author: Dupont, C. J.

text:
    State of Connecticut v. Dryden L. Ballantyne, Jr.
    (6516)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 4
    decision released December 27, 1988

      William F. Gallagher, with whom, on the brief, were Daniel A. Lyons, Jr., and Robert P. Borquez, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, was Michael J. Sullivan, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction, rendered upon his conditional plea of nolo contendere, of operating a motor vehicle under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a), and of failing to maintain a reasonable distance between vehicles in violation of General Statutes § 14-240. The defendant claims that the trial court erred in denying his motion to suppress two toxicological reports which contained the results of two blood tests administered on the evening of his arrest.

Certain facts are pertinent. On November 7, 1986, at about 5:21 p.m., the defendant was operating his motor vehicle on Whitney Avenue in Hamden. Two vehicles, apparently preparing to make left turns, were stopped in front of the defendant’s vehicle. The defendant struck the vehicle in front of his car, and this vehicle collided with the vehicle in front of it. The officers who appeared on the scene noticed an odor of alcohol on the defendant’s breath and asked him to perform a series of field sobriety tests. These tests confirmed the officers’ suspicions of intoxication, and the defendant was placed under arrest.

The defendant consented to the administration of two blood tests that were performed at a hospital in New Haven. The first test was administered at approximately 7:34 p.m., and showed the defendant’s blood alcohol content to be above the allowable limit set forth in General Statutes § 14-227a (a) (2). The second test was administered at 8:08 p.m., and also showed the defendant’s blood alcohol level to be above the allowable limit. The results of both tests were reported in toxicological laboratory reports issued by the department of health services. These reports unequivocally indicated that the blood samples given by the defendant were sealed. The name of the officer who sealed the samples, however, was illegible in the first report and not given in the second.

The defendant claims that the trial court erred in denying his motion to suppress the toxicological reports because (1) the reports did not meet the statutory conditions for admissibility under the provisions of General Statutes § 14-227a (c), and (2) the reports did not comply with the requirements of § 14-227a-9 (e) of the department of health services regulations.

I

Before turning to the merits of the defendant’s claim, we must decide whether the defendant’s claim is reviewable. The defendant entered a plea of nolo contendere, conditional on the right to appeal the court’s adverse determination of his motion to suppress the toxicological reports. In this case, the grounds for the defendant’s motion to suppress are “ ‘not included within the statutory language [of General Statutes § 54-94a] allowing appeals from ... an illegal search or seizure in violation of the fourth amendment.’ ” State v. Scott, 16 Conn. App. 172, 173-74 n.1, 547 A.2d 77 (1988), quoting State v. Chung, 202 Conn. 39, 43, 519 A.2d 1175 (1987). Jurisdiction arises, however, under Practice Book § 4003 (b).

Practice Book § 4003 (b) provides that the trial court must refuse to accept a conditional plea of nolo contendere “where the adverse determination of the specified motion would not have a significant impact on the disposition of the case” and “where the record available for review of the ruling upon the specified motion is inadequate for appellate review . . . .” In this case, the court accepted the plea without objection by the state. Implicit in the court’s decision to accept the plea was the determination that the defendant’s motion to suppress would have a significant impact on the outcome of the case. Nothing in the language of § 4003 (b) requires a formal statement by the court, on the record, that the adverse determination of the motion would have a significant impact on the case before it accepts a plea of conditional nolo contendere. Therefore, the defendant’s claim is reviewable pursuant to Practice Book § 4003 (b).

II

The defendant claims that the trial court erred in denying his motion to suppress the toxicological reports because the general statutory conditions precedent contained in General Statutes § 14-227a (c) for the admissibility of such reports were not met. The transcript of the proceedings on the motion to suppress indicates that the defendant’s counsel was expressly asked by the court whether the basis for his motion to suppress was limited to the admissibility of the toxicological reports pursuant to § 14-227a-9 (e) of the department of health services regulations. The defendant’s counsel agreed that this was the sole basis for the motion to suppress. On appeal, however, the defendant claims that an evidentiary hearing should have been held on whether the reports met the requirements of § 14-227a (c). The defendant may not seek appellate review of an evidentiary claim that was not distinctly raised in the trial court. Practice Book § 4185; State v. Lonergan, 16 Conn. App. 358, 362, 548 A.2d 718 (1988).

Ill

The defendant’s final claim is that the trial court erred in denying his motion to suppress the results of sobriety tests contained in the two toxicological laboratory reports. These reports indicated that the signature of the officer who sealed the blood alcohol sample was not legible on the first report, and was omitted from the second report. General Statutes § 14-227a (c) sets forth the six elements that must be satisfied before the results of chemical analysis tests of a defendant’s blood, breath or urine are admissible in a criminal prosecution for a violation of § 14-227a (a). The defendant’s challenge relates to the third element, which provides that chemical analysis results are inadmissible unless “the test was performed by or at the direction of a police officer according to methods . . . approved by the department of health services . . . .” (Emphasis added.) General Statutes § 14-227a (c) (3).

The “method” at issue in this case is -allegedly prescribed by § 14-227a-9 (e), a regulation promulgated by the department of health services in order to maintain the integrity of samples that are used to analyze the percentage of alcohol in a subject’s blood. Section 14-227a-9 (e) states that: “Containers and other equipment for sample collection shall be of a type which will preserve the integrity and suitability of the sample from the time of collection until it is subjected to testing. The container for each sample shall be of a type which permits application of a seal for the closure. Only those samples which have been properly sealed shall be subjected to testing.” The toxicological report forms that are prepared by the department of health services indicate that the officer who seals the samples should be identified. The defendant contends that this form is “part and parcel of the methods” of sobriety testing mandated by § 14-227a-9 (e) of the department of health services pursuant to General Statutes § 14-227a (c) (3). In essence, the defendant argues that because the forms were incomplete, the samples were not “properly sealed.” Regs., Conn. State Agencies § 14-227a-9 (e). We disagree.

It is evident from the language of § 14-227a-9 (e) that the purpose of requiring a sealed container is to ensure that the sample reliably reflects the percentage of alcohol in the subject tested. The defendant does not argue that the containers that held his samples were unsealed. Rather, his concern is that the toxicological reports do not indicate who sealed the containers. This concern does not address the reliability of the samples taken, but is an attempt to exact form over substance. Moreover, the regulation at issue requires only that the sample be “properly sealed.” Regs., Conn. State Agencies § 14-227a-9 (e). The regulation does not require that the form issued by the department of health services be signed by the officer who sealed the sample. As regulations that are promulgated under express legislative authorization have the force of law, we decline to read this requirement into § 14-227a-9 (e). State v. Desso, 16 Conn. App. 165, 167-68 n.3, 547 A.2d 74 (1988).

There is no error.

In this opinion the other judges concurred.

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

       Practice Book § 4003, which became effective October 1,1986, provides: “APPEALS OF RULINGS ON MOTIONS TO DISMISS OR SUPPRESS FOLLOWING JUDGMENTS ENTERED UPON CONDITIONAL PLEAS OF NOLO CONDENDERE
      * ** *
      “(b) With approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw the conditional plea of nolo contendere after the case has been remanded to the trial court. The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not have a significant impact on the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.”

       General Statutes § 14-227a (c) provides: “admissibility of chemical analysis. Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided: (1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the department of health services and was performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the commissioner of health services. If a blood test is taken, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical technician II or a registered nurse; (4) the device used for such test was checked for accuracy at the beginning of each workday and no later than the end of each workday by a person certified by the department of health services; (5) an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed, provided however the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented which demonstrates that the test results and the analysis thereof accurately reflect the blood alcohol content at the time of the alleged offense.”
      We note that a recent amendment to General Statutes § 14-227a (c) (4), effective October 1,1988, requires accuracy testing to be performed “immediately before and after such test was performed by a person certified by the department of health services.” Public Acts 1988, No. 88-85.

       “The Court: Mr. Lyons, your claim is that the tests performed in this case were not done in accordance with the standards set forth by the Department of Health Services in the State of Connecticut due to the fact that number 4 on each of the two samples, being Defendant’s A and Defendant’s B, is sealed by no name and blank 4 sealed by a (officer’s name illegible, No. 30), and that the failure to fill in those blanks means the tests were not done in accordance with the proper standards and should be suppressed. Am I right?
      “Mr. Lyons: Precisely.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Nathaniel O. Dixon v. Frank Trubisz et al.
    (6430)
    Spallone, Daly and Foti, Js.
    Argued November 9
    decision released December 27, 1988

      Morton N. Katz, with whom, on the brief, was Douglas G. Farber, for the appellant (plaintiff).

      Joseph B. Curran, for the appellees (named defendant et al.).
   Daly, J.

The plaintiff brought suit against the defendants for property damage to the plaintiffs motor vehicle which occurred while the vehicle was stored at the defendants’ lot. The plaintiff’s complaint alleged wrongful possession, breach of bailment and conversion. In its memorandum of decision, the trial court awarded damages to the plaintiff on the basis of the defendants’ negligence during the period of bailment. The plaintiff appeals, claiming that the trial court erred (1) in limiting its award of damages under the bailment theory to the loss of specific items, rather than the reasonable value of the vehicle, and (2) in failing to consider his alternate theories of recovery. We find no error.

The trial court found the following facts. On February 18,1982, the defendants, at the request of the Hartford police department, towed a 1975 Oldsmobile owned by the plaintiff to their lot located in the city of Hartford. By 1 a.m. on February 19,1982, all four tires on the plaintiff’s vehicle had been stolen, and by morning the rear window had been smashed, the radio had been removed and the dashboard vandalized. Although the plaintiff was told that the stolen items would be replaced, the defendants failed to do so. The court also found that the plaintiff failed to reclaim his car, despite his opportunity to do so without charge. The defendants later sold the vehicle after notifying the plaintiff of their intention to do so. See General Statutes § 14-150.

The court found that a bailment had been created, and that the plaintiff was entitled to the damages that he had proven. Since he had proven the value of the tires and the sound system, the court held that he was entitled to recover that amount, namely $661.30.

The plaintiff’s first claim is that the trial court erred in not awarding him damages in the amount of the full reasonable value of the car under the breach of bailment theory of recovery. While it is true that the measure of damages for loss or damage to the subject matter of a bailment is the value of the property at the time of the loss or damage; Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 419, 446 A.2d 799 (1982); the plaintiff bears the burden of proof with regard to his damages. Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 495, 446 A.2d 1071 (1982). The only evidence the plaintiff introduced as to damages was the value of the stolen tires and sound system. In order to award damages, a “court must have evidence by which it can calculate the damages, which is not merely subjective or speculative, but allows for some objective ascertainment of the amount.” Bronson & Townsend Co. v. Battistoni, 167 Conn. 321, 326-27, 355 A.2d 299 (1974). The trial court awarded the plaintiff the proper amount of damages due him on the evidence presented.

The plaintiffs final claim of error is that the trial court failed to address the possibility of recovery of damages under the wrongful possession and conversion counts of the complaint. The court, in its memorandum of decision, did not address those two counts of the complaint; nor did the plaintiff seek under Practice Book § 4051 to have the court further articulate its decision. It is the appellant’s responsibility to secure an adequate appellate record, and we will not remand a case to correct a deficiency the appellant should have remedied. Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983); Thiel Realty Corporation v. Culligan Water Conditioning Co., 9 Conn. App. 191, 193, 517 A.2d 1502 (1986). The record furnishes no basis for us to conclude that the trial court erred in its findings of fact or conclusions of law.

There is no error.

In this opinion the other judges concurred.


author: Daly, J. O’Connell, J.,

text:
    Timothy G. Birmingham v. Richard Kielczewski
    (6520)
    Borden, Daly and O’Connell, Js.

      (One judge dissenting)

    Argued October 12
    decision released December 27, 1988

      Joseph Dieso, for the appellant (defendant).

      Brian G. Enright, with whom, on the brief, was Vincent T. McManus, Jr., for the appellee (plaintiff).
   Daly, J.

This is an appeal by the defendant from a judgment of the trial court disallowing the defendant’s bill of costs and approving the plaintiff’s bill of costs. This appeal involves consideration of General Statutes § 52-193 and Practice Book § 342, both of which govern an offer of judgment by a defendant. The defendant’s sole claim is that the trial court erred when it disallowed his bill of costs despite the fact that he had filed an offer of judgment in excess of the jury’s verdict prior to the introduction of evidence at trial. See Practice Book § 342. We find error.

The following facts are relevant to this appeal. On July 15,1987, this action was called to trial and a jury selected. At approximately 10 a.m. the next morning, prior to the jury’s being sworn in, the defendant filed an offer of judgment for $5000. The plaintiff did not accept the offer. The jury ultimately returned a verdict in favor of the plaintiff, awarding him $2453.33. The trial court accepted the verdict, dismissed the jury and ruled that the defendant’s offer of judgment was untimely under General Statutes § 52-193.

The defendant filed a motion for bill of costs, pursuant to Practice Book § 344, requesting the court to review its ruling on the offer of judgment and seeking reimbursement for those costs that accrued subsequent to the filing of the offer of judgment. The plaintiff filed an objection to the motion and filed his own bill of costs for all costs that accrued as a result of the trial. The defendant filed an objection to those costs that the plaintiff incurred subsequent to the filing of the offer of judgment.

The trial court held that, because the defendant’s offer of judgment was untimely under General Statutes § 52-193, the defendant was not entitled to reimbursement for any costs and the plaintiff was entitled to reimbursement for all of his costs. This appeal ensued.

Prior to 1978, both § 274 of the Practice Book (now Practice Book § 342) and General Statutes § 52-193 provided that a defendant’s offer of judgment was to be made before trial. In Krawiec v. Kraft, 163 Conn. 445, 448, 311 A.2d 82 (1972), our Supreme Court interpreted before trial, in a jury trial, to mean before the impaneling of the jury, and the court indicated that a jury was impaneled when jury selection began. See also State v. Potter, 18 Conn. 166, 175 (1846) (jury is impaneled when summoned by sheriff and names entered into court record but before being sworn).

In 1978, the rule, but not the statute, was amended. The language “before trial” was deleted from the rule and inserted in its place was “before any evidence is offered at trial.” The question, then, is whether the statute or the rule controls when a defendant must make an offer of judgment.

The decision of our Supreme Court in State v. King, 187 Conn. 292, 445 A.2d 901 (1982), is instructive. In King, the court faced the question of whether the rules of joinder of indictment were controlled by the statutory provision or by the rules of practice. State v. King, supra, 296. In King, as in this case, the rule of practice and the statute at issue were identical until 1978, at which time the rule alone was amended. Holding that the rule controlled decisions on joinder, the court examined the powers of the Superior Court to adopt and promulgate its rules. “ ‘The Superior Court is empowered to adopt and promulgate rules “regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify any substantive right i . . .” General Statutes [Rev. to 1983] § 51-14 (a). . . . Just as the general assembly lacks the power to enact rules governing procedure that is exclusively within the power of the courts ... so do the courts lack the power to promulgate rules governing substantive rights and remedies. . . . Additionally the court rules themselves are expressly limited in scope to practice and procedure in the Superior Court . . . and do not purport to reach beyond such limits.' Steadwell v. Warden, 186 Conn. 153, 162-63, 439 A.2d 1078 (1982).” (Citations omitted.) State v. King, supra, 297. Section 342 is a rule that regulates court procedure and facilitates the administration of justice by clarifying when a defendant may make an offer of judgment. Moreover, the rule does not infringe on any substantive right. Accordingly, we hold that § 342, as a procedural rule facilitating the administration of justice, controls the decision when a defendant may properly make an offer of judgment. The trial court erred in considering the timeliness of the offer under the statute only.

The plaintiff argues that the decision of Krawiec v. Kraft, supra, compels us to uphold the trial court’s decision. We disagree. In Krawiec, the court considered the timeliness of a defendant’s offer of judgment under § 52-193. The court there held that an offer of judgment made after the case was called for trial but before jury selection began was timely under the statute. Krawiec v. Kraft, supra, 448. In Krawiec, however, the court did not have to reach the question of whether the offer was timely under the rules of practice. Id. In 1972, the year Krawiec was decided, the rule and the statute were identical. That is not the situation before us today.

There is error, the judgment is set aside as to the award of costs and the case is remanded with direction to disallow those costs accrued by the plaintiff after the offer of judgment was made and to allow those costs of the defendant accruing after that time.

In this opinion Borden, J., concurred.

O’Connell, J.,

dissenting. I disagree with the action of the majority in considering this appeal on its merits and feel that it should be dismissed. Practice Book § 412 establishes the procedure for taxation of costs. It is clear that in the absence of agreement between the parties our rule requires that the taxation of costs in civil cases commences with action by the court clerk. Only after the clerk has given notice to the adverse party to be present and has proceeded to tax costs does the rule provide for appeal of that taxation to the trial court. See State v. Chapman, 176 Conn. 362, 363, 407 A.2d 987 (1978); Krawiec v. Kraft, 163 Conn. 445, 447-48, 311 A.2d 82 (1972); Lew v. Bray, 81 Conn. 213, 216, 70 A. 628 (1908); Hall v. Hall, 36 Conn. Sup. 15, 16, 409 A.2d 1250 (1979); Shaker v. Shaker, 12 Conn. Sup. 197, 198 (1943).

Our rules make no provision for a “motion for costs” to be filed directly with the court as was done in the present case. Accordingly, the trial court should have dismissed the motion. Since the motion was not properly before the trial court, this court should not give its imprimatur to an unsanctioned procedure by deciding the appeal on the merits.

No case has come to my attention that authorizes an indiscriminate disregarding of § 412. Fukelman v. Middletown, 4 Conn. App. 30, 492 A.2d 214 (1985), referred to in footnote 1 of the majority opinion can be distinguished. In Fukelman, the proper procedure for taxation of costs by the clerk had been initiated before the defendant appealed, claiming inter alia, that because the defendant was a municipality it was exempt from the payment of any costs whatsoever. The claim in Fukelman was, in effect, that there was no duty for the court clerk to perform because of the type of defendant involved. It was not an appeal concerning the amount of costs that should be taxed.

I appreciate that the rules of practice are not embedded in concrete and that they should be liberally interpreted in any case where strict enforcement will cause the rules to be instruments of injustice. Practice Book § 6; Carter v. D’Urso, 5 Conn. App. 230, 234, 497 A.2d 1012, cert. denied, 197 Conn. 814, 499 A.2d 63 (1985). In the present case, however, neither counsel furnished the trial court with any reason why adherence to § 412 would work surprise or injustice. Nor did the trial court address the subject and enunciate its reasons for proceeding in derogation of the rule.

The bench and bar are entitled to expect uniform application of the rules of practice. The practice of law and the performance of a trial judge’s duties both are sufficiently difficult without the additional burden of uncertainty as to which rules will be strictly enforced and which rules will be liberally interpreted without any showing of hardship resulting from strict enforcement. I cannot agree with the majority’s opinion expressed in its footnote 1 that “judicial economy” is an adequate reason for condoning this departure from our established rules.

For the foregoing reasons, I dissent from the decision of the majority.

       Practice Book § 412 provides in part: “Bills of costs in civil cases may be taxed by the clerk .... Either party may appeal from such taxation to the court.” This section was bypassed by the parties since the clerk made no such taxation. We do not countenance this procedure, and suggest that the trial court could have refused to consider the issue of costs because of the failure of the parties to follow Practice Book § 412. Nonetheless, we consider the issue in the interests of judicial economy, because the trial court had the ultimate authority to make the determination regarding costs. See Fukelman v. Middletown, 4 Conn. App. 30, 31-32, 492 A.2d 214 (1985).

       General Statutes § 52-193 provides in part: “In any action on contract, or for the recovery of money only, the defendant may before trial file with the clerk of the court a written notice . . . offering to allow the plaintiff to take judgment for the sum named in such notice.” (Emphasis added.)

       Practice Book § 342 provides in part: “In any action on contract, or for the recovery of money only, the defendant may before any evidence is offered at the trial file with the clerk of the court a written notice . . . offering to allow the plaintiff to take judgment for the sum named in such notice.” (Emphasis added.)

       Practice Book § 344 provides in part: “If the plaintiff does not, within said time and before any evidence is offered at the trial, file his notice of acceptance, such offer shall be deemed to be withdrawn and shall not be given in evidence; and the plaintiff, unless he recovers more than the sum named in such offer, with interest from its date, shall recover no costs accruing after he received notice of the filing of such offer, but shall pay the defendant’s costs accruing after said time.”

       The trial court, in its memorandum of decision, did not consider whether the offer of judgment was timely under § 342 of the Practice Book.

       Practice Book § 412: “taxation OF COSTS; APPEAL
      “Bills of costs in civil cases may be taxed by the clerk or assistant clerk, but reasonable notice shall be given to the adverse party, or his attorney, to be present at the taxation, if the appearance of such party be entered on the docket. Either party may appeal from such taxation to the court.”

       If the amount of costs is not in dispute, the prevailing custom is for the adverse party to endorse his agreement on a bill of costs which is then submitted to the clerk. See 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.) §§ 302a, 312, for a discussion of the complete procedure for taxation of costs.

       The court clerk has no discretion as to whether he will tax costs. If the clerk refuses to perform this function, the remedy is a petition to the court to order the clerk to perform an act required by law. State v. Crabtree, 32 Conn. Sup. 322, 323, 353 A.2d 796 (1975); Gordan v. City of New Haven, 5 Conn. Sup. 292, 293 (1937); see Shaker v. Shaker, 12 Conn. Sup. 197, 198 (1943); 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 312e.

       The prevailing party is the one in whose favor the decision or verdict is rendered and judgment entered. The other party is the adverse party.

       Practice Book § 6: “rules to be liberally interpreted
      “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”

       The words of former Chief Justice House are relevant: “[A] shortcut is not necessarily a more speedy and safe route than the established and traditional path.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 366, 260 A.2d 596 (1969).


author: Norcott, J.

text:
    State of Connecticut v. Dana Johnston
    (6314)
    (6389)
    O’Connell, Stoughton and Norcott, Js.
    Argued October 18
    decision released December 27, 1988

      John S. Pinney, with whom, on the brief, was Thomas E. Gaffey, for the appellant (defendant).

      John O’Meara, deputy assistant state’s attorney, with whom, on the brief, was Thomas J. Prior, assistant state’s attorney, for the appellee (state).
   Norcott, J.

This is a consolidated appeal by the defendant from both a judgment of conviction of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and the subsequent revocation of his probation.

The defendant first claims that the trial court, T. Sullivan, J., erred in instructing the jury on the crime of assault in the second degree, and second that the trial court, Shaughnessy, J., erred in its canvass of the defendant prior to the revocation of his probation. We find no error.

I

As to the first claim, the jury could reasonably have found the following facts. On October 17, 1986, at approximately 4:30 p.m., the victim was leaving the YMCA in Hartford. A man, later identified by the victim as the defendant, asked him for money. They exchanged words and the defendant followed the victim out of the building. Hearing footsteps behind him, the victim started to turn around and was struck on the head by an object that he later described as a brown paper bag containing what he assumed was a bottle. While chasing his assailant, the victim discovered that his head was bleeding, and he returned to the YMCA to seek medical attention. He was taken to a hospital where he received stitches for a head wound. On the basis of the victim’s description of his assailant, the police apprehended the defendant, brought him to the hospital where he was positively identified by the victim and placed him under arrest.

The defendant claims that the trial court erred in its instruction to the jury on the elements of the crime of assault in the second degree by incorrectly defining the term “serious physical injury” as it relates to the definition of a dangerous instrument. Although the defendant did not take an exception to the charge as given, he claims that because the error diluted the state’s burden of proof as to an element of the crime charged, the error is of constitutional dimension and therefore reviewable under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

Despite the defendant’s contention to the contrary, we find that State v. Huff, 10 Conn. App. 330, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987), controls the outcome of this issue. In Huff, this court declined to give Evans review to the issue of whether the omission of a definition of “serious physical injury” in a jury instruction on assault in the second degree was error. There we stated, “[t]he court read the jury the statutory definition of the essential element of the crime charged, namely use of a ‘dangerous instrument.’ ‘Serious physical injury’ is not itself, however, an essential element of the crime charged. It is but a definitional component of an essential element. A court’s failure to read the statutory definition of a phrase which itself appears as part of the definition of an essential element is not an error of constitutional proportion. The court’s obligation to charge on the essential elements of the crime charged ‘ “does not transform every deviation from the particular statutory definition chosen by the legislature into a constitutional error.” ’ State v. Utz, 201 Conn. 190, 513 A.2d 1191 (1986) [quoting State v. Hinckley, 198 Conn. 77, 502 A.2d 388 (1985)]. The defendant has attached a constitutional label to what is analytically, at its core, a nonconstitutional claim.” State v. Huff, supra 335.

In this case, the defendant argues that the error here was not in omitting a definition of “serious physical injury” but in giving an incorrect statutory definition, that of “physical injury.”

The offense of assault in the second degree requires the state to prove as essential elements of the crime that the defendant intended to cause physical injury to the victim, that he did in fact cause physical injury, and that he did so by the use of a dangerous instrument. “Physical injury” is statutorily defined as “impairment of physical condition or pain.” General Statutes § 53a-3 (3). The trial court properly gave this definition. “Dangerous instrument” is statutorily defined as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (7). The trial court correctly gave this definition as well. “Serious physical injury” is further defined in the statutes as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.” General Statutes § 53a-3 (4). This definition was not mentioned by the trial court. While the court’s charge was not as artfully organized as it might have been, we conclude that its definitions amounted to no more than the omission of the statutory definition of “serious physical injury.”

The defendant also contends that Huff does not control because the defendant in Huff conceded at trial that the miniature baseball bat used in the assault constituted a dangerous instrument, whereas, in this case, the instrument used was never definitively identified. It is true that the court in Huff mentioned both the defendant’s concession and the fact that the primary issue at trial was the identity of the assailant. State v. Huff, supra, 335-36. We conclude, however, that these references were set out solely as supplemental, not essential, support for upholding the trial court’s instruction as given. The ultimate holding of Huff, that the court need define only the essential elements of the crime charged, not all of its definitional components, was not dependent on the fact that the use of a “dangerous instrument” was not at issue in that case. Finding the issue controlled by Huff, we decline to review this claim under Evans.

The defendant also asserts that the jury instruction is reviewable as plain error under Practice Book § 4185. “Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review.” State v. Wright, 207 Conn. 276, 288, 542 A.2d 299 (1988). “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and the public confidence in the judicial proceedings.” State v. Hinckley, supra, 87-88. We conclude that the instruction at issue, viewed as a whole, does not indicate that the jury was misled into believing that the definition given for “physical injury” as an element of the crime, was the definition to be used in determining whether the instrument used was capable of causing “serious physical injury.” Accordingly, the charge did not result in manifest injustice affecting the fairness of the proceeding and therefore does not warrant review under the plain error doctrine.

II

The defendant next claims that the trial court erred in accepting his admission of a probation violation without a proper determination that the admission constituted a voluntary and intelligent waiver of his constitutional rights.

On July 6,1987, the defendant admitted to violating the terms of a two year probation period previously imposed upon his adjudication as a youthful offender on a charge of robbery in the third degree in violation of General Statutes § 53a-136. The violation that he admitted and that is at issue in this appeal is the April 3, 1987 assault conviction discussed above.

The trial court advised the defendant of his right to a hearing to contest the probation violation and also advised him that an admission would result in the loss of that right. The defendant indicated his knowledge of these facts and that he had discussed the procedure with his attorney. After this canvass, the trial court imposed a sentence of twenty-four months for the probation violation to run concurrently with the five year sentence imposed for the assault conviction.

Again, not having raised the issue at trial, the defendant claims review under State v. Evans, supra. Such review is designed to allow appellate courts to consider matters not raised at trial in cases in which either “a new constitutional right not readily foreseeable has arisen between the time of trial and appeal” or “the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id., 70; McLaughlin v. Bronson, 206 Conn. 267, 276, 537 A.2d 1004 (1988). Our Supreme Court has recently considered the Evans doctrine and allowed review of issues raised in a habeas corpus action collaterally challenging a probation revocation procedure; Payne v. Robinson, 207 Conn. 565, 569, 541 A.2d 504, cert. denied, U.S. , 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988); we, therefore, will consider the application of the doctrine in this direct appeal from a probation revocation proceeding.

We find that although the defendant has labelled his claim a constitutional one, a limited review of the record before this court does not support a claim of constitutional proportions. See State v. Huff, supra, 333-34.

The United States Supreme Court has held that although due process does not require that a person facing probation revocation be provided the full panoply of rights afforded a defendant at a criminal trial, it does require that a hearing be held before probation is revoked. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Neither the United States Supreme Court nor any Connecticut court has determined what rights are to be accorded a person who waives the right to a hearing and admits a violation of probation.

The defendant in this case argues that an admission of a probation violation is the equivalent of a guilty plea. He therefore claims that the court must canvass the defendant pursuant to Practice Book §§ 711-713 to insure the voluntary and intelligent waiver of the defendant’s constitutional rights. Although the defendant provides this court with no legal authority for such analogous treatment, the state, in its brief, cites other jurisdictions, both state and federal, that have held that an admission of a probation violation does not implicate the same rights as a plea of guilty, and that acceptance of such admission requires only that the court advise the defendant of his right to a hearing to contest the alleged violations.

In United States v. Segal, 549 F.2d 1293 (9th Cir.), cert. denied, 431 U.S. 919, 97 S. Ct. 2187, 53 L. Ed. 2d 231 (1977), the leading federal case on this issue, the court acknowledged the defendant’s right to a hearing under Gagnon v. Scarpelli, supra, but determined that the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and rule 11 of the Federal Rules of Criminal Procedure requiring an extensive canvass by the trial court to determine that a guilty plea has been made intelligently and voluntarily did not apply to a revocation of probation. The court held that “the making of admissions at a probation revocation proceeding, even when sentence is subsequently imposed, is not the equivalent of a guilty plea, functional or otherwise.” United States v. Segal, supra, 1300. See also, United States v. Rapert, 813 F.2d 182, 184 (8th Cir. 1987); United States v. Stehl, 665 F.2d 58, 59-60 (4th Cir. 1981); United States v. Johns, 625 F.2d 1175, 1176 (5th Cir. 1980).

State courts faced with this issue have reached the same conclusion. In People v. Hardin, 70 Mich. App. 204, 206, 245 N.W.2d 566 (1976), the court declined to recognize the right of a person admitting a probation violation to be informed as to “the full panoply of rights set out . . . in the‘guilty plea’rule.” The court held that “a defendant who desires to admit a probation violation must first be informed, on the record, of his right to have a hearing .... [H]e is entitled to a hearing to determine his culpability for the alleged violation. If the defendant advises the court that he does not want a hearing and admits the violation of probation on the record, the due process requirements are met.” Id., 208; see also Nelson v. State, 66 Md. App. 304, 503 A.2d 1357 (1986).

The trial court in this case advised the defendant of his right to a hearing on the violation. The defendant admitted the probation violation on the record. Because there is no support for the contention that the requirements for determining the voluntariness of a guilty plea apply to the admission of a probation violation, the record does not indicate that the defendant’s claim is of constitutional proportions and we therefore decline to review it under Evans.

There is no error on either appeal.

In this opinion the other judges concurred.

       General Statutes § 53a-60 provides in pertinent part: “(a) A person is guilty of assault in the second degree when: ... (2) with intent to cause physical injury to another person, he causes such injury to such person . . . by means of a deadly weapon or a dangerous instrument . . . .”

       At the same proceeding, the defendant also admitted to a violation of another term of probation imposed as a result of a breach of the peace conviction, and pleaded guilty to a charge of failure to appear in violation of General Statutes § 53a-173. The trial court imposed a sentence of six months on the former, to run consecutively with the youthful offender violation sentence, and a ten day sentence on the latter to run concurrently with the probation violation sentences. Because it is not briefed or claimed as error by the defendant, this court will not address the procedure of the trial court as it relates to the acceptance of the admission of this probation violation or the acceptance of the guilty plea.

       The following colloquy took place at the revocation proceeding:
      “The Court: So, Mr. Johnston, do you know that you have a right to have a hearing on the violation of probation and by admitting that violation, you give up your right to a hearing?
      “Mr. Johnston: Yes.
      “The Court: And you have discussed this matter with your attorney?
      “Mr. Johnston: Yes.
      “The Court: Are you satisfied with his advice and assistance?
      “Mr. Johnston: Yes.
      “The Court: And you want to give up your right to have a hearing on this violation? This is a new conviction and you’re giving up that right, do you understand that?
      “Mr. Johnston: Yes.”

       Specifically, the defendant claims that the trial court should have determined that he understood the nature of the violation he was admitting, the maximum sentence that could be imposed, that he had the right not to incriminate himself and the right to a hearing at which he could present evidence and confront and cross-examine witnesses. He also contends that the trial court should have inquired as to whether his willingness to admit the violation was the result of threat or promise or resulted from discussions with the state.


author: Foti, J.

text:
    State of Connecticut v. Viet X. Nguyen
    (6570)
    Borden, Spallone and Foti, Js.

      Argued October 6, 1988
    decision released January 3, 1989

      Robert Farr, for the appellant (defendant).

      Paul Ferencek, deputy assistant state’s attorney, with whom were Susann E. Gill, assistant state’s attorney, and, on the brief, T. R. Paulding, Jr., deputy assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from a judgment rendered after a trial to the court, convicting him of assault in the third degree in violation of General Statutes § 53a-61, and of breach of the peace in violation of General Statutes § 53a-181. On appeal, the defendant claims the trial court erred (1) in admitting evidence, during the state’s rebuttal case, of an alleged act of prior misconduct for the purpose of contradiction, and (2) in relying on the evidence of this prior act in determining the defendant’s sentence. We find no error.

The trial court found the following facts. On November 29,1986, the victim and his wife attended a dance in East Hartford. Between 8:30 and 9 p.m., a group of young people, including the defendant, entered the hall. The defendant approached the victim, who was seated at a table with his wife, and blew smoke in his face. The victim ignored him and the defendant walked away. Some time later, the defendant returned to the victim’s table and, without warning, kicked him in the chest with a karate-like movement. When the victim stood up to defend himself, the incident ended and the defendant left. Later that same evening, as the victim and his wife were leaving the dance, Phu Dinh Le grabbed the victim from behind and pushed him out of the hall toward his car. The defendant and a group of men were waiting near the car and as the victim and Phu Dinh Le approached, the defendant kicked the victim. Phu Dinh Le placed the victim in a headlock, and the victim received a blow to his head in the area of his right temple. As a result of these assaults, the victim sustained cuts and bruises, and experienced pain.

The defendant’s first claim is that the trial court erroneously permitted the victim to testify during the state’s rebuttal case with respect to a prior assault by the defendant. In order to place this issue in the proper context, it is necessary to review the relevant testimony, objections and rulings. The state concluded its direct examination of the victim by inquiring into the issue of provocation. The victim testified that he did nothing that evening to provoke the assault. The court then interjected, asking the victim if he knew the defendant or had been involved in any prior incidents with him. When the defendant objected to the court’s line of questioning, the court explained that it was attempting to ascertain whether the defendant had a longstanding resentment for the victim that would explain the defendant’s actions. The victim was allowed to answer the question and responded that four or five years previous he had been involved in an incident with the defendant. The court did not further inquire as to this matter.

The defendant took the stand on his own behalf and in response to a question on direct-examination testified that he did not know the victim prior to the incident on November 29,1986. On cross-examination, the state pursued this line of questioning and asked the defendant a series of questions with respect to whether he remembered an incident that had occurred four or five years earlier when the victim broke up a fight between the defendant and another person. The defendant’s objections that this question was outside the scope of direct-examination and prejudicial were overruled. The defendant again denied being involved in any prior incident with the victim. After the defendant rested his case, the state, on rebuttal, recalled the victim and asked him when he first saw the defendant prior to the assault on November 29,1986. The defendant objected on the ground that this question was irrelevant and inflammatory. The trial court permitted the question, ruling that the testimony was admissible to establish whether the defendant had a motive to attack the victim and to impeach the defendant by contradictory evidence to show that the defendant had testified falsely. The victim then testified that approximately four to five years earlier, during a dance at St. Mary’s School in Newington, he had broken up a fight between the defendant and another person, and that, at that time, the defendant had threatened him.

The defendant’s only objection is that it was error to permit evidence of his prior misconduct in the state’s rebuttal case. The defendant states that this evidence was inadmissible to show that the defendant had criminal tendencies.

It is well established that evidence of a defendant’s prior misconduct is not admissible to prove that the defendant acted in conformity with that behavior. State v. Geyer, 194 Conn. 1, 480 A.2d 489 (1984); State v. Ibraimov, 187 Conn. 348, 446 A.2d 382 (1982); State v. Gilligan, 92 Conn. 526, 103 A. 649 (1918). “The concern, of course, is that the jury will convict the defendant on the basis of his bad character as evidenced by his prior bad acts and not on the evidence adduced at trial on the specific crime for which he is charged.” State v. McIntosh, 12 Conn. App. 179, 183-84, 530 A.2d 191, cert. denied, 205 Conn. 808, 532 A.2d 77 (1987). The evidence in this case was not admitted for the purpose of establishing the defendant’s bad character, but for the purpose of contradicting his testimony that he did not know the victim.

A witness may be impeached by the introduction of contradictory evidence of other witnesses as long as the evidence is in fact contradictory; State v. Artieri, 206 Conn. 81, 83, 536 A.2d 567 (1988); and that evidence does not relate to a collateral matter. State v. McCarthy, 197 Conn. 166, 176, 496 A.2d 190 (1985); C. Tait & J. LaPlante, Connecticut Evidence (2d. Ed.) § 7.24.1. “A contradiction is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict a witness.” State v. McCarthy, supra. “Whether extrinsic evidence contradicts testimony of a witness so as to require its introduction into evidence for impeachment purposes is within the trial court’s discretion, subject to review only for abuse of discretion.” State v. Velez, 17 Conn. App. 186, 194, 551 A.2d 421 (1988).

We conclude that the trial court’s finding that the victim’s testimony directly contradicted the defendant’s assertion that he had no prior encounters with the victim, and had not threatened him, was well within its discretion. The question for us to determine, therefore, is whether this testimony was collateral. We conclude that it was not.

The trial court has wide discretion in determining relevancy and in admitting rebuttal evidence. State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986). The defendant’s denial of any prior involvement of the victim placed in issue a lack of motive for an unprovoked assault on the victim. The court, by allowing the state to present rebuttal evidence through the victim’s testimony, properly determined that the evidence was relevant because it tended to show that the defendant had a motive for committing the assault. The rebuttal evidence indicated that the parties had previously been involved in a fight and that the defendant had made threats of a future reprisal against the victim. It is especially noteworthy that the evidence of this prior incident involved both the defendant and the victim in this case. The victim was not a mere bystander to a prior assault by the defendant, but a participant in that event. For this reason, we conclude that the trial court did not abuse its discretion in finding the evidence was relevant to a material issue and, therefore, not collateral.

“Where such evidence is offered in proof of an issue in the case, and not merely to show an evil disposition on the part of the accused, the trial court must still consider whether its prejudicial tendency outweighs its probative value before ruling upon its admissibility.” State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). Our review is limited to whether the court abused its judicial discretion or whether injustice appears to have been done. See State v. Johnson, 190 Conn. 541, 461 A.2d 981 (1983). We conclude that it was within the trial court’s discretion to find that the relevance of this testimony outweighed its prejudicial tendency.

The defendant’s second claim is that in sentencing him, the trial court improperly considered evidence of the prior unrelated assault as though it were a prior conviction. As evidence of this claim, the defendant relies on the remarks made by the trial court during the sentencing hearing, and on the actual sentence imposed in the assault conviction of one year suspended after thirty days. We do not agree.

Our review of sentencing decisions is limited. “[I]f a sentence is within statutory limits it is not generally subject to modification by a reviewing court.” State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986). “ ‘A sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial.’ United States v. Sweig, 454 F.2d 181, 183-84 (2d Cir. 1972). . . . To arrive at a just sentence, a sentencing judge may consider information that would be inadmissible for the purpose of determining guilt.” State v. Huey, supra, 126, citing United States v. Baylin, 696 F.2d 1030, 1039 (3d Cir. 1982).

“ Tt is a fundamental sentencing principle that a sentencing judge may “appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). The trial court’s discretion, however, is not completely unfettered. As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicum of reliability. United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982). As long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion.’ State v. Huey, [supra, 127].” State v. Mancinone, 15 Conn. App. 251, 285, 545 A.2d 1131 (1988).

The trial court had before it persuasive and reliable information that the defendant had previously engaged in assaultive behavior, and was, therefore, justified in considering that evidence in arriving at a sentence.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-61. assault in the third degree: class a misdemeanor, (a) A person is guilty of assault in the third degree when: (1) with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”

       “[General Statutes] Sec. 53a-181. breach of peace: class b misdemeanor. (a) A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or his property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public, hazardous or physically offensive condition by any act which he is not licensed or privileged to do.”
      On the third count of the information, charging disorderly conduct in violation of General Statutes § 53a-182, the defendant was found not guilty.

       Phu Dinh Le and the defendant were tried together. Phu Dinh Le was convicted of unlawful restraint in the first degree in violation of General Statutes § 53a-95 and breach of peace in violation of General Statutes § 53a-81.

       On rebuttal the victim testified as follows: “Well, I went to the men’s room out in the hall. I was coming through the hallway and I noticed Viet Nguyen go up to someone that was on a pay phone and strike him when he wasn’t even looking at him from the back in the side of the face and this guy’s face was cut wide open. It was bleeding .... [M]y father-in-law was in the same area at the same time who was almost seventy years old and I proceeded to just kind of break up this fight and then again it kind of went to the outside and I said I was going to call the police-somebody did call the police. I didn’t — and was threatened by these people . . . . [I] was threatened by [the defendant’s] saying he was going to go get a gun and come back and they took off and the cops came and nobody ever did anything at that point. ...”

       The defendant does not claim on appeal that the trial court erred in permitting the state to cross-examine him with respect to the prior assault. Although we do not have to decide this issue, we note that under the circumstances of this case this line of questioning was not improper. As a general rule, a witness may be impeached only by evidence of his or her prior misconduct if that act relates to veracity and not merely to illustrate that the witness is a bad person. State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986); State v. McIntosh, 12 Conn. App. 179, 530 A.2d 191 (1987). This case does not present a situation in which the state was improperly permitted to question a witness about an act of misconduct unrelated to veracity. See, e.g., State v. McIntosh, supra. On the contrary, since defense counsel opened the door to this line of inquiry by asking the defendant on direct-examination whether he knew the victim, it was well within the scope of cross-examination for the state to pursue this matter further. See State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); State v. Horton, 8 Conn. App. 376, 513 A.2d 1168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986).

       Although it is difficult to decipher from the defendant’s scant brief, he also objects to the timing of the presentation of this evidence. He claims that if this evidence was admissible to establish the defendant’s motive it should have been introduced during the state’s case-in-chief. This argument is without merit. The evidence in this case was specifically offered for the purpose of impeachment by contradiction and, therefore, under the circumstances of this case rebuttal was the proper time for its introduction.

       Prior to sentencing, the trial court remarked: “Well, my recollection of the facts is that there was an assault, you are correct, and it was completely unprovoked except for the fact that maybe somewhere in Mr. Nguyen’s past he had a run-in with the victim. However, it was a situation where, again, Mr. Nguyen had been in an assaultive posture and all the victim had done was try to break it up and prevent Mr. Nguyen from going further with whatever activity he had.
      “All this leads me to believe Mr. Nguyen has a rather assaultive personality or he has some assaultive traits in his background and he’s going to continue to get in trouble if he continues to get more slaps on the wrist.”


text:
    State of Connecticut v. Charles Mebane
    (6312)
    Daly, Stoughton and Norcott, Js.
    Argued October 21, 1988
    decision released January 3, 1989

      Francis T. Mandanici, with whom, on the brief, was Joseph Ganim, for the appellant (defendant).

      Jay F. Huntington, deputy assistant state’s attorney, with whom was David Gold, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of having a weapon in a vehicle in violation of General Statutes § 29-38. The defendant claims that the trial court erred (1) in instructing the jury that the state need prove only the defendant’s knowledge of the weapon’s presence and not that the defendant had or possessed it, and (2) in failing to grant his motion for judgment of acquittal.

The jury could reasonably have found the following facts. On December 7,1986, at approximately 1 a.m., Officers Philip Beamon and Vincent Raucci of the New Haven police department observed a motor vehicle parked with its engine running in the middle of Winchester Avenue. The defendant, who was the operator of the vehicle, blocked traffic in both directions as he conversed with several females standing across the street. The officers approached the vehicle and Beamon asked the defendant for his license and registration. Beamon informed the defendant that he would be issued a summons for improper parking. The defendant acted nervous when Beamon spoke to him. Raucci stood behind the vehicle and watched the three male passengers in the defendant’s vehicle in order to cover Beamon.

While standing outside the driver’s door and writing the summons, Beamon observed the defendant reach between his legs toward the floor. In order to get a better look into the compartment, Beamon shone his flashlight into the car. He then observed what appeared to be a gun handle on the floor of the car. Beamon yelled to Raucci that there was a gun in the car. The officers drew their weapons and ordered the occupants to put their hands in plain sight. After the defendant was ordered to get out of the car, Beamon searched the floor area of the driver’s seat and found a fully loaded, operable .38 caliber snub-nosed revolver. The gun was located far enough into the driver’s floor area that Beamon did not have to reach underneath the seat to retrieve it. The defendant and the three passengers, Dennis Broadnax, Anthony Smalls and Darrell Banks, all were arrested.

The defendant’s first claim is that the trial court erred in its instruction on the offense of weapons in vehicles. He claims that the language “knowingly has,” as set forth in the statute, means “knowingly possesses” and, therefore, that the court erred when it failed to instruct the jury as to either actual or constructive possession. He further claims that the erroneous instruction violated his constitutional rights because the state was relieved of proving an essential element of the offense. Although the defendant took no exception to the instruction he now challenges, we will review his claim under the “exceptional circumstances” rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), since the claim involves the constitutional right to proof of guilt beyond a reasonable doubt. State v. Price, 205 Conn. 616, 619, 534 A.2d 1196 (1987).

When construing a statute, we use common sense and assume that the legislature intended to accomplish a reasonable and rational result. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). “In determining the meaning of statutory language, this court must read a statute as a whole.” State v. Williams, 206 Conn. 203, 210, 536 A.2d 583 (1988).

Against the above standards, we determine that General Statutes § 29-38 makes it illegal for any person knowingly to have in any vehicle any weapon without a legal permit. While penal statutes are to be construed strictly, strict construction “does not require that the narrowest technical meaning be given to the words employed in a criminal statute in disregard of their context and in frustration of the obvious legislative intent.” State v. Roque, supra. “The clear intent of [§ 29-38] is to make it a crime to have a weapon in a motor vehicle . . . .” State v. Peterson, 13 Conn. App. 76, 87, 534 A.2d 1237 (1987). The statute is not concerned with possession or ownership of a weapon, but rather aims to penalize those who know that there is a weapon inside a motor vehicle. To read the requirement of possession into the statute would unnecessarily limit the scope of the statute. Such an interpretation would also render the statute redundant because General Statutes § 29-35 makes it illegal for any person to carry a pistol or revolver without a permit. We decline to interpret § 29-38 in a way that would thwart its purpose and render the statute unworkable. We conclude that the trial court correctly charged the jury on the essential elements of the offense of having, a weapon in a motor vehicle.

The defendant’s second claim is that the trial court erred when it failed to grant his motion for judgment of acquittal. Specifically, he claims that the state failed to present sufficient evidence that none of the occupants of the vehicle had been issued a proper permit for the weapon.

In State v. Smith, 9 Conn. App. 330, 338, 518 A.2d 956 (1986), we noted that the lack of a proper permit is an essential element for a violation of General Statutes § 29-38 that the state must prove beyond a reasonable doubt. Moreover, the state must prove that no one in the vehicle had a proper permit to. carry the weapon.

During trial, the state produced two witnesses to prove that none of the occupants had a permit to carry a weapon. Sergeant Francis Whelan of the Connecticut state police testified that, from his review of the state records, none of the occupants had been issued a state gun permit. Officer John Esposito of the New Haven police department testified that from his review of the city records, neither the defendant, nor Smalls nor Bank had a city gun permit. When asked whether Broadnax had such a permit, Esposito responded “No, I haven’t.”

While this is unquestionably an ambiguous statement, a review of the entire proceedings indicates that both the defendant and the state viewed Esposito’s response as indicating that Broadnax had not been issued a local gun permit. The defendant did not cross-examine Esposito on his answer. Moreover, the defendant’s motion for judgment of acquittal was based on the state’s failure to prove his knowledge of the presence of the weapon, and did not rely on the alleged failure to prove that Broadnax did not have a local gun permit. The ground claimed on appeal was not distinctly presented to the trial court as required by Practice Book § 288. We are not bound to consider it here. State v. Bradley, 12 Conn. App. 163, 167-68, 529 A.2d 1343, cert. denied, 205 Conn. 810, 532 A.2d 77 (1987). The trial court did not err in denying the motion for judgment of acquittal.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 29-38 provides in part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both . . . .”

       This answer was verified by the court reporter.


author: Borden, J.

text:
    State of Connecticut v. Gregory Ralph
    (6699)
    Borden, Stoughton and Norcott, Js.
    Argued October 19, 1988
    decision released January 3, 1989

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was Peter Markle, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-135 (a) (2) and 53a-48. The conviction stemmed from an attempted robbery at a convenience store. The sole issue is whether, because the defendant neither filed a request to charge nor excepted to the charge as given, the trial court’s instructions regarding the testimony of an accomplice constituted plain error. We conclude that the court’s instruction on accomplice testimony is not reviewable under the plain error doctrine.

The defendant’s conviction was based largely on the testimony of Bertha Tripp, an accomplice, who pleaded guilty to attempt to commit robbery, and agreed to testify against the defendant as a condition of her sentence. Tripp testified that she attempted the robbery pursuant to an agreement with the defendant, who supplied her with a gun and drove her to the convenience store. The defendant admitted knowing Tripp and admitted driving her to the store, but denied giving her the gun and denied knowing that she was going to attempt to commit a robbery.

The defendant’s sole claim is that the inadequacy of the court’s instructions to the jury regarding the credibility of Tripp’s testimony constituted plain error. He argues that, although the court discussed Tripp’s bias or interest resulting from her bargain with the state; see State v. Shindell, 195 Conn. 128, 142 n.7, 486 A.2d 637 (1985); it did not adequately discuss that aspect of the unreliability of accomplice testimony stemming from the status of the witness as a self-confessed criminal. Id.

Ordinarily, review under the plain error doctrine of Practice Book § 4185 “ ‘is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings’ ”; State v. Bell, 13 Conn. App. 420, 427-28, 537 A.2d 496 (1988), quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); and resulting in an unreliable verdict or a miscarriage of justice. Barca v. Barca, 15 Conn. App. 604, 606, 546 A.2d 887 (1988). In State v. Edwards, 201 Conn. 125, 156-58, 513 A.2d 669 (1986), our Supreme Court rejected a properly preserved claim of error very similar to that presented as plain error by the defendant in this case. A fortiori, the defendant has failed to establish that his claim meets the standard for plain error review.

There is no error.

In this opinion the other judges concurred.

       The defendant suggests in his brief, but not at oral argument in this court, that his claim is also reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). This suggestion is disposed of by State v. Brown, 187 Conn. 602, 613, 447 A.2d 734 (1982) (failure to give accomplice credibility instruction does not involve violation of constitutional right).

       The instructions in question were as follows: “You have heard this evidence that Bertha Tripp, an admitted accomplice, as a condition of her sentence [stated that] she would testify against the defendant in this case. And if you believe she was induced to testify in this case by any promise or reward, you, the jury, must take such fact into consideration in determining what weight should be given to her testimony. And you should closely scrutinize her testimony in assessing her credibility, keeping in mind any bias, interest or motive she had in testifying. Should you determine that a witness had an interest, that need not mean he or she has not told the truth. You must decide from the way the witness acts on the stand, how he or she measures up, in your own experience of judging people in everyday affairs. Whether the interest is likely, unintentionally or otherwise, to color the testimony, you are at liberty, if you so decide, to disbelieve the testimony or to believe some of it and reject other parts or to believe every bit of it.”

       A separate strand of the plain error doctrine, involving the proper development of the law of the state; see Daley v. Gaitor, 16 Conn. App. 379, 383, 547 A.2d 1375 (1988); is not involved here.


text:
    State of Connecticut v. James Rutledge
    (6649)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 7, 1988
    decision released January 3, 1989

      James C. Mulholland, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction, rendered upon his conditional plea of nolo contendere, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). The defendant claims that the trial court erred in denying his motion to suppress the results of breath tests administered after his arrest. We find no error.

Certain facts are pertinent. On December 19, 1986, the defendant was involved in an automobile accident in Hartford. Hartford Patrolman Charles M. Allen was called to the scene of the accident. At the hearing on the defendant’s motion to suppress, Allen testified that at the scene of the accident the defendant had shown signs of intoxication and that he had required the defendant to perform a series of roadside sobriety tests. Those tests confirmed the officer’s suspicions of intoxication. The defendant was arrested and transported to the state police barracks where he remained for approximately fifteen to twenty minutes before chemical tests for alcohol consumption were given. Allen testified that he had advised the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), including his right to consult with an attorney, “within minutes” before the defendant’s test for alcohol consumption was given by the state police. The defendant testified that he had been told he had the right to refuse to take the tests and could opt to take a different test. He further testified that he understood the consequences of refusing to take the tests. The defendant had then submitted to two breath alcohol tests. The defendant also testified, however, that he had not been given the Miranda warnings and had not signed the form advising him that he had the right to consult with an attorney until after the tests were performed. The defendant subsequently filed a motion to suppress the results of the chemical breath tests performed after his arrest. After a hearing, the motion was denied by the trial court.

The issue to be resolved is whether the results of the tests were obtained in compliance with the governing statutory requirements for ensuring that such tests are admissible.

General Statutes § 14-227a (c) sets forth six elements that must be satisfied for the admissibility of the results of chemical analysis tests of a defendant’s blood, breath or urine in a criminal prosecution for a violation of § 14-227a (a). The defendant’s challenge relates to the first element, which provides that chemical analysis results are inadmissible unless the “defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made . . . .” General Statutes § 14-227a (c) (1). The defendant also claims that the state failed to comply with General Statutes § 14-227b (b), which essentially duplicates the requirements of § 14-227a (c) (1), in that they both require that the defendant be afforded a reasonable opportunity to telephone an attorney prior to the performance of the test.

The trial eourt found, from the evidence adduced at the hearing on the motion to suppress, that the defendant was afforded a reasonable opportunity to consult with an attorney prior to submitting to the breath alcohol tests, that the Miranda warnings given to the defendant were sufficient to advise the defendant of his right to consult with an attorney prior to taking the tests, that the defendant was advised of his right to refuse to take the breath test and of his option to take a different test, that the defendant understood the consequences of his refusal to take any test, that the defendant signed a waiver of rights form indicating consent, and that the defendant consented to the breath alcohol tests.

The defendant argues, however, that the Miranda warnings given informed him only that he had a right to an attorney before answering any questions, not of his right to telephone an attorney prior to deciding whether or not to consent to take the chemical breath tests. This argument is without merit.

In interpreting the meaning or requirements of a statute, we rely on the traditional rules of statutory construction. Mitchell v. Mitchell, 194 Conn. 312, 320, 481 A.2d 31 (1984). It is a fundamental principle of construction that a statute such as § 14-227a (a), which imposes criminal liability, is to be strictly construed. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). This rule of strict construction, however, does not require that the most narrow, technical and exact meaning be given to the language of a statute in frustration of an obvious legislative intent. Id. The application of common sense to the language of a penal statute should not be exercised so as to result in absurdity or frustration of the evident design of the legislature. State v. Waterman, 7 Conn. App. 326, 334, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986).

The language of §§ 14-227b (b) and 14-227a (c) (1) indicates that their purpose is to ensure that the defendant is afforded a reasonable opportunity to consult with an attorney before he submits to breath alcohol tests. A determination of what constitutes a “reasonable opportunity” is a question of fact for the trial court. See Phillipe v. Thomas, 3 Conn. App. 471, 475, 489 A.2d 1056 (1985). It is not within this court’s province to find facts or draw conclusions therefrom. As an appellate court, we review the factual findings of the trial court to ensure that they could have been legally, logically and reasonably found, thereby establishing that the trial court could reasonably conclude as it did. Ruwet-Sibley Equipment Corporation v. Stebbins, 15 Conn. App. 21, 25, 542 A.2d 1171, cert. dismissed, 209 Conn. 806, 548 A.2d 437 (1988). The trial court reasonably could have concluded that the evidence adduced at the suppression hearing amply supported a finding that the defendant had a reasonable opportunity to consult with an attorney prior to taking the breath alcohol tests.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-94a allows a defendant to enter a plea of nolo contendere conditional on the right to take an appeal from the trial court’s denial of a motion to suppress evidence based on an unreasonable search and seizure or from the denial of a motion to dismiss. That section provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.” See also Practice Book § 4003 (a).
      In this case, the ground for the defendant’s motion to suppress, namely, that the results of the breath alcohol tests were obtained without compliance with applicable state statutory requirements, “is not included within the statutory language [of General Statutes § 54-94a] allowing appeals from an illegal search or seizure in violation of the fourth amendment. See State v. Madera, [198 Conn. 92, 99, 503 A.2d 136 (1985)].” State v. Chung, 202 Conn. 39, 43, 519 A.2d 1175 (1987). Jurisdiction arises however, from a rule of practice. Practice Book § 4003 (b).
      Section 4003, which became effective October 1,1986, provides in pertinent part: “appeals of RULINGS ON MOTIONS TO DISMISS OR SUPPRESS FOLLOWING JUDGMENTS ENTERED UPON CONDITIONAL PLEAS OF NOLO CONTENDERE
      * * *
      “(b) With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw the conditional plea of nolo contendere after the case has been remanded to the trial court. The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not have significant impact on the disposition of the casé in the trial court. The court shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.” See also general principles of jurisdiction set forth in Szarwak v. Warden, 167 Conn. 10, 37, 355 A.2d 49 (1974); State v. Clemente, 166 Conn. 501, 514, 353 A.2d 723 (1974); In re Appeal of Dattilo, 136 Conn. 488, 492, 72 A.2d 50 (1950); Walkinshaw v. O’Brien, 130 Conn. 122, 142, 32 A.2d 547 (1943).

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

       General Statutes § 14-227a (c) provides: “admissibility OP chemical analysis. Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by the chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided: (X) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test result upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the department of health services and was performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the commissioner of health services. If a blood test is taken, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical technician II or a registered nurse; (4) the device used for such test was checked for accuracy at the beginning of each workday and no later than the end of each workday by a person certified by the department of health services; (5) an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed, provided however the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented which demonstrates that the test results and the analysis thereof accurately reflect the blood alcohol content at the time of the alleged offense.”
      An amendment to General Statutes § 14-227a (c) (4), effective October 1, 1988, now requires accuracy testing to be performed “immediately before and after such test was performed by a person certified by the department of health services.” See Public Acts 1988, No. 88-85.

       General Statutes § 14-227b (b) provides: “If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege will be suspended in accordance with the provisions of subsection (d), (e) or (f) of this section if he refuses to submit to such test and that evidence of such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuse to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege would be suspended if he refused to submit to such test.”