text:
    STATE OF CONNECTICUT v. JEFFREY RIDDICK
    (AC 20519)
    Lavery, C. J., and Spear and Mihalakos, Js.

      Argued September 27, 2000
    officially released January 2, 2001

      James B. Streeto, deputy assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Maureen Keegan, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Jeffrey Riddick, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and risk of injury to a child in violation of General Statutes § 53-21 (l). The defendant claims that the trial court improperly (1) denied his motion for additional equipment to assist him with his hearing impairment during the trial, (2) denied his motion to suppress his confession, (3) denied his motion in limine regarding a bloodstained towel that was introduced into evidence, (4) allowed his confession into evidence because it was inherently unreliable and (5) instructed the jury that it could consider the circumstances under which the defendant’s statement was taken, including a lack of corroboration, the failure to record the statement electronically, and the defendant’s physical and mental state. We affirm the judgment of the trial court.

The juiy reasonably could have found the following facts. On the morning of December 25,1996, the victim, Gertrude Teasley, was discovered by her son, Lacy Lewis, on the floor of her apartment bludgeoned and stabbed about the head and neck. When Lewis discovered the victim, the victim’s two year old child was standing over her, crying. Lewis summoned the authorities.

Arkady Katsnelson, the state medical examiner, performed an autopsy on the victim’s body. The victim was struck on the head at least seven times with a blunt object such as a brick. The victim also was stabbed in the neck twelve times after she was unconscious. Defensive wounds were found on the victim’s hands.

The police determined that the defendant was the last person to see the victim alive. At about 4 p.m. on Christmas day, Sergeant Neil O’Leary, Lieutenant Michael Ricci and Sergeant Gary Pelosi of the Waterbury police department arrived at the apartment of the defendant’s mother-in-law and asked to see the defendant. The defendant agreed to accompany the officers to the police station to discuss the death of the victim.

At about 4:30 p.m., Ricci and Pelosi brought the defendant into an interview room at the police station and asked him if he was willing to discuss the victim’s death. The defendant agreed. Prior to questioning, Ricci had the defendant read the Miranda card aloud.

At about 9:30 p.m., the defendant informed Ricci that he wanted to “get something off his chest” and, thereafter, admitted that he had killed the victim. The defendant provided the officers with accurate details of the crime. Ricci then asked the defendant if he would put his confession in writing. The defendant agreed, and Ricci had him read the Miranda rights aloud again and sign a waiver of those rights.

The defendant’s confession was read into evidence at trial. From that reading, the jury could have found that the defendant went to visit the victim and her two year old daughter at about 7 p.m. on December 23,1996. The defendant spoke with the victim for some time. After the two year old child fell asleep on the sofa, the victim gave the defendant ten dollars and asked him to go out and buy her some crack cocaine. The defendant returned with the crack cocaine, but neither the victim nor the defendant was successful in lighting it. The victim thereafter became angry and began yelling at and grabbing the defendant. The defendant then picked up a brick and hit the victim in the head several times. The victim pulled a knife out from under a couch cushion. The defendant took the knife away from the victim and stabbed her in the throat and neck. The defendant then took a towel from the bathroom and attempted to wipe the victim’s blood off the walls. He wrapped the brick that he had used to bludgeon the victim in the bloody towel and left the apartment.

Shortly before midnight on December 25, 1996, the defendant was placed under arrest. After being arrested, the defendant led the police officers to the empty lot in which he had left the bloody brick and to the sewer into which he had thrown the bloody towel. Blood samples were taken from the victim, the bloody brick and the bloody towel. Not enough DNA was gathered from the towel for testing. The DNA from the bloody brick and the victim, however, matched.

At trial, Henry Lee, chief criminalist for the state of Connecticut and director of the state police forensic laboratory, established a sequence of events from the physical evidence left at the victim’s apartment. According to Lee’s testimony, the attack occurred in multiple locations around the apartment.

The defendant first claims that the court improperly denied his motion for additional listening equipment to assist him during the trial. We disagree.

The defendant is hearing impaired and required the aid of a listening device to participate in his trial. Prior to the trial’s commencement, a hearing was held during which the court, Iannotti, J., found that the defendant was hearing impaired and, therefore, entitled to a mechanical listening aid. The defendant was allowed to choose between the FM Wireless system or the CART system. After trying both systems, the defendant chose the CART system.

CART is a computer assisted simultaneous transcription system. The defendant was provided with a monitor on which he could read the transcription of everything that was said during his trial. The text of the transcription scrolled up the screen as the trial progressed.

The defendant also raised this claim before the trial court, Gill, J., in a motion for additional equipment that he had filed during jury selection. The defense requested that a Brauser system be obtained to work in conjunction with the CART system. A Brauser system would have allowed the defendant to stop the scrolling text on his monitor at any time so that he could read more slowly. It also would have allowed him to back up and read text that already had scrolled past. The defendant argued that this was necessary because he was having difficulty keeping up with the speed of the scrolling. The court, Gill, J., found that the CART system was adequate and that there was no need for a Brauser system.

Neither this court nor our Supreme Court has addressed the legal standard applicable to a hearing impaired person’s right to an interpreter or to equipment. Our Supreme Court, however, has “stated in dictum that [t]he federal due process clause requires continuous translations at trial when a non-English speaking defendant cannot understand or appreciate the proceedings.” (Internal quotation marks omitted.) State v. Munoz, 233 Conn. 106, 132, 659 A.2d 683 (1995). “A hearing-impaired defendant’s right to due process may be implicated in the same way that the absence of an interpreter for a non-English speaking defendant’s right may be implicated: ‘A defendant who cannot hear is analogous to a defendant who cannot understand English, and a severely hearing-impaired defendant cannot be tried without adopting reasonable measures to accommodate his or her disability.’ ” People v. James, 937 P.2d 781, 783 (Colo. App. 1996). “A number of courts have held, and we agree, that hearing-impaired defendants have a constitutional right to hearing assistance and an appropriate accommodation of that right. And, once a trial court has identified that a hearing-impaired defendant requires some assistance, the trial court has broad discretion in accommodating the defendant’s right to that assistance.” Id.

In reviewing whether the trial court abused its discretion, the issue “is not whether we would reach the same conclusion in the exercise of our own judgment, but only whether the trial court acted reasonably.” State v. Deleon, 230 Conn. 351, 363, 645 A.2d 518 (1994). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) Whalen v. Ives, 37 Conn. App. 7, 21, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995). “In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992).

In the present case, the court found the defendant to be hearing impaired and, as an accommodation, provided him with the CART transcription system for use during the trial. The court acted within its broad discretion in ascertaining that the Brauser system was not required. We find no abuse of discretion by the court.

The defendant also raises the unpreserved claim that the court violated his right to a fair trial by not complying with the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. We disagree. “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Although the record is adequate to review the defendant’s claim and the claim is of constitutional magnitude, the claimed constitutional violation does not clearly exist. The defendant’s contention that the court should have followed the language of the ADA when deciding whether to grant him an additional accommodation in the form of the Brauser system is without merit. The court in this case, after a hearing and after giving the defendant his choice between two listening systems, made the decision to accommodate the defendant by providing him with the CART system. It was entirely at the discretion of the court whether to expand the defendant’s accommodation through the addition of the Brauser system. We see no reason to question the decision of the court. The defendant was provided with a listening device so that he could participate in his own defense and follow the proceedings at trial. We find, therefore, that the defendant’s constitutional rights were not denied and that he was afforded a fair trial.

The defendant next claims that the Connecticut constitution contains broader protections for hearing impaired persons than the United States constitution, and that the court violated those protections when it failed to provide him with an additional accommodation in the form of the Brauser system. This claim was not preserved at trial, and, therefore, we once again apply the four-pronged test of Golding as set out previously. See id. The record is adequate to review this claim. The claim is of constitutional magnitude in that it implicates the defendant’s right to a fair trial. The defendant’s constitutional rights under the Connecticut constitution, however, were not clearly violated. While we agree with the defendant that the Connecticut constitution does provide greater protections for hearing impaired persons than the federal constitution, we do not agree that the court improperly applied those protections in refusing to provide the defendant with the Brauser system.

We are satisfied that a plain reading of the applicable sections of the Connecticut and federal constitutions illustrates that the Connecticut constitution does provide greater protections for the hearing impaired. Article first, § 8, of the Connecticut constitution imports language directly from the sixth amendment to the United States constitution, which provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him . . . .” U.S. Const., amend. VI. Both constitutions contain similar language and, thus, provide similarly broad guarantees to criminal defendants.

The equal protection clause of the Connecticut constitution, article first, § 20, as amended by article twenty-one of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.” This clause contains language directly referencing physically disabled individuals that is not included in the United States constitution. Both this court and our Supreme Court have held that the equal protection clause of the Connecticut constitution does afford heightened protection to disabled individuals. See Daly v. DelPonte, 225 Conn. 499, 513-14, 624 A.2d 876 (1993); State v. Haselman, 33 Conn. App. 242, 246 n.6, 635 A.2d 310 (1993), cert. denied, 228 Conn. 921, 636 A.2d 851 (1994). The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be deprived of life, liberty, or property, without due process of law . . . Section 1 of the fourteenth amendment to the United States constitution provides in relevant part that no state shall “deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Nowhere in the United States constitution are physical disabilities mentioned. Clearly, the Connecticut constitution provides broader protection for the hearing impaired through its specific references to the physically disabled.

In the present case, the defendant was not denied his right to a fair trial. The defendant asks us to apply the standard set forth in the Connecticut constitution and suggests that this standard would have required the trial court to provide him at trial with the Brauser system in addition to the CART system. We once again conclude that it was entirely within the court’s discretion to conclude that the CART system was an adequate accommodation for the defendant.

The defendant next claims that the court deprived him of his constitutional right to understand the proceedings at his trial by denying his motion for additional listening equipment. To prevail on this claim, the defendant must show an abuse of discretion by the trial court. In this case, “the basic constitutional inquiry is whether any inadequacy in the [method of] interpretation made the trial fundamentally unfair . . . .” (Internal quotation marks omitted.) State v. Munoz, supra, 233 Conn. 134. We find that it was within the court’s discretion to decide that the CART system was adequate without the addition of the Brauser system and that the defendant’s use of the CART system during trial did not result in a fundamentally unfair trial. The court did not abuse its discretion.

The defendant also claims that the court’s decision not to provide him with the Brauser system denied him a fair trial. We see no fundamental difference between this claim and the defendant’s previous claim. We, therefore, refer to our previous discussion and conclude that it was within the court’s discretion to decide that the CART system was adequate without the addition of the Brauser system, and that the defendant’s use of the CART system during trial did not result in a fundamentally unfair trial.

The defendant next claims that the court improperly denied his motion to suppress his confession. At trial, the defendant moved to suppress his confession on the grounds that (1) the police violated his fourth amendment rights because the confession was the result of an unwarranted seizure and (2) the confession was involuntary because the police did not take into account the defendant’s hearing impairment during questioning. We disagree.

“It is well settled that [i]f the police obtain physical evidence or statements as the result of the seizure of a person without probable cause . . . the fruit of the poisonous tree doctrine requires that the evidence be suppressed as the product of the unlawful seizure. . . . Therefore, a two-part analysis is required: was the defendant seized; and, if so, was there probable cause for the seizure. . . . We have . . . defined a person as seized under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained. ... In determining the threshold question of whether there has been a seizure, we examine the effect of the police conduct at the time of the alleged seizure, applying an objective standard. Under our state constitution, a person is seized only if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Citations omitted; internal quotation marks omitted.) State v. James, 237 Conn. 390, 404, 678 A.2d 1338 (1996).

“A person is not arrested or seized [however] ... if he freely chooses to enter into or continue an encounter with the police. . . . Police officers do not violate an individual’s constitutional rights by approaching him, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering into evidence in a criminal prosecution his voluntary answers to such questions. . . . Among the factors that may be considered in determining whether a defendant’s encounter with police was consensual in nature are: the time, place and purpose of the encounter . . . .” (Citations omitted; internal quotation marks omitted.) Id., 405.

The following additional facts are necessary for the resolution of this claim. The defendant was approached at his mother-in-law’s house by O’Leary, Ricci and Pel-osi. The officers asked him if he would be willing to talk to them about the victim. The defendant assented and accompanied the officers to the police station. During the course of questioning at the police station, the defendant twice read his Miranda rights aloud, and was allowed free and unfettered movement throughout the station. While the entire duration of the defendant’s questioning was eight and one half hours, up until the time when he confessed to the murder of the victim and thereafter was placed under arrest, the defendant was free to leave the police station. “This period, though substantial in duration, does not remotely approach the length of those interrogations held to be so objectionable ... as to warrant reversal of a finding by a trial court that a confession was voluntary.” State v. Carter, 189 Conn. 631, 638, 458 A.2d 379 (1983) (eight hour police interrogation). After the defendant confessed to the crime, the police arrested him and placed him in custody.

The questioning at the police station did not violate the defendant’s constitutional rights. The defendant accompanied the officers and answered questions. The defendant’s confession was a voluntary response to police questioning and, thus, was properly admitted into evidence at trial.

“The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence. . . . We have stated that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined . . . .” (Citations omitted; internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 418, 736 A.2d 857 (1999).

It is not at all clear from the record that the defendant’s hearing impairment posed a problem for him during questioning by the police. The defendant was able to hear and respond to the officers’ questioning, and there is no support for the claim that his confession was involuntary. We conclude that the court properly denied the defendant’s motion to suppress.

The defendant’s next claim is that the court improperly denied his motion in limine regarding the bloodstained towel. We disagree.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Emphasis in original; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 788-89, 699 A.2d 91 (1997), quoting State v. Prioleau, 235 Conn. 274, 305, 664 A.2d 743 (1995).

The defendant, in his confession, described to the police officers how he had wiped the victim’s blood off the walls of her apartment with a towel. He then led the officers to the sewer in which he had thrown that towel. Contrary to the defendant’s allegation, there is a clear nexus between the bloody towel, the crime committed and the defendant. The court committed no error in admitting the bloodstained towel into evidence.

The defendant’s next claim that his confession should not have been allowed into evidence because it was inherently unreliable is without merit. “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. . . . Most cases present only one, two, or three significant questions. . . . Usually ... if you cannot win on a few major points, the others are not likely to help. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.” (Citations omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 51 Conn. App. 818, 822, 725 A.2d 971 (1999). The defendant’s claim is just such a weak one. We refer to our previous discussion of the defendant’s Miranda rights and the relevancy of evidence.

The defendant’s final claim is that the court improperly failed to instruct the jury that it could consider the circumstances surrounding the taking of his statement. Because this claim was not preserved at trial, we apply the test set forth in Golding. See State v. Golding, supra 213 Conn. 239-40. The claim fails the second prong of Golding because it is not of constitutional magnitude. Id., 239. The failure of the court to instruct the jury as the defendant requested is not a constitutional issue because it related solely to the jury’s consideration of a piece of evidence and was purely evidentiary in nature. The defendant has placed a constitutional tag on a nonconstitutional issue. See State v. Smart, 37 Conn. App. 360, 376, 656 A.2d 677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995).

The defendant’s reliance on State v. Huckabee, 41 Conn. App. 565, 677 A.2d 452, cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996), to support his contention that the jury should have been instructed that it was free to weigh the circumstances surrounding the taking of the defendant’s statement is misplaced. The cited section in Huckabee, in fact, stands for the proposition that although a jury in a criminal trial may use evidence of prior misconduct to assess a defendant’s credibility, the court must provide it with guidance on how to use that evidence. Id., 575. There was no issue of prior misconduct evidence in the present case. Huckabee is not applicable to the defendant’s claim. The court properly instructed the jury with regard to the circumstances surrounding the defendant’s confession.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with the intent to cause the death of another person, he causes the death of such person or oí a third person or causes a suicide by force, duress or deception . . .

       General Statutes § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered ... or the morals of such child are likely to be impaired, or does any act likely to impair the heallh or morals of any such child . . . shall be guilty of a class C felony.”

        Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Judge Gill carefully evaluated the efficacy of the CART system before denying the defendant’s request for a Brauser system, as evidenced in the following excerpt from the transcript of Judge Gill’s oral ruling: “The court’s going to rule on the motion as amended as follows. I have watched this present system work now for three days, and the defendant obviously has watched the same screen as I have. I am amazed at its efficiency. It’s quite remarkable, actually. The screen appears virtually contemporaneously with the utterance of the words by the participants. They are very accurately displayed on a very clear screen. I have no concerns that there might be a spelling error. Hearing people, listening to witnesses live in a courtroom, I don’t always catch every word that’s said or the meanings of those words. While it may be true that words in a trial would be different from everyday life, that is true whether you are reading them or hearing them. The defendant is not a stranger to the criminal process and so I suspect that many of the words will not be as foreign to him as to others. The cost of the system— that is the increased cost—was not a factor in my decision here whatsoever. I’ve observed the defendant watching the screen intently. He consults with his attorney after most or many of the questioning of the veniremen. . . . This system is so good that it even puts the regular court reporter’s remarks to the court and to the venire people such as ‘speak louder,’ or ‘what did you say,’ on the screen. The defendant is about thirty-seven years of age. He has an employment history which means he had to apply for jobs and perform jobs. . . . Under the totality of the circumstances here, I don’t believe that the defendant is entitled to have the state provide any more 1han we are doing now. ... I, of course, will do my best to make a conscious effort during the trial and motion hearing to keep the tempo of the testimony slow paced to be of maximum assistance to the defendant. I’m not saying this is necessary, but I believe I’m acting with an abundance of caution and with the highest regard for my belief in a fair trial for all. . . . The court will also further accommodate the defendant during any evidence taken by any prearranged signal between the defendant and his counsel such as the raising of a hand or the touching of an arm which would prompt from defense counsel a request to the court to pause in the proceedings. I will grant that request immediately to allow verbal or written communication between the defendant and his lawyer. I will provide a read back of any testimony that he might have believed he missed with or without the presence of the juror as the situation indicates. Of course, the defense may order daily transcripts of the proceedings and review that daily transcript each day with the defendant. In view of all the foregoing, the motion is accordingly denied.”

       Section 12132 of title 42 of the United States Code provides in relevant part: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1994).
      Title 28, § 35.160, of the Code of Federal Regulations (1999) provides: “(a) A public entity shall take appropriate steps to ensure that communications with . . . members of the public with disabilities axe as effective as communications with others.
      “(b) (1) Apublic entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.
      “(2) In determining what type of auxiliary aid and service is necessary, a public, entity shall give primary consideration to the requests of the individual with disabilities.” 28 C.F.R. § 35.160 (1999).
      The ADA defines a public entity as: “(A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government . . . .” 42 U.S.C. § 12131 (1) (1994).
      For purposes of the ADA, the Connecticut Superior Court is considered to be apublic entity. See Galloway v. Superior Court of District of Columbia, 816 F. Sup. 12, 19 (D.D.C. 1993).

       Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him . . . .”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense.”

       While the defendant invokes the equal protection clause of the Connecticut constitution in support of his claim that that section affords broader protection to the disabled than its federal counterpart, he makes no claim that the trial court’s ruling constituted discriminatory state action subject to the strict scrutiny analysis required by Daly v. DelPonte, supra, 225 Conn. 513-14.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOHNNIE LOWE
    (AC 17642)
    Lavery, C. J., and Schaller and Hennessy, Js.

      Argued October 16, 2000
    officially released January 2, 2001

      J. Brendan Sharkey, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Russell C. Zentner, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Johnnie Lowe, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sale of a narcotic substance, cocaine, in violation of General Statutes § 21a-278 (b), and one count of sale of a narcotic substance, cocaine, within 1500 feet of a school in violation of General Statutes § 21a-278a (b). The defendant claims that the trial court improperly (1) permitted a witness who had been sitting at the prosecution table to testify as to chain of custody issues involving the narcotics although the court previously had ordered the sequestration of witnesses, and (2) denied the defendant’s requests to question the prosecuting attorney regarding chain of custody and, therefore, denied the defendant a fair trial. We affirm the judgment of the trial court.

Because this appeal arises out of evidentiary rulings made at trial, the following facts and procedural history are necessary for our resolution of this appeal. The jury reasonably could have found that, on January 18, 1996, while conducting undercover drug purchases for the Middletown police department, Officer Richard Batts drove his unmarked vehicle to the side of a road where the defendant was standing and offered to purchase $20 worth of crack cocaine from him. The defendant walked along the street and, upon returning a few minutes later, told Batts that he should come back later because he could not get any at that time. Approximately two and one half hours later, Batts returned to the same area and waved to the defendant. The defendant directed Batts to drive into a parking lot, which was within 1500 feet of an elementary school, where he sold Batts three “rocks” of crack cocaine for $50. Each rock was contained in its own clear plastic bag.

Batts conducted a similar investigation in the same area on March 8, 1996. Batts again approached the defendant and asked him if he could buy some crack cocaine. The defendant replied that he did not have any but that he could get some. The defendant took Batts’ $50, walked along the street and met with him at a nearby parking lot where the defendant gave him three “rocks” of crack cocaine.

During trial, to admit the narcotics into evidence, the prosecution attempted to establish its chain of custody. Testimony from several witnesses set forth the following chain of custody with respect to the narcotics sold on January 18,1996. Batts immediately took the narcotics to Sergeant Frank Violissi, who was waiting in a nearby “safe area.” Violissi then brought them to police headquarters, where he and Detective Scott Aresco conducted a field test that revealed positive results for crack cocaine. Aresco then secured the narcotics in the department’s evidence room. From there, they were taken to Joel Milzoff of the Connecticut department of public health toxicology laboratory on January 25,1996, where they remained until June 9,1997. A similar chain of custody was testified about with respect to the narcotics sold on March 8, 1996; however, Batts gave the narcotics to Violissi and Detective Michael Kerkes. Kerkes field-tested them, and Milzoff retained them at the toxicology laboratory, where they remained, except as hereinafter described, from March 14, 1996, to June 9, 1997.

The defendant objected to the prosecution’s various attempts to admit the evidence on the ground that the state failed to establish a complete chain of custody. The court agreed that the chain was incomplete because the state had not established custody from June 9,1997, when the evidence was no longer in the possession of the toxicology laboratory, to July 14, 1997, when the trial commenced.

The prosecution was unable, however, to account for that time period without the testimony of James Gill, an inspector for the state’s attorney’s office, who had been seated at the prosecution table since the trial began. Because the court previously ordered sequestration such that witnesses could not be present during other witnesses’ testimony and could not discuss their testimony at any time with any witness, the court heard argument, outside the presence of the jury, as to whether Gill should be permitted to testify.

Over the defendant’s objection, the court permitted Gill to testily that he had received the narcotics from the toxicology laboratory and delivered them to the prosecuting attorney, assistant state’s attorney Russell C. Zentner. Shortly thereafter, it was revealed that the narcotics did not remain at the state’s attorney’s office at all times during the six weeks prior to trial, but that Zentner occasionally had brought them to his home. The defendant requested that he be allowed to examine Zentner as a witness regarding his custody and possible mishandling of the evidence. The court denied the request on the ground that there was no compelling need to warrant calling the prosecuting attorney to testify.

The court subsequently admitted the narcotics into evidence, and the jury returned a guilty verdict on all three counts. On August 29, 1997, the court sentenced the defendant to a total term of eleven years imprisonment. This appeal followed.

I

The defendant first claims that the court violated the sequestration order when it allowed Gill to testify as to chain of custody because Gill had heard all previous testimony while seated at the prosecution table, thereby depriving the defendant of a fair trial. We disagree.

For the defendant to prevail on his claim, he must show that (1) the court violated a sequestration order and (2) he was prejudiced by the violation. See State v. Robinson, 230 Conn. 591, 599, 646 A.2d 118 (1994). “A violation of a sequestration order does not automatically require a new trial. . . . The controlling consideration is whether the defendant has been prejudiced by the violation. ... If the prejudice resulting from the violation is likely to have affected the jury’s verdict, a new trial must be ordered.” (Citations omitted.) Id.; State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982). “The burden is on the defendant to show prejudice in the trial court’s failure to observe its sequestration order . . . .” State v. Stovall, 199 Conn. 62, 69, 505 A.2d 708 (1986); see State v. Robinson, supra, 599. Thus, the defendant bears the burden of demonstrating that “it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Nguyen, 52 Conn. App. 85, 93, 726 A.2d 119 (1999), aff'd, 253 Conn. 639, 756 A.2d 833 (2000).

The state concedes, and we agree, that the court violated its sequestration order when it allowed Gill to testify. Therefore, we must consider whether the court’s violation was “probably harmful to the defendant.” State v. Stovall, supra, 199 Conn. 68.

“Not all testimony that is tainted by a violation of a sequestration order is necessarily prejudicial. Rather, [a]n inquiry into the facts and circumstances of each case is necessaiy to ascertain whether the purpose of a sequestration order has been thwarted. ” (Internal quotation marks omitted.) State v. Robinson, supra, 230 Conn. 600; State v. Scott, 16 Conn. App. 172, 182, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988).

“The primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others.” (Internal quotation marks omitted.) State v. Nguyen, supra, 52 Conn. App. 90; see also State v. Stovall, supra, 199 Conn. 67-68. It is not limited to corroborative evidence, but also includes contradictory and tailored testimony. State v. Robinson, supra, 230 Conn. 600. “Sequestration orders assure that witnesses will testify solely on the basis of their personal knowledge.” State v. Brown, 56 Conn. App. 26, 32, 741 A.2d 321 (1999), cert. denied, 252 Conn 927, 746 A.2d 790 (2000). “In essence, it helps to ensure that the trial is fair.” State v. Robinson, supra, 600.

Therefore, we must determine whether Gill’s testimony was in any way tailored to the testimony he heard and, second, if it was tailored, whether Gill’s testimony was likely to have affected the jury’s verdict. Id., 601.

The defendant argues that Gill was likely to tailor his testimony to meet the state’s burden of establishing chain of custody since he saw firsthand the state’s difficulty in admitting the narcotics into evidence and was aware of which gaps in the chain of custody time line needed to be accounted for. We are not persuaded.

There is no presumption that a witness who desires a particular result because of his role in the prosecution’s investigation will shape his testimony in favor of the prosecution’s case. See State v. DiBella, 157 Conn. 330, 342, 254 A.2d 477 (1968) (finding no presumption of complicity by two police officers who “conducted practically the entire investigation and desire[d] a successful result”). Likewise, we are not convinced that by virtue of Gill’s awareness of the state’s need to account for the evidence on certain dates, he would be likely to alter his testimony. He was no more likely to alter his testimony than any other witness who is aware that his testimony involves a crucial matter. Therefore, it is necessary for us to examine Gill’s testimony for evidence that he “fabricated his testimony to comport with” that of the preceding witnesses. State v. Scott, supra, 16 Conn. App. 183.

Gill testified that on June 9,1997, he went to the state toxicology laboratory at Zentner’s request, whereupon he received evidence that he identified as the state’s exhibits. He testified that, after signing two dated receipts for the evidence, he brought the evidence to the state’s attorney’s office and gave it to Zentner. He further testified that the evidence was in the same condition at trial as it was when he first received it. No previous witness testified that Gill had received the evidence or transported it to Zentner. Milzoff previously had testified that the evidence was last at the toxicology laboratory on June 9, 1997. Therefore, Gill knew that the date from which it was necessary to account for the evidence was June 9, 1997. Gill also testified that it was his signature on two receipts in evidence, each of which identified the case, the item of evidence and the date on which he received the items.

The only testimony that could have been tailored involves the date on which Gill stated that he received the evidence because that date is consistent with Mil-zoff s testimony. We cannot conclude that this consistency is attributable to Gill’s tailoring of his testimony. It is too technical to impact the credibility of his testimony. See id. (no evidence of complicity where substance of two state troopers’ testimony was different and similarities could be attributed to standard police operating procedures); State v. Sullivan, 11 Conn. App. 80, 85, 525 A.2d 1353 (1987) (consistencies in mother’s, daughter’s testimony “wholly explainable by reference to factors other than the order of their testimony”). Rather, the consistency is likely attributable to Gill’s own recollection as supported by the two receipts he signed. Moreover, cross-examination of Gill failed to call into question any consistencies between his testimony and the other witnesses’ testimony that might be attributable to the fact that he already had heard their chain of custody testimony. See State v. Scott, supra, 16 Conn. App. 183, quoting State v. Sullivan, supra, 86 (“ ‘[t]he failure of trial counsel to attempt ... to show any harm that may have flowed from the violation of the sequestration order is strong evidence that he did not deem it to be prejudicial’ ”).

Even if we assume arguendo that it was probable that the testimony that Gill already heard and his knowledge of the state’s case tainted his testimony, we conclude that the defendant has not met his burden of showing prejudice. Even if Gill were not allowed to testify, the court could still, in its discretion, admit the narcotics evidence. See State v. Barnes, 47 Conn. App. 590, 595, 706 A.2d 1000 (1998) (“[ajppellate courts grant great deference to a trial court’s ruling on the admissibility of evidence . . . and will not disturb such rulings absent a clear abuse of the trial court’s discretion” [citation omitted]).

Moreover, the court in this case gave a curative instruction to the jury before and after Gill’s testimony. It is well established that “[i]f curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 694, 631 A.2d 271 (1993). “Our appehate courts have always given great weight to curative instructions in assessing claimed errors . . . especially in assessing a defendant’s claim of prejudice.” (Citations omitted; internal quotation marks omitted.) State v. Brown, supra, 56 Conn. App. 29-30.

The defendant relies on State v. Robinson, supra, 230 Conn. 591, to support his contention that it is probable that an inspector, seated at the prosecution table throughout trial and knowing that certain facts were “crucial” for the state to establish chain of custody, would tailor his testimony to that of the other witnesses. We find Robinson distinguishable on its facts.

In Robinson, our Supreme Court found it probable that a correction officer who was present during the defendant’s trial tailored his testimony regarding the defendant’s alleged assault of another correction officer. Id., 601-602. In that case, however, the officer gave directly contradictory testimony after hearing the defendant’s witnesses and, being a fellow officer of the victim, had a motive to shape his testimony. Id., 601-603. In this case, there is no such motive to fabricate and, as discussed, there is nothing to suggest that Gill modified his testimony.

The court in Robinson also concluded that, because there was no pretrial testimony with which to rebut the correction officer’s testimony, jury instructions, cross-examination and closing arguments could not obviate the harmful effects of the witness’ tainted testimony. Id., 603. Although Gill did not testify before trial in this case, we conclude that the evidentiary foundation that pretrial testimony would have provided for rebuttal would have been unavailing to the defendant because the accuracy of Gill’s testimony can be gauged and supported by signed and dated evidence receipts.

We determine that the defendant has failed to show that Gill’s exposure to prior testimony or his knowledge of the state’s case tainted his testimony and resulted in prejudice to the defendant.

II

The defendant next claims that the court improperly denied his request to question Zentner regarding his custody of the evidence, thereby depriving the defendant of his constitutional right to an adequate defense. We disagree.

The following additional facts are necessary to address this claim. In an off-the-record conversation with defense counsel, Zentner revealed that during the period in which he retained custody of the evidence, he took it to his home. The parties then brought the matter to the attention of the court. Zentner indicated, in chambers and later on the record, that he brought the evidence home on one or two occasions to examine the sticker affixed to its packaging to prepare for trial.

The defendant insisted that Zentner be called as a witness. The court found, however, that the defendant failed to establish, as required by the compelling need test, that the information sought from the prosecutor was necessary. Rather, the court found that the chain of custody of the narcotics was established without the testimony of Zentner and that, absent any claim that the evidence was tampered with during his custody of it, there would be no reason to question him. We agree with the court.

Connecticut courts have applied the compelling need test to determine whether a prosecuting attorney can be called as a witness in a case in which he participates as an advocate. State v. Mathis, 59 Conn. App. 416, 423, 757 A.2d 55, cert. denied, 254 Conn. 941, 761 A.2d 764 (2000); State v. Colton, 234 Conn. 683, 701-702, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996); State v. Thompson, 20 Conn. App. 290, 295-96, 567 A.2d 837 (1989). “The policy behind the compelling need test in the context of requiring a prosecutor to testify is four fold: First, there is the risk that the prosecutor may not be a fully objective witness. . . . Second, there exists the justifiable fear that, when a prosecutor takes the witness stand, the prestige or prominence of the prosecutor’s office will artificially enhance his credibility as a witness. . . . Third, the jury may understandably be confused by the prosecutor’s dual role. . . . Finally, a broader concern for public confidence in the administration of justice suggests the maxim that justice must satisfy the appearance of justice.” (Citations omitted; internal quotation marks omitted.) State v. Colton, supra, 701.

“Under this [compelling need] test, the party wishing to call a prosecutor to testify must show that the testimony of the prosecutor is necessary and not merely relevant, and that all other available sources of comparably probative evidence have been exhausted. . . . Because the decision whether to allow an attorney to be called is within the discretion of the trial court, appellate courts will reverse trial court decisions only when there has been an abuse of discretion. . . . The issue is only whether the trial court acted reasonably.” (Internal quotation marks omitted.) State v. Mathis, supra, 59 Conn. App. 423-24. In determining whether the court abused its discretion, we must make every reasonable presumption in favor of its action. State v. Meikle, 60 Conn. App. 802, 817, 761 A.2d 247 (2000).

The court determined that with the testimony of Gill, the state sufficiently accounted for the evidence up until July 14,1997. “Appellate courts grant great deference to a trial court’s ruling on the admissibility of evidence . . . and will not disturb such rulings absent a clear abuse of the trial court’s discretion. ... As a general rule, it may be said that the prosecution is not required or compelled to prove each and every circumstance in the chain of custody beyond a reasonable doubt .... It is not necessary for every person who handled the item to testify in order to establish the chain of custody. It is sufficient if the chain of custody is established with reasonable certainty to eliminate the likelihood of mistake or alteration.” (Citations omitted; internal quotation marks omitted.) State v. Barnes, supra, 47 Conn. App. 595. “The state’s burden with respect to chain of custody is met by a showing that there is a ‘reasonable probability’ that the substance has not been changed in important respects. . . . ‘The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it . . . .’” State v. Nieves, 186 Conn. 26, 31 n.4, 438 A.2d 1183 (1982). Thus, this court has found sufficient evidence to establish an adequate chain of custody where there is testimony that evidence was transferred between law enforcement personnel, delivered and received by the state toxicology laboratory and was identified at trial as the same evidence in an unchanged condition with no indication of tampering. State v. Barnes, supra, 595, citing State v. Taylor, 37 Conn. App. 464, 480-82, 657 A.2d 659, cert. denied, 234 Conn. 907, 660 A.2d 859 (1995); see also State v. Johnson, 162 Conn. 215, 229-33, 292 A.2d 903 (1972); State v. Burns, 23 Conn. App. 602, 615, 583 A.2d 1296 (1990).

In this case, the court reasonably could have found that the state established the requisite chain of custody without Zentner’s testimony. Gill testified that the evidence was in the same sealed condition at trial as it was when it was in his custody. From that testimony, the court was able to infer that the evidence was not tampered with from the time it left Gill’s possession to the time it appeared in court.

The court also questioned Zentner, on the record but outside the presence of the jury, regarding his custody of the evidence to the court’s satisfaction that the evidence had not been compromised. The court further examined the evidence, again outside the presence of the jury, and determined that the tape affixed by the state toxicology laboratory to reseal the package, as testified about by Milzoff, was intact and showed no signs of tampering. Absent “an affirmative showing that the evidence was in some way tampered with, misplaced, mislabeled or otherwise mishandled”; State v. Barnes, supra, 47 Conn. App. 597; we conclude that the court could properly have admitted the evidence without the testimony of Zentner. Therefore, the court’s conclusion that the defendant did not establish a compelling need to question Zentner does not constitute an abuse of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . .

       The defendant requested sequestration of witnesses by oral motion after jury selection and prior to trial. The prosecution did not object, and the court granted the motion such that the sequestration was applicable equally to the state and to the defendant.

       Before Gill testified, the court instructed the jury as follows: “There is a sequestration order. But apparently, the state didn’t—which means a witness or a potential witness cannot be in a courtroom when another witness testifies. But the state wasn’t aware until recently, based on my rulings, that they’d be calling inspector Gill. And I have exempted him— for reasons I don’t need to advise you of—but I have exempted him from the sequestration order, and I am allowing him to testify in that limited area. Go ahead.”
      Immediately after Gill testified, the jury was instructed: “Ladies and gentlemen, as a courtesy to the state, I have let them put on Mr. Gill. By my doing that, I don’t want to give any more weight to his credibility. You have to determine if he’s credible like you would anyone else. So, because I have extended that courtesy, I don’t want you to think I was trying to indicate you give it any more weight than anybody else. You treat him like any other witness, no matter who they are. Okay.”


author: LAVERY, C. J.

text:
    OLYMPIA MORTGAGE CORPORATION v. RUSSELL E. KLEIN ET AL.
    (AC 20086)
    Lavery, C. J., and Schaller and Hennessy, Js.
    Argued October 16, 2000
    officially released January 2, 2001

      Jonathan D. Elliot, with whom, on the brief, was Paul A. De Genaro, for the appellant (plaintiff).

      Michael S. Lynch, for the appellee (defendant Marsha Matthews).
   Opinion

LAVERY, C. J.

The plaintiff, Olympia Mortgage Corporation, appeals from the trial court’s judgment dismissing its complaint for lack of subject matter jurisdiction. The plaintiff claims that the court improperly granted the motion to dismiss the complaint because it failed to allow the plaintiff to amend its civil process pursuant to General Statutes § 52-72 (a) to cure the defect in the process made returnable more than two months from the date of service of process. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the appeal. The plaintiff brought an action against the defendants, alleging, inter alia, legal malpractice arising out of services and advice provided to the plaintiff. The writ of summons and complaint were dated March 12, 1999, with a return date of June 1, 1999. The plaintiff filed the writ with the Superior Court on May 4, 1999. On June 29, 1999, the defendant filed a motion to dismiss for lack of subject matter jurisdiction, claiming that the plaintiffs service of process was insufficient because the original return date did not comply with the two month time limit set forth in General Statutes § 52-48 (b).

On July 8, 1999, pursuant to Practice Book § 10-60 (a) and General Statutes § 52-72 (a), the plaintiff filed a request for leave to amend and requested that the return date of June 1, 1999, be changed to May 11, 1999, in order to comply with § 52-48 (b). Because the defendant did not object within fifteen days of the plaintiffs request for leave to amend, the proposed amendment to the return date was deemed to have been filed with the defendant’s consent. Notwithstanding the amendment, the court granted the defendant’s motion to dismiss on August 5, 1999, and held that it did not have subject matter jurisdiction to hear the case. This appeal followed.

“[0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . . Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver. . . . Jurisdiction over the subject matter is the court’s power to hear and decide cases of the general class to which the proceedings at issue belong. . . . Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Haigh v. Haigh, 50 Conn. App. 456, 460-61, 717 A.2d 837 (1998).

The termination of proceedings without a determination of the merits of the controversy is not favored, especially where that determination can be brought about consistent with the necessary rules of procedure. Id., 463. Thus, “[a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal.” (Internal quotation marks omitted.) Id.

Our Supreme Court examined § 52-72 in Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 642 A.2d 1186 (1994), and determined that “it appears that [§ 52-72] was enacted in response to decisions of this court holding that an improper return date was a jurisdictional defect that could not be corrected. . . . Indeed, this court has stated that the purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court’s jurisdiction. . . . The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date.” (Citations omitted; internal quotation marks omitted.) Id., 623. The court also rejected the claim that § 52-72 applied only to amendments to correct a defective return date sought before the correct return date has passed. Id. The court stated that “[a]s a remedial statute, § 52-72 must be liberally construed in favor of those whom the legislature intended to benefit.” (Internal quotation marks omitted.) Id.; see Haigh v. Haigh, supra, 50 Conn. App. 463. Furthermore, in Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998), the court stated that “[t]he legislature, in enacting § 52-72, expressed an intent to reject the draconian result of dismissal of the plaintiffs cause of action because of a defect involving the return date.”

In this case, the plaintiff argues that its request for leave to amend pursuant to § 52-72 and Practice Book § 10-60 cured the subject matter jurisdiction defect. Thus, because the amended date of May 11, 1999, was within the two month time limit found in § 52-48, the plaintiff claims that the court improperly granted the motion to dismiss. The defendant argues that this case differs from the cases on which the plaintiff relies because the original return dates in those cases, albeit not in conformance with § 52-48, were still within the two month time limit set out in that statute. We disagree with the defendant.

Although § 52-48 sets forth a two month time limitation for return of process, the legislature, by enacting § 52-72, clearly provided parties an avenue to correct a procedural error concerning such process. In Concept Associates, Ltd., the plaintiffs return date was set for a Thursday rather than a Tuesday as required by § 52-48 (a), and the court held that the date could be amended pursuant to § 52-72. Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 625. In Coppola, the court held that the return date of civil process could be amended to correct the plaintiffs failure to return the process at least six days before the return date as required by General Statutes § 52-46a. Coppola v. Coppola, supra, 243 Conn. 664. In Haigh, the plaintiffs return date was set for a Monday rather than a Tuesday as required by § 52-48 (a), and the court remanded the case with direction to grant the motion to correct the return date. Haigh v. Haigh, supra, 50 Conn. App. 466-67. None of the above mentioned cases specifically restricted the right to amend the return date to cases in which the original return date was within the required two month time limitation.

Section 52-72 creates an avenue to amend defects in the return date. We have consistently held that our practice does not favor terminating proceedings without an examination of the merits of the controversy. Id., 463. Furthermore, our Supreme Court has held that a remedial statute such as § 52-72 should be construed liberally so as not to preclude jurisdiction merely because of a defective return date. Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623. In the present case, not only did the plaintiff file a request to amend pursuant to Practice Book § 10-60, but also, by failing to object to that request, the defendant conceded to the May 11, 1999 amended date, which was in conformance with § 52-48 (b). In light of our Supreme Court’s liberal construction of § 52-72, and our view that a court should make a concerted effort to adjudicate the substantive controversy before it and make every presumption favoring jurisdiction, we hold that the court improperly granted the defendant’s motion to dismiss.

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

In this opinion the other judges concurred.

       General Statutes § 52-72 (a) provides: “Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.”

       Only the defendant Marsha Matthews filed the motion to dismiss, which affected the plaintiffs entire complaint. Because Matthews was the only appellee to file a brief, we refer in this opinion to her as the defendant.

       General Statutes § 52-48 (b) provides: “All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”

       Practice Book § 10-60 (a) provides in relevant part: “Except as provided in Section 10-66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner ... (3) By filing a request for leave to file such amendment .... If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. . . .”

       The plaintiff subsequently filed a motion to reargue on August 26, 1999, which was granted on September 13, 1999. On reargument, the court held that its earlier dismissal should stand.

       General Statutes § 52-46a provides in relevant part: “Process in civil actions . . . shall be returned ... if returnable to the Superior Court . . . at least six days before the return day."


author: ZARELLA, J.

text:
    GLORIA COUGHLIN v. CITY OF WATERBURY
    (AC 20102)
    Schaller, Zarella and Pellegrino, Js.
    Submitted on briefs September 15, 2000
    officially released January 2, 2001

      George E. Mendillo filed a brief for the appellant (plaintiff).

      Michael J. Eagen filed a brief for the appellee (defendant).
   Opinion

ZARELLA, J.

The plaintiff, Gloria Coughlin, appeals from the judgment of the trial court rendered following the granting of the motion filed by the defendant city of Waterbury to dismiss her personal injury action filed pursuant to General Statutes § 13a-149. On appeal, the plaintiff claims that the court improperly (1) dismissed her complaint on the ground that it lacked subject matter jurisdiction, (2) concluded that the board of education of the city of Waterbury (board) had a duty to maintain the sidewalk where the plaintiff fell, and (3) concluded that the board had a duty to design and construct the sidewalk. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff alleged in her complaint that on March 17, 1998, while exiting the Driggs Elementary School, she fell at the mouth of the driveway leading to Pine Street. The driveway is also part of the sidewalk. She sustained injuries in the fall. The plaintiff also alleged that the sidewalk was defective and that the defendant had a duty to maintain the sidewalk where she sustained her injuries in a “reasonably safe condition.” Furthermore, the plaintiff alleged that the defendant breached its statutory duty to the plaintiff by (1) allowing sand and pebbles to accumulate at the mouth of the driveway, (2) designing a ramp at the mouth of the driveway that was too steep, in violation of § 29-252-la, subsection 815.3, of the Regulations of Connecticut State Agencies, (3) allowing a sidewalk to exist in a condition that was not reasonably safe for its intended uses and purposes, and (4) failing to detect the dangerous conditions of the sidewalk and to remedy them.

The defendant filed a motion to dismiss the complaint for lack of subject matter jurisdiction, claiming that the plaintiff failed to allege any statutory exception to the defendant’s governmental immunity. The defendant also claimed that General Statutes § 10-220 (a) mandated that the responsibility to maintain school property rested on the board, not the defendant. At the hearing on the motion to dismiss, the defendant presented an affidavit from the board’s school inspector stating that “[t]he driveway, sidewalk, parking lot and playground surrounding Driggs Elementary School in Waterbury is school property, not city property” and that the board was responsible for maintaining the property.

On April 29, 1999, the plaintiff filed an objection to the motion to dismiss and an affidavit stating that the defendant had the responsibility to maintain the area in front of the school where the plaintiff sustained injuries.

In a memorandum of decision dated July 28, 1999, the court granted the defendant’s motion to dismiss, concluding that the board was legally obligated to maintain the sidewalk where the plaintiff fell. The court stated that “the plaintiffs affidavit does not contradict any of the material facts attested to by the defendant’s affiants.”

On August 20, 1999, the plaintiff moved to reargue the motion to dismiss. In a supporting memorandum of law, the plaintiff argued that “[tjhis is an allegation of a design defect” and that “the court erred in concluding, sub silentio, that it was the [board’s] duty to design and construct the sidewalk where plaintiff fell.” In an objection to the motion to reargue, the defendant claimed that the plaintiff failed to introduce any new facts or case law. On September 20, 1999, the court denied the plaintiffs motion to reargue. The court rendered judgment for the defendant on March 1, 2000. This appeal followed.

The plaintiff first claims that the court improperly dismissed her complaint on the ground that it lacked subject matter jurisdiction. We agree.

“Our standard of review of a trial court’s findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous. See Practice Book § 60-5; Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 503, 646 A.2d 1289 (1994). [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Thus, our review of the trial court’s ultimate legal conclusion and resulting [action on] the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Wiggs, 60 Conn. App. 551, 553-54, 760 A.2d 148 (2000).

“ ‘A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.’ ” Olson v. Accessory Controls & Equipment Corp., 54 Conn. App. 506, 515, 735 A.2d 881 (1999), cert. granted on other grounds, 251 Conn. 917, 740 A.2d 864 (1999). A motion to dismiss examines, inter alia, whether the court is without jurisdiction in light of the record. Taft v. Wheelabrator Putnam, Inc., 55 Conn. App. 359, 362, 742 A.2d 366 (1999), cert. granted on other grounds, 252 Conn. 918, 919, 744 A.2d 439, 440 (2000).

In Novicki v. New Haven, 47 Conn. App. 734, 742, 709 A.2d 2 (1998), the following applicable principle was articulated. “Ownership of the property does not establish liability under § 13a-149 or [General Statutes] § 13a-144. Rather, it is the governmental entity charged with the ‘duty ... to keep [the property] in repair’ ... or the ‘party bound to keep [the property] in repair’ ... on which the statutes impose liability under certain circumstances.” (Citations omitted.) Id.

In the present case, whether the court had subject matter jurisdiction is tied to the determination of which entity had the duty to maintain the property at the precise location of the plaintiffs fall. See id., 739. As stated in Novicki, ownership of property is not disposi-tive of liability. Rather, the party charged with the duty to maintain the property is potentially liable. The parties’ affidavits squarely conflicted as to which entity had the duty to maintain the property. Accordingly, a genuine issue of material fact exists as to where the plaintiff fell and whether the city or the board had the duty to maintain that property. Because the issue of maintenance remains in dispute and the resolution of the issue is determinative of the court’s subject matter jurisdiction, the court was precluded from granting the motion to dismiss on the ground that it lacked jurisdiction.

“A motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts]. . . . [Affidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists.” (Internal quotation marks omitted.) Lampa-sona v. Jacobs, 7 Conn. App. 639, 642, 509 A.2d 1089 (1986). When issues of fact are disputed, due process requires that an evidentiary hearing be held with the opportunity to present evidence and to cross-examine adverse witnesses. Bradley’s Appeal from Probate, 19 Conn. App. 456, 467, 563 A.2d 1358 (1989). Moreover, a court cannot make a critical factual finding based on memoranda and documents submitted by the parties. See id. Here, the court resolved a critical fact on the basis of the complaint and the affidavits, both of which contained controverted facts. We conclude, therefore, that the court improperly decided the motion without holding an evidentiary hearing.

We now turn to the plaintiffs claim that the court improperly concluded, in effect, that the board had the duty to design and construct the sidewalk where the plaintiff fell. As noted previously, the plaintiffs complaint alleged that the defendant had the duty to design the sidewalk and that the design was flawed. The defendant did not contest this allegation in its motion to dismiss. After the court granted the defendant’s motion, the plaintiff filed a motion to reargue, specifically pointing to the design defect issue. The court denied the motion and rendered judgment in favor of the defendant. The defendant failed to present testimony or other evidence that it did not have the obligation to design and construct the sidewalk where the plaintiff sustained her injury. Therefore, the court improperly dismissed the plaintiffs claim as to the design defect issue.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1,1982, shall be brought except within two years from the date of such injury. No action for any such ipjury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. ...”

       General Statutes § 10-220 (a) provides in relevant part: “Each local or regional board of education shall maintain good public elementary and secondary schools . . . [and] shall have the care, maintenance and operation of buildings, lands, apparatus and other property used for school purposes . . . .”

       The affidavit provided in relevant part:
      “7. Pine Street is a road maintained by the City of Waterbury.
      “8. During the winter months and inclement weather, the City of Waterbury applies sand to Pine Street.
      “9. The sand which accumulated at the mouth of the driveway where I fell was sand applied by the City of Waterbury.
      “10. It is the City of Waterbury’s responsibility to maintain the roadway known as Pine Street and the gutters adjacent to the sidewalks in front of Driggs School.”

       See footnote 3.

       While the court did not explicitly address the design issue in its memorandum of decision, we can properly infer from the denial of the plaintiffs subsequent motion to reargue, which she based on the allegation that the city “has, as a matter of law, the duty to design and construct reasonably safe sidewalks,” that the court implicitly decided this claim in favor of the defendant. Likewise, the plaintiff, in her brief to this court, stated that “[w]hile the court did not specifically address the claim, it must have determined that the duty to design and construct the sidewalk in question rested with the [board].”


author: PELLEGRINO, J.

text:
    PAR PAINTING, INC. v. GREENHORNE & O’MARA, INC., ET AL.
    (AC 19013)
    Landau, Pellegrino and Peters, Js.
    Argued September 22, 2000
    officially released January 9, 2001

      E. Timothy Sullivan, Jr., with whom, were Anthony V. Zeolla and, on the brief, Gaffney Kane, for the appellant (plaintiff).

      Steven W. Varney, for the appellees (named defendant et al.).

      Richard Blumenthal, attorney general, and Peter R. Huntsman, assistant attorney general, filed a brief for the commissioner of the department of transportation as amicus curiae.
   Opinion

PELLEGRINO, J.

The plaintiff, PAR Painting, Inc., appeals from the judgment of the trial court rendered after the granting of the motion by the defendants, Greenhome & O’Mara, Inc., and two of its employees, Tony Guerin, Jr., and James Barranger, to set aside the jury’s verdict in this action for tortious interference with business and contractual relations. The plaintiff claims that the court improperly determined that the evidence was insufficient to support the jury’s findings that the defendants had tortiously interfered with the plaintiffs business relationships, that the defendants had violated General Statutes § 42-110b of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and that the plaintiff had suffered damages of $684,000 as a result. We agree with the trial court’s decision to set aside the verdict and, accordingly, affirm the judgment of that court.

The following facts and procedural history are relevant to our consideration of the plaintiffs appeal. The plaintiff is a corporation engaged in the business of sandblasting and repainting steel structures, including highway bridges. Its president is Peter Papadogiannis. Greenhome & O’Mara, Inc., is a corporation that is in the business of inspecting bridge repainting projects. Guerin and Barranger were employed by Greenhome & O’Mara, Inc., as chief inspector and project manager, respectively, and were assigned to the project that is the subject of this appeal.

On April 20,1994, the plaintiff, acting as a subcontractor, entered into a contract with Shipsview Construction (Shipsview), the prime contractor, to sandblast and repaint three bridges for the department of transportation (department). The largest of the three was the Crooked Street Bridge in Plainville, which was approximately 85,000 square feet. The other two bridges were approximately 55,000 square feet and 10,000 square feet. Pursuant to the terms of the contract, the plaintiff was to complete the work on all three bridges in 180 days, ending in October, 1994, for a payment of $1,085,000.

The department retained Greenhome & O’Mara, Inc., to do the inspection work on the project. The compensation for Greenhome & O’Mara, Inc., under its contract with the department was not wholly fixed. Part of the compensation structure was variable, depending on the amount of time that the company remained on the project. Its duties consisted, essentially, of inspecting the bridge surfaces after the plaintiff blasted to ensure that the old paint had been sufficiently removed and inspecting again after the plaintiff repainted to verify that the new paint was applied properly.

Because of health and environmental issues associated with the lead based paint previously used on the bridges, certain safeguards were necessary during the stripping and repainting of the structures. It was necessary that containment structures be erected to capture the removed paint and that project workers be monitored to ensure that they were not exposed to high lead levels. It was essential to that operation that all of the old paint be thoroughly removed so that the new paint could adhere properly to the structure. An independent body, the Steel Structures Painting Council (council), developed standards applicable to the work in this project. Pursuant to their contracts, the parties were to follow those standards in every stage of the repainting and inspection process.

Although the plaintiff was scheduled to begin work on the Crooked Street Bridge in April, 1994, it did not start building its containment structure on the bridge until late July, 1994, approximately ninety days after the commencement date, nor had it begun working on the other two bridges included in its contract. The plaintiff encountered further delays when the containment structure had to be revised because it did not meet contract specifications. Consequently, the plaintiff did not actually begin doing any blasting work until late August, 1994.

Almost from the time that the blasting and repainting work commenced, the plaintiff and the Greenhome & O’Mara, Inc., inspectors clashed over the plaintiffs noncompliance with contract specifications. In response to Papadogiannis’ repeated complaints that the inspectors were unfairly critical of the plaintiffs work, department employees were sent to the project site several times to inspect the work. Each time, they agreed with the Greenhome & O’Mara, Inc., inspectors that the plaintiffs work was deficient.

In October, 1994, the plaintiffs certification from the council lapsed for seven days, temporarily halting work on the bridge project. In the same month, some of the plaintiffs employees were not allowed to work directly on the bridge when testing revealed that they had elevated blood lead levels. Disagreements between the plaintiff and Greenhome & O’Mara, Inc., continued to escalate, and in November, 1994, the plaintiff voluntarily stopped work on the project and left the job. At that time, the plaintiff had completed about 33 percent of the work required by the contract.

The plaintiff instituted this action in December, 1994, alleging, inter alia, that Greenhome & O’Mara, Inc., and its employees had performed inspections too slowly and in bad faith, resulting in monetary damages flowing from the plaintiffs inability to perform under the contract with Shipsview and the department, and from a damaged reputation that affected its ability to secure future contracts.

After a trial, the jury, responding to a number of interrogatories, found that Greenhome & O’Mara, Inc., and its employees had tortiously interfered with the plaintiffs business relationships with the department and with Shipsview. The jury also found that the defendants’ actions amounted to unfair acts prohibited by CUTPA. The jury awarded the plaintiff total damages of $689,000. See footnote 3.

The defendants then filed a motion to set aside the jury’s verdict, arguing, inter alia, that the verdict was contrary to the law and unsupported by the evidence. The court agreed and rendered judgment setting aside the verdict. The court held that there was insufficient evidence to support the jury’s findings that the defendants’ conduct was tortious, and that there was a causal connection between the defendants’ conduct and the plaintiffs losses. Additionally, the court determined that the award of damages and the finding of CUTPA violations were unsupported by the evidence. The plaintiff thereafter appealed.

A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. Kurti v. Becker, 54 Conn. App. 335, 337, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999). “A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.” (Internal quotation marks omitted.) Id. “Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court’s legal discretion. . . . This discretion vested in the trial court is not an arbitrary or capricious discretion, but, rather, it is legal discretion to be exercised within the boundaries of settled law. . . . This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury. . . . The trial court, upon a motion to set aside the verdict, is called on to question whether there is a legal reason for the verdict and, if there is not, the court must set aside the verdict.” (Citations omitted; internal quotation marks omitted.) Suarez v. Sordo, 43 Conn. App. 756, 759-60, 685 A.2d 1144 (1996), cert. denied, 240 Conn. 906, 688 A.2d 334 (1997).

In reviewing a trial court’s decision to set aside a juiy verdict, we must consider the evidence in the light most favorable to the party who succeeded before the jury. Kurti v. Becker, supra, 54 Conn. App. 337. “While an appellate court must give great weight to a trial court’s decision to set aside a verdict, an appellate court must carefully review the jury’s determinations and evidence, given the constitutional right of litigants to have the issues decided by a jury. Great weight should be given to the action of the trial court and the presumption is that a verdict is set aside only for good and sufficient reason. However, the record must support that presumption and indicate that the verdict demonstrates more than poor judgment on the part of the jury. . . . While we do not attempt to substitute our judgment for that of the trial judge, we must determine whether the jury award was such that the trial judge could have properly substituted his judgment for that of the jury.

. . . An appellate court, therefore, in reviewing whether a trial court abused its legal discretion, must review the entire record and [all] the evidence.” (Citations omitted; internal quotation marks omitted.) Suarez v. Sordo, supra, 43 Conn. App. 760-61; see also Jerz v. Humphrey, 160 Conn. 219, 224-25, 276 A.2d 884 (1971); Marin v. Silva, 156 Conn. 321, 323, 240 A.2d 909 (1968); Burns v. Metropolitan Distributors, 130 Conn. 226, 228-29, 33 A.2d 131 (1943).

The jury found that Greenhorne & O’Mara, Inc., and its employees had tortiously interfered with the plaintiffs business relationships with Shipsview and the department. Further, the jury found the defendants’ conduct to be the basis of a CUTPA violation. Pursuant to the standards outlined above, we must review the law governing those claims and the evidence presented at trial to determine whether the court abused its discretion in setting aside the jury’s verdict.

I

The cause of action for tortious interference with business relations has long been recognized in Connecticut. Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983). Nonetheless, “not every act that disturbs a contract or business expectancy is actionable. . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant’s conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously. . . . [A]n action for intentional interference with business relations . . . requires the plaintiff to plead and prove at least some improper motive or improper means. . . . The plaintiff in a tor-tious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification.” (Citations omitted; internal quotation marks omitted.) Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 805-806, 734 A.2d 112 (1999); Blake v. Levy, supra, 260-62.

After conducting a careful review of the evidence produced at trial, we agree with the trial court that the evidence was insufficient to support the jury’s finding of intentional, wrongful conduct on the part of the defendants, an essential element of the claim of tortious interference with business relations. As the court explained, because it is in the very nature of an inspector’s function to interfere with the work being inspected, evidence of a malicious motive is crucial. Essentially, the plaintiff needed to show that the defendants were purposely rejecting work that actually met the council’s standards. The only evidence of alleged improper motive by Greenhorne & O’Mara, Inc., that the plaintiff presented, however, was the former’s variable compensation structure, and Papadogiannis’ testimony that Greenhorne & O’Mara, Inc., employees laughed one day when the plaintiffs equipment became stuck in mud.

On the other hand, the defendants presented an abundance of evidence to show that the plaintiffs work was in fact inadequate and that the inspectors, in criticizing that work, merely were doing what they had been hired to do. Emmanuel DiMauro, project engineer for the department, testified that he visited the project site ten times in response to Papadogiannis’ complaints about the inspectors. DiMauro agreed each time that the plaintiffs work was substandard. Russell Wagoner, a department engineer, and Arthur Gruhn, construction administrator for the department, also testified that the plaintiffs work did not meet specifications. Mohammad Khadeer, formerly with Greenhome & O’Mara, Inc., but working for the department at the time of trial, testified similarly. Many photographs had been taken of the work that failed inspections. Those photographs were reviewed by the defendants’ expert, who agreed that the work was inadequate. In light of the evidence presented, we agree with the court that the plaintiff failed to show that the defendants acted with improper motive, an essential element of proving tortious interference with a business relationship.

Further, even if the evidence were sufficient for the jury to find that Greenhome & O’Mara, Inc., and its employees acted maliciously toward the plaintiff, the jury could not properly have concluded that such action was the cause of the plaintiffs inability to complete the bridge project within the time specified by the contract. “It is axiomatic that causation must be removed from the realm of speculation and conjecture.” Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., 24 Conn. App. 99, 103, 586 A.2d 614, cert. denied, 218 Conn. 903, 588 A.2d 1079 (1991).

Papadogiannis himself testified that the plaintiff did not begin blasting work until half of the allotted time for the contract had expired. He acknowledged that his containment structure was initially not built according to his own plans and that the lapse in his company’s certification from the council resulted in one week of down time. He agreed that high blood lead levels kept some of his employees from working in the bridge containment structure. He conceded that at least some of the criticism by Greenhome & O’Mara, Inc., of the plaintiffs work was appropriate.

Papadogiannis and his employees testified, contrary to the plaintiffs own log books, that the Greenhome & O’Mara, Inc., inspectors took too long to conduct their inspections, sometimes one and one half to two hours instead of the typical forty-five minutes, and that repeat inspections were conducted. Despite evidence of the plaintiffs very late start date and its other difficulties with the containment structure, employees’ blood lead levels and the certification lapse, the jury found that the conduct of the defendants was the factor that kept the plaintiff from finishing its work on time. Even when viewing the evidence most favorably to the plaintiff and assuming that duplicate two hour inspections in fact occurred, the jury could not with reasonable certainty conclude that such inspections were the reason that the plaintiff had completed only 33 percent of the work well after the contract period had already expired. We therefore agree with the court’s determination that “[g]iven the many nonactionable delays which occurred on the project, it was impossible for the jury to find without resort to speculation or conjecture, that the defendants’ tortious conduct, as opposed to its legitimate inspections or the plaintiffs own delays, caused the plaintiffs losses.”

II

We need not discuss at length the court’s decision to set aside the jury’s award of CUTPA damages because we agree that there was insufficient evidence to support that finding as well.

“In determining whether a practice violates CUTPA we use the criteria of whether [it] offends public policy or comes within some established concept of unfairness, whether [it] is immoral, unethical, oppressive or unscrupulous or whether it causes substantial injury to consumers, competitors or other businessmen.” Muniz v. Kravis, 59 Conn. App. 704, 713, 757 A.2d 1207 (2000); see Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 155, 645 A.2d 505 (1994).

The plaintiff alleged the same wrongful conduct as the basis for both its tortious interference and CUTPA claims, i.e., that the Greenhome & O’Mara, Inc., inspectors were forcing the plaintiffs painters to repeat work that actually met council standards. We note here that improper conduct that does not rise to the level of tortious interference may, nonetheless, constitute a CUTPA violation. See, e.g., Sportsmen's Boating Corp. v. Hensley, 192 Conn. 747, 474 A.2d 780 (1984). As we explained in part I of this opinion, the evidence presented at trial was insufficient to establish that the Greenhome & O’Mara, Inc., inspectors did anything at all improper. Instead, it only was shown that the inspectors were performing the function mandated by their contract with the department. In addition, the plaintiffs failure to prove a causal relationship between the inspectors’ actions and the plaintiffs losses is equally fatal to the CUTPA allegation. See footnote 1. The court, therefore, was justified in also setting aside the damages flowing from the jury’s finding of a CUTPA violation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
      General Statutes § 42-1 lOg (a) provides in relevant part: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action ... to recover actual damages. . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”

       The defendants filed a number of counterclaims. None is at issue in this appeal.

       The jury answered “yes” to each of the following interrogatories:
      “1. Did the Defendant Greenhome & O’Mara, by and through its employees, interfere with PAR Painting’s business relationship with the prime contractor or the [department] on the project by intentionally and wrongfully delaying PAR’S production at the Crooked Street Bridge? . . .
      “2. Did the Defendant Greenhome & O’Mara intentionally take an unnecessarily and unreasonably long lime in inspecting the plaintiff’s work? . . .
      “3. Did the Defendant Greenhome & O’Mara intentionally cause the plaintiff PAR Painting to redo work needlessly and unreasonably? . . .
      “4. If the answer to Questions 1, 2 or 3 is yes, did any of those intentional acts cause actual loss and damage to PAR? . . .
      “5. If the answer to Questions 1, 2 or 3 is yes, did any of those intentional acts constitute an unfair or deceptive trade (business) practice pursuant to Conn. Gen. Stat. § 42-110a et seq., the Connecticut Unfair Trade Practices Act? . . .
      “6. If the answer to Question 5 is yes, do you find that PAR Painting suffered loss and damage as a result of those unfair and deceptive trade (business) practices? . . . [Also, do you] find that the actions of Greenh-ome & O’Mara, its agents or employees in committing the unfair or deceptive acts [was] done maliciously or with an improper or unjustifiable motive or intent? ...”
      The jury fixed the amount of actual damages referred to in interrogatory number four at $664,000 and the amount of actual damages referred to in interrogatory number six at $10,000. It also awarded $5,000 in punitive damages because of the improper motives referred to in interrogatory number six.
      Interrogatories one through four were repeated, essentially, as to the defendants Guerin and Barranger. The jury again answered “yes” to each interrogatory and awarded $5000 in damages against Guerin and Barranger.

       In recognition of the naturally opposed roles of inspectors and workers on construction projects, and of the importance of the inspection function for ensuring public safety, the department filed an amicus brief, asking that we recognize a “qualified inspector’s privilege to interfere,” which would insulate inspectors from claims of this type. Although the point that fear of liability might “chill individual inspectors in their often contentious relations with contractors” is well taken, we decline to recognize an inspector’s privilege at this time, as it is unnecessary to our resolution of the issues on appeal.

       The defendants elicited testimony to show that although Greenhorne & O’Mara, Inc., was to receive variable compensation for its costs, its profit was a fixed amount. Pursuant to its personal services agreement with the department, which was introduced as an exhibit at trial, the schedule of payments for Greenhorne & O’Mara, Inc., included payroll costs plus a maximum 145 percent overhead multiplier and a “fixed fee for profit.”

       It was established that Papadogiannis did not personally witness this incident.

       Even if the plaintiff had proved liability, it failed to present sufficient evidence to support its claim for damages. “It is axiomatic that the burden of proving damages is on the party claiming them. . . . When damages are claimed they are an essential element of the plaintiffs proof and must be proved with reasonable certainty.” (Internal quotation marks omitted.) Lawson v. Whitey’s Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997). We agree with the trial court that the evidence presented was insufficient to establish the plaintiffs alleged damages with reasonable certainty, either for lost profit or for lost opportunities.