author: Landau, J.

text:
    Housing Authority of the City of Norwalk v. Mary Harris et al.
    (10802)
    Nokcott, Foti and Landau, Js.

      Argued June 5
    decision released August 18, 1992

      Steven R. Berg, with whom were Dennis O’Brien and Terrence Real, for the appellant (named defendant).

      Bruce L. Lev, with whom was Donna M. Lattarulo, for the appellee (plaintiff).
   Landau, J.

The defendant Mary Harris appeals from the trial court judgment of possession in favor of the plaintiff, the housing authority of the city of Norwalk (housing authority), in a summary process action. The dispositive issue in this appeal, a question of first impression in this state, is whether the plaintiff was required to include a “Kapa notice” in its notice to quit as a condition precedent to commencing the summary process action against the defendant. We con-elude that a Kapa notice was required in the plaintiffs notice to quit in order to confer jurisdiction on the trial court.

The following undisputed facts are relevant to our resolution of this appeal. The defendant, a widowed mother of seven, has been living in Roodner Court, federally subsidized public housing, in Norwalk since 1959. In September of 1983, the plaintiff and the defendant entered into a written lease of apartment 3F in building twenty-three of Roodner Court. Also living in the apartment and specifically named on the lease are the defendant’s children, Mary Harris, Jr., and Parks Harris, Jr. On March 1,1990, Mary, Jr., was arrested for selling narcotics in an outdoor stairwell between buildings eleven and twelve at Roodner Court, an area that could not be seen from the defendant’s apartment. The police connected neither the defendant nor her apartment with the daughter’s illegal conduct. As a direct result of the daughter’s arrest, the plaintiff caused a notice to quit possession to be served on the defendant on June 1,1990. The notice to quit alleged that the defendant had failed to meet her duty as a tenant under General Statutes § 47a-ll (g) to require others on the premises with her consent to conduct themselves in a manner that does not constitute a serious nuisance. Specifically, the notice to quit alleged that she created a serious nuisance by using or permitting the use of the premises for illegal sale of drugs. The notice did not inform the defendant of her statutorily guaranteed right to rectify the alleged violation within twenty-one days. General Statutes § 47a-15. The defendant remained in possession and the plaintiff instituted a summary process action seeking a judgment of possession against the defendant. The plaintiffs complaint in the summary process action alleged that Mary Harris, Jr., “committed acts upon the premises which constituted use of the premises for the illegal sale of drugs” and that “[her] conduct . . . on the premises constitutes a serious nuisance as defined in [General Statutes] § 47a-15, in violation of [General Statutes] § 47a-ll (g).” There is no reference to any conduct on the part of the defendant. In her fourth special defense, the defendant alleged that the plaintiff failed to notify her as required by § 47a-15.

The trial court concluded, inter alia, that the defendant “failed to require Mary, Jr., to conduct herself in a manner that did not constitute a serious nuisance” and that “a Kapa notice ... is not required where a tenant has caused a serious nuisance.” On the basis of these findings, the trial court rendered judgment for the plaintiff. From this judgment, the defendant has appealed.

The defendant argues that the plaintiff was required, pursuant to General Statutes § 47a-15, to notify the defendant in writing prior to the commencement of the summary process action of the particular acts or omissions forming the basis of the términation and the fact that she was entitled to twenty-one days to rectify the misuse. The essence of the defendant’s argument is that § 47a-15 requires landlords to notify tenants of these rights except where specifically exempted in that statute, and that her conduct does not fall within one of the enumerated exemptions. Specifically, as related to this case, the defendant argues that General Statutes § 47a-15 exempts the plaintiff from providing such notification only where the landlord elects “to evict based on . . . conduct by the tenant which constitutes a serious nuisance”; (emphasis added); General Statutes § 47a-15; and that because the plaintiff neither alleged nor proved any conduct of the defendant that would constitute a serious nuisance, the plaintiff was required to adhere to the notice requirement of General Statutes § 47a-15. The plaintiff argues that the language of § 47a-15, that exempts the plaintiff from adhering to its notice requirement based on “conduct by the tenant which creates a serious nuisance,” necessarily includes the defendant, as well as her daughter, because the purpose of the statute is to hold tenants liable for the activities of all members of the household. We agree with the defendant.

Summary process is a statutory remedy that enables a landlord to recover possession from a tenant on the termination of alease. General Statutes § 47a-23. The remedy of summary process is available only when there is a lease and the lease has been terminated. Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987). “ ‘Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed.’ ” Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600-601, 96 A.2d 217 (1953); Marrinan v. Hamer, 5 Conn. App. 101, 103, 497 A.2d 67 (1985). It follows that, before a landlord may pursue its statutory remedy of summary process, the landlord must prove compliance with all of the applicable preconditions set by state and federal law for the termination of a lease. “[Summary process] is preceded by giving the statutorily required notice to quit possession to the tenant. Webb v. Ambler, 125 Conn. 543, 552-53, 7 A.2d 228 (1939).” Housing Authority v. Hird, 13 Conn. App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988); Marrinan v. Hamer, supra. “As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity.” Lampasona v. Jacobs, 209 Conn. 724, 729, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989); Ossen v. Kreutzer, 19 Conn. App. 564, 568, 563 A.2d 741 (1989). “In order to demonstrate its compliance with the notices required for a proper termination, a landlord must show that the notices given to the tenant apprised her of the information a tenant needs to protect herself against premature, discriminatory or arbitrary eviction. ... To further this salutary purpose, the notice requirements of § 47a-15 must be construed strictly.” (Citations omitted.) Jefferson Garden Associates v. Greene, supra, 143-44.

“Section 47a-15 applies to residential apartments generally; Hoban v. Masters, 36 Conn. Sup. 611, 613, 421 A.2d 1318 (1980); and provides that under certain circumstances, in which a tenant fails to comply with his or her rental obligations under § 47a-ll, the landlord is required to deliver to the tenant a written notice ‘specifying the acts or omissions constituting the breach’ and to give the tenant thirty days to abate the violation or risk the termination of the tenancy. This notice provision has been interpreted to be separate from and preliminary to the maintenance of a summary process action pursuant to § 47a-23. See Marrinan v. Hamer, [supra, 104]; Kapa Associates v. Flores, 35 Conn. Sup. 274, 278, 408 A.2d 22 (1979).” Ossen v. Kreutzer, supra, 569.

“ ‘The language of [§ 47a-15] is clear and unequivocal. It creates a thirty-day reconciliation period, allowing errant tenants to remedy their first miscue within twenty-one days of the termination notice.’ Kapa Associates v. Flores, [supra]. The legislative purpose is to discourage summary evictions against first offenders; the machinery of summary process is suspended pending any reoccurrence of substantially the same violation within six months. Id.” Marrinan v. Hamer, supra. Additionally, the plain language of § 47a-15 expressly exempts a landlord from compliance with its notice provisions in cases where the breach of the rental agreement is based on a tenant’s nonpayment of rent or conduct by the tenant that constitutes a serious nuisance or on conduct that constitutes a violation of § 47a-ll (h). See footnote 7, supra.

The question at the heart of this appeal is whether the defendant’s conduct is “conduct by a tenant which constitutes a serious nuisance.” General Statutes § 47a-15. If her conduct constitutes a serious nuisance, a Kapa notice is not required. If her conduct does not constitute a serious nuisance, a Kapa notice is required. General Statutes § 47a-ll (g) distinguishes between the duty of a tenant to refrain from committing a serious nuisance, as defined by § 47a-15, and the duty of a tenant to require others on the premises with her consent to conduct themselves in a manner that does not constitute a serious nuisance. “For the purpose of [General Statutes § 47a-15], ‘serious nuisance’ means . . . using the premises for . . . the illegal sale of drugs.” General Statutes § 47a-15.

As noted earlier, the notice to quit alleged that the defendant violated § 47a-ll (g) by “creating] a serious nuisance by using or permitting the use of the premises for illegal sale of drugs.” The trial proceeded on the theory that the summary process action against the defendant was based on the defendant’s having violated the statute by permitting the use of the premises for the illegal sale of drugs, not that she personally used the premises for the illegal sale of drugs. Failure to require others to conduct themselves in a manner that does not constitute a serious nuisance, however, is not itself a serious nuisance as defined by § 47a-15. An enumeration of powers in a statute forbids things not enumerated; State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957); and an express mention in a statute of one exemption precluded reading others into the statute. State v. Kish, 186 Conn. 757, 765, 443 A.2d 1274 (1982); Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 301, 57 A.2d 128 (1948).

We conclude that the defendant’s conduct did not constitute a serious nuisance as defined by General Statutes § 47a-15 and, thus, the plaintiff was not relieved of its obligation to notify the defendant, in its notice to quit, of the acts or omissions forming the basis of the termination and that she was entitled to twenty-one days in which to rectify the violation. The plaintiff’s failure to provide the defendant with a proper notice to quit deprived the trial court of jurisdiction to render judgment. See Lampasona v. Jacobs, supra.

A review of the legislative history further supports our conclusion in this case. The Senate hearings on Public Acts 1980, No. 80-288, reveal that the thirty day notice requirement of General Statutes § 47a-15 would be waived if an individual has been convicted of one of a series of offenses and the waiver of notice requirements apply exclusively to individuals who have been convicted of crimes under the terms of the bill. 23 S. Proc., Pt. 9, 1980 Sess., pp. 2722-23. Although the legislature has altered, through amendments, the type of conduct requiring the notice provisions of the statute (serious nuisance replaced illegal conduct), and the burden on a tenant where a landlord seeks to evict on the basis of the tenant’s failure to require others on the premises with his consent to conduct themselves in a manner that does not constitute a serious nuisance when the tenant claims to have no knowledge of such conduct (burden shifts to the defendant to prove lack of knowledge), the legislature has taken no action regarding whom the statute was intended to reach. There is clear intent to treat differently those committing a serious nuisance and those who failed to require others to desist from committing a serious nuisance.

A further review of the legislative history indicates that the purpose of the statute is not to hold tenants responsible for the activities of other members of the household, as argued by the plaintiff. Rather, the purpose of the statute is to abate the nuisance by providing the tenant with one opportunity to eliminate the cause of the nuisance. This purpose is most effectively served by requiring compliance with § 47a-15.

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

In this opinion the other judges concurred.

       Also named in the complaint, but not party to this appeal, are three of the defendant’s children, Mary Harris, Jr., Kim Harris and Parks Harris, Jr. We will refer in this opinion to Marry Harris as the defendant.

       The phrase “Kapa notice” comes from Kapa Associates v. Flores, 35 Conn. Sup. 274, 408 A.2d 22 (1979), which requires a landlord seeking to evict on the basis of specifically enumerated conduct of a tenant to notify the tenant of the particular acts or omissions forming the basis of the termination and the fact that he or she is entitled to twenty-one days to rectify the misuse. See General Statutes § 47a-15.

       The other issue raised by the defendant was that the trial court relied on improper criteria in reaching its factual conclusion that the defendant did not satisfy her burden of proving that she had no knowledge of her daughter’s drug sales.

       Pursuant to a concededly inflexible drug policy enacted by the housing authority, if evidence of drug sales by a family member of a resident is presented to the housing authority, it institutes eviction proceedings against the entire family.

       General Statutes § 47a-ll provides in relevant part: “A tenant shall . . . (g) conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors’ peaceful enjoyment of the premises or constitute a nuisance, as defined in section 47a-32, or a serious nuisance, as defined in section 47a-15 . . . .”

       General Statutes § 47a-15 provides in relevant part: “Prior to the commencement of a summary process action, except in the case in which the landlord elects to proceed under sections 47a-23 to 47a-23b, inclusive, to evict based on nonpayment of rent, on conduct by the tenant which constitutes a serious nuisance or on a violation of subsection (h) of section 47a-ll . . . the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than thirty days after receipt of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within twenty-one days the rental agreement shall terminate . . .

       There is no dispute that the conduct of the defendant’s daughter constituted a serious nuisance by her as defined by General Statutes § 47a-15, and, therefore, that the plaintiff was not required to provide her with notice prior to commencing a summary process action against her.

       Premises is defined as “a dwelling unit in the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of tenants generally or whose use is promised to the tenant.” General Statutes § 47a-l (g).


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Arnold L. Beizer v. Michael Goepfert Arnold L. Beizer v. Michael Goepfert et al.
    (10504)
    Daly, Freedman and Cketella, Js.
    Argued May 7
    decision released August 18, 1992

      Mark R. Leder, for the appellant (plaintiff).

      James F. Aspell, for the appellee (named defendant in each case).

      Neil Johnson, pro se, the appellee (defendant in the second case).
   Daly, J.

The plaintiff appeals from the trial court’s judgment in favor of the defendants, Michael Goepfert and his attorney, Neil Johnson, rendered in accordance with the report of an attorney factfinder. The plaintiff claims that the trial court improperly (1) referred these matters to an attorney factfinder, (2) denied his right to a trial by jury, (3) rendered judgment because the evidence was insufficient to support a judgment for the defendants, and (4) rendered judgment without the benefit of the transcript from the proceedings before the attorney factfinder. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On July 4,1986, Goepfert entered into an oral agreement for professional services with his friend, Johnson, an attorney, to handle Goepfert’s personal injury claim against the town of Tolland on a 10 percent contingency fee. At the time of the agreement, Johnson was an associate for the law firm of Teitenberg and Wallace.

In December, 1986, Johnson began working for the plaintiffs law firm. On December 31,1986, the defendants, Michael Goepfert and Neil Johnson, signed a professional services agreement between themselves using a standard form contract supplied by the plaintiffs law firm. Johnson crossed out the 33V3 percent contingent fee figure in the plaintiffs standard form professional services contract and inserted the 10 percent figure previously agreed to in July. In August, 1987, Goepfert’s case was settled for $34,000 by Johnson with guidance from the plaintiff as to the proper settlement figure. Goepfert agreed to pay the 10 percent fee set forth in the contract, but refused to pay the plaintiff’s standard fee of 33V3 percent. The plaintiff withheld his standard fee and brought suit claiming he was entitled to the full 33V3 percent.

On August 18, 1988, the plaintiff instituted a two count action against Goepfert seeking an award of the 33V3 percent fee for services rendered on the settlement of Goepfert’s personal injury claim. The first count was based on breach of contract and the second count was based on quantum meruit. This complaint was signed by the plaintiff. The plaintiff filed an amended complaint dated December 30,1988, adding Johnson to the action. The plaintiff’s amended complaint alleged that Johnson changed the contingency fee agreement without authority. This amended complaint was signed by Martin B. Krulewitz, an associate of the plaintiff’s law firm.

On July 28, 1989, the plaintiff commenced a second action asserting that the defendants conspired to defraud the plaintiff and that the defendant Johnson breached his employment contract and tortiously interfered with the contract relationship between the plaintiff and Goepfert. Goepfert filed a counterclaim against the plaintiff alleging breach of contract and wrongful refusal to pay him the disputed 23V3 percent of the $34,000. On February 27, 1989, the plaintiff claimed the first action for the trial list as a nonjury matter. The plaintiff claimed the second action for the trial list on November 20,1990, and identified this action as a jury matter on the claim for the trial list. Neither party filed a jury docket claim slip pursuant to General Statutes § 52-215 nor did either party pay the $100 jury fee required by General Statutes § 52-258. The case was never placed on the jury docket.

The pleadings were subsequently closed. On February 20, 1990, the trial court granted the plaintiff's motion to consolidate both matters. The matters were referred to an attorney factfinder, Stephen B. Delaney. There were no objections to the referral of this matter.

The factfinder found that the plaintiff failed to meet his burden of proof in both actions. He recommended that judgment be rendered for the defendants on both actions and in favor of the named defendant on count one of the counterclaim, which sounded in breach of contract and was based on the plaintiff’s wrongfully holding onto the disputed portion of the settlement. The plaintiff filed objections to the factfinder’s findings and the objections were overruled by the trial court. The trial court rendered judgment in favor of the defendants on the complaint and awarded Goepfert $7933 plus costs on the counterclaim. The plaintiff appealed.

I

The plaintiff claims that these matters should not have been referred to an attorney factfinder because the requirements of General Statutes § 52-549n were not satisfied. Specifically, the plaintiff argues that the Superior Court lacked subject matter jurisdiction to refer the case to an attorney factfinder because these matters involved tort claims and did not exclusively sound in contract. The plaintiff further contends that that referral was improper because he requested a jury trial.

A claim that the court lacks subject matter jurisdiction cannot be waived. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 499, 508 A.2d 415 (1986). “A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.” Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). We find that in this case the trial court's referral of this matter to an attorney factfinder was proper because the requirements of General Statutes § 52-549n were satisfied.

The phrase “any contract action” in § 52-549n does not require that every claim in a case be a purely contractual action, as the plaintiff contends. Section 52-549n allows “any contract action” to be referred to a fact-finder if only money damages are claimed and if the amount in controversy does not exceed $15,000. “The objective of statutory construction is to give effect to the intended purpose of the legislature.” State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). “ ‘When the language of the statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.’ ” Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990), quoting State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987). Where the language is ambiguous “ ‘this court is to be guided by the language, purpose and legislative history of the statute in question.’ ” Jutkowitz v. Department of Health Services, 220 Conn. 86, 102, 596 A.2d 374 (1991), quoting Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 405, 528 A.2d 805 (1987). The meaning of “any contract action” as used in this statute is not specifically defined.

The legislative history sheds no light on the intended construction of the phrase “any contract action.” According to the statement of purpose of Public Acts 1982, No. 82-441, which became General Statutes §§ 52-549n through 52-549aa and which deals with both factfinders and arbitrators, the statute is intended “[t]o establish, in an effort to reduce the pending civil caseload, a system of fact-finders for certain non-jury cases and a system of arbitration for jury cases . . . .” The statute was adopted to ease the backlog of cases with which the judiciary is plagued. 25 H.R. Proc., Pt. 24, 1982 Sess., p. 7665, remarks of Representative Richard D. Tulisano. This does not lend itself to a narrow construction of the phrase “any contract action.” The legislature intended to free the judiciary from the factfinding tasks in simpler, nonjury cases involving $15,000 or less. This indicates that the legislature preferred to include rather than to exclude cases.

The phrase “any contract action” also lends itself to a broad construction of what claims are included. “Any contract action” can be contrasted with “only contract actions.” The former is much less restrictive. “Any” is defined as “one or some of whatever kind or sort . . . one or some however imperfect used as a function word to indicate one that is selected with indifference to quality.” Webster, Third International Dictionary. On the other hand, “only” is defined as “a single solitary fact or instance or occurrence: as just the one simple thing and nothing more or different: simply, merely, just.” Webster, Third International Dictionary. “Any contract action” implies a broad concept of what constitutes a contract action. Furthermore, there is no language in the statute that limits “any contract action” to claims sounding exclusively in contract.

There are no other statutes that restrict the meaning of “any contract action” under § 52-549n. Section 52-549n does provide for arbitration in “any civil action in which the amount, legal interest or property in demand is less than fifteen thousand dollars exclusive of interest and costs and in which a claim for trial by jury and a claim for the trial list have been filed.” This statute provides greater jurisdiction to the arbitrator than the factfinder in that an arbitrator may hear “all civil actions,” but it does not limit the language “any contract action” of § 52-549n to purely contractual cases. Given the purpose of § 52-549n and the meaning of “any contract action,” this statute does not necessarily exclude cases with a mixture of claims based in contract and tort.

We now consider whether the claims in this case were contractual in nature. In J. Dunn & Sons, Inc. v. Para gon Homes of New England, 110 N.H. 215, 265 A.2d 5 (1970), the New Hampshire Supreme Court set forth the considerations for determining the nature of a claim. In J. Dunn & Sons, Inc., the court examined whether the pleadings sounded in contract for purposes of deciding if an arbitration clause was applicable to the dispute. The New Hampshire Supreme Court presented the following considerations for determining the classification of a claim which may be of assistance in the context of § 52-549n: “The source or origin of the duty alleged to have been violated; the nature of the grievance; the character of the remedy such facts indicate; [and] the type of damages sought.” Id., 217, citing 1 Am. Jur. 2d Actions § 8. “The purpose of the contract duty is to secure the receipt of the thing bargained for, while the tort duty which results from the contract relation of the parties is that a party must refrain from conducting itself so as to cause a particular harm to another party.” Id., 217-18, citing 1 Restatement (Second), Torts § 4, comment c. We shall determine the nature of the present case on the basis of these factors.

All of the plaintiffs claims are based on the professional services contract signed by Johnson and Goepfert and on Johnson’s employment contract with the plaintiff. The facts alleged in both complaints involved the creation and alteration of the fee agreement and the authority of Johnson under his employment agreement. In both complaints, the plaintiff sought damages in the amount of the difference between the 33V3 percent contingent fee and the 10 percent fee provided for in the altered contract. These damages “secure the receipt of the thing bargained for.” Id. These factors indicate that all of the claims involved in the present case are contractual in nature.

As to the specific claims, the allegations that Goepfert breached the professional services agreement and that Johnson breached his employment contract are both contract claims. The claim for recovery in quantum meruit for the value of the work performed is contractual in nature and this is not disputed by the plaintiff. The plaintiff also does not dispute that Goepfert’s counterclaim sounded in contract.

The plaintiff contends that the tortious interference with a contract relationship and the conspiracy to defraud claims, set forth in the complaint in the second suit, are tort claims. Both claims are basically contract actions despite the fact that the plaintiff encoded the second suit as sounding in tort. This court has held that the coding of an action does not determine the basis of the claim for purposes of § 52-549n. McKeever v. Von Reiter, 15 Conn. App. 194, 196, 544 A.2d 242 (1988).

“The elements of tortious interference are the existence of a contractual or beneficial relationship, the defendant’s knowledge of that relationship, the intent to interfere with it and the consequent actual loss suffered by the plaintiff.” Hart, Nininger & Campbell Associates, Inc. v. Rogers, 16 Conn. App. 619, 629, 548 A.2d 758 (1988). The contractual relationship between the plaintiff and Goepfert is central to this claim. The pleadings in support of this claim put forward facts related to the creation of the professional services contract and pray for compensatory damages in the amount of the difference between the disputed fees. This claim is a contract claim for purposes of § 52-549n.

The plaintiff’s allegations with respect to the claim that the defendants conspired to defraud the plaintiff out of the fee set forth in his standard form contract are also contractual in nature for purposes of § 52-549n. This claim has been categorized by our Supreme Court as a tort claim. Rosenblatt v. Berman, 143 Conn 31, 39, 119 A.2d 118 (1955). As previously discussed, however, under § 52-549n a case need not sound exclusively in contract. This claim is so intertwined with the contract that it falls under “any contract action” of § 52-549n. The professional service contract was the vehicle of the alleged conspiracy to defraud. The plaintiff alleged that the defendants agreed to alter the contract after its execution to deprive the plaintiff of the full fee. The creation and alteration of the professional services contract is at the heart of the alleged conspiracy to defraud. Even though conspiracy to defraud is generally classified as a tort claim, it is a contract claim under § 52-549 because the conspiracy to defraud in this case was so intertwined with the formation, execution, and breach of the professional services contract.

The plaintiff next contends that the trial court lacked subject matter jurisdiction because he claimed the case for jury trial. The plaintiff, however, failed to claim this matter properly for jury trial. First, he failed to file a jury docket claim slip as required by § 52-215. Second, he failed to pay the jury fee of $100 as required by § 52-258. The fact that the plaintiff indicated on the claim slip for the trial list, filed on November 20,1990, that the second action was a jury matter does not excuse the plaintiff’s violation of the requirements for a jury trial. Because no claim for a jury trial was properly filed by the plaintiff, the referral by the trial court to the factfinder was within its authority. Thus, the referral of this matter did not implicate the subject matter jurisdiction of the trial court because it was properly referred under § 52-549n.

We will now consider whether the plaintiff waived his right to object to the referral of his case after the factfinder made his findings. Both the plaintiff and the defendants consented to the referral of this matter to an attorney factfinder. Before the trial court referred this case to the attorney factfinder, the plaintiff knew of the facts on which his objections are now based. The appropriate time for the plaintiff to challenge the referral by the trial court would have been, at the latest, before the attorney factfinder began hearing the case. Bowman v. 1477 Central Avenue Apartments, 203 Conn. 246, 251, 524 A.2d 610 (1987). As our Supreme Court explained in Bowman, there is a strong policy behind this requirement. It discourages litigants from reserving their objections to attack an unfavorable outcome. Id., 251-52. Thus, the plaintiff waived his right to challenge the referral of this matter to an attorney factfinder by not raising these objections before the commencement of the hearing.

II

The plaintiff further claims that the trial court’s referral violated his right to trial by jury according to article IV of the amendments to the constitution of Connecticut. Article IV provides that the “right of a trial by jury shall remain inviolate.” “Litigants in a civil case have a constitutional right to have a question of fact decided by a jury.” Speed v. DeLibero, 19 Conn. App. 95, 104, 561 A.2d 959 (1989), rev’d on other grounds, 215 Conn. 308, 575 A.2d 1021 (1990). “Nevertheless, such a right may be subjected to reasonable conditions and regulations.” Shelby Mutual Ins. Co. v. Bishop, Kirk & Saunders, Inc., 13 Conn. App. 189, 192, 535 A.2d 387 (1988).

As discussed previously, the plaintiff failed to follow the statutory requirements for placing a case on the jury docket. Our Supreme Court has determined that the requirements for requesting a trial by jury do not deprive the parties of their right to a jury trial and they do not “impose any arbitrary or unreasonable requirements upon one who desires such a trial.” Leahey v. Heasley, 127 Conn. 332, 336, 16 A.2d 609 (1940). Therefore, because the requirements of §§ 52-215 and 52-258 have not been satisfied, the plaintiff has not been denied his right to a jury trial because of the referral of this matter to an attorney factfinder.

Ill

The plaintiff next claims that there was insufficient evidence to support the conclusions of the factfinder on which the trial court rendered judgment for the defendants. The plaintiff argues that the trial court’s findings involving the validity and enforceability of the written agreement were improper.

A challenge to the trial court's factual findings requires that the plaintiff establish that the factual findings were clearly erroneous. Practice Book § 4061; Cashman v. Calvo, 196 Conn. 509, 516, 493 A.2d 891 (1985). “ ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948). Great deference is given to the trial court’s findings because the trial court is responsible for weighing the evidence and determining the credibility of witnesses. Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991).

The plaintiff disputes the factfinder’s conclusion “[t]hat on December 31,1986, in compliance with state statute, the defendants, Neil Johnson and Michael Goepfert, memorialized their agreement pertaining to the 10 percent contingency fee.” There is sufficient evidence to support all of the trial court’s conclusions as well as this finding of fact. The testimony of Johnson and Goepfert, though not uncontradicted, showed that the defendants, who were friends, entered into an oral agreement in July, 1986, whereby Johnson would represent Goepfert for a 10 percent contingency fee. Johnson testified that he had understood it to be a normal practice for attorneys to charge lower fees to relatives and friends, such as Goepfert.

During the interim between the oral contract and the signing of the standard form contract, the legislature enacted § 52-251c which required that all contingent fee agreements be reduced to writing. This agreement was reduced to writing on December 31, 1986, after Johnson’s employment with Beizer commenced. Both defendants testified that before signing the standard form professional services agreement, Johnson changed the fee clause to provide for a 10 percent fee. Finally, the professional services contract signed by both defendants that had been altered to provide for a 10 percent fee was in evidence. It is reasonable, given this evidence, to conclude that the written contract was merely a memorialization of the original, oral professional services contract and, because of this, the 10 percent contingency fee was valid. Therefore, the factual findings as adopted by the trial court were not clearly erroneous.

The plaintiff also contends that the attorney fact-finder did not properly consider the credibility of the witnesses in determining his findings. The plaintiff asserts that the testimony of his witness, a friend of the plaintiff who practiced law in the same building as the plaintiff, was credible and that the factfinder should have believed him. He contends that Johnson’s testimony was not credible and indicates that, as such, the factfinder should not have relied on it. The plaintiff seeks to have this court determine the credibility of the witnesses. We will not retry the facts or assess the credibility of the witnesses in this case. Eslami v. Eslami, 218 Conn. 801, 808, 591 A.2d 411 (1991); Sippin v. Ellam, 24 Conn. App. 385, 388, 588 A.2d 660 (1991). The finder of fact is in a better position to determine the credibility of witnesses and the weight to be accorded their testimony. Oak Leaf Marina, Inc. v. Ertel, 23 Conn. App. 91, 94, 579 A.2d 568, cert. denied, 216 Conn. 827, 582 A.2d 206 (1990); B. Holden & J. Daly, Connecticut Evidence § 125a. The trial court is not bound by the uncontradicted testimony of any witness. Bieluch v. Bieluch, 199 Conn. 550, 556, 509 A.2d 8 (1986); Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983). The fact that some of the statements by the plaintiff’s witnesses remained uncontroverted does not mean that the trier of fact was required to accept that testimony. The factfinder’s conclusions were based on sufficient evidence and were not clearly erroneous.

IV

The plaintiff next claims that because neither the attorney factfinder nor the trial court had the trial transcripts when making their determinations the judgment cannot stand. We disagree.

There is no rule requiring the factfinder or the trial court reviewing the factfinder’s report to order a transcript. In Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990), pursuant to Practice Book § 546J, the trial court ordered the defendant, who had objected to the findings of the fact-finder, to provide the transcripts before the court made its decision to reject the determinations of the fact-finder. Thus, a trial court may ask that transcripts be provided, but there is nothing that requires that the trial court have the transcripts before rendering judgment.

The plaintiff failed to make the transcripts available to either the factfinder or the trial court even after objecting to the findings of fact. If the plaintiff felt that transcripts were crucial to his objections, he should have submitted them to the trial court. The plaintiff could have but did not ask the trial court to delay its ruling on the objections until the transcript could be obtained. The trial court properly rendered judgment in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-215 provides in pertinent part: “The following-named classes of cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days after the return day (Emphasis added.)

       “[General Statutes] Sec. 52-258. JURY FEES. The jury fee in civil actions shall be one hundred dollars to be paid at the time the case is claimed for the jury by the party at whose request the case is placed upon the jury docket. The jury fee shall be taxed in favor of the party paying the jury fee in the bill of costs in the action, if final judgment thereon is rendered in his favor.”

       General Statutes § 52-549n provides in pertinent part that “the court, in its discretion, may refer to a fact-finder for proceedings authorized pursuant to this chapter, any contract action pending in the superior court in which only money damages are claimed arid which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in demand is less than fifteen thousand dollars exclusive of interest and costs. Such cases may be referred to a fact-finder only after the pleadings have been closed, a trial list claim has been filed, no claim for a jury trial has been filed at the time of reference, and the time prescribed in section 52-215 for filing a jury trial claim within thirty days of the return day or within ten days after the issue of fact has been joined has expired.” See also Practice Book § 546D.

       The plaintiff claims that he had no opportunity to appeal from the fact-finder’s determinations. It is important to note that the plaintiff exercised his right to object to the factfinder’s determinations under Practice Book § 546H. “A party may file objections to the acceptance of a finding of facts on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the fact-finder erred in rulings on evidence or in other rulings, or that there are other reasons why the finding of facts should not be accepted.
      “Objections must be filed within fourteen days after the filing of the finding of facts.” Practice Book § 546H.
      The plaintiff filed his objections and the trial court overruled them.

       Because the plaintiff did not properly request a jury trial in the first place, we need not reach the question of whether he waived his right to a jury trial.

       Practice Book § 546J provides in pertinent part: “After review of the finding of facts and hearing on any objections thereto, the court may take the following action: (1) render judgment in accordance with the finding of facts; (2) reject the finding of facts and remand the case to the fact-finder who originally heard the matter for a rehearing on all or part of the finding of facts; (3) reject the finding of facts and remand the matter to another fact-finder for rehearing; (4) reject the finding of facts and revoke the reference; (5) remand the case to the fact-finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts; or (6) take any other action the court may deem appropriate.”

       The defendants claim for the first time on appeal that the plaintiffs complaints are void under Connecticut law because the plaintiff and his employees improperly signed the complaints involved in this matter to which the plaintiff is a party. In Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 610 A.2d 1260 (1992), our Supreme Court decided that because the policy reasons behind this rule no longer exist, an attorney may sign the writ in a case to which he is a party. The Supreme Court’s decision controls the disposition of this claim and, therefore, the defendants cannot prevail on it.


text:
    State of Connecticut v. Edward F. Johnson
    (10015)
    Landau, Freedman and Cretella, Js.
    Argued April 2
    decision released August 25, 1992

      Mario Paul Mikolitch, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Russell P. Zenter, deputy assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant, Edward F. Johnson, was convicted, after a trial by jury, of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both in violation of General Statutes § 14-227a (a) (1) and of evading responsibility in violation of General Statutes § 14-224 (b). On appeal, the defendant claims that the trial court improperly (1) denied his motion to dismiss, which claimed that a peace officer does not have probable cause to effectuate a warrantless arrest for a misdemeanor committed out of that officer’s presence, (2) failed to permit him to testify regarding his personal history and background, (3) precluded the defendant from introducing evidence of events that allegedly occurred at the police station subsequent to his arrest and failed to conclude that the state’s failure to furnish this evidence violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), (4) charged the jury that it could consider the defendant’s refusal to submit to a breathalyzer test in determining his guilt or innocence and that it was not necessary that the defendant know that the automobile collision he was involved in had caused damage to property, and (5) denied the defendant’s motion for a new trial. He also claims that he was denied his constitutional right to a fair trial because the trial court was biased against him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 23,1990, Catherine Mangels was driving her car on Route 1 in Westbrook when it was struck by a car driven by the defendant. As a result of the collision, the cars became hooked together. Robert Pandora, who had been driving behind Mangels and had witnessed the collision, helped unhook the two cars. Pandora then drove Mangels’ car into the parking lot of a nearby restaurant.

The defendant drove his car to the back of the restaurant lot. Pandora got out of Mangels’ car, went to where the defendant had driven, and told him that a bystander had called the police. The defendant responded that he would not wait for the police, and then tried to leave the restaurant lot. The defendant was having trouble getting his car into gear, so Pandora reached into the defendant’s car, turned off the ignition and removed the keys. Pandora went into the restaurant with the keys, and the defendant followed him in an unsuccessful attempt to retrieve his keys. When the police arrived, Pandora was walking out of the front door of the restaurant with the defendant behind him. The defendant, upon seeing the police, retreated into the restaurant bathroom and locked himself in a bathroom stall.

Pandora led Trooper Michael Polansky of the state police to the bathroom the defendant had just entered. Polansky identified himself and asked the defendant to come out of the stall. After refusing several times, the defendant finally staggered out. The defendant smelled of alcohol, had bloodshot eyes and was slurring his speech. Pandora identified the defendant as the operator of one of the cars involved in the collision. Polansky asked the defendant if he had been involved in the collision and the defendant replied that he had not. Polansky then asked the defendant to take a number of field sobriety tests. After the defendant refused to take the requested tests, Polansky arrested him without a warrant.

On the way out of the restaurant, the defendant acknowledged that he was the owner of one of the cars that had been involved in the collision. At the police station, Polansky asked the defendant to take a breathalyzer test. He refused. The jury subsequently convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both, and of evading responsibility.

I

The defendant first claims that the trial court improperly denied his motion to dismiss. In his motion, the defendant claimed that a peace officer does not have probable cause to effectuate a warrantless arrest for a misdemeanor committed outside the presence of that officer. The defendant argues that General Statutes § 54-lf (a), which governs warrantless misdemeanor arrests and provides in pertinent part that peace officers “shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others,” expands the common law rule for misdemeanor arrests, which stated that a person could not be arrested for a misdemeanor committed outside the officer’s presence. This expansion, the defendant claims, violates the fourth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution.

The state argues that the United States Supreme Court’s decision in United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), which held that the fourth amendment imposes no warrant requirement for felony arrests occurring outside the home, also applies to warrantless misdemeanor arrests outside the home.

The defendant correctly notes that the common law rule was that a person could not be arrested for a misdemeanor unless it was a breach of the peace committed in the presence of the arresting officer. 2 W. LaFave, Search and Seizure § 5.1 (b), pp. 396-97. Connecticut enlarged this rule by statute to permit warrantless arrests “for any offense . . . on the speedy information of others.” Sims v. Smith, 115 Conn. 279, 282, 161 A. 392 (1932). The defendant suggests that such “enlargement may raise constitutional issues.”

Although the defendant asserts this claim on both federal and state constitutional grounds, he does not provide any analysis of either the federal or state constitutional claims. Therefore, we consider his constitutional claims to be abandoned and therefore need not address them. State v. Tweedy, 219 Conn. 489, 510 n.17, 594 A.2d 906 (1991).

II

The defendant next claims that the trial court improperly failed to permit the defendant to testify regarding his mother’s name and where he lived for the first eighteen years of his life. We disagree. At trial, the state objected to the introduction of this evidence on the basis of relevance. In an offer of proof outside the presence of the jury, the defendant argued that this information was relevant to his character. The trial court sustained the state’s objection and the defendant properly excepted.

The rule regarding the admission of character evidence by a defendant is well established. The defendant may introduce only “such specific traits of his character as are involved in the crime or crimes as charged” and not evidence of his “general good character.” State v. Blake, 157 Conn. 99, 103-104, 249 A.2d 232 (1968). The evidence the defendant attempted to introduce bore no relation to the crimes charged. Therefore, we conclude that the trial court properly precluded the defendant from introducing this evidence.

III

The defendant next claims that the trial court improperly precluded him from introducing evidence concerning events that allegedly occurred subsequent to his arrest, and that the state’s failure to provide the defendant with this evidence violated the rule oí Brady v. Maryland, supra, 83. The defendant attempted to introduce photographs depicting injuries that he allegedly suffered during his postarrest detention at the hands of state troopers and testimony concerning a discussion he had with Polansky, five weeks after the arrest, about a videotape allegedly made of this incident. In an offer of proof, the defendant argued that he had a “minor breakdown” and was unable to remember the accident due to these injuries and that the injuries were relevant because they bore on whether he knew of his involvement in the accident, which is an element of the crime of evading responsibility. The trial court ruled that this purported injury lacked relevance because it occurred after the accident and could not have been the cause of his breakdown. We agree with the trial court’s ruling.

“A trial court has wide discretion in its rulings on relevancy.” State v. Williams, 27 Conn. App. 654, 664, 610 A.2d 672 (1992); State v. Gold, 180 Conn. 619, 646, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). “One fact is relevant to another fact whenever according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” State v. Williams, supra, 664-65; State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 658 (1986). “All that is required is that the evidence tend to support a relevant fact.” State v. Williams, supra, 665; State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987).

Our review of the record indicates that this evidence does not render any other relevant fact either certain or more probable, and has no relationship to the crime of evading responsibility. We also note that the defendant attempted to leave the scene of the accident when Pandora told him that a bystander had called the police, indicating that the defendant was aware of his involvement in the accident. We conclude, therefore, that the trial court properly precluded the defendant from introducing this evidence.

The defendant also claims that the state’s failure to furnish this evidence prior to trial violated Brady v. Maryland, supra. We disagree. In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id., 87. Because we conclude that this evidence was neither relevant nor material, the defendant’s claim is without merit.

IV

The defendant next asserts that the trial court improperly charged the jury that it was not necessary that the defendant knew that his accident caused damage to property to be guilty of evading responsibility, and that the jury could consider the defendant’s refusal to submit to a breathalyzer test in determining his guilt or innocence. We disagree.

A

General Statutes § 14-224 (b), evading responsibility, provides that “[ejach person operating a motor vehicle who is knowingly involved in an accident which causes physical injury ... to any other person or injury or damage to property 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 the owner of the injured or damaged property . . . .’’The defendant argues that to be guilty of the crime of evading responsibility, the operator of a vehicle must know of his involvement in an accident and that the accident caused damage to property. The defendant claims that “knowingly” modifies both “involved in an accident” and “damage to property.” The state argues that “knowingly” modifies only “involved in an accident.”

When a statute’s meaning is ambiguous, “compelling principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results.” Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable. State v. Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988).

Prior to 1957, the evading responsibility statute provided that “[e]ach person operating a motor vehicle who knowingly causes injury, whether or not resulting in death, to any other person or injury or damage to property shall at once stop” and render assistance. General Statutes (1949 Rev.) § 239. In 1957, the statute was amended to provide that “[e]ach person operating a motor vehicle who is knowingly involved in an accident which causes injury ... or damage to property shall at once stop” and render assistance.

The effect of this statutory amendment has not been addressed by this court or our Supreme Court. The statutory change was, however, analyzed in State v. Herbst, 2 Conn. Cir. Ct. 236, 197 A.2d 550 (1963). While we are not bound by that court’s decision; State v. Hyatt, 9 Conn. App. 426, 430, 519 A.2d 612 (1987); we agree with its interpretation and adopt it here.

In Herbst, the court, faced with a similar argument, noted the significance of the change in language between the 1949 statute — “knowingly causes injury . . . or damage to property” — and the 1957 statute— “knowingly involved in an accident which causes . . . damage to property” — and concluded that, aside from operation of the vehicle, “the prime element of the [crime] is being knowingly involved in an accident. . . . It is immaterial that the defendant [does] not know that he had caused damage to [property].” State v. Herbst, supra, 238-39. We agree.

Interpreting the statute as the defendant suggests would result in the defendant’s having the means to avoid responsibility simply by allowing him to say that although he knew there was an accident, he did not know that it caused damage to property. Such a result is not reasonable and would indeed thwart the purpose of the statute. We hold, therefore, that the only knowledge required is knowledge that there has been an accident. We reject the defendant’s interpretation and conclude that the trial court properly instructed the jury on the elements necessary to find a violation of General Statutes § 14-224 (b).

B

The defendant next contends that the trial court improperly instructed the jury that it could consider the defendant’s refusal to submit to a breathalyzer test in determining his guilt or innocence. We disagree.

General Statutes § 14-227a (f) provides that a defendant’s refusal to submit to such a test may be admissible if the refusal meets the procedural requirements set forth in General Statutes § 14-227b (b). The procedural requirements are that the defendant must be (1) apprised of his Miranda rights, (2) asked to submit to a blood, breath or urine test, (3) given a reasonable opportunity to contact an attorney prior to the performance of the test, (4) informed that his operating privileges will be suspended if he refuses to submit to the test, and (5) informed that refusal to submit to the test shall be admissible and may be used against him in any subsequent criminal prosecution in accordance with § 14-227a (f).

Our review of the record indicates that the arresting officer fulfilled each of these requirements. First, Polansky testified that he read the defendant his Miranda rights from a card carried by the state police to ensure compliance by arresting officers. Second, Polansky testified that he also read to the defendant from a card that listed the requirements of General Statutes § 14-227b (b). The defendant refused to sign the card indicating that he understood these requirements, but Polansky noted the defendant’s refusal on the card, and signed his name, which was witnessed by another officer who also testified at trial. Moreover, Polansky testified that he personally looked up and dialed the phone number of the defendant’s attorney but was unable to contact him. Because the officer met the procedural requirements of § 14-227b (b), the trial court properly instructed the jury as to any inference that may be drawn from the defendant’s refusal to submit to the breathalyzer test.

V

The defendant’s next claim is that the trial court improperly denied his motion for a new trial. We disagree.

“Appellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. Although our decisions have not been entirely consistent in delineating the appropriate standard for appellate review, we have most often characterized the action of the trial court as an exercise of its legal discretion and have accordingly confined our role to a determination of whether there has been an abuse of discretion. . . . Although we have occasionally taken a broader view . . . we now conclude that the appropriate standard of review is abuse of discretion.” (Citations omitted.) State v. Hammond, 221 Conn. 264, 269-70, 604 A.2d 793 (1992).

Our review of the record indicates that the trial court did not abuse its discretion by refusing to grant the defendant’s motion for a new trial. We, therefore, affirm the trial court’s decision.

VI

The defendant’s final claim is that the trial court was biased against the defendant and that he was consequently denied his constitutional right to a fair trial. We disagree.

“Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. U.S. Const., amend. XIV; Conn. Const., art. I, § 8; Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 [1941]; Wojculewicz v. Cummings, 145 Conn. 11, 19, 138 A.2d 512, cert. denied, 356 U.S. 969, 78 S. Ct. 1010, 2 L. Ed. 2d 1075 [1958]. In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 [1942]; Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 77 L. Ed. 1321 [1933].” (Internal quotation marks omitted.) State v. Gordon, 197 Conn. 413, 424D-25, 504 A.2d 1020 (1985). The defendant is entitled to a new trial only in situations where he can show that the trial court’s actions resulted in prejudice to the defendant. Id., 425.

Our review of the record clearly indicates that the trial court was not biased against the defendant. The trial court was evenhanded in its evidentiary rulings. Furthermore, while the defendant lists eight instances in which he claims that the trial court was biased, he offers absolutely no indication of how this has prejudiced him. The defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant properly preserved these claims for appellate review by taking exceptions to the court’s rulings and instructions.

       General Statutes § 54-lf (a) “makes no distinction between misdemeanors and felonies, but defines and prescribes the limitations upon peace officers in making arrests without a warrant ‘for any offense.’ ” Sims v. Smith, 115 Conn. 279, 282, 161 A.2d 392 (1932).

       The state notes that the federal courts that have examined the meaning of the fourth amendment have held that it imposes no warrant requirement for misdemeanor arrests occurring outside the officer’s presence. See Field v. South Houston, Texas, 922 F.2d 1183, 1189 (5th Cir. 1991) (public intoxication and public exposure); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990) (vehicle tampering); Boucher v. Southbridge, 679 F. Sup. 131, 133 (D. Mass. 1988) (driving under the influence); Wilson v. Walden, 586 F. Sup. 1235, 1237 (W.D. Mo. 1984) (violation of conservation laws).
      A number of state courts have come to the same conclusion. See People v. Burdo, 56 Mich. App. 48, 51, 223 N.W.2d 358 (1974) (driving under the influence); Bucyrus v. Williams, 46 Ohio App. 3d 43, 45, 545 N.E.2d 1298 (1986) (driving under the influence); State v. Lee, 763 P.2d 385, 387 (Okla. Crim. App. 1988) (assault and battery); Thompson v. Commonwealth, 10 Va. App. 117, 121, 390 S.E.2d 198 (1990) (statutory burglary and grand larceny).
      The Connecticut Supreme Court has not addressed this issue. See State v. Santiago, 26 Conn. App. 481, 482 n.2, 602 A.2d 40, cert. granted, 221 Conn. 920, 608 A.2d 686 (1992). In Santiago, the defendant was arrested on the porch of his home, without a warrant and on the speedy information of others, for the misdemeanor of threatening, in violation of General Statutes § 53a-62. The issue was whether the porch was part of the defendant’s home, thereby precluding a warrantless arrest; Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984); or not a part of his home, which would validate the arrest under the fourth amendment if supported by probable cause; United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976).
      Because the court concluded that the porch was part of the defendant’s house, the warrantless misdemeanor arrest was invalid under the fourth amendment. The court, therefore, did not reach the question of whether the warrantless arrest would have been upheld under General Statutes § 54-lf (a) had it been made in a public place. State v. Santiago, supra, 485-86 n.6.

       See part IV, section B, infra.

       The defendant claims that Connecticut courts are divided on whether the state is required to prove that the defendant knew that the accident caused damage to property. The court in State v. La Riviere, 22 Conn. Sup. 385, 389, 173 A.2d 900 (1963), found that four elements were necessary to prove the crime of evading responsibility: (1) damage by the vehicle to the property of another, (2) knowledge by the driver of such damage, (3) failure of the driver to give his name, operator’s license number and registration to the owner of the property and to report such damage to the police, and (4) operation of the vehicle. In State v. Mulvey, 3 Conn. Cir. Ct. 297, 213 A.2d 228, cert. denied, 153 Conn. 721, 212 A.2d 78 (1965), the court held that knowledge by the driver that the accident caused damage to property was not necessary.
      This court is bound by neither the nonconstitutional Circuit Court; State v. Hyatt, 9 Conn. App. 426, 519 A.2d 612 (1987); nor the Superior Court. See Rodia v. Tesco Corporation, 11 Conn. App. 391, 397, 527 A.2d 721 (1987).

       General Statutes § 14-227a (f) provides: “In any criminal prosecution for a violation of subsection (a) or (b) of this section, evidence that the defendant refused to submit to a blood, breath or urine test requested in accordance with section 14-227b shall be admissible provided the requirements of subsection (b) of said section have been satisfied. If a case involving a violation of subsection (a) of this section is tried to a jury, the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.”

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


author: Foti, J.

text:
    State of Connecticut v. Derek J. Jackson
    (10116)
    Dupont, C. J., Foti and Freedman, Js.
    Argued June 15
    decision released August 25, 1992

      Laurel Adams, deputy assistant public defender, with whom, on the brief, was Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2), and hindering prosecution in the first degree in violation of General Statutes § 53a-166 (a). The defendant claims that the trial court improperly (1) denied his motion to suppress, (2) restricted his right to cross-examine the state’s principal witness, (3) instructed as to circumstantial evidence, and (4) failed to give a specific unanimity instruction on the conspiracy and hindering counts. The defendant also claims that his double jeopardy rights were violated when he was convicted both as a principal and for hindering prosecution. We affirm the trial court’s judgment.

The jury reasonably could have found the following facts. On February 26, 1990, at approximately 8:15 p.m., the defendant was driving a late model brown Subaru on Dixwell Avenue in New Haven accompanied by Glenn Fisher and James Davis. In the vehicle there was a loaded twenty-eight inch twelve-gauge, double-barrel shotgun with a white handle. As the victim, Christopher Garvin, walked down the street, the three men decided to rob him. The defendant pulled the car over to the side of the street. Fisher and Davis exited with the shotgun and robbed the victim at gunpoint. The victim was also struck across the back of his head with the barrel of the shotgun, causing the gun to discharge. Fisher and Davis then ran back to the Subaru where the defendant was waiting.

Two plainclothes detectives, Percy Gethers and Mary Fish, observed them as they ran to the car. The detectives were driving an unmarked police car. One of the men was observed carrying an object that appeared to be a rifle or shotgun with a white handle. The police pulled alongside the Subaru and Fish saw Davis place a shotgun on the rear seat of the car. She then rolled down her window, displayed her badge and handgun, and identified herself to the defendant as a police officer. The defendant smiled at her and drove off. The police pursued the speeding vehicle until the defendant slowed the car and Daws jumped out. As the cruiser approached Davis, he yelled, “I don’t have it.” The officers then continued to pursue the Subaru. Shortly thereafter, Fisher jumped out of the Subaru, without the shotgun. The defendant drove onto Prospect Street, and bolted from the car, leaving it in gear with both doors open. The car rolled into the curb. The defendant was apprehended by a uniformed police officer and returned to the automobile.

When Gethers and Fish arrived, they witnessed the defendant’s being apprehended. Fish approached the Subaru and saw the shotgun lying in plain view on the back seat. She left it there and informed the defendant that he was under arrest for carrying a weapon in a motor vehicle. The defendant then stated that he had not been driving the car and that the car did not belong to him.

Later that evening, the victim, whose head injury required fifteen stitches, positively identified Fisher, the shotgun and a hat worn by one of his assailants.

I

The defendant first claims that the trial court improperly denied his motion to suppress the oral statements that he made at the time of his arrest in which he denied owning and operating the Subaru. He claims that these statements were inadmissible because Fish subjected him to a custodial interrogation without informing him of his constitutional privilege against self-incrimination, commonly referred to as the Miranda rights. He argues that any waiver of his privilege against self-incrimination was not made knowingly, intelligently and voluntarily, and that the statements themselves were not voluntarily given.

It is undisputed that the defendant was in custody, that he was not informed of his Miranda rights and that Fish did not ask any questions of the defendant either before or after he made these statements. She was unsure whether she asked the defendant to produce his license and registration. Fish did record both statements in her police log.

At trial, the defendant testified for the limited purpose of establishing that while he was in fact the driver of the Subaru, he was not its record owner. Following the court’s denial of the defendant’s motion to suppress the shotgun, the defendant sought to have his statements suppressed. The court determined that even if Fish had requested the defendant to produce identification, this request did not amount to an interrogation and the defendant had made the statements voluntarily.

Our Supreme Court has consistently held that “two conditions must exist before a criminal suspect is entitled to Miranda warnings: (1) the defendant must be in the custody of law enforcement officials; and (2) the defendant must be subjected to interrogation. State v. Burak, 201 Conn. 517, 531, 518 A.2d 639 (1986); State v. Doehrer, 200 Conn. 642, 646, 513 A.2d 58 (1986); State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986).” State v. Copeland, 205 Conn. 201, 206, 503 A.2d 603 (1987). The sole issue for our determination is whether the defendant was subjected to interrogation when he made the statements in question.

The term “interrogation” under Miranda refers both to express questioning and to any words or actions on the part of the police “ ‘that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” State v. Vitale, 197 Conn. 396, 411, 497 A.2d 956 (1985), quoting Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). “A statement which is not elicited as a result of interrogation, but is given freely and voluntarily without any compelling influence, is admissible in evidence.” State v. Copeland, supra, 207. It is the defendant’s burden to show that he was interrogated. State v. Doehrer, supra, 647.

While the state agrees that Fish was a law enforcement officer, and that the defendant was in custody for the purpose of Miranda, it argues that the defendant failed to sustain his initial burden of showing that he was subjected to interrogation. We agree.

The record in this case indicates that Fish properly placed the defendant under arrest and informed him so. There is no evidence that she asked the defendant any questions concerning the shotgun or the car chase. She initiated no conversation with the defendant other than perhaps asking to see his license and registration. A request for identification, following an arrest, is intended solely to gather information for the purpose of the booking process and does not require warning, in accordance with the rules laid down in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See State v. Evans, 203 Conn. 212, 226-27, 523 A.2d 1306 (1987).

The defendant claims that Fish’s informing him of the arrest impelled him to answer. We do not agree. The defendant was properly arrested and informed of the crime for which he was arrested. Fish’s actions in this regard did not amount to coercive conduct designed to elicit an incriminating response. On the basis of this evidence, we conclude that the trial court properly found that the defendant was not subjected to interrogation and that Fish’s informing the defendant of the reason for his arrest was not an act reasonably likely to elicit an incriminating response from the defendant. Because no interrogation took place, Miranda warnings were not necessary and the defendant’s statements were properly admitted into evidence.

The defendant also claims that irrespective of Miranda warnings, the state did not bear its burden of proving that the statements were made voluntarily.

The use of an involuntary confession in a criminal trial is a violation of due process, and the state has the burden of proving the voluntariness of the statement by a fair preponderance of the evidence. State v. Madera, 210 Conn. 22, 39, 554 A.2d 263 (1989). While the determination of voluntariness is a question of fact; State v. Derrico, 181 Conn. 151, 162-63, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); an independent and scrupulous examination of the entire record is necessary to ascertain whether the trial court’s finding is supported by substantial evidence. State v. Schroff, 206 Conn. 182, 196, 536 A.2d 952 (1988). Ultimately, the test of voluntariness is whether an examination of the totality of the circumstances shows that the police action complained of “was such as to overbear the defendant’s will to resist and bring about a confession, not freely self-determined.” State v. Gonzalez, 206 Conn. 213, 221-22, 537 A.2d 460 (1988).

Under all of the circumstances, we cannot conclude by a fair preponderance of the evidence that the defendant’s statements were made as a result of promises or threats directed at him. He was not coerced nor were any improper inducements employed by the police. On the basis of the record before us, we conclude that there was ample evidence to meet the necessary standard of proof of voluntariness.

II

The defendant claims that he was not allowed fully and effectively to cross-examine the victim and was thus deprived of his constitutional rights under the sixth and fourteenth amendments to the federal constitution, and article first, § 8, of the Connecticut constitution.

The following facts are relevant to this claim. Prior to trial, the state moved in limine, over the defendant’s objection, to prohibit the defense from cross-examining the victim about his prior felony convictions. These convictions were possession of narcotics, carrying a pistol without a permit and failure to appear. The trial court determined that the felony convictions were not probative of credibility and therefore limited the defendant’s counsel to eliciting the fact of each conviction but not the names of the felonies. Defense counsel took no exception to the ruling, stating, “That’s fine, Your Honor.” On direct examination, the victim testified that he had been convicted of three crimes in 1989. On cross-examination, the defendant neither inquired whether these convictions were for felony offenses, nor questioned the victim in any manner about his prior record.

The defendant not only failed to preserve this claim, review of which he now seeks under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 576 A.2d 823 (1989), but he clearly consented to the trial court’s ruling.

The defendant claims for the first time on appeal that the trial court’s ruling prevented him from impeaching the victim’s veracity, thereby depriving him of a theory of defense that the incident was not a robbery but rather an aborted drug buy of which the defendant had no knowledge. At no time did the defendant raise this theory before the trial court. The record, therefore, is inadequate to review this portion of the defendant’s claim. State v. Golding, supra, 239-40.

Our limited review of the claimed constitutional violation, without the necessity of further analysis, leads us to conclude that the defendant cannot prevail because he has failed to demonstrate that the claimed constitutional violation clearly exists and clearly deprived him of a fair trial.

Ill

The defendant next claims that the trial court’s instruction on the application of the standard of proof beyond a reasonable doubt to the underlying facts relating to circumstantial evidence violated his federal and state constitutional rights to a fair trial and to present a defense. The defendant claims that the trial court improperly failed to inform the jury that it should apply a lesser standard of proof to the circumstantial evidence presented by the defendant than to that presented by the state, and therefore placed on him an unconstitutional burden to prove beyond a reasonable doubt the inferences on which he relied.

The trial court charged the jury as follows: “The state does not have to prove each and every fact that comes into issue. It is only the essential elements of the crime . . . that must be proved beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circuihstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of other facts or set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied: That the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt; and that the inference asked to be drawn is logical and reasonable and not the result of speculation and conjecture. You must be satisfied that the fact to be inferred has been proven beyond a reasonable doubt. It is, however, only where a particular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt.”

The defendant did not properly preserve this claim for appellate review as he neither requested an appropriate instruction nor noted his exception to the court’s circumstantial evidence instruction as given. The defendant did request a charge dealing with reasonable conclusions to be drawn from the evidence but did not request a charge that facts inferable from the circumstantial evidence presented by the defendant need not be proven beyond a reasonable doubt.

We have recently rejected similar claims involving a similar or identical instruction. State v. Tinsley, 24 Conn. App. 685, 591 A.2d 448 (1991); State v. Willis, 24 Conn. App. 678, 591 A.2d 444 (1991), affd, 221 Conn. 518, 605 A.2d 1359 (1992); State v. Rivera, 24 Conn. App. 670, 591 A.2d 440, cert. denied, 219 Conn. 914, 593 A.2d 139 (1991). The defendant asks that we distinguish State v. Ortiz, 217 Conn. 648, 588 A.2d 127 (1991), and review his claim under Evans-Golding. The defendant cannot demonstrate, however, that the court’s instruction amounted to a constitutional violation, depriving him of a fair trial. Our review of the entire charge reveals that the jury was properly instructed on the state’s burden of proof of every essential element of the crime charged beyond a reasonable doubt and on the presumption of innocence enjoyed by the defendant. It is not reasonably possible that the instruction misled the jury to apply a burden of proof “beyond a reasonable doubt” to the circumstantial evidence offered by the defendant.

IV

The defendant next claims that the trial court violated his right to a unanimous jury verdict under both federal and state constitutions by failing to give a specific unanimity instruction with respect to the conspiracy and hindering prosecution counts.

By its charging document, the state alleged that the defendant had conspired to commit robbery by agreeing with “one or more persons, to wit Glen Fisher or James Davis to engage in . . . .” (Emphasis added.) The defendant also was charged with hindering prosecution in that he rendered “criminal assistance to a person, to wit: Glen Fisher or James Davis.” (Emphasis added.) The defendant argues that the trial court should have properly instructed the jury that it had to unanimously decide with whom the defendant agreed, Davis or Fisher, and to whom he rendered criminal assistance.

The defendant neither submitted a request to charge nor noted an exception to the instruction as given. Our limited review fails to show that the state charged the defendant with crimes that contain multiple statutory subsections or multiple statutory elements that would have required a unanimity instruction. See State v. Mancione, 15 Conn. App. 251, 277, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989). The defendant cannot prevail since he has failed to demonstrate that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra.

V

Finally, the defendant claims that his convictions as a principal in the commission of a robbery and for hindering prosecution violated his constitutional protection against double jeopardy. While the defendant admits that this claim was not raised at trial, he seeks review pursuant to Evans-Golding. We will review this unpreserved claim because “it is ‘a claim of double jeopardy based on multiple punishment for convictions obtained at a single trial.' ” State v. Tweedy, 219 Conn. 489, 494 n.7, 594 A.2d 906 (1991).

The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. State v. Chicano, 216 Conn. 699, 705-706, 584 A.2d 425 (1990), cert. denied, U.S. , 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

“ ‘ “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” ’ ” State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), quoting State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986). The test of whether two offenses are the same offense for double jeopardy purposes is whether each provision requires proof of a fact that the other does not. State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). Convictions for two offenses arising out of the same criminal incident do not constitute double jeopardy if each crime contains an element not found in the other. State v. Tweedy, supra, 495. We determine whether each crime contains an element that the other does not by reviewing the statutes, the information, and the bill of particulars, if any, and not the evidence. Id. In the present case, each crime contains a distinct element not found in the other. Robbery requires a proof of larceny, whereas hindering prosecution requires proof of criminal assistance to another who has committed a class A or B felony. The charged crimes are not the same offense under the Blockburger analysis. The information in this case does not, as the defendant claims it does, require the conclusion that the crimes are the same. Further, we conclude that the charges did not arise out of the same act or transaction. The defendant was charged as an accessory to robbery, not as a principal, and with hindering the prosecution of two others. The former crime relates to the “commission of the robbery and immediate flight therefrom,” and the latter to rendering criminal assistance after the crime had been committed. As a result, the defendant’s double jeopardy claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       To prevail on an unpreserved claim of error, a defendant must show (1) that the record is adequate to review the alleged claim of error, (2) that the claim is of constitutional magnitude alleging the violation of a fundamental constitutional right; (3) that the alleged constitutional right clearly exists and clearly deprived him of a fair trial, and (4) that if subject to harmless error analysis the state has failed to demonstrate harmfulness of the alleged constitutional violation beyond a reasonable doubt. State v. Golding, 213 Conn. 233, 239-40, 576 A.2d 823 (1989).

       The trial court instructed: “The accused does not have to prove that he did not commit the offense; the state must prove that he did. The presumption of innocence applies to each and every element of the crime. . . . Its only effect is to place upon the state the burden of proving the defendant’s guilt beyond a reasonable doubt . . . . It is only the essential elements of the crime which I will explain to you that must be proved beyond a reasonable doubt.”

       We do not accept the defendant’s assertion that this issue was preserved because the defendant, after the jury had delivered its verdict, requested and was denied a polling of that jury.

         General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-166 provides: “(a) A person is guilty of hindering prosecution in the first degree when he renders criminal assistance to a person who has committed a class A or class B felony or an unclassified offense for which the maximum penalty is imprisonment for more than ten years.”

       The traditional test for double jeopardy was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), which allowed a defendant to be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.


author: Lavery, J.

text:
    Daniel R. Collins v. Louis S. Goldberg, Commissioner of Motor Vehicles
    (10718)
    Dupont, C. J., Norcott and Lavery, Js.
    Argued June 11
    decision released August 25, 1992

      Barry N. Silver, for the appellant (plaintiff).

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

The plaintiff, Daniel R. Collins, appeals from the trial court’s judgment dismissing his appeal from an administrative decision of the defendant commissioner of motor vehicles. On appeal to this court, the plaintiff claims that the trial court improperly dismissed his appeal because (1) the police report relied on at the administrative hearing was a hearsay document improperly admitted into evidence over his hearsay objection, (2) the plaintiff was substantially prejudiced by the admission of the police report into evidence, (3) the trial court improperly placed the burden of proof on the plaintiff to remove the foundational infirmities of the police report, and (4) the trial court improperly held that the plaintiff had abandoned several grounds for his underlying appeal. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. At about 1 a.m. on December 7, 1990, Officer Theodore Stockman of the New Haven police department saw the plaintiff driving his motor vehicle in an erratic manner. After Stockman directed the plaintiff to pull to the side of the road, the plaintiff stopped his vehicle and Stockman approached the car. Stockman detected an odor of liquor on the plaintiff’s breath. Because the plaintiff was uncooperative, however, no field sobriety tests were administered. Indeed, during the questioning and arrest the plaintiff was so argumentative that he had to be physically restrained.

Stockman then took the plaintiff to police headquarters where the plaintiff ultimately consented to a breathalyzer test. The test results showed a blood alcohol content of .131 at 2:11 a.m. and .115 at 2:49 a.m. A written report of the arrest and test results were forwarded to the department of motor vehicles in accordance with General Statutes § 14-227b (c). The commissioner of motor vehicles informed the plaintiff that his operator’s license would be suspended because his blood alcohol content had exceeded the level set forth in General Statutes § 14-227b, the implied consent law. The plaintiff subsequently requested and was given an administrative hearing on the proposed license suspension. The hearing was limited to the four license suspension issues set forth in General Statutes § 14-227b (f).

After the hearing, the hearing officer determined that General Statutes § 14-227b (f) had been satisfied, and ordered that the plaintiff’s operator’s license be suspended for ninety days. The plaintiff appealed to the Superior Court pursuant to General Statutes § 4-183, challenging the hearing officer’s allowance of the police report into evidence. The trial court dismissed the plaintiffs appeal. The plaintiff subsequently appealed to this court.

The plaintiff first claims that because the oath on the police report was not properly completed, the report was a hearsay document improperly admitted into evidence over his hearsay objection at the administrative hearing.

Lieutenant T. McLoughlin signed the police report twice, once as the attesting officer and once as the person administering the oath. Stockman signed the police report as the person who administered the test or caused the test to be administered. The plaintiff asserts that the police report was improperly completed because it was not sworn to by the person who performed the chemical alcohol test. We disagree.

Our Supreme Court has observed that “[sjubsections (b) and (c) of § 14-227b use mandatory language in specifying the procedures to be followed by the police prior to the suspension of a motor vehicle operator’s license for refusal to submit to the statutory tests for ascertaining a driver’s level of intoxication.” Volck v. Muzio, 204 Conn. 507, 511, 529 A.2d 177 (1987). Subsection (c) of § 14-227b provides in relevant part: “The report shall be made on a form approved by the commissioner of motor vehicles and shall be sworn to under penalty of false statement as provided in section 53a-157 by the police officer before whom such refusal was made or who administered or caused to be administered such test or analysis. . . . ” (Emphasis added.) If the report conforms to the requirements of § 14-227b (c), it shall be admissible into evidence. Regulations of Connecticut State Agencies § 14-227b-19.

“If the words of a statute are clear, the duty of a reviewing court is to apply the legislature’s directive since where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended, but what intention it expressed by the words that it used. ... In the absence of ambiguity, statutory language should be given its plain and ordinary meaning.” (Citations omitted; internal quotation marks omitted.) Kilduff v. Adams, Inc., 219 Conn. 314, 336-37, 593 A.2d 478 (1991).

Despite the plaintiff’s assertion to the contrary, the plain language of § 14-227b (c) authorizes either the individual who administered the test or the individual who caused the test to be administered to sign the oath on the police report. In this case, Stockman arrested the plaintiff and brought him to police headquarters. Stockman had McLoughlin perform the test on the plaintiff. Stockman caused the test to be administered to the plaintiff. We conclude that the police report was properly submitted into evidence at the administrative hearing because Stockman’s signature satisfied the requirements of § 14-227b (c).

Because the hearing officer properly admitted the police report into evidence, the plaintiff’s claims (1) that he was substantially prejudiced by the admission of the report and (2) that the trial court improperly placed the burden of proof on the plaintiff to remove foundational infirmities of the police report must necessarily fail.

Finally, the plaintiff claims that the trial court improperly held that several of the plaintiff’s grounds for the underlying appeal had been abandoned. In his complaint, the plaintiff alleged that the actions of the department of motor vehicles were improper on several grounds. The plaintiff’s memorandum of law, however, addressed only the claim that the department of motor vehicles acted illegally, arbitrarily, unconstitutionally, and in abuse of its discretion in suspending the plaintiff’s license because its findings, inferences and conclusions were based on information contained in an improper police report. Because the plaintiff failed to brief the other claims set forth in the complaint, the trial court properly considered them abandoned. Saradjian v. Saradjian, 25 Conn. App. 411, 418, 595 A.2d 890 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The defendant contends that the plaintiff’s appeal is moot because the ninety day suspension has already ended. Because mootness implicates a court’s subject matter jurisdiction, a mootness claim can be raised at any stage of judicial proceedings. Board of Education v. New Haven, 221 Conn. 214, 216, 602 A.2d 1018 (1992). In Plourde v. Liburdi, 207 Conn. 412, 415 n.5, 540 A.2d 1054 (1988), our Supreme Court noted that the issues involved in that appeal from a suspension and confinement pursuant to General Statutes § 14-227a were not moot, because “(1) the issues raised are capable of repetition yet evade review because of the historically short terms of alcohol related confinements; (2) presently there are over 200 inmates identically situated and thus affected by this ongoing program of the state’s penal system; (3) the petitioner could very well be affected if convicted in the future; and (4) there is significant public interest in the disposition of alcohol related offenses.”
      We likewise conclude that the issues raised in this case are not moot because (1) the issues raised are capable of repetition yet evading review due to the relatively brief, ninety day suspension period, (2) the record indicates that in 1991, over 14,000 drivers in Connecticut had had their operator’s license suspended under this ongoing statutory scheme, (3) if the plaintiff again violates § 14-227b he could be adversely affected, as he would be subject to a longer suspension, and (4) there is significant public interest in the disposition of alcohol related offenses.

       At the administrative hearing, Stockman testified as follows:
      “Hearing Officer: Okay. Why didn’t you conduct the test yourself?

        “Stockman: Because of the nature of this arrest and control problems we were having with him. Plus the fact that I have little experience using the machine. I was certified and hadn’t conducted a test on the machine since I’d been certified. So I had a more experienced supervisor do it.
      “Hearing Officer: And that was Lieutenant McLoughlin?
      “Stockman: Yes.”