author: PER CURIAM.

text:
    JANICE MCCARTHY v. HARTFORD HOSPITAL ET AL.
    (AC 28666)
    Bishop, McLachlan and Harper, Js.
    Argued March 25
    officially released June 10, 2008

      Douglas L. Drayton, for the appellants (defendants).

      John J. Quinn, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant Hartford Hospital appeals from the decision of the workers’ compensation review board (board) affirming the finding and award of the workers’ compensation commissioner (commissioner) in favor of the plaintiff, Janice McCarthy. On appeal, the defendant claims that the board improperly awarded supplemental benefits pursuant to General Statutes § 31-308a in the absence of medical and factual evidence that the plaintiffs injury caused a diminution of her earning capacity. We affirm the decision of the board.

The following procedural and factual history is relevant to the defendant’s appeal. On April 1, 1999, while the plaintiff was an employee of the defendant, she fell and sustained injuries while at work. These injuries left her with a 15 percent permanent partial disability of her left foot and a 14 percent permanent partial disability of her left hand, for which she received benefits. At the time she sustained her injuries, the plaintiff was earning $671.31 per week. Due to the lingering effects of her injuries, the plaintiff retired effective July 1, 2003.

After retiring, the plaintiff trained her replacement, working nineteen hours per week and earning $365.79 per week. The training program ended in September, 2003. The plaintiff did not work during the month of October, 2003, but resumed work on November 1, 2003, and worked through May, 2004, at an average weekly wage of $266 per week.

The plaintiff sought benefits pursuant to § 31-308a for the period of July 2, 2003, through April 9, 2004. The defendant opposed her request, contending that there was a significant lapse of time between the plaintiffs retirement and when she began seeking full-time employment again, and that she did not introduce any medical evidence of physical restrictions caused by her permanent injuries. The commissioner concluded that benefits should be paid from July 2 to September 30, 2003, at a weekly rate of $117.93, and from November 1, 2003, through the expiration of the remaining 40.45 weeks of her statutory eligibility at a rate of $231.88 per week. The commissioner denied benefits for October, 2003, because the plaintiff did not seek work during that time. The defendant appealed from that decision to the board.

In affirming the commissioner’s decision, the board found the following additional facts, which are supported by the plaintiffs testimony at the hearing before the commissioner. At the time of her fall, the plaintiff’s job required her to work on bulk mailings, answer many telephone calls and do a significant amount of typing. Following her fall, the plaintiff was advised by her physician to restrict repetitive motions. She had surgery on her foot in the fall of 1999 and a joint replacement on her left thumb in the spring of 2001. Following the surgery on her hand, the plaintiff experienced severe pain when she tried to lift and grasp objects. Consequently, in the fall of 2001, the plaintiff switched jobs, hoping a new job would put less strain on her hand and foot. She was promoted to office manager, a position that required her to set up and break down charts for newly admitted patients. The new building in which she worked did not have an elevator, and her duties required her to travel among three stories, which was difficult. She also had difficulty lifting the charts, handling files and notebooks, removing staples, opening doors, fastening packages with binder clips and unsnapping three ring binders. The plaintiff also required a headset for telephone conversations because her hand would shake when she held the receiver to her ear.

The plaintiff received positive performance appraisals and, consequently, received annual raises. Because her duties caused her physical pain and discomfort, however, and she feared that her job performance would suffer if she continued working, she decided to retire as of July 1, 2003, even though her retirement benefits were reduced by about 40 percent due to her early retirement.

After retiring, the plaintiff trained her replacement, working nineteen hours per week, which was the limit she was allowed to work following her retirement. She earned $365.79 per week, which represented an hourly rate greater than what she was earning when she sustained her injuries. In September, 2003, the training program ended. The plaintiff took the month of October, 2003, off, awaiting the return of another hospital employee whom she would be assisting in a new role on a per diem basis. In that position, in which she also worked nineteen hours per week, the plaintiff received lesser compensation of $14 per hour, or $266 per week. The plaintiff discovered that this position required much more work than she had expected, and she experienced physical difficulties due to her hand. In April or May, 2004, the plaintiff learned that her coworker was pregnant, and, therefore, the plaintiffs responsibilities would be increased. As a result, the plaintiff left that position.

Because the hospital did not have any other per diem positions available, the plaintiff sought employment elsewhere. She was eventually hired by the town of Wethersfield for a nineteen hour per week position that paid $15 per hour. That position, however, required more physical exertion than the plaintiff had anticipated, and, consequently, she lasted only one-half day. The plaintiff then took a position at Financial Careers, Inc., working twelve hours per week at a rate of $10 per hour. She tried to find supplemental employment during that time but was unsuccessful. She worked there until May, 2005, when she was laid off. The plaintiff then found another job as a receptionist, earning $13 per hour and approximately $500 per week. At the time of the hearing before the commissioner, the plaintiff was still experiencing pain in her left hand and tenderness in her left ankle, but she thought she would be able to continue working in her current position as long as she used a telephone headset. In its decision, the board rejected the defendant’s claim that § 31-308a requires a specific medical assessment to demonstrate that an individual with a documented permanent partial disability has a reduced earning capacity and concluded that there was sufficient evidence to support the plaintiffs claim that her injur ies caused a diminution of her earning capacity. The board affirmed the commissioner’s award and this appeal followed.

The standard of review in workers’ compensation appeals is well settled. “[W]hen a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. ... It is the power and the duty of the commissioner, as the trier of fact, to determine the facts. . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. . . . Similarly, [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Samaoya v. Gallagher, 102 Conn. App. 670, 673-74, 926 A.2d 1052 (2007).

Once a specific indemnity award has been exhausted, § 31-308a permits the commissioner to award benefits to a claimant whose earning capacity has been affected adversely by a work-related injury. “In determining the duration and amount of such award, the commissioner is required to consider the nature and extent of the injury, the training, education and experience of the employee [and] the availability of work for persons with such physical condition and at the employee’s age . . . .” (Internal quotation marks omitted.) Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 295, 734 A.2d 1036 (1999).

The defendant’s claim that the plaintiff was required to present medical testimony that her injuries affected her earning capacity in order to receive benefits under § 31-308a is not supported by the statute or decisional law. Because the plaintiff had received permanent partial disability ratings from a medical professional prior to seeking benefits under § 31-308a, the permanent value of her disability had already been established, and her claim that the injuries she sustained affected her earning capacity was amply supported by the evidence presented to and credited by the commissioner. Accordingly, the board properly affirmed the commissioner’s award.

The decision of the workers’ compensation review board is affirmed.

       In addition to Hartford Hospital, Constitution State Service Company, its workers’ compensation insurer, also is a defendant. For convenience, we refer in this opinion to Hartford Hospital as the defendant.

       General Statutes § 3l-308aprovides: “(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.

        “(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.”


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    VICTOR FROMM v. SHERRILL FROMM
    (AC 28437)
    Gruendel, Beach and Peters, Js.

      Argued March 25
    officially released June 10, 2008

      Carolyn M. Futtner, with whom, on the brief, was Michael J. Auger, for the appellant (plaintiff).
   Opinion

GRUENDEL, J.

The plaintiff, Victor Fromm, appeals from the judgment of the trial court denying his motion to preclude receipt of alimony or support by the defendant, Sherrill Fromm. The plaintiff claims that the court improperly concluded that he could not assert the doctrines of laches and equitable estoppel as defenses to a wage withholding order. We reverse the judgment of the trial court.

The record discloses the following undisputed facts. The parties married in 1978. On December 23, 1987, their daughter, Caitlin, was bom. Following the subsequent breakdown of their marriage, a judgment of dissolution entered on November 5,1993. The various orders entered by the court required, inter alia, that (1) the parties shall have joint legal custody of Caitlin with primary physical custody with the defendant, (2) the plaintiff shall pay support for Caitlin in the amount of $164 per week, (3) the plaintiff shall have reasonable rights of visitation including every Wednesday from 5:30 p.m. to 8:30 p.m. and every other weekend from 5 p.m. on Friday to 8 p.m. on Sunday, (4) the plaintiff shall be entitled to reasonable telephone contact with Caitlin, including at least one telephone call per week “and [the] defendant shall not interfere with same” and (5) the plaintiff shall pay the defendant certain alimony. The court further ordered that “[t]he parties shall exchange current addresses and phone numbers at all times. If either party is to move beyond the borders of the state of Connecticut they shall provide [sixty] days advance notice to the other. Neither party shall move until such notice period has expired.”

In the fall of 1994, the defendant moved to Florida without providing any notice to the plaintiff. As he testified: “I went to have my visitation on Wednesday night in October, 1994, and the house that she was living in was vacant. There was no furniture, no nothing. I was stunned. I then drove across town to Colchester to where [the defendant’s] mother lived. At her mother’s house, there was a moving van, and this house was being emptied. I said, ‘where is [the defendant] and my daughter?’ and they indicated she is in Florida. I said, ‘I want to see them.’ [They told me that they] will contact you.” The plaintiff called the police, and an officer was dispatched to the residence. Nevertheless, the defendant’s parents refused to provide the plaintiff with an address or telephone number.

After months passed without any contact from the defendant, the plaintiffs attorney spoke with the attorney that had represented the defendant in the dissolution proceeding, and a visit in Florida was arranged. The plaintiff traveled to Florida in February, 1995. Upon arriving at the location provided by the attorney, the plaintiff learned that that property was the home of the defendant’s mother, who informed the plaintiff that Caitlin and the defendant were not there. Days later, they at last appeared, and the plaintiff spent two days with his daughter.

During his visit, neither the defendant nor her parents provided the plaintiff with her current address or telephone number. The plaintiff returned to Florida approximately three months later in hopes of visiting Caitlin and learning of her whereabouts. As the plaintiff explained, “I just went to the address I had back in February.” He briefly spoke with the defendant’s mother, repeatedly asking where he could find Caitlin or the defendant. Her mother responded that “she will contact you” and ordered him off her property. The plaintiff never saw his daughter during that visit. The plaintiff never heard from the defendant.

The plaintiff contacted other family members of the defendant in search of any lead. At one point, he spoke with the defendant’s brother, who promised to help the plaintiff. Despite that assurance, he never heard from the defendant’s brother again. The plaintiff likewise contacted dozens of the defendant’s friends without any success.

On October 4, 1995, the plaintiff filed a motion for modification of custody and visitation, alleging that the defendant had failed to comply with the dissolution orders concerning his visitation and telephone contact with Caitlin. The record indicates that this motion never was acted on by the court. The plaintiff explained his failure to pursue the motion or other legal options as follows: “[A]fter the divorce, I had lost my house, lost my family. I was trying to reorganize my life. I was penniless. I just couldn’t mentally go anymore because eveiy time I would try to find her or get her or do it, it was just another roadblock, and I just couldn’t go on and on. I just couldn’t do it anymore. I would end up in an institution.”

In April, 1997, the plaintiff moved from New Britain to West Hartford. He took great pains to assure that no correspondence was lost as a result of that move. As he testified: “I went to the post office, and I filed a change of address or some sort of thing [so] that they would pay special attention, and you have to come back within twelve months; that if there is a letter or any contact, they would forward it again. I did that for three years running.” Despite those efforts, no correspondence came. At the October 30, 2006 hearing, the plaintiff testified that the last contact he had with the defendant and Caitlin was during his February, 1995 visit.

On December 23,2005, Caitlin became eighteen years old. Less than one month later, on January 17, 2006, the defendant filed a petition with the bureau of child support enforcement (bureau) seeking arrearage payments for alimony and child support. The bureau provided notice to the plaintiff of the issuance of a wage withholding order soon thereafter. As the court noted, “ [w]hen he received notice from the bureau, the plaintiff had not heard from the defendant in over ten years. He had no address or telephone number for her. The defendant has filed no motion in the Superior Court alleging the plaintiffs wilful failure to pay alimony and child support.”

Pursuant to General Statutes § 52-362 (c) (1), the notice from the bureau informed the plaintiff that he could request a hearing before the court to contest the claimed delinquency or request a modification of the support order. Accordingly, on March 7, 2006, the plaintiff filed both a motion to vacate the wage execution and a motion to modify alimony and support. The latter motion contested the claimed delinquency, alleging that “[i]n approximately 1993, the defendant secreted the whereabouts of herself and Caitlin from the plaintiff. The plaintiff only recently learned that the defendant had ‘resurfaced’ when he was recently served with documentation from support enforcement services. The defendant failed to provide the plaintiff with her address and situation in contravention of the decree of dissolution.” Lie therefore sought either a reduction or elimination of any arrearage on alimony and support due.

By certified letter dated April 27, 2006, counsel for the plaintiff notified the defendant that, pursuant to Practice Book § 13-26, he sought to depose her on May 9, 2006. The defendant signed the certified mail receipt but did not appear for the deposition. Counsel for the plaintiff again contacted the defendant by certified letter dated May 15, 2006, in which he explained that “[a] deposition was scheduled for May 9, 2006, but you did not appear. I have submitted a new deposition notice. I ask that you contact me to discuss scheduling for any reason this date does not work.” Although the defendant again signed the accompanying certified mail receipt, she failed to appear for the May 31, 2006 deposition.

On October 4, 2006, the plaintiff filed a motion to preclude further receipt of alimony or support. It stated: “The [pjlaintiff hereby moves that the court enter an order precluding the defendant from receiving or collecting alimony and/or child support based on one or more of the following grounds: 1. The defendant is guilty of laches; 2. The defendant is equitably estopped from pursuing claims of past due support and alimony; [and] 3. The defendant has waived her rights to pursue past due alimony and/or support.” The plaintiff subsequently filed an order for hearing and notice, which the court granted. State Marshal Joshua C. Martin left a true and attested copy of the plaintiffs motion to preclude further receipt of alimony or support and order for hearing and notice at the defendant’s place of abode on September 28, 2006.

On October 30, 2006, the court held a hearing on the plaintiffs motion to modify alimony and support and his motion to preclude further receipt thereof. The defendant did not appear at that hearing. The court heard testimony from the plaintiff, and the notice from the bureau was introduced into evidence. In its memorandum of decision, the court reasoned: “The defendant has filed no properly docketed motions for contempt or modification in the Superior Court seeking alimony, child support and arrearages thereon. The plaintiff asserts the defenses of laches and equitable estoppel in order to terminate alimony and child support payments. In this case, the moving party may not assert laches and equitable estoppel as affirmative grounds for a modification. Laches and equitable estoppel are special defenses, not affirmative causes of action.” It therefore denied the plaintiffs motion to modify alimony and support and his motion to preclude further receipt thereof. From that judgment, the plaintiff has appealed.

On appeal, the plaintiff contends that the court improperly concluded that he could not assert the doctrines of laches and equitable estoppel as defenses to the wage withholding order. As that issue of first impression presents a question of law, our review is plenary. See BRJM, LLC v. Output Systems, Inc., 100 Conn. App. 143, 152, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). Under that standard, “[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 that appear in the record.” (Citation omitted; internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 217, 764 A.2d 739 (2001).

The starting point in our analysis is § 52-362 (d), which expressly permits an obligor subject to a wage withholding order to file defenses thereto. Section 52-362 (d) provides in relevant part: “An obligor may claim a defense based upon mistake of fact, may claim an exemption . . . with respect to the withholding order, or may file by motion a modification or defense to the support order being enforced by the withholding, by delivering a signed claim form, or other written notice or motion, with the address of the obligor thereon, indicating the nature of the claim or grounds of the motion, to the clerk of the Superior Court or the assistant clerk of the Family Support Magistrate Division . . . (Emphasis added.)

In response to the notice of wage withholding provided by the bureau, the plaintiff filed, inter alia, a motion to preclude further receipt of alimony or support. That motion asserted the defenses of laches, equitable estoppel and waiver. Those are well established special defenses; Cleary v. Zoning Board, 153 Conn. 513, 518, 218 A.2d 523 (1966); that routinely are raised in our courts. See, e.g., Kosnik v. Barton, 93 Conn. App. 244, 246 n.2, 888 A.2d 1107 (2006); Traggis v. Shawmut Bank Connecticut, N.A., 72 Conn. App. 251, 261-64, 805 A.2d 105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002); Teris v. Shearson Hayden Stone, Inc., 5 Conn. App. 691, 695, 501 A.2d 1228 (1985). Our decisional law further indicates that the defenses of laches, equitable estoppel and waiver regularly are raised by parties, such as the plaintiff in the present case, contesting the recoupment of alimony and support arrearages. See Papcun v. Papcun, 181 Conn. 618, 620-22, 436 A.2d 282 (1980); Bozzi v. Bozzi, 177 Conn. 232, 239-43, 413 A.2d 834 (1979); Riscica v. Riscica, 101 Conn. App. 199, 204-208, 921 A.2d 633 (2007); Kalinowski v. Kropelnicki, 92 Conn. App. 344, 351-54, 885 A.2d 194 (2005); Sablosky v. Sablosky, 72 Conn. App. 408, 412-15, 805 A.2d 745 (2002); Burner v. Burrier, 59 Conn. App. 593, 595-96, 758 A.2d 373 (2000); Emerick v. Emerick, 28 Conn. App. 794, 802-804, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992); Brock v. Cavanaugh, 1 Conn. App. 138, 140-42, 468 A.2d 1242 (1984). In light of that precedent and the express mandate of § 52-362 (d), we conclude that the court improperly held that the plaintiff could not assert the doctrines of laches and equitable estoppel as defenses to the wage withholding order.

That determination does not end our inquiry. The plaintiff maintains that the record discloses that the defendant was guilty of laches. “A conclusion that a party has not been guilty of laches is one of fact for the trier and not one that can be made by [an appellate court], unless the subordinate facts found make such a conclusion inevitable as a matter of law.” Bozzi v. Bozzi, supra, 177 Conn. 240. The subordinate facts found by the trial court indicate to us that, as a matter of law, the doctrine of laches applies in the present case.

“The defense of laches, if proven, bars a [party] from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the [opposing party]. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the [opposing party].” (Internal quotation marks omitted.) Treglia v. Zanesky, 67 Conn. App. 447, 459, 788 A.2d 1263 (2001), cert. denied, 259 Conn. 926, 793 A.2d 252 (2002). The doctrine “functions in part as a kind of ‘flexible’ statute of limitations, barring long-delayed claims where no statute of limitations was available for that purpose.” 1 D. Dobbs, Law of Remedies (2d Ed. 1993) § 2.4 (4), p.104; see also Dunham v. Dunham, 204 Conn. 303, 326-27, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996). “The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] ... as where, for example, the [opposing party] is led to change his position with respect to the matter in question.” (Citations omitted; internal quotation marks omitted.) Emerick v. Emerick, supra, 28 Conn. App. 804.

Here, the court found that more than a decade passed without the defendant making any contact whatsoever with the plaintiff. The court also found that at no time did the defendant file any “motion in the Superior Court alleging the plaintiffs wilful failure to pay alimony and child support.” Significantly, the court found that, despite his efforts, the plaintiff could not obtain either an address or telephone number for the defendant. In that vein, the court found that “the defendant’s mother refused to disclose the defendant’s address, and the defendant’s brother would not provide it to the plaintiff. The plaintiff contacted dozens of [the defendant’s] friends to determine the defendant’s permanent address . . . but none were willing or able to help him.” Those findings are amply supported by the record, which demonstrates a concerted effort on the part of the defendant to make any contact by the plaintiff with either herself or Caitlin impossible. From those findings, we conclude that the defendant’s delay in filing her claim was both inexcusable and prejudicial to the plaintiff.

In so concluding, we are mindful that the judgment of dissolution ordered the defendant to provide the plaintiff with her current address and telephone number “at all times.” Year after year, her failure to comply with that order rendered the plaintiff unable to make alimony and support payments. The defendant has offered no explanation for her refusal to comply with that critical court order, as she failed to appear for two depositions, the hearing before the trial court and oral argument before this court.

The present case is distinguishable from Bozzi v. Bozzi, supra, 177 Conn. 232. In Bozzi, the plaintiff mother, following her divorce from the defendant father, moved to the Netherlands with their two children without informing him or the trial court. Eight years later, she sought to have the defendant found in contempt for his failure to comply with the support order entered at the time of their divorce. In rejecting his defense of laches, the Supreme Court stated that “the sole prejudice claimed by the defendant was that he had been deprived of the love and companionship of his children for eight years and that he and his children were entitled to each other’s love and companionship.” Id., 240. The Supreme Court noted the trial court’s finding that “the very last communication between the parties indicated that the defendant would meet his obligation by sending money or by establishing a trust fund for the children and that he would see to their education, none of which was done” and emphasized that “the lack of any communication between the parties for about eight years . . . might have been significant in supporting a claim of laches if there were any evidence that the defendant had changed his position in reliance upon an abandonment by the plaintiff of her claim against him.” Id. Unlike Bozzi, the claimed prejudice in the present case is the fact that the defendant deliberately made it impossible for the plaintiff to comply with his alimony and support obligations. She also made no “motion in the Superior Court alleging the plaintiffs wilful failure to pay alimony and child support.” The record supports the plaintiffs contention that he changed his position regarding his obligations as a result of her conduct.

Likewise, the present case is patently distinguishable from Brock v. Cavanaugh, supra, 1 Conn. App. 138, in which the defendant father pleaded laches as a defense to his failure to make support payments over a period of six years. The defendant in Brock premised that defense on the plaintiffs failure to inform him of her new marital status, name or location for that period. At the same time, “[h]er whereabouts and status were known to her cousin in Connecticut, an attorney, who represented her in the divorce proceedings.” Id., 139. As a result, this court concluded that, in light of “the fact that the defendant made only a limited attempt to locate the plaintiff or his daughter in Florida while he knew that a relative of hers resided in Connecticut, we cannot say that the court erred in concluding that the plaintiff was not guilty of laches.” Id., 141. By contrast, the court here found that the plaintiff made considerable effort to contact dozens of friends and family members of the defendant with no success and made repeated trips to Florida in the aim of obtaining her address or telephone number. As the court found, the plaintiff had no means of contacting her despite those efforts.

In light of the foregoing, we conclude as a matter of law that the defendant is guilty of laches in the present case. Her delay of more than one decade in filing her claim for arrearages, during which the plaintiff had no means of contacting her, was inexcusable and prejudiced the plaintiff. As a result, the plaintiffs motion to preclude receipt of further alimony or support should have been granted.

The judgment is reversed and the case is remanded with direction to grant the motion to preclude further alimony or support and render judgment accordingly.

In this opinion the other judges concurred.

       The parties subsequently entered into an agreement regarding the judgment of dissolution. By agreement dated November 28, 1994, the parties modified the child support obligation from $164 to $135 per week, effective “when [the] defendant moves out of state.” That agreement also provided that the parties “shall divide transportation expenses for the minor [child’s] visitation with the plaintiff’ and required that “if [Caitlin] visits [the plaintiff] in Connecticut one parent shall accompany [her] on any flight.” Notably, the agreement stated that “[e]xcept as modified herein, the original order of [November] 5, 1993, is affirmed.”

         The court made no mention of § 52-362 in its memorandum of decision.

       The defendant did not file a brief in this appeal or appear at oral argument. Pursuant to Practice Book § 85-1, this court directed the plaintiffs counsel to notify the office of the attorney general of the pendency of the appeal, as it is responsible for representing the bureau and support enforcement services pursuant to General Statutes §§ 46b-231 (t) and 17b-179. Counsel for the plaintiff subsequently filed a copy of that notice with this court. We note that the office of the attorney general has not moved to intervene in the present appeal.

       Because we conclude that the subordinate facts found by the court compel the conclusion that, as a matter of law, the defendant is guilty of laches, we need not address the alternate defenses of equitable estoppel and waiver raised by the plaintiff.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. PHILIP MITCHELL
    (AC 27074)
    Bishop, Gruendel and Beach, Js.

      Argued February 15
    officially released June 10, 2008

      Charles F. Willson, special public defender, for the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Nicholas J. Bove, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Philip Mitchell, appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61. On appeal, the defendant claims that the trial court (1) improperly denied his motions to suppress a statement he made to the police prior to being told of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and the victim’s identification of the defendant, and (2) abused its discretion in refusing to sanction the state for failing to produce an officer’s investigative notes. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 4:30 in the morning on August 20, 2004, the victim was driving on Connecticut Avenue in Bridgeport looking to purchase marijuana. She asked two young women for marijuana, and they told her to follow them. The women turned and walked along Fifth Street, and the victim followed and parked her car. The women went across the street and returned with two men, one of whom was the defendant. The defendant told the victim to turn off her car’s engine. Once she did so, all four people attacked her by punching her head, hitting her face, pulling her hair and trying to pull her through the car window. The victim screamed, pulled back, honked her car’s horn and held onto the steering wheel so that she would not be pulled from the car. The victim testified that the defendant was “right in [her] face” during this attack, told her to “shut the fuck up or I’m going to blow your head off’ and acted as though he had a gun. Eventually, the attackers opened the car’s passenger door, and the defendant dragged the victim out of her car by the wrists. One of the women took $20 from the victim’s pocket while the defendant continued to drag the victim. The victim hooked her foot around a metal fence post and when the defendant let go of her, she stood up. The defendant then kicked her in the stomach and she fell back down. When she got up again, the defendant tried to kick her a second time, but she managed to escape by running away.

The victim ran back to Connecticut Avenue and, seeing a taxicab, explained to the driver that she had just been robbed and asked him to call the police. She also pointed out her attackers as they were getting into a car. The taxicab driver made a U-turn and followed the car. He also called the police department and reported the license plate number of the car.

State police Trooper Christopher Kick was on duty that morning when he was notified of an assault in Bridgeport and provided with a description of a four door, blue vehicle with the license plate number 254-RPY driving on Interstate 95. Upon seeing the car, Kick followed it until he was joined by two other state police troopers, at which point he stopped the vehicle. All three troopers approached the car with weapons drawn, removed the three occupants from the vehicle, placed them on the ground and handcuffed them.

Meanwhile, the victim was met by Officer Barry Jones of the Bridgeport police department. After she told him about the assault and described the four assailants, she was transported to the site where the suspects had been apprehended. As each suspect was brought in front of the cruiser in which the victim was sitting, she positively identified each as one of the assailants. Subsequently, the victim was taken to the police station where she provided a written statement after which she was taken to a hospital to be treated for her injuries.

The jury found the defendant guilty of assault in the third degree but not guilty of robbery in the second degree, conspiracy to commit larceny in the second degree, unlawful restraint in the first degree and threatening in the second degree. The court imposed a sentence of eight months incarceration. This appeal followed.

I

The defendant first claims that the court improperly denied his motions to suppress his pr e-Miranda statement and the victim’s identification of him. We address each claim in turn.

A

The defendant claims that his pr e-Miranda statement was the result of a custodial interrogation and should have been excluded from evidence. In addition, he argues that the state cannot demonstrate that the court’s error in admitting this statement was harmless because the court highlighted the statement to the jury by giving a consciousness of guilt charge. We agree with the defendant.

The following additional facts and procedural history are relevant to our resolution of the defendant’s claim. On March 30, 2005, at the pretrial hearing on the defendant’s motion to suppress, the state called Trooper Kick to testify. Kick testified that he received word in the early morning hours of August 20, 2004, of an assault that had occurred in Bridgeport and that he had received a description of the alleged perpetrator’s vehicle as blue, bearing the license plate number 254-RPY and traveling in the direction of Interstate 95. Kick positioned his vehicle on the highway near the Fairfield rest area, and when he observed a vehicle that matched the description, he drove out to prevent it from exiting the highway. When two other state police cruisers arrived, Kick activated his lights and siren and stopped the car, boxing it in with the police cruisers. The troopers approached the vehicle with guns drawn and ordered the defendant and the other suspects to exit the vehicle and to lie on the ground. The troopers then searched the suspects for weapons, placed them in handcuffs and separated them. While awaiting the Bridgeport police for a possible identification, Kick testified that he individually questioned the suspects as to where they were going and what they were doing to confirm whether he had stopped the right vehicle and whether the suspects were the individuals who had been involved in the assault. As Kick moved from suspect to suspect, he ensured that a trooper remained with each individual because “[i]f you leave them in handcuffs, they could run.” Kick testified that he asked the defendant “if anything had happened that possibl[y] [came] to mind this evening on why you would have been stopped.” Kick testified that in response, the defendant “basically came up with nothing. . . . [He] basically replied that he had just taken a ride, he wasn’t paying attention, doesn’t know where they’d been.” Prior to and during this encounter, the suspects were not informed of their rights pursuant to Miranda.

After the pretrial hearing, the court issued a memorandum of decision on March 31, 2005, denying the motion to suppress. The court concluded that the state had conceded that the defendant was in police custody while being questioned by Kick. The court found, however, that Kick’s questions did not amount to an interrogation, and, therefore, Miranda warnings were unnecessary. Accordingly, the court found that the defendant’s statements were admissible. The court opined that “Kick’s questions, ‘What is going on?’ [and] ‘Why were you stopped?’ ” were asked at the threshold of the encounter and were arguably aimed at determining the nature of the situation confronting the police at that time. There is no suggestion that Kick’s queries were probing, accusatory or likely to elicit an incriminatory response. The court stated: “The fact that Kick asked questions about ‘what was going on’ without the intent of eliciting a confession or inculpatory information, but simply to investigate the situation before him, was not an interrogation.” (Citations omitted.)

The defendant claims that the court improperly admitted his statement, as it was the result of a custodial interrogation, and that the admission of this evidence was not harmless beyond a reasonable doubt. Because the court found that the state conceded that the defendant was in custody and that conclusion is supported by the record, our inquiry is limited to whether there was an interrogation.

Our Supreme Court has held that “[t]wo threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation.” (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 757, 670 A.2d 276 (1996). It is the defendant who bears the burden of proving a custodial interrogation. State v. Doyle, 104 Conn. App. 4, 11, 931 A.2d 393, cert. denied, 284 Conn. 935, 935 A.2d 152 (2007).

“The trial court’s essentially factual determination of whether the police officer’s conduct constituted interrogation is reversed only if it is clearly erroneous. . . . When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence. . . . Nonetheless, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Walters, 94 Conn. App. 297, 302-303, 891 A.2d 1003, cert. denied, 278 Conn. 908, 899 A.2d 36 (2006), citing State v. Evans, 203 Conn. 212, 227, 523 A.2d 1306 (1987).

“[T]he term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. ... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of then-words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Emphasis in original; internal quotation marks omitted.) State v. Canales, 281 Conn. 572, 588, 916 A.2d 767 (2007), quoting Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).

“Every question posed to a defendant in custody is not equivalent to an interrogation. . . . Ordinarily, the routine gathering of background, biographical data will not constitute interrogation. . . . Furthermore, questions that are asked after an event or occurrence that would naturally tend to evoke such an inquiry do not constitute interrogation. These questions, unlike the sort of interrogation that prompted the implementation of the Miranda safeguards, are characterized by brevity, neutrality and an absence of intent to elicit a confession or admission. Most, moreover, are typically spontaneous.” (Citations omitted; internal quotation marks omitted.) State v. Dixon, 25 Conn. App. 3, 8, 592 A.2d 406 (1991). Even express questioning of the defendant may not constitute interrogation if the questions are normally attendant to arrest and custody and are not reasonably likely to elicit an incriminating response. State v. Kirby, 280 Conn. 361, 398-99, 908 A.2d 506 (2006); see also State v. Evans, supra, 203 Conn. 225-27 (no interrogation when routine booking questions unrelated to crime and objectively neutral).

Here, Kick testified that he questioned each suspect separately and methodically, ensuring that no suspect was ever left without a police officer. He agreed that his intention in questioning the defendant and the other suspects was to “verify that these were or were not the people that were involved in a possible assault.” Contrary to the court’s recitation of Kick’s questions, the record does not support the view that the officer merely asked, “What is going on? Why were you stopped?” at the threshold of the investigation. See, e.g., Hairston v. United States, 500 A.2d 994, 997 (D.C. App. 1985) (warnings not required when officer, who was greeted at scene by suspect stating that he shot victim, asked, “ ‘what happened?’ ”); People v. Quicke, 71 Cal. 2d 502, 514, 455 P.2d 787, 78 Cal. Rptr. 683 (1969) (no interrogation when officer came upon suspect lying on top of dead body, handcuffed suspect and asked “ ‘what had happened’ ”); State v. Dixon, supra, 25 Conn. App. 9 (no interrogation when suspect attempted to flee officer and upon apprehension was asked, “ ‘What are you doing here?’ ”). Instead, here the officer was admittedly seeking an explanation from the defendant for the recent assault. As noted, Kick testified at the pretrial hearing that he asked the defendant “if anything had happened that possiblfy] [came] to mind this evening on why you would have been stopped.” This question is much less vague and open-ended than the court’s stated version of the question. The court’s conclusion that Kick merely asked, “What is going on?” is a palpably more benign question, which an officer might well ask when coming upon a scene and attempting to make an initial assessment of the circumstances confronting him or her. In this instance, as noted by Kick, he was not trying to assess the situation at hand; rather, he was attempting to confirm whether he had the right suspects. It is manifest that an officer may not ask a person in custody questions that the officer knows are reasonably likely to elicit an incriminating response. Thus, the court’s finding that Kick’s questioning did not amount to an interrogation was unsupported by the record and clearly erroneous.

As a consequence, we determine that Kick’s questioning of the defendant constituted a custodial interrogation.

Because the defendant’s response to the interrogation was not expressly inculpatory, our determination that the defendant was subjected to an improper custodial interrogation would have little consequence unless its admission was harmful. The defendant claims that the admission of his statement was not harmless error because the court compounded the admission by charging the jury on consciousness of guilt. In response, the state argues that the defendant’s statement was not facially inculpatory and that any evidence of guilt inferred from it was merely cumulative because the jury could have found the defendant’s statement as evidence of consciousness of guilt only if it had already determined that he was guilty. We agree with the defendant.

“The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. ... In order to assess the harmfulness of the error, the test is whether there is a reasonable possibility that the improperly admitted evidence contributed to the conviction. . . . The harmfulness of an error depends upon its impact on the trier and the result. . . . [B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. [Our Supreme] court has held in a number of cases that when there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt. . . . The proper standard [therefore] is whether any reasonable jury would have found the defendant guilty if the improperly admitted evidence had been excluded.” (Citations omitted; internal quotation marks omitted.) State v. Zubrowski, 101 Conn. App. 379, 385, 921 A.2d 667, cert. granted on other grounds, 283 Conn. 912, 928 A.2d 539 (2007). As this evidentiary impropriety poses a question of constitutional proportion, it is the state’s burden to prove that the error was harmless beyond a reasonable doubt. State v. Randolph, 284 Conn. 328, 377, 933 A.2d 1158 (2007).

Although the defendant’s statement that he was just driving around, was not paying attention and did not remember where he had been appears relatively benign, the court’s use of it as consciousness of guilt evidence cast the statement in a light unfavorable to the defendant. If our analysis of the statement’s impact on the verdict was limited to Kick’s testimony, we could have found that the improper admission of this facially innocuous statement was harmless. Given the court’s charge, however, that the jury could consider the statement as consciousness of guilt, we conclude that the state has not met its burden of proving that the improper admission was harmless beyond a reasonable doubt.

Over the defendant’s objection, the court charged the jury that “it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense, which may fairly have been influenced by the criminal act, that is, that conduct or statements show a consciousness of guilt. . . .

“Whenever a person is on trial for a criminal offense, it is proper to show that person’s conduct, as well as any declarations made by him subsequent to the alleged criminal offense which may fairly have been influenced by that act. The manner in which the defendant conducted himself when asked by others, in respect to the subject of this case, may be shown. If he should make false statements as to his whereabouts at the time of the offense, these might tend to show a guilty connection by the defendant with the crime charged.” Our review of the record reveals that the defendant’s response to Kick’s questioning was the only statement in evidence to which the court’s charge could apply.

The state argues that the court’s charge was harmless because it was merely cumulative. More specifically, the state claims that the court’s charge could not have affected the jury’s verdict because, for the jury to use the statement against the defendant, the jurors had to already believe that the defendant was involved in the crime. This argument is disingenuous. Although the charging conference took place off the record, it is apparent from the defendant’s objection that the state asked the court to give a consciousness of guilt charge. The fact that the state actively sought this charge undermines its argument on appeal that the charge has no bearing on the issue of harm. To have construed the defendant’s statement as consciousness of guilt, the jury needed to first conclude, merely, that his statement as to his whereabouts was false. The jury did not, as the state argued, need to first conclude that the defendant was criminally liable. Subscribing to the state’s argument in this regard would render a consciousness of guilt charge meaningless.

Although the court did not specifically reference any evidence in conjunction with the consciousness of guilt charge on false statements, the defendant’s statement is the only statement in the record to which the charge could apply. As a result, the court’s charge not only accentuated the improperly admitted statement, but it also pointed to the defendant’s potential involvement. This emphasis makes it impossible for us to conclude that the improper admission was harmless beyond a reasonable doubt.

Finally, the state did not claim that the evidence was so overwhelming that the court’s jury charge on consciousness of guilt was harmless. As the state has failed to establish harmless error beyond a reasonable doubt, we reverse the defendant’s conviction of assault in the third degree.

B

Our conclusion that this judgment must be reversed leads us to discuss claims that are likely to recur on retrial. See Allison v. Manetta, 284 Conn. 389, 402, 933 A.2d 1197 (2007). The defendant next claims that the court should have granted his motion to suppress the identification made by the victim. The defendant specifically argues that the show-up was unnecessarily suggestive and that there were no exigencies to justify observation of him in handcuffs, under a spotlight and posing as if he was being booked. The defendant claims, therefore, that the identification was unreliable and should not have been admitted.

The defendant moved to suppress the victim’s identification on March 30, 2005. At the pretrial hearing on the motion, both the victim and Jones testified. The victim testified that during the show-up, the police informed her that a vehicle fitting her description had been stopped and that the suspects were being detained for her identification. When she arrived, each suspect was led individually into the spotlight of the cruiser where she was sitting. The victim testified that when she identified the defendant, she had no doubt that he was one of the people who had attacked her.

Jones, who drove the victim to identify the suspects, corroborated the victim’s testimony. He testified that he told the victim that the police had detained the suspects and that they were being held until she identified them. After taking the victim to the highway, Jones testified that each handcuffed suspect was escorted out individually by an officer and shown to the victim from the front and side. Jones testified that he did not take any notes during the identification in part because the victim identified each suspect as one of the people who had attacked her.

At the conclusion of the pretrial hearing on the motion to suppress identification, the court denied the motion, finding that the identification of the defendant by the witness was sufficiently reliable to be admitted. While acknowledging that show-ups are inherently and significantly suggestive, the court determined that the one-to-one identification procedure in this case did not result in a substantial likelihood of misidentification. Consequently, defense counsel made a motion for articulation as to which factors of reliability sustained the court’s decision. The court responded that in looking at the totality of the circumstances, factors such as “[t]he timing of the identification, the victim’s opportunity to view the defendant, the vehicle identification [and] her certainty in her testimony suggest that her identification was reliable.”

First, we set forth the standard of review. “[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused ... we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . .

“Furthermore, [w]e will reverse the trial court’s ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error. . . .

“Previously, we have stated that [a]n identification procedure is unnecessarily suggestive only if it gives rise to a veiy substantial likelihood of irreparable misidentification. ... We have recognized that generally a one-to-one confrontation between a [witness] and the suspect presented to him for identification is inherently and significantly suggestive because it conveys the message to the [witness] that the police believe the suspect is guilty. . . . We also have recognized, however, that the existence of exigencies may preclude such a procedure from being unnecessarily suggestive. ... In the past, when we have been faced with the question of whether an exigency existed, we have considered such factors as whether the defendant was in custody, the availability of the victim, the practicality of alternate procedures and the need of police to determine quickly if they are on the wrong trail. ... We also have considered whether the identification procedure provided the victim with an opportunity to identify his assailant while his memory of the incident was still fresh.” (Citations omitted; internal quotation marks omitted.) State v. St. John, 282 Conn. 260, 276-78, 919 A.2d 452 (2007).

We conclude that the court properly admitted the identification. The facts of this case strongly resemble those in State v. St. John, supra, 282 Conn. 260. In St. John, the defendant appeared individually, was handcuffed, was accompanied by officers and five or six police cars and was illuminated by a spotlight. Id., 275. Our Supreme Court concluded that the spotlight was necessary because it was still dark at the time of the show-up, the police presence was not overwhelming, there was no evidence that the police told the witnesses that the suspect was in fact the person who committed the crime, immediate action was necessary given the violent nature of the crime, and it was important for the witnesses to observe the defendant while their memories were still fresh. Id., 278-79. The same analysis is applicable here. In this case, because the show-up occurred while it was still dark, the spotlight was appropriate, there was no greater police presence than in St. John, the crime involved an unprovoked violent attack for which the police were justified in taking immediate action, and the witness, who was in close proximity to the defendant during the assault, was injured and needed medical treatment, making it reasonable that she identify the suspects without delay.

Even if we were to accept the defendant’s claim that the show-up was unnecessarily suggestive, we still would agree with the court’s conclusion that the identification was rehable. “[Reliability is the linchpin in determining the admissibility of identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [victim] to view the criminal at the time of the crime, the [victim’s] degree of attention, the accuracy of [the victim’s] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 553, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006). Thus, the court found that the timing of the identification, the opportunity the victim had to see the defendant during the attack, her description of the vehicle and her certainty in identifying him, when taken in totality, rendered the identification reliable. We agree and conclude that the denial of the motion to suppress was sufficiently grounded in the record and that the court did not abuse its discretion in determining that the identification was reliable.

II

Finally, the defendant claims that the court abused its discretion by declining to sanction the state for Jones’ failure to produce field notes he took during his initial investigation. Specifically, the defendant argues that the court should have precluded Jones’ testimony or, in the alternative, charged the jury to draw a negative inference against the state. As we conclude that the state was not required to provide the defendant with Jones’ notes, the court properly declined to sanction the state.

The following additional facts are relevant to the defendant’s claim. During the pretrial hearing on the motion to suppress the identification, Jones stated that he took notes, including a brief description of the suspects, during his initial interview with the defendant. Jones explained that he did not bring the notes to court, but he believed he still had them. He stated that the police report incorporated all of his notes regarding the victim’s description of the suspects.

After Jones’ testimony, the defendant moved orally for a copy of the notes. The state responded that it had never heard of the notes and had never received a motion requesting them. The court took a recess for Jones to obtain his notes. He stated, however, that he was unable to find them and believed they might be at his home. After being instructed by the court to look for the notes at his home, Jones returned and reported that he was unable to locate them. Finally, he testified that although the police report contained information that was not in his notes, everything in his notes was captured by the report.

In reply to the defendant’s request for sanctions, the court stated that it did not find any wrongdoing on the part of the state and left it expressly to the defendant to raise the issue of remedies in the future as appropriate. At trial, the defendant was permitted to cross-examine Jones about the notes and their disappearance. The defendant moved to strike Jones’ testimony about the victim’s description of the defendant and asked for a jury charge against the state. The court denied the motion and the requested charge. Furthermore, the court observed that the notes did not qualify as statements under Practice Book §§ 40-14 and 40-15 and therefore did not appear to be discoverable by right.

The heart of the defendant’s argument is that the notes were discoverable. Practice Book § 40-11 enumerates the information and materials that are discoverable by a defendant as of right. There is no evidence that the notes were exculpatory; therefore Practice Book § 40-11 (a) (1) does not apply. Arguably, the notes fall under Practice Book § 40-11 (a) (6) (i), which requires the prosecution to disclose “[a]ny written, recorded or oral statements made by the defendant or a codefendant, before or after arrest to any law enforcement officer or to a person acting under the direction of or in cooperation with a law enforcement officer concerning the offense charged . . . .” Practice Book § 40-15 defines a statement as either “(1) A written statement made by a person and signed or otherwise adopted or approved by such person; or (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

“[A] police officer’s interview notes may be subject to disclosure for use by the defendant in cross-examining the witness, if the officer’s notes meet either of [Practice Book] § 749’s [now Practice Book § 40-15’s] alternate definitions of a statement. The notes may also be discoverable following the officer’s own testimony if they are signed or otherwise adopted.” (Internal quotation marks omitted.) State v. Belle, 215 Conn. 257, 266, 576 A.2d 139 (1990); see also State v. Reddick, 36 Conn. App. 774, 784 n.7, 654 A.2d 761 (“field notes are not statements unless they are signed or otherwise adopted”), cert. denied, 232 Conn. 922, 656 A.2d 671 (1995). In this case, there is no evidence that Jones’ notes were signed or otherwise adopted by Jones or the victim. Jones testified that the police report reflected his notes in their entirety. The state was unaware of the notes prior to trial, and Jones made a good faith effort to find the notes upon the court’s request. On the basis of the record, we conclude that the court did not abuse its discretion in declining to sanction the state for the missing notes or in not giving the jury a supplemental charge regarding the notes.

The judgment is reversed and the case is remanded for a new trial in accordance with law.

In this opinion the other judges concurred.

       Though the victim testified that she was attacked by four people, only three suspects were apprehended in the vehicle.

       During the sentencing hearing, the defendant’s attorney stated that the defendant was then serving an eight year term of incarceration that had been imposed on November 1, 2004. The court imposed the sentence in this matter to run consecutively to the eight year sentence. Accordingly, it appears that the sentence imposed in this matter has not yet expired. Even if the sentence had expired, we note that, “[i]t is well established that since collateral legal disabilities are imposed as a matter of law because of a criminal conviction, a case will not be declared moot even where the sentence has been fully served.” Barlow v. Lopes, 201 Conn. 103, 112, 513 A.2d 132 (1986).

       On appeal, the state appears not to agree that it conceded the issue of custody at the pretrial hearing. To the contrary, it argues that the “investigative detention” of the defendant did not amount to custody, and, therefore, the police were not required to give Miranda, warnings before questioning him. We disagree. Whether the court properly determined that the state had conceded custody, the predicate facts all support the legal conclusion that the defendant was in custody when questioned by Kick. The record reveals that the defendant’s vehicle had been stopped and boxed in on the side of the highway by three police cruisers using sirens and lights, the defendant was ordered from the vehicle to the ground at gunpoint, handcuffed and searched, and then separated from the other suspects and paired with a trooper to prevent him from running away.
      On these facts, any reasonable person would have believed that the defendant’s freedom of movement was restrained to the degree associated with a formal arrest. State v. Britton, 283 Conn. 598,604-605, 929 A.2d 312 (2007); see also State v. Hasfal, 106 Conn. App. 199, 206-207, 941 A.2d 387 (2008) (explaining that while the oft-used “free to leave” test is appropriate for custody determinations involving a police station, evaluating whether the restraints amounted to those associated with a formal arrest is more appropriate for other settings). See also State v. Pinder, 250 Conn. 385, 409-12, 736 A.2d 857 (1999) (although court’s function is to determine predicate facts relative to custody, because ultimate question of whether defendant is in custody is legal one, review of court’s determination regarding custody is plenary).

       Although the ultimate determination of custodial interrogation, as a mixed question of fact and law, is subject to de novo review; State v. Canales, 281 Conn. 572, 585, 916 A.2d 767 (2007); the trial court has the responsibility to determine the predicate facts regarding custody, and the issue of whether specific questioning constitutes an interrogation is one of fact. Therefore, we assess the facts found by the court relative to custody to determine whether the court’s factual findings are clearly erroneous, but we accord plenary review to the court’s conclusion as to whether these facts warrant a finding of custody. State v. Pinder, 250 Conn. 385, 409-12, 736 A.2d 857 (1999); see also State v. Canales, supra, 584-85; State v. Turner, 267 Conn. 414, 838 A.2d 947, cert. denied, 543 U.S. 809, 125 S. Ct. 36, 160 L. Ed. 2d 12 (2004). As to the issue of interrogation, however, because this is a question of fact, we review the record to determine whether the predicate facts as well as the court’s factual conclusion in this regard are clearly erroneous. State v. Evans, supra, 203 Conn. 227; State v. Walters, supra, 94 Conn. App. 302-303.
      Although there has been some discussion about whether a plenary standard of review should be applicable to the issue of interrogation; see State v. Walters, supra, 94 Conn. App. 302 n.4 (questioning whether rationale for providing plenary review of custody determinations, as determined in State v. Pinder, supra, 250 Conn. 409-12, might also apply to determinations of interrogation); we continue to analyze the issue of interrogation under the clearly erroneous standard of review. See State v. Evans, supra, 203 Conn. 227 (opining that “[sjince the determination as to whether a particular question constituted interrogation is essentially factual, we apply the clearly erroneous standard”).

       Kick’s testimony regarding his questioning of the defendant was undisputed.

       After the jury was charged, counsel for the defendant took exception to the consciousness of guilt charge. Counsel stated, “I know we had some discussions outside of the presence of the court, off the record, and I’d like to bring back up one of my—one of our discussions, and one of those was specifically the consciousness of guilt charge that the state had presented. . . . I had objected to that, both the inclusion of that, as well as flight. I had objected, and I believe Your Honor had made a decision on it in chambers. I would just ask . . . that that be put on the record.”

       The victim’s testimony about the incident and the statements the defendant made to her during the assault are essentially identical to her testimony at trial. Therefore, we will not repeat it here.

       Although the record contains neither a memorandum of decision nor a signed transcript of the court’s ruling; see Practice Book § 64-1; we note that the appendix to the defendant’s brief contains an unsigned transcript of the court’s denial of the motion to suppress the identification. Because that transcript contains a sufficiently detailed and concise statement of the court’s findings, we conclude that the record is adequate for our review. See Carrasquillo v. Carlson, 90 Conn. App. 705, 708 n.2, 880 A.2d 904 (2005).

       Practice Book § 40-11 provides: “(a) Upon written request by a defendant filed in accordance with Section 41-5 and without requiring any order of the judicial authority the prosecuting authority, subject to Section 40-40 et seq., shall promptly, but no later than forty-five days from the filing of the request, unless such time is extended by the judicial authority for good cause shown, disclose in writing the existence of and allow the defendant in accordance with Section 40-7, to inspect, copy, photograph and have reasonable tests made on any of the following items:
      “(1) Exculpatory information or materials;
      “(2) Any books, tangible objects, papers, photographs, or documents within the possession, custody or control of any governmental agency, which the prosecuting authority intends to offer in evidence in chief at trial or which are material to the preparation of the defense or which were obtained from or purportedly belong to the defendant;
      “(3) Copies of the defendant’s prior criminal record, if any, which are within the possession, custody, or control of the prosecuting authority, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting authority;
      “(4) Any reports or statements of experts made in connection with the offense charged including results of physical and mental examinations and of scientific tests, experiments or comparisons which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial;
      “(5) Any warrant executed for the arrest of the defendant for the offense charged, and any search and seizure warrants issued in connection with the investigation of the offense charged;
      “(6) 00 Any written, recorded or oral statements made by the defendant or a codefendant, before or after arrest to any law enforcement officer or to a person acting under the direction of or in cooperation with a law enforcement officer concerning the offense charged; or “(ii) Any relevant statements of coconspirators which the prosecuting authority intends to offer in evidence at any trial or hearing.
      “(b) In addition to the foregoing, the defendant shall be entitled to disclosure of exculpatory materials in accordance with any applicable constitutional and statutory provisions.”


author: DiPENTIMA, J.

text:
    TOBIAS C. ANDERSON v. GORDON, MUIR AND FOLEY, LLP, ET AL.
    (AC 27984)
    Bishop, DiPentima and Harper, Js.
    Argued January 18
    officially released June 17, 2008

      Tobias C. Anderson, pro se, the appellant (plaintiff.

      Louis B. Blumenfeld, with whom was Lorinda S. Coon, for the appellees (named defendant et al.).
   Opinion

DiPENTIMA, J.

The plaintiff, Tobias C. Anderson, appeals from the judgment of the trial court rendered following the granting of a motion for summary judgment in favor of the defendants Gordon, Muir & Foley, LLP (law firm), Peter Schwartz and R. Bradley Wolfe. The plaintiff claims that summary judgment was improper because the defendants failed to meet their burden of proving that they were entitled to judgment as a matter of law. We affirm the judgment of the trial court.

The following facts and procedural history relevant to our disposition of the plaintiffs claim are not in dispute. In August, 1996, the plaintiff retained attorney Jon L. Schoenhom to represent him in connection with a petition for a writ of habeas corpus that the plaintiff previously had filed pro se. In furtherance of his representation of the plaintiff, Schoenhom acquired approximately thirteen boxes that contained materials from the trials and other proceedings that had resulted in the plaintiffs incarceration. Sometime thereafter, the attorney-client relationship deteriorated, and on November 27, 2000, the habeas court granted Schoenhom permission to withdraw as the plaintiffs counsel.

By letter dated April 1, 2001, the plaintiff informed Schoenhom that “[s]omeone from and/or associated with the public defender’s office [would] pick up [the boxes in Schoenhom’s possession].” Schoenhom responded by letter dated April 3, 2001, that he would “turn over the files to anyone from the public defender’s office who contacts [him] on [the plaintiffs] behalf . . . .” On May 17, 2001, attorney Ellin A. M. Grengerleft a message for Schoenhom indicating that her employer, Scott W. Sawyer of the Sawyer Law Firm, LLC, had been appointed as the plaintiffs special public defender for his habeas petition. Grenger also requested that Schoenhom send her an unspecified transcript but did not request that Schoenhom send her the entire set of boxes in his possession. Schoenhom, however, received no confirmation of Sawyer’s appointment as the plaintiffs new attorney in the habeas matter.

In the meantime, Schoenhom was served with a complaint that the plaintiff had filed against him, alleging that he had committed malpractice in connection with his representation of the plaintiff from August, 1996, to November, 2000. In early June, 2001, Schoenhom retained the defendants to represent him in the malpractice action and transferred possession of the boxes to the defendants, as his agents and counsel, for their use in defending the plaintiff’s lawsuit and for safekeeping until the boxes were transferred to the plaintiffs new counsel in the habeas proceeding.

On July 18, 2001, Grenger informed Schoenhom and Schwartz, during a telephone conversation, that Sawyer might decline his appointment as the plaintiffs special public defender. At that time, Grenger requested that the defendants retain custody of the boxes until further notice. On approximately August 15, 2001, Schwartz received a letter from Sheila Butch, requesting that Schwartz send her certain cassette tapes that were contained in the boxes. On September 12, 2001, Schwartz responded to Butch by telephone and explained that he could not release the cassette tapes to her without either a written authorization by the plaintiff or a court order. Schwartz never received any such authorization or order.

In early October, 2001, Schoenhom received a letter from the public defender’s office confirming Sawyer’s appointment as the plaintiffs counsel in the habeas matter and requesting the transfer of the boxes to Sawyer. Less than one week later, Schoenhom instructed the defendants to transfer the boxes and their contents to Sawyer. Before transferring the boxes to Sawyer, the defendants, through a copying service, TMG, Inc., made copies of the voluminous written documents in the boxes. The defendants retained the copies and transferred most of the boxes with the original documents to Sawyer on October 23, 2001. One remaining box with some of the plaintiffs personal items, which inadvertently had been left out of the initial delivery, was given to Sawyer on November 9, 2001.

On July 31,2003, the plaintiff filed the forty-four count complaint underlying this appeal, alleging that Schoenhom and the defendants committed acts of theft, larceny, conversion, negligence, breach of contract, tortious interference with business expectancy, civil conspiracy and deprivation of the plaintiffs civil rights under 42 U.S.C. §§ 1983 and 1985 (3), all in connection with the defendants’ possession of the boxes between May 17 and November 9, 2001. On November 15, 2005, the defendants and Schoenhom filed a revised motion for summary judgment as to all remaining counts of the complaint. By memorandum of decision on May 12, 2006, the court, Keller, J., granted the motion for summary judgment on counts eleven through sixteen, counts twenty-five through thirty, counts thirty-two through thirty-six and counts thirty-nine through forty-four. On June 1, 2006, the defendants and Schoenhom filed a motion to reargue the motion for summary judgment as to counts one through ten, counts nineteen through twenty-four and count thirty-one. On June 7, 2006, the court granted the motion as to all remaining counts except count thirty-one and scheduled a hearing for reargument on July 17, 2006. By memorandum of decision on July 25, 2006, the court granted the motion for summary judgment as to counts one through ten and nineteen through twenty-four, leaving count thirty-one as the sole remaining count of the complaint. The plaintiff now appeals from the judgment rendered in favor of the defendants on counts one through sixteen and counts nineteen through twenty-four of the complaint.

The plaintiff claims on appeal that the court’s May 12 and July 25, 2006 decisions granting the motion for summary judgment in favor of the defendants were improper. Specifically, the plaintiff argues that the court improperly concluded that (1) the defendants were entitled to summary judgment as to the counts of conversion and civil conspiracy to commit conversion notwithstanding that the plaintiff did not expressly authorize the defendants to obtain possession of the boxes, (2) Schoenhom was authorized under the Rules of Professional Conduct to transfer the boxes to the defendants, as his agents and counsel, notwithstanding the confidential nature of their contents, (3) the plaintiff failed to provide an evidentiary foundation in support of his claim that no such authority existed and (4) proof of conversion is a necessary predicate to the plaintiffs claims of larceny and statutory theft. The plaintiff further argues that the court’s denial of summary judgment as to count thirty-one, on the ground that there remained a factual dispute as to the existence and terms of a contract between the plaintiff and Schoenhom, is inconsistent with the granting of the motion for summary judgment as to all other counts. We are not persuaded by the plaintiffs arguments.

The standard of review governing the plaintiffs claim is well settled. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007). “The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). “A material fact is a fact that will make a difference in the result of the case.” (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn. App. 446, 450, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007).

“[Tjypically [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.” (Internal quotation marks omitted.) Id., 451. “As required by Practice Book § 17-46, [supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.” (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn. App. 527, 538-39, 906 A.2d 14 (2006).

“On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., supra, 284 Conn. 199.

In support of their motion for summary judgment, the defendants and Schoenhom submitted affidavits, with attached exhibits, from Schoenhom, Schwartz, Wolfe, Grenger and Christine L. Chipman, an attorney employed by the law firm. In response, the plaintiff submitted his affidavit with attached exhibits. Our review of the record, including the affidavits submitted by the parties and responses to interrogatories and to requests for admissions, reveals that none of the material facts in this case is in dispute. The plaintiffs arguments focus instead on the legal conclusions drawn by the court. In its May 12 and July 25, 2006 memoranda of decision, the court separately addressed each of the forty-four counts of the plaintiffs complaint. The plaintiff has not persuaded us that the court’s legal conclusions are either legally and logically incorrect or are not supported by the material facts as set forth in its May 12 and July 25, 2006 memoranda of decision.

In addition, we find no merit in the plaintiffs argument that the court’s finding of a genuine issue as to the existence and terms of a contract between the plaintiff and Schoenhom was inconsistent with its legal conclusion that the defendants’ possession of the boxes was not unauthorized, wrongful, in breach of contract or otherwise improper. In other words, the plaintiff contends that if Schoenhom breached an implied contract with him, that breach necessarily must be imputed to Schoenhom’s agents, the defendants. “[I]t is a general rule of agency law that the [principal] in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the agent’s employment.” (Internal quotation marks omitted.) See Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn. App. 557, 572-73, 845 A.2d 417 (2004). The plaintiff cites no authority, however, and we are aware of none, in support of his proposition that an agent is bound by, and hable for, a principal’s independent actions. Accordingly, we conclude that the court properly granted the defendants’ motion for summary judgment with respect to counts one through sixteen and counts nineteen through twenty-four.

The judgment is affirmed.

In this opinion the other judges concurred.

       Schwartz and Wolfe, during the relevant time period, were partners of the law firm.

       Schoenhom is also a defendant in this action. He is not a party to this appeal, however, because there has been no final judgment as to all counts against him in the complaint. See Practice Book §§ 61-1 and 61-3. Accordingly, references to the defendants in this appeal do not include Schoenhom.

       The plaintiff was charged with and convicted of various crimes in the late 1980s. At the time of oral argument on this appeal, he remained in the custody of the commissioner of correction.

       The malpractice complaint also named as a defendant one of Schoenhom’s associates, Jeanne M. Zulick. Zulick is not a party to this appeal or to the present action.

       The plaintiff asserts that the cassette tapes were recordings of certain police interrogations of him. The plaintiff hired Butch to create a transcription of the cassette tapes for him.

       On January 7, 2004, the court, Stengel, J., struck the plaintiffs claims under 42 U.S.C. §§ 1983 and 1985, specifically, counts seventeen and eighteen against Schwartz and counts thirty-seven and thirty-eight against Schoenhom. On April 8, 2004, Schoenhom and the defendants filed their original motion for summary judgment as to counts one through sixteen and counts nineteen through thirty-six. The revised motion for summary judgment, filed on November 15,2005, added the remaining counts not included in the April 8, 2004 motion, counts thirty-nine through forty-four.
      We note that the plaintiff declined to replead the stricken counts, and there is no indication from the record that the court thereafter rendered judgment in favor of Schwartz and Schoenhom as to those counts. See Practice Book § 10-44. Nevertheless, because the court disposed of the remaining counts against Schwartz by way of a motion for summary judgment and the plaintiff has elected not to replead counts seventeen and eighteen, the plaintiffs appeal is from a final judgment as to Schwartz. See Jones v. H.N.S. Management. Co., 92 Conn. App. 223, 224 n.1, 883 A.2d 831 (2005), citing Yancey v. Connecticut Life & Casualty Ins. Co., 68 Conn. App. 556, 557 n.1, 791 A.2d 719 (2002).

       Because no final judgment has been rendered as to Schoenhom; see footnote 2; we do not address the counts in the complaint directed toward him, namely, counts twenty-five through forty-four. Further, the plaintiff raises no claim on appeal that the court improperly struck counts seventeen and eighteen. See footnote 6.