author: Peters, C. J.

text:
    State of Connecticut v. Eugene Mercer
    (12931)
    Peters, C. J., Healey, Shea, Covello and Hull, Js.
    Argued April 13
    decision released June 21, 1988

      Paul F. Thomas, special public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Brace Hudock, assistant state’s attorney, for the appellee (state).

      Shelley Geballe filed a brief for the Connecticut Civil Liberties Union Foundation et al. as amici curiae.
   Peters, C. J.

The central issue in this appeal is whether the trial court violated the defendant’s constitutional right to a fair trial by disclosing to all prospective jurors, prior to voir dire, that the defendant had Acquired Immune Deficiency Syndrome (AIDS). The defendant, Eugene Mercer, was found guilty of felony murder in violation of General Statutes § 53a-54c by a jury of twelve. He appeals from the ensuing judgment sentencing him to a term of imprisonment of forty-five years.

The jury could reasonably have found the following facts: On the morning of December 12, 1984, the victim parked her car in the parking lot of the building where she worked in Stamford. As she got out, the defendant, who had been standing nearby, pulled out a gun and said “Lady, I want the keys.” The victim began to walk away and the defendant shot her in the head. When she collapsed, the defendant ran toward her, took her keys, jumped into her car and sped away. The victim subsequently died from the gunshot wound.

On appeal, the defendant claims that the trial court erred in: (1) informing the prospective jurors prior to voir dire that he was suffering from AIDS; (2) failing to suppress a statement he made to the police; and (3) instructing the jury on the standard of proof applicable to circumstantial evidence. We conclude that the trial court did not commit reversible error.

I

The defendant raises two related claims with respect to the AIDS issue. His principal argument is that the trial court’s disclosure to all prospective jurors that he suffered from AIDS deprived him of his right to a fair and impartial jury under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. His secondary argument is that the trial court’s subsequent dismissal for cause of all jurors who indicated doubt about their impartiality or their fear of contagion violated his right to individual voir dire under amendment four to the Connecticut constitution.

The record reveals the following chronology of events: On August 6,1986, the trial court, sua sponte, ordered a hearing on the defendant’s medical condition. The record does not disclose how this issue came to the court’s attention or what prompted it to order the hearing. The focus of the hearing was the risk of contagion to other persons, and in particular to the jurors, created by the defendant’s presence in the courtroom during trial. Dr. Edward Blanchette, the medical director at the Connecticut Correctional Institution, Somers, testified that the defendant was suffering from AIDS related complex (ARC). According to Blanchette, the defendant was infected with HTLV-III, the virus associated with AIDS, but had not developed the symptoms marking the onset of full-blown AIDS. In response to repeated questioning by the court, Blanchette assured it that it could “100 percent guarantee” to the jurors that the defendant’s condition presented no risk of contagion to them. At no time during the proceedings did the defendant complain of the public nature of this proceeding, nor does he now, on appeal, raise any issue about its propriety.

Thereafter, as each panel of venirepersons was sworn in, the trial court informed the prospective jurors that the defendant was suffering from AIDS. On all three occasions, the court then summarized Blanchette’s testimony and emphasized that the defendant’s presence created no risk of contagion to them. It next inquired whether the defendant’s illness would affect any juror’s ability to be fair and impartial or whether any juror would prefer not to sit in the case for fear of contracting AIDS. The trial court dismissed for cause all potential jurors, a total of twenty-one in number, who answered either question affirmatively. In addition, during voir dire almost all the potential jurors were further questioned by the attorneys about their views on AIDS and any who expressed doubt about their ability to be impartial or a fear of contagion were dismissed for cause. The defendant never objected to this procedure.

Because of this procedural default at trial, the state contends that we should not address the merits of the defendant’s claim that the trial court violated his right to a fair trial. We have, however, regularly held that we will review a claim raised for the first time on appeal if it implicates a fundamental constitutional right and is adequately supported by the record. State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The state misses the point when, conceding that the defendant raises a constitutional claim, it maintains nonetheless that the record does not clearly demonstrate that the defendant was denied a fair trial. By focusing on the ultimate merits of the defendant’s claim, the state misconstrues the nature of Evans review. Whether a claim “qualifies for review under State v. Evans, [supra], invariably precedes our consideration of the merits of the defendant’s claim.” State v. Robinson, 204 Conn. 207, 210 n.4, 527 A.2d 694 (1987). We conclude that this defendant is entitled to have us consider the merits of his constitutional claim.

A

The defendant’s principal attack focuses on the trial court’s alleged error in gratuitously disclosing his medical condition to prospective jurors prior to voir dire. He contends that this information, which was extraneous to the question of his innocence or guilt, inherently prejudiced the jury against him. According to him, the statement that he had AIDS implied to the jurors that he was a homosexual or an intravenous drug user, suggesting in either case that he had a widely condemned life-style. He further argues that because of the hysteria surrounding the transmission of AIDS, the court’s revelation engendered great anxiety among the jurors, which inevitably tainted the verdict. Although the court’s disclosure may have been intended to minimize the prejudice engendered by adverse pretrial publicity surrounding the case, he maintains that the court’s actions made matters worse: by dismissing all jurors who expressed hesitation in the presence of the remainder of the panel, the court legitimized AIDS-related fear and discrimination. As a result, he contends that the jury that convicted him could not have been impartial. We are not persuaded.

In constitutional terms, the defendant’s argument is essentially that the trial court, by exposing the jury to inflammatory and extraneous information, denied him the presumption of innocence, a component of the right to a fair trial. Although the conduct of voir dire is within the broad discretion of the trial court; State v. Fritz, 204 Conn. 156, 161, 527 A.2d 1157 (1987); that discretion must be exercised within the parameters established by the right to a fair trial. State v. Marsh, 168 Conn. 520, 522, 362 A.2d 523 (1975). With regard to claims of jury prejudice, the United States Supreme Court has emphasized: “The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. . . . Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.” (Citations omitted.) Estelle v. Williams, 425 U.S. 501, 504, 96 S. Ct. 1691, 48 L. Ed. 2d 126, reh. denied, 426 U.S. 954, 96 S. Ct. 3182, 49 L. Ed. 2d 1194 (1976). Due to the serious constitutional implications of the defendant’s claim, we “have the duty to make an independent evaluation of the circumstances.” Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); State v. Marra, 195 Conn. 421, 428, 489 A.2d 350 (1985); State v. Piskorski, 177 Conn. 677, 685-86, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

Our review of the defendant’s claim is guided by the principles of law applicable to claims of jury bias resulting from prejudicial publicity. In evaluating such claims, we have recognized, following the United States Supreme Court, two types of situations. In ordinary circumstances, a defendant must show “ ‘a connection between the publicity . . . and the existence of actual jury prejudice.’ ” State v. Piskorski, supra, 689; see Estes v. Texas, 381 U.S. 532, 542, 85 S. Ct. 1628, 14 L. Ed. 2d 543, reh. denied, 382 U.S. 875, 86 S. Ct. 18, 15 L. Ed. 2d 118 (1965). A showing of actual prejudice is, however, excused “ ‘ “in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable.” ’ ” State v. Marra, supra, 428-29; State v. Piskorski, supra; see Estes v. Texas, supra, 542-43.

The United States Supreme Court has found publicity surrounding a trial inherently prejudicial in Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963), Estes v. Texas, supra, and Sheppard v. Maxwell, supra. Rideau v. Louisiana involved the repeated television broadcast of the defendant’s confession to murder in the community in which the crime and trial took place. The court observed: “For anyone who has ever watched television the conclusion cannot be avoided that this spectacle ... in a very real sense was Rideau’s trial .... Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.” Rideau v. Louisiana, supra, 726. Treating the presumption of prejudice as essentially irrebuttable, the court declined to evaluate the voir dire examination of the jurors to determine whether they had actually been prejudiced. Id., 727. In Estes v. Texas, the United States Supreme Court presumed the existence of prejudice from the “circus atmosphere” of the trial, created by the intrusive presence of the press. See Murphy v. Florida, 421 U.S. 794, 799, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975). Likewise, in Sheppard v. Maxwell, supra, 355, the court reversed the petitioner’s conviction where “bedlam [had] reigned at the courthouse during the trial and newsmen [had taken] over practically the entire courtroom, hounding most of the participants in the trial, especially [the petitioner].” The court, however, has subsequently emphasized that exposure to prejudicial information does not presumptively deprive a defendant of due process. Murphy v. Florida, supra.

The question before us therefore is whether the likelihood of prejudice in this trial was so great as to raise an irrebuttable presumption of prejudice. We conclude that no such showing has been made. Unlike the circumstances of Estes v. Texas and Sheppard v. Maxwell, the record in this case does not indicate that the trial atmosphere was “utterly corrupted” by the disclosure that the defendant supposedly had AIDS. See Murphy v. Florida, supra. In evaluating the effect of the disclosure, we consider one factor, the defendant’s failure to object, of particular significance. In Rideau v. Louisiana, supra, 724, Estes v. Texas, supra, 537, and Sheppard v. Maxwell, supra, 348-49, the defendants repeatedly raised to the trial court, by way of motions for change of venue and other means, the problem of prejudicial publicity. Here, in contrast, the defendant’s failure to complain of the trial court’s disclosure essentially represented acquiescence in its actions. Implicit in such acquiescence was his perception that the court’s manner of proceeding would lessen rather than increase whatever prejudice resulted from the previous public disclosure of his condition. Lastly, we note, on the basis of the record before us, that the issue of the defendant’s medical condition did not again arise during the trial.

In less extreme cases, the United States Supreme Court has reviewed the “totality of the circumstances” to determine whether a defendant’s trial was fundamentally fair. Murphy v. Florida, supra, 799. Accordingly, while the trial court’s disclosure in this case that the defendant supposedly had AIDS created the distinct risk of prejudice, we consider the totality of the circumstances to determine whether the jurors were in fact biased against the defendant. Of particular importance in our inquiry is the conduct of the voir dire. Cf. Murphy v. Florida, supra, 800-803; State v. Marra, supra, 431-36. “Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.” Rosales-Lopezv. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981).

In the instant case, the trial court set no limits on the individual voir dire with regard to questions regarding the defendant’s condition. Prospective jurors who expressed any concern about the contagiousness of AIDS or doubts about their ability to be impartial due to the defendant’s condition were immediately dismissed for cause. In addition, both parties were granted additional peremptory challenges. At the time that the jurors who ultimately convicted the defendant had been selected, the defendant had not exhausted his challenges. “Unless all his peremptory challenges have been exercised before the completion of jury selection, it is presumed that no juror was permitted to serve whom the defendant regarded as biased or unsuitable, although he might have preferred others.” State v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983).

Moreover, review of the voir dire of the jurors who found the defendant guilty leads us to conclude that they were not biased against him because of his medical condition. Several volunteered that they believed that the issue was wholly irrelevant to the question of the defendant’s guilt. One juror expressed sympathy toward the defendant. Another pointed out that the defendant’s condition presented a greater risk to himself than to the jurors. Defense counsel chose not to pursue further the state of mind of a third juror, who, while asserting that the defendant’s illness was not a factor, admitted that she found the situation somewhat “scary.” The remaining jurors stated that the defendant’s condition would not affect their judgment and that they were not concerned for their own health. The record thus discloses no evidence that the jurors who sat on the defendant’s case were prejudiced by the knowledge that he supposedly suffered from AIDS. On this basis, we conclude that the defendant has failed to show that actual juror bias deprived him of a fair trial. See State v. VanStraten, 140 Wis. 2d 306, 409 N.W.2d 448 (Wis. App.) (in the face of unusual and substantial pretrial publicity, trial court did not err in revealing to jurors during voir dire that defendant had AIDS), rev. denied, 139 Wis. 2d 861, 415 N.W.2d 162, cert. denied, 484 U.S. 932,108 S. Ct. 304, 98 L. Ed. 2d 263 (1987).

The defendant nonetheless argues that we should exercise our supervisory authority over the administration of justice to reverse his conviction. See State v. Cohane, 193 Conn. 474, 499-500, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); cf. Marshall v. United States, 360 U.S. 310, 311, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959) (per curiam). He does not, however, advance any reasons other than those that we have already considered with regard to his constitutional claim. Having concluded that the defendant’s right to a fair trial has not been violated, we decline to order a new trial on this basis.

B

The defendant’s ancillary claim is that his right to voir dire under the Connecticut constitution was violated when the trial court dismissed all jurors who, by a show of hands, indicated that they could not be unbiased because of the defendant’s medical condition. The defendant argues that, by informing jurors of his medical condition and then dismissing those expressing possible bias in advance of individual questioning, the trial court impermissibly interfered in the voir dire process. Insofar as the defendant recasts in different form the claim he raised with regard to his right to an impartial jury, we have already addressed it fully. To the extent that he raises a distinct claim, however, we consider it briefly.

Under article first, § 19, of the Connecticut constitution, as amended by article IV of the amendments to the Connecticut constitution, “[t]he right to question each juror . . . shall be inviolate.” As we noted above, conduct of voir dire is largely within the discretion of the trial court. State v. Fritz, supra, 161. While we have previously disapproved of undue restrictions on a defendant’s examination of individual jurors; see, e.g., id.; State v. Haskins, 188 Conn. 432, 447, 450 A.2d 828 (1982); we have never held that the right of voir dire encompasses a right to restrict the trial court’s discretion to question prospective jurors or its discretion to dismiss any for cause. Moreover, “ ‘[t]he right to challenge is the right to reject, not to select a juror.’ ” State v. Vitale, supra, 225, quoting Hayes v. Missouri, 120 U.S. 68, 71, 7 S. Ct. 350, 30 L. Ed. 578 (1887).

The defendant nonetheless argues that, in dismissing certain venirepersons prior to individual voir dire, the trial court acted outside the bounds of the discretion accorded it by Practice Book § 847. This section provides that after prospective jurors are sworn in, “[t]he judicial authority shall permit counsel to make a preliminary statement as to the names of other counsel with whom he is affiliated, the names of prospective witnesses and other relevant facts. The judicial authority may excuse any prospective juror for cause.” Despite his failure to voice any contemporaneous objection, the defendant now urges us to construe this provision to limit the court’s discretion to dismiss jurors for cause to situations in which prospective jurors indicate the possibility of bias with regard to affiliated counsel, prospective witnesses, or other relevant information.

We decline, however, to interpret the trial court’s authority to dismiss jurors for cause so narrowly. The defendant’s construction would impair the ability of the court to exclude from the jury persons about whose impartiality it entertained doubts, regardless of whether the possible bias was related to the grounds enumerated in Practice Book § 847. “The right of the court, in a proper exercise of discretion, to discharge or reject a juror, of its own motion, for good cause, is generally recognized and obviously salutary.” State v. Parker, 112 Conn. 39, 56-57, 151 A. 325 (1930). On the basis of the record before us, we conclude that the court did not abuse its discretion in dismissing for cause, prior to individual voir dire, venirepersons who indicated that they would be affected by the knowledge of the defendant’s medical condition or that they were anxious about contagion.

II

The defendant next claims that the trial court erred in denying his motion to suppress a statement he had made to the police. To resolve this claim we must review the sequence of events leading up to his confession.

On the night of the crime, December 12, 1984, the Virginia police found the defendant asleep in the victim’s car at a rest stop on T95 in Prince Williams County, Virginia. Upon being arrested, the defendant’s only words were “I want a lawyer.” The defendant was advised of his Miranda rights and taken to jail. After he had been booked, the defendant was again advised of his rights. On both occasions, he declined to sign a notice of rights form or to make a statement. The next day, he was arraigned and the court appointed counsel to represent him. Three days later, he waived his right to an extradition hearing.

On December 17, two Stamford police officers, Sergeant Gerald Oberchowski and Officer Peter DiSpagna, drove to Virginia to pick up the defendant. Prior to taking him into custody the next day, they requested permission from his Virginia attorney to speak to the defendant. Counsel refused the request and thereafter instructed the officers not to question the defendant on the ride back to Connecticut. Counsel also indicated that the defendant, fearing for his life, believed that the officers intended to do him bodily injury on the ride back. When the officers, upon taking custody of the defendant, advised him of his rights, he responded that he had already been informed of them.

On the way back to Connecticut, Oberchowski drove the car while DiSpagna sat in the back seat next to the defendant, who was shackled and handcuffed. They stopped for lunch at a rest area in New Jersey. After DiSpagna returned with lunch for the defendant and himself, Oberchowski went to the restaurant to get his lunch. When DiSpagna handed him his lunch, the defendant asked that his handcuffs be removed so that he could eat. DiSpagna denied his request explaining that such action would violate police guidelines. According to DiSpagna’s testimony, the defendant then replied: “I understand what you have to do. They had to do something like that to me in Manassas [Virginia] because I was under the suicide watch and I understand it.” Startled, DiSpagna asked: “Suicide watch?” The defendant explained: “I had a lot of things on my mind and I told them that I was going to commit suicide.” When DiSpagna asked why he wanted to commit suicide, the defendant said “Well, there’s stuff on my mind and it’s still on it.” He mentioned that he had spoken to a priest while in Virginia but that he still wanted to talk to someone. He then asked whether he could talk to DiSpagna “off the record” or “as a person.” DiSpagna responded that he was a police officer “24 hours a day” and that anything the defendant said he could report. The defendant indicated that he understood but that he still wanted to talk. At this point, Oberchowski returned from the restaurant. Upon being told by DiSpagna of his conversation with the defendant, Oberchowski instructed DiSpagna not to talk to the defendant and to inform him that he could talk when they arrived in Stamford if he so desired. DiSpagna conveyed this information to the defendant. During the remainder of the ride, conversation revolved around neutral subjects such as the weather and the traffic conditions.

The three men arrived in Stamford at approximately 4:30 p.m. Thereafter, when the defendant and DiSpagna were sharing a pizza, the defendant again indicated that he wanted to make a statement. DiSpagna suggested that they finish eating. After dinner, a video camera was set up to tape the interview through a two-way mirror. Oberchowski then returned to the interview room and again advised the defendant of his rights. Because of malfunctioning of the audio equipment, this process of advisement was twice interrupted. During the second interruption, the defendant requested and was granted permission to call his wife. After his return, Oberchowski handed the defendant a notice of rights form, which he read to himself and then signed. When Oberchowski asked him whether he had any questions, he indicated that he did not. DiSpagna reminded the defendant of their conversation in New Jersey and stated that, if there was anything on his mind, “now is the time to say it.” The defendant then confessed to the crime.

On the basis of this evidence, the trial court found that the defendant had invoked his right to counsel upon his arrest in Virginia. It concluded, however, that the defendant, by asking whether he could talk to DiSpagna off the record, had initiated the conversation at the rest stop in New Jersey that resulted in his waiver of that right. It further found that the waiver was knowing and intelligent.

On appeal, the defendant argues that his statement was taken in violation of his right to counsel as guaranteed by the fifth and fourteenth amendments to the United States constitution. Under Miranda v. Arizona, 384 U.S. 436, 444, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), a suspect in police custody must be informed specifically of his right to remain silent and to have an attorney present during questioning. “An accused in custody, ‘having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,’ unless he validly waives his earlier request for the assistance of counsel.” Smith v. Illinois, 469 U.S. 91, 94-95, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984) (per curiam), quoting Edwards v. Arizona, 451 U.S. 477, 484-85,101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981). The police may not through actions or words engage in conduct “reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 302, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). After invocation of the right to counsel, a suspect’s responses to further interrogation are admissible “only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Smith v. Illinois, supra, 95.

Invoking this test, the defendant contends that it was DiSpagna who initiated the process resulting in his confession by asking him during the New Jersey lunch break why he wanted to commit suicide. The defendant further argues that even if we were to conclude that he himself initiated the further discussion, the state failed to prove that his waiver of his right to counsel was knowing and intelligent.

The state concedes that the defendant’s assertion of his right to counsel upon his arrest in Virginia precluded the Stamford police from interrogating him about the crime. In the state’s view, the defendant’s confession resulted not from police interrogation but rather from conversations initiated by the defendant himself, at the Stamford police station, that were unconnected with the events that had transpired at the New Jersey rest stop. We agree with the state.

The defendant’s claim of interrogation founders on the absence of a direct causal relation between DiSpagna’s question “why do you want to commit suicide?” and the defendant’s confession in Stamford several hours later. Although, in isolation, DiSpagna’s question might be construed as “reasonably likely to elicit an incriminating response”; Rhode Island v. Innis, supra; the fact is that it did not do so. DiSpagna took steps to prevent the defendant from incriminating himself, by reminding the defendant that conversations with a police officer could not take place “off the record.” Reenforced by Oberchowski, DiSpagna forbade the defendant from saying anything, informing him that “if he still wanted to talk when they got to Stamford he could do so then.” DiSpagna thus left it to the defendant to decide whether to initiate potentially incriminating conversation when they arrived in Stamford. The defendant assented and did not pursue the subject further. In this context, we conclude that no interrogation occurred in New Jersey. See State v. Acquin, 187 Conn. 647, 668, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983).

Upon their arrival in Stamford several hours later, the defendant again indicated to DiSpagna that he wanted to talk. There is no evidence that this comment was solicited by the police. After dinner, the defendant was administered his Miranda rights and then confessed to the crime. This record unequivocally demonstrates that it was the defendant who initiated the discussion that resulted in his confession.

This showing of the defendant’s waiver of his right to counsel does not, in itself, validate his confession because, in accordance with the rule of Edwards v. Arizona and Smith v. Illinois, the defendant’s waiver must also have been knowing and intelligent. It is well established that the state has the burden of proving by a preponderance of the evidence that the defendant waived his Miranda rights. State v. Barrett, 205 Conn. 437, 449, 534 A.2d 219 (1987); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987). For a waiver to be valid, it must not only be voluntary but must also constitute “a knowing and intelligent relinquishment or abandonment of a known right or privilege.” Edwards v. Arizona, supra, 482; State v. Barrett, supra, 450. This inquiry requires consideration of “the particular facts or circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

The defendant argues at the outset that the statements indicating his intent to waive his right to counsel were at best ambiguous. In support, he relies on evidence that Oberchowski consulted with his superiors prior to taking the defendant’s statement, and that the officer was instructed to make sure that the defendant understood his rights and that he knew of his Virginia counsel’s advice against talking with the police. We do not, however, construe this evidence to suggest that the police were uncertain about the defendant’s intent; it demonstrates rather their appropriate concern that the defendant’s statement be taken with due respect for his constitutional rights.

The defendant next suggests that there was insufficient evidence that he acted voluntarily in making a statement. In support, he points to evidence that he was afraid of Oberchowski and DiSpagna. We are not persuaded. The police testified that the defendant, although initially fearful, became increasingly relaxed and talkative during the ride to Connecticut. At the time of his confession, he had just finished eating and had spoken with his wife. The defendant does not allege, nor is there evidence, that the police resorted to improper inducements to obtain the confession. We therefore agree with the trial court’s conclusion that the defendant was not coerced into making a statement.

The record also supports the trial court’s conclusion that the defendant understood his rights. The defendant has never claimed that he did not understand the warnings that were repeatedly given to him. When the Stamford police first administered Miranda warnings to the defendant in Virginia, he indicated that he understood them and that he had already heard them. In Stamford, the defendant read the “Notice of Rights” form and signed it. When asked whether he had any questions, he indicated that he did not. The defendant’s initial invocation of his right to counsel further suggests that he understood his rights. “[W]e have held that the assertion of the right to remain silent after an initial willingness to speak with police is a strong indication that the defendant understood his rights.” State v. Barrett, supra, 451. The initial invocation of the right to counsel similarly serves to demonstrate that a defendant acted knowingly and intelligently in subsequently deciding to waive that right.

In addition, we view the dialogue between the defendant and DiSpagna during the New Jersey lunch break as particularly probative. When DiSpagna explained to the defendant why a police officer could not engage in a conversation “off the record” or “as a person,” the defendant responded that he understood but that he wanted to make a statement anyway. Thus the defendant, having been fully informed of the implications of making a statement, nevertheless persisted in his desire to do so. In the light of this record, the knowing and intelligent nature of the defendant’s waiver was not vitiated by the failure of the police specifically to remind him of the advice of his Virginia counsel.

The defendant nonetheless maintains that the evidence of a knowing and voluntary waiver was insufficient because he signed a “Notice of Rights” form rather than a “Waiver of Rights” form. We have previously rejected the identical claim “as one that elevates form over substance.” State v. Gonzalez, 206 Conn. 213, 219, 537 A.2d 460 (1988); State v. Weidenhof, 205 Conn. 262, 269, 533 A.2d 545 (1987). Under the totality of the circumstances, “ ‘the defendant’s expressed willingness to speak constituted an explicit affirmative act evidencing waiver, which the court could reasonably find persuasive despite the defendant’s [failure] to sign [a] waiver form.’ State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).” State v. Gonzalez, supra.

Ill

In his final claim of error the defendant challenges the trial court’s jury instructions on circumstantial evidence. Although the defendant failed to request a charge on this issue or to object to the charge as given, we have previously held that such a claim is reviewable under State v. Evans, supra; State v. Gonzalez, 205 Conn. 673, 685-86, 535 A.2d 345 (1987).

The trial court gave the following instructions on circumstantial evidence: “Proof beyond a reasonable doubt does not mean that you have to have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied. One, that the fact from which you are asked to draw the inference has itself been proved beyond a reasonable doubt and two, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true. ” (Emphasis added.) The defendant claims that the use of the more probable than not standard unconstitutionally diluted the state’s burden of proof.

We have repeatedly disapproved of the use of the more probable than not standard in instructions on circumstantial evidence. Id., 692; State v. Robinson, 204 Conn 207, 211, 527 A.2d 694 (1987). In resolving the farther question of whether such instructions were harmful beyond a reasonable doubt, we have applied a bifurcated standard of review. “ ‘ “Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, ‘we will closely scrutinize the court’s instructions’ on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof.” State v. Robinson, [supra, 210]. . . .’ ” State v. Gonzalez, 205 Conn. 673, 690-91, 535 A.2d 345 (1987); State v. McDonough, 205 Conn. 352, 358, 533 A.2d 857 (1987), cert. denied, U.S. , 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Otherwise, we consider the erroneous instruction in the context of the charge as a whole to determine whether it is “reasonably possible that the jury was misled.” State v. Gonzalez, 205 Conn. 673, 690-91, 535 A.2d 345 (1987); State v. McDonough, supra.

The defendant urges us to apply the former standard of review, claiming that intent was a principal issue at trial. In support, he points to the trial court’s extensive instructions on the specific intent required to find the defendant guilty of larceny, a necessary predicate of his felony murder conviction. From our review of the record, however, we conclude that the principal factual issue at trial was not intent but identity. In addition, there was ample direct evidence of identity, including testimony from the defendant’s sister, who had witnessed the crime, and the defendant’s statement to the police. See State v. Gonzalez, 205 Conn. 673, 693, 535 A.2d 345 (1987). Accordingly, we consider the instructions in the context of the charge as a whole to determine “whether it was reasonably possible that the jury was misled.”

We conclude that the erroneous instruction was harmless beyond a reasonable doubt. Prior to giving the erroneous instruction, the court stressed several times that the state had the burden of proving the defendant’s guilt beyond a reasonable doubt. The court reiterated the beyond the reasonable doubt standard with regard to the elements of the offense to which that standard applied. In particular, the court stated that the jury had to find that the defendant had the requisite intent to commit robbery beyond a reasonable doubt. In this context, we conclude that it is not reasonably possible that the jury was misled as to the state’s burden of proof.

There is no error.

In this opinion the other justices concurred.

       The defendant was diagnosed as having AIDS related complex (ARC). The trial court, however, informed venirepersons that he had AIDS.
      The precise issue in this case is unlikely to arise again since this court has promulgated guidelines for the treatment of persons with AIDS. The guidelines provide: “policy regarding acquired immunodeficiency syndrome (aids).
      “1. No restrictions may be placed on a person’s employment in the Superior Court solely on the basis of a Diagnosis of AIDS (Acquired Immunodeficiency Syndrome), or ARC (AIDS Related Complex), or a positive HTLV-III/LAV (human T-cell lymphotrophic virus type III/lymphodenopathyassociated virus) antibody blood test, provided the employee’s health status enables the employee to perform duties [of] employment. However, Department Heads may modify the duties of any employee based on (1) medical recommendations which are consistent with managerial prerogatives or (2) laws and regulations concerning communicable diseases.
      “2. With respect to the activities and conduct of non-employees (jurors, attorneys, criminal defendants, parties to civil litigation, witnesses, juvenile detainees, visitors to a courthouse) in a facility of the Judicial Department, no special treatment (privilege or restriction) may be ordered solely on the basis of a diagnosis that the non-employee has AIDS, ARC, or a positive HTLV-III/LAV antibody blood test, unless it is based on a recommendation of a physician or is required to allow the Department to comply with a law or regulation concerning communicable diseases.
      “3. There shall be no testing of present or prospective employees for determining the presence of the HTLV-III/LAV antibody.
      “4. Although it is recognized that no special precautions are necessary to prevent the transmission in the workplace of HTLV-III/LAV, the virus that causes AIDS, employees who may come in contact with blood or other body fluids should comply with . . . [established] procedures for preventing the transmission of any infectious germ. . . .
      “It is understood: that the Judicial Department is offering education regarding AIDS to all employees and specific training to those who may come in contact with blood or other body fluids; that protective equipment and masks will be purchased for use in administering CPR; and that the Chief Court Administrator will appoint an oversight committee to monitor compliance with the Department's policy and the provisions of this paragraph and to work with other departments, such as the sheriffs, in implementing this plan.” (AIDS Guidelines for the Connecticut Supreme Court announced on November 16,1987, by Chief Justice Ellen A. Peters).

       “[General Statutes] Sec. 53a-54c. 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, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       At least one article regarding the defendant’s medical condition, however, had earlier appeared in the press. See “Murder Suspect with AIDS may see his trial on TV,” Stamford Advocate, August 2, 1985, p. 1.

       The amici, Connecticut Civil Liberties Union Foundation et al., argue that the hearing and the trial court’s subsequent revelations violated the defendant’s constitutional rights to privacy and equal protection. Although we recognize the significance of this claim, we decline to review it as the defendant does not distinctly raise it himself. Simons v. Canty, 195 Conn. 524, 529 n.8, 488 A.2d 1267 (1985).

       On one occasion, the trial court raised the issue at the prompting of both counsel.

       The first time, the trial court dismissed jurors who indicated an inability to be impartial or a fear of AIDS after an off-the-record discussion with counsel.

       On August 12, 1985, the defendant moved to dismiss the prosecution on the ground of prejudicial publicity. This motion, which the trial court subsequently denied, claimed that the state’s attorney’s office had engendered prejudicial pretrial publicity by releasing information concerning the defendant’s health. The defendant has not, on appeal, pursued any issue relating to denial of this motion.

       The defendant likens the disclosure of his medical condition to the requirement, disapproved of in Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126, reh. denied, 426 U.S. 954, 96 S. Ct. 3182, 49 L. Ed. 2d 1194 (1976), that a defendant wear prison attire throughout the trial. There the United States Supreme Court noted: “The defendant’s clothing is so likely to be a continuing influence throughout the trial that . . . an unacceptable risk is presented of impermissible factors coming into play.” Id., 505. Due to the defendant’s failure to raise the issue at trial, however, it declined to reverse his conviction. Id., 512-13; see also State v. Williamson, 206 Conn. 685, 704-706, 539 A.2d 561 (1988). From our review of the record before us, we conclude that the disclosure of the defendant’s condition prior to voir dire did not present an unacceptable risk of impermissible factors coming into play.

       Although the defendant invokes article first, § 8, of the Connecticut constitution, he does not advance any arguments for the separate treatment of this issue under the state constitution. Accordingly we need consider only his federal constitutional claim. See State v. Chung, 202 Conn. 39, 45 n.7, 519 A.2d 1175 (1987).

       The state also argues, in the alternative, that because the defendant himself opened the discussion of suicide at the New Jersey rest stop, and asked to speak to Officer DiSpagna “off the record,” he initiated that conversation also. In view of our disposition of the state’s principal argument, we need not consider the merits of this alternative assertion.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Paolo Rullo et al. v. General Motors Corporation et al.
    (13315)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.

      Argued April 12
    decision released June 28, 1988

      Jay H. Sandak, with whom was Catherine C. Ziehl, for the appellants (plaintiffs).

      Joseph A. Moniz, with whom were Daniel L. FitzMaurice and, on the brief, Deborah S. Chang, for the appellee (named defendant).
   Covello, J.

The plaintiffs, Paolo Rullo, Natalina Rullo and Maria Rullo, instituted this action against the defendants, General Motors Corporation (General Motors) and Brady-Stannard Motors Company, Inc., for personal injuries sustained as the result of an automobile collision that took place on July 19, 1981. The gravamen of the Rullos’ claim was that the front seat locking mechanism of their 1980 Oldsmobile automoble suddenly failed. This caused the seat to slide rearward thereby preventing the plaintiff, Paolo Rullo, the driver, from applying the brakes. This in turn caused their automobile to strike the rear of a vehicle directly in front of them and resulted in the plaintiffs’ personal injuries. A jury found the issues for the defendant General Motors.

The plaintiffs appeal from the judgment against them that followed, contending that the trial court erred in permitting the introduction into evidence of videotapes of automotive field tests that: (1) were not timely disclosed to plaintiffs’ counsel; and (2) were not shown to have the requisite similarity to the accident. We conclude that there was no abuse of the significant discretion that reposes in the trial court in connection with both of these matters and, therefore, find no error.

I

The plaintiffs claim first that the court erred in admitting the videotape of certain General Motors’ tests because of their late disclosure to plaintiffs’ counsel. Examination of the record discloses that the parties agreed that following the collision, the seat adjuster mechanism was bent, deformed and not operating properly. The plaintiffs contended that the force of the collision was inadequate to have caused the deformity and that the mechanism had been defective since they purchased the automobile. The defendant claimed, on the other hand, that it was the force of the collision itself that had bent the seat adjuster mechanism.

Both sides offered test results through the testimony of expert witnesses to assist the jury in dealing with the seat mechanism controversy. The chronology of the experts’ involvement in the case is as follows:

September 27, 1984—The plaintiffs disclosed John Zamparo as their expert;

January 21,1986—General Motors disclosed Jeffrey Pearson as its expert;

May 27,1986—General Motors completed the deposition of Zamparo;

September 3, 1986—The plaintiffs deposed Pearson. He testified that no tests had been performed;

October 17,1986—The plaintiffs disclosed Dr. Ralph Petricone as an additional expert;

November 4, 1986—General Motors’ deposition of Petricone commenced. He disclosed for the first time that Zamparo had conducted force tests;

November 5,1986—General Motors’ motion in limine to preclude the testimony of Petricone was denied;

November 5, 1986—Jury selection began;

November 7,1986—Pearson conducted the disputed tests at the General Motors laboratory;

November 10, 1986—General Motors completed Petricone’s deposition;

November 12,1986—Evidentiary phase of the trial began;

November 14, 1986—Zamparo testified for the plaintiffs. He disclosed that after he had been deposed by General Motors, he had conducted force tests on the seat adjuster mechanism. He disclosed the results of those tests;

November 19,1986—General Motors disclosed to the plaintiffs the existence of the videotapes of its tests;

November 25,1986—General Motors furnished the videotapes to the plaintiffs;

December 2,1986—The plaintiffs’ motion in limine to preclude the use of the videotapes was denied;

December 2, 1986—Trial resumed.

The plaintiffs argued to the trial court that General Motors had failed to disclose in a timely manner that tests had been conducted concerning the seat adjuster mechanism. They claimed a prejudicial breach of the continuing duty to disclose required by Practice Book § 232 inasmuch as they had previously requested by way of interrogatory the basis for the expert’s opinion.

General Motors responded that the demonstrations had been conducted in answer to the plaintiffs’ own late disclosure of Petricone as an additional expert and Petricone’s “eve of trial” revelation that force tests had been conducted on the seat adjuster mechanism. The trial court rejected the plaintiffs’ claim of unfair surprise and prejudice and allowed the introduction into evidence of the videotape demonstrations.

Practice Book § 231 authorizes the court to respond to a party’s violation of a continuing duty to disclose by the entry of “such order[s] as the ends of justice require.” Specifically, an order may “prohibit . . . the party who has failed to comply from introducing designated matters in evidence.”

Decisions on the entry of such sanctions rest within the sound discretion of the trial court. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 39-40, 404 A.2d 889 (1978). In reviewing a claim that this discretion has been abused “ ‘ “the unquestioned rule is that ‘great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.’ Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 [1926] . . . .” Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 [1954].’ Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 [1970].” DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972). “[T]he ultimate issue is whether the court could reasonably conclude as it did. E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 (1959).” Timm v. Timm, 195 Conn. 202, 207, 487 A.2d 191 (1985).

The videotape demonstrations served to confirm the General Motors’ expert’s previously disclosed opinion that the seat adjuster mechanism had been bent by the force of the collision. No new theory of causation was advanced by these demonstrations. Further, as the court correctly noted, following the disclosure of these tests, there was an eleven day suspension in the trial during which plaintiffs’ counsel and their experts reviewed the defendant’s test data.

Finally, there was no request for a continuance. “A continuance is ordinarily the proper method for dealing with a late disclosure. State v. Villafane, 171 Conn. 644, 669, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984) . . . .” State v. Barrett, 205 Conn. 437, 455, 534 A.2d 219 (1987). A continuance serves to minimize the possibly prejudicial effect of a late disclosure and absent such a request by the party claiming to have been thus prejudiced, appellate review of a late disclosure claim is not warranted. Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 748, 535 A.2d 1287 (1988); State v. Miner, 197 Conn. 298, 305-306, 497 A.2d 382 (1985).

II

The plaintiffs further claim that the videotape demonstrations should not have been admitted as evidence because the tests were dissimilar to the circumstances of the accident. The demonstrations consisted of two crash barrier tests. In these tests four anthropomorphic dummies were placed in the test vehicle, two in the front seat and two in the back seat. The vehicle was then run into a fixed barrier, once at seven miles per hour and again at 8.2 miles per hour. The demonstration confirmed the defendant’s expert’s previously disclosed opinion that the seat adjuster mechanism would warp and become deformed as the result of absorbing much less energy than was claimed to be required by the plaintiffs’ experts.

The plaintiffs argue that the defendant’s simulation was inaccurate because the General Motors vehicle was run into a fixed, unmoving barrier which absorbed none of the force or energy of the impact. The plaintiffs testified, however, that in the accident, the rear-ended vehicle had rolled forward after the impact thereby absorbing some of the energy of the impact. The plaintiffs also claimed that the General Motors vehicle was run directly into the barrier while the accident had involved an angular contact. The gist of the plaintiffs’ argument is that the energy absorbed by the front seat and its adjusting mechanism in the General Motors’ tests was far greater than the energy absorbed during the impact at the accident.

“ ‘[T]he admission of evidence of experiments, demonstrations, or tests . . . rests in the sound discretion of the trial court . . . and this discretion will not be interfered with on appeal unless it is apparent that it has been abused. . . . [T]he question of the similarity of conditions prevailing at the time of the experiment or test to those which prevailed at the time of the occurrence in question is one that lies within the sound discretion of the trial court, to be decided in the light of all the surrounding facts and circumstances . . . .’29 Am. Jur. 2d 909, Evidence, § 818.” State v. Vennard, 159 Conn. 385, 395-96, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971).

“To make evidence of experiments performed out of court admissible the conditions need not be identical but should be essentially similar, that is, similar in all those factors necessary to make the comparison a reasonably fair and accurate one. McPheters v. Loomis, 125 Conn. 526, 536, 7 At. (2d) 437 [1939]; 4 Chamberlayne, Evidence, § 3169; notes, 8 A.L.R. 18, 85 A.L.R. 479.” Wray v. Fairfield Amusement Co., 126 Conn. 221, 225, 10 A.2d 600 (1940).

The defendant argues that the “differences in surrounding conditions are [even] less relevant and do not require the [videotapes] exclusion”; Gorelick v. Department of State Highways, 127 Mich. App. 324, 336, 339 N.W.2d 635 (1983); where, as here, the experiments did not purport to be a reenactment of the accident but rather a demonstration of the force principles claimed by its expert to have been the cause of the seat adjuster mechanism’s deformity. While this is certainly a relevant factor, the ultimate consideration in determining admissibility is whether the demonstration evidence will fairly assist the jury in understanding the factual issues placed before them. Blanchard v. Bridgeport, 190 Conn. 798, 806, 463 A.2d 553 (1983); Katsetos v. Nolan, 170 Conn. 637, 649, 368 A.2d 172 (1976).

The jury here had to determine the effects of a slow speed, frontal impact upon the seat adjuster mechanism of an automobile. The experiments videotaped by the defendant’s expert supported its contention that a slow speed impact could indeed deform this mechanism. Although the conditions were admittedly not identical, we see nothing in this record that rises to the level of an abuse of discretion in admitting this evidence. “Dissimilarities between experimental and actual conditions affect the weight of the evidence, not its admissibility.” Szeliga v. General Motors Corporation, 728 F.2d 566, 567 (1st Cir. 1984).

There is no error.

In this opinion the other justices concurred.

       The plaintiffs withdrew their complaint as to the defendant BradyStannard Motors Company, Inc.

       Practice Book § 232 provides: “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though correct when made, is no longer true and the circumstances are such that a failure to amend the compliance is in substance a knowing concealment, he shall promptly notify the other party, or his attorney, and file and serve in accordance with Sec. 120 a supplemental or corrected compliance.”


author: Shea, J.

text:
    Daniel R. Civiello et al. v. Owens-Corning Fiberglass Corporation, Reinforced Cement Products Division, et al.
    (13243)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued April 5
    decision released June 28, 1988

      Timothy S. Fisher, with whom was Lori R. Wilson, for the appellants (plaintiffs).

      James P. Connolly, with whom, on the brief, was Arthur D. Weinstein, for the appellee (defendant National Lumber Company).
   Shea, J.

In this action to recover damages for the collapse of the roof and walls of a building in the town of Glastonbury, owned by the plaintiff Daniel Civiello and leased to the plaintiff Cycle World, Inc., a jury returned a verdict of $153,522 against the defendant National Lumber Company. The defendant filed a motion to set aside the judgment and, alternatively, for a remittitur. A remittitur of $36,000 was ordered on the ground, as had been stipulated by the parties, that the plaintiffs had received that sum before trial from two other original defendants in settlement of the claims against them. The plaintiffs filed an acceptance of the remittitur purporting to reserve without prejudice the right to appeal from the determination of the court that they were not entitled to interest in accordance with General Statutes § 52-192a (b), which allows interest where a plaintiff “has recovered an amount equal to or greater than” his offer of judgment. The plaintiffs had filed an offer of judgment of $125,000 about four months after commencing suit, and, if § 52-192a (b) were satisfied, would have been entitled to interest at 12 percent “computed from the date such offer was filed.” General Statutes § 52-192a (b). The defendant filed an objection in the trial court to the conditional acceptance of the remittitur, but the objection was overruled. The plaintiffs filed their appeal from the “[¡judgment denying interest on the plaintiffs’ offer of judgment.”

This appeal presents two issues: (1) a jurisdictional question, whether a plaintiff who has accepted a remittitur order may, nevertheless, appeal from the judgment containing that order;* * and (2) an issue of statutory construction, whether a plaintiff who has obtained a jury verdict for an amount in excess of his offer of judgment, when that verdict later is properly reduced by the trial court to a sum less than that offer, is entitled to interest pursuant to § 52-192a (b) for having “recovered an amount equal to or greater than” his offer of judgment. We hold that we have jurisdiction to entertain the appeal but that the amount of the judgment rather than the verdict must be compared with the amount of the offer of judgment in deciding whether a plaintiff is entitled to interest under the statute. Accordingly, we find no error.

I

A

The parties appear to have assumed that the jurisdictional issue is one of first impression in this state. This court, however, in Beers v. New York, N.H. & H. R. Co., 89 Conn. 711, 713, 94 A. 919 (1915), rejected the suggestion of a plaintiff, who had refused to file a remittitur and had taken an appeal from an order conditionally setting aside the verdict, that, if his appeal should prove unsuccessful, we should direct judgment for the amount to which the verdict would have been reduced if the remittitur had been accepted. “[The plaintiff] cannot be allowed to speculate upon his chances, and now, without a new trial, recover a judgment for the amount which he rejected in the Superior Court.” Id. In an earlier case approving the practice of ordering a remittitur where the damages awarded by a jury were clearly excessive, we recognized that an order of remittitur presented a plaintiff with a choice of two alternatives: “The plaintiff is not compelled to remit the sum suggested by the trial court, but may elect either to submit to a new trial, or to seek, by an appeal to this court ... to have the order of new trial reversed and judgment rendered for the full amount of the verdict.” Noxon v. Remington, 78 Conn. 296, 300, 61 A. 963 (1905); see Doroszka v. Lavine, 111 Conn. 575, 579, 150 A. 692 (1930). Where the trial court has failed to order an appropriate remittitur for a verdict found to be excessive on appeal, this court has exercised its own prerogative to order a remittitur as an alternative to a new trial. Buckman v. People Express, Inc., 205 Conn. 166, 177, 530 A.2d 596 (1987); Gorczyca v. New York, N.H. & H. R. Co., 141 Conn. 701, 706, 109 A.2d 589 (1954); McCarthy v. Maxon, 134 Conn. 170, 173, 55 A.2d 912 (1947); Rosa v. American Oil Co., 129 Conn. 585, 589-90, 30 A.2d 385 (1943).

While the vintage of our most significant precedent, Beers v. New York, N.H. & H. R. Co., supra, exceeds a half century, the United States Supreme Court more recently has resolved conflicts among the federal courts in favor of adhering to “[a] line of decisions stretching back to 1889” holding that a plaintiff cannot, by accepting the order under protest, “appeal the propriety of a remittitur order to which he has agreed.” Donovan v. Penn Shipping Co., 429 U.S. 648, 649, 97 S. Ct. 835, 51 L. Ed. 2d 112 (1977). The court upheld the Second Circuit Court of Appeals in dismissing the appeal for lack of a final judgment. Donovan v. Penn Shipping Co., 536 F.2d 536 (2d Cir. 1976). The Second Circuit majority opinion, in addition to reliance upon precedent, had stressed three grounds in support of its position: (1) “[t]he proliferation of appeals would be the inevitable consequence” of permitting a plaintiff, who “would have nothing to lose” after guaranteeing himself a minimum verdict, to appeal under protest in an attempt to restore the original verdict; id., 537; (2) the policy against piecemeal appeals embodied in the final judgment rule would be violated by sanctioning an appeal from a conditional order for a new trial; and (3) “in those rare instances where a second trial is required, it provides yet an additional gauge by which the court of appeals can judge the propriety of the remittitur.” Id., 538. These considerations, particularly those relating to efficient judicial administration, were sufficient, in the view of the majority, to overcome the concern of the minority that such a restriction upon a plaintiff is grossly unfair in depriving him of “any real opportunity .to challenge the judge’s use of a remittitur.” Id., 539 (Feinberg, J., dissenting).

A majority of the state courts that have considered the issue have held that at common law the plaintiff who accepts a remittitur in lieu of a new trial is bound by his election and cannot appeal from the judgment ordering the remittitur. Annot., 16 A.L.R.3d 1327, 1329; W. Maywhort, “Remitting Parties’ Right to Cross-Appeal,” 49 N.C.L. Rev. 141 (1970). The rule has been abrogated by statute in at least one state. Tenn. Code Ann. §§ 20-10-102, 20-10-103. It has been modified by statute or judicial decision in several states to permit a plaintiff to file a cross appeal from a remittitur order where the defendant has initiated the appeal, a situation in which considerations of efficient judicial administration would favor the disposition of all of the issues in one appeal. Neb. Rev. Stat. § 25-1929 (1943); Mulkerin v. Somerset Tire Service, Inc., 110 N.J. Super. 173, 264 A.2d 748 (1970); Plesko v. Milwaukee, 19 Wis. 2d 210, 120 N.W.2d 130 (1963).

The plaintiffs in this case do not dispute the force of precedent barring a plaintiff from appealing from a remittitur order that he has accepted. They contend that their appeal can be maintained, nevertheless, because they do not contest the propriety of the $36,000 reduction in the jury verdict, corresponding to the payments received from other tortfeasors, and seek only to challenge the refusal of the trial court to award interest pursuant to § 52a-192a (b), a wholly separate determination. We agree with the plaintiffs that the policies that have persuaded courts to bar appeals from remittitur orders that have been accepted by plaintiffs who also attempt to contest the propriety of such orders are inapplicable to this case. Indeed, we ultimately conclude that the considerations of efficient judicial administration that have been a paramount factor in inducing courts to maintain this bar to appellate review warrant its removal in these circumstances.

B

The reduction of $36,000 in the jury verdict effectuated by the remittitur order in this case did not result from a conclusion of the trial court that the jury had awarded excessive damages based on the evidence presented to it. In accordance with the practice established by General Statutes § 52-216a, the fact that the plaintiffs had received that sum in settlement of their claims against others, who had originally been parties to the action, was never disclosed to the jury. That statute provides that a “remittitur” shall be ordered “[i]f the court . . . concludes that the verdict is excessive as a matter of law . . . .”

In this case the trial court concluded that the $36,000 the plaintiffs had received should be deducted from the verdict not because the jury awarded excessive damages based on the evidence presented, but in order that the plaintiff would “not be unjustly enriched.” The plaintiffs have never disputed that determination. Although the court quite properly used the term “remittitur” in making this reduction in the verdict authorized by § 52-216a, that nomenclature does not alter the character of the adjustment made by the court in rendering judgment. See Alfano v. Ins. Center of Torrington, 203 Conn. 607, 610-11, 525 A.2d 1338 (1987). Since the plaintiffs never claimed that the $36,000 reduction in the award of damages was improper, the court effectively set off the amounts paid in settlement by other defendants against the total damages the jury found the plaintiffs had sustained. Such a deduction from a verdict is not to be confused with a remittitur pursuant to General Statutes § 52-228b, where the plaintiff has the alternative of a new trial if he fails to accept the remittitur order. In this case, since the propriety of the reduction was never disputed, there was no reason to order a new trial.

Accordingly, we conclude that the reduction in the verdict ordered by the trial court was a final judgment from which the plaintiffs are entitled to appeal. There could properly be no further proceedings in the trial court to affect that determination, which neither party seeks to challenge. Under these circumstances it would be an exercise in futility to insist that there be a new trial, which would provide no additional light upon the issue of whether the plaintiffs are entitled to interest based on the present award. Considerations of judicial efficiency in this case clearly demand resolution of that issue in this appeal.

II

The plaintiffs’ claim for interest is based on the provision of § 52-192a (b) that requires the court, when “the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ ” to “add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981.” The offer of judgment for $125,000 was filed by the plaintiffs on November 22, 1979. The jury verdict of $153,522 was returned on April 10,1987, and the judgment on the verdict, ordering that the plaintiffs recover that sum less a remittitur of $36,000, subject to their option for a new trial, was rendered on June 3, 1987.

The plaintiffs contend that, because the verdict of $153,522 without the $36,000 reduction ordered by the court exceeds their offer of judgment, they have recovered more than their $125,000 offer of judgment and, therefore, are entitled to interest pursuant to § 52-192a (b). The issue turns upon whether the term “recovered” in the statute refers to the verdict as returned by the jury or the judgment thereon as rendered by the court after making appropriate adjustments. Some of the definitions of “recover” in the legal context are “to gain by legal process”; Webster’s Third New International Dictionary; “to acquire by means of litigation”; Ballentine’s Law Dictionary (3d Ed.); “to get or obtain again, to collect, to get renewed possession of; to win back”; Black’s Law Dictionary (5th Ed.); and “to obtain by course of law; to obtain by means of an action; or by the judgment rendered in an action; to succeed in an action.” Bouvier’s Law Dictionary (Baldwin’s Century Ed. 1934). A person gains or obtains nothing by a jury verdict, of course, unless that verdict is ultimately transformed into a judgment. A verdict is essentially a finding of fact and cannot be implemented until judgment has been rendered thereon.

Apart from this lexicographical illumination of the subject, it would be incongruous to reward a plaintiff with interest pursuant to the statute where his offer of judgment proves to be excessive in the light of the ultimate judgment of the court. Where a jury verdict is properly deemed excessive and accordingly reduced by a remittitur when judgment is rendered, the statute could not have been intended to impose the interest penalty upon a defendant for failing to accept an offer of judgment exceeding the upper limit of reasonable compensation as determined by the court. A defendant is not bound at his peril to accept an offer of judgment that is excessive as a matter of law simply because of the possibility that a jury may award such an exorbitant sum. The proposition advanced by the plaintiff that the amount of the verdict and not the judgment should be determinative of the allowance of interest under § 52-192a would provide an incentive for a plaintiff to make an offer of judgment far in excess of what the law would deem reasonable.

The plaintiffs contend that the policy of encouraging settlements, which is the underlying purpose of § 52-192a, will be defeated if we construe the term “recovered” to refer to the judgment rather than the verdict. They maintain that “[i]f partial settlements are held to reduce a plaintiff’s ‘recovery’ below the offer of judgment figure, that will create a disincentive to enter into partial settlements.” On the other hand, where there are multiple defendants, no one of them would ordinarily be inclined to accept an offer of judgment for a sum approaching the full amount of damages likely to be awarded to a plaintiff, unless the likelihood of his being held solely liable were extreme. In this case the plaintiffs filed an offer of judgment against each of several defendants in the sum of $125,000. In such a situation each defendant would have little incentive to accept such an offer because of his expectation that some other defendant would eventually contribute to the reduction of his potential exposure for damages by pretrial settlement or by apportionment of responsibility in the ultimate judgment. See General Statutes §§ 52-572h (c), 52-572o. The decision of the defendant National Lumber Company not to accept the offer of a $125,000 judgment against it was ultimately vindicated by the circumstance that two other defendants paid a total of $36,000 in satisfaction of their share of the joint responsibility of all the defendants. The plaintiffs never attempted to file a revised offer of judgment, as the statute permits, making some allowance for the payments they had received. We are not persuaded that the “disincentive to enter into partial settlements” posited by the plaintiffs is of any more significance- in the expeditious disposition of law suits than the incentive we would be creating for plaintiffs not to file revised offers of judgment as circumstances change the ultimate value of a case while it is awaiting trial.

Furthermore, to make the amount of the jury verdict rather than the judgment thereon the criterion for determining whether a plaintiff has recovered more than his offer of judgment would create a disparity between court and jury trials inconsistent with the legislative intention that § 52-192a (b) apply to both in the same manner. In a bench trial, § 52-216a permits evidence of a settlement with another tortfeasor to be introduced so that the court may in the judgment rendered make allowance for the payments the plaintiff has already received from others. Prior to the advent of § 52-216a, evidence of such payments was also admissible in jury trials, and the jurors were instructed to reduce the total amount of damages a plaintiff was found to have sustained by the amount of the payments he had received. Kosko v. Kohler, 176 Conn. 383, 387, 407 A.2d 1009 (1978). The enactment of § 52-216a, which bars evidence of such payments in a jury trial, was intended to ensure that jury verdicts would not be influenced by the knowledge of a partial settlement. This procedural objective should be achieved without producing different results in court and jury trials with respect to the allowance of interest pursuant to § 52-192a (b). In the present case, if the trial had been to the court without a jury and the same damages of $152,522 were found as the plaintiffs’ loss, unquestionably the $36,000 they had already received would have resulted in a judgment of $117,522, less than the $125,000 offer of judgment. To allow the same factual determination of damages by the jury to produce a different result with respect to the allowance of interest under § 52-192a (b) would conflict with the evident legislative purpose of achieving uniformity in the application of the statute to both court and jury trials.

There is no error.

In this opinion the other justices concurred.

       The action was brought against six defendants. Before trial it was withdrawn against four original defendants, two of which, Hydro Air Engineering, Inc., and Edmund Cox paid a total sum of $36,000 in settlement of the claims against them. In the trial against the remaining defendants, Quality Lumber Company and National Lumber Company, the jury returned a verdict for the former but against the latter. The opinion refers to National Lumber Company, the appellee, as the sole defendant.

       General Statutes § 52-192a (b) provides: “After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1,1981. In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       It should be noted that General Statutes § 52-228a provides expressly that in any jury case where the court orders a remittitur or an additur, the party aggrieved “may appeal as in any civil action.” The statute also provides that “[t]he appeal shall be on the issue of damages only, and judgment shall enter upon the verdict of liability and damages after the issue of damages is decided.”
      The legislative history of this enactment indicates that its purpose was to limit the issues to damages when a new trial is ordered pursuant to a remittitur or additur, making it unnecessary to retry the issue of liability as the former practice had required. 11 S. Proc., Pt. 7,1965 Sess., p. 2625, remarks of Senator T. Clark Hull; 11 H.R. Proc., Pt. 8,1965 Sess., p. 3675, remarks of Representative Robert Satter. There is no indication that the statute was intended to remove the necessity for a new trial entirely or to permit a party to accept a remittitur or additur while also challenging its propriety.

       “[General Statutes] Sec. 52-216a. reading of agreements or RELEASES TO JURY PROHIBITED. ADJUSTMENTS FOR EXCESSIVE AND INADEQUATE verdicts permitted. An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”

       “[General Statutes] Sec. 52-228b. setting aside of verdict in action claiming money damages. No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       In 1982, the legislature amended the provision concerning the calculation of interest on the amount “contained in such offer” by substituting the amount “of the verdict,” corresponding to the provision for adding such interest “to the verdict.” Public Acts 1982, No. 82-228. A further amendment in 1983 substituted “add to the amount so recovered [interest] on said amount” for “add to the verdict [interest] on the amount of the verdict.” Public Acts 1983, No. 83-295. This 1983 amendment apparently was occasioned by the legislative intention to make it clear that General Statutes § 52-192a is applicable to court as well as jury trials. See Kusha v. Respondowski, 3 Conn. App. 570, 575, 490 A.2d 1014 (1985).