect its interest, it risked the entry of a judgment against it. Id., 57-58. Without that notice to the defendant, the judgment had to be set aside.

A plaintiff may not claim a case to the trial list (a hearing in damages) without first having obtained a default for failure to plead. Wooding v. Zasciurinskas, 14 Conn. App. 164, 167, 540 A.2d 93 (1988). A hearing in damages cannot be conducted unless there has been compliance with Practice Book § 363, now 17-31. Id. If a judgment is rendered prematurely, it must be set aside if it deprives a party of a right to which there is entitlement under the rules of practice. New Milford Savings Bank v. Jajer, 52 Conn. App. 69, 84-85, 726 A.2d 604 (1999).

Here, the claim for a hearing in damages was made before the defendant had had an. opportunity, as provided for by the rules of practice, to move to open the default that had been granted by the clerk in accordance with Practice Book § 17-32 (a). The defendant’s motion to open the default was still pending when the hearing in damages began and when the judgment was rendered after the hearing in damages. The defendant properly moved to open the default, thereby attempting to protect its interest in not having an adverse judgment rendered against it; see Bonner v. American Financial Marketing Corp., supra, 181 Conn. 57-58; but the defendant was seemingly unable to even convey to various trial courts the fact that there was a motion to open the default that was pending. If the default had been opened, the defendant would have been allowed to answer the plaintiffs complaint and to present its counterclaim, thereby contesting its liability to the plaintiff. We conclude that judgment could not be rendered until the motion to open the default was decided.

We conclude that the judgment for the plaintiff must be reversed and that the case must be remanded for a decision on the defendant’s motion to open the default and for appropriate further proceedings.

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

In this opinion the other judges concurred.

       The defendant also claims that the court, abused its discretion by denying the defendant's motion for a continuance before proceeding with a hearing in damages. In view of our conclusion that the defendant’s motion to open the judgment should have been granted, we need not reach this issue.

       In fact, the case took only 184 days from the return date to the date of judgment.

       Practice Book § 17-32 (a) provides: “Where a defendant is in default for failure to plead pursuant to Section 10-8, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar.”
      Practice Book § 10-8 provides in relevant part: “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required . . . .”

       Practice Book § 17-32, entitled, “Where Defendant is in Default, for Failure to Plead,” was amended, effective October 1,1997, to add a sentence providing that “[a] claim for a hearing in damages or a motion for judgment shall not be filed before the expiration of fifteen days from the date of notice of issuance of the default under this subsection.” (Emphasis added.) Practice Book § 17-32 (b). The claim for the hearing in damages in this case, therefore, was not premature on August 22, 1997, when it was filed.

       Practice Book § 10-6 sets out the order for pleadings. Although a defendant’s request to revise precedes the filing of an answer to a complaint, the plaintiffs objection to the request to revise assumes that the defendant forfeited any right to a revision because it did not answer the plaintiffs complaint within thirty days of the return date as provided in Practice Book § 10-8. Ordinarily, a motion for default for failure to plead cannot be granted until fifteen days after a request to revise has been denied. See Brennan v. Booth, 3 Conn. App. 171, 172, 485 A.2d 1358 (1985). Here, the motion for default for failure to plead had already been granted when the defendant filed its request to revise.

       The defendant’s motion to open the default was filed after its request to revise had been filed but before the plaintiffs objection to the defendant’s request to revise had been sustained, and could provide a reason why the motion to open the default should have been granted, had it been decided.

       The parties have argued in their briefs that the defendant’s motion to open the judgment after the hearing in damages is a motion governed by an abuse of discretion standard. The granting or denial of a motion to open a judgment is discretionary if the judgment itself was legally rendered in that it followed a mandatory procedure. Here, we are dealing with the legality of the judgment itself. If an act or decision is beyond the authority or power given by a statute or enactment, discretion is not involved at all. See Alexander v. Retirement Board, 57 Conn. App. 751, 753 n.3, 750 A.2d 1139, cert. denied, 254 Conn. 902, 755 A.2d 217 (2000).

       Practice Book § 17-31 provides: “Where either party is in default by reason of failure to comply with Sections 10-8, 10-35, 13-6 through 13-8, 13-9 through 13-11, the adverse party may file a written motion for a nonsuit or default or, where applicable, an order pursuant to Section 13-14. Except as otherwise provided in Sections 17-30 and 17-32, any such motion, after service upon each adverse party as provided by Sections 10-12 through 10-17 and with proof of service endorsed thereon, shall be filed with the clerk of the court in which the action is pending, and, unless the pleading in default be filed or the disclosure be made within ten days thereafter, the clerk shall, upon the filing of a short calendar claim by the moving party, place the motion on the next available short calendar list.”


text:
    STATE OF CONNECTICUT v. GLENN STEWART
    (AC 18813)
    Foti, Spear and Dupont, Js.

      Argued June 1
    officially released October 10, 2000

      Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Steven G. Weiss, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Glenn Stewart, appeals from the judgment of conviction, rendered after a jury trial, of' manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l) and evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a). The defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal because the evidence was insufficient to convict him of either charge, (2) failed to instruct the jury, as required by statute, that it could draw no unfavorable inference from his failure to testify, (3) precluded evidence that the child victim died because she and her safety seat were not properly secured and (4) failed to instruct the jury adequately on the essential elements of causation. We agree with the defendant that the court improperly failed to instruct the jury that no unfavorable inference could be drawn from his failure to testify. We reverse the judgment of the trial court for that reason.

The jury reasonably could have found the following facts. In April, 1996, Ioanna Schmidt and her four month old daughter, Arianna, resided in Ossing, New York. Schmidt’s mother, who resided approximately ten minutes away from Schmidt’s place of employment in Stamford, took care of Arianna while Schmidt was at work. On April 8, 1996, Schmidt went to her mother’s house to pick up Arianna after work. Schmidt was driving a Toyota Corolla. Arianna was buckled into her seat in the back of the vehicle, and they began their trip home.

The weather that evening was a wintry mixture of snow and rain. Lori Bonante, who resided in New York and worked in Stamford, also was driving home in the southbound lane of Interstate 95 at approximately the same time as Schmidt. Bonante was operating a 1996 black Jeep Grand Cherokee in the right lane of the highway and was traveling at approximately fifty miles per hour.

Approximately two miles before exit two, Bonante noticed a large tractor trailer approaching from behind. The truck closed to within inches of her vehicle so that all Bonante could see in her rearview mirror was the grille of the truck. The truck, operated by the defendant, maintained a distance of only a few inches from the rear of Bonante’s vehicle for a distance of about one mile. The defendant’s truck was so close to the rear of Bonante’s Jeep that as Schmidt drove past them in the center lane she thought that the Jeep was towing the truck. After Schmidt passed the defendant’s truck, the defendant moved from behind the Jeep into the center lane. Once the defendant moved to the center lane, Bonante slowed so that Schmidt could get out of the defendant’s way and move into the right lane. Schmidt began moving from the center lane to the right lane when the defendant accelerated his truck and struck the left rear portion of Schmidt’s vehicle. At that point, Schmidt’s vehicle was at least three-quarters of the way into the right lane. When the defendant’s truck struck the left rear of the Toyota, Schmidt heard a loud bump, and Bonante heard the crunch and cracking of the Toyota’s taillight. The impact from the truck caused Schmidt’s vehicle to careen across the right lane, to enter a grassy area and to collide with a tree. Arianna was ejected from the Toyota as it hit the tree. The defendant pulled the truck over to the left lane, stopped and walked back to look at the scene of the accident. After a short time, he went back to his truck and drove away without speaking to anyone at the scene. Arianna died approximately six weeks later on May 22, 1996.

Approximately ten months later, the state police were able to determine that the truck involved in the accident was registered to the McDonald Sullivan Company of Long Island, New York. The police later determined that the defendant was operating the truck when it struck the rear of the Schmidt vehicle. The defendant was arrested on February 23, 1997, and after being advised of his Miranda rights agreed to talk with state police Trooper Michael DeCesare. The defendant initially stated that he could not remember if he was driving on the date in question. When asked about the accident, he responded that he had been told about it, but had not read anything about it in newspapers or heard about it in any news reports. When confronted with the evidence demonstrating that he was the driver of the truck, the defendant admitted being there and that he must have been driving on that date.

I

The defendant first claims that the evidence was insufficient as to each of the charges and that he was entitled to a directed verdict of not guilty as to both of them. We find no merit to this claim.

Our standard of review for a sufficiency of the evidence claim is well established. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Furthermore, [i]n [our] 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. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239-40, 745 A.2d 800 (2000).

A

The defendant claims that the evidence was insufficient on the manslaughter charge because the state failed to prove that his conduct was reckless. General Statutes § 53a-3 (13) provides in relevant part that a person acts recklessly when such person is “aware of and consciously disregards a substantial and unjustifiable risk . . . .” The gist of the defendant’s argument is that the state proved no more than that he was following the Bonante and Schmidt vehicles too closely. There was evidence that fifty miles per hour, the speed that the defendant was traveling, was not excessive under the weather and road conditions. He asserts that at best, the evidence showed simple negligence.

The state was required to prove that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk that death would result from his conduct. The defendant’s state of mind can be proven by circumstantial evidence and proper inferences from such evidence. See State v. Salz, 226 Conn. 20, 32-33, 627 A.2d 862 (1993). The jury reasonably could have inferred from the evidence and from the defendant’s conduct that he knew that driving his tractor trailer truck inches behind a small car at highway speed in bad weather could result in a collision and the risk of a resulting death. Nevertheless, he proceeded to tailgate the Bonante vehicle until he moved into the center lane and struck the Schmidt vehicle, sending it out of control. The defendant’s conduct reasonably could be considered a gross deviation from the conduct of a reasonable person in such a situation, and the evidence was, therefore, sufficient to sustain the conviction.

B

The defendant’s assertion that the evidence was insufficient on the charge of evasion of responsibility in the operation of a motor vehicle is equally unavailing. He claims that the state did not prove beyond a reasonable doubt that he was knowingly involved in an accident. We disagree.

The evidence that the defendant heard a “thud” at the same time that his truck struck the Schmidt car, the defendant’s stopping and perusing the accident scene and his initial reluctance to concede that he was even at the scene of the accident, as well as all the other evidence, was ample to support the inference that the defendant was knowingly involved in the accident. This claim is completely without merit.

II

The defendant next claims that the court failed to instruct the jury that pursuant to General Statutes § 54-84, it could not draw any unfavorable inference from the defendant’s failure to testify. We agree.

We first note that the state attempted to rectify the record to reflect what it claimed was the defendant’s in-chambers request that the court not give the no unfavorable inference instruction. There is no record of such a conference, and the record before us contains no such request by the defendant.

This claim is governed by our decision in State v. Suplicki, 33 Conn. App. 126, 634 A.2d 1179 (1993), cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994). Here, as in Suplicki, the defendant raises this claim for the first time on appeal and seeks review under the plain error doctrine; Practice Book § 60-5; and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We held in Suplicki that “the total omission of the ‘no adverse inference’ instruction is plain error that is not subject to a harmless error analysis. The unconditional language of the statute is a legislative mandate and the failure to use that language is a pivotal aspect of the defendant’s privilege against self-incrimination. The statutory language is based on a constitutional right, and its omission can never be harmless.” State v. Suplicki, supra, 130.

The state claims that there was no “total omission” of the no unfavorable inference instruction under the circumstances of this case. The state relies on the fact that the court told the two venire panels from which the jury subsequently was drawn that the jury could not draw any unfavorable inference in the event that the defendant chose not to testily. We reject this claim for several reasons.

First, § 54-84 is set in the context of the trial. “The trial of a juiy case commences when a jury panel is selected and sworn; see State v. Roy, 182 Conn. 382, 385, 438 A.2d 128 (1980) . . . .” (Citation omitted.) Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 70, 504 A.2d 1376, cert denied, 199 Conn. 808, 508 A.2d 769 (1986). The statute obviously refers to the jury instructions that are to be given at the end of the trial. Second, the statute directs the court to instruct the jury. The pool of venirepersons from which the jury is drawn is not the trial jury. Third, prior to the trial, the court does not know whether the defendant will testify. Finally, the preliminary instructions were given at least two weeks prior to the jury instructions at the end of the evidence. As a practical matter, the legislature could have not have intended that such instructions would comply with the dictates of § 54-84. We conclude that Suplicki governs and requires a reversal of the judgment of conviction.

Because the defendant’s evidentiary claims and his claim that the court improperly instructed the jury on the causation element of the manslaughter charge undoubtedly will arise in a new trial, we will address those issues.

Ill

The defendant claims that the court improperly excluded testimony from two state police troopers who would have testified that the child victim was ejected from the vehicle and died because she was not properly secured in the child safety seat and that the safety seat itself was not properly secured in the Schmidt vehicle. We conclude that the court properly ruled that such evidence was irrelevant.

The state cites a number of cases from around the country that support the proposition that evidence that a victim in an automobile collision was not properly restrained in the vehicle would not relieve the defendant of criminal responsibility because such failure to restrain would not constitute an intervening, superseding cause of the victim’s death or injury. See People v. Wattier, 51 Cal. App. 4th 948, 953-55, 59 Cal. Rptr. 2d 483 (1996) (trial court properly excluded evidence that victim was not wearing proper restraints at time of collision; such evidence would not constitute superseding cause absolving defendant of criminal liability for reckless conduct); Union v. State, 642 So. 2d 91, 93-94 (Fla. App. 1994) (trial court properly granted state’s motion in limine preventing defendant from introducing evidence that victims may have survived had they been wearing proper restraints; failure to wear such restraints not sole proximate cause of accident that resulted in their deaths); State v. Hubka, 480 N.W.2d 867, 868-70 (Iowa 1992) (trial court properly granted state’s motion in limine precluding evidence that child victims were not wearing proper restraints at time of car crash; failure of children to wear such restraints would not constitute superseding cause of death so as to preclude imposition of criminal responsibility on defendant); People v. Clark, 171 Mich. App. 656, 658-61, 431 N.W.2d 88 (1988) (evidence that victim not wearing proper restraints irrelevant, inadmissible; failure to wear such restraints not so substantial an act by victim as to constitute intervening cause that would absolve defendant of criminal liability); see also Panther v. State, 780 P.2d 386, 395 (Alaska Ct. App. 1989); State v. Freeland, 176 Ariz. 544, 547-48, 863 P.2d 263 (Ariz. Ct. App. 1993); Whitener v. State, 201 Ga. App. 309, 311, 410 S.E.2d 796, cert. denied, 201 Ga. App. 905 (1991); Green v. State, 650 N.E.2d 307, 310 (Ind. App. 1995); State v. Lund, 474 N.W.2d 169, 173-74 (Minn. App. 1991); State v. Radziwil, 235 N.J. Super. 557, 570, 563 A.2d 856 (App. Div. 1989), aff'd, 121 N.J. 527, 582 A.2d 1003 (1990); State v. Mitchell, 67 Ohio App. 3d 123, 126-27, 586 N.E.2d 196 (1990); State v. Dodge, 152 Vt. 503, 505-506, 567 A.2d 1143 (1989); State v. Hursh, 77 Wash. App. 242, 244-45, 890 P.2d 1066, rev. denied, 126 Wash. 1025, 896 P.2d 64 (1995); State v. Nester, 175 W. Va. 539, 542, 336 S.E.2d 187 (1985); State v. Turk, 154 Wis. 2d 294, 295-97, 453 N.W.2d 163 (Wis. Ct. App. 1990).

Our Supreme Court has aligned Connecticut with those other jurisdictions on this issue. In State v. Munoz, 233 Conn. 106, 124-26, 659 A.2d 683 (1995), the court stated with reference to the doctrine of intervening cause that it “serves as a dividing line between two closely related factual situations: (1) where two or more acts or forces, one of which was set in motion by the defendant, combine to cause the victim’s injuries, in which case the doctrine will not reheve the defendant of criminal responsibility; and (2) where an act or force intervenes in such a way as to relieve a defendant, whose conduct contributed in fact to the victim’s injuries, from responsibility, in which case the doctrine will apply. . . . Every person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes co-operated to produce that result.” (Citations omitted; internal quotation marks omitted.)

This case clearly falls under the first category where two acts could have combined to cause the death. If the child’s seat belt was not properly fastened and the seat itself was not properly secured in the car, such circumstances may have combined with the defendant’s act to cause the victim’s death. As the court pointed out in Munoz, an independent, intervening force must do “more than supply a concurring or contributing cause of the injury.” Id., 124. It must be “unforeseeable and sufficiently powerful in its effect [such] that it serves to relieve the defendant of criminal responsibility for his conduct.” Id. Because the evidence was irrelevant, it properly was excluded by the court.

IV

The defendant claims that the court’s instructions to the jury on the essential elements of causation for the manslaughter count were inadequate. He claims that the court should have expanded its instructions to include “(1) an indication that the defendant’s conduct must contribute substantially and materially, in a direct manner, to the victim’s injuries; and (2) an indication that the defendant’s conduct cannot have been superseded by an efficient, intervening cause that produced the injuries.” We disagree.

For the reasons discussed in part III of this opinion, this claim is without merit. The defendant offered no relevant evidence of an efficient, intervening cause and, therefore, no additional instruction was necessary.

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

In this opinion the other judges concurred.

       General Statutes § 53a-56 (a) provides in relevant part,: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person

         General Statutes § 14-224 (a) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator's license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person, and if such operator of the motor vehicle causing the death or serious physical injury of any person is unable to give his name, address and operator’s license number and registration number to the person injured or to any witness or officer, for any reason or cause, such operator shall immediately report such death or serious physical injury of any person to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct, or station, and shall state in such report the location and circumstances of the accident causing the death or serious physical injury of any person and his name, address, operator’s license number and registration number.”

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

       Pursuant to § 14-224, the state is required to prove the following elements: (1) the defendant operated a motor vehicle; (2) the defendant was knowingly involved in an accident; (3) the accident caused serious physical injury or death to a person other than the defendant; and (4) the defendant failed to stop and render assistance, and to provide the specified information to the injured person, a witness to the accident or a police officer. See footnote 2.

       General Statutes § 54-84 provides: “(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       The defendant couches his claim as one in which the court denied him his constitutional rights to present evidence in his defense on the issue of causation and to have the jury determine if the state negated his defense with proof beyond a reasonable doubt. “A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes.” (Internal quotation marks omitted.) State v. King, 249 Conn. 645,668,735 A.2d 267 (1999). This attempt to transform this evidentiary claim into one of constitutional dimension clearly is without merit.