author: ZARELLA, J. O’CONNELL, C. J.,

text:
    MARK MOSHER v. MICHAEL KOZLOWSKI, COMMISSIONER OF MOTOR VEHICLES, ET AL.
    (AC 19475)
    O’Connell, C. J., and Foti and Zarella, Js.

    Submitted on briefs March 2
    officially released October 17, 2000

      C. Michael Budlong and Campbell D. Barrett filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Priscilla J. Green, assistant attorney general, filed a brief for the appellees (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ZARELLA, J.

The plaintiff, Mark Mosher, appeals from the judgment of the trial court dismissing his appeal from the administrative decision of the named defendant, Michael Kozlowski, the commissioner of motor vehicles (commissioner), suspending his right to operate a motor vehicle for six months pursuant to General Statutes § 14-227b. On appeal, the plaintiff claims that the trial court improperly (1) made factual conclusions beyond the subordinate findings of fact made by the hearing officer and (2) found that his conduct constituted a refusal as contemplated by § 14-227b. We affirm the judgment of the trial court.

The following facts and procedural history are necessary to a resolution of this appeal. On July 18, 1998, the police received a complaint of a possible drunk driver traveling west on Route 156 in Old Lyme. The Connecticut registration reported by the complainant was assigned to a black Toyota Camry. Within minutes of the complaint, Officer Amy F. Jones of the Old Lyme police department observed a black Camry being driven west on Route 156 by the plaintiff, with the same registration as described in the complaint. Jones followed the plaintiffs vehicle for approximately two miles and observed it swerve outside its travel lane and onto the yellow center lines several times. Also, the speed of the plaintiffs vehicle was inconsistent, ranging between twenty and fifty miles per hour in a forty mile per hour zone, and there was no traffic that would have caused the speed variations.

Jones stopped the plaintiffs vehicle and questioned him. She detected an odor of alcohol on the plaintiffs breath and noticed that his eyes were very red and glassy. Jones asked the plaintiff whether he had been drinking, and the plaintiff responded that he had a drink at the casino. The plaintiffs speech was slurred and he stumbled when asked to step out of his car. Jones administered several field sobriety tests, and the plaintiff failed every test. When another officer arrived, the field tests were again administered with similar results. The plaintiff was arrested for operating a motor vehicle while under the influence of liquor and informed of his rights.

The plaintiff was taken to state police Troop F in Westbrook and was asked to submit to a breath test. The plaintiff agreed. The intoxilyzer machine was not working properly and the results would not print. The machine was cleared and a test was again attempted. The machine again malfunctioned. The plaintiff was asked to go to the Old Saybrook police department to submit to another breath test. The plaintiff refused to submit to the breath test at the other police station. The plaintiffs license was subsequently suspended for his refusal to take a chemical alcohol test pursuant to § 14-227b.

The commissioner, through a duly appointed hearing officer, held a hearing to determine whether the plaintiffs license to operate a motor vehicle should be suspended pursuant to § 14-227b. The hearing officer found affirmatively that the plaintiff had refused to submit to a chemical test of the alcohol content of his blood subsequent to being charged with operating a motor vehicle while under the influence of intoxicating liquor and consequently suspended the plaintiffs license for six months.

The plaintiff appealed to the trial court pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., which governs motor vehicle appeals. See General Statutes § 4-183; Labenski v. Goldberg, 33 Conn. App. 727, 732, 638 A.2d 614 (1994). The trial court issued a memorandum of decision dismissing the plaintiffs appeal.

I

The plaintiff claims first that the trial court improperly made factual conclusions beyond the subordinate findings of fact made by the administrative agency hearing officer. We agree.

“[ T]he power of the trial court in appeals of this kind is very limited: [T]he Superior Court does not try the matter de novo; it is not its function to adjudicate questions of fact, nor may it substitute its own conclusions for those of the [commissioner]. ... Its function is to determine only if the [commissioner] acted rationally and logically or illegally and in abuse of its discretion.” (Citation omitted; internal quotation marks omitted.) Kaplan v. Administrator, Unemployment Compensation Act, 4 Conn. App. 152, 153, 493 A.2d 248, cert. denied, 197 Conn. 802, 495 A.2d 281 (1985).

The trial court, in this case, concluded that the evidence in the police report “provides more than conclu-sionary statements by the arresting officer that the driver failed to provide an adequate breath sample and, therefore, refused the test.” The hearing officer, however, made no findings concerning whether the plaintiff had intentionally failed to provide a sufficient breath sample. Further, the hearing officer made no findings that this contributed to her determination of the plaintiffs refusal. The commissioner’s conclusion, that the plaintiff refused to submit to a test, was based on the plaintiffs refusal to submit to a breath test at the Old Saybrook police station after the intoxilyzer test at Troop F had malfunctioned. The commissioner made no other findings as to the refusal issue. The trial court, therefore, improperly substituted its own judgment for that of the commissioner with respect to a question of fact. General Statutes § 4-183 (j) (“court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact”); Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 400, 610 A.2d 620 (1992) (trial court is not to substitute its judgment for that of commission as to questions of fact); Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 536, 560 A.2d 403 (1989) (this principle is “keystone of administrative appeals”); Hansen v. Norton, 172 Conn. 292, 294, 374 A.2d 230 (1977).

Having determined that the trial court impermissibly substituted its judgment for that of the commissioner, we must now decide whether the court’s judgment should nevertheless be upheld. “Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189), and the scope of that review is very restricted. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant. . . . Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.” (Citations omitted; internal quotation marks omitted.) Shew v. Freedom of Information Commission, 44 Conn. App. 611, 616-17, 691 A.2d 29 (1997), aff'd, 245 Conn. 149, 714 A.2d 664 (1998).

In this case, a sworn police report was offered at the administrative hearing that stated that the plaintiff refused to be tested on a different intoxilyzer machine at another police station. We therefore conclude that there was sufficient evidence before the commissioner to find that the plaintiff refused to comply with the request that he submit to a test of his blood alcohol content.

II

The plaintiff also claims that the trial court improperly found that his conduct constituted a refusal as contemplated by § 14-227b. Because the plaintiff took the required blood alcohol test at Troop F, he asserts that his refusal to submit to another test at the Old Saybrook police station does not constitute a refusal as defined by § 14-227b. The plaintiff claims that § 14-227b should be narrowly construed to require only that a person submit to one test to indicate the ratio of alcohol in their blood. We disagree.

It is undisputed that the intoxilyzer machine at Troop F malfunctioned when testing the plaintiff. The plaintiff was then asked to submit to a breath test at another police station. Section 14-227b requires a person to submit to a chemical analysis of his blood, breath or urine. Under the plaintiffs desired interpretation, the requirements of § 14-227b would be satisfied by his submission to a test that yielded no results. Surely, the legislature did not intend such an irrational result. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 812, 663 A.2d 377 (1995).

The plaintiff claims that if the legislature had intended that there be a requirement to submit to multiple tests, it would not have used the singular word “test” in the statute. We disagree.

A test is defined as “an act or process that reveals inherent qualities . . . .” Webster’s Third New International Dictionary. Thus, a result is a necessary part of a test. The only evidence presented to this court is that the machine malfunctioned and yielded no results.

We therefore conclude that the trial court did not improperly find that the plaintiffs conduct constituted a refusal as contemplated by § 14-227b.

The judgment is affirmed.

In this opinion FOTI, J., concurred.

O’CONNELL, C. J.,

dissenting. I cannot concur with the majority decision.

The commissioner, through his hearing officer, found that the plaintiff refused to submit to a breath test at a different police station, believing that he had already performed a test. The record shows that the plaintiff submitted to at least one, and possibly two, breath tests. It is clear that the equipment employed at state police Troop F malfunctioned and proved inadequate to furnish the police with a result that would effect a suspension of the plaintiffs operator’s license. The plaintiff contends that, after submitting to two breath tests, he was not required to travel to another town to provide a third breath sample.

I am unable to find, in the plain language of the statute, any suggestion that, if the police are unable to complete their responsibilities due to defective equipment, an operator’s license will be suspended if the operator refuses to be taken from one town to another in order that further testing might be conducted. The record supports a conclusion that the plaintiff refused to go from Troop F in Westbrook to Old Saybrook, but such conduct does not amount to a refusal within the statute. If a refusal to go from one town to another is to constitute the refusal referred to in the implied consent statute, this must be accomplished by the General Assembly and not by judicial construction. This court must construe the statute as it finds it without reference to whether the court feels that the law might have been improved by the inclusion of other provisions. Houston v. Warden, 169 Conn. 247, 252, 363 A.2d 121 (1975).

In Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 714-15, 692 A.2d 834 (1997), we held that “where it is undisputed that the motorist submitted to the chemical alcohol test, the fact that he failed to provide an adequate breath sample does not automatically constitute refusal within the meaning of [General Statutes] § 14-227b. Such refusal must be supported by substantial evidence. A conclusory statement by the arresting officer that the driver has failed to provide an adequate breath sample and has, therefore, refused, does not constitute such evidence.”

There is insufficient evidence in the present case to support the hearing officer’s decision that there had been a statutory refusal to take the test. In the present case, as in Bialowas, it is undisputed that the plaintiff orally consented to take a breath alcohol test. The plaintiff, in fact, actually submitted to two tests. At that point, the plaintiff had satisfied his obligations under § 14-227b (b). The plaintiff simply refused, however, to be taken to another town after the intoxilyzer at Troop F malfunctioned.

I am sympathetic with efforts strictly to enforce our operating under the influence laws. “Nevertheless, in our endeavor to rid our roads of these drivers . . . we cannot trample on the constitutional rights of other citizens. They are entitled to a fair hearing. . . . An operator’s license is a privilege that the state may not revoke without furnishing the holder of the license due process as required by the fourteenth amendment.” (Citation omitted; internal quotation marks omitted.) Id., 718.

For the foregoing reasons, I respectfully dissent from the decision of the majority and would reverse the trial court’s decision.

       The plaintiff also named as a defendant the department of motor vehicles hearing officer who presided at the plaintiffs license revocation hearing.

       General Statutes § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, his parent or parents or guardian shall also be deemed to have given his consent.
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege may be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege may be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.
      “(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period and shall issue a temporary operator’s license or nonresident operating privilege to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall be made on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight. ...”

       The trial court cited the portion of the police report that stated: “[The plaintiff] was asked to submit to a breath test to which he agreed. When instructed to blow into the mouthpiece with one steady breath, [the plaintiff] would not put the mouthpiece in his mouth as directed, puffed up his cheeks and only blew in many short breaths. After several minutes of instruction . . . the intoxilyzer malfunctioned and the results didn’t print. The machine malfunction was cleared and [the plaintiff] again agreed to try the test again. At the second attempt, [the plaintiff] again puffed up his cheeks, blew only in short breaths and refused to put the mouthpiece in his mouth as instructed. After several more minutes of instruction . . . the intoxilyzer again failed to print. At this time, [the plaintiff] was asked to either submit to a urine test or go to the Old Saybrook police department to submit to another breath test on their machine, which he refused.”

       The dissent suggests that the plaintiff, despite having been arrested and in the custody of the police, should not be required to travel from the local police station to Old Saybrook to take a test. Neither the plaintiff nor the dissent offers any authority or analysis for this proposition.

       The hearing officer’s subordinate findings of fact provide in relevant part as follows: “As the machine was not properly working, the [plaintiff] was requested to submit to a test at another station, which he refused, as he believed he had already performed a test. The record does not support, the [plaintiffs] testimony.”
      The plaintiff testified as follows at the hearing:
      “Q. [W]ere you asked to take a Breathalyzer test?
      “A. Yes.
      “Q. And did you agree to do so?
      “A. Yes, I did. . . .
      “Q. You took the test two times?
      “A. Two times.”


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    EDWARD DAIGLE v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY
    (AC 19529)
    Hennessy, Pellegrino and Daly, Js.

      Argued June 12
    officially released October 17, 2000

      Ronald F. Ochsner, for the appellant (plaintiff).

      D. Lincoln Woodard, for the appellee (defendant).
   Opinion

PELLEGRINO, J.

The plaintiff, Edward Daigle, appeals from the judgment of the trial court awarding him damages in a personal injury action. On appeal, he claims that the court improperly (1) granted the defendant’s motion in limine precluding the introduction of evidence of his lost wages and lost earning capacity, (2) denied his motion for a mistrial on the basis of an inadvertent reference to the word “handcuff’ by the defendant’s counsel during closing argument to the jury, (3) awarded him economic damages reduced to the percentage of his disability caused by the motor vehicle accident at issue, (4) failed to instruct the jury that the defendant’s counsel made a misleading argument regarding apportionment of economic damages and (5) denied his motion to set aside the verdict and for additur on the basis of the jury’s failure to award him future noneconomic damages. We affirm the judgment of the trial court.

The following facts are relevant to a resolution of this appeal. The plaintiff was involved in two separate automobile accidents that occurred on June 5, 1993, and September 16, 1995. Thereafter, he commenced two separate actions against Metropolitan Property & Casualty Insurance Company, his insurance carrier and the defendant in this action, to recover damages for injuries to his neck and back stemming from the accidents. The first action was brought on an underinsured motorist theory, the second, on an uninsured motorist theory. The defendant admitted that the tortfeasors were negligent, but contested the causal relationship between the accidents and the injuries claimed, as well as their extent, there being evidence that the plaintiff suffered from a preexisting condition and a prior injury that the accidents merely aggravated.

Because of the identity of the parties and the similarity of the injuries, the actions were consolidated for trial. Liability was conceded by the defendant, and jury verdicts for the plaintiff on the issue of damages were rendered in both cases. The verdict in connection with the 1993 accident, which is the subject of the present appeal, awarded the plaintiff $8000. Of that amount, $6000 was for past economic damages and $2000 was for past noneconomic damages. No award was made for future noneconomic damages despite evidence from the plaintiffs physician that, following the accidents, he suffered from a permanent partial disability to his back of 14 percent.

After the jury had been charged, the plaintiff filed a motion for a mistrial on the ground that the defendant’s counsel had improperly mentioned the word “handcuff’ during his closing argument. The motion was denied. The plaintiffs subsequent motion to set aside the verdict as to the damage award and for additur also was denied. This appeal from the judgment of the trial court awarding the plaintiff damages in the 1993 lawsuit followed.

I

The plaintiff first claims that the court improperly granted the defendant’s motion in limine precluding the introduction of his income tax records as documentary evidence to substantiate his claim of lost wages and lost earning capacity. He contends that he was a self-employed general contractor at the time of the accidents and that due to his injuries, he was compelled to hire other people to perform work that he alone previously had performed.

“The standard to be used to review a trial court’s decision on the relevance and admissibility of evidence is abuse of discretion.” (Internal quotation marks omitted.) State v. Markeveys, 56 Conn. App. 716, 718, 745 A.2d 212, cert. denied, 252 Conn. 953, 749 A.2d 1203 (2000). It is a well established principle of law that the trial court has wide discretion to determine the relevance of evidence and that the court’s rulings will not be disturbed on appellate review absent abuse of that discretion. See State v. Mann, 56 Conn. App. 856, 857, 747 A.2d 19, cert. denied, 253 Conn. 906, 753 A.2d 941 (2000); see also Baughman v. Collins, 56 Conn. App. 34, 35, 740 A.2d 491 (1999), cert. denied, 252 Conn. 923, 747 A.2d 517 (2000). “Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Provost, 251 Conn. 252, 257, 741 A.2d 295 (1999), cert. denied, 531 U.S. 822, 121 S. Ct. 65, 148 L. Ed. 2d 30 (2000).

In the present case, the plaintiff offered tax returns to substantiate the increase in his business expenses, yet the records he sought to introduce also showed an increase in his net income for each year after the accidents. “In assessing damages in a tort action, the trier is not concerned with possibilities but with reasonable probabilities.” (Internal quotation marks omitted.) Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 360, 374 A.2d 1047 (1977). “A party who seeks to recover damages . . . [on the ground of lost earnings or earning capacity] must establish a reasonable probability that his injury did bring about a loss of earnings, and must afford a basis for a reasonable estimate by the trier, court or jury, of the amount of that loss.” (Internal quotation marks omitted.) Bombero v. Marchionne, 11 Conn. App. 485, 489, 528 A.2d 396, cert. denied, 205 Conn. 801, 529 A.2d 719 (1987). Here, because the plaintiffs tax returns showed an increase in net income after the accidents, they could not provide a basis for a reasonable estimate by the jury of an alleged loss in wages or earning capacity due to his injuries. See id. We therefore conclude that the plaintiffs claim was not substantiated by the evidence he sought to introduce and that the trial court did not abuse its discretion by granting the defendant’s motion in limine. See Fahey v. Safeco Ins. Co. of America, 49 Conn. App. 306, 314, 714 A.2d 686 (1998).

II

The plaintiff next claims that the court improperly denied his motion for a mistrial on the basis of an inadvertent use of the word “handcuff’ by the defendant’s counsel, despite the court’s prior instruction that the parties not mention the word “handcuff’ in the presence of the jury. The plaintiff concedes that the reference was unintentional, but argues that it irreparably compromised the credibility of his testimony at trial.

The following additional facts are necessary for a resolution of this claim. In 1991, the plaintiff was arrested and his wrist was injured as a result of being handcuffed. He subsequently brought a complaint against the police, and a deposition in that action was used in the present case to document the preexisting injury to his wrist. Thereafter, the court ruled that neither party would be permitted to mention the word “handcuff’ in discussing the plaintiffs previous wrist injury because of potential prejudicial inferences. The defendant’s counsel, however, inadvertently mentioned the word “handcuff’ in his closing remarks. The plaintiffs attorney moved for a mistrial, claiming that use of the word had irreparably prejudiced his client, but the court, stating that it did not believe that the jury would be tainted by what it characterized as a slip of the tongue, denied the plaintiffs motion. Nonetheless, before accepting the verdict, the court polled the jury members to determine whether the “handcuff’ remark had entered into their deliberations, and they replied that it had not.

“In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999).

In the present case, the plaintiff concedes that the defendant’s counsel did not mention the word “handcuff’ intentionally. The transcripts also disclose that the error was a minor slip which, in the context of the entire argument, was unlikely to leave a lasting impression on the jury. Furthermore, to satisfy itself, as well as the parties, that the plaintiff had not been prejudiced, the court polled the juiy members prior to accepting the verdict to determine if the remark had influenced their deliberations, and they replied that it had not. Accordingly, we conclude that inadvertent use of the word “handcuff’ by the defendant’s counsel did not compromise the plaintiffs credibility and that the court did not abuse its discretion in denying the plaintiffs motion for a mistrial. See id., 535-36.

Ill

The plaintiff next claims that the juiy improperly applied the law by reducing the award of economic damages to the percentage of his disability caused by the 1993 accident. He claims that the defendant’s counsel proposed a mathematical formula in his closing argument that the jury improperly used to calculate the award. Because this claim was not raised at trial, the plaintiff seeks review pursuant to the plain error doctrine. See Practice Book § 60-5.

The following additional facts are necessary to our resolution of the plaintiff’s claim. At trial, the defense offered the deposition testimony of Michael Halperin, an orthopedic surgeon who had treated the plaintiff and had performed back surgery on him after the accidents. Halperin originally issued a 14 percent permanent disability rating to the plaintiff of which he attributed one quarter to the 1993 accident, one quarter to the 1995 accident and the remaining one half to a preexisting back condition. Halperin later amended his opinion by attributing 50 percent of the plaintiffs disability to his preexisting condition, 25 percent to a work-related injury occurring in 1988 that Halperin was not aware of when making his original estimate, and 25 percent divided equally between the accident in 1993 and the accident in 1995.

In their closing arguments, counsel for the plaintiff and the defendant asked the jury to base the damage award on different theories. The plaintiffs counsel urged that all of the medical expenses associated with the plaintiffs back surgery and recovery be awarded as damages in the 1993 action. Defense counsel suggested that damages in the 1993 action be awarded on the basis of a mathematical formula corresponding to the formula offered by Halperin, which would result in a recovery amounting to only one eighth of the plaintiffs medical expenses.

The court instructed the jury that “[i]t matters not that the injured party may have had a previous disability or whether the injured person suffers from an ailment that was received and was receiving medical treatment before this negligent act which occurred. Your role is to determine what injuries were caused to the plaintiff as a result of the negligent acts. Those injuries may be more serious to the plaintiff, who has suffered from an underlying condition prior to the incident which is the subject of this trial, than if the injuries had occurred to a person who was completely healthy before the negligence occurred. The plaintiff, therefore, is entitled to recover full compensation for any and all damages proximately resulting from the defendant’s negligence even though you find his injuries to be more serious than they would otherwise have been because of any previous history. Thus, the defendant under law in Connecticut is required to take the plaintiff as he finds him and that is the law.”

Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines . . . that the decision is otherwise erroneous in law. . . .” Review under the plain error doctrine, however, is reserved for “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Perry, 58 Conn. App. 65, 68, 751 A.2d 843 (2000).

General Statutes § 52-216b provides in relevant part: “(a) In any civil action to recover damages resulting from personal injury . . . counsel for any party to the action shall be entitled to specifically articulate to the trier of fact during closing arguments, in lump sums or by mathematical formulae, the amount of past and future economic and noneconomic damages claimed to be recoverable.

“(b) Whenever, in a jury trial, specific monetary sums or mathematical formulae are articulated during closing arguments . . . the trial court shall instruct the jury that the sums or mathematical formulae articulated are not evidence but only arguments and that the determination of the amount of damages to be awarded, if any, is solely the jury’s function.”

In the present case, the defendant’s counsel suggested in his closing argument that the jury use a mathematical formula, as permitted by § 52-216b (a), to assist in calculating the damage award. Both the defendant’s counsel and the court also reminded the jury, as required by § 52-216b (b), that the formula was not evidence, and that it was solely the jury’s function to determine the amount of the damage award. The defendant’s counsel specifically stated in his closing argument, “I want to go through . . . [the documents] with you and even adopt Dr. Halperin’s scenario if you think that is reasonable and you want to use that formula.” Later, he stated, “you may want to work these numbers differently but . . . this is just what I did to come up to arrive at what I could figure out to be a fair figure and a way of compensating him for the things relating to the accident.....Now, you can look at Dr. Halper-in’s reports and make your own decisions . . . .”

While charging the jury, the court also instructed that “[n]othing that the attorneys said ... in their summation is binding upon you unless you agree with it.” The court further stated: “I remind you again as I reminded you earlier and I reminded you a couple of days before, the attorneys as they addressed you during voir dire, during the initial arguments to you, the presentation to you and the arguments again, that is not evidence. How you determine the facts to be is again your sole province. During the closing arguments, you heard certain figures being utilized by both the plaintiff and the defendant. Again, you are not bound by those figures as they were presented to you. ” Accordingly, the court properly instructed the jury that the mathematical formula was part of the defendant’s argument, and the jury was free to consider the formula, as well as any of the other arguments presented by either party, in determining the damage award.

The jury’s decision to rely on the suggested formula and to apportion the medical expenses in accordance with the percentage of disability attributed to the 1993 accident by the plaintiff’s physician was also reasonable. The decision was consistent not only with the court’s instruction that the plaintiff could recover for damages proximately resulting from the tortfeasors’ negligence, but also with the evidence that the injuries requiring medical attention arose from multiple sources. Accordingly, we conclude that the jury properly applied the law and that it was not plain error for the court to accept the juiy’s award of economic damages that was based on a mathematical formula apportioning the plaintiffs disability. See State v. Perry, supra, 58 Conn. App. 69.

IV

The plaintiff next claims that the court should have instructed the juiy that the defendant’s counsel made a misleading argument when he suggested using the mathematical formula to apportion the economic damage award. The plaintiff contends that the defendant’s argument substantially prejudiced the jury and again seeks review of his unpreserved claim under the plain error doctrine.

As we previously have stated, § 52-216b (a) specifically permits the counsel for any party to articulate a mathematical formula during the closing argument to determine the amount of past and future economic and noneconomic damages. Had the court instructed the juiy that the defendant’s counsel made a misleading argument by referring to a mathematical formula, as the plaintiff requests, it clearly would have violated the statutory rule. Accordingly, the court’s failure to instruct the jury that the defendant’s counsel made a misleading argument did not constitute plain error. See id.

V

The plaintiff finally claims that the damage award was inadequate, and contrary to the law and the evidence, and that the court improperly denied his motion to set aside the verdict and for additur. He claims that the verdict was inherently ambiguous because it did not include an award for future noneconomic damages to compensate for pain and suffering. He also claims that the verdict did not conform to the jury instructions that he could recover full compensation for injuries due to the tortfeasors’ negligence, even if the injuries were more serious than they might have been because of a preexisting condition.

“The trial court’s refusal to set aside [a] verdict . . . is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying [a motion] ... to set aside [a] verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict they did. The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . . Our task is to determine whether the total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” (Internal quotation marks omitted.) Barrows v. J.C. Penney Co., 58 Conn. App. 225, 228-29, 753 A.2d 404, cert. denied, 254 Conn. 925, 761 A.2d 751 (2000), quoting Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995).

In a recently decided case, Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000), our Supreme Court discussed the test that a trial court should use in deciding whether to set aside a verdict awarding economic damages but no noneconomic damages, and stated that “the jury’s decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue. That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do.

“As we previously have stated, although the trial court has a broad legal discretion in this area, it is not without its limits. Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury . . . the court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached. . . . [I]f there is a reasonable basis in the evidence for the jury’s verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will.” (Citations omitted; internal quotation marks omitted.) Id., 188-89.

In this case, the evidence presented at trial raised serious questions regarding causation of the plaintiffs injuries, which were similar in effect to the disabilities caused by his preexisting condition and the injuries received in his other reported accidents. For example, the plaintiff testified that he could no longer run, bowl or hunt due to his 1993 and 1995 injuries, yet he previously testified as to similar limitations in the depositions of other cases, before the two accidents occurred. He also testified that the back injury he received in 1988 was resolved following treatment at the hospital, but medical records and his deposition in the related action revealed continuing complaints until 1992 that were virtually identical to his back complaints after the 1993 and 1995 accidents. Furthermore, the plaintiffs testimony was inconsistent as to whether the 1993 or the 1995 accident was more responsible for aggravating his back.

Consequently, the jury in this case reasonably could have interpreted the conflicting evidence and testimony to mean that the 1993 accident would not result in any greater future pain to the plaintiff than the pain caused by his preexisting condition or his other accidents. We therefore conclude that there was a reasonable basis in the evidence for the jury’s verdict. Id., 189.

As for the claim that the verdict did not conform to the jury instructions that the plaintiff could recover full compensation for injuries due to the tortfeasors’ negligence, the jury used a mathematical formula to allocate damages precisely because it wanted to determine what portion of the plaintiffs injuries was due to the 1993 accident. In light of the fact that the plaintiff suffered from a preexisting condition, and was also injured in two other accidents in 1988 and 1995, we conclude that the jury’s decision to apportion the damages conformed to the court’s instructions.

Accordingly, the court did not abuse its discretion in denying the plaintiffs motion to set aside the verdict and for additur.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff refers to his economic damages as “special damages.” “In the mid-1980s, the legislature rewrote the tort recovery provisions of our civil system in successive legislative enactments known together as Tort Reform. As a result of the latter of these enactments, No. 87-227 of the 1987 Public Acts, the trier of fact in a personal injury action must break down its award of damages into two categories: economic damages and noneconomic damages. Economic damages are defined as ‘compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages.’ General Statutes § 52-572h (a) (1). Noneconomic damages are defined as ‘compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering.’ General Statutes § 52-572h (a) (2). For the most part, therefore, ‘economic damages’ are akin to special damages, and ‘non-economic damages’ are akin to general damages.” Childs v. Bainer, 235 Conn. 107, 123, 663 A.2d 398 (1995) (Berdon, J., dissenting). Accordingly, we refer to all of the “special damages” claimed by the plaintiff as “economic” damages.

       A separate verdict was rendered in the 1995 action from which the plaintiff did not appeal.

       The evidence at trial also established a preexisting spinal condition.

       The juiy in this case did award the plaintiff compensation for past noneconomic pain and suffering. The plaintiff argues, nonetheless, that the failure to award future noneconomic damages resulted in a verdict that was inherently ambiguous.

       In Wickers, the court reconciled the perceived inconsistencies that may have been spawned by its prior rulings in Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), overruled, Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000); Malmberg v. Lopez, 208 Conn. 675, 546 A.2d 264 (1988); and Childs v. Bainer, supra, 235 Conn. 107. In Johnson, in which the jury awarded all of the requested special damages, now designated as economic damages, and zero damages for pain and suffering, now designated as noneconomic damages, the court set aside the verdict as “manifestly inadequate.” See Johnson v. Franklin, supra, 232. From that decision, a per se rule appears to have evolved that jury verdicts would be inadequate as a matter of law if economic, but no noneconomic, damages were awarded. The Johnson rule also was applied where a jury found liability but zero damages. See Malmberg v. Lopes, supra, 675. In Childs, however, the Supreme Court did not apply the per se rule of Johnson, since the jury in that case awarded only 19 percent of the economic damages claimed by the plaintiff and, therefore, the award of zero noneconomic, damages was not deemed “manifestly inadequate”; Childs v. Bainer, supra, 118; as was the case in Johnson,. In Wichers, the court expressly overruled Johnson, and held that an award of economic damages and zero noneconomic damages is now to be tested “in light of the circumstances of the particular case before it.” Wichers v. Hatch, supra, 188.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. WALTER DECLAYBROOK
    (AC 19076)
    Spear, Hennessy and Daly, Js.
    Argued June 5
    officially released October 17, 2000

      Kevin A. Randolph, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Christopher Parakilas, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Walter DeClaybrook, appeals from the judgment of conviction, rendered following his conditional nolo contendere plea, of one count of sale of narcotics in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a speedy trial dated July 24, 1998, as being premature, (2) abused its discretion in deeming his letter to the court dated September 2, 1998, a new motion for a speedy trial and (3) abused its discretion in failing to rule on his motion to dismiss filed on September 30, 1998. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. The defendant was arrested on February 21, 1997, by Enfield police pursuant to a warrant on charges arising from his sale of narcotics to an undercover state police trooper on October 10, 1996. On February 24, 1997, the state filed an information charging the defendant with, inter alia, the sale of narcotics pursuant to § 21a-277 (a).

Thereafter, the defendant was held, in lieu of bond, as a pretrial detainee, from February 24, 1997, to April 29, 1997, when he was released on a nonsurety bond with a random drug testing condition. On July 24,1997, the defendant was placed in an alternative incarceration center because of noncompliance with the conditions of his release. In September, 1997, the defendant was placed in another alternative incarceration center, but tested positive for drug use and was arrested twice. The court subsequently reinstated the original surety bond, and the defendant was returned to the lockup as a pretrial detainee held in lieu of bond on October 23, 1997.

Approximately nine months later, on July 24, 1998, the defendant filed a motion for a speedy trial. After a hearing on July 31, 1998, the court denied the motion as premature. Thereafter, on September 2, 1998, the defendant mailed a pro se letter to the court, which indicated that the letter was to serve as his official notification that he intended to sue the state for illegally detaining him and requested his immediate release. The court, despite the defendant’s emphatic protestations, interpreted the September 2,1998 letter as a new motion for a speedy trial, granted the request and determined that the defendant’s trial must begin within thirty days of September 8, 1998.

On September 30, 1998, the defendant filed a motion to dismiss after the court failed to grant his July 24, 1998 motion for a speedy trial. The court, however, took no action on the motion to dismiss.

On October 6, 1998, the defendant entered a plea of nolo contendere conditioned on his right to appeal from the court’s implicit denial of his motion to dismiss in which he alleged a violation of his right to a speedy trial. The defendant received a sentence of five years, execution suspended, and five years probation. This appeal followed.

I

The defendant first claims that the couit improperly failed to grant his July 24, 1998 motion for a speedy trial. He claims that because he was incarcerated in lieu of bond for more than nine months before he filed the motion, the court improperly relied on Practice Book § 43-39 (c) and (d) in denying the motion as premature. We disagree.

Practice Book § 43-39 (c) provides: “Except as otherwise provided herein and in Section 43-40, the trial of a defendant charged with a criminal offense on or after July 1, 1985, shall commence within twelve months from the filing of the information or from the date of the arrest, whichever is later.” Practice Book § 43-39 (d) provides: “The trial of such defendant shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met: (1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and (2) the defendant is not subject to the provisions of General Statutes § 54-82c.”

The defendant claims that the court should have relied on the eight month provision under Practice Book § 43-39 (d). The plain language of the applicable sections, however, demonstrate otherwise. As the state correctly points out in its brief, the court should have relied on the eight month provision under Practice Book § 43-39 (d) only if the defendant had been continuously incarcerated from February 24, 1997, the date the state filed an information charging the defendant, until July 24, 1998, the date the defendant filed his motion for a speedy trial. As the previously stated facts demonstrate, the defendant, who had been held as a pretrial detainee in lieu of bond beginning February 24, 1997, was released on bond with conditions on April 29,1997. The defendant’s bond was then reinstated on October 23, 1997, because he had violated the conditions of his release. Thereafter, the defendant was .held in lieu of bond through the date that he filed the motion for a speedy trial. The result is that while the defendant was ultimately incarcerated in lieu of bond for more than nine months, he had not been continuously incarcerated from the date of the filing of the information. The court, therefore, properly denied the defendant’s motion for a speedy trial.

II

The defendant next claims that the court abused its discretion in deeming his pro se letter to the court dated September 2, 1998, as a new motion for a speedy trial and granting the motion rather than considering it to be a motion to dismiss.

As an initial consideration, we note that the defendant incorrectly claims that this court’s standard of review is to consider whether the trial court abused its discretion. The appropriate standard of review, however, is whether the court’s findings were clearly erroneous and whether the letter, as a matter of law, constituted a motion for a speedy trial by satisfying the minimum requirements for such a motion. See Fontaine v. Thomas, 51 Conn. App. 77, 82 n.7, 720 A.2d 264 (1998), citing In re Michael A., 47 Conn. App. 105, 109, 703 A.2d 1146 (1997). We conclude that the court’s finding was not clearly erroneous.

Practice Book § 41-6 provides in relevant part: “Pretrial motions shall be written and served in accordance with Sections 10-12 through 10-17 unless, for good cause shown, the judicial authority shall grant permission to make an oral pretrial motion. Every written motion shall include a statement of the factual and legal or other basis therefor, shall state whether the same or a similar motion was previously filed and ruled upon, and shall have annexed to it a proper order. ...” Our review of the motion reveals that the defendant failed (1) to provide any factual basis, (2) to state whether the same or a similar motion was previously filed and ruled on, and (3) to attach a proper order. Because the defendant failed to satisfy the requirements of Practice Book § 41-6, the court did not improperly fail to deem the defendant’s letter a motion to dismiss.

Furthermore, even if the court should have considered the letter as a motion to dismiss, that error would be harmless. Practice Book § 43-41 provides in relevant part: “If the defendant is not brought to trial within the applicable time limit set forth in Sections 43-39 and 43-40, and, absent good cause shown, a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period. ...” Because the defendant’s July 24, 1998 motion for a speedy trial had been denied, a motion to dismiss would have been premature and necessarily would have been denied. The defendant, therefore, suffered no harm in any event.

Ill

The defendant claims finally that the court abused its discretion in failing to rule on his September 30, 1998 motion to dismiss. Because the record reveals that the court implicitly ruled on the motion, we reject this claim.

The defendant’s actions demonstrate that he acknowledged that his motion to dismiss had been implicitly denied. First, one week after the defendant filed his September 30, 1998 motion to dismiss, he entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a. Section 54-94a provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. ...” Because the defendant entered his plea pursuant to § 54-94a, which authorizes an appeal from a denial of a motion to dismiss, the defendant obviously believed that the court had implicitly denied his motion. Moreover, because the court accepted the defendant’s conditional plea and sentenced him, it necessarily found that his motion to dismiss had been denied. See State v. Ober, 24 Conn. App. 347 n.l, 351, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, 135, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 260 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was charged with possession of narcotics in violation of General Statutes § 21a-279 (a), possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d), sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b), conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 and 21a-277 (a), and sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). These charges were nolled pursuant to the defendant’s plea agreement.

       The court made no findings concerning excludable time periods at that time.

       The defendant states in his brief that his rights to a speedy trial under the sixth amendment to the United Slates constitution and article first, 8 8, of the constitution of Connecticut were violated by the court’s action. Because he fails, however, to provide any substantive argument in support of this claim, we deem it to be abandoned. See In re Shane P., 58 Conn. App. 234, 243-44, 753 A.2d 409 (2000).

      A recitation of General Statutes § 54-82c is not germane to our discussion as the defendant was a pretrial detainee and not sentenced to a term of imprisonment in a correctional instituí ion and, therefore, as both parties properly concede in their briefs, was not subject to § 54-82c.

       In any event, the defendant was not relying on Practice Book § 43-39 (c), which provides in relevant part that the “trial of a defendant charged with a criminal offense on or after July 1, 1985, shall commence within twelve months from the filing of the information or from the date of the arrest, whichever is later. ...”
      The defendant does correctly point out that the court improperly failed to make an excludable time computation in determining the time within which a trial must commence. Because, however, the defendant claimed only that the court improperly failed to rely on the eight month provision, he has waived any claim that it applied the twelve month provision incorrectly. It is well established that an appellate court is under no obligation to consider a claim that was not distinctly raised at the trial level. Salmon v. Dept. of Public Health & Addiction Services, 58 Conn. App. 642, 662, 754 A.2d 828 (2000).

       The defendant’s letter states in relevant part: “My illegal detention began on August 31,1998, in direct violation of Connecticut General Statutes § 54-82m. This is my official notification that I intend to pursue a legal course of adion against all parties affiliated with this illegal detention, and I am hereby requesting my immediate release.”

       Moreover, as the state correctly points out, the defendant also failed to comply with the service requirement for a motion to dismiss. Because we already have determined that the court did not improperly fail to deem the letter a motion to dismiss due to the defendant’s failure to comply with Practice Book § 41-6, a discussion of the service requirements would be mere surplusage.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. MICHAEL BROWN
    (AC 18089)
    Lavery, C. J., and Schaller and Pellegrino, Js.
    Argued June 13
    officially released October 17, 2000

      William B. Westcott, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Michael Brown, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4), and larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (3) and 53a-8. The jury further determined that the defendant was armed with a firearm when he committed the robbery and the larceny. Consequently, the defendant was given an enhanced penalty as provided by General Statutes § 53-202k and was sentenced to a total effective term of twenty-five years imprisonment. On appeal, the defendant claims that the trial court improperly instructed the jury (1) on the standard of proof beyond a reasonable doubt, (2) on the definition of robbery and (3) concerning the findings necessary to apply the sentence enhancement provision of § 53-202k. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. On July 27, 1996, at approximately 2:30 a.m., the victim, Alan Goodsen, attempted to visit his girlfriend’s residence at 88-90 Hurlburt Street in New Haven. After receiving no response at the house, the victim drove to Ella Grasso Boulevard to look for a pay telephone. The victim traveled to the Olympia Diner at 604 Ella Grasso Boulevard where he located a telephone. The victim parked his car leaving the engine running and attempted to call his girlfriend.

While the victim was on the telephone, a Chevrolet Corsica with three occupants drove up and parked next to the victim’s car. The defendant, who was sitting in the front passenger seat, asked the victim if the telephone was working. The victim replied, “Yes” and proceeded toward his own vehicle. As the victim began to open his car door, the defendant got out of the Corsica holding a gun in his hand. As the defendant approached the victim, he put the gun to the victim’s head and stood facing him. The victim also observed a second individual, who had been sitting in the rear passenger seat of the Corsica, get out holding a gun. This individual stood behind the victim.

The defendant, still holding the gun to the head of the victim, next proceeded to pat down the victim. The defendant remarked to the victim that “you already know what time it is, just run it,” which is slang for “you already know it’s a robbery.” As the defendant committed the robbery, the victim remained looking at him face-to-face.

After taking the victim’s wallet, which contained about $50, the defendant and the other perpetrator discussed what they should do with the victim. The defendant decided to let the victim go, instructing him to “go ahead and walk, don’t look back.” The victim started to walk away as ordered, but took a look back at the defendant. The defendant responded by saying, “Do you want to get shot,” to which the victim stated, “Don’t shoot.” Thereafter, the defendant and the other perpetrator got into the victim’s car with the defendant in the driver’s seát. Both cars, the Corsica and the victim’s car, then sped away.

The victim returned to the telephone and called his mother to tell her what happened. The victim’s mother then called the New Haven police department to report the crime. Several minutes later, Officer Robert Losty of the New Haven police department arrived at the victim’s location. The victim provided the officer with a description of the defendant and the other details of the robbery. The victim described the defendant as a heavyset black man, about five feet and eight inches tall. Thereafter, Losty transmitted the information over his police radio.

Upon receiving information of the robbery, several police departments, including those in Milford and New Haven, responded. Shortly thereafter, police from the Milford police department spotted the victim’s car traveling southbound on Interstate 95. After the police activated their overhead lights, the defendant attempted to evade police pursuit by switching from lane to lane, shutting off the headlights and accelerating to speeds close to 100 miles per hour. The defendant finally lost control of the victim’s car and spun out.

The defendant jumped out of the victim’s car, and members of the Milford police department proceeded to chase the defendant on foot. The defendant was later apprehended in the back yard of a house on Hollister Avenue. The defendant was taken to the Milford police station, where he was positively identified by the victim as the person who had committed the robbery. The defendant’s fingerprints also were found on the driver’s side window of the victim’s car. Additional facts will be discussed where necessary to the resolution of this appeal.

I

The defendant first claims that the court improperly shifted the burden of proof to him when it delivered the following instruction to the jury: “If you can in reason reconcile all of the facts and inferences which you find proven with any reasonable theory consistent with the innocence of the defendant, then, of course, you cannot find the defendant guilty of that crime.” We disagree.

The defendant acknowledges that he failed to preserve this claim for appellate review. He argues, however, that the claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

This court and our Supreme Court previously have upheld jury instructions similar or identical to the one complained of here. State v. Small, 242 Conn. 93, 115, 700 A.2d 617 (1997); State v. Dawkins, 42 Conn. App. 810, 821, 681 A.2d 989, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996); State v. Lopez, 37 Conn. App. 509, 513-15, 657 A.2d 647, cert. denied, 234 Conn. 902, 660 A.2d 858 (1995). Accordingly, we conclude that the claim of improper instruction fails the third prong of Golding.

II

The defendant next claims that the court improperly instructed the jury on the definition of robbery. We disagree.

During the charge to the jury on the offense of robbery in the first degree, the court instructed as follows: “A person commits robbery when, in the course of committing a larceny he uses or threatens the immediate use of physical force upon another person for the purpose of compelling the owner of the property to deliver up the property.” (Emphasis added.)

The court repeated this instruction on numerous occasions. The defendant acknowledges that he failed to raise an exception to any portion of the charge. The defendant now seeks review under State v. Golding, supra, 213 Conn. 239-40. The defendant claims that the evidence presented during the trial did not warrant a jury instruction under § 53a-133 (2). He argues that the court should have instructed under § 53a-133 (1), that is, that the defendant used or threatened the use of physical force during the commission of a larceny for the purpose of “[preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking . . . .”

The defendant cannot prevail on his unpreserved claim of error because, under the third prong of Golding, he has failed in his burden to demonstrate that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. See, e.g., State v. Reyes, 19 Conn. App. 695, 702-704, 564 A.2d 309, cert. denied, 213 Conn. 803, 567 A.2d 833 (1989). Moreover, there is no practical or conceptual distinction between subdivisions (1) and (2) of § 53a-133. State v. Scott, 20 Conn. App. 513, 518-19, 568 A.2d 1048, cert. denied, 214 Conn. 802, 573 A.2d 316 (1990); State v. Webb, 8 Conn. App. 620, 624-25, 514 A.2d 345 (1986).

Ill

The defendant finally claims that the court improperly (1) failed to instruct the jury that it had to make its findings under § 53-202k by the standard of proof of beyond a reasonable doubt and (2) failed to inform the jury fully of all of the elements to be considered when making a finding under § 53-202k, specifically, that it failed to instruct the jury on the definition of a firearm. We disagree.

A

The defendant concedes that he did not properly preserve this claim for appellate review. As with the defendant’s previous two unpreserved jury instruction claims, the defendant argues that review is afforded under Golding. We initially note that the record is adequate to review the alleged claim of error and the claim is of constitutional magnitude alleging the violation of a fundamental right. “An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. . . . This court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appeal-able even if not raised at trial.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). The defendant has, therefore, satisfied the first and second prongs of Golding. We must next consider whether the defendant has satisfied his burden as to the third requirement of Golding, i.e., that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

“At the outset, we note that under . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. ... In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . Furthermore, [a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Delgado, 50 Conn. App. 159, 171, 718 A.2d 437 (1998).

In the present case, the jury instructions, read as a whole, adequately informed the jury of the standard of proof for purposes of their findings under the sentence enhancement provision set forth in § 53-202k.

B

The defendant alternatively claims that the failure of the court to instruct the jury, in connection with the sentence enhancement proceeding pursuant to § 53-202k, on the statutory definition of a firearm contained in General Statutes § 53a-3 (19) violated his right to due process under both the federal and state constitutions. We disagree.

After the jury found the defendant guilty on the three count information, the court presented the following question to the jury concerning the first and third counts: “The court observes each juror has agreed [on the finding of guilty for each of the three counts alleged]. . . . Now, there is one more task for you all to perform and I’m going to pose to you two questions, and after I have done so, I’ll ask you to leave the courtroom, go to the jury room, deliberate and then return with the answer to each of these questions.

“The first question relates to the first count, the robbery in the first degree, and the second question relates to the third count, larceny in the second degree.

“As to the first count, do you find that the defendant during the commission of the crime of robbery in the first degree under the first count, do you find that he was aimed with and threatened the use of or displayed or represented by his words or conduct that he displayed a firearm? That’s the first question, and you decide that unanimously either yes or no.

“The second question is as to the third count. As to the crime of larceny in the second degree under the third count, do you find that the defendant in the commission of said crime was aimed with and threatened the use of or displayed or represented by his words or conduct that he possessed a firearm?

“Now, those are the two questions and the answer is either yes or no.”

Section 53-202k requires the court to impose a five year sentence, which shall not be suspended, for any person “who commits any class A, B, or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by lús words or conduct that he possesses any firearm, as defined in section 53a-3 . . . .” The term “firearm” is defined in § 53a-3 (19) as “any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .”

Recognizing that he did not preserve this claim for appellate review, the defendant asks us to review the claim under Golding. The defendant argues that the failure of the court to instruct the jury, in connection with the sentence enhancement proceeding pursuant to § 53-202k, on the statutory definition of a firearm contained in § 53a-3 (19) violated his right to due process under both the federal and state constitutions. The state does not dispute that at no point in the supplemental charge did the court instruct the jury on the definition of a firearm. The state argues that the claim fails the third and fourth prongs of Golding, namely, that the defendant cannot demonstrate that it is reasonably possible that the jury was misled by the missing instruction or, alternatively, that any error was harmless. The state contends that the jury could not have been misled by the absence of a definition of firearm because the term is “extremely broad and self-evident,” and because the plain and ordinary meaning of the word is obvious and does not conflict with the statutory definition. We agree with the state.

Pursuant to the sentence enhancement provisions of § 53-202k, the state was not required to demonstrate that the object the defendant was holding was actually capable of discharging a shot. See State v. Tinsley, 47 Conn. App. 716, 721-22, 706 A.2d 1008, cert. denied, 244 Conn. 915, 713 A.2d 833 (1998). All the state had to demonstrate was that the defendant represented, by words or conduct, that the object he was holding was capable of discharging a shot. During the course of the robbery, the defendant, while holding a gun, stated to the victim, “Do you want to get shot.” Also during the robbeiy, the defendant’s accomplice ordered the defendant to “just pop him.” On the basis of those statements and the conduct by the defendant, the state demonstrated that the defendant represented that the gun was capable of discharging a shot. It is not improper for a trial court to refuse to define terms that are “ ‘used and might be understood in their ordinary meanings.’ State v. Maresca, 173 Conn. 450, 460, 377 A.2d 1330 (1977).” State v. Lewtan, 5 Conn. App. 79, 85, 497 A.2d 60 (1985).

The statutory definition of “firearm” is plain and obvious, and, thus, the jury could not have been misled by the absence of an instruction specifically defining “firearm.” We therefore conclude that the defendant’s claim fails under the third prong of Golding because the defendant has failed to demonstrate that it is reasonably possible that the jury was misled by the failure of the court to define the term “firearm” for purposes of the sentence enhancement provision set forth in § 53-202k.

The judgment is affirmed.

In this opinion the other judges concurred.

       The area near the pay telephone was well lit by street lights.

       After discovering that the victim had only $50, the other perpetrator stated to the defendant, “Just pop him, fuck it,” which meant to shoot the victim. In response, the victim pleaded, “You don’t have to shoot me. Let me go. Just take the car.”

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of tire 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, supra, 213 Conn. 239-40.


text:
    DAWN KUSZNIR v. ZONING BOARD OF APPEALS OF THE CITY OF SHELTON ET AL.
    (AC 18613)
    Schaller, Hennessy and Daly, Js.

      Argued May 9
    officially released October 17, 2000

      John R. Williams, with whom, on the brief, was William S. Palmieri, for the appellant (plaintiff).

      Thomas J. Welch, with whom, on the brief, was John H. Welch, Jr., for the appellee (defendant).
   Opinion

DALY, J.

The plaintiff, Dawn Kusznir, appeals from the judgment of the trial court finding her in civil contempt for failing to comply with a cease and desist order prohibiting her from harboring two Vietnamese pot-bellied pigs on her property in violation of Shelton’s zoning ordinances. On appeal, the plaintiff claims that at the contempt hearing, the court denied her due process of law by (1) refusing to let her witness testify, (2) failing to permit her to present a defense and (3) imposing a fine for contempt on the basis of her failure to comply with the cease and desist order without first allowing her to present a defense to the motion for contempt. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to a disposition of this appeal. The plaintiff resides at 34 Birch Bank Road, Shelton, on 0.36 acres in an R-1 residential zone. Two Vietnamese pot-bellied pigs also reside on the plaintiffs property. Shelton zoning regulations prohibit the keeping of livestock on lots smaller than two acres.

In 1994, a neighbor complained about the pigs and the defendant zoning enforcement officer issued a cease and desist order to the plaintiff for maintaining livestock on property of less than two acres in a residential zone. A second cease and desist order was issued on May 11,1994. The defendant zoning board of appeals of the city of Shelton (board) upheld that order on June 21, 1994. On September 29, 1994, the Superior Court sustained the board’s decision and allowed the plaintiff thirty days to find other accommodations for the animals. On November 9, 1994, this court denied the plaintiff’s petition for certification to appeal from the trial court’s judgment. The plaintiff then unsuccessfully pursued a boustrophedonic course in the federal courts.

On April 28, 1998, the board filed a motion for contempt claiming that the plaintiff failed to remove the pigs pursuant to the cease and desist order. The plaintiff subpoenaed Mark A. Lauretti, the mayor of Shelton, to testify at a hearing on the contempt motion held on June 30,1998. The board moved to quash the subpoena. At the hearing, Richard J. Chaffee, a Fairfield County deputy sheriff, testified that he saw the pigs at the plaintiffs residence. The court then questioned the plaintiffs attorney concerning the nature of Lauretti’s testimony. The plaintiffs attorney explained that Lauretti’s testimony would support the plaintiffs defense that due to her state of mind, she was unable to obey the court order. The court, however, did not permit Lauretti to testify.

The court found that the plaintiff violated the cease and desist order, and ordered her to remove the animals from the premises by July 10,1998, but granted her the right to request additional time to comply. The court ordered further that, if the plaintiff failed to comply with the order, she would be fined $350 for court costs plus $40 per day for each day of noncompliance. This appeal followed.

The plaintiff first claims that her due process rights were violated by the court’s refusal to allow Lauretti to testify. We disagree.

The plaintiff claims that Lauretti’s testimony would have addressed the reasonableness of her belief that she was not required to comply with the court order. In the plaintiffs attorney’s offer of proof, however, he merely stated that he would “like to inquire [whether Lauretti] has some trepidations about the enforcement action that is being taken by agents of the city of Shelton.”

“The standard to be used to review a trial court’s decision on the relevance and admissibility of evidence is abuse of discretion. . . . The trial court has wide discretion to determine the relevancy of evidence . . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Pender v. Matranga, 58 Conn. App. 19, 27-28, 752 A.2d 77 (2000); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. & Sup. 1999) § 35, p. 159.

“Contempts of court may be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court.” (Internal quotation marks omitted.) Bunche v. Bunche, 36 Conn. App. 322, 324, 650 A.2d 917 (1994). “A finding of indirect civil contempt must be established by ‘sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony. ... A trial-like hearing should be held if issues of fact are disputed.” (Citation omitted.) Id.

A plaintiffs failure to obey an order of the court, without fault on her part, is a good defense to a charge of contempt, and the plaintiff here had the right to demonstrate that her failure to comply with the order of the court was excusable. See Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988); see also Turgeon v. Turgeon, 190 Conn. 269, 283, 460 A.2d 1260 (1983).

Here, the plaintiff was entitled to a trial-like hearing because the alleged contempt occurred outside the presence of the court. Therefore, the plaintiff was entitled to present evidence to the court. The plaintiff, however, chose to present only one witness. The record reveals that the court refused to allow this testimony because it was not relevant.

The plaintiff argues that she reasonably believed that she was not required to comply with the 1998 court order on the basis of press reports that the mayor had some questions about the enforcement action taken by agents of the city. She claimed to have viewed those press reports as evidence that the city officials were at odds with each other over whether the court order should be enforced. She asserted that she intended to inquire of Lauretti whether he had some “trepidation” about the decision of the board.

Because Lauretti did not supervise the board, the court found that any “trepidations” amounted to his personal viewpoint and were not relevant. Furthermore, the plaintiff had ample opportunity to present other evidence on her behalf. Therefore, the court did not abuse its discretion in precluding Lauretti from testifying. The plaintiffs claim that the court prevented her from presenting a defense is, therefore, without merit.

The plaintiff also argues that the court, in deciding whether to hold her in contempt, improperly focused only on the issue of whether the pigs still resided on her property without considering her defense that there was a reasonable explanation for her noncompliance with the court order requiring that the pigs be removed, namely, that she justifiably believed that she did not have to comply on the basis of Lauretti’s reported trepidation about the enforcement action. The plaintiff cannot prevail on this claim because, as we already have held, the court considered and properly rejected her argument that it was reasonable for her to have relied on Lauretti’s alleged views as a basis for believing that she did not have to comply with the court order. The court properly held that reliance on Lauretti’s views was not a defense and properly refused to allow him to testify.

Finally, our holding that the court considered and rejected the plaintiffs proposed defense is dispositive of her claim that the court assessed a fine for contumacious behavior without allowing her to present an explanation for her failure to comply with the order.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the issue of the finality of the judgment was raised at oral argument, the record is clear that a final judgment was entered.

       Although tho plaintiff has raised three issues on appeal, they all How from the claim that the court denied her due process rights by refusing to allow the mayor of Shelton to testify. Although she clothes her claim in constitutional garb, the plaintiffs claim is an evidentiary one. See State v. Hansen, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).

       See § 23.1, Permitted Uses, Schedule A, line nine, of the zoning regulations of the city of Shelton.

      The defendants in this action are Lawrence F. Sheridan, the zoning enforcement officer of the city of Shelton, and the zoning board of appeals of the city of Shelton.


author: PER CURIAM.

text:
    ANTHONY E. BASILICATO v. STATE OF CONNECTICUT ET AL.
    (AC 19975)
    Lavery, C. J., and Spear and Mihalakos, Js.
    Argued September 27
    officially released October 24, 2000

      Anthony E. Basilicato, pro se, the appellant (plaintiff).

      Robert F. Vacchelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Anthony E. Basilicato, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant state board of firearms permit examiners (board), upholding the denial of his application for a pistol permit. In his appeal, the plaintiff raises thirteen issues, claiming that the court improperly failed to sustain his appeal, and that the board and the issuing authority, the West Haven chief of police, acted improperly in failing to grant him the permit.

Our examination of the record and briefs persuades us that the judgment of the court should be affirmed. The issues presented at trial were resolved properly in the court’s thoughtful and comprehensive memorandum of decision. See Basilicato v. State, 46 Conn. Sup. 550, 760 A.2d 155 (1999). Because that decision fully addresses most of the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained in the trial court’s decision. See East v. Labbe, 54 Conn. App. 479, 479-80, 735 A.2d 370 (1999), aff'd, 252 Conn. 359, 746 A.2d 751 (2000). Any issues not raised at the trial level have been reviewed by us, and we find them to be without merit.

The judgment is affirmed.