author: SULLIVAN, C. J.

text:
    STATE OF CONNECTICUT v. JOHN BRONSON, SR.
    (SC 16273)
    Sullivan, C. J., and Borden, Norcott, Palmer and Ronan, Js.
    Argued March 23
    officially released September 11, 2001

      Susan M. Hankins, assistant public defender, with whom, on the brief, were Thomas West and David DeRosa, certified legal interns, for the appellant (defendant).

      Marjorie Allen Da,usier, senior assistant state’s attorney, with whom were Elizabeth C. Learning, assistant state’s attorney, and, on the brief, Patricia, A. Swords, state’s attorney, and Toni Smith-Rosario, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, C. J.

The defendant, John Bronson, Sr., was convicted by a jury of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. 3He was sentenced to serve a total effective sentence of thirty months. The dispositive issue is whether the defendant was entitled to a court-appointed expert’s examination of the alleged child victim when, during the child’s testimony, her ability to testify reliably in the presence of the defendant suddenly came into question. We conclude that, under the circumstances of this case, the defendant was entitled to such an examination. Accordingly, we reverse the judgment of conviction.

The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of the trial court. State v. Bronson, 55 Conn. App. 717, 740 A.2d 458 (1999). We granted the defendant’s petition for certification to appeal from the judgment of the Appellate Court. State v. Bronson, 252 Conn. 944, 747 A.2d 523 (2000). On appeal before this court, the defendant claims that the Appellate Court improperly: (1) concluded that the trial court had properly denied the defendant’s motion for a continuance in order to prepare for an unexpected hearing on whether to videotape the testimony of the victim pursuant to General Statutes § 54-86g; (2) concluded that the trial court had properly denied the defendant’s motion for an examination of the victim by a court-appointed expert; (3) affirmed the trial court’s denial of the defendant’s motion for a mistrial; (4) affirmed the trial court’s denial of the defendant’s motion to redact portions of the pretrial videotape of the interview of the victim; and (5) concluded that the record was inadequate to review the defendant’s claims that the trial court had violated the defendant’s rights under Practice Book § 40-13 (d) or article first, § 8, of the Connecticut constitution and the fifth, sixth and fourteenth amendments to the United States constitution by precluding the defendant from presenting six character witnesses. We reverse the judgment of the Appellate Court as to the first two issues and, therefore, need not reach the remaining issues.

The opinion of the Appellate Court sets forth the relevant facts. “From September through November, 1994, the defendant’s daughter-in-law left her four year old daughter, M, and her one and one-half year old son, A, with the defendant and his wife, the children’s grandparents, while she went to work part-time. When the defendant and his wife took care of the children, the children would spend the prior night with them.

“On or about November 10, 1994, when M’s mother came to the grandparents’ house to take the children home, the defendant’s wife told M’s mother that M had wet her pants while playing. M’s mother decided to wait until she got home to change M. She gave both A and M baths. While drying M, she noticed that M’s vaginal area was red and puffy, and asked what was wrong with her ‘pee-pee.’ M responded that she did not know, but when asked if someone had touched her there, M responded, ‘Yes.’ When M’s mother asked who had touched her, M responded that the defendant had touched her.

“Elaine Yordan, a physician, examined M on November 21, 1994. Yordan found that M’s vaginal area was normal and noted that her finding was not inconsistent with M’s statement. The next day, Diane Edell, program coordinator and interviewer at the child abuse diagnostic center at Saint Francis Hospital and Medical Center, interviewed M. That interview was videotaped. M stated that the defendant had touched her ‘pee-pee’ with his hand while they were lying on a couch.” State v. Bronson, supra, 55 Conn. App. 719-20. Additional facts will be set forth as necessary.

We first address the defendant’s claim that the Appellate Court improperly upheld the trial court’s denial of the defendant’s motion for a court-appointed expert’s examination of M. The defendant argues that this examination was necessary because M’s breakdown on the witness stand was a complete surprise to all parties and was in direct conflict with the state expert’s prior assessment of the child’s ability to testify reliably. As a result of that assessment, no hearing pursuant to State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988) (evidentiary hearing necessary for state to demonstrate compelling need for excluding defendant from room during videotaping of minor victim’s testimony) was held prior to the trial, and M began her testimony in the defendant’s presence. The defendant claims that the denial of his request was an abuse of the trial court’s discretion. We agree, and we conclude that because the request for expert examination should have been granted, we necessarily are compelled to conclude that the defendant’s request for a continuance also was improperly denied.

The following additional facts are pertinent to the defendant’s claim. Prior to trial, the state had informed the court and the defendant that videotaping M’s testimony would not be necessary. This was determined pursuant to the state’s representation that M’s treating therapist had assessed that M was emotionally capable of testifying in open court.* ** On Friday, September 13, 1996, the state called M as its first witness. During direct examination, M was able to testify regarding general subjects, such as her name and birthday, and was able to give information about her school and family. When the prosecutor began to question her about the sexual assault, however, M began to cry, and Linda Heslin, the victim’s advocate, came up to the witness stand, picked up the child and left the courtroom. The court then excused the jury, stating: “Ladies and gentlemen, it’s become clear to us that we’re not going to be able to resume the testimony at this point . . . .”

When court reconvened, the state moved for a hearing pursuant to State v. Jarzbek, supra, 204 Conn. 683, to determine whether the state would be permitted to videotape the remainder of M’s testimony outside the presence of the defendant, pursuant to § 54-86g. Eleven minutes later, the defendant moved for a continuance until the next court session in order to conduct legal research in preparation for this hearing. The court denied the defendant’s motion and held the Jarzbek hearing that same afternoon. At the hearing, defense counsel moved for an expert examination of M. The trial court responded, “I just don’t think expert testimony is required based on what’s been said here. We’ve got laypeople testifying. It’s based on their observations of the child in the court, and I don’t think a further continuance is necessary.” As a result of the Jarzbek hearing, M’s testimony was videotaped.

I

The defendant claims that the trial court abused its discretion by denying: (1) his request for a continuance; and (2) his request for appointment of an expert to examine M. We conclude that, under the particular facts and circumstances of this case, the appointment of an expert to examine M was required. That conclusion renders it unnecessary for us to consider the denial of the continuance separate from the question of the denial of the appointment of an expert.

Pursuant to § 54-86g, the trial court is afforded the discretion necessary to grant a motion to have a child victim testify outside of the presence of the defendant. “The [ability] of a witness [to testify reliably] is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law.” (Internal quotation marks omitted.) State v. Marquis, 241 Conn. 823, 836, 699 A.2d 893 (1997).

In the exercise of this discretion, the trial court must conduct an assessment of the victim’s reliability as a witness pursuant to the test set forth in Jarzbek. “We . . . mandate a case-by-case analysis, whereby a trial court must balance the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question. ... [A] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. Furthermore, the state bears the burden of proving such compelling need by clear and convincing evidence.” (Citation omitted.) State v. Jarzbek, supra, 204 Conn. 704-705.

To this end, the trial court has the discretion to order an expert’s examination or to grant a party’s request for such an examination. In State v. Marquis, supra, 241 Conn. 836, we held that a trial court has the discretion to order that a child witness be examined by an expert witness before deciding whether to grant the state’s Jarzbek motion. We concluded that the defendant was entitled to have the examination of the child victim by the defense’s own expert. Id. We stated that it was an issue of “fundamental fairness to the defendant [that] required that [the expert] be allowed to examine [the alleged victim].” Id. “If the defendant is entitled to a hearing on the state’s motion for videotaped testimony, he is entitled to have the trial court ensure that such a hearing is meaningful because, as we recognized in Jarzbek, the hearing on the motion serves to protect the right of an accused to confront witnesses against him as guaranteed by the confrontation clause of both the federal and state constitutions.” (Internal quotation marks omitted.) Id., 837.

Furthermore, we note that the criteria to be assessed in this evaluation must not include the possible trauma the victim might experience by testifying in the presence of the defendant. “[I]n light of the constitutional right of confrontation at stake here, the primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony, not on the injury that the victim may suffer by testifying in the presence of the accused.” (Emphasis added.) State v. Jarzbek, supra, 204 Conn. 705. Thus, it is not sufficient that the victim cried. The inquiry must be allowed to go further and determine whether there is a loss of the witness’ reliability.

II

The defendant argues that the state failed to prove that M was incapable of providing reliable testimony while in the defendant’s presence. The defendant claims that because M’s breakdown while on the witness stand was so unexpected in light of her therapist’s evaluation, he was therefore entitled to an objective expert’s opinion of M’s reliability. The state argued that such an examination was not warranted. We conclude that the defendant’s request for an expert’s assessment should have been granted.

The standards that we articulated in State v. Marquis, supra, 241 Conn. 823, as applied to the facts of this case, lead us to conclude that: (1) the trial court abused its discretion in denying the defendant’s motion for an expert examination of M; (2) the defendant cannot be required to establish a particular harm in the circumstances of this case; and (3) these conclusions compel the further conclusion that the continuance should have been granted.

In Marquis, we held that “a trial court has the discretion, under . . . Jarzbek . . . and ... § 54-86g, to order that a child witness be examined by an expert witness for the defense before deciding whether to grant the state’s motion for videotaped testimony pursuant to § 54-86g (a).” Id., 824-25. “[I]n criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. [The] holding that appropriate circumstances may warrant a departure from strict compliance with confrontation requirements does not, however, signal a relaxation of the underlying evidentiary requirement that appropriate circumstances be proven to exist. . . . There is no constitutional justification for automatically depriving all criminal defendants of the right of physical confrontation during the videotaping of a minor victim’s testimony. . . .

“[A] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. Furthermore, the state bears the burden of proving such compelling need by clear and convineing evidence. Cf. United States v. Wade, 388 U.S. 218, 240, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) (application of clear and convincing standard to questions of admissibility involving constitutional requirements going to reliability of evidence); United States v. Thevis, [665 F.2d 616, 631 (5th Cir.), cert. denied, 456 U.S. 1008, 102 S. Ct. 2300, 73 L. Ed. 2d 1303 (1982)] (application of clear and convincing standard to determine whether defendant waived right of confrontation by reason of his own misconduct). . . . [I]n light of the constitutional right of confrontation at stake here, the primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony .... State v. Jarzbek, supra, 204 Conn. 704-705. . . .

“Jarzbek requires an individualized, case-by-case assessment of the need to resort to the videotaping of the complaining minor witness’ testimony outside the physical presence of the accused. State v. Bonello, 210 Conn. 51, 58-59, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. [2103], [104] L. Ed. 2d [664] (1989). . . .

“In State v. James, 211 Conn. 555, 563-65, 560 A.2d 426 (1989), we compared § 54-86h to rule 601 of the Federal Rules of Evidence, which provides in relevant part that [e]very person is competent to be a witness .... We noted that [t]his rule reflects the philosophy that few persons are inherently incapable of testifying in a useful manner. Comment, The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?, 40 U. Miami L. Rev. 245, 252 (1985). State v. James, supra, 563. We also noted, however, that [r]ule 601 has not been construed to remove wholly the traditional control a judge may exercise to ensure that evidence presented to a jury has at least a minimum degree of reliability and relevance. Id., 564. The trial court maintains the authority to admit or exclude the testimony of a child based on the court’s assessment of the child’s ability to offer relevant and reliable evidence. By requesting permission to videotape [the victim’s] testimony outside the presence of the defendant, the state called into question [the victim’s] ability to testify reliably in a formal courtroom setting and in the presence of the defendant. In such a situation, the trial court has the authority to take those measures it considers necessary to determine that ability. Id.

“The [ability] of a witness [to testify reliably] is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law. State v. Orlando, 115 Conn. 672, 675, 163 A. 256 [1932], State v. Manning, 162 Conn. 112, 115, 291 A.2d 750 (1971). . . .

“[T]he ends of justice will best be served by a system . . . [that] gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial. See, e.g., Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash. U.L.Q. 279; American Bar Association Project on Standards for Criminal Justice, Discovery and Procedure Before Trial 23-43 (Approved Draft 1970); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149 (1960). Wardius v. Oregon, 412 U.S. 470, 473-74, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973). [I]n the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. Id., 475.” (Internal quotation marks omitted.) State v. Marquis, supra, 241 Conn. 833-37.

The court held the Jarzbek hearing only a very short time after M had been removed from the stand. At that hearing, M’s father testified that she was “[v]ery uncomfortable” testifying in the defendant’s presence, and that he did not know if she was fearful. Heslin testified that M was “mad at [the defendant] and scared to go back [into the courtroom].” This evidence suffered from the fact that it came from persons focused, not on the necessity of ensuring the reliability of M’s testimony, but on M’s needs. Furthermore, it was based on a veiy short period of time in which the inquiry into that reliability could be made. Thus, insofar as the record discloses, there was no inquiry into the possibility that, despite what had occurred while M was on the stand, she might, within a reasonable time period, such as the ensuing weekend, recover sufficiently to resume the stand and testify in the defendant’s presence. In addition, the state had earlier represented to the court that M’s treating therapist had determined that M was capable of testifying in the defendant’s presence. Thus, at the point in the proceedings at which the Jarzbek hearing was held, there was on record an expert’s opinion to that effect, and the immediately preceding occurrences were not sufficient, in content and length, conclusively to rebut that opinion. Given all these facts, we conclude that the court abused its discretion in denying the defendant’s request for a second expert to be appointed to assess M’s ability to testify reliably in the defendant’s presence.

With respect to whether this ruling of the trial court harmed the defendant, we conclude that, in these particular circumstances, harm may be presumed. It would be impossible for the defendant to establish now that, had the motion been granted, the court-appointed expert would have testified that M could have testified in the defendant’s presence. Thus, in this circumstance, where the court abused its discretion in denying the motion, we must presume the requisite prejudice to the defendant to require reversal of the judgment.

This conclusion also controls the defendant’s separate claim that the court abused its discretion in denying his antecedent motion for a continuance. In light of our conclusion that the court should have granted the motion to appoint an expert to examine the child, it follows that a continuance for that purpose, if for no other, was necessary.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case for a new trial.

In this opinion the other justices concurred.

       General Statutes § 53a-73a provides in relevant part: “(a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . .

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 54-86g (a) provides: “In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to taire the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. If the defendant is excluded from the room or screened from the sight and hearing of the child, the court shall ensure that the defendant is able to observe and hear the testimony of the child, but that the child cannot see or hear the defendant. The defendant shall be able to consult privately with his attorney at all times during the talcing of the testimony. The attorneys and the judge may question the child. If the court orders the testimony of a child to be taken under this subsection, the child shall not be required to testify in court at the proceeding for which the testimony was taken.”

       Practice Book § 40-13 (d) provides: “No witness shall be precluded from testifying for any party because his or her name or statement or criminal history was not disclosed pursuant to this rule if the party calling such witness did not in good faith intend to call the witness at the time that he or she provided the material required by this rule. In the interests of justice the judicial authority may in its discretion permit any undisclosed individual to testify.”

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him .... No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . .
      The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be deprived of life, liberty, or property, without due process of law . . . .”
      The sixt h amendment 1 o 1 he United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . i o be confront ed with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without, due process of law . . . .”

       “Shelley Ainsworth was M’s treating therapist at the relevant time. According to the state, “Ainsworth opined that M was competent and would be able to testify." Relying on this assessment, a Jarzbek hearing was not requested before trial.

       The relevant testimony was as follows:
      “[Assistant State’s Attorney]: Does the grandpa have a beard and moustache, the one that we’re talking about?

        “[M]: Yes.
      “Q. Okay. And you said you played the game called Rex with this—
      “A. Yes.
      “Q. And why do you call him the bad grandpa?
      “A. I don’t know.
      “Q. Is that how you feel?
      “A. Yes.
      “Q. Do you have another grandpa?
      “A. Yes.
      “Q. Okay. And what do you call him?
      “A. Grandpa.
      “Q. When you played the game called Rex with your other grandpa, the one that’s in the courtroom today, whose name was Rex?
      “A. The bad grandpa.
      “Q. Do you remember what your name was when you played that game?
      “A. No.
      “Q. Did you have a special name?
      “A. No.
      “Q. Can you tell us what happened when you played the game called Rex with the bad grandpa?
      “A. Yes.
      “Q. Okay. Why don’t you tell us.
      “A. My private.
      “Q. What about your private? Did something happen to it?
      “A. Yes.
      “Q. Can you tell us what happened to it? You can take your time.
      “A. (Pause) No.
      “Q. You don’t want to tell us? Did any part of grandpa’s—Did any part of grandpa touch your private?
      “A. Yes. . . .
      “Q. What part of his body touched your private, [M]?
      “A. His hand.
      “Q. When grandpa’s hand touched your private, did it touch you on your private or was it on the inside of your private?
      “A. I can’t remember.
      “Q. Okay. That’s okay.
      “Can you tell us what it felt like when he touched you on your private?
      “(At this time, [M] started to cry.)
      “Do you want to take a break? . . .
      “Okay. May we have a brief recess?
      “The Court. We’re going to taire a short recess, ladies and gentlemen. Well excuse you from here and then we’ll call you back and we can resume.
      “Okay. [M] you can go with this lady.
      “(Whereupon, the victim’s advocate picked up the witness and took her out of the courtroom.)”

       Defense counsel stated: “I’d ask for a continuance to allow me to address this motion. I received 1he motion at three minutes to two. It is now, by my clock, eight minutes after two. . . . My review of the case law over the luncheon recess indicates there has to be an evidentiary hearing, and I see that as allowing me to present testimony, and I would like a continuance till Tuesday to prepare for this, prepare for the evidence . . . .”


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    MARY E. SMITH v. CITY OF NEW HAVEN
    (SC 16485)
    Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.
    Argued May 29
    officially released September 11, 2001

      Audrey C. Kramer, assistant corporation counsel, for the appellant (defendant).

      Michael S. Burrell, for the appellee (third party defendant).
   Opinion

BORDEN, J.

The sole issue in this appeal is whether a municipal defendant, sought to be held liable for breach of its statutory duty to maintain and repair local roadways under General Statutes § 13a-149, may seek indemnification from a third party who, the municipality alleges, actively and negligently caused the plaintiffs injuries. The defendant, the city of New Haven, appeals from the judgment of the trial court granting the motion for summary judgment of the third party defendant, The Mary Wade Home, Inc. (Mary Wade Home), on the defendant’s third party complaint. On appeal before this court, the defendant claims that application of the sole proximate cause doctrine to the facts of this case does not preclude a cause of action for indemnification. We disagree and affirm the judgment of the trial court.

The plaintiff, Mary E. Smith, brought the underlying action against the defendant pursuant to § 13a-149, the municipal defective highway statute. The defendant then impleaded Mary Wade Home, a private landowner whose property abutted the location of the plaintiffs accident. By its third party complaint, the defendant brought a claim for indemnification against Mary Wade Home alleging that its “active conduct and negligence,” rather than any act or omission by the defendant, “was the direct and immediate cause of . . . [the plaintiffs] injury . . . .”* * Mary Wade Home moved to strike the defendant’s third party complaint, and the trial court, Blue, J., granted the motion. The defendant then filed an amended third party complaint for indemnification. Mary Wade Home moved for summary judgment on the third party complaint, which the trial court, Licari, J., granted, and rendered judgment accordingly. This appeal followed.

The facts and procedural history relevant to this appeal are as follows. The plaintiff brought an action against the defendant for injuries resulting from an April 23, 1996 incident that occurred on Pine Street in New Haven. As the plaintiff was descending a handicap ramp from the sidewalk into the street, she allegedly stepped into a hole. Her foot caught against the side of the hole and she fell, fracturing her arm and sustaining several cuts and bruises. The plaintiff then brought a complaint against the defendant pursuant to § 13a-149, alleging that the defendant had breached its duty to maintain its streets in a reasonably safe condition, which resulted in her injuries.

The defendant thereafter impleaded Mary Wade Home, whose property abutted Pine Street. By way of a third party complaint, the defendant alleged that Mary Wade Home had constructed the handicap ramp that the plaintiff was descending at the time of her accident, and that it had failed to obtain the requisite permit for the installation of the ramp. According to the defendant, the construction of the handicap ramp had caused the surface of the roadway to become “uneven, raised . . . of varying heights and in a state of disrepair that it rendered pedestrian traffic hazardous and dangerous . . . .” The defendant also alleged that Mary Wade Home had exclusive control over the locus of the accident, that Mary Wade Home knew or should have known that installation of the ramp had caused a tripping hazard to pedestrians, and that Mary Wade Home was negligent in not correcting or repairing the defect. As a result, the defendant alleged, Mary Wade Home had a duty to indemnify it against any damages recovered by the plaintiff.

Mary Wade Home moved to strike the third party complaint for indemnification, which the trial court granted. The defendant then filed an amended third party complaint against Mary Wade Home. Mary Wade Home moved for summary judgment on the amended complaint, claiming that the doctrine of sole proximate cause was incompatible with principles of indemnification. The trial court rendered summary judgment in favor of Mary Wade Home.

The defendant claims that the sole proximate cause doctrine regarding municipal liability under § 13a-149 does not preclude an action for indemnification. The defendant argues that the sole proximate cause doctrine precludes the liability of a municipality for injuries resulting from defects in its sidewalks or roadways only when the plaintiff was contributorily negligent. Thus, according to the defendant, a municipality can be held liable under § 13a-149 even when a third party’s negligence was a contributing cause of the plaintiffs injuries. The defendant contends further that where, as here, the municipality has paid the plaintiff in satisfaction of her claims, it is entitled to indemnification by the alleged third party tortfeasor whose active negligence was primarily responsible for the plaintiffs injuries. We conclude that, because the sole proximate cause doctrine precludes municipal liability, not only where the plaintiff was contributorily negligent, but also where other purported tortfeasors or independent nontortious factors contributed to the injury, no right to indemnification exists in actions brought pursuant to § 13a-149. Accordingly, we affirm the judgment of the trial court.

We focus primarily on the scope of the sole proximate cause doctrine as applied in the context of the municipal defective highway statute because this issue is disposilive of the defendant’s claim for indemnification. The roots of § 13a-149 extend as far back as 1672, when our legislature originally abrogated municipal common-law immunity for actions arising from defective highway conditions. See White v. Burns, 213 Conn. 307, 313, 567 A.2d 1195 (1990). The 1672 act was similar in both language and import to its progeny, § 13a-149. That act was codified at § 2673 of the 1887 revision of the General Statutes, and provided in relevant part that “[a]ny person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair; but no action for any injury shall be maintained against any town, city, corporation, or borough, unless written notice of such injury, and the nature and cause thereof ... be given to a selectman of such town or to the clerk of such city, corporation, or borough . . . .”

We first identified sole proximate cause as the standard for determining municipal liability under the 1672 act in Bartram v. Sharon, 71 Conn. 686, 690, 43 A. 143 (1899). In Bartram, the court acknowledged that, under the statute, a municipality should be held responsible for any injuries resulting from a defect in the highway of which the town knew or should have known, and that the town failed or neglected to repair despite having reasonable time to do so. Id., 694-95. We also stated, however, that “[i]t is the statute only, which entitles the plaintiff to compensation for his injury when that injury is caused through or by means of a defect in the highway. If the negligence of himself or of a third person is also a proximate cause, he cannot say with truth that he was injured by the defect; he can only say with truth that he was injured by his own or another’s carelessness and the defect, and the two combined give no cause of action under the statute.” (Emphasis added.) Id., 690.

Thus, from the inception of the sole proximate cause doctrine, we have embraced the notion that a municipality’s liability under the defective highway statute may be defeated by a showing of negligence on the part of either the plaintiff or some third party. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 197, 592 A.2d 912 (1991) (“[§] 13a-149 does not permit recovery unless the defect was the sole proximate cause of the injury, even if the concurring cause was a third party’s negligence”); Roth v. MacDonald, 124 Conn. 461, 463, 200 A. 725 (1938) (driver’s negligence was contributing factor to accident, relieving municipality of liability for passengers’ injuries); Messina v. New Haven, 119 Conn. 166, 168, 174 A. 188 (1934) (“when an injury results from a defect combined with the culpable negligence of a third party it cannot be said to have been caused by the defect, and cannot be made the subject of recovery under the statute giving a right of action against a municipality for injuries resulting from such defect”). We also have recognized that natural causes or conditions may vitiate a municipality’s liability under the statute. See Frechette v. New Haven, 104 Conn. 83, 89, 132 A. 467 (1926) (“if the injury would not have occurred but for the natural cause, the defect cannot be held to have produced the injury, nor can it be held to have been the essential cause of the injury”); Messina v. New Haven, supra, 168 (“[w]here . . . the injury is the result of a defect combined with an accident—in the sense of an occurrence for which no one is responsible—or a natural cause which was a natural incident of the use of the highway, the municipality is liable unless it appears that the accident or natural cause was so direct and separate in its operation that it, and not the defect, must be held to have been the essential or proximate cause of the injury”); Agriesto v. Fairfield, 130 Conn. 410, 413, 35 A.2d 15 (1943) (same).

In two recent cases, Williamson v. Commissioner of Transportation, 209 Conn. 310, 321, 551 A.2d 704 (1988), and White v. Burns, supra, 213 Conn. 315, we confirmed that the presence of third party negligence vitiates statutory governmental liability for the failure to maintain and repair highways, roadways and bridges. Although these cases dealt specifically with General Statutes § 13a-144, the state defective highway statute, they are nonetheless persuasive authority with respect to the construction of the municipal defective highway statute because §§ 13a-144 and 13a-149 have always been regarded as in pari materia as far as the scope of the governmental entity’s obligation is concerned.

At issue in Williamson v. Commissioner of Transportation, supra, 209 Conn. 310, was the propriety of certain jury instructions. In discussing the plaintiffs burden of proof, the trial court charged: “If there has been an injury caused by a defect in the highway, and all other elements have been proven, the plaintiff may still not recover unless she shows that there is no negligence, carelessness or inattention by herself or a third person which contributed to such injury. That is to say that even if the road were defective, if there is any negligence by the [plaintiff], even one percent, she may not recover. Likewise, if a third person was careless, and that carelessness caused in any way the plaintiff s injuries, she is not entitled to recover, which likewise, if a third person were careless, negligent, and that caused in any way the plaintiffs injuries, she is not entitled to recover. ” (Emphasis added; internal quotation marks omitted.) Id., 321. We concluded that “[t]he court’s charge on third party negligence [was] a correct statement of the law”; id.; and cited Bartram v. Sharon, supra, 71 Conn. 690, for support.

Even more recently, in White v. Burns, supra, 213 Conn. 310-11, we were asked to reexamine our construction of the state defective highway statute and to abandon sole proximate cause as the standard for governmental liability. In declining to do so, we discussed the history of §§ 13a-144 and 13a-149, paying particular attention to Bartram and the origins of sole proximate cause. Id., 313-16. We cited with approval that portion of Bartram in which the court had observed: “[A]n injury caused by the culpable negligence of a [plaintiff] . . . does not happen by means of or through a defect in the highway, even if such defect were a concurring cause. One reason why a person injured through his own carelessness cannot maintain an action against the town is, that the injury caused by his own carelessness is not through or by means of the defect. This reason applies with equal force when the injury is caused through the carelessness of a third person.” (Emphasis in original; internal quotation marks omitted.) Id., 315.

Municipal liability under § 13a-149 may thus be defeated by more than just the fact that the plaintiff was contributorily negligent. As our cases illustrate, if the negligence of a third party is also responsible for the plaintiffs injuries, the municipality will be completely exonerated. Once we arrive at this correct statement of the law, it becomes apparent that the defendant’s common-law claim for indemnification under Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 207 A.2d 732 (1965), must fail.

Kaplan imposes an implied obligation of indemnity on a tortfeasor whose active negligence is primarily responsible for a plaintiffs injuries, thus superseding the indemnitee’s passive negligence. Id., 412. To assert a claim for indemnification under Kaplan, an out-of-pocket defendant must show that: (1) the party against whom the indemnification is sought was negligent; (2) that party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting injuries and death; (3) the other party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the other party’s negligence, had no reason to anticipate it, and reasonably could rely on the other party not to be negligent. Id., 416.

The presence of two tortfeasors is thus required for a viable claim of indemnification under Kaplan: one, whose passive negligence resulted in a monetary recovery by the plaintiff; and a second, whose active negligence renders him liable to the first by way of reimbursement. Id., 415. A finding of two culpable tortfeasors, however, is logically inconsistent with our definition of sole proximate cause because a determination that the defect in question is the sole proximate cause of the plaintiffs injuries implicitly reheves any third parties from liability. There is, therefore, no right to indemnification on the part of the municipality.

Put another way, the presence of third party negligence necessarily results in a finding that the defect was not the sole proximate cause of a plaintiff s injuries. Such a determination would relieve the municipality of all liability, thereby vitiating the basis for indemnification. Because § 13a-149 either renders the municipality, and the municipality alone, liable to the plaintiff, or exculpates the municipality entirely, the equitable obligation to indemnify a municipality under Kaplan does not exist in actions brought under § 13a-149.

Moreover, in Lukas v. New Haven, 184 Conn. 205, 212, 439 A.2d 949 (1981), we acknowledged that “[General Statutes] § 52-572h does not apply to actions for personal injuries based on . . . § 13a-149.” Section 52-572h governs, in part, liability for multiple tortfeasors in negligence actions. It expressly provides for an apportionment of liability among those individuals whose negligence is found to be the proximate cause of a plaintiffs injury and a right of contribution for parties who pay more than their proportionate share of the judgment. That this right of contribution is not applicable in the context of § 13a-149 is additional, persuasive evidence that no right to indemnification exists where a defective municipal road is found to be the sole proximate cause of the plaintiffs injuries. Irrespective of the substantive differences between the common-law doctrines of contribution and indemnification, both are premised on the same fundamental principle that the party seeking redress from a codefendant must have been negligent. As previously stated, a finding of sole proximate cause under § 13a-149 places liability solely on the shoulders of the municipality that had the burden of maintaining and repairing defects in its roads or sidewalks. Such a finding thus precludes the legal possibility that another party also may be responsible for a plaintiffs injuries. Moreover, if the negligence of either the plaintiff or a third party was a contributing factor, the municipality necessarily will be relieved of any liability under the statute. In that instance, the municipality cannot be deemed to have been negligent, and therefore may not have any right of indemnification against a third party.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendant appealed from the judgment of the trial court to the Appellate Court,, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       General Statutes § 13a-149 provides: ‘Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it, in repair. No action for any such injury sustained on or after October 1, 1983, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       The plaintiff amended her complaint to add two counts of negligence against Mary Wade Home, which moved for summary judgment on the grounds that the counts were time barred. The trial court, Blue, J., granted partial summary judgment in favor of Mary Wade Home on the plaintiffs amended complaint. That action is not before us in this appeal. We also note that the plaintiff subsequently settled with the defendant and withdrew the underlying action accordingly.

       During oral argument before this court, the defendant conceded that, if it were mistaken in its interpretation of the sole proximate cause standard, its claim for indemnification must fail.

       General Statutes § 13a-144 provides: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such iqjury, nor unless notice of such ii\jury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the Comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the Comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the Attorney General and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and (he state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

       We acknowledge that there are certain differences between the language of the state defective highway statute and the municipal defective highway statute that may, on occasion, necessitate separate treatment. For example, the municipal statute has a savings clause with respect to the provision of requisite notice that is absent from the state statute. Also, the state statute provides the government with a right of subrogation against third party tortfeasors, language that is without parallel in the municipal statute. To the extent that their language and purpose overlap, however, §§ 13a-144 and 13a-149 have always been read in concert. See, e.g., Ormsby v. Frankel, 255 Conn. 670, 675 n.5, 768 A.2d 441 (2001) (“there is no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by ... § 13a-149” [internal quotation marks omitted]); see also Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890 (1920) (“the legislative intent [of § 13a-144] was to impose upon the highway commissioner, as the representative of the [s]tate, the same burden theretofore laid upon the towns as respects these highways, and [therefore] the limitations upon municipal liability apply equally to [s]tate liability”). We therefore use case law pertaining to the statutes interchangeably in discussing the scope of the sole proximate cause doctrine.

       We have observed that “[i]n an action for indemnity, as distinguished from an action for contribution, one tortfeasor seeks to impose total liability upon another [tortfeasor]. . . . [Indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others." (Internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 641-42, 732 A.2d 767 (1999).


text:
    STATE OF CONNECTICUT v. CECIL LIPSCOMB
    (SC 16395)
    Sullivan, C. J., and Borden, Norcott, Palmer and Vertefeuille, Js.
    Argued April 17
    officially released September 11, 2001

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thom,as, state’s attorney, and Adam Scott, assistant state’s attorney, for the appellant (state).

      Jon L. Schoenhom, for the appellee (defendant).
   Opinion

SULLIVAN, C. J.

The sole issue in this appeal is whether the Appellate Court, in reversing the judgment of the trial court, properly concluded that an investigative stop of the defendant’s motor vehicle by the police was not justified by reasonable suspicion. We conclude that the trial court properly denied the defendant’s motion to suppress evidence obtained by the police during that stop. Accordingly, we reverse the judgment of the Appellate Court.

The state charged the defendant, Cecil Lipscomb, with driving a motor vehicle with a suspended license in violation of General Statutes § 14-215 (c). The defendant moved to suppress evidence that his operator’s license was suspended, arguing that the police discovered the suspension after detaining him without reasonable and articulable suspicion of criminal activity. The trial court denied the defendant’s motion to suppress, concluding that the investigative stop conducted by the police was appropriate under the circumstances of this case. The defendant entered a conditional plea of nolo contendere, reserving his right to appeal the trial court’s denial of the motion to suppress pursuant to General Statutes § 54-94a. The trial court, accordingly, rendered a judgment of conviction.

The defendant appealed from the judgment of conviction to the Appellate Court. The Appellate Court concluded that the reasons for the stop, as articulated by the officers, did not support a finding of reasonable suspicion. Accordingly, the Appellate Court reversed the trial court’s judgment. State v. Lipscomb, 58 Conn. App. 267, 274-75, 753 A.2d 415 (2000).

We granted the state’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that an investigative stop of the defendant’s motor vehicle was not justified by a reasonable suspicion?” State v. Lipscomb, 254 Conn. 932, 761 A.2d 756 (2000). This appeal followed.

At the hearing on the defendant’s motion to suppress, the trial court found the following relevant facts. In the late evening hours of March 17, 1998, and the early morning hours of March 18, 1998, Officers Mark Allen and William Spragg of the East Hartford police department were on patrol in a marked police vehicle in the Connecticut Boulevard and Main Street area of East Hartford. Allen observed the defendant’s Ford Bronco travel down Main Street and turn onto Connecticut Boulevard. Allen also observed a woman standing on the comer of Connecticut Boulevard and Main Street “waving her arm.” Both officers watched the Bronco approach the woman and saw her enter the vehicle with the defendant. The Connecticut Boulevard and Main Street area in East Hartford is known to police as a “high crime” area, which is often the site of motor vehicle thefts, prostitution, burglaries and robberies. Allen also personally had observed the same woman on the street comer in this area on prior occasions and had learned from Officer Tracy O’Connell that she was involved in prostitution at a local hotel. On the night of the defendant’s arrest, Allen made Spragg aware of the woman’s reputation as a prostitute. As a result of their observations, the officers followed the defendant’s vehicle to a dead-end street where they motioned for him to pull over. The officers conducted a routine motor vehicle check and discovered that the defendant’s operator’s license was under suspension.

The defendant sought to suppress the evidence of his license suspension, claiming that the officers’ stop of his motor vehicle violated the fourth and fourteenth amendments to the United States constitution, and article first, §§ 7, 8 and 9, of the Connecticut constitution. The defendant argued in his motion to suppress that: (1) at the time of the stop, the officers did not have reasonable suspicion to believe that he was committing an offense; (2) the officers did not have reasonable and articulable suspicion to detain him or his vehicle; and (3) the seizure of the defendant, and the subsequent search of his person and vehicle, did not fall within any acknowledged exception to the warrant requirements of the state or federal constitutions.

The trial court conducted an evidentiary hearing on the defendant’s motion to suppress and denied the motion. In its denial of the defendant’s motion, the trial court held that under the totality of the circumstances the police had detained the defendant only upon “a reasonable and articulable suspicion that criminal activity was occurring or [was] about to occur, to wit, solicitation of prostitution and prostitution. Therefore, the conduct of the East Hartford police officers to accomplish an investigative stop, in order to investigate further the circumstances that give rise to the suspicion of criminal conduct, was appropriate under the circumstances. Furthermore, the resulting information that the defendant’s motor vehicle operator’s license was under suspension was not obtained illegally.”

The defendant appealed from the ensuing judgment of conviction to the Appellate Court, claiming that there was no reasonable and articulable basis for the police to have stopped his motor vehicle, nor was there justification for the subsequent investigation of his license status. He argued that the officers’ discovery that he was operating his vehicle with a suspended license should have been suppressed as the fruit of an unreasonable search and seizure. The Appellate Court concluded that the officers’ inference that the defendant’s passenger was a prostitute was tenuous at best, and that, even if she were a prostitute, her action of waving to the defendant and getting into his car did not amount to “furtive conduct” that should warrant detention by the police. State v. Lipscomb, supra, 58 Conn. App. 271. The Appellate Court based its conclusion on State v. Donahue, 251 Conn. 636, 646-47, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000), and State v. Oquendo, 223 Conn. 635, 655 n.11, 613 A.2d 1300 (1992), in which we held that “[a] history of past criminal activity in a locality does not justify suspension of the constitutional lights of everyone, or anyone, who may subsequently be in that locality.” (Internal quotation marks omitted.)

The state claims that the investigative stop of the defendant’s motor vehicle was justified by reasonable and articulable suspicion of criminal activity. Specifically, the state argues that the combined circumstances of that evening gave the officers reason to believe the defendant was engaged in soliciting a prostitute.

First, the state argues that the area in which the defendant was detained is known for criminal activity. In addition, the state argues that: (1) both the defendant and his female companion were in an area frequented by local prostitutes; (2) prostitutes in that area routinely stand on street corners and “flag down” customers by waving to signal them to pull to the curb; (3) the officers saw a woman standing on a street comer, late at night, waving her arm and saw the defendant immediately pull lús vehicle to the curb, pick her up and drive to a dead-end public street; and (4) the woman picked up by the defendant was suspected of prostitution by the police. The state argues that this “totality of the circumstances” warranted the officers’ investigative stop and justified their search of the defendant’s motor vehicle history. We agree with the state. Considering the totality of the circumstances, we conclude that the defendant lawfully was detained after police observed suspicious behavior in a high crime area that led them to believe that he had solicited a prostitute. Because these facts support a finding of reasonable and articulable suspicion, we conclude that the trial court properly denied the defendant’s motion to suppress.

In reviewing the Appellate Court’s reversal of the trial court’s finding that a brief detention of the defendant was justified, we undertake a two part analysis. First, it is the function of this court to determine whether the trial court’s underlying factual findings were clearly erroneous. State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991); State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Second, “[t]he trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” State v. Torres, supra, 625; State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983). In conducting our review, we recognize that the trial court is given great deference in its fact-finding function because it is in the “unique [position] to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us.” Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984). In light of the facts found by the trial court, we must determine whether the Appellate Court correctly concluded that the police lacked a reasonable and articulable suspicion of criminal activity on which to base their initial investigative stop of the defendant’s vehicle.

After reviewing the record in this case, we agree with the trial court’s conclusion that the police had a reasonable and articulable suspicion to believe that the defendant was engaging in, or was about to engage in, criminal activity.

Under the fourth amendment to the United States constitution and article first, §§ 7 and 9, of our state constitution, a police officer is permitted “in appropriate circumstances and in an appropriate manner” to detain an individual for investigative purposes if the officer believes, based on a “reasonable and articulable suspicion” that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest. Alabama v. White, 496 U.S. 325, 330-31, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990); Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Mitchell, 204 Conn. 187, 194-95, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). “Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion.” State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994); State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

“[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 392 U.S. 21; State v. Januszewski, supra, 182 Conn. 148-49. In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. When reviewing the legality of a stop, a court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. State v. Oquendo, supra, 223 Conn. 654. A recognized function of a constitutionally permissible stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985).

“[E]ffective crime prevention and detection . . . [underlie] the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, supra, 392 U.S. 22. Therefore, “[a]n investigative stop can be appropriate even where the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal.” (Internal quotation marks omitted.) Price-Crowley v. Kozlowski, 49 Conn. App. 481, 485, 714 A.2d 719 (1998); see also State v. Kowal, 31 Conn. App. 669, 672, 626 A.2d 822, cert. denied, 227 Conn. 923, 632 A.2d 702 (1993); State v. Harrison, 30 Conn. App. 108, 113, 618 A.2d 1381, aff'd, 228 Conn. 758, 638 A.2d 601 (1994). In evaluating the validity of such a stop, courts must consider whether, in light of the totality of the circumstances, the police officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); State v. Mitchell, supra, 204 Conn. 195.

We conclude that the Terry stop in this case was justified by the totality of the circumstances surrounding the defendant’s detention. The facts of the present case present a more compelling argument in favor of the reasonableness of the officers’ suspicions than the insufficient facts presented in either State v. Donahue, supra, 251 Conn. 647-48, or State v. Oquendo, supra, 223 Conn. 641-43. In State v. Donahue, supra, 647, this court concluded that the facts that the defendant “was driving in a deserted area late at night . . . made an abrupt turn . . . into an empty, unlit parking lot of an establishment that had closed for the evening” and that the “area had experienced a rise in criminal activity . . . [and that the supect’s] behavior was consistent with the type of behavior that often preceded the criminal activity [the officer] was out on patrol investigating,” did not give rise to “a reasonable and articulable suspicion,” and that “the totality of circumstances [did not] reach the level of a reasonable suspicion found in our precedents.” (Internal quotation marks omitted.) We further noted that “the defendant had not committed any traffic violation . . . [h]e had not been driving erratically . . . [n] either he nor his passenger had exhibited any furtive conduct . . . neither the defendant nor his passenger had exited the vehicle . . . the vehicle had not been the subject of any police investigation . . . arid [the officer] determined that the vehicle was not stolen . . . .” Id. In State v. Oquendo, supra, 641, the officer based his suspicion on the fact that, in a neighborhood where several burglaries recently had occurred, the suspect appeared nervous, was carrying a duffel bag and, despite the fact that it was a warm night, was wearing a winter jacket that the officer suspected was to protect his skin when he broke through windows to commit burglaries. Donahue and Oquendo are distinguishable from the present case. Here, the officers’ suspicion that the woman was a prostitute was reasonable, in light of the facts that she was known to one of the officers as having been involved with prostitution at a local hotel and she was flagging down the defendant’s vehicle, late at night, in an area where the police had found prostitution to be common. Furthermore, when the defendant approached the woman in his car and she entered the vehicle, it was reasonable for the officers to believe that the defendant was engaged in soliciting her. The officers did not base their suspicions primarily on the reputation of the neighborhood alone. See State v. Oquendo, supra, 655 n.11 (“[a] history of past criminal activity in a locality does not justify suspension of the constitutional rights of everyone, or anyone, who may subsequently be in that locality” [internal quotation marks omitted]). The circumstances articulated by the police for conducting their investigative stop exceed those that we rejected in Donahue and Oquendo.

The facts presented here satisfy our standards for reasonable suspicion that have been established in numerous other cases. See State v. Cofield, supra, 220 Conn. 46-47 (under totality of circumstances, informant had supplied police with information sufficiently reliable to provide reasonable and articulable suspicion to justify approaching defendant’s vehicle for further investigation); State v. Lamme, 216 Conn. 172, 175, 579 A.2d 484 (1990) (after hearing police broadcast describing vehicle driven by intoxicated individual, officer was justified in stopping vehicle that matched description driving without its headlights illuminated in violation of General Statutes § 14-96a [d]); State v. Januszewski, supra, 182 Conn. 149 (plainly furtive conduct of occupants of vehicle observed by approaching officer justified limited intrusion upon defendant’s personal liberty); State v. Watson, 165 Conn. 577, 585-86, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974) (police stop of defendant’s vehicle was justified when vehicle was observed pulling into parking lot of motel late at night, dropping off four occupants, who were then observed coming from rear of motel, walking “hurriedly and cautiously” back to car).

Our review of the record indicates that the trial court, consistent with the cases cited previously, properly concluded that the officers had a reasonable basis for their investigative stop. Therefore, the discovery of the defendant’s suspended operator’s license did not result from an illegal stop in violation of the fourth amendment to the United States constitution or article first, §§ 7 and 9, of the Connecticut constitution. We conclude that the police possessed a reasonable and articulable suspicion that the defendant had committed, or was about to commit a crime, and that the routine check of his license and registration was permissible. Accordingly, we conclude that the trial court properly denied the defendant’s motion to suppress.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       General Statutes § 14-215 (e) provides in relevant part: “Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14r227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year

       General Statutes § 54-94a provides in relevant part: “When a defendant . . . enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . .

       There were no motor vehicle violations observed.

       The fourth amendment to the United States constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” The fourth amendment to the United States constitution is made applicable to the states by the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The constitution of Connecticut, article first, § 7, provides in relevant part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . .” Article first, § 8, of the Connecticut constitution is not pertinent to the issue being addressed here. Article first, 8 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       In State v. Donahue, supra, 251 Conn. 646-47, we stated: “The state’s argument that [the officer] was justified in stopping the defendant due to an increase in crime in the area is unpersuasive. We considered and rejected a similar argument in State v. Oquendo, [223 Conn. 635, 655, 613 A.2d 1300 (1992)]. In Oquendo, we held that the officer’s detention of the defendant was not justified when the officer’s suspicions were based on the following factors: the clothing worn by the defendant; the increased crime rate in the area in which the defendant was walking; the fact that the officer knew the defendant’s companion was a recent arrestee for larceny and burglary; and the officer’s hunch that the defendant was about to commit a crime. Id., 641. We found that those factors were considered insufficient to make the officer’s stop of the defendant constitutionally reasonable.” (Internal quotation marks omitted.)