text:
    State of Connecticut v. Michael D. Williams
    (13063)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued September 30
    decision released December 8, 1987

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Mitchell Brody, deputy assistant state’s attorney, with whom, on the brief, was Edward Ricciardi, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issues on this appeal are the validity of the defendant’s waiver of a trial by jury and the constitutionality of General Statutes § 53a-167a, which proscribes interfering with a police officer. The trial court found the defendant, Michael D. Williams, guilty on both counts of a substitute information charging him with burglary in the second degree in violation of General Statutes § 53a-102 and interfering with an officer by resisting arrest in violation of General Statutes § 53a-167a. He appeals from the ensuing judgment sentencing him to a term of imprisonment of seven years and four months followed by three years of probation. We find no reversible error.

The trial court could reasonably have found the following facts: On March 24,1984, between 8:30 and 9:30 p.m., the defendant entered a house in Waterbury where the victim was visiting with friends. The defendant was looking for a buyer for his tape player, for which he wanted $40. The victim agreed to buy the tape player and asked the defendant to accompany her to her home on North Main Street to get the money. Upon arrival, while the defendant was in the bathroom, the victim got the money from her bedroom, where it had been hidden under a mattress. After receiving the money in exchange for the tape player, the defendant departed.

Between 3:30 and 4 a.m. the following morning, the victim was woken by the sound of scraping metal and, from her bed, saw an individual leaning over the table in her partially illuminated kitchen. When she screamed, the intruder turned to face her. She observed a black man wearing a blue jacket, gray pants, a lightly colored hat and sunshades. The victim called the police and gave them a description of the intruder. When the police arrived, they discovered the kitchen door open, and its lock on the floor along with wooden splinters.

In response to this burglary, the police broadcast a description of the intruder’s race, height and clothing. Having heard the broadcast, Patrolmen Nicholas Giordano and Renzo Anzalone stopped the defendant on East Farm Street because he appeared to match the description. Giordano so informed the defendant, told him he could not leave, and asked him to wait in the police car until another officer arrived for a further identification. The defendant refused to comply with Giordano’s request. Increasingly “out of control,” he started to swear at the police officers and, in a crescendo, to protest his detention. Observing that the noise had attracted onlookers, the patrolmen decided that the defendant was causing a disturbance and arrested him for breach of the peace. Following standard police procedures, they attempted to handcuff the defendant but he had become “totally out of control” and had to be forcibly “subdued.”

Having been notified of the defendant’s detention, Patrolman Douglas Moran, who had gone to the victim’s house in response to her call, brought her to East Farm Street where she identified the defendant as the intruder. Although the victim did not immediately recognize the defendant as the man who had sold her the tape player, she called the police later that day to apprise them of that fact.

On this basis, the trial court concluded that the defendant had been proven guilty of burglary in the second degree, in violation of General Statutes § 53a-102 (a), because the defendant had entered the victim’s house, during the night, with the intention of committing a crime therein. In view of the police officers’ testimony that the defendant “had to be subdued when he learned that someone was on the way,” the court also found the defendant guilty of interfering with an officer by resisting arrest in violation of General Statutes § 53a-167a (a).

On appeal from the judgment against him, the defendant has raised seven claims of error. He claims that the trial court erred in: (1) accepting his waiver of a jury trial under the original information; (2) not giving him the opportunity to reconsider his waiver of a jury trial with regard to a substitute information charging him with second degree burglary; (3) convicting him of interfering with an officer under General Statutes § 53a-167a, which is unconstitutionally vague or overbroad; (4) finding sufficient evidence of physical resistance to convict under General Statutes § 53a-167a; (5) admitting out-of-court and in-court identifications, with respect to the burglary, that were the fruit of his illegal arrest for breach of the peace; (6) convicting him of a violation of General Statutes § 53a-167a despite his allegation that his resistance to the illegal arrest was justified; and (7) sentencing him without a continuance to permit inquiry into a delayed presen-tence investigation report and in reliance on inaccurate information. We find no reversible error.

I

Before reaching the merits of the defendant’s claims of error, we must address the state’s contention that the defendant failed to raise most of these claims in a timely fashion at his trial. The defendant acknowledges tins procedural infirmity with regard to his claims regarding the validity of his waiver of a jury trial, the constitutionality of General Statutes § 53a-167a, the admissibility of the identifications as the fruit of an illegal arrest for breach of the peace, and the improper reliance on inaccurate information at sentencing.

While we ordinarily need not review issues raised for the first time on appeal, we have long held that appellate consideration is proper for claims that implicate fundamental constitutional rights and a fair trial, and are adequately supported by the record. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The state concedes that the issues belatedly raised by the defendant facially implicate rights guaranteed by the sixth, first, fourth and fourteenth amendments to the United States constitution as well as article first, §§ 8,19,15, and 7 of the Connecticut constitution. These issues therefore merit appellate review to determine whether the defendant’s constitutional rights have been violated. See, e.g., State v. McIver, 201 Conn. 559, 563, 518 A.2d 1368 (1986) (reviewing the admissibility of statements that were arguably the fruit of an illegal arrest); State v. Marino, 190 Conn. 639, 642, 462 A.2d 1021 (1983) (reviewing the validity of a waiver of the right to a jury trial).

II

The defendant has raised two claims of error challenging the validity of his waiver of his constitutional right to a jury trial. His first claim is that the trial court erred in concluding that he had knowingly and intelligently elected a court trial in response to the original information charging him with first degree burglary and interfering with an officer by resisting arrest. His second claim is that he was denied the right to a jury trial on the substituted charge of burglary in the second degree. Neither of these claims was raised at trial. We find no error.

The principles that govern waiver of a right to a jury trial are not in dispute. “The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be ‘knowing and intelligent as well as voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 74 L. Ed. 854 (1930).” State v. Marino, supra, 643; see State v. Shockley, 188 Conn. 697, 705-707, 453 A.2d 441 (1982). Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right. State v. Shockley, supra, 706; State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978). This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. State v. Shockley, supra, 707; see Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. State v. Shockley, supra; see Adams v. United States ex rel. McCann, 317 U.S. 269, 278, 63 S. Ct. 236, 87 L. Ed. 268 (1942). When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book. General Statutes § 54-82b; Practice Book §§ 839, 4185; State v. Marino, supra; State v. Shockley, supra, 713.

Applying these principles in this case, we note, with respect to the propriety of the defendant’s initial waiver of his right to a jury trial, that the record discloses an extensive colloquy between the trial court and the defendant. At a pretrial hearing, the defendant informed the court that he wished to withdraw an earlier election of a jury trial and to have a court trial instead. When the defendant gave his desire for an early trial as his reason for his change of election, the court refused to accede to this request. The court explained to the defendant that he was entitled to a speedy trial as well as to a jury trial and that the court would not be able to give the defendant a definite trial date for either a court trial or a jury trial. After a further consultation between the defendant and his counsel, counsel informed the court that the defendant continued to desire to elect a court trial. The trial court reiterated its disinclination to permit a waiver of a jury trial that was based on the “speculation” that a court trial would occur sooner than a jury trial. The defendant himself then responded that the reason for his election was his belief that the court would consider the evidence more closely than a jury, whereupon the court remarked that that was a “good reason” and subsequently accepted the defendant’s waiver of a jury trial.

The defendant contends that, in order to ensure that his waiver was knowing and intelligent, the court should have explored further the defendant’s reasons for waiving a jury trial before accepting his election of a court trial. The record is deficient, according to the defendant, because the court should have recognized the likelihood that the defendant’s second reason for electing a court trial was merely pretextual. At the very least, the defendant maintains, the court should have considered the possibility that his offer of two conflicting reasons for his waiver was evidence that he did not knowingly and intelligently waive his rights. We are not persuaded.

The record of waiver in this case demonstrates, in our view, a defendant who vigorously and knowingly persisted in articulating a preference for a court trial. The fact that his first reason for such a preference was unpersuasive does not require a court to discount a second reason that was, on its face, entirely appropriate. That the defendant, after consultation with counsel, offered a different, but not inconsistent, reason for electing a court trial does not of itself call into question the defendant’s ability to understand the implications of his waiver. To the contrary, such rethinking suggests that the defendant understood the explanations that he received from the court and from his counsel. While the presence of counsel does not automatically guarantee that a defendant’s constitutional interests and rights will be protected, it is a “ ‘factor to be considered in determining the question of the need for or sufficiency of any admonition given by the court.’ ” State v. Shockley, supra, 708, quoting Neller v. State, 79 N.M. 528, 534, 445 P.2d 949 (1968). The defendant was not a newcomer to the criminal justice system. See State v. Williams, 202 Conn. 349, 521 A.2d 150 (1987). Finally, there is no evidence to suggest that the defendant was not of ordinary intelligence or educational background. See State v. Crump, 201 Conn. 489, 504-505, 518 A.2d 378 (1986); State v. Marino, supra, 646. In the circumstances of this case, we therefore conclude that the defendant knowingly and intelligently waived his right to a trial by jury.

The defendant next claims that, whatever the validity of his election of a court trial on the original information, his right to a jury trial revived when the state substituted a new information charging him with burglary in the second degree under General Statutes § 53a-102 rather than burglary in the first degree under General Statutes § 53a-101. Because burglary in the second degree requires proof that the burglary occurred at night, that crime is not a lesser included offense of burglary in the first degree. Despite the absence of formal proceedings putting the defendant to a new plea, his trial proceeded without objection on the substitute information.

This court has not previously decided under what circumstances a defendant, subsequent to the rendition of an adverse judgment, may complain about the failure to advise him of his right to a jury trial on a substitute information charging him with a lesser offense. In State v. Marino, supra, 643, citing State v. Shockley, supra, 713, we noted that “[a] mere deviation from [the procedures prescribed by General Statutes § 54-82b and Practice Book § 839] would not in itself constitute a claim of constitutional error eligible for appellate review sufficient to overcome our general prohibition against raising on appeal issues never presented to the trial court.” In State v. Shockley, supra, we had concluded that there was no constitutional error, given a valid initial waiver, when a defendant on a substitute information, in disregard of the requirements of the statute and the Practice Book, was advised by a court clerk, rather than by a judge, of his right to a trial by jury. We conclude that the failure to observe the requirements of the statute and the Practice Book in the present circumstances is similarly not of constitutional dimension. This conclusion is reinforced by the defendant’s omission, even on appeal, of a fully reasoned constitutional complaint regarding the trial court’s failure to put him to plea on the substitute information. Cf. State v. Jones, 166 Conn. 620, 628-29, 353 A.2d 764 (1974); State v. Lorusso, 151 Conn. 189, 191-92,195 A.2d 429 (1963). As we noted in Shockley, the better practice would, of course, have been to have the judge conduct a new inquiry to determine whether the substituted charge altered the defendant’s election of a court trial. Nonetheless, as a constitutional matter, “a valid waiver may still be found in a given case if the record affirmatively discloses that the defendant intelligently and knowingly did waive his right to a trial by jury.” State v. Shockley, supra, 711.

The issue before us, therefore, is whether, in light of the totality of the circumstances, the state has proven the validity of the defendant’s waiver of a jury trial with regard to the crime charged in the substitute information. The defendant argues that his initial waiver of a jury trial did not extend to the substituted charge because of two differences between burglary in the first degree and burglary in the second degree. Only burglary in the second degree requires proof that the offense occurred at night. Only burglary in the first degree requires proof of the use of a weapon. Awareness of these differences, according to the defendant, might have led him to reconsider his election of a court trial. We are not persuaded.

The reason given by the defendant for his election of a court trial was that he believed the court would consider the evidence more closely than would a jury. Nothing on the record suggests that the time of the occurrence of the crime played any role whatsoever in the defendant’s election. It would similarly be speculative to attribute special importance to the deletion of the use of a weapon as an element of the lesser crime charged. The fact that the substitute information charged a less serious crime, and hence exposed the defendant to lesser sanctions, does not undermine the validity of his election. For crimes that stand in the technical relationship of lesser included crimes, no new election would have been required because a defendant is deemed to be on notice that a charge of the more serious offense encompasses the lesser offenses. See State v. Martin, 187 Conn. 216, 219, 445 A.2d 585 (1982); State v. Jacobowitz, 182 Conn. 585, 591, 438 A.2d 792 (1981). In the circumstances of this case, we see no distinction between a substitute information charging a lesser crime and one charging a lesser included offense.

The state urges us to consider criminal proceedings as a single process during which a waiver of the right to a jury trial automatically remains in force for all substituted charges. We are unwilling to adopt so broad a rule. We are necessarily engaged in a fact-specific inquiry, when we determine whether, in a given case, the record discloses an intelligent and knowing waiver of a right to a jury trial. On the facts of this case, given the defendant’s failure to make a timely objection at trial, we hold that his waiver of a jury trial encompassed not only the original charge of first degree burglary under General Statutes § 53a-101 but also the substituted charge of burglary in the second degree under General Statutes § 53a-102. On this record, the trial court did not err in conducting a court trial rather than a jury trial to determine the defendant’s guilt.

Ill

The defendant challenges his conviction for interfering with an officer in violation of General Statutes § 53a-167a on several grounds implicating the first and fourteenth amendments to the United States constitution. Section 53a-167a provides: “interfering with an officer: class a misdemeanor, (a) A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.” The defendant maintains that (1) the state failed to adduce sufficient evidence that he physically interfered with a police officer, and (2) even if his conduct can be found to have constituted physical interference, § 53a-167a is on its face unconstitutionally vague or overbroad. We are unpersuaded by either of these claims of error.

At the outset, it is helpful to review the circumstances surrounding the defendant’s detention. According to Patrolman Giordano’s testimony, he and Patrolman Anzalone encountered and detained the defendant on a street not far from the victim’s house approximately one hour after the burglary had occurred. When they stopped the defendant, they informed him that he fit the description of a burglary suspect and would have to wait until another officer arrived for an identification. We note that the defendant does not challenge his detention by the police on the ground that it exceeded the permissible limits of an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The temporal and spatial proximity of the detention to the crime, as well as the defendant’s physical conformity with the broadcast description warranted detaining the defendant temporarily to allow the victim an opportunity to identify him as the intruder in her apartment. See State v. Aillon, 202 Conn. 385, 398-401, 521 A.2d 555 (1987); State v. Aversa, 197 Conn. 685, 691-92, 501 A.2d 370 (1985). This evidence establishes that the police were acting lawfully in originally detaining the defendant. Giordano further testified that when the defendant’s loud protestations against his detention attracted onlookers, the patrolmen decided to arrest him for breach of the peace. The defendant reacted with such vehemence that the police had to subdue him forcibly. This response on the part of the defendant led to his subsequent conviction for interfering with an officer by resisting arrest.

A

We address first the defendant’s evidentiary challenge to his conviction under § 53a-167a, because our conclusion on this claim of error will provide a frame of reference for consideration of the defendant’s constitutional claims. The defendant contends that he was in fact convicted for exercising his right of free speech because there was insufficient evidence that he had physically resisted arrest. The state maintains, and we agree, that it proved, beyond a reasonable doubt, that the defendant’s resistance to the arrest was physical.

The standard for evaluating a claim based on insufficiency of the evidence is well established: “ ‘This court will construe the evidence in the light most favorable to sustaining the trial court’s verdict and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom . . . .’ ” State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984); State v. D’Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982); State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981). Our role is to determine “whether the facts supported reasonable inferences allowing the trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.” State v. Vincent, supra; State v. Haddad, 189 Conn. 383,387-90,456 A.2d 316 (1983).

Applying this standard to the record before us, we conclude that it reasonably supports the trial court’s conclusion that the defendant was guilty beyond a reasonable doubt of interfering with an officer by resisting arrest. The defendant maintains that Giordano’s testimony that, upon being informed of his arrest for breach of the peace, the defendant had to be forcefully subdued does not support the inference that the defendant physically resisted arrest. We find this contention untenable on its face. The patrolmen’s resort to force, coupled with the testimony that the defendant had become “totally out of control,” warrants the conclusion that the defendant was struggling to avoid being handcuffed. Interpreting the evidence most favorably towards the prosecution, we conclude that the trial court could reasonably have found beyond a reasonable doubt that the defendant physically resisted arrest.

B

We turn next to the defendant’s vagueness challenge to § 53a-167a. Under the requirements of due process of law mandated by our federal and state constitutions, “ ‘a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid.’ ” State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987); State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980); see Buckley v. Valeo, 424 U.S. 1, 77, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984). “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926); State v. Eason, supra; State v. Pickering, supra, 60.

Where a vague statute implicates the right of free speech, it tends to inhibit the exercise of that right. “Ambiguous meanings cause citizens to ‘ “steer far wider of the unlawful zone” . . . than if the boundaries of the forbidden areas were clearly marked.’ ” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.6, 102 S. Ct. 1186, 71 L. Ed. 2d 362, reh. denied, 456 U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982), quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964). “ ‘Due to this “chilling effect” which vague statutes can exert on first amendment liberties . . . when those freedoms are at stake, the statute’s constitutionality is tested for vagueness on its face.’ ” State v. Proto, supra, 697; State v. Pickering, supra, 58 n.3; see Grayned v. Rockford, 408 U.S. 104,108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Thus, the defendant in this case “ ‘may challenge the validity of a statute’s application to marginal situations even though [his] own conduct may clearly fall within the statute’s proscriptions.’ ” State v. Proto, supra; State v. Pickering, supra; see Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964); NAACP v. Button, 371 U.S. 415, 432-33, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963).

Evaluating § 53a-167a on its face, we conclude that the statute is not unconstitutionally vague. By its own terms, the statue defines “interfering” to include obstruction, resistance, hindrance, or endangerment. Accordingly, a reasonable interpretation of the statute confines its scope to conduct that amounts to meddling in or hampering the activities of the police in the performance of their duties. The statute has been so construed by the Appellate Court. State v. Beckenbach, 1 Conn. App. 669, 679, 476 A.2d 591 (1984), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985); see also State v. Biller, 5 Conn. App. 616, 621, 501 A.2d 1218 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146 (1986). Furthermore, the conduct that the statute proscribes is limited to action intended to obstruct the police in the performance of their duties. State v. Beckenbach, supra; cf. State v. Cavallo, 200 Conn. 664, 668-69, 513 A.2d 646 (1986). In light of these facially reasonable constraints on the scope of § 53a-167a, the statute, on its face, meets the constitutional requirements of fair notice.

Without contesting the reasonableness of this analysis of the conduct proscribed by § 53a-167a, the defendant advances two reasons why we should find the statute unconstitutionally vague. He maintains that the statute is impermissibly ambiguous in failing to make clear whether it governs verbal as well as physical conduct and, if it encompasses speech, in failing to provide standards for the police and the courts. We are not persuaded.

We interpret § 53a-167a to cover some acts of verbal resistance as well as acts of physical resistance. Although the statute does not explicitly define the nature of the acts that fall within its ambit, “resistance,” as commonly understood, encompasses both verbal and physical conduct. Cf. State v. Cavallo, supra, 668. The inclusion of verbal conduct does not, per se, leave the statute so open-ended that it lends itself to arbitrary enforcement. The statute’s requirement of intent limits its application to verbal conduct intended to interfere with a police officer and excludes situations in which a defendant merely questions a police officer’s authority or protests his or her action. We conclude, therefore, that General Statutes § 53a-167a is not unconstitutionally vague.

C

The defendant contends, in the alternative, that General Statutes § 53a-167a is fatally overbroad. “A clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” Grayned, v. Rockford, supra, 114. A single impermissible application of a statute, however, will not be sufficient to invalidate the statute on its face; rather, to be invalid, a statute must reach “ ‘a substantial amount of constitutionally protected conduct.’ ” Houston v. Hill, 482 U.S. 451, 458, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987); Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra, 494; see State v. Proto, supra, 707.

In Houston v. Hill, supra, the United States Supreme Court struck down on overbreadth grounds a Houston ordinance that made it unlawful “ ‘for any person to assault, strike or in any manner oppose, molest, abuse, or interrupt any policeman in the execution of his duty. . . .’” Id., 461. Among the factors it considered controlling were the broad sweep of the statute’s language, which prohibited interfering with a police officer “in any manner,” and the statute’s resistance to being construed to proscribe only “fighting words.” Id., 462-63. The record in Houston v. Hill, in addition, contained ample evidence that the statute had been applied in many instances to persons who were doing nothing more than talking or arguing with the police, and thus demonstrated that the ordinance had a significant potential for unconstitutional application. Id., 457-58 and nn.5 and 6.

The record in the case before us, in contrast, discloses that § 53a-167a creates no such danger. The circumstances surrounding the defendant’s original detention reveal that the police were acting lawfully within the scope of their duties. The defendant has provided no evidence that in other instances the statute has been applied to conduct arguably falling within the protection afforded by the first amendment to the United States constitution or article first, § 5, of the Connecticut constitution.

Moreover, unlike the United States Supreme Court, this court has the power to construe state statutes narrowly to comport with the constitutional right of free speech. See Moscone v. Manson, 185 Conn. 124,130-31, 440 A.2d 848 (1981); Engle v. Personnel Appeal Board, 175 Conn. 127, 134, 394 A.2d 731 (1978); see also Grayned v. Rockford, supra, 110; Shuttleworth v. Birmingham, 382 U.S. 87, 91, 86 S. Ct. 211,15 L. Ed. 2d 176 (1965). To avoid the risk of constitutional infirmity, we construe § 53a-167a to proscribe only physical conduct and fighting words that “ ‘ “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” ’ ” Houston v. Hill, supra, 461-62; Lewis v. New Orleans, 415 U.S. 130, 133, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 525, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972); see Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). By its terms, § 53a-167a is directed only at conduct that interferes with police and firemen in the performance of their duties. As we have said earlier, it encompasses only interference that is intentional. Cf. State v. Proto, supra, 707. This limiting construction, which we deem to be fully consistent with the intent of the legislature, preserves the statute’s purpose to proscribe “core criminal conduct” that is not constitutionally protected. Cf. Houston v. Hill, supra, 468. We conclude that the statute, so construed, is not impermissibly overbroad.

IV

We turn next to the defendant’s claim that his arrest for breach of the peace under General Statutes § 53a-181 was illegal. From this premise, he argues that the trial court erroneously admitted into evidence the victim’s out-of-court and in-court identifications of him, which should have been excluded as the fruit of his illegal arrest. Furthermore, the defendant maintains that, because his arrest was illegal, his resistance was lawful and did not fall within the proscription of General Statutes § 53a-167a. Since we disagree with the premise, we need not address the specific claims that flow therefrom.

The legality of the defendant’s arrest depends upon whether the police had probable cause to believe that the crime of breach of the peace had been committed and that thé defendant had committed it. See State v. Asherman, 193 Conn. 695, 705, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050,105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). The defendant concedes that, if there was probable cause to believe that a breach of the peace was being committed, then it was the defendant who committed it. He focuses, therefore, on the question of whether the record supports a finding that the police had a reasonable basis for their belief that a breach of the peace had occurred.

Relying on State v. Nelson, 38 Conn. Sup. 349, 353, 448 A.2d 214 (1982), which construed § 53a-181 (a) (5) narrowly to conform with the right of free speech, the defendant argues that there was insufficient evidence to show that his “swearing” and “getting loud” amounted to “fighting words” or words having sexually offensive connotations within the scope of § 53a-181 (a) (5). See State v. Nelson, supra, 352-53. The relevant testimony is that of the arresting officer, Giordano, who stated that he relied on a number of circumstances that led to the arrest: The defendant was “getting loud” and “swearing” at the police officers; it was four o’clock in the morning; people were watching the incident from across the street; and the defendant was “creating a disturbance.”

We are persuaded that, in these circumstances, Giordano and Anzalone had probable cause to arrest the defendant. The defendant’s argument of insufficiency of the evidence would have greater persuasiveness if the issue were his guilt or innocence of the crime of breach of the peace. The standard for sufficiency of the evidence to convict is higher than the standard that governs a police officer’s determination of probable cause. State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983); see Adams v. Williams, 407 U.S. 143, 148-49,92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). Applying the lesser standard that is appropriate for present purposes, we conclude that the state has established a reasonable foundation for the arresting officers’ belief that the defendant’s loud protestations and swearing were “fighting words” in violation of § 53a-181 (a) (5). The record therefore establishes the legality of the defendant’s arrest.

y

The defendant’s final claims involve improprieties that occurred at his sentencing. The defendant claims that the trial court erred in failing to delay sentencing for the twenty-four hour period mandated by Practice Book § 915 when it was discovered that defense counsel had failed to receive the presentence investigation (PSI) report in a timely fashion. Furthermore, the defendant argues that, in sentencing the defendant, the trial court relied on inaccurate information about the defendant’s employment history and about the circumstances surrounding the defendant’s previous conviction for robbery. We find no reversible error.

Neither party disputes the facts underlying the first claim. Defense counsel received the PSI report on the morning of the date set for sentencing. Upon examining the report, defense counsel discovered two inaccuracies. The report omitted the fact that the defendant had been gainfully employed at the time of the burglary. In addition, the report referred to a knife found at the victim’s apartment, in disregard of proceedings prior to trial in which the knife had been excluded from evidence because the state had been unable to connect it with the defendant. On the basis of this misinformation, defense counsel unsuccessfully sought a continuance. The court instead stated that, for the purposes of sentencing, it would accept defense counsel’s representations regarding the inaccuracies.

The trial court’s ruling did not conform with the requirements of Practice Book § 915. That section states that the PSI report is to be provided to the defendant or his counsel “in sufficient time ... to prepare adequately for the sentencing hearing, and in any event, no less than twenty-four hours prior to the date of the sentencing. Upon request of the defendant, the sentencing hearing shall be continued for a reasonable time if the judicial authority finds that the defendant or his counsel did not receive the presentence investigation report within such time.” As with other similar language in other sections of the Practice Book, the requirement of § 915 that, in the absence of a timely PSI report, “the sentencing hearing shall be continued” (emphasis added) was intended to establish a procedural rule that is mandatory and not directory. See State v. Cook, 183 Conn. 520, 522-23, 441 A.2d 41 (1981). We note, furthermore, that the defendant’s entitlement to a twenty-four hour continuance does not depend upon his ability immediately to detect inaccuracies on the face of the PSI report. Such a limitation would defeat the purpose of § 915, which is designed to afford a defendant a reasonable period of time to uncover errors or omissions that might not be apparent from an initial reading of the report.

We conclude, however, that under the circumstances of this case, the trial court’s error was harmless. To this day, the defendant has pointed to no evidence either in or dehors the trial record to substantiate his allegation that a twenty-four hour continuance would have enabled him to uncover information that would have resulted in the trial court’s imposing a different sentence. The defendant has consequently failed to show that he was prejudiced by the trial court’s erroneous ruling.

The defendant’s final claim is that the trial court, in sentencing the defendant, unfairly relied on inaccurate information. According to the defendant, the trial court, despite being corrected by the defendant, continued to assume erroneously that the defendant was unemployed at the time of his commission of the underlying offense. In support of this claim, the defendant alludes to a statement by the court prior to sentencing the defendant in which it admonished the defendant that, “I think you ought to get a job and stay with it, there is a lot more profit in that than what you have been doing.” In addition, the defendant contends that the court relied on a misrepresentation in the PSI report regarding the severity of an injury to the victim in an earlier incident that had resulted in the defendant’s previous conviction for robbery. The trial court’s reliance on these inaccuracies, in the defendant’s view, warrants our setting aside his sentence and remanding the case for a new sentencing hearing. We are not persuaded.

The record clearly discloses that the central concern of the trial court in sentencing the defendant was the defendant’s history of violent conduct toward women. The trial court stated, “[W]hat bothers me is that your client has a history of attacking and robbing women.” The trial court, moreover, noted the defendant’s failure to learn any lessons from his prior confinement. Reviewing the record as a whole, we conclude that the trial court did not rely on the inaccuracies alleged by the defendant.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-167a. interfering with an officer: CLASS A MISDEMEANOR, (a) A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       “[General Statutes] Sec. 53a-102. burglary in the second degree: class C felony, (a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       “[General Statutes] Sec. 53a-101. burglary in the first degree: class B felony, (a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.
      “(b) An act shall be deemed ‘in the course of committing’ the offense if it occurs in an attempt to commit the offense or flight after the attempt or commission.
      “(c) Burglary in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       The cases from other jurisdictions that the defendant cites do not suggest otherwise. In People v. Sanders, 191 Cal. App. 3d 79, 236 Cal. Rptr. 197, 199 (1987), the court held that the defendant’s right to a jury trial was violated when the defendant, after having waived his right to a jury trial in exchange for the dismissal of one count of the information, was convicted on a substitute information containing the same count that had earlier been dropped. Sanders, unlike the case before us, involved an information to which a count had been added rather than a substituted count. People v. Walker, 170 Cal. App. 2d 159, 338 P.2d 536 (1959), is likewise inapposite as it involved the substitution of a more serious charge for the charge to which the defendant had already waived a jury trial, rather than a lesser charge.
      The defendant additionally places emphasis on the trial court’s comment to the defendant during the initial waiver colloquy that, “You won’t be able to switch back at a later time to a trial by jury.” The context of the comment reveals that it was intended to apply only to the initial information upon which the defendant was electing a court trial and to the time that the case was ready to go to trial. Defense counsel, who was present throughout, had the opportunity to dispel any confusion arising from the statement.

       The state relies on Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497,102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982), to argue that to challenge a statute on vagueness grounds, a defendant “must demonstrate that the law is impermissibly vague in all of its applications.” In that case, however, the challenged statute unlike the statute before us did not directly implicate the right of free speech. See id., 495 n.7, 495-97.

       This narrow construction is required by the constitutional right of free speech even though a broader construction of “verbal conduct intended to interfere with a police officer” to which we referred in our earlier discussion of vagueness would constitutionally suffice for the latter purpose.

       Accordingly, the “fighting words” exception may “require a narrower application in cases involving words addressed to a police officer, because ‘a properly trained officer may reasonably be expected to “exercise a higher degree of restraint” than the average citizen, and thus be less likely to respond belligerently to “fighting words.” ’ ” Houston v. Hill, 482 U.S. 451, 462, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987), quoting Lewis v. New Orleans, 415 U.S. 130,135, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974) (Powell, J., concurring).

       In support of this claim, the defendant contends that General Statutes § 53a-23, which provides that “[a] person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer,” does not proscribe nonforceful resistance. We do not reach this issue.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Web Press Services Corporation v. New London Motors, Inc.
    (12833)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued October 8
    decision released December 8, 1987

      Jacques J. Parenteau, for the appellant (plaintiff).

      Lloyd L. Langhammer, for the appellee (defendant).
   Covello, J.

The plaintiff, Web Press Services Corporation, sued the defendant, New London Motors, Inc., in a five count complaint for damages arising out of its purchase of an automobile. The complaint alleged the following: (1) the revocation of the acceptance of commercial goods; (2) breach of an implied warranty of merchantability; (3) breach of an implied warranty of fitness for a particular purpose; (4) breach of express warranties; and (5) unfair and deceptive practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA). The court, Edelberg, J., found the issues for the defendant on the first, second, third and fifth counts and rendered judgment for the plaintiff to recover $300 on the fourth count. The plaintiff appealed.

In Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 525 A.2d 57 (1987), we found no error with respect to the first four counts of the complaint but remanded the matter for an articulation of the factual basis and legal standard employed by the court in rejecting the CUTPA claim. Upon further review of the matter as articulated, we conclude that the trial court correctly found that there was no CUTPA violation and we therefore find no error.

The court found that on July 12, 1984, the plaintiff purchased a used 1980 Ford Bronco from the defendant. The sales price was $7995. It had been driven 37,601 miles. The vehicle was intended for the use of the son of the plaintiff’s president for transportation to his summer job and for his pleasure use. The defendant’s agent represented that the vehicle was in good condition and stated that it was “excellent,” in “mint” condition, and that it was an “unusual” one. The purchase order signed by the plaintiffs treasurer contained a thirty day limited warranty for one half the cost of repairs. It also contained, in bold type, a disclaimer by the defendant of “all warranties, either express or implied, including any implied warranty of merchant ability [sic].”

Prior to its purchase, the plaintiff’s agents removed the vehicle from the defendant’s premises, had it inspected, and returned it to the defendant with a list of items to be repaired. The defendant’s agents completed the requested work without charge.

After the sale, several problems, mostly minor, developed as the vehicle was being used. These included a rear axle malfunction which necessitated the installation of new gears in the rear axle. Again, the defendant’s agents completed the repairs without charge. The rear axle subsequently proved defective and on September 20, 1984, it again malfunctioned. The cost of repairing the axle was found to be $600. The plaintiff’s president thereupon demanded that the defendant take back the vehicle and refund the purchase price. The defendant refused.

The court also found that the plaintiff wanted a vehicle that the president’s son could drive on sand. The son installed four spotlights on the roof of the vehicle so that at night he could have illumination of the beach for a distance of four miles. The court was “of the opinion that the son was less than candid as to the number of times he drove on the beach . . . .” “[T]he court was [further] of the opinion that the plaintiff made some contribution to the mechanical problems of the vehicle.”

The plaintiff claims on appeal that the statements made by the defendant’s agent coupled with its subsequent failure to return the purchase price constituted deceptive acts or practices in violation of CUTPA. “For guidance in determining what may constitute unfair or deceptive acts or practices, [the enabling Connecticut legislation] directs us to the ‘interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. [§] 45 (a) (l)) ... as from time to time amended.’ General Statutes § 42-110b (b).” Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 533, 461 A.2d 1369 (1983).

In FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972), the United States Supreme Court construed the Federal Trade Commission Act. In so doing, it cited three factors adopted by the Federal Trade Commission itself in determining whether a practice, while not deceptive, is nonetheless unfair. These factors were “ ‘(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’ ” Id., 244-45 n.5.

In its articulation, the trial court considered the three factors set forth in FTC v. Sperry & Hutchinson Co., supra, and concluded that the defendant’s representations did not offend public policy nor were they immoral, unethical, oppressive or unscrupulous (the substance of the first two factors). As predicate findings, the trial court determined that the representations were not significant ones, that favorable comments by sellers with respect to their products are universally accepted and expected in the market place, and that the representations here were mere “puffing.” Web Press Services Corporation v. New London Motors, Inc., supra, 351-52.

Although these predicate findings are themselves conclusory, they are also factual in character and must be viewed within the context of the totality of circumstances so uniquely available to the trial court. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). “A factual finding may be rejected by this court only if it is ‘clearly erroneous.’ Practice Book § 3060D.” Id., 392; see Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). A clearly erroneous finding is one “that as a matter of law . . . is ‘ “unsupported by the record, incorrect, or otherwise mistaken.” . . . ’ ” Garrison v. Garrison, 190 Conn. 173, 176, 460 A.2d 945 (1983), quoting Kaplan v. Kaplan, supra.

We have observed previously that the representations made in this case that the vehicle was “excellent,” in “mint” condition and that it was an “unusual” one, were oral and nonspecific. Web Press Services Corporation v. New London Motors, Inc., supra, 352. Furthermore, the buyer was encouraged and allowed to remove, drive and inspect the vehicle to be purchased. Id. In view of these circumstances, we cannot say that the court’s conclusion is “ ‘ “unsupported by the record, incorrect, or otherwise mistaken.” . . . ’ ” Garrison v. Garrison, supra.

The court next examined the third factor set out in FTC v. Sperry & Hutchinson Co., supra, and concluded that there was no “substantial injury to consumers” because the plaintiff had not relied on the defendant’s representations. Such a conclusion based on a lack of consumer reliance is in error for “[t]he CUTPA plaintiff need not prove reliance or that the representation became part of the basis of the bargain.” (Emphasis added.) Hinchliffe v. American Motors Corporation, 184 Conn. 607, 617, 440 A.2d 810 (1981).

Despite its erroneous factual underpinning, the court’s conclusion was nevertheless correct. The “substantial injury” factor is itself subject to a three part test. “ ‘The independent nature of the consumer injury criterion does not mean that every consumer injury is legally “unfair,” however. To justify a finding of unfairness the injury must satisfy three tests. [1] It must be substantial; [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and [3] it must be an injury that consumers themselves could not reasonably have avoided.’ ” McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 569-70, 473 A.2d 1185 (1984), citing a letter from the Federal Trade Commission to Senators Wendell H. Ford and John C. Danforth (Dec. 17, 1980), reprinted in N. Averitt, “The Meaning of ‘Unfair Acts or Practices’ in Section 5 of the Federal Trade Commission Act,” 70 Geo. L.J. 225, 291 (1981).

In this case it is clear from the facts as found by the trial court that the plaintiff cannot satisfy the first test of the “substantial injury” factor for the plain reason that the consumer injury here is not substantial. The plaintiff sought the refund of $7995 by reason of a defect that had injured the plaintiff to the extent of $300 or 3.7 percent of the cost of the vehicle. This demand for a refund was made within the context of circumstances wherein the defendant had undertaken all corrections, both before and after the sale, promptly and without charge. The court rendered judgment for the'plaintiff to recover one half of the $600 cost of the rear axle repairs in accordance with the terms of the limited warranty set forth in the purchase order. This being the case, the court’s conclusion that there was not a substantial injury within the meaning of the third criterion is not clearly erroneous.

There is no error.

In this opinion Healey, Shea and Callahan, Js., concurred.

Peters, C. J., concurred in the result.

       “[General Statutes] 42a-2-608. revocation of acceptance in whole or in part. (1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it (a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or (b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.”

       General Statutes § 42-110a et seq.

       General Statutes § 42-110b provides in pertinent part: “(a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       15 U.S.C. § 45 (a) (1) (1976) provides: “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.”

       At oral argument before this court in Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 350, 525 A.2d 57 (1987), the plaintiff acknowledged that “it made no attempt to have the axle repaired by the defendant but simply sought the return of the purchase price of the vehicle.” The trial court found the stipulated cost of the rear axle repair to be $600 and rendered judgment for the plaintiff to recover one half of this amount or $300.


author: Hull, J.

text:
    State of Connecticut v. Wendell Hasan
    (13074)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued October 2
    decision released December 15, 1987

      Michael O. Sheehan, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom, on the brief, was Bruce Hudock, assistant state’s attorney, for the appellee (state).
   Hull, J.

The sole issue in this appeal is whether the trial court erred in admitting the testimony of a podiatrist identifying as the defendant’s a pair of sneakers linked to the scene of the crimes with which he was charged.

After a jury trial, the defendant, Wendell Hasan, was found guilty of felony murder; General Statutes § 53a-54c; and burglary in the first degree. General Statutes § 53a-101 (a) (2). This appeal followed.

The jury could reasonably have found the following facts. On July 2, 1985, the police were called to the home of George and Rachel Tyler to investigate a possible homicide. The police found George Tyler dead in the kitchen, Rachel Tyler injured, and the premises apparently ransacked. The Tylers’ son and daughter-in-law determined that George Tyler’s wallet was missing as was some of Rachel Tyler’s jewelry. Among the evidence secured by the police were broken glass and linoleum bearing a bloody footprint made by a sneaker. Police suspicion turned to the defendant when, on July 5, 1985, a plumber repairing a clogged toilet in a South Norwalk apartment found two credit cards belonging to George Tyler to be the cause of the clog. The plumber turned the cards over to the owner of the apartment, who reported the find to the police. The police obtained a warrant to search the apartment.

The defendant had been living at the South Norwalk apartment intermittently; it was also occupied by his mother, stepfather, his brother, James Singleton, two sisters and James’ girlfriend. Pursuant to the warrant, the police seized several pairs of shoes, including a pair of size ten Puma low cut sneakers which they found at the foot of the bed in which James and his girlfriend slept. The bedroom was actually the defendant’s and most of the belongings there were his. James told the police that the sneakers were the defendant’s and that his own shoe size was thirteen. During custodial interrogation, the defendant stated that the apartment was his primary residence and that he owned a pair of Puma sneakers liked the ones seized.

The conviction depended in large measure on circumstantial evidence. Glass shards and linoleum fibers found in the sole of one of the sneakers, were similar to the mass produced glass and linoleum located at the crime scene, but could not be positively identified as having come from there. Similarly, human blood detected on the sneakers was consistent with the victims’ blood, but could not be positively identified as theirs. During trial, a forensic expert from the Connecticut state police forensic laboratory identified the Puma sneakers as those that made the footprints on the Tylers’ kitchen floor. James testified that the defendant had been in and out of the apartment between July 1 and July 3,1985, and that he had concluded that the sneakers belonged to the defendant because they were in his room under his bed. A former cellmate of the defendant testified that the defendant had admitted to having taken part in the crimes.

In addition to the foregoing, the jury heard the testimony of Dr. Robert Rinaldi, a podiatrist called by the state as an expert witness, who concluded “within reasonable podiatric certainty” that based on his examination of the sneakers and the defendant’s feet, the sneakers belonged to the defendant. The defendant excepted to the admission of this testimony and appeals on this ground.

The admissibility of expert testimony depends on whether the witness offered as an expert possesses “ ‘ “any peculiar knowledge or experience, not common to the world, which renders [his] opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.” ’ ” State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948 (1985); State v. Esposito, 192 Conn. 166,175, 471 A.2d 949 (1984); C. Tait & J. LaPlante, Connecticut Evidence (1976) § 7.16, p. 96. The knowledge may be drawn from reading alone, from experience alone, or from both. State v. Esposito, supra. Whether a witness is qualified to testify as an expert is a matter that lies within the discretion of the trial court. State v. Palmer, 196 Conn. 157,167, 491 A.2d 1075 (1985). Expert testimony is admissible if the witness possesses a special skill or knowledge directly applicable to a matter in issue, the skill or knowledge is not commonly shared by the average person, and the testimony would be helpful to the court or jury in considering the issues; State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986); or in teaching the jury to view items of physical evidence by focusing their attention on certain salient features. State v. Palmer, supra, 166. Absent an abuse of discretion, we will not disturb a trial court’s decision in admitting or excluding such testimony. Id.

Many jurisdictions have adopted a special rule for admissibility of scientific evidence, in accordance with Frye v. United States, 293 F. 1013 (D.C. App. 1923). C. Tait & J. LaPlante, Connecticut Evidence (1983 Sup.) § 7.16, p. 55; C. McCormick, Evidence (3d Ed. 1984) § 203, p. 606. There the court stated: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, supra, 1014.

The Frye “general acceptance” test has been employed to assess the admissibility of spectrographic voice analysis; People v. Kelly, 17 Cal. 3d 24, 549 P.2d 1240, 130 Cal. Rptr. 144 (1976); Commonwealth v. Lykus, 367 Mass. 191, 327 N.E. 2d 671 (1975); ion microprobic analysis of hair samples; United States v. Brown, 557 F.2d 541 (6th Cir. 1977); and hypnotically refreshed recollection. People v. Shirley, 31 Cal. 3d 18, 641 P.2d 775,181 Cal. Rptr. 243, cert. denied, 459 U.S. 860,103 S. Ct. 133, 74 L. Ed. 2d 114 (1982). We have acknowledged that Frye sets forth the prevailing standard for evaluating the admissibility of evidence derived from innovative scientific techniques. Moore v. McNamara, 201 Conn. 16, 30, 513 A.2d 660 (1986). We have expressly applied it to polygraph testing; State v. Miller, 202 Conn. 463, 484, 522 A.2d 249 (1987); and to human leukocyte antigen testing for paternity. Moore v. McNamara, supra. We have applied the “general acceptance” standard, without reference to Frye, in State v. Mitchell, 169 Conn. 161, 169-70, 362 A.2d 808 (1975) (polygraph testing), Molino v. Board of Pub lic Safety, 154 Conn. 368, 376-77, 225 A.2d 805 (1966) (polygraph testing), and State v. Tomanelli, 153 Conn. 365, 370, 216 A.2d 625 (1966) (police radar).

The defendant argues that the evidence elicited from Rinaldi was scientific evidence subject to the standard for admissibility articulated in Frye. We disagree.

“The Frye test finds its rational basis in. the degree to which the trier of fact must accept, on faith, scientific hypotheses capable of proof or disproof in court and not even generally accepted outside the courtroom.” People v. Marx, 54 Cal. App. 3d 100, 110, 126 Cal. Rptr. 350 (1975). Frye contemplates those situations in which the evidence sought to be admitted is beyond the understanding of the ordinary juror who must sacrifice his independent judgment in deference to the expert. People v. Marx, supra, 110-11. Among the dangers created by such scientific evidence is its potential to mislead lay jurors “awed by an ‘aura of mystic infallibility’ surrounding ‘scientific techniques,’ ‘experts’ and the ‘fancy devices’ employed.” United States v. Williams, 583 F.2d 1194,1199 (2d Cir. 1978), cert. denied, 439 U.S. 1117, 99 S. Ct. 1025, 59 L. Ed. 2d 77 (1979). The fact that a technique or method has gained general acceptance in the scientific community to which it belongs tends to ensure that the jury will not accord undue weight to theories whose validity has not been adequately tested. People v. Kelly, supra, 31-32.

Such infirmities do not inhere in all types of expert evidence. Accordingly, the Frye test has been either ignored or rejected in cases in which the method used by the expert was a matter of physical comparison rather than scientific test or experiment; Ex parte Dolvin, 391 So. 2d 677 (Ala. 1980) (identification of skeletal remains by comparing teeth and facial structure with photographs of victim; Frye inapplicable); the basic data upon which the expert relied was verifiable by the factfinder; People v. Marx, supra (bite mark identification; trier shown models, photographs, X-rays and slides of victim’s wounds and defendant’s teeth; Frye inapplicable); or where established techniques were applied to the solution of novel problems. State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981) (bite mark identification by application of dentistry and photography; Frye ignored). Many of these cases have involved identification of bite marks by comparison of the defendant’s dental impressions to bite marks found on a victim’s body; see, e.g., State v. Asherman, 193 Conn. 695, 478 A.2d 223 (1984), cert. denied, 470 U.S. 1050,105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); People v. Marx, supra; Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, cert. denied, 434 U.S. 902, 98 S. Ct. 297, 54 L. Ed. 2d 188 (1977); Commonwealth v. Cifizzari, 397 Mass. 560, 492 N.E.2d 357 (1986); and identification of footprints by comparing shoes found at the crime scene with shoes worn by the defendant; United States v. Ferri, 778 F.2d 985 (3d Cir. 1985), cert. denied, 476 U.S. 1172,106 S. Ct. 2896, 90 L. Ed. 2d 983 (1986); or by comparing footprints found at the crime scene with the defendant’s feet. State v. Mark, 286 N.W.2d 396 (Iowa 1980); State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984). In such cases, the jury is in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert’s assertions based on his special skill or knowledge. People v. Marx, supra. Furthermore, where understanding of the method is accessible to the jury, and not dependent on familiarity with highly technical or obscure scientific theories, the expert’s qualifications, and the logical bases of his opinions and conclusions can be effectively challenged by cross-examination and rebuttal evidence. See State v. Ortiz, 198 Conn. 220, 228, 502 A.2d 400 (1985). Rinaldi’s testimony falls within this category.

At trial, Rinaldi was duly qualified as a podiatrist and foot surgeon whose practice includes sports medicine and treatment of athletes. 6He testified that, in the course of his work, he examines the footwear of his patients to determine whether it is appropriate for their feet. Following this testimony, the defendant objected on the ground that the state had failed to qualify Rinaldi as an expert in the field of matching shoes to feet. Out of the jury’s presence, Rinaldi testified that it is common podiatric practice in the treatment of foot ailments to assess the suitability of a patient’s shoes for his feet, and that, although he could not positively match a shoe to a foot, he could ascertain from a particular shoe some of the characteristics of its wearer’s foot, gait and stature. He stated further that he could detect foot deformities by the rubbing and wear patterns on both the inside and outside of the shoe and that, over time, a shoe conforms to the shape of its wearer’s foot, and asserted that every foot has its own “signature.” He conceded that he had never conducted any tests identifying shoes with feet, had never conducted any research in this area, and was not aware of any published reports or scientific data on the subject. The court found Rinaldi qualified to testify to the correlation between the sneakers and the defendant’s feet.

When the jury returned, Rinaldi testified that, with wear, shoes conform to the contours of the foot and that the foot’s characteristics are manifested in the outline of the shoe. He explained that, in order to determine the proper fit of a shoe, he observes the foot, feels the foot inside the shoe and measures the foot with a Brannick device. He then detailed his method for matching the Puma sneakers to the defendant’s feet, illustrating his testimony with the sneakers. He explained that before he saw the defendant, he examined the shoes, concluding that the wearer was flatfooted, was on the heavy side and had prominences on two of his toes. His subsequent examination of the defendant’s feet confirmed his hypothesis. He measured the defendant’s feet with a Brannick device and felt the feet, both with and without socks, in the sneakers and out, walking, standing and sitting. He noted that when the defendant put the shoes on, he slipped his feet into them, unlacing them only “a very, very little bit,” confirming the podiatrist’s personal observation that when a shoe has been molded to a foot, the foot slides easily in and out of it. He observed that the defendant was flatfooted and that the shape of his heel was consistent with that condition. Furthermore, he felt the protruberances on the defendant’s toes and the molding of the shoe around them. On the basis of these observations, Rinaldi concluded, with reasonable podiatric certainty, that the sneakers had been worn by and belonged to the defendant.

On cross-examination, Rinaldi conceded that there is no science, within the profession of podiatry, of matching sneakers to people, that he had never before testified in court on the subject, that he had never performed any blind studies or conducted research in the area, and that if given several pairs of sneakers, he could not definitely match them with their owners. Furthermore, he testified that the features of the defendant’s feet from which he drew his conclusions are very common.

The fact that there is no science of matching shoes to people or that Rinaldi was not qualified as an expert practitioner in that narrow field forms no barrier to the admissibility of his testimony. We consider this case one in which the established techniques in Rinaldi’s uncontested area of expertise have been applied to the solution of a novel problem that is well within the capability of those techniques. See People v. Marx, supra; State v. Temple, supra.

We conclude that the admissibility of Rinaldi’s testimony did not depend on general acceptance of his theories in the scientific community. His conclusions relied on no advanced technology, nor did he employ scientifically sophisticated methods, the understanding of which lies beyond the the intellectual powers of the ordinary layperson. The jury was not required to accept blindly the merit of his conclusions or methods. It had before it the same sneakers which had been examined by the podiatrist and, during the course of the trial, had seen the defendant try them on and walk in them. The value of Rinaldi’s expertise lay in its assistance to the jury in viewing and evaluating the evidence. Cross-examination exposed the jury to the lack of literature pertaining to matching shoes to feet, and to the absence of studies or research in this area by Rinaldi or others. His credentials and methodology were before the jurors, who were competent to assess the reliability of the evidence and who could freely accept or reject his conclusions. See United States v. Williams, supra, 1199-1200. We hold, therefore, that the trial court did not abuse its discretion in admitting Rinaldi’s testimony.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54e provides in relevant part: “felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree 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 . . . .”

       General Statutes § 53a-101 (a) (2) provides in relevant part: “burglary in the first degree: class b felony, (a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and . . . (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       Prior to trial, the defendant filed a motion in limine addressed to Rinaldi’s testimony. Consideration of the motion was postponed until trial. The court denied the motion and granted the defendant a standing exception to the testimony.

       We have articulated only two approaches to admissibility of expert evidence. There are others. See, e.g., People v. Slone, 76 Cal. App. 3d 611, 143 Cal. Rptr. 61 (1978) (human bite mark evidence admissible under Frye; reliability of the method established by expert testimony that technique had gained general acceptance in the scientific community of dentistry); People v. Colombo, 118 Ill. App. 3d 882,455 N.E. 2d 733 (1983), cert. denied, 467 U.S. 1208,104 S. Ct. 2394,81 L. Ed. 2d 351 (1984) (handprint identification testimony admissible under “liberal” Frye reliability test).

       The defendant does not contest Rinaldi’s qualifications as a podiatrist. He challenges his expertise in the art of matching shoes to feet.

       Rinaldi explained that a Brannick device measures the length and width of the foot and is considered by the shoe industry to provide the most accurate measurement of the foot.

       Following direct examination of Rinaldi, the defendant was asked to don the sneakers and walk before the jury in them. He did so.


author: Per Curiam.

text:
    James Scheyd et al. v. Peter Bezrucik et al.
    (13299)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued November 24
    decision released December 15, 1987

      James A. Wade, with whom was Ronald W. Zdrojeski, for the appellants (petitioners).

      Daniel R. Schaefer, assistant attorney general, with whom were Barney Lapp and Henry S. Cohn, assistant attorneys general, Jeffrey Garfield and, on the brief, Joseph I. Lieberman, attorney general, for the appellees (respondents Julia Tashjian et al.).

      William V. Dworski and Lawrence J. Halloran, with whom, on the brief, was Michael K. Patenaude, for the appellees (named respondents et al.).

      Edward T. Lynch, Jr., corporation counsel, and Anita D. Cobb, assistant corporation counsel, filed a brief for the appellee (respondent Richard T. Murphy).
   Per Curiam.

The dispositive issue in this case is whether a challenge to the constitutionality of our minority representation statute, General Statutes § 9-167a, comes within the jurisdictional confines of General Statutes, § 9-328, which, under narrowly defined circumstances, provides expedited judicial procedures for the resolution of election disputes. The case arises out of a New Britain municipal election for aldermen at large. The petitioners, James Scheyd et al., filed an action pursuant to § 9-328 to prevent the certification of the respondents, Peter J. Bezrucik et al., as duly elected municipal aldermen. They alleged that the respondent Richard T. Murphy, the town clerk of the city of New Britain, was intending to make such a certification in reliance on the provisions of § 9-167a, which the petitioners alleged to be violative of various provisions of the state and federal constitutions. In order to invoke the special appeal procedures of General Statutes § 9-325, the parties agreed upon a stipulated finding of facts, and the trial court thereupon certified to this court its decision on five disputed issues of law. The trial court concluded that it had jurisdiction to proceed under § 9-328 but determined that, on the merits, the plaintiffs could not prevail. We disagree with the trial court’s interpretation of § 9-328 and therefore, without reaching the merits, conclude that the case must be dismissed.

The underlying facts and applicable statutory principles are undisputed. The city of New Britain elects its fifteen aldermen in an election at large. For the aldermanic election held on November 3, 1987, the Democratic party nominated fifteen candidates, all of whom outpolled the ten Republican party candidates, the five Independent party candidates and the one petitioning candidate. Under applicable provisions of § 9-167a, no more than ten aldermen selected in an at-large election may be members of the same political party. The petitioners are the five lowest ranking Democratic nominees, who would have been elected but for § 9-167a. Conversely, the respondents are the five Republican nominees who, because they received the next highest number of votes, will be deemed to have been elected by the terms of § 9-167a.

Recognizing that, in compliance with § 9-167a, the town clerk would certify the five respondents to the Secretary of the state of Connecticut as having been elected to the office of alderman, the petitioners initiated the present litigation. The sole substantive allegation in their complaint was that the town clerk proposed to implement a statute that, in their view, deprived them of fundamental state and federal constitutional rights. The trial court concluded that such a complaint stated a proper cause of action under § 9-328. We disagree.

In order to take advantage of the expedited procedures that § 9-328 prescribes for the correction of errors in municipal elections, an elector or a candidate must state one of the limited types of claims that the statute makes cognizable. Absent an allegation of a violation of a specific election statute referred to in the text of § 9-328, § 9-328 applies only when an elector or a candidate claims to have been “aggrieved by any ruling of any election official in connection with an election for any municipal office . . . or . . . [claims] that there has been a mistake in the count of votes cast for any such office at such election . . . . ”

In the present case, the parties have stipulated that the petitioners were electors and candidates and that the town clerk has the status of an election official for the purpose of certifying election results to the secretary of the state. The petitioners have neither alleged a violation of one of the statutes specially referenced in § 9-328 nor do they claim that the town clerk made a “mistake” in the vote count. The parties agree, therefore, that the crucial dispute, for jurisdictional purposes under § 9-328, is whether the petitioners’ constitutional challenge to § 9-167a constitutes a claim that they are “aggrieved by any ruling of any election official.”

The question of what constitutes a “ruling” by an election official was addressed by this court in Wrinn v. Dunleavy, 186 Conn. 125, 440 A.2d 261 (1982). In a footnote squarely on point, we stated: “The expedited review provided by § 9-325 may be invoked to obtain review of decisions on complaints brought under §§ 9-324, 9-328, and 9-329a. It is not sufficient, however, that the plaintiff allege or even that the parties agree that the complaint is brought pursuant to one of these sections, because the review provided by § 9-325 is available only when the original complaint actually states a cause of action cognizable under §§ 9-324, 9-328, or 9-329a. Such a complaint must concern a ruling of an election official or a mistake in the count of votes. Id. A plaintiff may not use these sections to challenge a law or regulation under which the election or primary election is held by claiming aggrievement in the election official’s obedience to the law. In such a case the plaintiff may well be aggrieved by the law or regulation, but he or she is not aggrieved by the election official’s rulings which are in conformity with the law.” Id., 134 n.10. Relying on Wrinn v. Dunleavy, we subsequently dismissed an appeal under § 9-325 of a judgment upholding the constitutionality of a local charter provision for minority representation in a complaint filed under § 9-328. Marshall v. Kotecki, (Supreme Court Docket No. 11126) (1983).

If we adhere to Wrinn v. Dunleavy’s interpretation of § 9-328, the petitioners clearly cannot prevail. They offer two reasons why we should depart from this precedent. As a matter of interpretation, they claim that they were aggrieved by the town clerk’s ruling, because the town clerk had to make a choice whether he would comply with § 9-167a, the minority representation statute, or with § 9-169c, the statute governing elections at large. As a matter of policy, they maintain that a narrow construction of § 9-828 is illogical because expedited judicial review is at least as important for matters of potential constitutional significance as it is for technical violations of election rules. We are unpersuaded.

The petitioners’ argument of aggrievement by the town clerk’s ruling rests on a perceived incompatibility between the mandate of the minority representation statute, which permits no more than ten aldermen to be members of the same political party, and the provisions of § 1141 of the New Britain charter, as modified by § 9-169c, which permit a political party to nominate, and New Britain electors to vote for, as many as fifteen candidates for the position of alderman. The petitioners maintain that the statutes put the town clerk in the position of choosing between two presumptively valid constitutional enactments and therefore require him to make a § 9-828 “ruling.” We do not agree. Whatever the manner in which the city of New Britain, guided by § 9-169c, chooses to operate the process of nominating and voting for candidates for aider-men, the outcome of such an election is governed by § 9-167a, which limits the representation of a majority party. For the purposes of § 9-328, it does not matter whether a municipality has recourse to a primary or to a general election to decide how to allocate the permissible number of aldermen to any one political party. In either case, the local election official can obey the mandate of § 9-167a. We therefore conclude that the town clerk in this case did not make a § 9-328 “ruling.” Cf. Fidelity Trust Co. v. Lamb, 164 Conn. 126,132-33, 318 A.2d 109 (1972).

The petitioners’ argument of policy stands on a different footing. In essence, the petitioners urge us to reconsider the merits of our footnote in Wrinn v. Dunleavy, supra, on the ground that our construction of § 9-328 unduly narrowed a remedial statute designed to facilitate the prompt resolution of election disputes. They argue that the legislature intended to provide an expedited review not only for minor technical violations of election processes but also for serious constitutional impairment of election rights. They maintain that their claims require a speedier adjudication than they would be able to obtain through an action in quo warranto, or for a declaratory judgment, in order to avoid uncertainty about the validity of interim legislative actions by a board of aldermen whose rightful composition may be in doubt. These arguments are not, however, incontrovertible. The legislature might reasonably have opted for speedy adjudication of disputes about technical violations of election laws on the theory that identification and rectification of such mistakes is ordinarily not a matter of great complexity. Constitutional adjudication, by contrast, requires study and reflection and may therefore, as a general matter, be deemed less appropriate for accelerated disposition. Furthermore, the respondent aldermen, once their election is certified in accordance with the mandate of § 9-167a, would have at least de facto status; State ex rel. Comstock v. Hempstead, 83 Conn. 554, 557-59, 78 A. 442 (1910); which would give legal effect to their public acts, done under color of law, even if they were not then officers de jure. Murach v. Planning & Zoning Commission, 196 Conn. 192, 203, 491 A.2d 1058 (1985); State v. Carroll, 38 Conn. 449, 471-79 (1871).

The legislative history of § 9-328, while not extensive, supports our construction in Wrinn v. Dunleavy. In 1978, prior to our decision, the statute had been amended to narrow those who might avail themselves of its expedited procedures. The 1978 amendment, designed to conform the language of § 9-328 with that of §§ 9-324 and 9-329, deleted from the class of eligible litigants any person “claiming to have been elected” to any municipal office. This year, the legislature, in Public Acts 1987, No. 87-545, § 3, expanded the substantive claims that an aggrieved candidate may make to include alleged violations of specified statutes governing election fraud and absentee balloting. Notably, this most recent revision does not purport to include constitutional claims within the ambit of § 9-328. We take the failure of the legislature to amend § 9-328 in this regard as acquiescence in Wrinn v. Dunleavy. The legislature is presumed to be aware of the interpretation that courts have placed on existing legislation and of the implications that we will draw from its inaction. C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 123, 434 A.2d 949 (1980); Herald Publishing Co. v. Bill, 142 Conn. 53, 63, 111 A.2d 4 (1955). Whether the remedy provided in § 9-328 is to be further expanded is a question for the legislature to resolve. See Ladd v. Douglas Trucking Co., 203 Conn. 187, 197, 523 A.2d 1301 (1987).

There is error in the trial court’s decision to entertain this action and the case is remanded with direction to dismiss the complaint.

       General Statutes § 9-167a, as amended by Public Acts 1987, No. 87-498, provides: “(a) (1) Except as provided in subdivision (2) of this subsection, the maximum number of members of any board, commission, legislative body, committee or similar body of the state or any political subdivision thereof, whether elective or appointive, who may be members of the same political party, shall be as specified in the following table:
      “COLUMN I COLUMN II
      Total Membership Maximum from one Party
      3 --------------------------------------------2
      4 --------------------------------------------3
      5 ----=----------------------------------------4
      6 ---------------------------- 4
      7 --------------------------------------------5
      8 --------------------------------------------5
      9 --------------------------------------------6
      More than 9 ---------------Two-thirds of total membership “(2) The provisions of this section shall not apply (A) to any such board, commission, committee or body whose members are elected wholly or partially on the basis of a geographical division of the state or political subdivision, (B) to a legislative body of a municipality (i) having a town meeting as its legislative body or (ii) for which the charter or a special act, on January 1,1987, provided otherwise or (C) to the city council of an unconsolidated city within a town and the town council of such town if the town has a town council and a representative town meeting, the town charter provides for some form of minority representation in the election of members of the representative town meeting, and the city has a city council and a body having the attributes of a town meeting.
      “(b) Prior to any election for or appointment to any such body, the municipal clerk, in cases of elections, and the appointing authority, in cases of appointments, shall determine the maximum number of members of any political party who may be elected or appointed to such body at such election or appointment. Such maximum number shall be determined for each political party in the following manner: From the number of members of one political party who are members of such body at the time of the election or appointment, subtract the number of members of such political party whose terms expire prior to the commencement of the terms for which such election or appointment is being held or made and subtract the balance thus arrived at from the appropriate number specified in column II of subsection (a) of this section.
      “(c) In the case of any election to any such body the winner or winners shall be determined as under existing law with the following exception: The municipal clerk shall prepare a list of the candidates ranked from top to bottom according to the number of votes each receives; when the number of members of any one political party who would be elected without regard to this section exceeds the maximum number as determined under subsection (b) of this section, only the candidates of such political party with the highest number of votes up to the limit of such maximum shall be elected, and the names of the remaining candidates of such political party shall be stricken from the list. The next highest ranking candidates shall be elected up to the number of places to be filled at such election.
      “(d) If an unexpired portion of a term is to be filled at the same time as a full term, the unexpired term shall be deemed to be filled before the full term for purposes of applying this section. At such time as the minority representation provisions of this section become applicable to any board, commission, committee or body, any vacancy thereafter occurring which is to be filled by appointment shall be filled by the appointment of a member of the same political party as that of the vacating member.
      “(e) Nothing in this section shall be construed to repeal, modify or prohibit enactment of any general or special act or charter which provides for a greater degree of minority representation than is provided by this section.
      “(f) Nothing in this section shall deprive any person who is a member of any such body on July 1,1960, of the right to remain as a member until the expiration of this term.

        “(g) For the purposes of this section, a person shall be deemed to be a member of the political party on whose enrolment list his name appears on the date of his appointment to, or of his nomination as a candidate for election to, any office specified in subsection (a) of this section, provided any person who has applied for erasure or transfer of his name from an enrolment list shall be considered a member of the party from whose list he has so applied for erasure or transfer for a period of six months from the date of the filing of such application and provided further any person whose candidacy for election to an office is solely as the candidate of a party other than the party with which he is enrolled shall be deemed to be a member of the party of which he is such candidate.”
      General Statutes § 9-328, as amended by Public Acts 1987, No. 87-545, § 3, provides: “Any elector or candidate claiming to have been aggrieved by any ruling of any election official in connection with an election for any municipal office or a primary for justice of the peace, or any elector or candidate claiming that there has been a mistake in the count of votes cast for any such office at such election or primary, or any candidate in such an election or primary claiming that he is aggrieved by a violation of any provision of sections 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at such election or primary, may bring a complaint to any judge of the superior court for relief therefrom. In any action brought pursuant to the provisions of this section, the complainant shall send a copy of the complaint by first-class mail, or deliver a copy of the complaint by hand, to the state elections enforcement commission. If such complaint is made prior to such election or primary, such judge shall proceed expeditiously to render judgment on the complaint and shall cause notice of the hearing to be given to the secretary of the state and the state elections enforcement commission. If such complaint is made subsequent to such election or primary, it shall be brought within ten days of such election or primary to any judge of the superior court, in which he shall set out the claimed errors of the election official, the claimed errors in the count or the claimed violations of said sections. Such judge shall forthwith order a hearing to be had upon such complaint, upon a day not more than five nor less than three days from the making of such order, and shall cause notice of not less than three nor more than five days to be given to any candidate or candidates whose election or nomination may be affected by the decision upon such hearing, to such election official, the secretary of the state, the state elections enforcement commission and to any other party or parties whom such judge deems proper parties thereto, of the time and place for the hearing upon such complaint. Such judge shall, on the day fixed for such hearing and without unnecessary delay, proceed to hear the parties. If sufficient reason is shown, he may order any voting machines to be unlocked or any ballot boxes to be opened and a recount of the votes cast, including absentee ballots, to be made. Such judge shall thereupon, if he finds any error in the rulings of the election official or any mistake in the count of the votes, certify the result of his finding or decision to the secretary of the state before the tenth day succeeding the conclusion of the hearing. Such judge may order a new election or primary or a change in the existing election schedule. Such certificate of such judge of his finding or decision shall be final and conclusive upon all questions relating to errors in the ruling of such election officials, to the correctness of such count, and, for the purposes of this section only, such claimed violations, and shall operate to correct the returns of the moderators or presiding officers, so as to conform to such finding or decision, except that this section shall not affect the right of appeal to the supreme court and it shall not prevent such judge from reserving such questions of law for the advice of the supreme court as provided in section 9-325. Such judge may, if necessary, issue his writ of mandamus, requiring the adverse party and those under him to deliver to the complainant the appurtenances of such office, and shall cause his finding and decree to be entered on the records of the superior court in the proper judicial district.”

       The petitioners are James Scheyd, Bert Anderson, Ralph Hedenberg, Jr., John Podbielski and Shirley Poncini, all duly nominated candidates of the Democratic party for election to the office of alderman at large for the city of New Britain.

       The respondents are Peter J. Bezrucik, Nora M. Johnson, Jonathan B. Scott, Paul M. Carver and Joseph Balciunas, Jr., all duly nominated candidates of the Republican party for election to the office of alderman at large for the city of New Britain; Richard T. Murphy, town clerk for the city of New Britain; Julia Tashjian, the secretary of the state of Connecticut; and the state elections enforcement commission.

       General Statutes § 9-325 provides: “If, upon any such hearing by a judge of the superior court, any question of law is raised which any party to the complaint claims should be reviewed by the supreme court, such judge, instead of filing the certificate of his finding or decision with the secretary of the state, shall transmit the same, including therein such questions of law, together with a proper finding of facts, to the chief justice of the supreme court, who shall thereupon call a special session of said court for the purpose of an immediate hearing upon the questions of law so certified. A copy of the finding and decision so certified by the judge of the superior court, together with the decision of the supreme court, on the questions of law therein certified, shall be attested by the clerk of the supreme court, and by him transmitted to the secretary of the state forthwith. The finding and decision of the judge of the superior court, together with the decision of the supreme court on the questions of law thus certified, shall be final and conclusive upon all questions relating to errors in the rulings of the election officials and to the correctness of such count and shall operate to correct the returns of the moderators or presiding officers so as to conform to such decision of said court. Nothing in this section shall be considered as prohibiting an appeal to the supreme court from a final judgment of the superior court. The judges of the supreme court may establish rules of procedure for the speedy and inexpensive hearing of such appeals within fifteen days of such judgment of a judge of the superior court.”

       The trial court’s certification, pursuant to General Statutes §§ 9-325 and 9-328, reads as follows: “The parties having stipulated to the facts, as attached hereto, have requested the court to certify the following issues for review by the Supreme Court:
      “I. Is Connecticut General Statutes Section 9-167a unconstitutional, for one or more of the following reasons:
      “a. it violates the rights guaranteed to the Petitioners by Article 10, Section 1 of the Connecticut Constitution, more particularly: ’The general assembly shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions.’
      ANSWERED: Yes _ No X
      “b. it violates the Petitioners equal protection of the law as guaranteed by the 5th and 14th Amendments to the United States Constitution laws in one or more of the following ways:
      “1. By violating the one-man one-vote requirement, or
      ANSWERED: Yes _ No X
      “2. By impermissibly burdening the Petitioners’ rights to (a) freedom of speech; (b) association; or (c) suffrage, which rights are guaranteed to them by the First and Fourteenth Amendments of the United States Constitution and Article First, Sections 1, 4, 5, 10 and 14 of the Connecticut Constitution of 1965?
      (a) Freedom of speech (a) Freedom of speech
      (b) Association (b) Association
      (c) Suffrage (c) Suffrage
      ANSWERED: Yes No X
      “2. Is Section 9-167a of the Connecticut General Statutes valid as applied in this case?
      ANSWERED: Yes X No _
      “3. Did the court err in granting the temporary restraining order in this case or in refusing to dissolve the same?
      ANSWERED: Yes No X
      “4. Are the petitioners guilty of laches?
      ANSWERED: Yes No X
      “5. Does the complaint state a proper cause of action under Connecticut General Statute Section 9-328 to challenge the constitutionality of Connecticut General Statute Section 9-167a?
      ANSWERED: Yes X No _
      “So ORDERED:

        “Isl Spada, Judge_
      Spada, J. Nov. 14, 1987’

       General Statutes § 9-169c provides: “Notwithstanding the provisions of any charter or special act to the contrary, in any town in which members of its legislative body are elected on the basis of assembly districts and where as a result of redistricting one or more of such assembly districts are shared with another town, such members may be elected on an at-large basis without reference to such assembly districts or other political subdivisions, unless and until such town changes its charter.”

       The parties have stipulated that, in accordance with the advice of local corporation counsel, § 1141 of the charter of the city of New Britain has been interpreted to permit the electors of New Britain to vote for fifteen aldermen on an at-large basis. Under a charter revision of § 1141 enacted by No. 204 of the 1969 Special Acts and approved by a 1969 referendum, New Britain electors were entitled to vote for “two aldermen from each assembly district within the city as defined in the general statutes and five aldermen-at-large.” As a result of subsequent legislative reapportionment, the city of New Britain now shares one assembly district with the town of Plainville and another assembly district with the town of Newington. For towns in which members of the local legislative body are elected on the basis of assembly districts that, as a result of redistricting, are shared with another town, General Statutes § 9-169e provides that “members may be elected on an at-large basis . . . unless and until such town changes its charter.” Section 1141 of the New Britain charter has not been amended since 1969.