author: Foti, J.

text:
    Vicki S. Curry v. J. William Burns, Commissioner of Transportation
    (9488)
    Foti, Freedman and Schaller, Js.

      Argued September 13
    decision released November 16, 1993

      James H. Lee, for the appellant (plaintiff).

      Raymond J. Plouffe, Jr., for the appellee (defendant).
   Foti, J.

This case was remanded from our Supreme Court, Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993).

The plaintiff brought this action under General Statutes § lSa-144, against the defendant commissioner of transportation, for injuries she sustained in a motor vehicle accident allegedly caused by a defective highway. The defendant denied that he had breached his statutory duty to maintain the highway, and also denied that the plaintiff had given proper notice as required by § 13a-144. The case was tried to a jury and a verdict was returned in favor of the defendant. The plaintiff filed a motion to set aside the verdict. The court denied the motion and rendered judgment for the defendant.

In this appeal, the plaintiff alleges that the trial court acted improperly with respect to the issue of statutory notice in that it (1) quashed two subpoenas, (2) redacted the statutory notice given by the plaintiff, and (3) failed to instruct the jury as requested. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On March 14,1984, at about 5:30 a.m., the plaintiff was operating a tractor trailer eastbound in the center lane of Interstate 95 between exits four and five in Greenwich when her vehicle hit a pothole. The plaintiff’s vehicle collided with an automobile attempting to pass her on the left. As a result of the collision, she sustained personal injuries.

I

The plaintiff first alleges that the trial court improperly quashed two subpoenas duces tecum issued on her behalf. The first was directed to the “District 3 Director of Maintenance Department of Transportation, of 140 Pond Lily Avenue, New Haven, State of Connecticut” (DOT). The plaintiff, through an offer of proof with respect to the relevancy of the materials sought to be discovered, indicated that the material solicited by the DOT subpoena was intended to show that subsequent remedial repairs to the defect had been made, thereby demonstrating that the notice given by the plaintiff was adequate. The defendant moved to quash this subpoena on the grounds that the person named on the subpoena did not exist, and that evidence of subsequent repairs is inadmissible in a highway defect matter.

The court granted the defendant’s motions to quash both subpoenas, indicating that the jury must decide the sufficiency of the notice from the face of the notice, and further that the subpoena served on the “District 3 Director of Maintenance” was not issued for an existing person.

“Our analysis of . . . challenges to the evidentiary rulings of the trial court is guided by a well settled standard of review. ‘It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion.’ Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990).” Heritage Village Master Assn., Inc. v. Heritage Village Water Co., 30 Conn. App. 693, 700, 622 A.2d 578 (1993). Trial courts have wide discretion in ruling on the relevancy of evidence. State v. Varricchio, 176 Conn. 445, 450, 408 A.2d 239 (1979). In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. State v. Weidenhof, 205 Conn. 262, 278, 533 A.2d 545 (1987).

The state highway notice requirement under General Statutes § 13a-144 must be strictly construed. Bresnan v. Frankel, 224 Conn. 23, 26 n.3, 615 A.2d 1040 (1992); see also Pratt v. Old Saybrook, 225 Conn. 177, 183, 621 A.2d 1322 (1993). By its actions, it is clear that the trial court found the notice to be adequate as a matter of law and allowed the jury to decide the sufficiency of the notice. The sufficiency of the notice is tested with reference to its purpose. Warkentin v. Burns, 223 Conn. 14, 18, 610 A.2d 1287 (1992). The purpose is to furnish the commissioner with such precise information as to the time and place of an accident or defect as will enable an intelligent inquiry into the facts of the matter, and to protect the state’s interests. Bresnan v. Frankel, supra, 26.

We agree that the general rule is that evidence of subsequent repair is not admissible on the issues of negligence, causation, or the existence of a defect. Hall v. Burns, supra, 456-65. We also agree that evidence of remedial repairs may not be presented to the jurors for the purpose of aiding them in determining the sufficiency of the notice. Murray v. Commissioner of Transportation, 31 Conn. App. 752, 756, 626 A.2d 1328 (1993). The plaintiff argues that if the remedial repair was made, then it follows that the notice was adequate. We do not agree. Subsequent remedial measures may-have been performed in the regular course of business and not as a result of the notice. The repair and notice may be totally unconnected. We cannot conclude that the trial court abused its discretion in granting the motion to quash the subpoena.

Further, the court’s action as to the DOT subpoena was proper for another reason. The plaintiff concedes that there is no such person as the “District 3 Director of Maintenance.” We also conclude, therefore, that the trial court acted properly in quashing the subpoena because it was not in compliance with General Statutes § 52-143.

The second subpoena was directed to the claims manager of the Aetna Casualty and Surety Company (Aetna). The plaintiff indicated that material solicited by the Aetna subpoena was intended to establish notice. The plaintiff argued that since Aetna investigated the claim, it must have found the pothole. Since it found the pothole, “it follows that the notice served as a reasonable guide, and therefore, met that standard of adequacy.”

We conclude that the trial court reasonably exercised its discretion in excluding evidence that the plaintiff attempted to gain through the Aetna subpoena. The sole issue to be determined by the jury was whether the notice afforded a reasonable guide to the commissioner in the conduct of his inquiries. The material sought by the plaintiff involved insurance, a new and collateral issue. Its introduction could only have impeded the jury in its deliberations.

Relevant evidence may be excluded if it has the potential to create prejudice or to raise a side issue that would unduly distract the jury from the main issue. State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982). Relevant evidence may also be excluded if it tends to confuse the issues or mislead the jury. We cannot conclude that the trial court abused its discretion in sub silentio determining that the probative value of the evidence sought to be obtained by the Aetna subpoena was outweighed by its prejudicial impact. See State v. Sharpe, 195 Conn. 651, 660, 491 A.2d 345 (1985); State v. Reid, 193 Conn. 646, 656, 480 A.2d 463 (1984).

The material sought through the Aetna subpoena was also intended to establish that the notice was adequate because (1) it fulfilled its statutory purpose, (2) it was not misleading in any way, and (3) it may have assisted an “agent” of the commissioner in conducting inquiries. “Sufficiency of the notice is to be tested with reference to the purpose of the notice, i.e., that a claim is being made. Delaney v. Waterbury & Milldale Tramway Co., 91 Conn. 177, 181, 99 A. 503 (1916).” Warkentin v. Burns, supra. The fact that someone may have actually investigated the claim is of no relevance to the sufficiency of the notice. As previously stated, the sole issue to be determined by the jury was whether the plaintiff’s description of the location of the pothole was so inadequate that the defendant would not have been able readily to ascertain its location and to make an intelligent inquiry into the details of the accident. See Ozmun v. Burns, 18 Conn. App. 677, 680-81, 559 A.2d 1143 (1989). The trial court did not abuse its discretion in granting the defendant’s motion to quash the subpoena.

II

The plaintiff next claims that the court improperly redacted her written notice when it was submitted to the jury. When it was called to the plaintiffs attention after she had rested that the notice was not in evidence, the court offered to allow the plaintiff to reopen her case for the purpose of presenting evidence on that issue. While the defendant admitted to receiving the notice, he disputed its adequacy; he claimed it was technically insufficient as a statutory notice. The plaintiff chose not to offer any additional evidence, and the parties attempted to agree on a redaction of the notice. The court, upon determining that no such agreement would be reached, advised both parties what would not be allowed, and the redacted notice was then submitted to the jury. The court indicated that the only relevant portions of the notice were those required by the statute. The plaintiffs counsel represented that he was in substantial agreement, but took an exception when the redacted notice was submitted.

The only issue raised by the defendant’s denial of the adequacy of the plaintiff’s notice was whether the description of the location of the defect “in the eastbound center lane of the Connecticut Turnpike (1-95), east of Exit 4”; see footnote 4; was sufficient. The final redacted notice submitted to the jury included all of the essential elements prescribed by the statute: written notice of the injury, a general description of that injury, the cause, the time and the place.

It is not disputed that the court exercised its discretion in allowing the written notice to go to the jury. Although the court ruled the notice admissible, it does not necessarily follow that everything in it is required to be admitted into evidence. Hutchinson v. Plante, 175 Conn. 1, 4, 392 A.2d 488 (1978); see Suffield, Bank v. Berman, 25 Conn. App. 369, 374-75, 594 A.2d 493, cert. denied, 220 Conn. 913, 914, 597 A.2d 339, 340 (1991). The information in the document must be relevant to the issues being tried. Maggi v. Mendillo, 147 Conn. 663, 667, 165 A.2d 603 (1960).

The court in the present case exercised its discretion by redacting immaterial and prejudicial portions from the notice before submitting it to the jury. On its face, the notice “so manifestly demonstrates that it was prepared in anticipation of litigation that it would be an abuse of discretion for the trial court [to have failed to redact].” River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 806, 595 A.2d 839 (1991) (Borden, J., concurring in part, dissenting in part). Further, if an abuse of discretion is claimed, it is the appellant’s burden to demonstrate the harmfulness of the error. State v. Crumble, 24 Conn. App. 57, 69, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991). The plaintiff has failed to demonstrate the harmfulness of the court’s action in redacting the material.

Ill

The plaintiff next claims that the trial court improperly failed to instruct the jury as requested that the sufficiency of the notice (1) was to be tested against its purpose and (2) depended on the nature of the obstruction. The court instructed as requested, but did not specifically include the words “the notice is to be tested with reference to the purpose for which it is required.” The plaintiff argues that while the charge on the purpose was substantially correct, the instruction failed to instruct the jury that it should determine the adequacy of the notice by determining whether it had fulfilled the statutory purpose. We do not agree.

The plaintiff concedes that a refusal to charge in the exact words of the request will not be considered improper if the requested charge is given in substance. We will not examine a portion of the charge in isolation from the overall charge. Sullivan v. Norwalk, 28 Conn. App. 449, 456, 612 A.2d 114 (1992). The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict. Id. “Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues.” Tomczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981).

In this case, the purpose of and the requirements for sufficient notice were explained in adequate terms. Looking at the instruction as a whole, the charge fairly covered the points of law raised in the plaintiffs request to charge. We conclude that the trial court properly discharged its duty to instruct the jury in a manner calculated to give a clear understanding of the issues presented for its consideration.

Finally, the plaintiff alleges that the trial court improperly refused to give a “missing witness” Secondino charge as requested. The parties concede, and we agree, that our disposition of the plaintiffs first claim makes it unnecessary to address this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-144 provides in pertinent part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in the case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notiee of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing unthin ninety days thereafter to the commissioner. . . .” (Emphasis added.)

       “Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet . . . the statutory requirements.” (Internal quotation marks omitted.) Bresnan v. Frankel, 224 Conn. 23, 28, 615 A.2d 1040 (1992). It would be “inappropriate to have the jury decide the sufficiency of the notice provided the commissioner when the notice was inadequate as a matter of law.” Id.
      The defendant asks that, as an alternative ground for affirming the judgment, we conclude that the notice was defective as a matter of law.

       General Statutes § 52-143 (a) provides in pertinent part: “The subpoena shall be served not less than eighteen hours prior to the time designated for the person summoned to appear, unless the court orders otherwise.” (Emphasis added.)

       The notice, prior to redaction, was as follows:
      “J. William Bums
      Commissioner of Transportation
      24 Wolcott Hill Road
      Wethersfield, Connecticut
      “This will notify you, pursuant to section 13a-144 of the General Statutes, that Vicki S. Curry of 2107 Winwood Terrace, New Windsor, Maryland was injured in person and in property through the neglect or default of the state or its employees by means of a defective highway which it is the duty of the commissioner of transportation to keep in repair.
      “On March 14,1984, at or about 5:30 a.m. a large pothole existed in the eastbound center lane of the Connecticut Turnpike (1-95), east of Exit 4. Then and there, the right front tire of the tractor-trailer being operated by Mrs. Curry unavoidably struck the pothole; the force of the impact injured Mrs. Curry, disabled the steering mechanism of the truck, and deflected it leftward onto an overtaking automobile operated and occupied by Joseph N. Frassetto, of 21 Solow Lane, East Northport, New York. Mrs. Curry suffered a cut hand and a permanent injury to her neck, i.e., a cervical sprain resulting in a chronic muscle spasm of the neck and upper back, which will render it impossible ever for her to return to work as a truck driver and difficult to pursue many of life’s activities without pain. As a result of his collision with Mrs. Curry’s track, Mr. Frassetto struck the door of his automobile with his left shoulder, aggravating a prior bursitis condition, and his automobile was deemed destroyed.
      “These injuries were caused through the neglect or default of the state and its employees, by means of the defective highway, in the following particulars among others:
      “1. The pothole came to exist by reason of inadequate regular maintenance of the roadway.
      “2. The pothole was not filled or otherwise repaired when it was discovered.
      “3. The state and its officers and employees failed to warn travellers of the existence and danger of the pothole, although it and they knew of its existence and know or should have known it was dangerous.
      Vicki S. Curry
      By . . . Her Attorney”

       The plaintiff requested as follows:
      “Purpose of Notice
      “First, the notice is to be tested with reference to the purposes for which it is required. The purpose of the requirement of notice is to furnish the party against whom a claim is to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of his inquiries, and in obtaining such information as he might deem helpful for his protection. Morico v. Cox, 134 Conn. 218, 223 [56 A.2d 522] (1947). This requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose was merely to furnish the commissioner with such information as would enable him to make a timely investigation of the facts upon which a claim for damages was being made. LoRusso v. Hill, 139 Conn. 554, 557 [95 A.2d 698] (1953).
      “Sufficiency of Notice Depends on the Obstruction
      “Second, in testing the sufficiency of a notice, it should be remembered also that a general description of the location of a large, or well known or long continued obstruction, or one with which the defendant is clearly familiar, may be quite sufficient to meet the test, where it would not be if these were not the facts. Sizer v. Waterbury, 113 Conn. 145, 158 [154 A. 639] (1931).”

       The court instructed the jury in pertinent part as follows:
      “But at this point, I want to go into a discussion of the law which applies to this type of action. This is — I want to inform you at the outset, this is not in the ordinary sense of the word a negligence action. We are dealing here with a quite different kind of action. There is an action to enforce against the commissioner of transportation of the state of Connecticut. A liability which is created solely by statute and would not exist but for the statute. If we didn’t have this statute which allowed people to sue the commissioner of the state of Connecticut for alleged highway defects, we wouldn’t be here in court today because there is no authority for it. You can’t sue a state. At least you can’t sue the state of Connecticut. I don’t know about other states, unless there is some sanction for it. In Connecticut we have this statute which allows people to sue the commissioner of transportation of the state for any defects they claim which caused injuries or damages solely because the statute permits it. Were it not for the statute, as I said, the commissioner could not be held liable.
      “So, I am going to read to you the portion of the statute that applies to this case. And it reads as follows: ‘Any person injured in person or property through the neglect or the default of the State or any of its employees by means of any defective highway, bridge or sidewalk in the state highway system which it is the duty of the commissioner of transportation to keep and repair, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court of Connecticut.’ And this is the Superior Court.
      “As I have said, it is solely because of that statute the plaintiff has any standing to bring this type of action. And it is possible under the statute, which I have just read to you, that a person injured by reason of a defective highway may recover from the parties bound by law to keep it in repair. The statute provides certain things. Our statutes provide that no actions shall be maintained to recover for damages caused by a defective highway unless a written notice of the injury to person or property with a general description of it and of the cause there of, and of the time and place of its occurrence shall be given within ninety days thereafter to the commissioner of transportation of the state of Connecticut.
      “As applied to this case, it is therefore required that the plaintiff, as a primary obligation, must give such notice as that described to the commissioner within the time specified. That is, within ninety days after the accident. I don’t think there is any question of that. That was given within ninety days; that’s not in dispute.
      “The notice described by the statute comprehends five essential elements: (1) written notice of the injury, (2) a general description of that injury, (3) the cause, (4) the time, (5) the place.

        “Those are the five essential elements that must be included in that notice. Now, if you find after my discussion with you that the plaintiff has not complied with those five essential elements, that there is something lacking in the five essential elements which were in the notice that was given, either the general description of the injuries caused, the time, the place and so forth, then you must find that notice insufficient and your verdict must be for the defendant.
      “Now, the purpose of the requirement of notice to the commissioner is to furnish him with such warning or notice as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of the interest of the state, and such information as would furnish him a reasonable guide in the conduct of such inquiries in obtaining such information as he might deem helpful for the protection of the state. So, you can see why the notice requires a general description of the injuries, the cause, the time, and the place. This is information which the commissioner should have in order for him to do what’s necessary and furnish him a reasonable guide in inquiring and obtaining such information as might be helpful for the protection of the state; that’s the reason for it.
      “In other words, the purpose of the requirement of notice to the commissioner is that he, against whom suits for injuries are about to be instituted, should have such precise and specific information as to time and place as will enable him to inquire into the facts intelligently. To put it in another way, the notice can’t be so indefinite as to fail to give the commissioner information which would allow him to conduct an inquiry for the purpose of protecting the state.
      “Now, this notice, — with respect to the place, this notice says that on March 14,1984, at or about 5:30 a.m., a large pothole existed in the eastbound center lane of the Connecticut Turnpike, 1-95, east of exit 4. That’s what the notice says with respect to the place where this incident occurred. Your job is to take that at face value and make a determination as to whether that is definite enough to give the commissioner of transportation of the state of Connecticut such information as would furnish him a reasonable guide in the conduct of his inquiries. Now, I charge you that if you should find that the notice served upon the state of Connecticut by the plaintiff, Vicki Curry, does not strictly conform to the requirements of the statute as to a general description of the injury, the cause, the time and the place, the plaintiff is not entitled to a verdict and you must find for the defendant. For as I have said, statutory notice is a condition precedent for bringing this action. However, if you should find that the notice filed by the plaintiff complies with the statutory requirements, then you must go further and next ask yourselves whether the plaintiffs have alleged the cause of action under the highway statute which I indicated is 13a-144.”

       The plaintiff requested the following jury instruction:
      “Missing Witness
      “Finally, in this context, you would expect the commissioner to have investigated or to have attempted to investigate, the plaintiffs accident. His investigation, whoever they were, could have told you whether they took the plaintiffs notice and started looking for the pothole in Groton; or whether they were able to find it, and how easily; or whether they found more than one large pothole between Exit 4 and Exit 5. The commissioner has chosen not to put on any testimony about his investigation. Now, if you find that it was within the power of the commissioner to produce as witnesses those who investigated this accident for him, and that he would naturally have produced [them], then you are permitted to infer that their testimony would be unfavorable to his cause. ‘A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.’ Secondino v. New Haven Gas Co., 147 Conn. 672, 675, [165 A.2d 598] (I960).”


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    Jacqueline S. Ballato et al. v. Board of Education of the Town of Stonington
    (11740)
    Foti, Freedman and Schaller, Js.
    Argued September 13
    decision released November 23, 1993

      Joel M. Ellis, with whom was William S. Zeman, for the appellants (named plaintiff et al.).

      Richard D. O’Connor, with whom, on the brief, was Miguel A. Escalera, Jr., for the appellee (defendant).
   Schaller, J.

The plaintiffs Jacqueline S. Ballato, Donna B. Smith, Candace B. Wood and Celia H. Landon appeal from the judgment of the trial court dismissing their appeal from the actions of the defendant Stonington board of education terminating their employment contracts. The plaintiffs contend that the trial court improperly upheld the following determinations of the board: (1) that the plaintiffs’ positions as nurse-teachers had been eliminated; and (2) that the plaintiffs’ contracts had been terminated in accordance with a valid seniority list. We affirm the judgment of the trial court.

The following facts form the basis of this appeal. All four plaintiffs were employed by the board as nurse-teachers. While nurses performed solely clinical nursing duties, nurse-teachers performed clinical nursing functions and taught health education pursuant to state teaching certification.

At a public meeting on June 24, 1991, superintendent of schools Thomas Reale recommended that the board consider the termination of the plaintiffs’ contracts under General Statutes § 10-151. Section 10-151 (d) provides that, prior to terminating the contract of a tenured teacher, the board shall give the teacher written notice that termination is under consideration, as well as provide the teacher, upon request, with a written statement of the reasons for the possible termination. Each plaintiff requested such a statement and the board provided the following reasons: “1. the elimination of your position or the loss of your position to another teacher; 2. other due and sufficient cause. More specifically and by way of amplification: a. budgetary considerations; b. recommendations which are consistent with established staff reduction procedures and an analysis of program staffing needs.”

Pursuant to § 10-151 (d), each plaintiff then requested a hearing regarding the board’s consideration of the termination of her contract. On July 30, 1991, an administrative hearing was held with Frank Logue as the impartial hearing officer. Logue made the following findings of fact pertinent to this appeal. Prior to the summer of 1989, “the Nurse-Teachers had their own bargaining unit and bargained with the board of education concerning salaries and other conditions of employment.”

On the basis of the classroom duties that the plaintiffs performed, they sought in the spring of 1989 to become members of the Stonington education association (association), which negotiated contracts for the teachers bargaining unit. The association and the board had previously negotiated a collective bargaining agreement for 1986-1989, with a provision that the agreement would continue in force until a new collective bargaining agreement was negotiated. Thomas Makela, president of the association, indicated that there would be concerns about impacts on the seniority of present association members if the nurse-teachers joined the association. Despite its concerns, the association proposed to the board that the plaintiffs be included in the teachers bargaining unit, but the board objected. To determine whether the plaintiffs should be included in the teachers bargaining unit and then be eligible for representation by the association, a unit clarification petition was brought to the state board of education. At a recess in the June 23,1989 hearing on the unit clarification petition, the board and the association reached an agreement concerning the plaintiffs’ status in the teachers bargaining unit and the association.

A memorandum of agreement filed with the town clerk on July 14, 1989, stated in part that “seniority for the purposes of time as a Nurse-Teacher within the contract and within the Association shall commence effective August 29, 1989.” A prior agreement between the nurse-teachers and the board expired when the memorandum of agreement was ratified by the association in September, 1989. The nurse-teachers then became members of the teachers bargaining unit. By its terms, the memorandum of agreement expired on August 31, 1990.

The hearing officer found, in addition, that the plaintiffs did not dispute the continuing application of the provisions of the memorandum of agreement beyond August 31, 1990, until the issue of contract terminations arose in 1991. When preparing for the 1991-1992 school year, the board received a budget that equalled that of the 1990-1991 school year, despite nondiscretionary increases in expenses such as an 8 percent increase in teachers’ salaries and a 30 percent increase in health insurance costs. As a result of these expenses without a corresponding increase in the school budget, the board had to reduce its expenses in many ways, including a staff reduction equal to twenty full-time teaching positions.

To determine which teachers would have their contracts terminated pursuant to § 10-151 (d), a seniority list agreed upon by the association and the board became important. In the 1990-1993 collective bargaining agreement between the association and the board, article thirty-eight, subsection D, provided that “[a] seniority list will be developed and agreed to by both parties.” Landon, Smith and Wood were initially listed as having one year of service. In preparing the final list, the board and the association had seniority verification cards sent to each teacher. The cards listed the years of service for each teacher as of September 9, 1990, and requested that the teachers check one of the following statements: ‘T agree that the information above is correct and may be used as a basis for determining my certification status and years of service in the Stonington Public Schools”; or “I feel that the information above is incorrect for the following reasons JJ

Ballato was listed as having zero years of service, and she objected. The hearing officer found, however, that in order to enhance other pension rights, Ballato had waived the opportunity to be included in the association bargaining unit for one year. No evidence was presented concerning the verification cards of Landon, Smith or Wood. On June 27,1991, the president of the association met with the superintendent regarding the seniority list and made no objection to the final list as of that date. The final seniority list had Landon, Smith and Wood each with one year of service, and Ballato with zero years.

On the basis of these findings, the hearing officer recommended to the board that it terminate the contracts of the plaintiffs in accord with the seniority list developed by the board and the association. On August 22,1991, the board adopted this recommendation and terminated the contracts of the plaintiffs. The clinical duties that the plaintiffs had performed would then be performed by nurses. The teaching duties that the plaintiffs had performed would then be performed by teachers with more seniority than the plaintiffs.

Pursuant to General Statutes § 10-151 (f), the plaintiffs appealed the decision of the board to the Superior Court, claiming that the plaintiffs’ positions had not been “eliminated” under § 10-151 (d) (5), and that, even if the court found that they had been eliminated, the contracts were terminated on the basis of an invalid seniority list. The function of the trial court “in reviewing the action of the board pursuant to General Statutes § 10-151 (f) . . . 'is to determine whether the board has acted illegally and not to substitute [its] judgment for that of the board.’ ” Tomlinson v. Board of Education, 226 Conn. 704, 713-14, 629 A.2d 333 (1993), quoting Rodo v. Board of Education, 216 Conn. 541, 555, 483 A.2d 102 (1990); see Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747 (1956). Applying this standard, the court upheld the board’s determinations, and dismissed the plaintiffs’ appeal. The plaintiffs now appeal from the trial court’s judgment dismissing their appeal.

I

Elimination of Positions

The plaintiffs contend that the termination of their contracts under General Statues § 10-151 (d) (5) was illegal. Under that section, the contracts of tenured teachers can be terminated due to “elimination of the position to which the teacher was appointed or loss of a position to another teacher . . . .” The plaintiffs argue that their positions as nurse-teachers have not been eliminated because the functions of clinical nursing and health education teaching that comprised the position of nurse-teacher are still being conducted. Clinical nursing duties are performed by nurses, while health education instruction has been undertaken by other certified teachers with more seniority.

The phrase “elimination of the position” has not been defined by our legislature or our courts. To determine the meaning of this phrase, “the court must construe it in accordance with the statute’s background and purpose, as well as with common sense.” Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 158, 622 A.2d 536 (1993); In re Valerie D., 223 Conn. 492, 512-13, 613 A.2d 748 (1992); Warkentin v. Burns, 223 Conn. 14, 20, 610 A.2d 1287 (1992).

The language at issue became part of an existing body of law concerning teacher tenure in 1955. See General Statutes (1955 Rev.) § 938d. Legislative history of this amendment is sparse, and fails to address the phrase “elimination of the position.” The intent of the amendment is, however, clear. The provisions regarding the termination of teachers’ contracts were enacted to prevent terminations made in bad faith, such as terminations due to political motives or mere whimsy.

The plaintiffs suggest that, in order for a “position” to be “eliminated,” others cannot perform the functions that comprised that position. In other words, clinical nursing could not be provided and health education could not be taught. Similarly, under the plaintiffs’ interpretation of this section, a board could not reduce the number of math teachers from six to five, while the number of children taught remained constant, without removing math from the curriculum. Such a definition is too strained.

“Position” is defined as “an employment for which one has been hired: job,” while “eliminate” is defined as to “get rid of.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). A reasonable, common sense interpretation of the word “position” in this statute is that it applies to the specific job that the person has contracted to undertake rather than to an entire department or program. If a person is hired as a math teacher and the board chooses, pursuant to § 10-151 (d) (5), to “eliminat[e] . . . the position to which the teacher was appointed,” the decision is specific to that person’s job, rather than encompassing the entire department of math teachers. (Emphasis added.) In this case, the facts are less complex. No employee of the board currently has a job that involves both clinical nursing duties and health education instruction. The jobs or positions held by the nurse-teachers, for the purposes of the statute, have been eliminated. While the functions performed by those nurse-teachers are now performed by other personnel, a dispersement of duties after the board has determined in good faith that some positions need to be eliminated is appropriate. Here, the board determined in good faith that budgetary constraints required the elimination and consolidation of various teaching positions. The trial court properly upheld the board’s determination.

II

Seniority List

The plaintiffs contend that the provision of the memorandum of agreement filed on July 14,1989, regarding the plaintiffs’ seniority in the association did not govern their seniority rights under the 1990-1993 collective bargaining agreement between the board and the association. Article twenty-three, subsection B, of the 1990-1993 collective bargaining agreement states in part that “[t]his agreement contains the full and complete agreement between the board and the Association on all negotiable matters for the duration of this contract only.” Article thirty-eight, subsection D, states that “[seniority will be determined using the total years of service in the Stonington Public Schools . . .’’and that “a seniority list will be developed and agreed to by both parties.” There is no mention of the July, 1989 memorandum of agreement regarding the plaintiffs’ seniority. The plaintiffs argue, therefore, that the July, 1989 memorandum of agreement no longer controls the plaintiffs’ seniority.

Essentially, this is an issue of contract interpretation. Did the parties intend that the terms of the July, 1989 memorandum of agreement continue to govern the plaintiffs’ seniority rights when the board and the association entered into new collective bargaining agreements? “The intention of the parties in executing a contract is a question of fact.” McClintock v. Rivard, 219 Conn. 417, 431, 593 A.2d 1375 (1991); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-275, 439 A.2d 314 (1981). As a result, this court “will not disturb the trial court’s conclusion . . . unless the conclusion is unsupported by the evidence and, therefore, could not reasonably have been reached.” McClintock v. Rivard, supra.

Although the term “seniority” is clearly defined in article thirty-eight, subsection D, of the 1990-1993 collective bargaining agreement, suggesting that the definition provided there should govern, this term is latently ambiguous. A latent ambiguity arises when language “is clear and intelligible and suggests but a single meaning, but some extrinsic fact or some extraneous evidence creates a necessity for interpretation or a choice between two or more possible meanings . . . .” Black’s Law Dictionary (6th Ed. 1990). Here, evidence outside the 1990-1993 collective bargaining agreement creates a choice of meanings for the term as either total years of service or total years of service pursuant to the July, 1989 memorandum of agreement. When an ambiguous term is at issue, the trial court can examine the extrinsic evidence to resolve the question of the parties’ intent. Kronholm v. Kronholm, 16 Conn. App. 124, 131, 547 A.2d 61 (1988).

In this case, the trial court relied on several factors in determining that the parties intended the provisions of the July, 1989 memorandum of agreement to continue in force. First, the plaintiffs never questioned the seniority list through the grievance procedures set forth in article twenty-eight of the collective bargaining agreement. Second, the president of the association and the board agreed to a seniority list pursuant to article thirty-eight, subsection D, of the collective bargaining agreement in which Ballato had zero years of service, while Landon, Smith and Wood each had one year. In addition, the court reasoned that, because the July, 1989 memorandum of agreement allowed the plaintiffs to become members of the association and teachers bargaining unit, to contend that the provisions of the agreement regarding seniority had expired would likewise suggest that the main provision allowing the plaintiffs into the bargaining unit would also have expired. On the basis of these factors, the court concluded that the parties intended the provisions of the July, 1989 memorandum of agreement regarding the seniority of the plaintiffs to continue into the new collective bargaining agreement.

In reviewing the trial court’s factual determination of the intentions of the parties, we will apply a clearly erroneous standard. “ ‘The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ Groton v. Yankee Gas Ser vices Co., 224 Conn. 675, 691, 620 A.2d 771 (1993); Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).” Pollio v. Conservation Commission, 32 Conn. App. 109, 115, 628 A.2d 20 (1993). On the basis of the evidence presented as a whole regarding the plaintiffs’ admission to and status in the association, the trial court’s findings relating to the parties’ intentions were not clearly erroneous. We conclude, therefore, that the evidence supports the trial court’s decision to hold the board’s determination that the plaintiffs continued to be governed by the July, 1989 memorandum of agreement with regard to seniority.

The judgment is affirmed.

In this opinion the other judges concurred.

       Heather M. Kiss, another plaintiff, is not a party to this appeal. The term plaintiffs hereinafter refers solely to Ballato, Smith, Wood and Landon.

       Ballato was hired by the board in September, 1973, and certified as a nurse-teacher in August, 1975; Landon was hired in April, 1985, and certified in February, 1989; Wood was hired in April, 1985, and certified in June, 1985; Smith held certification when hired in June, 1988.

       Although titled nurse-teachers, the plaintiffs apparently spent most of their time performing clinical nursing duties. For example, during the 1990-1991 school year, Landon spent only 14 percent of her time teaching health education.

       The term “tenure” is defined in General Statutes § 10-151 (a) (6) (A) as “[t]he completion of thirty school months of full-time continuous employment for the same board of education.”

       These reasons are contained in the letters sent by the board to the plaintiffs, pursuant to the plaintiffs’ requests. The letters can be found in the administrative record and state the following:
      “Dear [Plaintiff]:
      “The purposes of this letter are to inform you that your request for a statement of reasons concerning the Board of Education’s decision to consider the termination of your employment contract was received on [date] and, in accordance with the Board’s responsibility under Section 10-151 of the Connecticut General Statutes, to provide you with a response to your request.
      “Consequently, please be advised that the Board of Education is considering the termination of your contract of employment for the following reasons: [reasons set forth in text]
      “If you have any questions concerning your status or the above statement of reasons, please feel free to contact my office at your convenience. “Respectfully,
      [signature]
      Thomas P. Reale, Jr. Superintendent of Schools”

       A new collective bargaining agreement for the years 1990-1993 was not reached until January 31, 1991.

       In addition to this provision regarding seniority, the memorandum of agreement altered several other provisions from the 1986-1989 collective bargaining agreement with regard to the plaintiffs.

       General Statutes § 10-151 (d) provides in pertinent part: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for . . . (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher if no other position exists to which such teacher may be appointed if qualified . . . and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with ... (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization . . . .”

       The plaintiffs Ballato, Landon and Smith were later rehired as full-time nurses. The plaintiff Wood was rehired in the position of a 0.7 teacher for the 1991-1992 year.

       The legislative history for the house and senate regarding this amendment, formerly House Bill No. 1900, notes a favorable reception to the amendment and the desire to provide teachers with more job security. 21 H.R. Proc., Pt. 1, 1955 Sess., pp. 550-53; 12 S. Proc., Pt. 3, 1955 Sess., pp. 678-80. Legislative history regarding House Bill No. 591 is more abundant, as the joint committee on education recorded various sessions regarding this bill. House Bill No. 591 contained an identical listing of the reasons for termination of teachers' contracts. In public discussion on this bill, many members of the teaching community praised it as providing security and removing the arbitrariness that apparently had surrounded teacher terminations. Conn. Joint Standing Committee Hearings, Education, Pt. 1,1955 Sess., pp. 129-32, 138, 140-54.

       Similarly, in the example where the six math teachers’ positions are reduced to five, with no reduction in the number of students, the position of one math teacher has been eliminated, it no longer exists. Such elimination and consolidation is appropriate if undertaken in good faith. Views similar to this have been expressed in other jurisdictions. In California, the Court of Appeals stated that the “particular kind of service of the employee may be eliminated even though a service continues to be performed or provided in a different manner by the district.” Campbell Elementary Teachers Assn., Inc. v. Abbott, 76 Cal. App. 3d 796, 812, 143 Cal. Rptr. 281 (1978). The court cited approvingly a case where the school board discontinued the services of “traveling” art teachers who went from school to school and continued to offer art instruction by departmental teachers. Id.; see Davis v. Berkeley School District, 2 Cal. 2d 770, 770-71, 40 P.2d 835 (1934). In addition, New York has also adopted this stance, stating that a school district may reorganize its teaching staff by the abolition or consolidation of teaching positions. Matter of Young v. Board of Education, 35 N.Y.2d 31, 34, 315 N.E.2d 768, 358 N.Y.S.2d 709 (1974). In that case, the court determined that in light of increasing budgetary constraints, abolishing the position of full-time attendance teacher and dividing those duties among the existing principals and assistant principals of the district was valid. Ryan v. Ambach, 71 App. Div. 719, 419 N.Y.S.2d 214 (1979) (abolishment of position and fractionalization of duties not per se violative of teacher tenure laws).

       The plaintiffs raise the issue in their brief that since they performed some teaching duties, they were entitled by law to be members of the teachers bargaining unit pursuant to General Statutes § 10-153b. It is unclear that the plaintiffs’ limited teaching duties, coupled with their largely clinical nursing function, would have qualified them as members of the bargaining unit absent the July, 1989 agreement, as the unit clarification proceeding was never completed. On the basis of the limited information and evidence regarding this issue before this court, it is inappropriate to decide whether the plaintiffs were legally entitled to be members of the unit.


author: Lavery, J.

text:
    In re Bassel C.

    (12186)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued September 30
    decision released November 23, 1993

      Michael K. Courtney, assistant public defender, for the appellant (respondent).

      John H. Kearney, state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Lavery, J.

The juvenile respondent, Bassel C., appeals from the order of the Superior Court for juvenile matters transferring his case to the regular criminal docket on the basis of a finding of probable cause that he committed murder in violation of General Statutes § 53a-54a and felony murder in violation of General Statutes § 53a-54c. The respondent claims that the trial court (1) based its finding of probable cause for the transfer on insufficient evidence, (2) improperly admitted prior inconsistent statements of two witnesses and (3) violated the respondent’s federal and state constitutional rights to confront the witnesses against him. We affirm the trial court’s determination.

The respondent, age fourteen, was arrested on September 15, 1992, on suspicion of murdering Michael Samaha in Danbury five days earlier. The state filed a delinquency petition in Superior Court for juvenile matters against the respondent, alleging the serious juvenile offenses of murder in violation of § 53a-54a and felony murder in violation of § 53a-54c. The state then moved to transfer the respondent’s case to the regular criminal docket pursuant to General Statutes § 46b-127.

As required, an evidentiary hearing was held to determine whether probable cause existed to transfer the respondent’s case. The issues on appeal relate solely to two of the witnesses presented by the state at that hearing, Timothy Mourning and Elisha Council. Mourning testified that he had seen the respondent with a pistol similar to the murder weapon on numerous occasions, including hours before the murder. He also stated that he saw the respondent near the site of the homicide shortly before and after the murder. Mourning remembered greeting the respondent with “What’s up?” in their encounter after the murder. Mourning claimed, however, both that he did not remember the respondent’s answer and that he was unaware whether the respondent had replied at all.

Council testified that she knew the victim and saw him immediately before the murder in the alley where he was killed. She further stated that she was standing on an exterior balcony overlooking the crime scene at the time of the murder. Council testified that three men approached the victim and demanded money. After hearing what she thought was someone being struck with a bottle, she testified that she saw two of the men hovering over the victim, one strangling him. The other man then shot him, twice. She stated, at first, that she could identify the three men but recanted after voir dire by the respondent and claimed that she was unable to identify them.

Both witnesses had given investigating officers written statements that conflicted with their testimony. Two days after the murder, Mourning had told officers that the respondent replied to Mourning’s greeting by saying, “I just killed a guy.” Council gave three statements, in varying degrees of detail, within twenty-four hours of the killing. In the first statement, she admitted that she knew the killers but was too frightened to reveal their identities. In the second, she reported her belief that one of the three men came from Bridgeport. In the third statement, written in her own hand, she identified the respondent as one of the three men she saw commit robbery and murder.

All of these witnesses’ prior inconsistent statements were admitted under State v. Whelan, 200 Conn. 743, 748-49, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). On the basis of those statements and all the other evidence, the court found probable cause to believe that the respondent had committed murder and felony murder. The court transferred the respondent to the regular criminal docket.

I

The trial court based its finding of probable cause, at least in part, on the prior inconsistent statements of Mourning and Council. The respondent claims that the trial court improperly admitted these statements.

Prior inconsistent statements of nonparty witnesses are hearsay and, generally, inadmissible to prove the truth of the matters they assert. State v. Hopkins, 222 Conn. 117, 122-23, 609 A.2d 236 (1992). In Whelan, however, our Supreme Court adopted an exception to this rule allowing substantive use of a prior inconsistent “statement of a nonparty witness if the declarant: (1) signed the statement; (2) had personal knowledge of the facts set forth in [the] statement; and (3) testifies at trial and is subject to cross-examination.” State v. Borrelli, 227 Conn. 153, 158-59, 629 A.2d 1105 (1993). Prior inconsistent statements are admissible only “where the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced.” State v. Grant, 221 Conn. 93, 100, 602 A.2d 581 (1992); see also State v. Borrelli, supra, 160-61; State v. Hopkins, supra, 126; State v. Green, 16 Conn. App. 390, 397, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988). The trial court must reasonably find sufficient indicia of reliability in the circumstances surrounding the statement to admit it substantively. State v. Borrelli, supra, 160. “ ‘It is the trial court’s responsibility to weigh the reliability of each statement on a case-by-case basis.’ ” Id., 161, quoting State v. Hopkins, supra.

We begin by noting that trial courts have broad discretion in admitting evidence under Whelan. State v. Buster, 27 Conn. App. 263, 271, 606 A.2d 9 (1992), aff’d, 224 Conn. 546, 620 A.2d 110 (1993). When a trial court’s evidentiary rulings are challenged, they are accorded great deference and will be disturbed on appeal only on a clear showing of abuse of discretion. State v. Alvarez, 216 Conn. 301, 319, 579 A.2d 515 (1990); State v. Buster, supra.

In the present action, the respondent concedes that the prior inconsistent statements met the three initial requirements of Whelan: both Mourning and Council signed all of their statements; both witnesses had personal knowledge of the facts therein; both witnesses were cross-examined. The respondent, however, challenges the trial court’s ruling that the statements were reliable.

Our review of the record convinces us that the trial court did not abuse its discretion by admitting Mourning’s prior statement. The following conditions, under which Mourning gave his statement, support the trial court’s finding of reliability. First, the statement was given two days after the crime, “long before the witness’ memory might have faded.” State v. Whelan, supra, 754. Second, and perhaps most important, Mourning’s statement was not “ ‘given in response to leading questions, which are laden with facts to which the witness has merely answered with a yes or no.’ ” State v. Borrelli, supra, 160, quoting State v. Hopkins, supra, 125. Third, Mourning signed the statement and initialed every page after reading it. State v. Borrelli, supra. Fourth, there was ample corroborative testimony. Another witness, Terrell Staton, testified that he saw the respondent with a gun resembling the murder weapon near the murder scene shortly before the crime. Finally, most of Mourning’s testimony was consistent with his written statement. Corroborative evidence enhances the reliability of a prior inconsistent statement. Id., 161.

Mourning recanted under cross-examination and claimed his statement resulted from police intimidation and coercion. This testimony came, however, in response to leading questions laden with facts to which he merely assented. See id., 160. The respondent claims that, absent contradictory evidence, the trial court was required to find that the police obtained Mourning’s statement through coercion and intimidation. A trier is not required, however, to believe testimony merely because it is not directly contradicted. Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983). After hearing the evidence and observing the witness on the stand, the trial court was unpersuaded that Mourning’s statement resulted from coercion or influence. “It is uniquely the province of the trier of fact, in this case the judge, to determine the import of the evidence by gauging the credibility of the witnesses.” Berry v. Loiseau, 223 Conn. 786, 821, 614 A.2d 414 (1992). The respondent has failed to demonstrate that the court abused its discretion by admitting Mourning’s prior inconsistent statement under Whelan.

Our review of the record also reveals that the trial court did not abuse its discretion by admitting Council’s prior statements. The circumstances surrounding her statements support the trial court’s finding of reliability. All of her statements were made within twenty-four hours of the murder, long before her memory might have faded. State v. Borrelli, supra, 160. Her statements were narratives, not responses to leading questions laden with facts to which she merely assented. Id. Council’s testimony regarding the essential facts of the crime was largely identical to her statements. This continuity over time increases the likelihood that the earlier statements were reliable. Finally, Council wrote the statement in which she identified the respondent in her own hand.

Council also recanted at the hearing, claiming that her statements resulted from police coercion and intimidation and her own intoxication and exhaustion. It is important that, on direct examination, she stated that her reluctance to identify the murderers resulted from her mother’s instructions to “shut [her] mouth.” Her claims of police misconduct and her intoxication came only in response to leading questions. See id. Again, “[i]t is uniquely the province of the trier of fact, in this case the judge, to determine the import of the evidence by gauging the credibility of the witnesses.” Berry v. Loiseau, supra. The respondent has failed to demonstrate that the trial court abused its discretion by admitting Council’s prior inconsistent statements.

II

The respondent next claims that the evidence adduced at the hearing was insufficient to establish probable cause. “The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial.” (Internal quotation marks omitted.) In re Keijam T., 221 Conn. 109, 115, 602 A.2d 967 (1992). Probable cause exists where the government’s evidence would warrant a person of reasonable caution to believe that the accused committed the crime. Id., 115-16; In re Ralph M., 211 Conn. 289, 316-17, 559 A.2d 179 (1989). “The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear that [t]here is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of . . . all the circumstances. . . .” (Citations omitted; internal quotation marks omitted.) In re Keijam T., supra.

“When reviewing a trial court’s finding of probable cause made for purposes of a transfer pursuant to § 46b-127, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . Where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the . . . decision are supported by the evidence or whether, in light of . . . the whole record, those facts are clearly erroneous. . . . As in any case involving the challenge to a factual finding, we view the evidence and the permissible inferences therefrom in the light most favorable to sustaining the trial court’s determination of probable cause. ...” (Citations omitted; internal quotation marks omitted.) Id., 116.

In this case, the trial court found probable cause to believe that the respondent (1) acted with intent to cause the victim’s death, (2) caused the victim’s death, (3) committed robbery, and (4) caused the victim’s death in the course and furtherance of the robbery. The record amply supports these findings. Eyewitness testimony placed the respondent at the murder scene immediately prior to and after the murder. The respondent was seen carrying a pistol similar to the murder weapon shortly before the murder. Council, who was standing approximately ten feet from the murder, identified the respondent less than twenty-four hours after the crime as one of three men who robbed and murdered the victim. The respondent admitted to Mourning that he had just shot someone moments after Mourning heard two gunshots. In sum, the record substantiates the trial court’s finding of probable cause.

Ill

Finally, the respondent claims that admission of the prior inconsistent statements of Council and Mourning violated his right to confront the witnesses against him as guaranteed by the federal and state constitutions. This claim, however, defies controlling precedent. Our Supreme Court addressed this issue in State v. Alvarez, supra, 315-16. In that case, the court noted that “the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective whatever way, and to whatever extent, the defense might wish.” (Internal quotation marks omitted.) Id. Here, as in Alvarez, the record reveals that the respondent had an unrestricted opportunity to cross-examine the witness. “The constitutional standard was therefore satisfied.” Id., 316.

The order of transfer is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-127 provides in pertinent part: “The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years .... No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. At such hearing, the child shall have the right to counsel and to confront the witnesses against him. The procedures provided in section 54-46a shall apply at such hearing, except that the child shall have the right to move to suppress any admission made by him on the ground that it was obtained in violation of the provisions of subsection (a) of section 46b-137 and to obtain discovery of exculpatory information. An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age .... A child who has been transferred may enter a guilty plea to a lesser offense if the court finds that such plea is made knowingly and voluntarily. Any child transferred to the regular criminal docket who pleads guilty to a lesser offense shall not resume his status as a juvenile regarding said offense. If the action is dismissed or nolled or if such child is found not guilty of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen years.”

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-54c provides in pertinent part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants. . . .”

       See footnote 1.


author: Per Curiam.

text:
    James J. Smith et al. v. Otis Elevator Company
    (12802)
    Dupont, C. J., Foti, Lavery and Heiman, Js.
    Considered October 27
    decision released November 23, 1993

      L. Dougles Shrader, in support of the motion.

      T. Paul Tremont and Frank A. Bailey, in opposition to the motion.
   Per Curiam.

The defendant has filed a motion to dismiss the plaintiff’s appeal for lack of a final judgment. The dispositive issue before us is whether a final judgment exists after the trial court has denied a motion to set aside the verdict but before it has heard evidence of collateral source payments pursuant to General Statutes § 52-225a. We conclude that final judgment does not enter until after the collateral source payment issue has been decided and, therefore, the appeal must be dismissed for lack of a final judgment.

The procedural history of this case is not in dispute. In 1990, the plaintiff, James Smith, brought a negligence action against the defendant, Otis Elevator Company. Prior to bringing the action, the plaintiff received compensation for his injuries under the Workers’ Compensation Act. The plaintiff’s complaint alleged that, while working at a job site for his employer, Maklari Electric, he suffered various personal injuries due to the defendant’s negligence. After a jury trial, a verdict was rendered for the plaintiff and accepted by the trial court on August 5, 1993. The plaintiff moved to set aside the verdict and moved for an additur. The trial court denied both motions on August 20, 1993, and ordered an evidentiary hearing on collateral source payments made to the plaintiff.

On September 1, 1993, prior to the hearing on the collateral source payment issue, the plaintiff filed an appeal from the denial of his motion to set aside the verdict. The defendant filed a timely motion to dismiss the appeal, asserting that, pursuant to General Statutes § 52-225a, final judgment cannot enter until after the hearing on collateral source payments, and that the denial of the motion to set aside the verdict does not satisfy the test for a final judgment enunciated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). In his opposition to the motion to dismiss, the plaintiff claims that judgment enters as a matter of course once a motion to set aside the verdict is denied. Gordon v. Feldman, 164 Conn. 554, 557, 325 A.2d 247 (1973); Tough v. Ives, 159 Conn. 605, 606, 268 A.2d 371 (1970).

“The lack of final judgment is a threshold question that implicates the subject matter jurisdiction of this court.” Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993), citing Walton v. New Hartford, 223 Conn. 155, 162 n.9, 612 A.2d 1153 (1992). If there is no final judgment, we cannot reach the merits of the appeal. General Statutes §§ 51-197a, 52-263; Practice Book § 4000.

The plaintiff properly contends that, as a general rule, in a civil jury case final judgment enters as a matter of course once a motion to set aside the verdict is denied. Gordon v. Feldman, supra. However, “[appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created and can be acquired and exercised only in the manner prescribed.” LaReau v. Reincke, 158 Conn. 486, 492, 264 A.2d 576 (1969). Our legislature has frequently exercised its power to prescribe when final judgment exists under various circumstances. See Ambroise v. Williams Raveis Real Estate, Inc., 226 Conn. 757, 628 A.2d 1303 (1993) (discussing final judgment under the prejudgment remedy statute); Dunham v. Dunham, 217 Conn. 24, 584 A.2d 445 (1991) (discussing final judgment under the lis pendens statute); Southington v. Pierce, 29 Conn. App. 716, 720 n.4, 617 A.2d 929 (1992) (discussing final judgment under various statutes regarding temporary injunctions).

General Statutes § 52-225a was enacted as part of a tort reform act. Subsection (a) of § 52-225a provides in relevant part that “[ip any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages . . . by an amount equal to the total of amounts determined to have been paid under subsection (b) . . . .” Subsection (b) provides in pertinent part that “[upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence . . . concerning the total amount of collateral sources . . . . ” (Emphasis added.)

“In construing a statutory provision, we first look to its language, and if that language is plain and unambiguous, ‘we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature.’ ” Samperi v. Inlands Wetlands Agency, 226 Conn. 579, 590, 628 A.2d 1286 (1993); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Section 52-225a clearly indicates that the trial court must receive evidence concerning collateral source payments before entering judgment. There is no final judgment until the collateral source payment issue is decided.

Because we may exercise jurisdiction only in the manner prescribed by statute, we must adhere to the requirements of § 52-225a. We read § 52-225a as expressly mandating that final judgment does not enter until the trial court has rendered a decision regarding collateral source payments. We conclude that the denial of the plaintiff’s motion to set aside the verdict is not an appealable final judgment.

The defendant’s motion to dismiss the appeal for lack of a final judgment is granted.

       General Statutes § 52-225a provides in relevant part: “reduction in ECONOMIC DAMAGES IN PERSONAL INJURY AND WRONGFUL DEATH ACTIONS FOR collateral source PAYMENTS, (a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987 . . . and wherein liability ... is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
      “(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment. ..."

       We refer herein to the named plaintiff, James Smith, as the plaintiff. His wife, Jacqueline Smith, was a coplaintiff in the trial court, asserting a derivative claim for loss of consortium. Maklari Electric, the plaintiffs employer at the time of the alleged accident, was also a coplaintiff seeking reimbursement for funds paid to the plaintiff under the Workers’ Compensation Act. Neither Jacqueline Smith nor Maklari Electric is an appellant.

       The court held a hearing on October 5, 1993, but has not yet rendered a decision regarding the collateral source payments.


author: O’Connell, J.

text:
    State of Connecticut v. Sharon Mobley
    (11754)
    O’Connell, Foti and Cretella, Js.

      Argued September 23
    decision released November 23, 1993

      Shawn G. Tiernan, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and. Joseph Harry, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the revocation of her probation. On March 13,1991, the defendant pleaded guilty under the Alford doctrine to one count of threatening in violation of General Statutes § 53a-62 and one count of reckless endangerment in violation of General Statutes § 53a-63. The trial court Clark, J., sentenced the defendant to three months in the custody of the commissioner of correction on the threatening count and a concurrent one year sentence on the reckless endangerment count. Execution of both sentences was suspended and the defendant was placed on probation for two years.

On December 23,1991, an arrest warrant was issued charging the defendant with violating a condition of her probation mandating alcohol abuse evaluation and treatment. Following an evidentiary hearing, the trial court Levin, J., found her in violation of her probation and, on September 8, 1992, sentenced the defendant to a total effective term of imprisonment of one year, execution suspended after three months, and eighteen months probation.

The defendant raises the following claims on appeal: (1) the trial court improperly found that the office of adult probation had imposed the conditions of her probation; (2) the imposition of those conditions by the office of adult probation violated her due process and confrontation rights; (3) General Statutes § 53a-30 (b) conflicts with General Statutes § 53a-30 (c); (4) the evidence was insufficient to show that alcohol abuse and treatment was necessary; and (5) the trial court improperly admitted into evidence a letter under the business records exception to the hearsay evidence rule. We affirm the judgment of the trial court.

In a detailed and comprehensive memorandum of decision the trial court analyzed the defendant’s first four claims consistently with the law. State v. Mobley, 42 Conn. Sup. 574, 634 A.2d 305 (1993). As to the first four arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Daw’s Critical Care Registry, Inc. v. Department of Labor, 225 Conn. 99, 102, 662 A.2d 518 (1993); Bank of Boston Connecticut v. Brewster, 32 Conn. App. 215, 217, 628 A.2d 990 (1993).

Because the fifth issue did not involve the trial court’s final resolution of the case but challenges a midtrial evidentiary ruling, it was not included in the trial court’s memorandum of decision. Accordingly, we undertake our own analysis of the issue.

The hearsay issue arose during the testimony of the defendant’s probation officer, Paul Steel. Steel testified that he had referred the defendant to the Connecticut Mental Health Center for evaluation for alcohol abuse and had received a letter from the center advising that the defendant would have to participate in treatment for alcohol abuse. The defendant flatly and unequivocally refused on numerous occasions to participate in treatment. This testimony, which came into evidence without objection, was sufficient to establish the probation violation.

Consequently, we do not reach the question of the admissibility of the letter from the Connecticut Mental Health Center concerning the defendant’s refusal to participate in treatment. Even if we assume, arguendo, that the defendant was correct, it would avail her nothing. An erroneous ruling is not reversible error if the evidence admitted thereby is merely cumulative of evidence that has otherwise properly entered the case. Swenson v. Sawoska, 215 Conn. 148, 155, 574 A.2d 206 (1990); State v. Magnano, 204 Conn. 259, 285, 528 A.2d 760 (1987). The probation violation was proven by Steel’s direct testimony that the defendant refused to receive treatment for alcohol abuse.

The judgment is affirmed.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The defendant included this claim as part of her fourth issue on appeal. We have elected to treat it separately.

       The following excerpts from the transcript contain testimony of Paul Steel:
      “[State’s Attorney]: Did you attempt to arrange a treatment program for the defendant?
      “[Steel]: I attempted to, yes.
      “[State’s Attorney]^ What happened when you attempted to do this?
      “[Steel]: I was in the process of calling a facility on the phone and was informed by the defendant not to bother.
      “[State’s Attorney]: The defendant told you not to bother?
      “[Steel]: That’s correct.
      “[State’s Attorney]: Did you inform her of what the consequences were if she refused?
      “[Steel]: Absolutely.
      “[State’s Attorney]: What did you say to her?
      “[Steel]: I informed her that failure to comply with any special conditions of her probation would result in a violation of her probation.
      “[State’s Attorney]: What was her response to you, if any?
      “[Steel]: She said she would rather go to jail than go to treatment.
      * * *
      “[State’s Attorney]: What I am trying to establish is, did you give her more than one opportunity to submit to treatment?
      “[Steel]: Numerous opportunities.
      “[State’s Attorney]: And she refused?
      “[Steel]: Yes, she did.”


author: Heiman, J.

text:
    State of Connecticut v. Walter Pierog
    (11402)
    Lavery, Landau and Heiman, Js.

      Submitted on briefs November 1
    decision released November 23, 1993

      Stephen F. Cashman filed a brief for the appellant (defendant).

      Patricia Swords, state’s attorney, and James M. Ralls and Matthew Gedansky, assistant state’s attorneys, filed a brief for the appellee (state).

       This case was orally argued on June 7,1993. At the time of oral argument the panel, on its own motion, ordered the trial court to articulate its decision by complying with Practice Book § 4059. The trial court complied wnth the order of this court and the case was submitted without additional oral argument on November 1, 1993.

   Heiman, J.

The defendant appeals from the judgment of conviction, after a plea of nolo contendere made pursuant to General Statutes § 54-94a to a charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (l). The defendant had filed and argued a motion to dismiss claiming that the police lacked probable cause to support his arrest and thus violated his rights as guaranteed under both the state and federal constitutions. The trial court denied the motion to dismiss and the defendant elected to enter a plea of nolo contendere, reserving his right to appeal from the denial of the motion. This appeal followed.

The trial court afforded the defendant an evidentiary hearing on the issue of the existence of a reasonable and articulable suspicion to support the Terry stop and on the issue of probable cause to support the arrest of the defendant.

The following facts were disclosed at the hearing. On December 24,1991, Trooper Matthew Barnwell III, a Connecticut state trooper, was on patrol in an area encompassing the towns of Bolton, Dover and Hebron. At about 9:53 p.m., Barnwell received a dispatch that reported the possibility of a vehicle being operated erratically on Route 6 traveling in an easterly direction. Barnwell, who was on Route 66 in the town of Hebron, proceeded to the intersection of Route 66 and Route 6.

After he had arrived at the intersection of Routes 6 and 66, Barnwell received a further dispatch that the vehicle had turned right onto Route 316. The dispatch also indicated that the vehicle was a tan van bearing registration number 309BDG. The dispatch provided no information as to the description of the van driver.

Barnwell returned to Route 66 and proceeded to Route 316 where he waited to stop the vehicle. The van did not pass the area where Barnwell waited.

The dispatcher then advised Barnwell that the source of the information concerning the van was telephone calls from citizens who had described the van and its erratic operation. The dispatcher also disclosed to Barn-well the name of the owner of the vehicle and the owner’s address, number 198 Route 316. The dispatcher, however, neither disclosed the names of the callers nor transmitted any other information as to the nature of the calls.

Barnwell proceeded to the owner’s address, which was between one and two miles from his location. Approximately twenty-five to thirty minutes elapsed from the time of the first report on the vehicle to Barn-well’s arrival at the owner’s address. He arrived five to ten minutes after the last dispatch concerning the vehicle.

Upon arriving at the address, Barnwell observed a tan van in the private driveway of a house. The vehicle was parked parallel to the road even though the driveway was perpendicular to the road. The vehicle’s engine was running and its headlights were lit. An individual, later identified as the defendant, was slumped in the driver’s seat with his head back and his mouth open. His speech was slurred and his breath had a strong odor of alcohol. At that point, Barnwell concluded that he had a reasonable and articulable suspicion that mandated a further investigation. After further investigation, Barnwell placed the defendant under arrest and transported him to the state police barracks.

I

The defendant first asserts in his brief that Barnwell lacked a reasonable and articulable suspicion to make an investigatory stop of the defendant’s vehicle. We do not agree.

“[T]he principles of fundamental fairness that are the hallmark of due process permit a brief investigatory detention, even in the absence of probable cause, if the police have a reasonable and articulable suspicion that a person has committed or is about to commit a crime.” State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990); State v. Harrison, 30 Conn. App. 108, 111, 618 A.2d 1381, cert. granted on other grounds, 225 Conn. 921, 625 A.2d 824 (1993); see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In determining the constitutional validity of an investigatory stop, both the United States Supreme Court and our Supreme Court require a balancing of the nature of the intrusion on personal security against the importance of the government interest inducing that intrusion. United States v. Hensley, 469 U.S. 221, 228, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985); State v. Mitchell, 204 Conn. 187, 196-97, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987); State v. Harrison, supra, 111-12. Our Supreme Court has also recognized the pervasive societal interest in the apprehension and punishment of drunken drivers and has found that “[b]alancing the circumscribed nature of a Terry stop intrusion against the serious risks of criminal behavior, especially in the context of the risks associated with driving while under the influence of intoxicating liquor, we are persuaded that [a] brief detention [does] not violate [a defendant’s] due process rights.” State v. Lamme, supra. In justifying the intrusion, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 21; State v. Cofield, 220 Conn. 38, 45, 595 A.2d 1349 (1991); State v. Harrison, supra, 112; State v. Whitfield, 26 Conn. App. 103, 110, 599 A.2d 21 (1991). In evaluating the validity of such a stop, courts consider whether, in light of “ ‘the totality of the circumstances,’ the detaining officers had ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981) . . . .” State v. Mitchell, supra, 195; State v. Cofield, supra. Review of a trial court’s determination of whether a reasonable and articulable suspicion exists “involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). “The tidal court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” (Internal quotation marks omitted.) Id.; State v. Cofield, supra, 44; State v. Harrison, supra, 113.

Prior to Barnwell’s observation of the vehicle in the driveway of the defendant’s house, he had received three separate radio transmissions from the police dispatcher advising him as to the erratic operation of a tan van, its course of travel, description, the registration number, and, finally, the owner’s address. The information that he received from the dispatcher had been garnered from telephone complaints by citizens and that source was given to Barnwell.

At the time that Barnwell approached the van, it was already stopped. The trooper took no action that caused the vehicle to stop. He found the van at the address that had been given to him by the dispatcher as the home of the owner of the vehicle; he observed that it was parked in an odd position in the driveway with the motor running, the headlights on and the defendant slumped in the driver’s seat with his head back and his eyes half-closed. Barnwell asked the defendant whether he was all right and received a grunt in response. He noticed a strong odor of alcohol on the breath of the defendant. When the defendant spoke, Barnwell noticed that his speech was slurred. It was then that Barnwell requested that the defendant exit the vehicle.

We conclude, that under the totality of the circumstances, the trooper had a reasonable and articulable suspicion, on an objective basis, that the defendant may have been operating a motor vehicle while under the influence of liquor or drugs or both. See State v. Harrison, supra. The facts of this case clearly support the trial court’s determination that the trooper had such a reasonable and articulable suspicion when he approached the defendant, creating the right to a brief investigatory intrusion. The trial court’s determination is not clearly erroneous. “ ‘The facts [previously detailed] justified the defendant’s detention for the limited intrusion of field sobriety testing to confirm or dispel the officer’s suspicion.’ ” State v. Harrison, supra, 113, quoting State v. Graver, 27 Conn. App. 370, 376, 606 A.2d 39 (1992). We conclude that this was a valid Terry stop.

The defendant’s claim that the trooper lacked a reasonable and articulable suspicion is without merit.

II

The defendant next asserts that even if Barnwell had a reasonable and articulable suspicion for the Terry stop, he nonetheless lacked probable cause for the arrest of the defendant. We are unpersuaded.

The defendant posits that there was insufficient evidence for the trooper to have had probable cause to believe that the defendant had operated his van on the highway in violation of General Statutes § 14-227a.

We have set forth the facts that supported the trial court’s upholding of the Terry type intrusion on the basis of the trooper’s reasonable and articulable suspicion. We now examine the additional facts that the trial court found were sufficient to give rise to probable cause.

After making his initial observations, Barnwell requested that the defendant shut off the motor and exit the van. As the defendant complied, the trooper noted that his eyes were bloodshot. He continued to be aware of a strong odor of alcohol. When the defendant exited the van and attempted to put his foot down, he dropped toward the ground and Barnwell caught him to keep him from falling. He was unable to stand and required the support of Barnwell and a local constable who was on the scene. When the trooper asked the defendant whether he could stand by himself and if he was “okay,” the defendant was unresponsive. Barnwell noted that the defendant had urinated on himself. Because of the condition of the defendant, his inability to stand and uncommunicative state, Barnwell determined that he would be unable to perform field sobriety tests and that to attempt to administer such tests was both unsafe and unnecessary. On the basis of this information, Barnwell arrested the defendant for driving under the influence of intoxicating liquor or drugs or both in violation of General Statutes § 14-227a.

We are obligated to review this case under the clearly erroneous standard. State v. Torres, 31 Conn. App. 443, 450, 625 A.2d 239 (1993); State v. Royce, 29 Conn. App. 512, 516, 616 A.2d 284 (1992). Thus, we must determine whether the trial court’s factual findings are clearly erroneous and whether its conclusion is legally and logically consistent. State v. Torres, supra; State v. Royce, supra.

Probable cause exists when there are “facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed.” (Internal quotation marks omitted.) State v. Royce, supra, quoting State v. Martin, 2 Conn. App. 605, 612B, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). “The probable cause test then is an objective one.” State v. Copeland, 205 Conn. 201, 213, 530 A.2d 603 (1987); State v. Royce, supra, 517. “While probable cause requires more than mere suspicion . . . the line between mere suspicion and probable cause is often fine and that line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Royce, supra, 517, quoting in part, State v. Marra, 222 Conn. 506, 513, 610 A.2d 113 (1992). “The process [of determining probable cause] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same— and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” (Internal quotation marks omitted.) State v. Royce, supra; State v. Martin, supra, 613.

We also note that the issue of the existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. Probable cause deals with probabilities, not hard certainties. State v. Royce, supra, 518.

Thus, it was the responsibility of the trial court to assess the information in the hands of the state trooper, and, on the basis of that information, to determine whether the information was sufficient for the trooper to have determined the existence of probable cause. State v. Royce, supra, 517. It was the role of the trial court to determine whether the facts and circumstances within the trooper's knowledge were sufficient to justify a belief by a reasonable person that an offense has been or is being committed. State v. Marra, supra; State v. Royce, supra.

On the basis of his experience, training and education, the trooper determined that a person of reasonable caution would conclude that the defendant had been operating a motor vehicle while under the influence of intoxicating liquor or drugs or both. This determination was, as found by the trial court, legally and logically consistent with the facts known to the trooper at the time of the arrest. See State v. Royce, supra, 516.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes § 14-227a provides in pertinent part: “(a) No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14- 218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both . . . .”