author: Spallone, J. Berdon, J.,

text:
    John Kaeser et al. v. Conservation Commission of the Town of Easton
    (7383)
    Spallone, Daly and Bekdon, Js.

      Submitted on briefs September 21
    decision released December 5, 1989

      Donald A. Hendrie, Jr. filed a brief for the appellants (plaintiffs).

      Ronald D. Williams filed a brief for the appellee (defendant).
   Spallone, J.

The plaintiffs appeal from the judgment of the trial court dismissing their appeal from the decision of the conservation commission of the town of Easton acting as the local inland wetlands agency. The plaintiffs claim that the trial court erred in failing to articulate its reasons for affirming the commission’s decision to deny their application and in failing to find that the commission had acted arbitrarily by disregarding substantial expert evidence. We find no error.

In September, 1986, the plaintiffs applied to the defendant commission for permission to construct a new single-family dwelling and septic system on property they owned in Easton. The Inland Wetlands and Watercourses Act requires a permit for the construction because the property is located within 200 feet of the Mill River, a designated wetlands. General Statutes §§ 22a-38 (13), 22a-42a (c). Upon due notice and after public hearings, the commission denied the plaintiffs’ application.

The plaintiffs appealed to the Superior Court, claiming that the commission had failed to state upon the record the reasons for its decision as required by General Statutes § 22a-42a (d). The trial court reviewed the record and dismissed the appeal. Although it did not explicitly state the reasons or the evidence found, the court held that its review revealed sufficient evidence in the record to support the commission’s decision. The plaintiffs appeal to this court from that dismissal.

Appellate review of an agency’s decision is of limited scope. The reviewing court does not make a broad, de novo review of the record. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987). It does not redetermine factual issues or weigh the credibility of witnesses, as those matters are within the exclusive province of the agency. Id., 540-42. The court is limited to a review of the evidence and reasoning the agency has placed on the record. Agency decisions must be sustained if the record reveals substantial evidence in support of any reason given. Id., 539-40.

In this case, the commission denied the plaintiffs’ application on the basis of its determination that “the proposed activity will create conditions which may significantly and adversely affect the health, welfare and safety of the Community and the Mill River environment.” The plaintiffs claim that this is merely a conclusory statement and not a reason for denying a permit. Even if that were so, the reviewing court may “ ‘search the record for reasons to support the agency’s decision.’ ” Id., 528; Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977). The court’s memorandum of decision declares that it reviewed the record and found substantial evidence to support the commission’s decision. The plaintiffs argue that this statement is itself inadequate. According to the plaintiffs, the failure of the reviewing court to set forth its findings indicates that either no séarch was actually conducted or no reasons were actually found. We reject the implication that a lack of articulated findings necessarily means that the court “rubber stamped” the commission’s decision. A reviewing court is required to search the record for reasons; it is not required to articulate them. Norwich v. Norwich Fire Fighters, supra.

Our own review of the record indicates several reasons for the denial of the permit. A report from Donald Ballou, a professional engineer retained by the commission, suggests changes to the proposed construction, but the record is silent as to whether the plaintiff accepted these changes or amended his application. Les Warren, a soil erosion and sediment control officer and conservation enforcement officer, submitted a report recommending the denial of the plaintiffs’ application because the necessary leveling of the site with fill would have a detrimental effect on the Mill River floodplain. He stated that encroachment on rivers and streams in this flood zone exacerbates the property damage and injuries after natural flooding.

The plaintiffs next claim that if the commission accepted Warren’s reasons for denying the permit, the court erred in finding those reasons to be supported by substantial evidence. The plaintiffs rely on the substantial evidence rule set out in Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980), in which the court held that in matters of technical complexity, such as pollution control, a lay commission without expertise in the area may not substitute its own judgment for contrary expert testimony. To do so without making public the basis of its decision and without offering the applicant an opportunity for rebuttal is to act arbitrarily and without fundamental fairness. Id., 428-29. In Feinson, the plaintiff’s engineer was the only witness, and was questioned on the construction plan by only one commissioner. No community neighbors or representatives of public agencies attended or submitted material. The only contrary evidence offered was the opinion of a lay commission member. The plaintiff’s permit application was denied although the commission evinced general satisfaction with the plan. The plaintiff was therefore denied any warning that his evidence would be entirely discredited and was denied an opportunity for rebuttal. Id., 428.

The plaintiffs here point out that the only expert testimony before the commission was presented by Ballou and another professional engineer, Leonard Jackson. Those qualified experts offered testimony about the environmental safety of the plaintiffs’ planned construction and recommended approval. Because Warren’s qualifications as an expert in any relevant specialty were not on record, the plaintiffs claim that his report does not constitute substantial evidence under Feinson. They claim that if the commission accepted Warren’s reasons, it acted arbitrarily in basing its decision on lay, rather than expert, testimony.

We do not agree with the plaintiffs’ narrow reading of Feinson that, in technically complex matters, expert testimony is the only acceptable substantial evidence. This position would have reduced the agency hearings to a nose count of experts; plaintiffs: 2, agency: O. It would have made irrelevant all other testimony from Warren and from numerous neighbors. In Feinson, the court was concerned with fundamental fairness. Id., 429. An agency decision must be based on reliable evidence made public and the applicant must have an opportunity to respond to agency concerns. Id., 428-29.

Unlike the commission in Feinson, this commission placed all relevant facts on the record and shared its concerns and objections with the plaintiffs. The commission held four public hearings on the plaintiffs’ application. The named plaintiff attended and spoke at all four hearings; the plaintiffs’ engineer attended and spoke at two. Commission members questioned the named plaintiff and the plaintiffs’ engineer closely and at length on all aspects of the plan, concentrating on the possible effects of flooding on the landfill and septic system and on the possible consequences for the floodplain, floodway and Mill River. The plaintiffs’ plans and drawings were submitted to the commission’s independent engineer. Other public agencies were invited to contribute assessments. The commission twice offered to postpone its decision until the submission of a report from the building department but the plaintiffs declined to wait and asked to have the hearings concluded. In light of the public concern over construction in the area, the commission solicited and received testimony from the owners of several neighboring homes, all of whom spoke about frequent flooding and voiced concerns about encroachments on the river. Unlike the agency in Feinson, this commission did not “[place] its data base beyond the plaintiff’s scrutiny.” Id., 428.

The plaintiffs also had a clear opportunity for rebuttal. After the reports from Warren and Ballou were received at the hearing on February 3,1986, the commission moved to deny the plaintiffs’ application. This hearing was recessed, a notice of recess was published, and the hearing was reconvened on February 13. The plaintiffs were present at both hearings and were invited at both to offer additional evidence, which they did not do. The plaintiffs cannot claim that they were not “afforded a fair opportunity to hear the commission’s fears and to attempt to allay them.” Id.

If the position that nonexperts may offer reliable and substantial evidence requires more support, we find it in Huck v. Inland Wetlands & Watercourses Agency, supra. The plaintiff in Huck applied for a permit to construct a home within a regulated area abutting Frye Lake in Greenwich. The plaintiff offered testimony from four experts in four different fields in support of her application, while the agency offered no expert testimony in rebuttal. Id., 538. The trial court sustained the plaintiffs appeal from the denial of the permit, finding that the record contained no reasons supported by substantial evidence. Id., 536-38. The agency appealed and our Supreme Court affirmed the agency’s decision, faulting the trial court for substituting its own judgment and discretion. Id., 538.

The Supreme Court reviewed the record and found the agency had provided a number of reasons for denying the permit. Id., 539-40 n.ll. It carefully explained the substantial evidence rule and found the record contained such substantial evidence in support of the agency’s reasons. Id., 541-42. Although only the plaintiff offered expert testimony, “an administrative agency is not required to believe any witness, even an expert . . . .’’Id., 542. The court noted that, as in the present case, the record showed “active and probing participation by agency members in questioning these experts . . . . ” Id., 544. The questions in Huck covered, as here, the septic system, the nature of the lot, the soils and the proposed fill. Id., 547. The commission members in the present case viewed the site, a factor the Supreme Court considered important. “Knowledge obtained through personal observations of the locus may properly be considered by the agency in arriving at reasons given for its denial.” Id.

Finally, the Supreme Court discussed the legislative intent in enacting the Inland Wetlands and Watercourses Act. The act gives broad discretion to agencies to preserve, protect and maintain the environment and ecology of the state’s natural resources. Id., 551; see also Klug v. Inland Wetlands Commission, 19 Conn. App. 713, 717-18, 563 A.2d 755 (1989). “The discharge of the statutory responsibilities by local wetlands commissions may require commission members to reject ‘an otherwise acceptable application’ because of its impact on the environment. Obeda v. Board of Selectmen, [180 Conn. 521, 524, 429 A.2d 956 (1980)].” Huck v. Inland Wetlands & Watercourses Agency, supra, 552.

We find, in our review of the record, that the commission gave its reasons for denying the plaintiffs’ application for a permit and find that these reasons were supported by substantial evidence. Nothing in the record suggests that the agency's decision was reached arbitrarily or was fundamentally unfair. The trial court, in reviewing the record, acted properly and in accordance with applicable law.

There is no error.

In this opinion, Daly J., concurred.

Berdon, J.,

concurring. I concur only in the result because the majority holds that the commission, in deciding technically sophisticated and complex matters, can rely upon nonexpert evidence to satisfy the substantial evidence rule.

Section 5 of the Easton Inland Wetlands and Watercourses Regulations requires the commission to take into consideration, and make findings with respect to, the environmental impact of the proposed action, including the “nature of any materials to be . . . deposited and the effect on flood control water supply and quality . . . .” Id., § 5.1.4. As it pertains to the present case, the commission’s determination involved decisions on technically sophisticated and complex matters. See Feinson v. Conservation Commission, 180 Conn. 421, 426-27, 429 A.2d 910 (1980).

Feinson makes clear that a lay commission acts without substantial evidence when it relies on its own knowledge and experience concerning technically complex issues. Id., 427-29. It follows that if the lay commission cannot rely upon its own knowledge and experience in such cases, neither can it rely upon nonexpert evidence from others. Connecticut Natural Gas Corporation v. PUCA, 183 Conn. 128, 142, 439 A.2d 282 (1981); see State v. McClary, 207 Conn. 233, 243, 541 A.2d 96 (1988); Jaffe v. State Department of Health, 135 Conn. 339, 349, 64 A.2d 330 (1949). “[T]he commission may not reject an expert’s testimony on a ‘technically sophisticated and complex’ issue that ‘goes beyond “the ordinary knowledge and experience” of the trier of fact,’ unless there is expert testimony available to the commission that will support its decision.” T. Tondro, Connecticut Land Use Regulation (1983 Supp.), p. 101.

The majority’s reliance on Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 545, 525 A.2d 940 (1987), is misplaced. The court in Huck went to great lengths to describe the expert evidence supporting the agency’s denial of the application, which included the report of two agency experts that showed a “potential of pollution.” Id., 549. The director of the town’s environmental health office, although favoring the application, conceded the proposed activity could cause pollution of the lake because of the siltation problem. Id., 545. The court held that this expert evidence, taken with the deficiencies in the testimony presented by the plaintiff’s expert, “furnish[es] a fair basis for the agency’s stated view on its denial.” Id., 545.

Recently, this court, relying on Feinson and Huck, held that although an administrative agency need not “believe any of the witnesses, including expert witnesses . . . it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge.” (Citation omitted.) Tanner v. Conservation Commission, 15 Conn. App. 336, 341, 544 A.2d 258 (1988). Any other rule would allow the agency to permit, as well as to prohibit, activities affecting inland wetlands and watercourses without substantial evidence of a competent nature. This could defeat the beneficient purposes of the Inland Wetlands and Watercourses Act, which is to protect this “irreplaceable but fragile natural resource with which the citizens of this state have been endowed.” General Statutes § 22a-36.

Nevertheless, nonexpert knowledge and testimony are relevant and may aid in determining the underlying facts in order to evaluate the expert’s opinion. See C. Tait, Connecticut Evidence § 7.16.8 (2d Ed.). For example, in Huck, the general grade of the slope of the subject property to the lake became a relevant factor. The commissioner’s nonexpert knowledge was used to evaluate the expert’s opinion. He disclosed at the hearing that the grade was at least forty-five [degrees] and that “ 'merely walking on that slope created a disturbance and caused things to roll into the lake.’ ” Huck v. Inland Wetlands & Watercourses Agency, supra, 545 n.16. Determinations of the nontechnical facts and opinion within the knowledge of a lay person, however, must be distinguished from determinations of technically complex facts and opinions, which can come only from an expert.

Unfortunately, the majority gets bogged down on what constitutes expert evidence. Such evidence comes from not only environmental scientists, engineers and the like, but also from those who gained their expertise from practical experience. Bryan v. Branford, 50 Conn. 246, 248 (1882).

In the present case, the decision of the commission was supported by the expert testimony of Les Warren, the soil erosion and sediment control officer of the commission. He recommended that the application be denied because the proposal would adversely affect the floodplain as a result of the depositing of 830 cubic yards of fill in the area adjacent to the Mill River.

The plaintiffs argue that the soil erosion and sediment control officer’s opinion should be discounted because the record does not show that he has any expertise in this area. The simple answer is that the plaintiffs, though given a full opportunity to challenge both Warren’s qualifications as well as his opinion, chose not to do so. Moreover, there is a “presumption that public officials acting officially properly performed their duties.” Aczas v. Stuart Heights, Inc., 154 Conn. 54, 58-59, 221 A.2d 589 (1966). This encompasses the presumption that the public official is qualified in the field wherein his or her official duties lie until the contrary is shown. State v. Main, 69 Conn. 123, 140, 37 A. 80 (1897).

I concur in the result that the commission’s reasons for denying the plaintiffs’ application were supported by substantial evidence and in the finding of no error.

       The plaintiffs are John Kaeser and the Kaeser Construction Company.

       Donald Ballou’s report indicated that the interior angle of the riprap and gambion wall was inadequate as proposed at less than forty-five degrees. An angle of sixty degrees is necessary to provide a more efficient hydraulic transition of floodwater and to increase the deflection of floating debris. No riprap size was specified at all and would need to be of a size sufficient to resist a water current of ten to twelve feet per second. The proposed deck must be cantilevered to avoid prohibited construction in the “flood-way” and to eliminate ground supports that would be vulnerable to flood drainage.

       Les Warren’s report noted that the plaintiffs’ plan calls for depositing approximately 830 cubic yards of fill in a flood zone area adjacent to the Mill River. This would adversely affect the floodplain because “[f]or every yard of earth, rock or building placed in a Flood Plain area, a cubic yard of water will have to find someplace else to go in time of natural flooding.”

       The discussion on the record reveals that the plaintiffs’ lot is vulnerable to the frequent flooding of the Mill River. The town of Easton has experienced several 200 year floods and a 300 year flood. The nearby hydraulic company opens its dams and releases extra water from the Easton Reservoir yearly into the Mill River. Overflow water is also released at floods, creating a water level downstream in excess of a 100 year flood.
      The commissioners asked the named plaintiff and the plaintiffs’ engineer about possible erosion of the septic system and the possible effect on the system from the eventual widening of the adjacent street. The planned septic system, it was noted, lies close to a constriction in the Mill River that might force water up over the roadway and into the system in time of flood.
      The amount of required fill was of particular concern. Fill would be required over nearly the entire site, 200 feet from the edge of the river. A commissioner inquired if the fill would accelerate the leaching of effluents through to the river. The plaintiffs’ engineer admitted in response that the ground below the fill would have to be of very good quality and offered to perform quality tests if necessary. The engineer’s final report makes no reference to soil quality or testing.

       The agency in Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 525 A.2d 940 (1987), listed ten “findings.” Four are statements of fact, such as a description of the site from survey data and the measured distances of the deck and septic system from the lake edge. One finding was that “[c]ommon sense would suggest that the proposed development would result in the degradation of water quality in Frye Lake.” Id., 540 n.ll.
      The plaintiffs in the present case attempt to distinguish their facts from those in Huck on the basis that the agency in Huck explicitly cited its ten reasons on the record. While a numbered list of reasons would have been helpful, our duty, nonetheless, is to search the record. We think it a spurious distinction that the agency’s report in this case was not as tidy as the Huck report.

       The “substantial evidence rule is similar to the ‘sufficiency of the evidence’ standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords ‘a substantial basis of fact from which the fact in issue can be reasonably inferred .... [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ ” Lawrence v. Kozlowski, 171 Conn. 705, 713, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987).

       The defendant is the duly designated municipal commission entrusted with the enforcement of the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 et seq.

       The majority points out the failure of the plaintiffs to indicate on the record that they would accept the technical changes in the proposed construction suggested by Donald Ballou, the professional engineer retained by the commission, who found that the proposed construction would not be detrimental to the environment. Surely, the majority does not mean to suggest that the failure of the plaintiffs to indicate their acceptance of these changes on the record at the hearing would constitute grounds to deny the application. That would not be fair or practical as the commission has authority to grant the application upon “such terms, conditions, limitations or modifications of the regulated activity, designed to carry out the policy of sections 22a-36 to 22a-45, inclusive.” General Statutes § 22a-42a (d).


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. Barbara Middleton State of Connecticut v. Benjamin Middleton
    (7208)
    Borden, Spallone and Lavery, Js.

      Argued October 17
    decision released December 12, 1989

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Carolyn K. Longstreth and T. R. Paulding, assistant state’s attorneys, for the appellant (state).

      Robert L. Holzberg, assistant public defender, for the appellee (defendant Barbara Middleton).
   Borden, J.

The state appeals, with the permission of the trial court, from the judgment dismissing the informations against the defendants upon finding no probable cause to arrest pursuant to Practice Book § 650. The dispositive issue is whether the court erred in applying the exclusionary rule during a § 650 preliminary hearing. We find error.

Certain facts are not in dispute. On June 13, 1988, at approximately 10:30 p.m., the Windsor police made a warrantless arrest of the defendants at a Windsor motel for illegal possession of narcotics in violation of General Statutes § 21a-279 (a), possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277 (c), use of drug paraphernalia in violation of General Statutes § 2 la-267 (a), and possession of less than four ounces of marihuana in violation of General Statutes § 21a-279 (c). Neither defendant was able to post a surety bond of $1000.

The police report of Detective Frank Starnes, in the form of an affidavit, stated as follows. At about 10:30 p.m., on June 13,1988, he received four separate citizen complaints from residents of the American Motor Lodge in Windsor, stating that the defendants were then freebasing cocaine in room number ninety-nine of the motel. The residents stated that this was a daily occurrence that had been continuing for some time, and they requested that the police do something about the situation. Starnes further stated in the affidavit that he and two other police officers went to the room and knocked on the door. A male voice responded, “Come in.” Upon entering the room, Starnes saw the defendants and what he believed from his training and experience to be cocaine and marihuana. He placed the defendants under arrest and advised them of their constitutional rights. Both defendants waived their rights, and Barbara Middleton disclosed other drug paraphernalia located in the room. Starnes also stated that a white powder found in plastic bags in the room field-tested positive for cocaine, and that, upon later interrogation at the police station, Barbara Middleton admitted that she was freebasing cocaine that evening, that she had been doing so for about one year, and that Benjamin Middleton was using cocaine that evening as well. Starnes also stated that the items seized, including three plastic bags containing residue, a marihuana cigarette and various items commonly associated with illegal drug use, were sent to the state laboratory for further testing.

On June 14, 1988, the day after the arrest, the defendants were arraigned. At that time, a public defender was appointed to represent Barbara Middleton. A public defender was appointed to represent Benjamin Middleton for bail purposes only. See Practice Book § 633. Because the defendants had been arrested without a warrant and were in custody, the court conducted a § 650 hearing; see footnote 1, supra; to determine whether probable cause existed for the arrest. Upon examination of Starnes’ report, the court expressed “concern about the legality of the entry” and the fact that the police officers “didn’t identify themselves as police officers” before entering the room. The state then asked that the matter be passed in order to allow it to contact Starnes. After a recess, the state produced Starnes to testify because, as the state expressed it, “the court had concerns about the search that had taken place in this case . . . .’’Starnes then testified in a manner consistent with his written report.

At the conclusion of Starnes’ testimony, the state requested a finding of probable cause, and the defendants requested a finding of no probable cause because there were no “grounds for the police to be in the apartment [sic] and what was seized was from an illegal search.” The court found no probable cause, and discharged the defendants. The defendants then moved, “[b]ased on the Court’s ruling ... to dismiss the charges.” The court dismissed the charges with prejudice.

The following colloquy then took place. “[Assistant State’s Attorney]: For the record, the state takes exception to the court’s rulings in this hearing today.

“The Court: Your exception is noted.

“The Clerk: What about the property?

“[Assistant State’s Attorney]: It’s all contraband. I would ask that based upon the proceedings, that the contraband be returned to the Windsor police department, seeing that the state may be contemplating an appeal of your rulings.

“The Court: You’ll need the court’s permission in order to take an appeal. There is no claim on behalf of the defendant to the property, is that correct?

“[Defense Attorney]: No claim.

“The Court: Unless the state indicates that it intends to appeal within one week, the inventory may be destroyed.

“[Assistant State’s Attorney]: Thank you, I have a week to make the decision and basically, I’ll confer with my superiors.”

Three days later, on June 17, 1988, the state filed a written motion to appeal pursuant to General Statutes § 54-96, and the court granted the motion. This appeal followed. Subsequent to the filing of the appeal, the court, in response to the defendants’ motion for articulation, further clarified the factfinding and reasoning underlying its refusal to find probable cause.

I

We first consider the defendants’ jurisdictional argument that the state’s appeal is not properly before us because the state failed to comply with § 54-96; see footnote 3, supra; by immediately either seeking permission to appeal or making clear its intention to do so. We disagree.

The defendants rely on State v. Carabetta, 106 Conn. 114, 118-19, 137 A. 394 (1927), where the court held that the statutory predecessor to § 54-96 required the state to seek permission to appeal at the time of the judgment of acquittal. In that case, the judgment of acquittal was rendered on October 29, 1926, and the court’s permission to appeal was granted on January 1, 1927, more than two months later. Id., 115. In State v. Ross, 189 Conn. 42, 46, 454 A.2d 266 (1983), the court expanded the Carabetta rule to permit the state to appeal as long as, at the time of the rendering of the judgment of acquittal, the state expressed its intention to appeal. See also State v. Avcollie, 174 Conn. 100, 109, 384 A.2d 315 (1977). The rationale given was that “[t]he evil perceived in granting a tardy request of the state to appeal was the injustice of dragging back into court a defendant who had reasonably assumed that his discharge meant that he was a free man no longer charged with a crime.” State v. Ross, supra.

It is true, as the defendants argue, that, at the time of the judgment of dismissal, the state did not explicitly express an intention to appeal. We conclude, nonetheless, that the state sufficiently complied with § 54-96 and its rationale.

The state took a formal exception to the court’s ruling. Furthermore, it asked that the seized contraband, rather than being destroyed, be returned to the Windsor police department because the state was contemplating an appeal. In addition, the court specifically ordered the contraband destroyed unless within one week the state indicated its intent to appeal. The state expressed its understanding that it had one week to decide whether to appeal, and the assistant state’s attorney stated that he would confer with his superiors. Finally, only three days later, the court granted the state’s motion for permission to appeal. Under these circumstances, the defendants were on adequate notice that the state had one week in which to seek permission to appeal. Thus, they had no basis reasonably to assume at the moment of the judgment that their discharge meant they were free persons no longer charged with crimes. State v. Ross, supra. Such an assumption could not reasonably be entertained until a week had passed. Within a week, permission to appeal was granted. We therefore turn to the merits of the state’s appeal.

II

The state first claims that the court erred in dismissing the informations because that dismissal flowed from its erroneous refusal to consider the evidence gathered by the police following their entry into the motel room. We agree.

The court did not, either in its in-court ruling or in its subsequent articulation, state that it was suppressing the evidence obtained by the police from the motel room because the evidence had been unconstitutionally seized. It is quite plain, however, that the court did so and that the subsequent dismissal flowed directly from that suppression. At the conclusion of the evidence, the defendants requested a finding of no probable cause on the basis of a lack of “grounds for the police to be in the apartment and what was seized was from an illegal search.” The court responded that, pursuant to Practice Book § 650, it could not find probable cause and discharged the defendants. The defendants then moved to dismiss the informations “[bjased on the Court's ruling,” and the court dismissed the informations. In its subsequent articulation, the court stated that it did not find probable cause “because the officers were not on the premises of room ninety-nine legally,” and it cited as authority Payton v. New York, 445 U.S. 573, 576, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), State v. Gallagher, 191 Conn. 433, 437 n.4, 465 A.2d 323 (1983), and State v. Pelletier, 209 Conn. 564, 573-74, 552 A.2d 805 (1989). Payton and Gallagher involved suppression of evidence gathered after warrantless entries into homes, and Pelletier involved suppression of evidence gathered after a forcible entry into a home pursuant to a search warrant. We conclude that the court erred by considering, in the context of a hearing pursuant to Practice Book § 650, whether evidence was obtained as the result of an unreasonable search and seizure.

First, Practice Book § 650 contemplates that the probable cause determination “shall be made in a nonadversary proceeding, which may be ex parte, at which affidavits or testimony under oath may be received.” Such a proceeding, which ordinarily takes place upon arraignment, as it did in this case, is hardly consistent with the process of constitutional adjudication required in deciding a motion to suppress evidence. Practice Book §§ 809, 811, 812, 813, 821 and 822 provide detailed procedures for implementing that process.

Second, the purpose of Practice Book § 650 is to conform Connecticut’s procedure with the mandate of Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), by providing an incarcerated defendant with a prompt postarrest judicial determination of probable cause. See 4 L. Orland, Connecticut Practice, Superior Court Criminal Rules § 650. Such a proceeding is not a critical stage requiring appointed counsel. Gerstein v. Pugh, supra, 122. A judicial determination of the legality of a search or seizure is not within the scope of what that preliminary stage of the proceeding is intended to accomplish.

Third, the purpose of the exclusionary rule is to deter illegal police conduct; see State v. Brown, 14 Conn. App. 605, 622, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988); and the limits on its application that flow from that purpose, namely, that it does not apply where the cost of suppressing reliable tangible evidence outweighs its deterrent benefit; see United States v. Leon, 468 U.S. 897, 906-907, 104 S. Ct. 3405, 82 L. Ed. 2d 677, reh. denied, 468 U.S. 1250, 105 S. Ct. 52, 82 L. Ed. 2d 942 (1984); suggest its inapplicability to a hearing under Practice Book § 650. Since the interest in deterring illegal police conduct is sufficiently protected by excluding illegally seized evidence at trial, no such suppression is required at the detention hearing under § 650.

Finally, our Supreme Court has very recently noted “the general rule . . . that constitutional questions are not properly raised in a probable cause hearing because such hearings are not adjudicatory in nature. See, e.g., Fed. R. Crim. Proc. 5.1, Notes of Advisory Committee on Rules; 2 W. LaFave & J. Israel [Criminal Procedure (1984) p. 263] § 14.4.” In re Ralph M., 211 Conn. 289, 313, 559 A.2d 179 (1989). In that case, the court held that the trial court should not entertain motions to suppress at nonadjudicatory juvenile transfer hearings pursuant to General Statutes § 46b-127 (i). The same reasoning applies to a nonadjudicatory § 650 preliminary hearing.

The defendants argue that the state waived its claims on appeal because it failed to object to the court’s inquiry into the legality of the entry, and because it presented evidence on the matter by producing Starnes as a witness. We disagree. Although, as the defendants argue, the rule requiring appellate claims to have been made at trial applies to the state as well as to defendants; State v. Hansen, 8 Conn. App. 26, 28, 510 A.2d 465, cert. denied, 201 Conn. 806, 515 A.2d 379 (1986); that rule was not violated here.

At the outset of the probable cause hearing, the court stated that it had “some concern about the legality of the entry.” Thereafter, the state asked that the matter be passed in order to allow it to contact Starnes. This was consistent with the provision that the probable cause determination “shall be made in a nonadversary proceeding, which may be ex parte, at which affidavits or testimony under oath shall be received.” Practice Book § 650. The only glimmer emanating from this record that the issue of search and seizure would be considered occurred after Starnes had arrived to testify. The assistant state’s attorney stated that he was prepared to submit the sworn police report through Starnes, and that “[w]e passed the matter because the court had concerns about the search that had taken place in this case and I have Detective Starnes here to answer questions under oath.” After Starnes’ testimony, the state specifically requested the court to find probable cause for the arrest. The defendant, in turn, requested a finding of no probable cause based on the claimed illegal entry and search. The court then found no probable cause. The state thereafter noted an exception to the court’s rulings and indicated that it was contemplating an appeal.

This record is wholly insufficient to justify a conclusion that the state waived its appellate claims. The court did not alert the state that it was transforming the probable cause hearing under Practice Book § 650 into a suppression hearing. Indeed, it did not mention suppression either in its in-court ruling or its later articulation. Thus, the state had no reason to anticipate that transformation, and cannot now be said to have consented to it.

The defendants also argue that the trial court properly exercised its discretion in dismissing the informations pursuant to General Statutes § 54-56 because there was insufficient evidence to sustain the prosecution. This argument is without merit. As the defendants recognize in their brief, this argument rests on the premise that the court correctly suppressed the evidence in question. As we have already discussed, that premise is flawed.

There is error, the judgment of dismissal is set aside and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Practice Book § 650 provides: “If a defendant has been arrested without a warrant and has not been released from custody by the time of the arraignment or is not released at the arraignment pursuant to Sec. 658, the judicial authority shall, unless waived by the defendant, make an independent determination as to whether there is probable cause for believing that the offense charged has been committed by the defendant. Such determination shall be made in a nonadversary proceeding, which may be ex parte, at which affidavits or testimony under oath shall be received. If no such probable cause is found, the judicial authority shall discharge the defendant.”

       In this appeal, only the defendant Barbara Middleton is represented by counsel and filed a brief as an appellee. The defendant Benjamin Middleton has taken no action to defend the appeal regarding the charges against him. We have considered the state’s combined appeal regarding both defendants, however, because the records and issues in both cases are identical. We therefore refer to both defendants.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       On May 25,1989, we denied without opinion the defendant Barbara Middleton’s motion to dismiss this appeal. In her brief and at oral argument in this court, she has renewed her motion to dismiss, based on the same grounds that she raised earlier. We now choose to address the renewed claim challenging our subject matter jurisdiction; State v. S & R Sanitation Services, Inc., 202 Conn. 300, 301-302 n.2, 521 A.2d 1017 (1987); in order to make explicit the reasoning behind our earlier denial of her motion.

       This conclusion renders it unnecessary to consider the state’s other arguments, namely, that the police entry was consensual, and that the proper judicial remedy under Practice Book § 50 was limited to a discharge from custody and could not include a dismissal of the informations.

       General Statutes § 54-56 provides: “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”


author: Spallone, J.

text:
    Henry L. Wierzbicki v. W. W. Grainger, Inc., et al.
    (7404)
    Dupont, C. J., Spallone and Lavery, Js.
    Argued October 12
    decision released December 12, 1989

      Philip T. Newbury, Jr., with whom, on the brief, was Brian A. McKinsey, for the appellants-appellees (defendants).

      Samuel B. Feldman, with whom, on the brief, was Donna M. Case-Rossato, legal intern, for the appelleeappellant (plaintiff).
   Spallone, J.

The defendants appeal from the judgment rendered after a jury verdict for the plaintiff in this products liability action. The plaintiff cross appeals challenging the sufficiency of the verdict.

The defendants claim that the trial court erred in denying their motions (1) for a directed verdict, (2) to set aside the verdict, and (3) for judgment notwithstanding the verdict. The plaintiff, in his cross appeal, claims that the trial court erred in denying his motion to set aside the verdict for inadequacy.

The jury could reasonably have found the following facts. The plaintiff was injured when he fell from an aluminum extension ladder in December, 1984. The plaintiff was descending the ladder when he felt it “bounce,” causing him to lose his balance and fall approximately twenty-eight feet to the ground. The right slide guide had separated from the ladder and was found on the ground a few feet from the base of the ladder. The plaintiff sustained numerous injuries as a result of the fall. His medical bills totaled $3962.84 and his lost wages amounted to $12,000.

The plaintiff brought a products liability suit against the manufacturer and the retailer of the ladder claiming defective design. At the close of the plaintiffs casein-chief, the defendants moved for and were denied a directed verdict. The jury returned its verdict for the plaintiff, expressly finding that the ladder had a design defect, that the defect was the proximate cause of the plaintiff’s injuries, that the plaintiff suffered damages in the amount of $100,000, and that the plaintiff’s comparative responsibility was 25 percent. Accordingly, the court rendered judgment for the plaintiff in the amount of $75,000. The plaintiff and the defendants subsequently filed motions to set aside the verdict. The defendants also filed a motion for judgment notwithstanding the verdict. The court denied all posttrial motions, and the parties’ appeal and cross appeal followed. We conclude that the claims of error asserted in the appeal and cross appeal are without merit.

The defendants’ claims of error, in effect, attack the sufficiency of the evidence. In a products liability action, the plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiff’s injuries. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987); Tomer v. American Home Products Corporation, 170 Conn. 681, 689, 368 A.2d 35 (1976). A review of the record and transcript discloses ample evidence to support the verdict for the plaintiff. The plaintiff provided expert testimony from an industrial engineer and a metallurgist to the effect that the slide guide was defectively designed and that it was highly probable that the defects caused the plaintiff’s fall. The plaintiff’s doctor testified to the extent of the injuries resulting from the fall.

Whether such evidence is sufficient is a question for the jury to decide. State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983). Where, as here, there is evidence to support the plaintiff’s cause of action, it must be submitted to the jury for consideration. A directed verdiet in this case would have been inappropriate. The function of the jury is to determine credibility and the effect to be given testimony. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981); State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979). It is the jury’s right to consider evidence, draw logical deductions and make reasonable inferences from facts proved. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d 125 (1976).

The jury here chose to accept the plaintiff’s evidence that the defective product design proximately caused his injuries. The plaintiff presented sufficient evidence to permit the jury to reach its verdict without resorting to speculation, conjecture or surmise. Toomey v. Danaher, 161 Conn. 204, 207, 286 A.2d 293 (1971). The jury verdict for the plaintiff was based on a determination of issues of fact and cannot be attacked on appeal. Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983); Mahoney v. Beatman, 110 Conn. 184, 197, 147 A.2d 762 (1929); Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 206, 470 A.2d 705 (1984). The trial court’s denials of the defendants’ motions to set aside the verdict and for judgment notwithstanding the verdict were proper applications of existing law.

We turn now to the plaintiff’s cross appeal challenging the verdict as inadequate. A motion to set aside a verdict must be filed within five days of the acceptance of the verdict by the court. Practice Book § 320; Coehlo v. Posi-Seal International, Inc., 208 Conn. 106, 108 n.3, 544 A.2d 170 (1988). In this case, the court accepted the verdict on May 26, 1988, but the plaintiff’s motion of June 3,1988, was not timely filed. Our review of the plaintiff’s substantive claim is therefore limited to a determination of whether acceptance of the verdict by the trial court constitutes plain error. Practice Book § 4185; Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988); Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981).

“When our review is limited to the plain error standard, the appellant does not have access to plenary review. Review for plain error ‘ “is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).’ ” Small v. South Norwalk Savings Bank, supra, 759, quoting Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986). If this standard is applied, it is clear that the court did not commit plain error in accepting the verdict.

There is no error on either the appeal or the cross appeal.

In this opinion the other judges concurred.

       The defendants are the Louisville Ladder Division of Emerson Electric Co. and W. W. Grainger, Inc., the manufacturer and the retailer, respectively, of the product at issue.

       The jury answered the interrogatories submitted to it as follows:
      “1. Do you find that the ladder was in a defective condition unreasonably dangerous to the user at the time it was sold because of its design?” Answer, “Yes.”
      “2. Do you find that the defective condition was a substantial factor in causing the plaintiff’s injuries?” Answer, “Yes.”
      “3. What is the total amount of damages that the plaintiff should receive, assuming the plaintiff himself was free from comparative responsibility?” Answer, “$100,000.”
      “4. Was the plaintiffs own conduct, in one or more ways claimed in the special defenses, a proximate cause in bringing about his injuries?” Answer, “Yes.”
      “5. If the answer to No. 4 is Yes, what is the percentage of the plaintiffs responsibility, as compared to the responsibility of the defendants?” Answer, “25 percent.”

       The defendants brought this to the attention of the trial court at the hearings on the motions to set aside the verdict and thereby properly preserved the issue.


author: Daly, J.

text:
    State of Connecticut v. Ronald K. Wildes
    (7780)
    Borden, Daly and O’Connell, Js.

      Argued October 19
    decision released December 12, 1989

      Edward E. Moukawsher, for the appellant (defendant).

      Jacqueline J. Footman, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Marcia Pillsbury, deputy assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction rendered after he had entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, to a charge of possession of narcotíes in violation of General Statutes § 21a-279 (a). The sole issue on appeal is whether the trial court properly denied the defendant’s motion to suppress when it concluded that the search was reasonable as a search incident to an arrest, or under the inevitable discovery doctrine.

The trial court found the following facts. On September 22, 1988, at approximately 7:20 a.m., Detective Randy Gerovitz of the Groton police department was in uniform and on duty at an entrance of the Electric Boat Division of General Dynamics Corporation because of a strike at the facility. At this time, Gerovitz stopped a vehicle operated by the defendant after observing that the registration plate appeared to have expired.

Upon stopping the defendant, whom the officer recognized as the proprietor of a local business, he learned that the registration plate was, in fact, expired and that the plate did not belong on that vehicle. A computer check on the plate verified that the plate belonged to another individual. Gerovitz then informed the defendant that he was under arrest for operating an unregistered motor vehicle in violation of General Statutes § 14-12a, an infraction, and for misuse of registration plates in violation of General Statutes § 14-147 (c), a misdemeanor.

After informing the defendant that he was under arrest, Gerovitz conducted a pat-down search of the defendant’s person for weapons. During the pat-down, Gerovitz discovered in the defendant’s back pocket a bulky wallet, which he removed from the defendant. On the basis of his experience that individuals sometimes conceal small weapons such as razor blades and small handguns, Gerovitz opened the wallet. Noting that the wallet contained a large amount of money, Gerovitz removed the money, counted it and returned it to the defendant. He then searched the wallet for weapons. While the wallet was open, Gerovitz observed within it, in plain view, a small folded piece of paper consistent with the type that holds cocaine. Gerovitz gave the piece of paper to a detective, who had arrived to lend assistance. The detective opened the folded piece of paper and found that it contained a white substance that appeared to be cocaine. The defendant was then informed that he was being charged with possession of narcotics in violation of General Statutes § 21a-279 (a). The defendant was transported to police headquarters and later was released on a promise to appear.

The defendant filed a motion to suppress the fruits of the search relying on article first, § 7, of the Connecticut constitution. After the court denied the motion, the defendant entered a nolo contendere plea to the charge of possession of narcotics, and pleaded guilty to the charge of operating an unregistered motor vehicle. The defendant was sentenced and this appeal from the narcotics conviction ensued.

The defendant claims that, although his arrest was lawful, the scope of the search was unreasonable and violated the state constitutional standard set forth in State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988), for custodial arrests for traffic offenses. See Conn. Const., art. I, § 7.

The trial court also relied on the State v. Dukes, supra, holding when it determined that the search was reasonable. The trial court interpreted Dukes to hold that where there is no claim of a pretextual traffic stop, the officer has a right to search the person of the defendant for weapons incidental to an arrest. On the basis of this understanding, the court concluded that the officer had the right to search the defendant for weapons, and that, when he felt the bulge in the defendant’s pocket, he had the right to remove the items. Finally, having ascertained that it was a bulky wallet that he reasonably believed could contain a weapon, the officer had the right to open the wallet. We agree.

The concurring opinion in Dukes, supra, fairly summarizes the majority’s holding as to the state constitutional requirements regarding searches of persons incident to lawful custodial arrests where such arrests are for traffic offenses: “Rather than endorse under our state constitution the broader holding of Robinson that ‘in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment’; United States v. Robinson, [414 U.S. 211, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)]; the majority would limit ‘the intensity of such a search ... to that which, under the circumstances, is necessary to the discovery of weapons. Thus, it will depend upon what is reasonable to the officer at this time and permits the accomplishment of the purpose of neutralizing potentially available weapons without endorsing a broader purpose of searching for evidence.’ ” State v. Dukes, supra, 128 (Shea, J., concurring).

As the Dukes majority pointed out, our state constitution affords a defendant arrested for a traffic offense greater protection from searches than does the federal constitution. Specifically, the officer is limited to a search of the defendant’s person for weapons. The scope of that search, however, may go beyond a mere pat-down search. That scope depends on “what is reasonable to the officer at that time and permits the accomplishment of the purpose of neutralizing potentially available weapons without endorsing a broader purpose of searching for evidence.” State v. Dukes, supra, 122-23.

Applying this principle to the present case, we conclude that the trial court correctly found that Gerovitz limited his search for weapons and that he acted reasonably under the circumstances. The police officer did not conduct a full search of the defendant’s person. He merely conducted a pat-down search for weapons and he appropriately extended this search by removing the bulky object from the defendant. Furthermore, he acted reasonably in opening the bulky wallet in light of his experience that a small weapon such as a razor blade could possibly have been concealed in the wallet.

Accordingly, the search of the defendant’s person was a reasonable search incident to a lawful custodial arrest for a traffic offense, and did not violate the defendant’s state constitutional protections afforded by article first, § 7. In view of this conclusion, we need not address the issue regarding the court’s alternative holding, namely, that this evidence would have been found under the inevitable discovery doctrine.

There is no error.

In this opinion the other judges concurred.

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

       The defendant also pleaded guilty to operating an unregistered motor vehicle in violation of General Statutes § 14-12a. The defendant has not appealed from this conviction.

       General Statutes § 14-147 (c) provides: “No person shall use any motor vehicle registration or operator’s license other than the one issued to him by the commissioner, except as provided in section 14-18; and no person shall use a motor vehicle registration on any motor vehicle other than that for which such registration has been issued. Any person who violates any provision of this subsection shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both.”

       While the Dukes majority stated also that “[t]here can be . . . circumstances reasonably apparent to the officer that permit a full search of the person, both for weapons and for evidence”; State v. Dukes, 209 Conn. 98, 123, 547 A.2d 10 (1988); this part of the principle does not apply to the present case.


author: Dupont, C. J.

text:
    State of Connecticut v. Scott Soltes
    (7210)
    (7874)
    Dupont, C. J., Daly and Norcott, Js.
    Argued October 13
    decision released December 12, 1989

      Elaine M. Scanlon, with whom, on the brief, was Howard T. Owens, Jr., for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Michael J. Weber, Jr., deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

In these combined appeals, the defendant appeals from the judgment following the convictions by a jury on several criminal charges. He also appeals from a subsequent judgment of the trial court revoking his prior probation because the court determined that he had violated the terms of the probation as a result of the convictions.

The defendant was charged with assault in the second degree, assault in the third degree, threatening, disorderly conduct, breach of the peace and reckless endangerment, and was found guilty of all charges except the last. He did not dispute the facts underlying the state’s charges, but instead relied solely on a defense of mental disease or defect pursuant to General Statutes § 53a-13.

The dispositive issue on the appeal is whether the court erred in excluding the testimony of the defendant’s mother as a lay witness. Her testimony was offered to show the defendant’s mental condition at the time the offenses were committed. We hold that the testimony should have been admitted.

Under § 53a-13 (a), insanity is an affirmative defense, and the defendant bears the burden of proving by a preponderance of the evidence; General Statutes § 53a-12 (b); that, as a result of mental disease or defect, he or she, at the time the offenses were committed, lacked substantial capacity “either to appreciate the wrongfulness of his conduct or to conform that conduct to the requirements of the law.” General Statutes § 53a-13 (a).

“It is well settled that a nonexpert witness may testify as to his impression of another’s mental or emotional state if that opinion is reliable and based on the witness’s observations.” State v. Spigarolo, 210 Conn. 359, 371, 556 A.2d 112, cert. denied, U.S. , 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see Wolk v. Wolk, 191 Conn. 328, 330, 464 A.2d 780 (1983); State v. Palozie, 165 Conn. 288, 298-99, 334 A.2d 468 (1973); State v. McGinnis, 158 Conn. 124, 130-31, 256 A.2d 241 (1969). The tests regarding the admissibility of a nonexpert opinion include whether the evidence is relevant, and whether the witness is competent. State v. Spigarolo, supra. The decision as to the admissibility of such testimony is within the discretion of the trial court and will be reversed only if the court has abused that discretion. Id., 374-75.

A parent is clearly a person who is uniquely able to observe her or his child, and that testimony, based on first hand knowledge and observations of the child, would be competent. “A parent is always competent to testify as to a child’s mental, physical or emotional state at a given time.” State v. Duhan, 38 Conn. Sup. 665, 670-71, 460 A.2d 496 (1982), rev’d. on other grounds, 194 Conn. 347, 481 A.2d 48 (1984); see also State v. Palozie, supra, 299. In this case, the testimony of the defendant’s mother was also relevant because the primary issue for the jury was whether the defendant suffered from a mental disease or defect.

Here, the defendant sought to introduce his mother’s testimony to show genetic, family illnesses that he alleged were medically linked to his mental condition. The court refused to admit that testimony. The excluded lay testimony, had it been admitted, might well have been sufficient to allow the defendant to prove his insanity by a preponderance of the evidence. Therefore, depriving him of the right to present this potentially crucial testimony was tantamount to curtailing his ability to defend himself. The mother’s testimony should have been admitted, and to exclude it was an abuse of discretion. Having thus been denied the right fully to present his defense, the defendant is entitled to a new trial.

Although we need not reach another claim of error, the claim that the trial court erred in granting the state’s oral motion for sequestration, we will address that issue because it may recur on retrial. General Statutes § 54-85a provides: “In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.” That section mandates that, in a criminal case, a sequestration motion by either the defense or prosecution shall be granted. State v. Arroyo, 13 Conn. App. 687, 693, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988); see also Practice Book § 876 (providing for sequestration).

Because the state’s motion did not specify particular witnesses to be sequestered, the court directed the sequestration of all witnesses, both defense and prosecution. The defendant therefore characterizes that order as having been issued sua sponte and argues that the court erred in issuing a blanket sequestration order. He argues that Practice Book § 876 requires that the motion be directed to “any witness,” apparently interpreting those words to require the movant to name specific witnesses.

The interpretation suggested by the defendant would strain the natural meaning of the words of § 876 and violate the directive of § 54-85a. It is unlikely that either the statute or the rule of practice would have been drafted to refer to “any witness” if they had been intended to require that a specific witness be named. We read those sections to mean that a sequestration order shall be granted with respect “to anyone the mover wishes to have sequestered” or “to any or all witnesses.” The oral motion for sequestration of unspecified witnesses was, therefore, reasonably interpreted by the trial court as a motion for sequestration of all witnesses, and the court’s blanket order was not a sua sponte action but a response to the motion.

The defendant further argues that the court erroneously applied the sequestration order to his expert witness. Expert witnesses are not excepted under either the rule of practice or the statute and may be sequestered. State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982). The reason for sequestration of witnesses, namely, to prevent the shaping of the testimony of one witness on the basis of the testimony of another witness, is applicable to medical expert witnesses as well as to other witnesses, even in cases involving insanity as a defense. Id., 26-27. We conclude that there was no error in the sequestration order.

The defendant further argues that if the underlying criminal convictions are reversed, the judgment of probation revocation must also be reversed. The reason stated by the probation department, in its motion to terminate the defendant's probation, was: “Soltes currently has pending charges in G.A. 5, under docket # CR 5-69103 of Assault 2d, Breach of Peace (2 counts), Reckless Endangerment 1st, and Threatening. Should he be found guilty of any of the charges he will be found in Violation of Probation.” The finding by the court of a probation violation rested upon the conviction of the defendant on those underlying criminal charges. Cf. State v. Smith, 18 Conn. App. 368, 370 n.l, 558 A.2d 257 (1989). Because we now set aside the judgment of conviction on those charges, the judgment of a probation violation must also be reversed.

Finally, the defendant contends that even if his convictions were not set aside, the court erred in revoking his probation because the revocation hearing was initiated by a motion by the department of adult probation rather than by an arrest warrant supported by an affidavit or sworn testimony. See State v. Baxter, 19 Conn. App. 304, 312 n.8, 563 A.2d 721 (1989). This claim is premature. It is not now known whether the defendant will be found guilty or not guilty by reason of mental disease or defect. Thus it cannot be known if the defendant will be charged with a violation of probation or, if so, whether that charge will be initiated by motion of a probation officer or by an arrest warrant. We, therefore, do not address this issue.

There is error, the judgment of conviction is set aside and the case is remanded for a new trial; the judgment of violation of probation is set aside.

In this opinion the other judges concurred.

       The defendant also raises several other claims of error. He argues that the trial court erred in excluding the testimony of a rebuttal witness, in qualifying a particular state’s witness as an expert, in “extensively” examining the defendant’s key witness, in making “detailed inaccurate and prejudicial comments on the evidence during the jury charge,” and in failing to order a presentence investigation of the defendant prior to imposing sentence for the violation of probation and the criminal convictions. These issues need not be discussed because they are not likely to recur on retrial.


text:
    State of Connecticut v. Michael Janson
    (7808)
    Borden, Spallone and Lavery, Js.
    Argued October 20
    decision released December 12, 1989

      Frederick W. Odell, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Samuel J. Sferrazza, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, after a trial to the court, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant’s sole claim is that the trial court erred in allowing into evidence the chemical analysis of his blood sample taken during hospital treatment for his injuries. We find error.

The facts are as follows. At approximately 7:47 p.m. on May 10, 1988, Officer Tracey Troiano of the Canton police department was dispatched to Mohawk Drive in Canton where she found the defendant’s badly damaged vehicle. Although the evening was clear and dry and no other cars were involved, the defendant’s car had collided with and shattered a telephone pole. Troiano saw the defendant staggering down the street, ran over to him and ascertained that he had been the operator and sole occupant of the wrecked vehicle. He was bleeding from his knuckles and face. After resisting medical attention, he allowed Troiano to bandage his hands.

Officer Steven Cudworth arrived at the scene and noticed that the defendant had a ruddy face and glazed eyes and was unsteady on his feet. Neither officer detected any alcohol on the defendant’s breath. Although Cudworth suspected that the defendant might be under the influence of alcohol or drugs, no field sobriety tests were administered to the defendant because of his apparent need of medical attention.

An ambulance arrived at the scene at 8 p.m. The defendant became violent and angry when a medical attendant touched him, but he calmed down shortly thereafter and agreed to be taken to a hospital. A subsequent examination of the area where the accident had occurred disclosed tire skid marks indicating that the defendant’s vehicle was spinning at the time it hit the telephone pole. Notwithstanding the defendant’s claim that he had been traveling at forty to forty-five miles per hour, Cudworth estimated from the skid marks that the defendant’s vehicle had been traveling on that residential street at seventy miles per hour just before the accident.

Later that evening, Cudworth called the University of Connecticut Health Center to determine whether the defendant was to be given a blood test and learned that a blood sample had already been drawn. On June 9, 1988, the Canton police, pursuant to General Statutes § 14-227a (m), obtained a search and seizure warrant for the medical records containing the results of the defendant’s blood test. The records indicated that the defendant’s blood alcohol level was .256 at the time the test was administered.

The defendant’s sole claim of error on appeal is that the trial court erred in admitting into evidence the chemical analysis of his blood sample taken at the hospital on the night of the accident. Over the defendant’s objection, the trial court admitted the test results under General Statutes § 4-104, the hospital records statute. The only question before us is whether such results were inadmissible under § 14-227a (m); see footnote 1, supra; which governs the admissibility in a criminal prosecution of hospital tests for the amount of drugs or alcohol in the blood of an injured operator of a motor vehicle. Since § 14-227a (m) focuses on criminal prosecutions for driving under the influence, where the vehicle operator was taken to a hospital for treatment, its specific terms must override the more general terms of § 4-104. Thus, if the test results in this case are inadmissible under § 14-227a (m), they are “otherwise inadmissible” under § 4-104.

The defendant claims that the standards of subdivisions (1) and (2) of § 14-227a (m) were not met because it was not established that the blood sample (1) was taken for the purpose of diagnosis and treatment, and (2) was drawn by a member of one of the four categories of statutorily qualified persons. We agree that nothing in the record discloses the identity of the party who administered the blood test and, therefore, we find error.

The defendant’s first claim of error, challenging the medical relevance of his blood test, is without merit. The record supports the conclusion that the drawing of blood from this injured defendant was germane to the hospital’s medical treatment of the patient. Thus, subdivision (1) of § 14-227a (m) was satisfied.

Section 14-227a (m) (2) unambiguously states that the results of any blood test, in order to be admissible under its provisions, must be the product of an analysis of a “blood sample taken by a person licensed to practice medicine in this state, a qualified laboratory technician, an emergency technician ii or a registered nurse.”

This requirement directly promotes the underlying validity of the test itself and so must be strictly construed. Cf. State v. Garrity, 17 Conn. App. 376, 382-83, 552 A.2d 452 (1989).

The defendant’s hospital record contains the phrase “Bid wt drawn,” in an area of the record designated as a nursing note. There is no identification of the person who drew the defendant’s blood and no hospital employee testified at trial. The state argues that because the sample was taken in the hospital, it must have been taken by a qualified person. That may be so, but the definition of a qualified person under hospital guidelines may or may not be the same as that enunciated in § 14-227a (m) (2). We cannot speculate that the two are the same. The legislature has mandated a limited list of qualified professionals and the state must sufficiently identify the person taking the sample as being one of those qualified. Furthermore, the state’s argument would render subdivision (2) meaningless. It would permit evidence satisfying subdivision (1), that a blood test was taken in a hospital’s regular course of business, to satisfy subdivision (2) without more.

Although great deference is due trial court rulings on the admissibility of evidence; State v. Speers, 17 Conn. App. 587, 601-602, 554 A.2d 769, cert. denied, 211 Conn. 808, 559 A.2d 1142 (1989); we hold here that it was error for the trial court, under the facts and circumstances in this case, to rule that the mandates of § 14-227a (m) were met.

The defendant, who bears the burden of establishing the harmfulness of an evidentiary error; State v. Milner, 206 Conn. 512, 521, 539 A.2d 80 (1988); has demonstrated that it is more probable than not that the trial court’s error affected the verdict. See State v. Daniels, 18 Conn. App. 134, 145, 556 A.2d 1040 (1989). Because both admissible and inadmissible evidence was entertained by the court, we cannot know which evidence was the dominant factor in the court’s ultimate determination that the defendant was guilty beyond a reasonable doubt of driving while intoxicated. It would be pure conjecture for us to conclude that the improperly admitted evidence played no role in the court’s conclusion of guilt.

There is error, the judgment of conviction is set aside and the ease is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 14-227a (m) provides: “Notwithstanding the provisions of subsection (c) of this section, evidence respecting the amount of alcohol or drug in the blood of an operator of a motor vehicle involved in an accident who has- suffered or allegedly suffered physical injury in such accident, which evidence is derived from a chemical analysis of a blood sample taken from such person at a hospital after such accident, shall be competent evidence to establish probable cause for the arrest by warrant of such person for a violation of subsection (a) of this section and shall be admissible and competent in any subsequent prosecution thereof if: (1) The blood sample was taken in the regular course of business of the hospital for the diagnosis and treatment of such injury; (2) the blood sample was taken by a person licensed to practice medicine in this state, a qualified laboratory technician, an emergency technician ii or a registered nurse; (3) a police officer has demonstrated to the satisfaction of a judge of the superior court that such officer has reason to believe that such person was operating a motor vehicle while under the influence of intoxicating liquor or drug or both and that the chemical analysis of such blood sample constitutes evidence of the commission of the offense of operating a motor vehicle while under the influence of intoxicating liquor or drug or both in violation of subsection (a) of section 14-227a; and (4) such judge has issued a search warrant in accordance with section 54-33a authorizing the seizure of the chemical analysis of such blood sample.”

         General Statutes § 4-104 provides in pertinent part: “Any and all parts of any such [hospital] record [kept in connection with patient treatment] or copy, if not otherwise inadmissible, shall be admitted in evidence without any preliminary testimony, if there is attached thereto the certification in affidavit form of the person in charge of the record room of the hospital . . . indicating that such record or copy is the original record or a copy thereof, made in the regular course of the business of the hospital, and that it was the regular course of such business to make such record at the time of the transactions, occurrences or events recorded therein or within a reasonable time thereafter.” (Emphasis added.)

       This case is distinguishable from cases in which this court has liberally construed the terms of General Statutes § 14-227a (c), which more commonly than § 14-277a (m) provides the evidentiary basis for admitting alcohol level blood tests. See, e.g., State v. Garrity, 17 Conn. App. 376, 382-83, 552 A.2d 452; State v. Ballantyne, 17 Conn. App. 209, 214-15, 551 A.2d 770 (1988); State v. Desso, 16 Conn. App. 165, 168, 547 A.2d 74, cert. denied, 209 Conn. 827, 552 A.2d 433 (1988). These cases admitted into evidence tests that did not in all degrees literally comply with health department regulations referenced in § 14-227a (c) when those regulations were “in no way connected with promoting the underlying validity of the test itself.” State v. Garrity, supra, 383.