author: LANDAU, J.

text:
    THOMAS J. GILL v. NELSON DIORIO ET AL.
    (AC 17562)
    Landau, Spear and Freedman, Js.
    Argued September 23
    officially released December 1, 1998

      Louis A. Spadaccini, for the appellant (defendant Aqua Backflow-Gallicchio Plumbing, Inc.).

      Maureen O’Doherty, for the appellees (named defendant et al.).
   Opinion

LANDAU, J.

In this appeal, the defendant Aqua Back-flow-Gallicchio Plumbing, Inc. (Aqua), appeals from the judgment of the trial court granting a motion to dismiss Aqua’s cross complaint against the defendant owners and its third party complaint against the tenant of the subject property. Aqua’s claims were alleged pursuant to General Statutes § 49-33.

On appeal, Aqua claims that the trial court improperly (1) granted the motion to dismiss when it ruled that subject matter jurisdiction did not exist, (2) failed to conduct a “trial-like” hearing on the motion and (3) concluded that all payments were made to the general contractor in good faith prior to the filing of Aqua’s mechanic’s lien. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The original action was commenced by the plaintiff, Thomas J. Gill, a subcontractor, to foreclose a mechanic’s lien placed on 338-342 Franklin Avenue in Hartford (property). Among the defendants were other subcontractors that had also placed mechanic’s liens on the property, including Aqua; the owners; and the mortgagees of the property, Equity Bank and Hartford Economic Development Corporation. In due course, Aqua filed a counterclaim against the plaintiff and a cross complaint against all of the other defendants. Aqua also moved to implead and file a third party complaint against the tenant.

With respect to the owners and tenant, Aqua alleged that it had provided materials and rendered services in the construction of improvements to the owners’ property pursuant to an agreement with KMR Contractors, Inc. (general contractor). The agreement with the general contractor provided for Aqua to be paid $8582.93, which sum had not yet been paid. To secure payment, Aqua filed a certificate of mechanic’s lien on the property in the Hartford land records on March 27, 1996. The complaints further allege that Aqua served written notice of its lien on the owners and tenant, and also identified the encumbrances on the property that were superior and subsequent to Aqua’s.

The owners and the tenant moved to dismiss Aqua’s cross complaint and third party complaint, respectively, for lack of subject matter jurisdiction. The motion to dismiss, which bore the words “oral argument requested” and “testimony required,” was accompanied by a memorandum of law and an affidavit of Nelson Diorio. The owners and tenant asserted that the owners had hired a general contractor, pursuant to an oral agreement, to perform work on the property and that the owners had made full payment to the general contractor prior to the filing of the mechanic’s lien by Aqua. The owners and tenant claimed, therefore, that Aqua did not have standing to allege its claims pursuant to General Statutes § 49-36 (c). Aqua opposed the motion to dismiss arguing that the trial court, as a court of general jurisdiction, had subject matter jurisdiction over the action and that Aqua had standing to press its claim under § 49-33. Furthermore, Aqua argued that the owners and tenant were using the motion to dismiss to test the validity of the cause of action, which is more properly tested by a motion to strike.

The trial court held a hearing on the motion to dismiss during which it admitted into evidence copies of checks indicating payment by the owners to the general contractor. Aqua did not introduce any evidence at the hearing, failed to request a continuance to marshal evidence and did not raise an objection on the ground of improper foundation to the copies of checks being placed in evidence. The trial court granted the motion to dismiss, finding that “the evidence presented demonstrates that all payments in satisfaction of the contract were made to the general contractor prior to the filing of the lien.” This appeal followed.

“The conclusions reached by the trial court cannot be disturbed on appeal unless the subordinate facts do not support them.” (Internal quotation marks omitted.) Kelly v. Freedom of Information Commission, 221 Conn. 300, 309, 603 A.2d 1131 (1992). Because a party must have standing to invoke the subject matter jurisdiction of the court, it is appropriate for a court to evaluate whether a party has made a “colorable claim” of injury when a motion to dismiss pursuant to Practice Book § 10-31, formerly § 143, is made. See Sadloski v. Manchester, 228 Conn. 79, 83-84, 634 A.2d 888 (1993). “[W]here a statute or court rule sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492-93, 400 A.2d 726 (1978).” Novicki v. New Haven, 47 Conn. App. 734, 739, 709 A.2d 2 (1998).

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.” Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995). “Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction.” Id., 580. “Standing concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute . . . .” (Internal quotation marks omitted.) United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 345, 663 A.2d 1011 (1995).

To have standing under the statutes addressing mechanic’s liens, particularly §§ 49-33 and 49-36, the claimant must demonstrate that he or she is in the zone of interest intended to be protected by those statutes. To fall within that zone of interest protected by §§ 49-33 and 49-36, Aqua had to demonstrate that (1) the total amount of its lien and other liens did not exceed the contract price for satisfactory completion of the project, plus any damages resulting from the default by the general contractor, and (2) any payments to the general contractor by the owner were not bona fide payments pursuant to § 49-36. See General Statutes § 49-33 (f). “No mechanic’s lien may exceed the price which the owner has agreed to pay for the building being erected or improved, and the owner is entitled, furthermore, to credit for payments made in good faith to the original contractor before receipt of notice of such a lien or liens.” Seaman v. Climate Control Corp., 181 Conn. 592, 596, 436 A.2d 271 (1980). The owners and tenant argue that Aqua does not come within the zone of interest protected by the statutes relating to mechanic’s liens because it cannot satisfy either prong of the test. We agree.

The question is not whether the trial court has original jurisdiction to hear such matters as the foreclosure of a mechanic’s lien, but whether Aqua demonstrated, by a showing of predicate jurisdictional facts, its standing to bring its claim. A careful reading of the record demonstrates that once the owners and tenant produced evidence of payments made in excess of the oral contract, Aqua did not provide the subordinate facts necessary to demonstrate a debt owed and thus failed in its burden of proof. Moreover, Aqua had no claim because the amounts paid and damages sustained by the owners, prior to the filing of the mechanic’s lien, far exceeded the amount due to the general contractor under the original oral contract. In the absence of compliance with the authorizing statute, the trial court properly concluded that Aqua lacked standing.

On appeal, Aqua also maintains that the trial court failed to afford it procedural due process, improperly “delved into the merits of the case” and found the payments made by the owners to the general contractor were bona fide. The short answer to these claims is that during the trial court hearing, Aqua failed to preserve any of them for appeal. “Our rules of practice preclude us from considering claims of error unless they are distinctly raised at trial. See Practice Book § [60-5, formerly § 4061].” Abdelsayed v. Narumanchi, 39 Conn. App. 778, 785, 668 A.2d 378 (1995), cert. denied, 237 Conn. 915, 676 A.2d 397 (1996).

At the hearing, Aqua offered no objection that it was deprived of procedural due process because of the type of hearing conducted by the trial court. On appeal, Aqua does not generate a Golding argument but does fashion a plain error argument. See Practice Book § 60-5, formerly § 4061. Plain error review “ ‘is reserved for those truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ . . . [State v. Ortiz, 217 Conn. 648, 659-60, 588 A.2d 127 (1991).]” State v. Austin, 244 Conn. 226, 241, 710 A.2d 732 (1998). This is not such an extraordinary case. Therefore, because Aqua did not raise, at any time during the hearing, its claim that the trial court improperly analyzed the motion to dismiss for lack of subject matter jurisdiction and considered the merits of the case, the issue was not preserved, and we will not review it.

Finally, Aqua argues that there were disputed facts regarding whether the payments by the owners to the general contractor were bona fide. The transcript of the hearing demonstrates that only the plaintiff challenged whether the payments were bona fide. Although Aqua objected to the trial court’s admission of evidence of payment, Aqua’s counsel failed to articulate the basis for the objection. “Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. . . . The reason for this rule is clear: it is to alert the trial court to an error while there is time to correct it . . . and to give the opposing party an opportunity to argue against the objection at trial.” Remington Investments, Inc. v. National Properties, Inc., 49 Conn. App. 789, 801-802, 716 A.2d 141 (1998). Because Aqua failed to articulate the basis of its objection, the claim was not properly preserved for appellate review.

As to Aqua’s second objection raised at the hearing, its counsel stated that “[t]hese so-called exhibits were not submitted with the motion to dismiss.” If the basis of the objection was surprise, no request for a continuance was made nor was any evidence of prejudice proffered. See State v. Bagley, 35 Conn. App. 138, 143, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994) (defendant did not claim surprise at trial or request continuance to respond to any unanticipated evidence). We conclude, therefore, that the trial court properly granted the motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant owners are Nelson Diorio, Gracinda Diorio, Jose Cardoso and Emilia Cardoso. The tenant is Chale Ipanema Restaurant, Inc.

       General Statutes § 49-33 provides in relevant part: “(a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which 1he building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.
      * ** *
      “(f) Any such subcontractor shall be subrogated to the rights of the person through whom the subcontractor claims, except that the subcontractor shall have a mechanic’s lien or right to claim a mechanic’s lien in the event of any default by that person subject to the provisions of sections 49-34, 49-35 and 49-36, provided the total of such lien or liens shall not attach to any building or its appurtenances, or to the land on which the same stands or to any lot or to any plot of land, to a greater amount in the whole than the amount by which the contract price between the owner and the person through whom the subcontractor claims exceeds the reasonable cost, either estimated or actual, as the case may be, of satisfactory completion of the contract plus any damages resulting from such default for which that person might be held liable to the owner and all bona fide payments, as defined in section 49-36, made by the owner before receiving notice of such lien or hens. . . .” (Emphasis added.)

       Although the motion to dismiss was directed to the original complaint as well as to the cross claim and the third party complaint, and was granted as to all three, the plaintiff did not appeal.

       The owners and tenant also moved to dismiss the plaintiffs complaint.

       See Practice Book § 11-18, formerly § 211.

       General Statutes § 49-36 (c) provides: "In determining the amount to which any lien or liens may attach upon any land or building, or lot or plot of land, the owner of the land or building err lot or plot of land shall be allowed whatever payments he has made, in good faith, to the original contractor or contractors, befare receiving notice of the lien or liens. No payments made in advance of the time stipulated in the original contract may be considered as made in good faith, unless notice of intention to make the payment hitó been given in writing to each person known to have furnished materials or rendered services at least five days before the payment is made.” (Emphasis added.)

       Practice Book § 10-31 provides in relevant part: “(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter .... This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
      “(b) Any adverse party who objects to this motion shall . . . file ... a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”

       “Under our current rules of procedure, a motion to dismiss ‘may perform the role of either a motion to erase or a plea in abatement under our former practice.’ Pellegrino v. O’Neill, 193 Conn. 670, 672 n.4, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984). A motion to erase admitted ‘all facts which [were] well pleaded, invoke[d] the existing record and [was required to] be decided upon that alone.’ Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); 1E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 103. The plea in abatement was the required pleading when an alleged jurisdictional defect could not be determined on the record. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 587-88, 409 A.2d 1029 (1979); 1 E. Stephenson, supra, § 103. Under a plea in abatement, once issues of fact were joined, the trial court was required to conduct an evidentiary hearing to determine the disputed facts necessary to decide the jurisdictional issue. 1 E. Stephenson, supra, § 108 (d).” Knipple v. Viking Communications, Ltd., 236 Conn. 602, 608, 674 A.2d 426 (1996).

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The principles of Golding apply to civil cases. See Budlong v. Nadeau, 30 Conn. App. 61, 64, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290, cert. denied, 510 U.S. 814, 114 S. Ct. 62, 126 L. Ed. 2d 31 (1993).

       It would be somewhat disingenuous of Aqua to claim surprise. The motion to dismiss bore the words “testimony required.” Therefore, Aqua was on notice that evidence of some kind would be presented at the hearing. Furthermore, Diorio’s affidavit that was attached to the motion to dismiss attested to the dates and the amount of payments made. Aqua did not request a continuance to conduct discovery related to those facts.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES DAERIA
    (AC 16678)
    Lavery, Landau and Daly, Js.
    Argued September 16
    officially released December 1, 1998

      Glenn M. Conway, special public defender, with whom, on the brief, was Alexander H. Schwartz, special public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and John C. Smriga, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, James DaEria, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 (a) (5), attempt to commit larceny in the second degree in violation of General Statutes §§ 53a-49, 53a-119 and 53a-123 (a) (2), conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (2) and 53a-48, attempt to commit larceny in the third degree in violation of General Statutes §§ 53a-49, 53a-119 and 53a-124 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a).

On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress evidence that the police had obtained following a stop of his motor vehicle, (2) admitted into evidence clothing the police seized, without a warrant, as a seizure incident to a lawful custodial arrest and (3) denied both his motion to suppress incriminating oral statements he made to the police and his motion to suppress items the police seized from his vehicle. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 14,1995, the victim, James Grosner, was at the home of his fiancee’s parents, which is located on Graham Street in Stratford. At approximately 2:30 a.m., the victim heard a noise, and an alarm sounded almost immediately thereafter. The alarm belonged to a truck that was parked in the driveway. The victim looked out of a window and saw two men running away.

The victim exited the home and pursued the two individuals. When the victim reached the comer of Graham Street and High Park Avenue, he saw the two men enter a parked automobile. After several unsuccessful efforts to start the automobile, a man, later identified as the defendant, exited the car and took several steps toward the victim. The defendant raised his arm, and the victim saw a flash and heard a gunshot. The victim was struck in the leg by a bullet and retreated to the house while the defendant fired four additional shots.

The victim informed a police dispatcher that the perpetrators were driving a small, greenish Tercel on High Park Avenue. Officer David McNeil of the Stratford police department was on patrol in the vicinity of High Park Avenue when a police dispatcher reported the incident. At the intersection of Stratford Avenue and Bruce Avenue, approximately four blocks from the location of the shooting, McNeil observed a small, gray Toyota with three occupants. McNeil testified that he did not observe any other vehicles on the road from the time he received the dispatch until he observed the Toyota. McNeil activated his cruiser’s strobe lights and attempted to pull over the Toyota because it matched the description of the vehicle involved, was the only vehicle in the area, was coming from the direction of the shooting and had several occupants. When McNeil activated his cruiser’s strobe lights, the Toyota accelerated and a chase ensued.

When the Toyota struck a median on Washington Avenue in Bridgeport, the three occupants abandoned the vehicle. Officer Charles Johnson of the Bridgeport police department apprehended the defendant. Stratford police officers then arrested the defendant and took him into custody. The defendant was later identified as the owner of the Toyota.

Officer John Steedley transported the defendant to the Stratford police station. When they arrived at the police station, Steedley gave the defendant a form that listed his Miranda rights. Steedley asked the defendant to review the waiver form, which the defendant reviewed and signed. Before Detectives Richard Yeomans and Nelson Dennean interviewed the defendant, Dennean read the defendant his Miranda rights. Dennean asked the defendant whether he understood his rights and was willing to waive them, and the defendant indicated that he was willing to speak with the detectives. During his interview with the detectives, the defendant made several incriminating statements.

Dennean also read a “consent to search” form to the defendant and asked him if he would authorize police officers to search his vehicle. The defendant reviewed the form and signed it. During a search of the defendant’s vehicle, police officers discovered a flashlight, a dent puller and a screwdriver. At trial, Detective Robert Yakoubian testified that automobile thieves often use a dent puller to remove a vehicle’s ignition so that the vehicle can be started with a screwdriver.

Shortly after the defendant arrived at the Stratford police station, Sergeant Christopher Marino removed a hooded sweatshirt and a pair of baggy pants from the defendant. Marino then placed these items on a hook outside the defendant’s cell. While the defendant was in the holding cell, Officer Patrick Freer, who was with the victim at the hospital, spoke with Marino. Freer informed Marino that the victim described the shooter as wearing baggy pants and a hooded sweatshirt. Realizing that the defendant’s sweatshirt and pants matched the description provided by the victim, Marino seized these items from the hook outside the defendant’s cell.

I

We must first determine whether the trial court improperly denied the defendant’s motion to suppress all of the evidence obtained by the authorities following McNeil’s attempted stop of the defendant’s vehicle. Specifically, the defendant claims that McNeil’s activation of his police cruiser’s strobe lights constituted a seizure within the meaning of article first, § 7, of the constitution of Connecticut. Additionally, the defendant contends that this seizure violated his rights under our state constitution because it was not supported by a reasonable and articulable suspicion that his vehicle and its occupants were engaged in criminal activity.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Citations omitted; internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

We must first determine whether McNeil seized the defendant within the meaning of article first, § 7, of our state constitution when he activated his cruiser’s strobe lights. The state concedes that “under a reasonable reading of [State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992)], McNeil ‘seized’ the defendant the moment he activated his [strobe] lights.” We will, therefore, assume, without deciding, that McNeil’s actions constituted a seizure of the defendant.

We must next determine whether McNeil’s seizure of the defendant was permissible under article first, § 7, of our state constitution. The defendant argues, relying on State v. Oquendo, supra, 223 Conn. 635, that McNeil did not have a reasonable and articulable suspicion that his vehicle and its occupants were engaged in criminal activity. We disagree.

“Under both the federal and state constitutions, police may detain an individual for investigative purposes if there is a reasonable and articulable suspicion that the individual is engaged or about to engage in criminal activity.” State v. Groomes, 232 Conn. 455, 467-68, 656 A.2d 646 (1995). “Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion.” State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994); State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). “The police officer’s decision . . . must be based on more than hunch or speculation.” State v. Cofield, 220 Conn. 38, 45, 595 A.2d 1349 (1991). In justifying the particular intrusion, “ ‘[t]he 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, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).” State v. Groomes, supra, 468. “Once a reasonable and articulable suspicion exists, the detaining officer may conduct an investigative ‘stop’ of the suspect to confirm or dispel his suspicions . . . State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992).

“The 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. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” (Citation omitted; internal quotation marks omitted.) Id., 660-61.

The defendant does not maintain that the trial court’s factual findings were clearly erroneous. Instead, he claims that the trial court’s legal analysis of those facts was fundamentally flawed because the court used post-seizure facts retroactively to justify the seizure and found that the seizure took place only after the defendant’s car had come to a stop in Bridgeport. We disagree.

“A court reviewing the legality of a stop must . . . examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom.” (Emphasis added.) State v. Oquendo, supra, 223 Conn. 654. “These standards, which mirror those set forth by the United States Supreme Court in Terry v. Ohio, supra [392 U.S. 20-22], with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, §§ 7 and 9 of our state constitution.” State v. Oquendo, supra, 654; see also State v. Wilkins, 240 Conn. 489, 507-508, 692 A.2d 1233 (1997).

In deciding whether McNeil had a reasonable and articulable suspicion sufficient to justify stopping the defendant’s automobile, the trial court properly relied only on the information available to McNeil before he activated his cruiser’s strobe lights and attempted to stop the defendant’s vehicle. Although the trial court also discussed events that occurred after McNeil had activated his strobe lights, it relied on this information only in deciding whether McNeil had sufficient probable cause to arrest the defendant once the chase terminated in Bridgeport.

Having determined that the trial court did not rely on postseizure facts in its analysis, we must next determine whether the trial court’s conclusion that McNeil had a reasonable and articulable suspicion that the defendant’s vehicle and its occupants were engaged in criminal activity was legally and logically consistent with the facts available to McNeil at the time of the initial seizure, including any reasonable inferences drawn therefrom. It bears emphasis that “ [reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable to show probable cause.” (Internal quotation marks omitted.) State v. Groomes, supra, 232 Conn. 468.

After considering all of the information available to McNeil at the time of the initial seizure, we conclude that the trial court properly determined that when McNeil activated his cruiser’s strobe lights, he had a reasonable and articulable suspicion that the defendant’s vehicle and its occupants were engaged in criminal activity. In reaching its decision, the trial court credited McNeil’s testimony. “ ‘This court does not retry the case or evaluate the credibility of the witnesses.’ State v. Amarillo, [198 Conn. 285, 289, 503 A.2d 146 (1986)].” State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).

McNeil testified that he first observed the defendant’s car approximately four blocks from the crime scene shortly after the dispatcher reported the attempted larceny and shooting. In addition, McNeil testified that the defendant’s car was traveling away from the crime scene and turning onto Stratford Avenue, a main thoroughfare between Stratford and Bridgeport, which was commonly used as an escape route. “Proximity in time and place of the stop to the crime is highly significant in the determination of whether an investigatory detention is justified by reasonable and articulable suspicion.” (Internal quotation marks omitted.) State v. Aillon, 202 Conn. 385, 400, 521 A.2d 555 (1987); see also State v. Kyles, supra, 221 Conn. 661 n.11; State v. Aversa, 197 Conn. 685, 691, 501 A.2d 370 (1985).

In addition, the trial court found that the defendant’s vehicle and the number of occupants therein generally corresponded with the description broadcast by the police dispatcher. The police dispatcher informed McNeil that the perpetrators were driving a small, “greenish” Tercel. McNeil observed a small, gray Toyota with several occupants. The presence of a discrepancy in the color and model of the vehicle reported by the dispatcher and that observed by McNeil does not, without more, undermine the trial court’s finding that the seizure was supported by a reasonable and articulable suspicion. “The police . . . are not required to confirm every description of the perpetrator that is broadcast over the radio. What must be taken into account [when determining the existence of a reasonable and articulable suspicion] is the strength of those points of comparison which do match up and whether the nature of the descriptive factors which do not match is such that an error as to them is not improbable . . . .” (Internal quotation marks omitted.) State v. Rodriguez, 239 Conn. 235, 246-47 n.18, 684 A.2d 1165 (1996); State v. Kyles, supra, 221 Conn. 663; 3 W. LaFave, Search and Seizure (2d Ed. 1987) § 9.3 (d), pp. 465-66. In light of the fact that the victim observed the defendant’s automobile at approximately 2:30 a.m., it was not unreasonable for McNeil to infer that due to less than optimal lighting conditions, the victim mistakenly identified the defendant’s car as a Toyota Tercel as opposed to a Toyota Corolla. Moreover, under these lighting conditions, it was not improbable for the victim to misidentify the color of the defendant’s vehicle.

Finally, the trial court attached significance to the time of day and the existing traffic conditions when McNeil first observed the defendant’s vehicle. McNeil testified that he did not observe any other vehicles from the time he received the dispatch until he observed the defendant’s vehicle. While the dispatcher’s description of the defendant’s vehicle and its occupants may have been too general reasonably to enable McNeil to single out the defendant’s vehicle on a busy highway at rush hour, at approximately 2:30 a.m. on a deserted road approximately four blocks from the crime scene, the dispatcher’s description was sufficiently distinctive to give rise to a reasonable and articulable suspicion of criminal activity. See State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983) (while description of black male wearing dungaree clothing might be too general in other contexts, at 3 a.m. close to scene of two recent burglaries, description sufficiently distinctive to give rise to reasonable and articulable suspicion that defendant had engaged in criminal activity).

We conclude, therefore, that the trial court properly denied the defendant’s motion to suppress.

II

The defendant next claims that the trial court improperly allowed the introduction into evidence of a hooded sweatshirt and a pair of pants, which were seized from him without a warrant following his arrest, in violation of article first, § 7, of the constitution of Connecticut. We disagree.

After his arrest, the defendant was taken to the Stratford police station. Marino was the desk sergeant on duty when the defendant arrived at the police station. Because an insufficient number of personnel were available when the defendant arrived at the station, Marino decided to place the defendant in a holding cell temporarily until another police officer could participate in the booking process. Before placing the defendant in a cell, however, Marino removed the defendant’s personal effects and his outer clothing, which included a hooded sweatshirt and baggy pants. Marino placed the clothing on a hook outside the defendant’s cell. Marino testified that he removed these items from the defendant for safety reasons.

While the defendant was in the holding cell, Freer, who was with the victim at the hospital, spoke with Marino. Freer informed Marino that the victim described the shooter as wearing baggy pants and a hooded sweatshirt. Realizing that the victim’s description of the shooter’s clothing matched the clothing that he had removed from the defendant, Marino seized the hooded sweatshirt and pants from the hook outside the defendant’s cell.

The defendant claims that the trial court improperly admitted into evidence his hooded sweatshirt and pants because “there was no reason or recognized exception to the warrant requirement that justified Marino’s seizure of the clothing.” The trial court determined that despite Marino’s failure to procure a warrant, the defendant’s clothing was admissible into evidence because Marino properly seized these items incident to a lawful custodial arrest of the defendant.

“Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause.” State v. Copeland, 205 Conn. 201, 209, 530 A.2d 603 (1987). “[A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . One recognized exception to the warrant requirement is where the search has been undertaken incident to a lawful custodial arrest.” (Citations omitted; internal quotation marks omitted.) Id. Under article first, § 7, of the constitution of Connecticut, our Supreme Court has “recognized that the police may make a search without a warrant incidental to a lawful custodial arrest.” State v. Delossantos, 211 Conn. 258, 266, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); see also State v. Copeland, supra, 208-13; State v. Shaw, 186 Conn. 45, 48, 438 A.2d 872 (1982); J. Bruckmann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook (1992) pp. 107-108.

A

Relying on State v. Miller, 227 Conn. 363, 630 A.2d 1315 (1993), the defendant claims that the trial court improperly admitted into evidence his hooded sweatshirt and pants because the warrantless seizure of these items was not justifiable as a search and seizure incident to a lawful custodial arrest. Specifically, the defendant contends that the justifications for authorizing police officers to conduct a warrantless search and seizure at the time of his arrest no longer existed when he was transported to the police station. We disagree.

The defendant’s reliance on Miller is misplaced for two reasons. First, the Miller court expressly limited its analysis to “noninventory searches of automobiles that have been impounded at police stations.” Id., 377 n.14. In contrast, this case involves an entirely different exception to the warrant requirement. In the present case, the trial court held that Marino’s warrantless seizure of the defendant’s clothing was permissible as a search and seizure incident to a lawful custodial arrest. The Miller court held that the principal justifications for allowing a police officer, pursuant to the automobile exception to the warrant requirement, to conduct a warrantless on-the-scene search—latent exigency and inherent mobility—no longer exist once an automobile has been impounded. Id., 383-85. Very different policy considerations, however, support the exception to the warrant requirement relied on by the trial court. “The search incident to an arrest exception to the warrant requirement has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.” (Internal quotation marks omitted.) State v. Copeland, supra, 205 Conn. 210.

In addition, our case law establishes that “ ‘searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.’ ” State v. Magnotti, 198 Conn. 209, 214-15, 502 A.2d 404 (1985), quoting United States v. Edwards, 415 U.S. 800, 803, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974). On several occasions, our Supreme Court has looked to Edwards for guidance in deciding whether a warrantless search and seizure incident to a lawful custodial arrest violates article first, § 7, of our state constitution. See State v. Copeland, supra, 205 Conn. 211-12; State v. Castagna, 170 Conn. 80, 87-88, 364 A.2d 200 (1976). In Edwards, the defendant claimed that a warrantless search and seizure of his clothing, conducted approximately ten hours after he was arrested and taken into custody, was constitutionally impermissible as a search and seizure incident to a lawful custodial arrest. United States v. Edwards, supra, 800-802. In rejecting the defendant’s argument, the United States Supreme Court reasoned that “searches and seizures that could be made on the spot at the time of the arrest may legally be conducted later when the accused arrives at the place of detention.” Id., 803. Similarly, in State v. Castagna, supra, 87-88, our Supreme Court, relying on United States v. Edwards, supra, 804-805, held that a warrantless seizure of the defendant’s clothing, which took place approximately six hours after he was arrested and taken into custody, was permissible as a search and seizure incident to a lawful custodial arrest. See State v. Copeland, supra, 211 (“once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of arrest may lawfully be seized without a warrant”).

The defendant neither contests the legality of his arrest, nor contends that the police could not lawfully have seized these items of clothing at the time of his arrest. Although Marino’s warrantless seizure of the defendant’s clothing occurred at the police station approximately one hour after his arrest, Edwards and Castagna establish that this seizure was reasonable and, therefore, permissible as incident to a lawful custodial arrest.

B

Relying on State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994), the defendant next claims that the trial court improperly admitted into evidence his hooded sweatshirt and pants. We disagree.

The defendant’s reliance on Joyce is also misplaced. In that case, the police took custody of the defendant’s charred clothing pursuant to their community caretaking function. Id., 14-15. Thereafter, when the defendant became a suspect in an arson investigation, the police sent the clothing to the state forensic laboratory for testing without first procuring a warrant. Id. Our Supreme Court held that the state’s chemical analysis of the defendant’s clothing violated article first, § 7, of the constitution of Connecticut because the defendant had a reasonable expectation of privacy in the clothing, the chemical analysis constituted a search and the search was not justified by any recognized exception to the warrant requirement. Id., 21-28. Although the police lawfully obtained possession of the defendant’s clothing pursuant to their community caretaking function, our Supreme Court reasoned that it was necessary for the police to procure a warrant because the community caretaking function is not a recognized exception to the warrant requirement, and the state was “unable to identify any [other] exception to the warrant requirement that could encompass the warrantless search of the defendant’s clothes.” Id., 27.

In sharp contrast, in the present case, Marino seized the defendant’s clothing pursuant to a recognized exception to the warrant requirement. The trial court correctly decided that Marino’s warrantless seizure of the defendant’s clothing was justifiable as a search and seizure incident to a lawful custodial arrest. Given the legality of the defendant’s arrest, a search and seizure of his clothing incident to that arrest required no additional justification. “[A] lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant . . . whether or not there is probable cause to search.” State v. Badgett, 200 Conn. 412, 425, 512 A.2d 160, cert. denied, 479 U. S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); see also United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (custodial arrest of suspect based on probable cause is reasonable intrusion under the fourth amendment, and search incident to arrest requires no additional justification because lawful arrest establishes authority to search).

We conclude, therefore, that the trial court properly denied the defendant’s motion to suppress.

Ill

The defendant’s final claim is that the trial court improperly denied both his motion to suppress the oral statements he made to the police and his motion to suppress the items seized from his vehicle. Specifically, the defendant contends that a learning disability precluded him from knowingly, intelligently and voluntarily waiving his Miranda rights and consenting to a search of his vehicle. We disagree. “Because the defendant did not advance a separate state constitutional argument, we will limit our analysis to federal constitutional grounds.” State v. Guess, 39 Conn. App. 224, 231, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995).

A

We first examine whether the defendant validly waived his Miranda rights. “To be valid, a waiver must be voluntary, knowing and intelligent. Miranda v. Arizona, 384 U.S. 436, 475, 478, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966) .... The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. . . . Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992).

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings . . . his level of intelligence, including his IQ . . . his age . . . his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation.” (Citations omitted; internal quotation marks omitted.) State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986).

After a careful review of the record, we conclude that the state has met its burden. There was substantial evidence from which the trial court could have found that the defendant knowingly and intelligently waived his Miranda rights. In making its decision, the trial court credited the testimony of several police officers and detectives. Steedley provided the defendant with a form that contained his Miranda rights and told the defendant to ask questions if he did not understand the information contained in the form. The defendant reviewed the form and signed his name after each advisement of his Miranda rights. The defendant then reviewed and signed the lower portion of the form, waiving his Miranda rights. Steedley testified that the defendant appeared to comprehend what he was reading. Yeomans testified that he observed Dennean read the defendant his Miranda rights. When Dennean asked the defendant whether he understood his rights and was willing to waive them, the defendant stated that he was willing to speak with the detectives. “A defendant’s express written and oral waiver is strong proof that the waiver is valid.” (Internal quotation marks omitted.) State v. Northrop, 213 Conn. 405, 418, 568 A.2d 439 (1990); State v. Chung, 202 Conn. 39, 50-51, 519 A.2d 1175 (1987).

In making its decision, the trial court also attached significance to the defendant’s conduct during an interview with detectives. Yeomans testified that during the interview, the defendant acted “pretty cocky.” The defendant did not experience any difficulty communicating with Yeomans. Yeomans also stated that the defendant did not appear upset, frightened, ill or intoxicated, and he never asked to speak with an attorney or a family member. In addition, in light of his responses, the defendant appeared to comprehend the questions he was being asked. When the defendant learned that the victim had informed police officers that the shooter wore a hooded sweatshirt and baggy pants, clothing similar to what he was wearing, he terminated the interview. The defendant’s decision to terminate the interview indicates that he understood his rights and invoked them when he chose to do so. See State v. Usry, 205 Conn. 298, 306, 533 A.2d 212 (1987).

At the suppression hearing, Janice Hill, who taught the defendant up until the sixth grade, testified that the defendant experienced great difficulty reading. In her opinion, even if the Miranda waiver form were read aloud to the defendant, he would find it difficult to comprehend. Hill testified that when the defendant completed the sixth grade, he was reading at a third grade level. On cross-examination, however, Hill admitted that her professional contact with the defendant ended when he completed the sixth grade. At the time of his arrest, the defendant was eighteen years of age.

Nancy DiNardo, the custodian of records for the Bridgeport school department, testified that the defendant attended special education classes for the learning disabled from first through eighth grades and that he withdrew from school in the ninth grade. On the basis of the defendant’s records, DiNardo concluded that he was reading consistently below his grade level throughout his academic career. On cross-examination, however, DiNardo admitted that a psychological educational assessment, performed on the defendant at age seven, concluded that he possessed “the intellectual capacity to master grade level materials,” “[h]is overall level of intellectual ability measured within the lower end of the high average range of intelligence” and his word comprehension “measured within a superior range of intelligence.” This psychological assessment measured the defendant’s potential to achieve.

Although the defendant introduced evidence that he experienced difficulty reading, our case law establishes that this evidence, without more, is insufficient to invalidate his waiver of rights. “Even some degree of mental retardation does not by itself prevent a defendant from knowingly and intelligently waiving his Miranda rights.” State v. Northrop, supra, 213 Conn. 418 (valid waiver of Miranda rights despite evidence that defendant had learning disability); State v. Usry, supra, 205 Conn. 306-307 (valid waiver of Miranda rights despite defendant’s young age, low IQ and status as special education student); State v. Boscarino, 204 Conn. 714, 744, 529 A.2d 1260 (1987) (valid waiver of Miranda rights despite testimony that defendant had low IQ and other deficiencies allegedly rendering him incapable of waiving his rights); State v. Toste, supra, 198 Conn. 581 (valid waiver of Miranda rights despite evidence that defendant operated at sixth or seventh grade level, had poor reading skills, had fairly low IQ and suffered from psychological disorder). The trial court properly concluded that the defendant knowingly and intelligently waived his Miranda rights.

The state must also prove, by a preponderance of the evidence, that the defendant’s waiver of rights was voluntary. State v. Northrop, supra, 213 Conn. 419; State v. Barrett, 205 Conn. 437, 451-52, 534 A.2d 219 (1987). There is no evidence that police officers used threats or coercion or any overt psychological pressure to induce the defendant’s waiver. Since the police did not utilize any coercive tactics, the defendant’s federal constitutional claim is foreclosed by Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). In Connelly, the United States Supreme Court required “police overreaching as the crucial element in any inquiry into constitutional voluntariness.” (Internal quotation marks omitted.) State v. Northrop, supra, 419. Accordingly, the trial court properly concluded that the defendant knowingly, intelligently and voluntarily waived his Miranda rights.

B

The defendant next contends that the trial court improperly denied his motion to suppress the evidence police officers seized from his vehicle. He claims that a learning disability precluded him from knowingly, intelligently and voluntarily consenting to a search of his vehicle. We disagree.

After a careful review of the record, we find that the state has satisfied its burden. There was substantial evidence from which the trial court could have found that the defendant was capable of knowingly and intelligently consenting to a search of his vehicle. Yeomans observed Dennean read a “consent to search” form to the defendant and ask the defendant if he would authorize the police to search his vehicle. The defendant reviewed the form and signed it. “A defendant’s express written and oral waiver is strong proof that the waiver is valid.” State v. Northrop, supra, 213 Conn. 418; State v. Chung, supra, 202 Conn. 50-51. The defendant did not ask the detectives to explain any provisions in the consent form, and there is no evidence that he appeared confused, ill or intoxicated. In light of all the foregoing evidence, the defendant’s learning disability is insufficient, without more, to invalidate his consent.

The state must also establish that the defendant voluntarily consented to a search of his vehicle. “Whether there was valid consent to a search is a factual question that will not be lightly overturned on appeal. United States v. Sanchez-Jaramillo, 637 F.2d 1094, 1098 (7th Cir.), cert. denied, 449 U.S. 862, 101 S. Ct. 166, 66 L. Ed. 2d 79 (1980).” State v. Zarick, 227 Conn. 207, 226, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). “The ultimate question ‘is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.’ State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986).” State v. MacNeil, 28 Conn. App. 508, 514, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992).

The record is devoid of any evidence that the police used threats, coercion or promises to induce the defendant to execute the consent form. Accordingly, the trial court properly concluded that the defendant voluntarily consented to a search of his vehicle.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury also found the defendant guilty of committing a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. At a posttrial hearing, however, the trial court, pursuant to State v. Dash, 242 Conn. 143, 150, 698 A.2d 297 (1997), vacated the defendant’s conviction for that offense.

       A Tercel is a model of automobile manufactured by Toyota.

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

       Article first, § 7, of the constitution of Connecticut provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       The trial court found that “the stop of the defendant’s vehicle . . . was fully justified, first, as a valid Teiry stop, given the situation. It began'—the incident—at approximately 2:29 a.m. and, again, going over the factors available to Officer McNeil, he saw no other vehicles at that hour on the road and, of course, given the conditions, I suppose that’s not surprising; but there were in fact no other vehicles on the road. A greenish small vehicle was the description of the car with the suspects inside; this vehicle was primer gray; there were multiple people inside. Officer McNeil then pulled behind the defendant—the defendant’s vehicle at which point the pursuit began. Again, I will find that all of this was proper. Officer McNeil had reasonable and articulable suspicion available to him in order to conduct at a minimum a preliminary inquiry as to that vehicle and the occupants of that vehicle.”

       In referring to the events that occurred after McNeil had activated his strobe lights, the trial court stated that “all of the conduct thereafter, the factual findings of which I just recited concerning the chase, the no lights, the speeding, contributed of course to the basis for the ultimate stop [in Bridgeport] and arrest of the occupants [in the vehicle].”

       The police dispatcher reported that the perpetrators were driving a small, greenish Tercel. McNeil testified that when he received the dispatch, he recognized a Tercel as a model of automobile manufactured by Toyota. When McNeil first saw the defendant’s vehicle, he recognized it as a Toyota, but he could not specify the model. Later in the investigation, the police determined that the defendant’s car was a Toyota Corolla.

       In State v. Copeland, supra, 205 Conn. 212 n.4, our Supreme Court, cautioned that the decision in United States v. Edwards, supra, 415 U.S. 800, was not to be interpreted as imposing no restraints on law enforcement, officers. “This type of police conduct must [still] be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” (Internal quotation marks omitted.) State v. Copeland, supra, 212 n.4; see United States v. Edwards, supra, 808 n.9. In State v. Castagna, supra, 170 Conn. 86-87, although our Supreme Court determined that a seizure which took place approximately six hours after the defendant was taken into custody did not violate article first, § 7, of the constitution of Connecticut, it nevertheless affirmed the contemporaneousness limitation imposed on law enforcement officers by State v. Miller, 152 Conn. 343, 347, 206 A.2d 835 (1965).


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. TRAVIS DAVIS
    (AC 17983)
    O’Connell, C. J., and Lavery and Spear, Js.
    Argued September 14
    officially released December 8, 1998

      John M. Barton III, special public defender, for the appellant (defendant).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger Dobris, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Travis Davis, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (l), attempt to commit assault of a peace officer in violation of General Statutes §§ 53a-49 (a) (2) and 53a-167c (a) (l), commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k and criminal possession of a pistol in violation of General Statutes § 53a-217. The jury also found the defendant to be a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a) and a persistent serious felony offender in violation of General Statutes § 53a-40 (b). The defendant claims that the trial court improperly (1) failed to declare a mistrial after a state’s witness testified about other crimes that were inadmissible as evidence, (2) sentenced the defendant as a persistent dangerous felony offender, (3) denied the defendant’s motion to sever or bifurcate the criminal possession of a firearm count and (4) rendered judgment convicting the defendant of the crime of commission of a class A, B or C felony with a firearm, pursuant to General Statutes § 53-202k. We reverse the judgment only as to the counts that charged the defendant as a persistent dangerous felony offender and with commission of a class A, B or C felony with a firearm.

The jury reasonably could have found the following facts. On March 8, 1994, the New Haven police department was informed that the defendant, for whom the department had an outstanding arrest warrant, was standing at the comer of Chapel and Day Streets in New Haven. The officers had been given a physical description of the defendant, and were warned that he was believed to be armed and dangerous. A number of plainclothes officers converged on the location in two cars. After two officers exited the first car, approached the defendant and identified themselves as police officers, the defendant turned to look at them and then ran east on Chapel Street. The two officers, joined by officers from the second car, ran after the defendant. During the pursuit, Detective-Sergeant Michael Sweeney was the officer closest to the defendant. At some point during the pursuit, the defendant pulled a gun from his waistband and kept it pointed toward the ground. Soon thereafter, the defendant turned to look back at the officers, raised his gun and pointed it at Sweeney. Another detective yelled, “Mike, he’s got a gun,” prompting Sweeney to shoot the defendant, who fell to the ground. The police recovered the defendant’s semiautomatic nine millimeter pistol. The hammer was in the firing position with a round in the chamber and a full magazine of ammunition. The defendant was arrested and subsequently convicted of the charges previously enumerated. This appeal followed.

I

The defendant first claims that the trial court abused its discretion by improperly denying his motion for a mistrial that was precipitated by Sweeney’s testimony about other crimes in which the defendant was a suspect. We disagree.

On direct examination, Sweeney testified that he “had knowledge of the danger involved in the apprehension of [the defendant]” because the police had received telephone calls advising them that the defendant was committing armed robberies.

Outside the presence of the jury, the defendant made a motion for a mistrial and asserted that Sweeney’s testimony about the robberies violated the trial court’s order not to testify about other crimes in which the defendant may have been a suspect. The trial court disagreed that the answer was in violation of the order and denied the motion.

The defendant maintains that this testimony was sufficiently prejudicial to deprive him of his rights to due process and a fair trial in violation of the fifth, sixth and fourteenth amendments to the United States constitution, and article first, §§ 8 and 9, of the constitution of Connecticut.

“While the remedy of a mistrial is permitted under the rules of practice it is not favored. [It] should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . State v. Wooten, [227 Conn. 677, 693-94, 631 A.2d 271 (1993)]. On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972). State v. Bowman, 46 Conn. App. 131, 136-37, 698 A.2d 908 (1997) . State v. Henderson, 47 Conn. App. 542, 557, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998) .” (Internal quotation marks omitted.) State v. Taveras, 49 Conn. App. 639, 652, 716 A.2d 120, cert. denied, 247 Conn. 917, 722 A.2d 809 (1998).

The decision whether to grant a mistrial is within the sound discretion of the trial court. State v. Wooten, supra, 227 Conn. 693; see Practice Book § 42-43, formerly § 887. “The trial court’s exercise of its broad discretion to determine whether a motion for a mistrial should be granted will be reversed on appeal only if that discretion has been abused.” State v. Cruz, 212 Conn. 351, 364, 562 A.2d 1071 (1989). Thus, we afford “every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987); State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982); State v. Jones, 46 Conn. App. 640, 652, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997).

Here, Sweeney’s statement was entirely responsive to the question asked during the state’s direct examination. Following the defendant’s objection, the trial court immediately ordered that the testimony be stricken and instructed the jury to disregard the statement. “It is to be presumed that the jury followed the court’s instructions unless the contrary appears.” State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987); see also State v. Traficonda, 223 Conn. 273, 283, 612 A.2d 45 (1992) (“trial court promptly struck the witness’ response, immediately admonished the jurors to ‘erase it from your minds’ and told them not to consider the statement in their deliberations”). Under the circumstances here, we conclude that the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial.

II

The defendant next claims that the jury improperly found him to be a persistent dangerous felony offender and the trial court improperly sentenced him as such. Specifically, the defendant asserts that his conviction of attempt to commit assault in the first degree is not one of the felonies enumerated in General Statutes § 53a-40 (a) (1). The state concedes that the jury’s finding that the defendant is a persistent dangerous felony offender should be vacated.

General Statutes § 53a-40 (a) provides in relevant part: “A persistent dangerous felony offender is a person who (1) stands convicted of . . . assault in the first degree, and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (A) The crimes enumerated in subdivision (1) of this subsection, murder, or an attempt to commit any of said crimes or murder . . . ,”

“As with any issue of statutory interpretation, our initial guide is the language of the statute itself. . . . Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 756, 674 A.2d 1313 (1996).” (Internal quotation marks omitted.) State v. Ledbetter, 240 Conn. 317, 328, 692 A.2d 713 (1997), citing Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 102, 680 A.2d 1321 (1996). Furthermore, “[b]ecause [§ 53a-40] is a punitive statute, the generally recognized rules of statutory construction normally would require the strictest of interpretations . . . limiting any application of the statute to the words used.” State v. Ledbetter, supra, 330, citing 3 J. Sutherland, Statutory Construction (5th Ed. Singer 1992) §§ 58.02, 59.03, pp. 72, 102.

The plain language of the statute makes clear that attempt crimes are not among those of which a defendant must presently stand convicted to qualify as a persistent dangerous felony offender. Here, the defendant stood convicted of attempted assault in the first degree, which is not a predicate felony enumerated under § 53a-40 (a).

We now turn to the question of whether this improper jury finding mandates a new sentencing hearing. The state claims that the trial court did not actually sentence the defendant as a persistent dangerous felony offender because all the sentences imposed were within the statutory limits and not enhanced beyond those limits as is permitted by § 53a-40 (f). While the trial court did not sentence in excess of the statutory limits, we do not know whether the improper finding played a role in the trial court’s sentencing decision. The perception of fairness should attend all court proceedings. See State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997). In the interest of perceived and actual fairness, we vacate the sentence and remand the case for a new sentencing hearing.

Ill

The defendant next claims that the trial court abused its discretion in denying the defendant’s pretrial motion to sever or, in the alternative, to bifurcate the trial on the fourth count that alleged criminal possession of a pistol in violation of General Statutes § 53a-217. Proof of a prior felony conviction is necessary to prove this count, and the defendant asserts that such evidence would have a prejudicial impact on the jury in its consideration of the other counts. The defendant further maintains that any prejudicial impact was increased because the trial court failed to issue any cautionary instruction to the jury and the defendant himself did not testify. We disagree.

At trial, the defendant stipulated that he was previously convicted of a class B felony on July 13, 1990. The trial court reread the criminal possession of a firearm count to the jury and informed it of the stipulation, but did not give a limiting instruction. The defendant was ultimately convicted on this count.

Our rules of practice allow a trial court to order, sua sponte or upon motion of the defendant, a separate trial of two offenses if it appears that the defendant is prejudiced by the joinder of the offenses. See Practice Book § 41-18, formerly § 828. “The question of severance lies within the discretion of the trial court. We will not disturb the trial court’s conclusion on the issue absent a clear abuse of discretion. The discretion to sever a trial should be exercised only if a joint trial will substantially prejudice the defendant. Substantial prejudice is more than disadvantage and the formidable task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant. State v. Smith, 201 Conn. 659, 669, 519 A.2d 26 (1986); State v. Schroff, 198 Conn. 405, 408, 503 A.2d 167 (1986); State v. Rodgers, 198 Conn. 53, 63, 502 A.2d 360 (1985); State v. Wiggins, 7 Conn. App. 95, 101, 507 A.2d 518 (1986). Simply put, the test to be applied is whether substantial injustice will result if the charges are tried together. State v. King, [187 Conn. 292, 299, 445 A.2d 901 (1982)]; State v. Oliver, 161 Conn. 348, 360-61, 288 A.2d 81 (1971).” (Internal quotation marks omitted.) State v. Banta, 15 Conn. App. 161, 167, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988), quoting State v. Edwards, 10 Conn. App. 503, 506-507, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987).

The trial court correctly applied State v. Banta, supra, 15 Conn. App. 161, in its decision not to sever or bifurcate the count at issue. In Banta, the defendants were charged with violating General Statutes § 53a-217 and each requested that the trial court sever that count for a separate trial. The trial court denied the motions. The Banta defendants likewise claimed that they were substantially prejudiced because proof of a prior felony conviction was an essential element of General Statutes § 53a-217. In determining whether one of the Banta defendants was so prejudiced, this court set forth five factors to evaluate: (1) the manner in which the evidence entered the case and the extent of the jury’s knowledge of the facts underlying the prior felony conviction, (2) the adequacy of any cautionary instructions given by the court, (3) the use of the prior felony evidence by the prosecution in argument to the jury, (4) the likelihood that the prior felony conviction evidence will inflame the passions of the jurors in light of the nature of the offenses charged and (5) the strength of the evidence against the defendant. See State v. Banta, supra, 170-71. We will analyze the defendant’s claim in light of these factors.

A

The first factor requires consideration of the manner in which the evidence of the defendant’s prior felony conviction was entered and how much detail the jury received with respect to this prior conviction. Here, the jury was made aware of the defendant’s prior felony conviction by way of a stipulation through which the jury learned only that the defendant was convicted of a class B felony on July 13, 1990. The jury was not told the nature of the felony or the punishment that the defendant received. This factor does not weigh in the defendant’s favor.

B

The second factor deals with the adequacy of any cautionary instruction given by the trial court. Our review of the record reveals that the trial court did not give any cautionary instruction; however, this in itself does not necessarily indicate that the defendant suffered substantial prejudice so as to require a separate trial. It is only one of the five factors to be weighed by this court in determining whether the trial court should have ordered a separate trial. See id., 171. This factor does weigh in the defendant’s favor.

c

The third factor regards the use of the defendant’s prior felony conviction in the prosecution’s argument to the jury. Here, the prosecutor made a single reference to the conviction during the state’s rebuttal argument. In characterizing Sweeney, the prosecutor stated that “[h]e’s a member of the helping profession. He’s a nurse, he’s a teacher. He’s not a felon with a gun on the street. That’s the stark contrast. You have Sweeney, the teacher, the nurse, the policeman, a member of the helping and healing professions, ladies and gentlemen, and we have the defendant.” During its argument, the prosecutor merely reiterated the bare information that the jury already knew based on the stipulation regarding the defendant’s conviction. Therefore, it is unlikely that this single reference to the defendant’s prior felony status would substantially prejudice the defendant. This factor weighs in favor of the state.

D

The defendant argues that the evidence of his prior felony conviction was likely to inflame the passions of the jurors in light of the nature of the offenses charged and caused the defendant to be unduly prejudiced.

In his brief, the defendant claims that this case was of a “highly inflamed nature” because it “involved a chase on foot between an armed defendant and four police officers, one of whom ended up shooting the defendant.” While this presents a violent factual scenario, the jury had evidence that there was an outstanding arrest warrant for the defendant, that the police had received information that the defendant was standing on a street comer armed with a gun and that the defendant aimed this gun at a police officer. In light of the foregoing, it is not likely that the evidence of the class B felony inflamed the passions of the jury. While evidence of a prior felony conviction may ultimately be disadvantageous to the defendant, it is an essential element of General Statutes § 53a-217. This factor also weighs in the state’s favor.

E

The last factor to be considered is the strength of the evidence against the defendant. As in Banta, the evidence against the defendant in this case “was neither sparse nor unconvincing.” State v. Banta, supra, 15 Conn. App. 172. Here, multiple witnesses testified about the event in question, as discussed in section D of this part. Additional testimony demonstrated that the police recovered the defendant’s loaded gun from the scene with the hammer in the firing position and a round in the chamber. In light of this substantial evidence against the defendant, it is highly unlikely that evidence of the defendant’s prior unnamed felony conviction prejudiced the jury so as to affect the outcome of the case. This factor does not support the defendant’s claim.

Applying all five factors to the circumstances of this case, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion to sever or bifurcate the criminal possession of a pistol count.

IV

The defendant’s last claim is that the trial court improperly rendered judgment convicting him of committing of a class A, B or C felony with a firearm, pursuant to General Statutes § 53-202k. He specifically claims that this statute is not a separate criminal offense, but rather is a sentence enhancement provision. We agree and vacate the defendant’s conviction, but do not disturb the five year consecutive sentence.

As a preliminary matter, the defendant claims that while this issue was not properly preserved for appellate review, it is nonetheless reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We agree.

“Our Supreme Court has recently held that ‘§ 53-202k is a sentence enhancement provision and not a separate crime.’ State v. Dash, 242 Conn. 143, 150, 698 A.2d 297 (1997). In Dash, the court recognized that the defendant’s total effective sentence was proper, but modified the judgment to ‘reflect the fact that § 53-202k does not constitute a separate offense.’ Id. Accordingly, the defendant is entitled to have his conviction under § 53-202k vacated.” State v. Carter, 47 Conn. App. 632, 649, 708 A.2d 213, cert. denied, 244 Conn. 909, 713 A.2d 828 (1998).

Dash and its progeny mandate that the defendant’s conviction under § 53-202k be vacated, but that the sentence imposed be affirmed. Pursuant to § 53-202k, the trial court properly added the mandatory five year enhancement to the defendant’s total sentence. See State v. Dash, supra, 242 Conn. 150.

The judgment is reversed with respect to the separate conviction of violating General Statutes § 53-202k and with respect to the conviction as a persistent dangerous felony offender under General Statutes § 53a-40 (a) and the case is remanded for a new sentencing hearing on all charges.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.....”

       General Statutes § 53a-167c (a) provides in relevant part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) he causes physical injury to such peace officer . . . .”

       General Statutes § 53-202k provides in relevant part: “Any person who commits any class A, B, or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm . . . shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony."

       General Statutes § 53a-217 provides in relevant part.: “A person is guilty of criminal possession of a firearm . . . when he possesses a firearm . . . and has been convicted of ... a class A felony ... a class B felony . . . a class C felony . . . .”

       General Statutes § 53a-40 (a) provides in relevant part: “A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, aggravated sexual assault in the first degree, sexual assault in the third degree with a firearm, robbery in the first or second degree, or assault in the first degree, and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (A) The crimes enumerated in subdivision (1) of this subsection, murder, or an attempt to commit any of said crimes or murder . . . .”

       General Statutes § 53a.-40 (b) provides in relevant part: “A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year ... in this state . . . for a crime. . .

       The defendant raised no issues with respect to the judgment of conviction of violation of probation. We therefore dismiss the appeal as to that judgment See Practice Book § 63-4 (a) (1).

       Prior to the commencement of evidence at trial, the trial court granted the defendant’s motion in limine, which prohibited the prosecution from eliciting testimony by the state’s witnesses regarding why the police were looking for the defendant to question him in connection with a murder investigation. The prosecution then instructed its witnesses accordingly.
      Upon calling its first witness, the state attempted to introduce a copy of the outstanding arrest warrant for the defendant. The defense objected and made a motion for the warrant to be redacted to omit the crimes charged. The trial court granted the motion. Shortly thereafter, the defendant made a motion to expand the scope of the motion in limine. The following colloquy ensued, excerpted from the trial transcript:
      “[Defense Counsel]: [M]aybe I should make a motion to extend the scope of my motion in limine just to prevent any eliciting of any information regarding any of the substantive charges that were the subject of the arrest warrant in addition to the murder inquiry ....
      “[Assistant State’s Attorney]: I wasn’t going to make a reference to it based on Your Honor’s ruling. I understand not only did Your Honor technically make a ruling but there was a spirit to that ruling, and I will observe and follow that ruling.
      “The Court: All right. . . .”

       “Q. You said just a moment ago thatyou had information that the suspect, the defendant, Travis Davis, was to be considered armed and dangerous. Do you know why?
      “A. Yes, I do.
      “Q. Why is that, sir?

        “A. We had received information and I also overheard detectives talking that evening that this person was in possession of a gun and that there were statements made that he wasn’t going to be taken easy. We had received telephone calls that this person was committing armed robberies and—
      “[Defense Counsel]: Objection, Your Honor.
      “The Court: Sustain the objection. The answer is stricken. The jury is to disregard that comment.”

       The defendant invokes both the United States constitution and the constitution of the state of Connecticut in support of his claims in his brief. He has not, however, provided any independent analysis of the state constitutional claims. We therefore decline to review them. See State v. Christiano, 228 Conn. 456, 466 n.10, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994); see also State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       Practice Book § 42-43, formerly § 887, provides in relevant part: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. . . .”

       The state does not concede that the trial court actually sentenced the defendant as a persistent dangerous felony offender.

       The defendant also was found to be a persistent serious felony offender. He does not, however, challenge that finding.

       General Statutes § 53a-40 ©provides: “When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1, 1981, shall sentence such person to a term of imprisonment of not more than forty years and, if such person has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the crimes enumerated in subdivision (2) of subsection (a) of this section, sentence such person to a term of imprisonment of not more than life.”

       See footnote 4.

       The Banta defendants were also being tried on a charge of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4).

       Additionally, the transcript reveals that the defendant stated that he had no exceptions to the trial court’s charge to the jury, which included no caution to the jury that the prior felony evidence should not be used for any purpose other than proving an essential element of the crime of criminal possession of a pistol.

       See footnote 3.

       The state concedes that the defendant’s conviction under General Statutes § 53-202k should be vacated because this statute is not a separate criminal offense. The state argues, however, that the five year consecutive sentence imposed on the defendant pursuant to § 53-202k was proper.

       See footnote 12.

       The mandatory five year sentence pursuant to General Statutes § 53-2021c shall be imposed consecutively as directed by that statute.