text:
    State of Connecticut v. Robert E. Hull
    (13189)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.

      Argued January 4
    decision released March 21, 1989

      Denise Dishongh, special public defender, with whom was Louis S. Avitabile, special public defender, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Christine Marsching, legal intern, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is whether the defendant’s constitutional rights were violated by the admission of testimony informing the jury that the defendant, after having been advised of his Miranda rights, invoked his right to silence by requesting an attorney. The defendant, Robert E. Hull, was charged with having committed the crime of murder, in violation of General Statutes § 53a-54a (a), in connection with the stabbing death of his wife. A jury found the defendant guilty as charged, and the trial court, after denying his motion for acquittal, sentenced him to a thirty-five year term of imprisonment. The defendant has appealed. We find no reversible error.

The jury could reasonably have found the following facts. In April, 1985, the defendant’s wife, the victim, left the defendant because of his drinking problem and moved to Connecticut. In May, 1985, the victim filed for divorce and a restraining order was issued against the defendant. On June 19,1985, the defendant, after leaving a suicide note with a friend in Vermont, drove to Middletown, Connecticut, to see the victim. At approximately 4 p.m., the defendant telephoned the victim at a neighbor’s house. The victim sounded frightened and told the defendant that she wanted to end their marriage. At approximately 4:20 p.m., the defendant drove his pickup truck into the driveway of the house in Middletown where the victim was staying. The two engaged in an argument, first in the driveway and then in the house. The argument ended in a scuffle, during which the defendant repeatedly stabbed the victim. Carrying the bloody knife away with him, the defendant then drove off in his truck. The police, responding to a neighbor’s call, found the victim lying on the kitchen floor with eleven stab wounds. She was pronounced dead at 5:25 p.m.

The police officers found and stopped the defendant in his truck at 5:40 p.m. on West Street, in Middletown. They observed signs of intoxication and smelled the odor of alcohol as the defendant exited his truck at their request. They arrested him for driving under the influence of drugs or alcohol and took him to the police station. He was later charged with the murder of the victim.

At the trial, the defendant did not deny that he had killed the victim. Rather, he relied upon evidence of his intoxication at the time of the incident in support of his argument that he lacked the specific intent to commit murder. He maintains, therefore, that he could be found guilty only of one of a number of lesser included manslaughter offenses: first degree manslaughter due to extreme emotional disturbance, intent to cause serious physical injury or reckless first degree manslaughter. (The only intentional first degree manslaughter is extreme emotional disturbance.) He was nonetheless found guilty as charged.

In his appeal, the defendant has raised seven overall claims of error challenging a total of thirteen alleged deficiencies in the proceedings at his trial. Except for the final claim of error, which challenges three non-constitutional evidentiary rulings by the trial court, these claims represent issues not presented to the trial court. We remind counsel that wholesale appellate reconstruction of trial court proceedings does not serve the administration of justice. State v. Pelletier, 209 Conn. 564, 566-67, 552 A.2d 805 (1989); State v. Hinckley, 198 Conn. 77, 86-87, 502 A.2d 388 (1985). Appellate review of newly discovered issues cannot be guaranteed by couching every claim of error in the constitutional language of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or the common law doctrine of plain error codified in Practice Book § 4185. Belated appellate scrutiny is warranted only for egregious errors that undermine the fairness of a trial and cast doubt on the integrity of judicial proceedings.

We will, therefore, limit our plenary review to only three of the defendant’s multiple claims of error. We decline to review any of the issues raised under the first or second claims of error, which challenge the legal sufficiency of the trial court’s instructions to the jury. Read as a whole, the charge adequately informed the jury of the questions it had to resolve. We also decline to review the third claim of error, which charges the trial court with a duty, sua sponte, to determine whether expert testimony, offered by the state in rebuttal to similar testimony by a defense witness, complied with the requirements of General Statutes § 54-86L Finally we decline to review the defendant’s sixth claim of error alleging misconduct in the prosecutor’s arguments to the jury because the prosecutor’s conduct did not manifest an egregious pattern of blatant prejudicial misstatements.

The issues before us therefore devolve into the following three remaining claims of error. Under State v. Evans, supra, we must decide the defendant’s fourth and fifth claims, which challenge the admissibility of evidence at trial that (1) informed the jury that the defendant had invoked his constitutional right to silence by asking for an attorney, and (2) included the two knives seized from the defendant’s truck at the time of his warrantless arrest. Also, because proper objections were taken at trial, we must review the hearsay claims raised in the seventh claim of error. We conclude that none of these alleged deficiencies in the proceedings at trial furnishes any basis for setting aside the defendant’s conviction.

I

We consider first whether the trial court erred in permitting three state’s witnesses to testify and the prosecutor to comment that the defendant, after his arrest and after he had been advised of his Miranda rights, requested the assistance of his attorney. The defendant contends that admission of this evidence violated his due process rights as guaranteed by the fourteenth amendment to the United States constitution. Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). This issue, which is reviewable under State v. Evans, supra, despite the defendant’s failure to voice a timely objection at trial; State v. Plourde, 208 Conn. 455, 462, 545 A.2d 1071 (1988), cert. denied, U.S. , 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989); has three parts. First, does a defendant invoke his constitutional right to silence by requesting the assistance of counsel? Second, may the state elicit impeachment testimony about the defendant’s invocation of his right to silence in order to rebut a defense of intoxication or to describe its investigative efforts? Third, was it harmful, in this case, to admit testimony about the defendant’s invocation of his right to silence?

The testimony in question was given by three police officers, Michael Adorno, Joseph Bibisi and Louis Tosto. Each officer referred to the defendant’s request to call his attorney while describing the sequence of events at the police station after the defendant’s arrest. According to the officers’ testimony, the defendant was brought to the police station by Officer Adorno who had placed him under arrest for driving while intoxicated. Upon arrival at headquarters, the defendant was taken to the processing room, where, at approximately 6:58 p.m., Adorno advised him of his Miranda rights. The defendant, indicating his understanding, initialed each of the rights listed on a Miranda rights form. He submitted to a toximeter test and then to a urine test. Afterwards Adorno remained with the defendant forty-five minutes to one hour longer, during which time the defendant asked to call his attorney and was allowed to do so, but was unable to reach him.

Officer Bibisi first came into contact with the defendant at approximately 8 p.m. in the booking room at the police station and again informed him of his rights. Bibisi noticed what appeared to be blood on the defendant’s clothes, asked him to remove them, and gave the defendant a jump suit. The defendant then asked for his attorney. He appeared unable to locate the telephone number in the telephone book so Bibisi called the attorney for him, but again there was no answer. The defendant was then taken to the cell block.

At approximately 8:57 p.m., Officer Tosto was assigned to process the defendant on the murder charge. He and another officer took the defendant from his cell to the booking area, where Tosto informed him that he was being charged with murder, and that a bond had been set. Tosto also advised the defendant of his Miranda rights. The defendant, after having been given his glasses, read the waiver of rights form and initialed each right until he came to the one referring to his right to counsel, at which point he requested that his attorney, Attorney Peters or Attorney Fortuna, be contacted. Tosto called Fortuna’s office, obtained For-tuna’s home telephone number and then reached For-tuna at home. After a conversation between the defendant and Fortuna, Tosto continued processing the defendant by taking fingernail scrapings, mug shots and fingerprints.

The prosecutor in his summation discussed testimony presented by Officer Bibisi that indicated that the defendant was not very intoxicated. The prosecutor then stated, “[Bibisi] said that when he tossed [the defendant] the telephone book to look up the telephone number to call Attorney Peters, he seemed to be having difficulty. What that may mean, he didn’t know where to look in the telephone book. I don’t know. But that in and of itself is not a suggestion that he was intoxicated at that particular point.”

A

Doyle v. Ohio, supra, is our starting point for determining whether the police officers’ testimony, and the prosecutor’s commentary, violated the defendant’s due process rights. In Doyle, the United States Supreme Court held that although “Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. [Therefore,] it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle v. Ohio, supra, 618; Greer v. Miller, 483 U.S. 756, 762-63, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987); Wainwright v. Greenfield, 474 U.S. 284, 290 n.5, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986); see also State v. Plourde, supra, 467; State v. Shashaty, 205 Conn. 39, 48, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988). Accordingly, “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Doyle v. Ohio, supra, 619.

In this case, it is uncontested that the defendant had in fact received Miranda warnings prior to exercising his constitutionally protected right to counsel. Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980); State v. Plourde, supra, 465. The defendant, therefore, “received the ‘implicit assurance’ of Miranda warnings in this case. Thus, this prerequisite of a Doyle violation was met.” Greer v. Miller, supra, 763; Doyle v. Ohio, supra, 619.

In Wainwright v. Greenfield, supra, the United States Supreme Court held that & Doyle violation occurs not only when the prosecutor comments upon a defendant’s silence, but also when he comments upon a defendant’s statement invoking his right to remain silent by requesting his attorney. “With respect to post-Miranda warnings ‘silence,’ . . . silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.” Id., 295 n.13. The defendant’s request for his attorney was therefore included within constitutionally protected post-Miranda, “silence” upon which the state may not comment.

B

The state cannot justify testimony about the defendant’s invocation of his right to counsel as rebutting his claim of intoxication and extreme emotional disturbance. A closely analogous argument was advanced and rejected in Wainwright v. Greenfield, supra, where the United States Supreme Court held that, despite a defense of insanity, the prosecutor could not constitutionally comment upon a defendant’s post -Miranda silence, including his invocation of his right to counsel. As that court stated: “[T]he State’s legitimate interest in proving that the defendant’s behavior appeared to be rational at the time of his arrest could have been served by carefully framed questions that avoided any mention of the defendant’s exercise of his constitutional rights to remain silent and to consult counsel.” Id., 295. For constitutional purposes, we can perceive no distinction between a defense of insanity and a defense of lack of intent to commit murder because of extreme emotional disturbance or intoxication. “Miranda warnings contain an implied promise, rooted in the Constitution, that ‘silence will carry no penalty.’ ” (Emphasis added.) Id.

It is a closer question whether the state can justify the testimony about the defendant’s invocation of his right to remain silent as showing “ ‘the investigative effort made by the police and the sequence of events as they unfolded . . . .’ ” State v. Casey, 201 Conn. 174, 183, 513 A.2d 1183 (1986); State v. Moye, 177 Conn. 487, 496, 418 A.2d 870, vacated, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979). Even evidence of such an investigative effort must, however, be narrowly limited in light of Doyle. The Supreme Court of the United States has held that there was no Doyle violation where “the [trial] court explicitly sustained an objection to the only question that touched upon [the defendant’s] postarrest silence.” Greer v. Miller, supra, 764. We also have found such testimony to be constitutionally permissible in certain limited circumstances, such as those in State v. Casey, supra, or State v. Moye, supra, where only one police officer briefly described what had transpired when that defendant was interviewed at the police station. Those exceptional cases do not, however, signal a retreat from the basic Doyle proposition that “ ‘it does not comport with due process to permit the prosecution during the trial to call attention to [the defendant’s] silence ....’” Doyle v. Ohio, supra, 619, quoting United States v. Hale, 422 U.S. 171, 182-83, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975). Such evidence is impermissible if it was offered to impeach the testimony of the defendant in any way. State v. Moye, supra.

We conclude, therefore, that the constitution does not permit the extensive commentary on the defendant’s invocation of his right to silence that occurred in this case, where three witnesses testified to the defendant’s invocation of his right to counsel and the prosecutor mentioned that invocation in his closing argument. Especially since the defendant took the stand to testify in his own behalf, it was “fundamentally unfair and a deprivation of due process” to allow the defendant’s silence to be admitted as evidence against him at trial. Doyle v. Ohio, supra, 618; State v. Plourde, supra, 468.

C

We next consider whether the constitutional error of admitting testimony concerning the defendant’s post -Miranda requests for an attorney was harmful. South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983). “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Pittman, 209 Conn. 596, 608-609, 553 A.2d 155 (1989); State v. Plourde, supra, 469; State v. Green, 207 Conn. 1, 9, 540 A.2d 659 (1988). The test for harmfulness is whether “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction . . . .” Schneble v. Florida, 405 U.S. 427, 432, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972); State v. Hoeplinger, 206 Conn. 278, 294, 537 A.2d 1010 (1988); State v. Shifflett, 199 Conn. 718, 751-52, 508 A.2d 748 (1986). “ ‘The harmlessness of an error depends upon its impact on the trier and the result, not upon whether the particular evidence involved was legally essential to support the finding.’ ” State v. Hoeplinger, supra, 295; State v. Bruno, 197 Conn. 326, 336, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986) (Shea, J., dissenting); State v. Moseone, 171 Conn. 500, 508-509, 370 A.2d 1030 (1976) (Miranda violation not harmless despite abundance of properly admitted evidence tending to prove guilt).

“A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s postarrest silence does not constitute reversible error.” State v. Silano, 204 Conn. 769, 781, 529 A.2d 1283 (1987). “ ‘The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant’s silence in his cross-examination and closing remarks and where the prosecutor’s comments do not strike at the “jugular” of the defendant’s story.’ ” Id.; United States v. Davis, 546 F.2d 583, 594 (5th Cir.), cert. denied, 431 U.S. 906, 97 S. Ct. 1701, 52 L. Ed. 2d 391 (1977); State v. Pellegrino, 194 Conn. 279, 292, 480 A.2d 537 (1984); State v. Zeko, 177 Conn. 545, 555, 418 A.2d 917 (1979).

Our examination of the record in this case persuades us that neither the prosecutor nor the state’s witnesses ££focus[ed] upon or highlight[ed]” the defendant’s invocation of his right to counsel. This reading of the record finds support in the failure of defense counsel to object to the references or to move for a mistrial which indicates that he did not consider the evidence prejudicial to the defendant. To the contrary, defense counsel in his cross-examination of Bibisi and Tosto himself elicited testimony about the defendant’s unsuccessful attempt to locate his attorney’s telephone number in the telephone book and his need for the assistance of the officers to find and dial the number for him. In his final argument, defense counsel himself cited the defendant’s request to contact his attorney as illustrative of discrepancies in the testimony of Adorno and Bibisi.

In this case, furthermore, while the evidence pertaining to a Doyle violation was not “highlighted], ” the evidence of the defendant’s guilt was overwhelming. Even an error of constitutional magnitude is £'harmless beyond a reasonable doubt” under such circumstances. United States v. Hasting, 461 U.S. 499, 511-12, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983); State v. Hoeplinger, supra, 296-97; State v. Leecan, 198 Conn. 517, 532-33, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Morrill, 197 Conn. 507, 539, 498 A.2d 76 (1985).

The defendant concededly having killed his wife, the only issue at trial was the defendant’s state of mind. The state had the burden of proving each essential element of the crime of murder, including the defendant’s specific intent to commit the crime. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Utz, 201 Conn. 190, 197, 513 A.2d 1191 (1986); State v. DelVecchio 191 Conn. 412, 419, 464 A.2d 813 (1983). The defendant alleged that, because of his intoxication, he lacked the capacity to form a specific intent. General Statutes § 53a-7; State v. Utz, supra, 208; State v. D’Antuono, 186 Conn. 414, 423, 441 A.2d 846 (1982). In his argument that the Doyle violation was harmful error, the defendant maintains that the evidence that he invoked his right to counsel on three separate occasions so undermined the evidence he presented about his intoxication and extreme emotional distress that a new trial is required. We are unpersuaded. In our view, even without the references to the defendant’s invocation of his right to counsel, the jury still had before it overwhelming evidence to support the state’s proof of the defendant’s mental state beyond a reasonable doubt.

The state presented the following salient evidence. Shortly before the incident, the victim told the defendant that she wanted to end their relationship, thus providing a motive for her murder. The defendant left a suicide note in Vermont and went to Middletown with the intention of seeing the victim. The defendant had in the past engaged in serious violence toward both the victim and his second wife, and had three knives in his possession when apprehended by the police. At the police station, shortly after the incident, the defendant’s speech was normal and he did not appear to have any difficulty walking, removing his clothing, or balancing. Several witnesses testified that they had no difficulty understanding what the defendant said shortly before the incident, and that the defendant did not sway when he walked shortly thereafter. Adorno’s statement that he had observed signs of the defendant’s intoxication was offset in part by his further comment that the defendant was only mildly under the influence.

Viewing the record in its entirety, we conclude that although, as the defendant contends, there was a Doyle violation, the state has met its burden of demonstrating that the Doyle error was harmless beyond a reasonable doubt. A new trial is therefore not warranted on this ground.

II

We consider next whether the trial court erred in failing to suppress two knives seized from the defendant’s truck at the time of his warrantless arrest. The defendant claims that the search violated his fourth and fourteenth amendment rights under the United States constitution. Although not raised at trial by a motion to suppress, this claim warrants appellate review because it implicates a violation of a fundamental constitutional right. State v. Evans, supra, 70.

The facts relating to this claim are as follows. Police officers stopped and arrested the defendant for driving while intoxicated approximately one hour after the murder. After handcuffing the defendant and placing him in a police vehicle, an officer returned to the defendant’s truck to get his registration. When the officer opened the glove compartment, two knives fell out. He closed the glove compartment, leaving the knives there. He then radioed police headquarters to tell them to impound the truck. A search warrant was subsequently issued and the knives were seized.

At the victim’s autopsy, the two knives, along with a third knife seized from the defendant’s person, were compared with the victim’s stab wounds. The three knives, photographs of the knives and testimony concerning the knives were admitted into evidence without objection at the defendant’s trial.

A search that occurs incident to a lawful arrest is one of the recognized exceptions to the constitutional prohibition of warrantless searches. U.S. Const., amend. IV; New York v. Belton, 453 U.S. 454, 459, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); State v. Badgett, 200 Conn. 412, 424, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). The fact that a suspect has been arrested and removed from his automobile before a search of the automobile occurs does not render the search unlawful. New York v. Belton, supra, 462-63; State v. Badgett, supra, 427; see 3 W. LaFave, Search and Seizure (2d Ed. 1987) § 7.1 (c), p. 15 and n.73. The search may lawfully include closed “containers,” which “denotes any object capable of holding another object. It thus includes closed or open glove compartments . . . .” New York v. Belton, supra, 460-61 n.4; see also State v. Dukes, 209 Conn. 98, 104, 547 A.2d 10 (1988); 3 W. LaFave, supra, § 7.1 (c), pp. 17-18 and n.83.

The defendant mistakenly relies upon State v. Badgett, supra, to support his claim that the search of his truck was unrelated to his arrest and hence unconstitutional. Although we recognized in Badgett that a lawful arrest ceases to provide justification for the warrantless search of an automobile once the arrestee is taken from the scene of the arrest; id., 427-28; that limitation on New York v. Belton is inapplicable in this case. The search that took place here falls within the general rule oí New York v. Belton that “a lawful custodial arrest justifies a contemporaneous search of the entire passenger compartment of an automobile, whether or not the arrestee actually had control over the area.” State v. Badgett, supra, 425. The defendant concedes that he had not been removed from the scene of his lawful arrest at the time of the search of his truck, and the search was, therefore, constitutionally valid as incident to a legal arrest.

The actual seizure of the knives was equally permissible as a matter of federal constitutional law. Adorno elected not to seize the knives immediately, opting instead to have headquarters impound the truck. He then promptly obtained a search warrant on the basis of his knowledge that probable cause existed to believe that there was evidence of a crime in the defendant’s truck. The short delay in the seizure that was occasioned by recourse to a search warrant was not unconstitutional.

Even without a warrant, a seizure has been recognized as generally less intrusive than a search. “[T]he Court has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, [even] where a warrant-less search was either held to be or likely would have been held impermissible. Chambers v. Maroney, [399 U.S. 42, 51, 90 S. Ct. 1975, 26 L. Ed. 2d 419, reh. denied, 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970)]; United States v. Chadwick, [433 U.S. 1, 13-14 n.8, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977)]; Arkansas v. Sanders, 442 U.S. 753, [99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979)].” Segura v. United States, 468 U.S. 796, 806, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984). It is, therefore, clear that no constitutional violation occurs where, as in this case, there was probable cause and the warrantless search was permissible. The trial court, therefore, did not err in admitting the knives into evidence.

Ill

We turn finally to the three evidentiary rulings to which the defendant properly objected at trial, and whose merits we therefore review at this time. The defendant contends that the trial court erred in admitting testimony regarding: (1) the contents of a telephone call from the Vermont state police to the Middletown police; (2) statements of the victim overheard by Mazie and Flora Long; and (3) statements of the victim overheard by Richard Breault. The defendant contends that the trial court erred because the evidence involved in each ruling was hearsay or was otherwise inadmissible. We conclude that none of the disputed evidence was hearsay for the purpose for which it was admitted nor was it otherwise inadmissible.

The underlying issue with respect to the hearsay claims is whether the challenged testimony was admitted into evidence to prove the truth of the statements reported therein, or for some other purpose such as their effect on the person who heard them. The applicable ground rules are clear. “The hearsay rule forbids evidence of out-of-court assertions to prove the facts asserted in them. If the statement is not an assertion or is not offered to prove the facts asserted, it is not hearsay.” C. McCormick, Evidence (3d Ed. 1984) § 249, p. 732. This exclusion from hearsay includes utterances admitted to show their effect on the hearer. State v. Gonzales, 186 Conn. 426, 429, 441 A.2d 852 (1982) (testimony of officers offered not for truth of statements made over the police radio “but rather to show the effect of the broadcasts on their hearers” is not barred by hearsay rule); State v. Vennard, 159 Conn. 385, 392, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971); see C. McCormick, supra, p. 733; C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 11.3.3, p. 324.

A

The defendant first challenges the admissibility of the first of two telephone calls from the Vermont state police to the Middletown police. He claims that the statements made therein were inadmissible because they “suggested before the fact that the Vermont State Police knew the defendant had a gun and was heading for his wife.” Peter Taft, a police officer, testified that at approximately 3:15 p.m. on June 19, 1985, he received a telephone call from the Vermont state police informing him that the defendant had left a suicide note in Vermont and that the police had reason to believe that he might be headed to Middletown to see his estranged wife and might have a gun. Taft was given a description of the defendant’s truck and the truck’s registration. He gave his supervisor a note to be posted at the police station for the next shift of policemen.

In conjunction with overruling the defendant’s objection that the testimony was hearsay, the trial court, after the testimony had been given, instructed the jury about the limited use to which the testimony might be put. The court explained that the statements had been offered not as proof of the truth of the information given to Taft but only to show its effect on Taft’s conduct. Consequently, the testimony regarding the contents of the telephone calls was not hearsay.

We are equally unpersuaded by the defendant’s claim, in reliance on State v. Vennard, supra, 392-93, that the testimony, even if not hearsay, was too prejudicial to be admissible. In Vennard, we held that testimony regarding the contents of the defendant’s call to the police reporting that he had struck his mother on the head with a hammer, although not hearsay, should not have been admitted despite a limiting instruction because the jury might consider the call as an admission by the defendant. The facts of the present case are readily distinguishable from those of Vennard. The contents of the telephone call in the instant case are far less incriminatory; they can hardly be considered prejudicial in light of the defendant’s failure to contest coming to Connecticut and causing the victim’s death. We conclude that the jury was not led to any prejudicial conclusion by the admission of Taft’s testimony.

Finally, we conclude that the trial court did not abuse its discretion in determining that the evidence was sufficiently relevant to be admissible. State v. Periere, 186 Conn. 599, 608, 442 A.2d 1345 (1982); State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978). “ ‘Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issues. . . .’” State v. Periere, supra, 607-608; State v. Gold, 180 Conn. 619, 645-46, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); State v. Villafane, 171 Conn. 644, 674-75, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977). The trial court might reasonably have concluded that the statements in the telephone call were relevant to establish why the police officers acted as they did. The testimony was, therefore, properly admitted.

B

The defendant also contends that the trial court erroneously admitted into evidence the hearsay testimony of Mazie and Flora Long about statements of the victim that they had overheard. Mazie and Flora each testifed that the victim had told the defendant that she would not go back to him and that the victim had later said, “Oh, no ... . Oh, no.” Flora also testified that the victim had mentioned another man. The defendant objected to this testimony as hearsay, but it was admitted, without limiting instruction, as probative of the state of mind of the defendant.

Because the testimony concerning the victim’s statements to the defendant was proffered not to establish the truth of the facts asserted, but rather to show their effect on the defendant’s state of mind, the trial court correctly concluded that the statements were not hearsay. “Out-of-court statements to a person are admissible to show his state of mind where his mental state is relevant.” State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988); see also State v. Brokaw, 183 Conn. 29, 32, 438 A.2d 815 (1981); Zenik v. O’Brien, 137 Conn. 592, 598, 79 A.2d 769 (1951); C. McCormick, supra, § 249, p. 588. The defendant’s state of mind was relevant to specific intent and to motive; and, therefore, the statements did not constitute hearsay. Emich Motors Corporation v. General Motors Corporation, 181 F.2d 70 (7th Cir.), modified, 340 U.S. 558, 71 S. Ct. 408, 95 L. Ed. 534 (1950), reh. denied, 341 U.S. 906, 71 S. Ct. 610, 95 L. Ed. 1345 (1951) (customer complaint letters admissible to show motivation for cancellation of franchise); State v. Graham, 186 Conn. 437, 439, 441 A.2d 857 (1982) (officer allowed to testify that he had been told that defendant carried a gun and would use it because defendant had challenged the officer’s motive for searching the defendant’s truck); and see State v. Jones, supra, 731; C. McCormick, supra, § 249, pp. 733-34.

The challenged testimony was also admissible as evidentiary of the victim’s state of mind, regardless of the truth of its contents. The victim’s mental state was relevant both to show the victim’s fear of the defendant; State v. Periere, supra, 605-607; C. Tait & J. LaPlante, supra, § 11.3.2; and to establish the defendant’s motive for committing the crime. State v. Thomas, 205 Conn. 279, 285-86, 533 A.2d 553 (1987). This alternate reasoning lends further support to the trial court’s ruling.

C

Finally, the defendant claims that Richard Breault’s testimony concerning the victim’s fourth telephone conversation with the defendant should have been excluded as hearsay. Breault testified that he had heard the victim tell the defendant that she was tired of his drinking and wanted to end their relationship. He also heard her tell the defendant that “he could believe what he wanted to believe about the rumors about Lloyd and her . . . The court instructed the jury that Breault’s testimony was not admitted for the truth of the statements made, but “for the purposes of determining the effect, if any, on the hearer of that telephone call [the defendant].” As with the testimony of Mazie and Flora, this evidence was not hearsay, was relevant to the issue of the defendant’s motive for killing the victim, and was not so prejudicial as to require its exclusion under State v. Vennard, supra. This testimony was, therefore, properly admitted.

There is no error.

In this opinion the other justices concurred.

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

       Practice Book § 4185 provides in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interest of justice notice plain error not brought to the attention of the trial court.”

       “[General Statutes] Sec. 54-86L testimony op expert witness re MENTAL STATE OR CONDITION OP defendant. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.”

       The warnings mandated by Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), require that, once the police take a person into custody, they must before commencing interrogation advise him that he has the right to remain silent and that anything he says can be used against him. He must also “be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . ” Id., 471.

       The defendant also claims that the search violated his rights pursuant to the Connecticut constitution. He has, however, “ ‘proffered no argument that the rights afforded to him by the federal and state constitutions are in any way distinguishable with respect to the substantive issue that he has raised.’ ” State v. Chung, 202 Conn. 39, 45 n.7, 519 A.2d 1175 (1987); State v. Toste, 198 Conn. 573, 576 n.3, 504 A.2d 1036 (1986); State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985). We, therefore, decline to undertake an independent analysis of Ms claim that the search violated his rights under the Connecticut constitution.

       The defendant also contends that one of the knives was not relevant and that, therefore, the knife, a photograph of it and all testimony concerning it should have been excluded. We decline to review this issue because it was not raised at trial and does not implicate a fundamental constitutional right.

       An automobile may also be legally searched without a warrant when there is probable cause to believe that the automobile contains evidence pertaining to a crime, under the so-called “automobile exception.” United

        States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (warrantless search of automobile based on probable cause it contained contraband not unreasonable within meaning of fourth amendment); State v. Januszewski, 182 Conn. 142, 152-54, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). The state contends that the knives were admissible pursuant to this exception. We need not, however, consider the applicability of the “automobile exception” in this case because of our conclusion that the search was constitutionally permissible as incident to a lawful arrest.

       The court gave the following instruction: “Ladies and gentlemen of the jury, I want to give you a cautionary instruction at this time, which may happen during the course of the trial. You’ve just heard certain testimony given by Officer Taft. I want to point out to you that the Court has allowed this evidence to be given, but you are not—it is not being offered to prove the truth of the information given to Officer Taft by the Vermont State Police Department relative to the information contained in both phone calls, but is merely admitted into evidence to show the effect on the hearer of that information and to give an explanation to the subsequent conduct which they did under the circumstances.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Frank X. Lo Sacco v. Debra M. Young et al.
    (13420)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued January 5
    decision released March 28, 1989

      Frank X. Lo Sacco, pro se, the appellant (plaintiff).

      Joseph P. Patrucco, for the appellees (defendants).
   Per Curiam.

The sole issue in this appeal is whether the Appellate Court erred in limiting its review of the plaintiff’s claims to plain error based on the plaintiff’s untimely filing of a motion to set aside the verdict and for a new trial, even though the defendants did not object to the untimely motion. We conclude that the defendants waived their rights with respect to the defect and thus the Appellate Court should not have limited its review to plain error.

On November 5, 1985, the plaintiff, Frank X. Lo Sacco, instituted an action against three defendants, Debra M. Young, Lori Golab and Kim Billian. The court, with consent of the parties, referred the matter to a state trial referee, Hon. Harry W. Edelberg, for trial by jury. On November 26,1986, the jury returned its verdict in favor of the defendants, which verdict the court accepted.

On December 4, 1986, eight days after the court accepted the verdict, the plaintiff filed a motion to set aside the verdict and for a new trial. The defendants did not object to this motion. The court, after a hearing at which the plaintiff and the defendants’ counsel appeared, denied the plaintiff’s motion and rendered judgment in favor of the defendants on December 15, 1986. On December 30, 1986, the plaintiff filed an appeal with the Appellate Court claiming eight errors in his trial before the jury.

The Appellate Court heard the appeal on February 18, 1988. The defendants instructed their counsel not to attend oral argument and informed the Appellate Court that they would rely solely on their brief in response to the plaintiffs arguments. On March 8, 1988, the Appellate Court issued its decision finding no error. Lo Sacco v. Young, 13 Conn. App. 827, 539 A.2d 149 (1988). The Appellate Court declared, sua sponte, that “[t]he determination of the timeliness of the plaintiffs motion [to set aside the verdict and for a new trial] is dispositive of this appeal.” Id., 827. The Appellate Court noted that Practice Book § 320 provides that a motion to set aside a verdict and for a new trial must be filed within five days from the day that the verdict is accepted or the judgment is rendered. Id. The Appellate Court stated that the plaintiffs motion was not filed within this five day limit and thus review of the plaintiffs claims would be restricted to whether there was plain error in the trial. Id., 828. The Appellate Court said: “After a careful review of the record and the briefs we cannot find that the trial court committed plain error.” Id. We granted the plaintiffs petition for certification on April 21, 1988.

The plaintiff, appearing pro se throughout these proceedings, essentially claims that the Appellate Court did not have authority to raise, sua sponte, the issue of untimeliness. Therefore, the plaintiff contends that the Appellate Court improperly limited its review of the plaintiffs claims to a review for plain error.

The defendants contend that the language of Practice Book § 320 requiring that a motion to set aside a verdict and for a new trial be filed within five days from the acceptance of the verdict or entrance of judgment is mandatory. The defendants cite Aubrey v. Meriden, 121 Conn. 361, 185 A. 87 (1936), in support of this proposition. In Aubrey, this court examined the requirement of a twenty-four hour filing deadline for a motion to set aside a verdict under a predecessor rule to § 320, Practice Book (1934) § 229. The plaintiff attempted to file a motion to set aside the verdict one day late and the court clerk would not accept the motion. The court denied the plaintiff’s motion to compel the clerk to accept the motion or for an extension of time to file the motion to set aside. Id., 363-64. This court found no error in the trial court’s rulings, but its reasoning is not as clear as the defendants assert.

In Aubrey, this court found no error in the trial court’s rulings for two reasons. We stated that the trial court did not err in declining to grant an extension of time to file the motion to set aside because this court did not find that the trial court abused its broad discretion in this regard. Id., 365; see Evergreen Cooperative, Inc. v. Michel, 36 Conn. Sup. 541, 544, 418 A.2d 99 (1980). We also said: “Furthermore, the claim of proof by the parties and the charge make it quite evident that in this case there could have been no substantial basis for the granting of the motion had it been seasonably filed.” Aubrey v. Meriden, supra, 365-66. Therefore, although the Aubrey opinion may be construed to hold that the time limit in Practice Book (1934) § 229 was a mandatory requirement, we do not view that case as necessarily holding so under all circumstances.

Nevertheless, we do not dispute the defendants’ contention that the filing deadline in Practice Book § 320 is a mandatory requirement. The section says that “motions to set aside a verdict and motions for new trials . . . must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered . . . .” (Emphasis added.) We have held other rules of practice that employ the term “must” or a similar term to be mandatory. See Hughes v. Bemer, 200 Conn. 400, 402-403, 510 A.2d 992 (1986); see also Blonder v. Hartford Helicopters, Inc., 209 Conn. 618, 619-20, 552 A.2d 427 (1989); Burton v. Planning Comission, 209 Conn. 609, 613-14, 553 A.2d 161 (1989). We construe words used in the Practice Book according to their commonly approved meaning. See Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987); Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984) (Practice Book rules interpreted under same rules of construction as statutes). The word “must” usually connotes a command or requirement. See Webster’s Third New International Dictionary.

Our determination that the time limit, in Practice Book § 320 is mandatory, however, does not end our inquiry. The more important question in this case is whether the time limit under Practice Book § 320 is a substantive requirement or a procedural rule. If it is the former, noncompliance with the rule is a jurisdictional defect that may be raised on the court’s own motion, but if it is the latter, any defect caused by noncompliance with the rule may be waived by the opposing party and thus may not be raised by the court sua sponte. We conclude that the time limitation of Practice Book § 320 is procedural rather than substantive;

“ ‘Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.’ ” Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 73, 540 A.2d 59 (1988), quoting C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). This court has consistently held that jurisdictional limitations are not waived by a failure to object to the defect, and the court may raise such a jurisdictional defect on its own motion. Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987); Moore v. McNamara, 201 Conn. 16, 23, 513 A.2d 660 (1986); Diamond National Corporation v. Dwelle, 164 Conn. 540, 546-47, 325 A.2d 259 (1973).

In this case, however, we are concerned with a time limitation imposed by Practice Book § 320, not by constitutional or statutory mandate, and thus it cannot be jurisdictional. See Giordano Construction Co. v. Ross, 182 Conn. 577, 579, 438 A.2d 772 (1980); LaReau v. Reincke, 158 Conn. 486, 492-95, 264 A.2d 576 (1969). This court also has consistently stated that procedural defects are waived unless specially pleaded and thus courts may not raise defects based on noncompliance with procedural limitations on their own motions. Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985); L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 511-13, 356 A.2d 144 (1975); see Ecker v. West Hartford, supra, 231-32.

Having determined that the five day filing limitation for motions to set aside a verdict and for a new trial under Practice Book § 320 is procedural rather than jurisdictional, it is clear that the Appellate Court erred in raising the timeliness issue sua sponte. The defendants concede that at no time in any of the proceedings in this case did they “question the timeliness of filing the motion to set aside the verdict [and] for a new trial.” As a matter of law then, it is clear that the defendants waived the nonjurisdictional defect in the plaintiff’s motion. See Pepe v. New Britain, 203 Conn. 281, 286, 524 A.2d 629 (1987) (failure to file special defense waived when no objection); Windham Community Memorial Hospital v. Willimantic, 166 Conn. 113, 115, 348 A.2d 651 (1974); Avis Rent-A-Car System, Inc. v. Crown High Corporation, 165 Conn. 608, 614, 345 A.2d 1 (1973); Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596 (1960); State v. Davis, 2 Conn. Cir. Ct. 257, 260, 197 A.2d 668 (1963) (defect caused by untimely filing of motion for new trial under Practice Book [1951] § 233 waived when no objection). Therefore, the Appellate Court erred in restricting the review of the plaintiff’s claims to plain error based on the untimeliness of the plaintiff’s motion to set aside the verdict and for a new trial.

There is error, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction to decide the plaintiff’s appeal on the briefs already filed by the parties in the Appellate Court.

       Practice Book § 320 provides: “ motions in ARREST OF judgment,
      TO SET ASIDE VERDICT OR FOR NEW TRIAL
      “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk’s office is not open; provided that for good cause the court may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”

       This construction of the holding is supported by the court’s statements such as: “No permissible construction of the rule would permit the filing of the motion in this case on the following Monday [one day late].” Aubrey v. Meriden, 121 Conn. 361, 365, 185 A. 87 (1936).

       The fact that Practice Book § 320 operates in conjunction with General Statutes § 52-228b does not change our analysis. For our purposes, § 52-228b only requires that a motion to set aside a verdict in a civil action involving a claim for money damages be in writing.

       The defendants cite Pietrorazio v. Santopietro, 185 Conn. 510, 441 A.2d 163 (1981), Salamandra v. Kozlowski, 173 Conn. 136, 376 A.2d 1103 (1977), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), in support of the proposition that errors not claimed at trial may be reviewed on appeal. These three cases, however, are inapposite to the present case.
      The appeal in Pietrorazio v. Santopietro, supra, 513, was based on General Statutes § 52-263, which is a jurisdictional statute authorizing appeals from final judgments. In that case, we held that the statute authorized appellate jurisdiction despite the plaintiffs failure to file a motion to set aside the verdict with the trial court. Appellate jurisdiction under the statute was not waived by the failure to file the motion with the trial court; however, review was limited to whether there was plain error. Id., 515. As stated previously, there is no jurisdictional basis for the defendants’ claim in the present case.
      In Salamandra v. Kozlowski, supra, 139, the plaintiffs claimed that the defendant’s challenge to the trial court’s jurisdiction by a plea in abatement was improper and that the challenge should have been by a motion to erase. This claim was not raised at trial, but this court did entertain it. Salamandra, however, differs from this case because, again, the new claim on appeal was a jurisdictional claim, not a procedural one.
      In State v. Evans, supra, 70, we declared that there are two circumstances under which we will review claims not raised at trial: (1) when “a new constitutional right not readily foreseeable has arisen between the time of trial and appeal” or (2) when “the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” But again, Evans review is based on constitutional claims. There is no such claim in this case. In addition, the Appellate Court cases that the defendants cite in support of this proposition are similarly unpersuasive.

       We note that this court already has addressed the issue of whether appellate courts in this state should employ plain error review when there is no objection to an untimely motion to set aside the verdict. In Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 544 A.2d 170 (1988), motions of the defendant and the plaintiff to set aside the verdict were both filed late. In a footnote, Justice Shea contrasted the facts of Coelho with those of Small v. South Norwalk Savings Bank, 205 Conn. 751, 756-59, 535 A.2d 1292 (1988), a case in which a motion to set aside the verdict was filed late and the opposing party did object. In Coelho, Justice Shea noted: “In Small v. South Norwalk Savings Bank, [supra], this court held that Practice Book §§ 320 and 321 require that motions for a new trial, to set aside a verdict, and for judgment notwithstanding verdict must be filed with the clerk within five calendar days after the day the verdict is accepted or judgment rendered unless the last day to file falls upon a day when the clerk’s office is closed. We held that a party’s failure to file a timely motion to set aside the verdict limits this court to ascertaining whether there has been plain error. Id., 758. In Small, however, the plaintiff promptly objected to the defendant’s motions in arrest of judgment on the ground of untimeliness. In the case at bar, the defendant did not object to the plaintiff’s motion to set aside the verdict on the ground that it was untimely. Indeed, neither party was aware that their motions to set aside the verdict were untimely until this court pointed out this problem at argument. Accordingly, we apply the normal standard of review applicable in a civil appeal. See Practice Book § 4185.” Coelho v. Posi-Seal International, Inc., supra, 108 n.3. A fair inference from Justice Shea’s opinion in Coelho is that the defendant’s failure to object to the plaintiff’s motion constituted a waiver of the procedural defect.


author: Hull, J.

text:
    J. C. Penney Properties, Inc. v. Peter M. Santella Company, Inc.
    (13490)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued January 5
    decision released March 28, 1989

      Frederick D. Paoletti, for the appellant (plaintiff).

      Andrew P. Nemiroff, with whom, on the brief, was Joseph T. O’Connor, for the appellee (defendant).
   Hull, J.

The sole issue in this appeal is whether the provision in General Statutes § 49-34 (1) (C), directing that a certificate of mechanic’s lien be sworn to by the claimant, requires a written recital of the oath-taking on the certificate. We hold that the oath must appear in writing on the certificate of mechanic’s lien for it to be valid under the statute. Accordingly, we conclude that the trial court erred in upholding the validity of a certificate of mechanic’s lien that contained no written oath.

The facts pertinent to this appeal are as follows. Pursuant to General Statutes § 49-34, on November 16, 1987, the defendant electrical contractor filed a certificate of mechanic’s lien in Danbury for $494,768, as security for electrical work in the construction of a J. C. Penney store in Danbury. On March 25, 1988, the plaintiff, J. C. Penney Properties, Inc., filed an application to discharge or reduce the certificate of mechanic’s lien. General Statutes § 49-35a. At the hearing on the application, the plaintiff argued that the certificate failed to satisfy the requirement that it be sworn in accordance with General Statutes § 49-34 (1) (C). The defendant argued that the statute requires only a signing under oath, and that the oath need not be set forth in the document itself. Clifford Gideon, the defendant’s officer who signed the certificate, testified that Richard Raphael, an attorney, had administered an oath prior to the signing of the certificate. Raphael also testified that he had taken Gideon’s statement under oath. The court, Hickey, J., in an oral opinion, denied the plaintiff’s application. This appeal followed.

The parties do not dispute that Gideon acknowledged the certificate of mechanic’s lien before Raphael. Nor is there any question that such an acknowledgment is not equivalent to an oath swearing to the contents of the certificate. “It is not uncommon for the legislature to require that certain documents be acknowledged or verified. Such an acknowledgment is a public declaration or a formal statement of the person executing an instrument made to the official authorized to take the acknowledgment that the execution of that instrument was his free act and deed. ... On the other hand, a requirement that a document be ‘sworn to’ contemplates the execution of an affidavit that the facts contained in it are true. 3 Am. Jur. 2d 380, Affidavits, § 2.” (Citations omitted.) State v. Wolfe, 156 Conn. 199, 205, 239 A.2d 509 (1968).

“An acknowledgment is a verification of the fact of the execution of the instrument but not of its contents. 1 Am. Jur. 316 § 2, 343 § 70; 1 Words & Phrases 620; Pittis v. Abrams, 129 N.Y.S.2d 216, 217 [1954]. A verification, on the other hand, is a sworn statement of the truth of the facts stated in the instrument verified. It always involves the administration of an oath. 1 Am. Jur. 942 § 13, 949; 44 Words & Phrases 138, 142.” Bell & Zajicek, Inc. v. Heyward-Robinson Co., 23 Conn. Sup. 296, 298, 182 A.2d 339 (1962).

We have long endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanics’ liens in order to achieve the remedial purposes of the mechanics’ lien statutes. “Provisions of mechanics’ lien law should be liberally construed so as to reasonably and fairly implement its remedial intent.” H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). We have also recognized, however, that such a policy has limitations: “[T]he principles that guide our interpretation of mechanic’s lien legislation are well settled. Although this legislation creates a statutory lien in derogation of the common law ... its remedial purpose to furnish security for a contractor’s labor and materials requires a generous construction. . . . Generosity of spirit does not, however, permit departure from reasonable compliance with the specific provisions of the statute. Stone v. Rosenfield, [141 Conn. 188, 191, 104 A.2d 545 (1954)]; City Lumber Co. v. Borsuk, [131 Conn. 640, 645, 41 A.2d 775 (1945)].” (Citations omitted.) Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550-51, 429 A.2d 796 (1980).

In accordance with this policy, our courts have been liberal in validating liens despite claimed errors on the face of the lien certificate where the mistake was made in good faith and no resulting prejudice was claimed. See, e.g., H & S Torrington Associates v. Lutz Engineering Co., supra, 155-56 (copy of certificate served on owner by a subcontractor failed to state its intent to file a lien); Morici v. Jarvie, 137 Conn. 97, 102, 75 A.2d 47 (1950) (misstatement of amount due); Pierce, Butler & Pierce Mfg. Corporation v. Enders, 118 Conn. 610, 615, 174 A. 169 (1934) (subcontractor mislabeled as contractor and agent); Burque v. Naugatuck Lumber Co., 113 Conn. 350, 353, 155 A. 414 (1931) (defect in description); Peck v. Brush, 89 Conn. 554, 556-57, 94 A. 981 (1915) (inclusion of extra land in certificate); Westland v. Goodman, 47 Conn. 83, 86 (1879) (erroneous date of completion of work). The defendant, however, has cited no Connecticut case in which a court has validated a certificate of mechanic’s lien despite the clear absence of a necessary statutory element of the certificate, nor have we found such a case.

Three Connecticut cases lead us to conclude that the liens in this case are invalid. Bell & Zajicek, Inc. v. Heyward-Robinson Co., supra, is the closest on point. In that case, the Superior Court held that a certificate of mechanic’s lien that was merely acknowledged, but not sworn to, was invalid. The only distinction between the present case and Bell & Zajicek, Inc., is the attempted validation of the certificate in this case by the testimony of the oath taker.

The case of Kelly v. Alling, 84 Conn. 487, 80 A. 782 (1911), is persuasive by analogy. In Kelly, General Statutes (1902 Rev.) § 4138 allowed the defendant property owner credit for all the payments he may have made in good faith to an original contractor before receiving notice of a claim of lien by a subcontractor. We held that the notice referred to in § 4138 referred only to the statutory notice described in General Statutes (1902 Rev.) § 4137. We concluded that oral notice and notice by letter were not proof that payments by the owner to the contractor, in accordance with the contract, were not made in good faith, and that the letter was properly excluded from evidence.

We reach back 169 years for the most cogent analogy. In Pendleton v. Button, 3 Conn. 406 (1820), the defendant proposed to prove that title to certain land was in one Stoddard, and to this end offered in evidence a deed that had never been acknowledged in writing, together with accompanying testimony that a parol acknowledgment was actually made. We stated: “This evidence was rejected; and most correctly. It is provided by statute, that no deed shall be accounted complete in law, to convey real estate, but such as is written witnessed, acknowledged, and recorded. Tit. 142, c. 1. s. 7. The acknowledgment, to be recorded, must necessarily, be in writing; and such is the invariable practice. To the record all men recur, for the purpose of ascertaining the title of lands; and to satisfy the enquiry, a written acknowledgment is indispensably necessary.” (Emphasis in original.) Id., 412.

We conclude that a certificate of mechanic’s lien under General Statutes § 49-34 is sufficiently like a deed of land to make Pendleton dispositive of this case. Section 49-34 (1) provides that the “certificate in writing . . . shall be recorded by the town clerk with deeds of land . . . . ” Unlike the effect of a mere notice, as claimed by the defendant, a lien certificate may effect a transfer of land title by means of a foreclosure of the lien. See City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 19, 179 A. 339 (1935) (“[i]n all essential respects the attributes of foreclosure of mortgages apply to mechanics’ liens”).

Moreover, our conclusion accords with common sense. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). The defendant argues that the statute does not require that the swearing to the contents of the certificate be in writing. In considering a stat-' ute that authorizes a certificate of mechanic’s lien in writing, however, we cannot ascribe to the legislature an intent that an essential part of this certificate need not be in writing. Such a certificate may take precedence over prior encumbrances and may furnish the basis for a foreclosure of the subject premises. General Statutes § 49-34 describes the contents of such a certificate with great detail. To validate a certificate without a written oath would invite confusion, delay and uncertainty into an area where certainty and complete compliance with the statutory requirements are of paramount importance to interested parties and the general public. As the Supreme Judicial Court of Massachusetts said, in a case concerning a statutory lien arising out of labor or materials furnished in a public building project: “There are practical considerations of importance .... The sworn statement is designed in part to be the basis of action by others who are entitled to like relief and by public officers. To hold there need be no [sworn statement] attached would open the door to fraud difficult to detect.” Cook Borden & Co. v. Commonwealth, 293 Mass. 174, 180, 199 N.E. 551 (1936).

We hold that the mechanic’s lien at issue in this case is invalid because it did not contain a written oath that it had been sworn to by the signer.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment discharging the lien.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 49-34. certificate of lien to be recorded and notice given to owner. A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) within the same time, or prior to the lodging of the certificate but not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.”

       The defendant filed an identical second certificate on November 19,1987, to cure a perceived defect in service. We consider both certificates as one.

       The plaintiff briefed the issue as follows: “Whether the trial court erred in denying plaintiff’s application for discharge or reduction of mechanic’s lien, by finding the defendant complied with Connecticut General Statutes § 49-34 (1) (C) requiring the certificate of mechanic’s lien be sworn to, on the basis of parol evidence, when the certificate of mechanic’s lien itself does not indicate an oath was administered or otherwise sworn to.” The defendant stated the issue as follows: “Whether the trial court erred in considering parol evidence to determine that the certificate of mechanic’s lien was sworn to as required by Connecticut General Statutes § 49-34 (1) (C).”
      We believe the parties have misstated the issue. This case is not about the parol evidence rule. It concerns simply the validity of an oath on a mechanic’s lien not in writing on the certificate of lien.

       The last portion of the defendant’s Exhibit 3 provides: “On this the 16th day of November, 1987, before me, RICHARD H. RAPHAEL, the undersigned officer, personally appeared, CLIFFORD S. GIDEON, who acknowledged himself to be the Vice President Finance of PETER M. SANTELLA COMPANY, INC., a Corporation, and that he, as such Vice President Finance, being authorized so to do, executed the foregoing instrument of the purposes therein contained, by signing the name of the corporation by himself as Vice President Finance.
      “In witness whereof I hereunto set my hand.
      ISI_
      Richard II. Raphael
      Commissioner of the Superior Court”
      The last portion of the defendant’s Exhibit 4 provides: “On the the 17th day of November, 1987, before me, RICHARD H. RAPHAEL, the undersigned officer, personally appeared, CLIFFORD S. GIDEON, who acknowledged himself to be the Vice President Finance of PETER M. SANTELLA COMPANY, INC., a Corporation, and that he, as such Vice President Finance, being authorized so to do, executed the foregoing instrument of the purposes therein contained, by signing the name of the corporation by himself as Vice President Finance.
      “In witness whereof I hereunto set my hand.
      ISI_
      Richard II. Raphael
      Commissioner of the Superior Court”

       General Statutes (1902 Rev.) § 4138 provides: “No such lien shall attach to any building or its appurtenances, or to the land on which the same may stand, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for such building and its appurtenances; and when there shall be several claimants, and the amount of their united claims shall exceed such price, the claimants, other than the original contractor, shall be first paid in full, if the amount of such price is sufficient for that purpose; but if not, it shall be apportioned among the claimants having such liens, other than the original contractor, in proportion to the amount of the debts due them respectively; and the court having jurisdiction thereof, on application of any person interested, may direct the manner in which such claims shall be paid; but in determining the amount to which any lien or liens shall attach upon any land or building, the owner of such land or building shall be allowed whatever payments he shall have made, in good faith, to the original contractor or contractors, before receiving notice of such lien or liens. No payments made in advance of the time stipulated in the original contract shall be considered as made in good faith, unless notice of intention to make such payment shall have been given in writing to each person known to have furnished materials or rendered services at least five days before such payment is made.”

       General Statutes (1902 Rev.) § 4137 provides: “No person other than the original contractor for the construction, raising, removal, or repairing of the building, or a subcontractor, whose contract with such original contractor is in writing, and has been assented to in writing by the other party to such original contract, shall be entitled to claim any such lien, unless he shall, after commencing, and not later than sixty days after ceasing, to furnish materials or render services for such construction, raising, removal, or repairing, give written notice to the owner of such building that he has furnished or commenced to furnish materials, or rendered or commenced to render services, and intends to claim a lien therefor on said building; which shall be served upon said owner, if he resides in the same town in which said building is being erected, raised, removed, or repaired, by any indifferent person, by leaving with him or at his usual place of abode a true and attested copy thereof; and if said owner does not reside in said town, but has a known agent therein, such notice may be so served upon said agent, otherwise it may be served by any indifferent person, by mailing a true and attested copy of said notice to such owner at the place where he resides; and when there shall be two or more owners, such notice to one of them shall be notice to all; and said notice with the return of the person who served it indorsed thereon shall be returned to the original maker thereof within said period of sixty days. No subcontractor, without a written contract complying with the provisions of this section, and no person who furnishes material or renders services by virtue of a contract with the original contractor or with any subcontractor, shall be required to obtain an agreement with, or the consent of, the owner of the land, as provided in § 4135, to enable him to claim a lien under this section.”