author: Peters, C. J.

text:
    Motor Vehicle Manufacturers Association of the United States, Inc., et al. v. William A. O’Neill et al.
    (12985)
    Peters, C. J., Shea, Santaniello, Jacobson and F. Hennessy, Js.
    Argued February 10
    decision released March 31, 1987

      Mark R. Kravitz, with whom were Michael K. Brown and, on the brief, William H. Crabtree, Jane Lightfoot Wilson and Charles S. Lockwood II, for the plaintiffs.

      Robert M. Langer, assistant attorney general, with whom were Garry Desjardins, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Janet A. Spaulding and William M. Rubenstein, assistant attorneys general, for the defendants.

      John J. Woodcock III, pro se, as intervening defendant.
   Peters, C. J.

This case comes to us, by way of reservation, as a multifaceted challenge to the constitutional and statutory validity of legislation colloquially known as Lemon Law II that establishes arbitration panels for the settlement of disputes between consumers and manufacturers of new motor vehicles. The plaintiffs, Motor Vehicle Manufacturers Association of the United States, Inc., and a number of individual motor vehicle manufacturers and importers, brought an action in six counts seeking declaratory and injunctive relief from Public Acts 1984, No. 84-338, codified as General Statutes §§ 42-181 through 42-184, both in its initial form and as amended in 1985. The complaint named as defendants the governor, William A. O’Neill, and other governmental officials and agencies charged with enforcing the act. State Representative John J. Woodcock III, a legislative sponsor of Lemon Law II, was permitted to intervene as a party defendant. At the joint request of all the parties, the trial court, Satter, J., granted a motion for reservation upon stipulated facts to have this court resolve nine questions of law about the validity of the statutes in question. Because we conclude that the questions were improvidently reserved, we remand the case for trial.

All of the plaintiff manufacturers and importers extend express written warranties to the retail purchasers of their cars. Although these warranties vary in scope and in duration, they all conform to the same general pattern. For new vehicles, and/or selected components, the warrantors promise to pay for repair or replacement of defective factory materials or workmanship during a stipulated warranty period. The warranty period ranges from a minimum of twelve months or 12,000 miles (whichever occurs first) to a maximum of five years or 50,000 miles. The warranty may also contain a provision for a deductible.

Informal dispute resolution mechanisms to resolve consumer complaints about consumer products received federal encouragement in 1975, when Congress enacted the Magnuson-Moss Warranty Act. Pub. L. No. 93-637, title I, 15 U.S.C. § 2301 et seq., and especially § 2310 (a). The federal trade commission has adopted standards for the operation of informal dispute settlement mechanisms. 16 C.F.R. § 703 et seq. In response, the plaintiffs Chrysler Corporation and Ford Motor Company have established their own informal dispute settlement mechanisms for the settlement of disputes with consumers regarding applicable warranties, among other matters. In addition, the Council of Better Business Bureaus, Inc., administers an “Auto Line” dispute settlement mechanism which fourteen other manufacturers offer to consumers.

In 1982, the Connecticut legislature enacted Public Acts 1982, No. 82-287 (Lemon Law I). That act is codified as General Statutes § 42-179. For consumer buyers of new motor vehicles, the act provides supplemental remedies of repair, replacement and refund to facilitate the enforcement of express warranties made by the manufacturers of such vehicles. These supplemental remedies come into play whenever a manufacturer or authorized dealer, after a reasonable number of repair attempts, is unable substantially to conform a new vehicle to the terms of the express warranty. The validity of Lemon Law I is not an issue in the present litigation.

In 1984, the legislature enacted Public Acts 1984, No. 84-338 (Lemon Law II), now codified as General Statutes §§ 42-181 through 42-184. The purpose of Lemon Law II is to provide, for consumer purchasers of new motor vehicles, an alternative to civil litigation. The key provision is § 42-181, which authorizes the department of consumer protection to establish “an independent arbitration procedure for the settlement of disputes between consumers and manufacturers of motor vehicles which do not conform to all applicable warranties under the terms of section 42-179.” Whether to invoke arbitration under the act is a decision for the consumer: only the consumer may initiate arbitration proceedings, and the consumer may decide whether to accept the decision of the arbitration panel. General Statutes § 42-181 (b), (c). Once a consumer has brought a grievance to the statutory arbitration panel, the manufacturer must cooperate, in good faith, with all aspects of the arbitration procedure. General Statutes §§ 42-181 (b), (c) and 42-184. The department of consumer protection has promulgated the necessary regulations, effective December 18,1984, to create the automobile dispute settlement panels mandated by Lemon Law II. Regs., Conn. State Agencies § 42-1-181 et seq.

The legislature amended both Lemon Law I and Lemon Law II in 1985, when it enacted Public Acts 1985, No. 85-331, codified as General Statutes § 41-179a and as amendments to §§ 42-179, 42-181, 42-182 and 42-185. The amendments, in addition to making a number of procedural changes, empowered the attorney general to certify a manufacturer’s informal dispute settlement mechanism as complying with 16 C.F.R. § 703 et seq., thus avoiding the state’s arbitration panels under Lemon Law II. To date, no manufacturer has obtained such certification. A report of the attorney general that has been made an exhibit criticizes existing private programs for, inter alia, their “exclusion of consequential damages” from the arbitration process.

The state has begun to implement and enforce Lemon Law II according to its terms. Arbitration panels have heard and resolved numerous consumer complaints pursuant to the applicable statutory and regulatory provisions. Examination of the available documentation concerning the decisions of the arbitration panels, contained in exhibit M, indicates that these arbitration proceedings appear to have been conducted and concluded, in large part, without their participants having raised any of the questions of constitutional validity and statutory conflict that the present plaintiffs are pursuing in this case.

With respect to each of the fourteen exhibits that accompany the stipulation, each party has reserved the right to challenge the relevancy of its contents to the issues raised by the reservation. The plaintiffs, furthermore, “expressly do not stipulate to the truth or accuracy of any of the information or statements contained in Exhibits A through N.” In effect, therefore, the stipulation furnishes us with no binding particulars about the nature of the consumer disputes whose arbitrability these plaintiffs resist, or about the arbitral remedies previously sought or awarded.

The stipulation as a whole, therefore, is simply a request for advice about the facial validity of Lemon Law II. The reserved questions raise a number of serious issues about the validity of Lemon Law II under the federal and state constitutions, as well as a possible statutory conflict between Lemon Law II and the Uniform Administrative Procedure Act. General Statutes § 4-166 et seq.

The propriety of a reservation which seeks an adjudication of constitutional questions in a factual vacuum is always doubtful. Only recently, this court reviewed at length the discretionary prudential concerns which generally counsel against such an undertaking. State v. Zach, 198 Conn. 168, 176-78, 502 A.2d 896 (1985), and cases there cited; see also J. Nowak, R. Rotunda & J. Young, Constitutional Law (2d Ed. 1983) pp. 72-74; L. Tribe, American Constitutional Law (1978) § 3-13. A party mounting a constitutional challenge to the validity of a statute must provide an adequate factual record in order to meet its burden of demonstrating the statute’s adverse impact on some protected interest of its own, in its own particular case, and not merely under some hypothetical set of facts as yet unproven. Whether a case comes to us by way of reservation or after a final judgment, the rule is the same. We do not give advisory opinions, nor do we sit as roving commissions assigned to pass judgment on the validity of legislative enactments. “Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.” International Longshoremen’s & Warehousemen’s Union, Local 37 v. Boyd, 347 U.S. 222, 224, 74 S. Ct. 447, 98 L. Ed. 650 (1954). In the absence of weighty countervailing circumstances, facial invalidation of a statute is improvident. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-502, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985).

Without an adequate factual record, the issues concerning the constitutional validity of Lemon Law II are not ripe for review. The problem we face is illustrated by the parties’ conflicting positions about the first issue that has been reserved to us: does Lemon Law II violate the portion of article first, § 19, of the Connecticut constitution, as amended, which provides that “the right of trial by jury shall remain inviolate”?

The basic principles that govern the scope of article first, § 19, are well established. The right to a jury trial is measured by a historical test. “[A]s to cases triable to the jury prior to the constitution of 1818, and extant at the time of its adoption, the right may not be abolished.” Gentile v. Altermatt, 169 Conn. 267, 298, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); United States Fidelity & Guaranty Co. v. Spring Brook Dairy, Inc., 135 Conn. 294, 297, 64 A.2d 39 (1949). Causes of action that are essentially cognizable at law are triable to a jury, while actions that are essentially equitable are not. United States Trust Co. v. Bohart, 197 Conn. 34, 44-45, 495 A.2d 1034 (1985); Franchi v. Farmholme, Inc. 191 Conn. 201, 209-11, 464 A.2d 35 (1983). This distinction is easier to state than to apply, especially when legal and equitable issues are combined in a single action. “Where incidental issues of fact are presented in an action essentially equitable, the court may determine them without a jury in the exercise of its equitable powers .... Where, however, the essential basis of the action is such that the issues presented would be properly cognizable in an action of law, either party has a right to have the legal issues tried to the jury, even though equitable relief is asked in order to give full effect to the legal rights claimed.” National Bank of Commerce of New London v. Howland, 128 Conn. 307, 310, 22 A.2d 773 (1941). Application of these principles to a particular controversy requires an analysis of the pleadings as a whole. In that analysis, “[t]he form of the relief demanded is not dispositive.” United Stales Trust Co. v. Bohart, supra; Franchi v. Farmholme, Inc., supra.

The cause of action whose essential nature we are asked to assess is the complaint of a consumer who invokes Lemon Law II to avail himself of an arbitral forum to hear his dispute with the manufacturer of a new motor vehicle. The plaintiffs maintain that such a consumer complaint is essentially a cause of action for breach of an express warranty. Whether a warranty claim is viewed as a contract action, a tort action, or a hybrid of the two; Johnson v. Healy, 176 Conn. 97, 100, 405 A.2d 54 (1978); such a matter has always been triable to a jury. Bailey v. Nichols, 2 Conn. (Root) 407 (1796). Because the issues that come before the statutory arbitration panels are substantially the same as those that would have been triable at law, the plaintiffs argue that, even as a statutory cause of action, a consumer complaint under Lemon Law II must respect the plaintiffs’ right to a jury trial.

The defendants do not dispute the proposition that a common law action to recover damages for breach of an express warranty would have been a legal action triable to a jury prior to 1818. Rather, their argument is that Lemon Law II does not “track” this common law action. They maintain that the provisions of the Lemon Law follow, instead, the essential outlines of a bill in equity for specific performance of a contract or for rescission and restitution. Such equitable actions do not require a jury trial even if ancillary monetary damages are awarded. United States Trust Co. v. Bohart, supra.

In our analysis of the causes of action that Lemon Law II authorizes to be brought to arbitration panels, we are of course handicapped by having no stipulated facts about the contents of the pleadings that the panels have entertained. In these circumstances, we are left with a facial appraisal of the applicable statutory provisions. The section of Lemon Law II that describes the remedies that arbitrators may order is § 42-181 (c). This section gives arbitration panels wide-ranging discretion to fashion “appropriate remedies, including, but not limited to one or more of the following: (1) Repair of the vehicle; (2) Replacement of the vehicle with an identical or comparable new vehicle acceptable to the consumer; (3) Refund of the full contract price, plus collateral charges as specified in subsection (d) of . . . section 42-179; (4) Reimbursement for expenses and compensation for incidental damages as specified in subsection (d) of . . . section 42-179; (5) Any other remedies available under the applicable warranties, section 42-179, this section and sections 42-182 to 42-184, inclusive, or the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 88 Stat. 2183 (1975), 15 USC 2301 et seq., as in effect on October 1, 1982.” The refund and reimbursements authorized by § 42-179 (d) include: “The full contract price ... all collateral charges, including . . . sales tax, license and registration fees . . . finance charges . . . and all incidental damages as defined in section § 42a-2-715, less a reasonable allowance for the consumer’s use of the vehicle.” Incidental damages, in turn, are defined in § 42a-2-715, which is part of the Uniform Commercial Code, as including “expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected . . . and any other reasonable expense incident to the delay or other breach,” subject to diminution by a reasonable allowance for use value.

The expansive nature of this statutory authority for remedial action leaves considerable room for variation in actual practice. The briefs of the parties, and their oral arguments in this court, make it apparent that they take distinctly different views of how arbitration panels operate in fact, and especially of the remedies that are likely to be sought and awarded. The plaintiffs focus on the monetary relief that is afforded by way of a “refund” and note that a claim for such relief closely resembles a monetary action for breach of warranty. The defendants, by contrast, emphasize the centrality of “repair” and “replacement” as specific enforcement of the terms of the plaintiffs’ warranties. Starting from these different points of departure, the parties disagree strenuously about what is essential and what is ancillary to the claims that Lemon Law II authorizes arbitration panels to decide. Absent a factual record, this is a disagreement that we cannot resolve.

Because of the nature of the remedy that the act characterizes as a “refund,” if indeed that remedy is regularly invoked by Lemon Law II arbitration panels, the plaintiffs’ argument that the act impairs their right of access to trial by jury presents an extremely close question that cannot be dismissed out of hand. We note that the attorney general has himself emphasized that the availability of adequate compensatory damages is essential to a viable alternative dispute resolution mechanism. We note further that Lemon Law II invites a comparison to relevant provisions of the Uniform Commercial Code, when, in § 42-179 (d), it expressly incorporates the code’s definition of incidental damages. Under article 2 of the code, a buyer’s right to recover the purchase price of goods rightfully returned to the seller has never been characterized as an equitable remedy. The code speaks of specific performance only with regard to a buyer’s entitlement to receive the goods that were promised. General Statutes §§ 42a-2-711 (2), 42a-2-716. For a buyer who rightfully rejects or revokes acceptance of a seller’s tender of goods, the right to recovery of the purchase price is not a claim for rescission and may be tried to a jury. General Statutes § 42a-2-711 (2); Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 119-20, 374 A.2d 144 (1976); and compare General Statutes § 42a-2-718 (2); Barco Auto Leasing Corporation v. House, 202 Conn. 106, 114-16, 520 A.2d 162 (1987).

Review of this serious challenge to the constitutional validity of Lemon Law II requires an adequate factual record. Without a finding of whether particular arbitration proceedings, or arbitration proceedings in general under Lemon Law II, essentially rely on requests and awards for refunds, we lack a basis for determining the extent to which the proceedings authorized by Lemon Law II are essentially legal or essentially equitable. Because it would be improvident to resolve this crucial issue on the present record, and because disposition of this issue may obviate the need to address the other questions that have been reserved to us, we conclude that it is inappropriate for us to respond to any part of the reservation. It no longer appears, as Practice Book § 4147 (formerly § 3133) requires, that the present determination of these questions “would be in the interest of simplicity, directness and economy of judicial action.” See State v. Zach, supra, 178; State v. Sanabria, 192 Conn. 671, 684, 474 A.2d 760 (1984); Rothkopf v. Danbury, 156 Conn. 347, 350, 242 A.2d 771 (1968).

We do not answer the reserved questions; the case is remanded for further proceedings not inconsistent with this opinion.

No costs will be taxed to any party.

In this opinion the other justices concurred.

       The plaintiffs are: Motor Vehicle Manufacturers Association of the United States, Inc., a not-for-profit trade association of motor vehicle manufacturers; American Motors Corporation; Chrysler Corporation; Ford Motor Company; Volkswagen of America, Inc.; Automobile Importers of America, Inc., a not-for-profit trade association of motor vehicle importers; Alfa Romeo, Inc.; American Honda Motor Company, Inc.; American Isuzu Motors, Inc.; BMW of North America, Inc.; Fiat Auto U.S.A., Inc.; Jaguar Cars, Inc.; Lotus Performance Cars; Mazda Motors of America (Central), Inc.; Mitsubishi Motor Sales of America, Inc.; Nissan Motor Corporation in U.S.A.; Peugeot Motors Corporation in U.S.A.; Porsche Cars North America, Inc.; Renault U.S. A., Inc.; Rolls Royce Motors, Inc.; SaabScania of America, Inc.; Subaru of America, Inc.; Toyota Motor Sales, U.S.A., Inc.; and Volvo of America Corporation.

       The complaint contains the following counts: count one alleges that Public Acts 1984, No. 84-338, violates the right of trial by jury guaranteed by article first, § 19, of the Connecticut constitution; count two alleges that the act violates the separation of powers established by article second and article fifth, § 1, of the Connecticut constitution; counts three and four allege that various provisions of the act violate rights to due process and equal protection guaranteed by the fourteenth amendment to the United States constitution and by article first, §§ 8,10 and 20, of the Connecticut constitution; count five alleges that the act contains an unconstitutional delegation of legislative power to the commissioner of consumer protection, in violation of article third, § 1, of the Connecticut constitution; and count six alleges that the proceedings of the dispute resolution panels set up by the act to adjudicate consumer complaints must be governed by the applicable provisions of the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. The complaint seeks, as relief: a permanent injunction on the theory that Public Acts 1984, No. 84-338, is unconstitutional; a declaratory judgment that the Uniform Administrative Procedure Act applies to all acts of department panels and all appeals therefrom; and whatever ancillary relief may be appropriate.

       The defendants are: Governor William A. O’Neill; Attorney General Joseph I. Lieberman; Commissioner of Consumer Protection Mary M. Heslin; the Department of Consumer Protection; Commissioner of Motor Vehicles Benjamin A. Muzio; and the Department of Motor Vehicles.

       The parties reserved the following nine questions of law for the advice of this court: “(a) Does Lemon Law II violate the portion of Article First, Section 19 of the Connecticut Constitution, as amended, which provides that the ‘right of trial by jury shall remain inviolate’? (b) Does Lemon Law II’s creation of arbitration panels violate the Separation of Powers provisions of Article Second and Article Fifth, Section 1 of the Connecticut Constitution, as amended? (c) Does the fact that automobile manufacturers subject to section 42-181 (b) of the Connecticut General Statutes must pay a $250 filing fee to defend a claim before an arbitration panel violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and the Due Process and Equal Protection Clauses of Article First, Sections 8,10, and 20 of the Connecticut Constitution, as amended? (d) Does the fact that section 42-181 (b) of the Connecticut General Statutes does not require notice and an opportunity to be heard prior to the assessment of the $250 filing fee upon a manufacturer violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and the Due Process and Equal Protection Clauses of Article First, Sections 8, 10, and 20 of the Connecticut Constitution, as amended? (e) Does the fact that manufacturers subject to section 42-181 (b) of the Connecticut General Statutes must pay a $250 fee, and consumers must pay a $50 fee, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution and the Due Process and Equal Protection Clauses of Article First, Sections 8, 10 and 20 of the Connecticut Constitution, as amended? (f) Does section 42-181 (g) of the Connecticut General Statutes constitute an unlawful delegation of legislative authority in violation of Article Third, Section 1 of the Connecticut Constitution, as amended? (g) Are all actions of arbitration panels under Lemon Law II and to which cases are referred by the defendant Department of Consumer Protection, and all appeals therefrom, subject to the provisions of the Connecticut Administrative Procedure Act, C.G.S. Section 4-166 et seq.? (h) If the answer to question (g) is in the affirmative, does the General Assembly’s enactment of section 42-181 (c) of the Connecticut General Statutes, (as amended by Public Act No. 85-331), exempt the actions of arbitration panels, and all appeals therefrom, from the Connecticut Administrative Procedure Act, C.G.S. section 4-166 et seq.? (i) If the answer to question (h) is in the negative, do the procedures set forth in Lemon Law II and the Regulations violate the Connecticut Administrative Procedure Act, C.G.S. section 4-166 et seq.?”

       “[General Statutes] Sec. 42-179. new motor vehicle warranties. (a) As used in this section and section 42-180: (1) ‘Consumer’ means the purchaser, other than for purposes of resale, of a motor vehicle, any person to whom such motor vehicle is transferred during the duration of an express warranty applicable to such motor vehicle, and any other person entitled by the terms of such warranty to enforce the obligations of the warranty; and (2) ‘motor vehicle’ means a passenger motor vehicle or a passenger and commercial motor vehicle, as defined in section 14-1, which is sold in this state.
      “(b) If a new motor vehicle does not conform to all applicable express warranties, and the consumer reports the nonconformity to the manufacturer, its agent or its authorized dealer, (1) during the term of such express warranties or during the period of one year following the date of original delivery of the motor vehicle to a consumer whichever is the earlier date or (2) in the case of a motor vehicle sold on or after July 1, 1984, during the period of two years following such date of original delivery or during the first eighteen thousand miles of operation, whichever is the earlier date, the manufacturer, its agent or its authorized dealer shall make such repairs as are necessary to conform the vehicle to such express warranties, notwithstanding the fact that such repairs are made after the expiration of the appropriate time period.
      “(c) No consumer shall be required to notify the manufacturer of a claim under this section and sections 42-181 to 42-184, inclusive, unless the manufacturer has clearly and conspicuously disclosed to the consumer, in the warranty or owner’s manual, that written notification of the nonconformity is required before the consumer may be eligible for a refund or replacement of the vehicle. The manufacturer shall include with the warranty or owner’s manual the name and address to which the consumer shall send such written notification.
      “(d) If the manufacturer, or its agents or authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use, safety or value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a new motor vehicle acceptable to the consumer, or accept return of the vehicle from the consumer and refund to the consumer the following: (1) The full contract price including, but not limited to charges for undercoating, dealer preparation and transportation, and installed options, (2) all collateral charges, including, but not limited to, sales tax, license and registration fees, and similar government charges, (3) all finance charges incurred by the consumer after he first reports the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is out of service by reason of repair, and (4) all incidental damages as defined in section 42a-2-715, less a reasonable allowance for the consumer’s use of the vehicle. No authorized dealer shall be held liable by the manufacturer for any refunds or vehicle replacements in the absence of evidence indicating that dealership repairs have been carried out in a manner inconsistent with the manufacturers’ instructions. Refunds shall be made to the consumer, and lienholder if any, as their interests may appear. A reasonable allowance for use shall be that amount obtained by multiplying the total contract price of the vehicle by a fraction having as its denominator one hundred thousand and having as its numerator the number of miles that the vehicle traveled prior to the manufacturer’s acceptance of its return. It shall be an affirmative defense to any claim under this section (1) that an alleged nonconformity does not substantially impair such use, safety or value or (2) that a nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of a motor vehicle by a consumer.
      “(e) It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties, if (1) the same nonconformity has been subject to repair four or more times by the manufacturer or its agents or authorized dealers (A) within the express warranty term or during the period of one year following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date or (B) in the case of a motor vehicle sold on or after July 1,1984, during the period of two years following such date of original delivery or during the first eighteen thousand miles of operation, whichever is the earlier date, but such nonconformity continues to exist or (2) the vehicle is out of service by reason of repair for a cumulative total of thirty or more calendar days during such term or during such period, whichever is the earlier date. The term of an express warranty, such one-year period, such two-year period and such thirty-day period shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike or fire, flood or other natural disaster.
      “(f) No motor vehicle which is returned to the manufacturer and which requires replacement or refund shall be resold in the state without clear and conspicuous written disclosure of the fact that such motor vehicle was so returned prior to resale. The commissioner of motor vehicles shall, by regulations adopted in accordance with the provisions of chapter 54, prescribe the form and content of any such disclosure statement and establish provisions by which the commissioner may remove such written disclosure after such time as the commissioner may determine that such motor vehicle is no longer defective.
      “(g) All express and implied warranties arising from the sale of a new motor vehicle shall be subject to the provisions of part 3 of article 2 of title 42a.
      “(h) Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.
      “(i) If a manufacturer has established an informal dispute settlement procedure which is certified by the attorney general as complying in all respects with the provisions of Title 16 Code of Federal Regulations Part 703, as in effect on October 1, 1982, and with the provisions of subsection (b) of section 42-182, the provisions of subsection (d) of this section concerning refunds or replacement shall not apply to any consumer who has not first resorted to such procedure.”

       “[General Statutes] Sec. 42-181. department arbitration procedure, records, appeals, (a) The department of consumer protection, shall provide an independent arbitration procedure for the settlement of disputes between consumers and manufacturers of motor vehicles which do not conform to all applicable warranties under the terms of section 42-179. The commissioner shall establish one or more automobile dispute settlement panels which shall consist of three members appointed by the commissioner of consumer protection, only one of whom may be directly involved in the manufacture, distribution, sale or service of any product. Members shall be persons interested in consumer disputes and shall serve without compensation for terms of two years at the discretion of the commissioner. In lieu of referring an arbitration dispute to a panel established under the provisions of this section, the department of consumer protection may refer an arbitration dispute to the American Arbitration Association in accordance with regulations adopted in accordance with the provisions of chapter 54.
      “(b) An owner of any motor vehicle purchased at any time on or after October 1, 1984, which fails to conform to such applicable warranties as defined in said section 42-179, may bring a grievance to an arbitration panel if the manufacturer of the vehicle has not established an informal dispute settlement procedure which the attorney general has certified as complying in all respects with the requirements of said section 42-179. The.consumer may initiate a request for arbitration by calling a toll-free telephone number designated by the commissioner or by requesting an arbitration hearing in writing. The consumer shall file, on forms prescribed by the commissioner, any information deemed relevant to the resolution of the dispute and shall return the form accompanied by a filing fee of fifty dollars. Such complaint form shall offer the consumer a choice of presenting any subsequent testimony orally or in writing. The filing fee shall be refunded if the arbitration panel determines that a complaint does not allege a violation of any applicable warranty under the requirements of said section 42-179. Upon acceptance of the complaint, the commissioner shall notify the manufacturer of the filing of a request for arbitration and shall obtain from the manufacturer, in writing on a form prescribed by the commissioner, any information deemed relevant to the resolution of the dispute. The manufacturer shall return the form within fifteen days of receipt, together with a filing fee of two hundred fifty dollars.
      “(c) The department of consumer protection shall investigate, gather and organize all information necessary for a fair and timely decision in each dispute. The commissioner may issue subpoenas on behalf of any arbitration panel to compel the attendance of witnesses and the production of documents, papers and records relevant to the dispute. The department shall forward a copy of all written testimony, including all documentary evidence, to an independent technical expert certified by the National Institute of Automotive Service Excellence or having a degree or other credentials from a nationally recognized organization or institution attesting to automotive expertise, who shall review such material and be available to advise and consult with the arbitration panel. An expert shall sit as a non voting member of an arbitration panel whenever oral testimony is presented. Such experts may be recommended by the commissioner of motor vehicles at the request of the commissioner of consumer protection. An arbitration panel shall, as expeditiously as possible, but not later than sixty days after the time the consumer files the complaint form together with the filing fee, render a fair decision based on the information gathered and disclose its findings and the reasons therefor to the parties involved. The decision shall provide appropriate remedies, including, but not limited to one or more of the following:
      “(1) Repair of the vehicle;
      “(2) Replacement of the vehicle with an identical or comparable new vehicle acceptable to the consumer;
      “(3) Refund of the full contract price, plus collateral charges as specified in subsection (d) of said section 42-179;
      “(4) Reimbursement for expenses and compensation for incidental damages as specified in subsection (d) of said section 42-179;
      “(5) Any other remedies available under the applicable warranties, section 42-179, this section and sections 42-182 to 42-184, inclusive, or the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 88 Stat. 2183 (1975), 15 USC 2301 et seq., as in effect on October 1, 1982.
      “The decision shall specify a date for performance and completion of all awarded remedies. Notwithstanding any provision of the general statutes or any regulation to the contrary, the department of consumer protection shall not amend, reverse, rescind or revoke any decision or action of an arbitration panel. The department shall contact the consumer, within ten working days after the date for performance, to determine whether performance has occurred. The manufacturer shall act in good faith in abiding by any department decision. In addition, if the decision is accepted by the consumer, either party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides, or, when the court is not in session, any judge thereof for an order confirming, vacating, modifying or correcting any award, in accordance with the provisions of sections 52-417, 52-418, 52-419 and 52-420. If it is determined by the court that the manufacturer has acted without good cause in bringing an appeal of an award, the court, in its discretion, may grant to the consumer his costs and reasonable attorney’s fees.
      “(d) The department shall maintain such records of each dispute as the commissioner may require, including an index of disputes by brand name and model. The department shall, at intervals of no more than six months, compile and maintain statistics indicating the record of manufacturer compliance with arbitration decisions and the number of refunds or replacements awarded. A copy of the statistical summary shall be filed with the commissioner of motor vehicles and shall be considered by him in determining the issuance of any manufacturer license as required under section 14-67a. The summary shall be a public record.
      “(e) If a manufacturer has not established an informal dispute settlement procedure certified by the attorney general as complying with the requirements of said section 42-179, public notice of the availability of the department’s automobile dispute settlement procedure shall be prominently posted in the place of business of each new car dealer licensed by the department of motor vehicles to engage in the sale of such manufacturer’s new motor vehicles. Display of such public notice shall be a condition of licensure under sections 14-52 and 14-64. The commissioner of consumer protection shall determine the size, type face, form and wording of the sign required by this section, which shall include the toll-free telephone number and the address to which requests for the department’s arbitration services may be sent.
      “(f) Any consumer injured by the operation of any procedure which does not conform with procedures established by a manufacturer pursuant to subsection (b) of section 42-182 and the provisions of Title 16 Code of Federal Regulations Part 703, as in effect on October 1,1982, may appeal any decision rendered as the result of such a procedure by requesting arbitration de novo of the dispute by an arbitration panel. Filing procedures and fees for appeals shall be the same as those required in subsection (b) of this section. The findings of the manufacturer’s informal dispute settlement procedure may be admissible in evidence at such arbitration panel hearing and in any civil action subsequently arising out of any warranty obligation or matter related to the dispute. Any consumer so injured may, in addition, request the attorney general to investigate the manufacturer’s procedure to determine whether its certification shall be suspended or revoked after proper notice and hearing. The attorney general shall establish procedures for processing such consumer complaints and maintain a record of the disposition of such complaints, which record shall be included in the annual report prepared in accordance with the provisions of subsection (a) of section 42-182.
      “(g) The commissioner of consumer protection shall adopt regulations, in accordance with the provisions of chapter 54, to carry out the purposes of this section. Written copies of the regulations and appropriate arbitration hearing procedures shall be provided to any person upon request.”

       The stipulation contains the following exhibits: Exhibit A consists of samples of express warranty provisions used by some of the plaintiff manufacturers. Exhibits B and I describe existing informal dispute settlement mechanisms offered by some of the plaintiffs to consumers. Exhibits C and D consist of transcripts of the legislative history of Lemon Law I and Lemon Law II. Exhibits E, F, G and H contain published reports by the attorney general, the office of legislative research, the office of fiscal analysis of the General Assembly, and the judicial department. Exhibit J is a copy of the administrative regulations that have been promulgated pursuant to Lemon Law II. Exhibit K is a copy of Public Acts 1985, No. 85-331, and exhibit L contains the relevant legislative history. Exhibit M consists of copies of all arbitration panel decisions rendered from October 1,1984, to March 31, 1986. Exhibit N contains correspondence between the commissioner of consumer protection and the attorney general about the propriety of refunding the fee of a manufacturer who was improperly cited to appear before an arbitration panel.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Victor Cubano
    (12889)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued January 13
    decision released April 7, 1987

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Dennis J. O’Connor, assistant state’s attorney, with whom, on the brief, was John M. Bailey, state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Victor Cubano, was charged by substitute information with the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and of being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a). On October 23, 1985, the jury found the defendant guilty of the charge of robbery in the first degree. On October 28,1985, after a separate trial, the same jury found the defendant guilty of being a persistent dangerous felony offender. The court sentenced the defendant to a term of imprisonment of twenty years. The defendant appealed, claiming that the trial court’s denial of his motions for a mistrial and for a new trial deprived him of his right to a fair trial by an impartial jury under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant also claims that the trial court erred in denying his motion to suppress the out-of-court and in-court identifications of the defendant made by Peter DiNello.

The jury could reasonably have found the following background facts: On May 3, 1984, DiNello was employed by the Kwik Stop store in Southington, working the 4 p.m. to midnight shift. At approximately 10:15 p.m., DiNello, who was working alone at the time, was seated behind the counter when a man with a nylon stocking over his face entered the store and pointed a “bluish” colored revolver at him. The man, later identified as the defendant, directed DiNello to put money into a paper bag he was holding. DiNello complied with the request. The man directed DiNello to “lay face first on the floor” and then left the store. After a few minutes, DiNello got off the floor and telephoned the police. Approximately three or four minutes had elapsed from the time the man came into the store until the time that DiNello called the police.

On May 6, 1984, three days after the robbery, Newington police detective Robert Seiler stopped a car which was occupied by the defendant and another male. On the floor of the car was a Smith and Wesson snub nose revolver with a two-inch barrel. The revolver was “dark blue” in color. On that same day, a state’s witness, Gregory Capobianco, saw the defendant with a brown nylon stocking mask in his possession. The gun and the mask seen in the defendant’s possession on May 6,1984, were similar to those used by the robber on May 3, 1984.

I

The defendant’s first claim of error is that the trial court’s denial of his motions for a mistrial and for a new trial deprived him of his right to a fair trial by an impartial jury under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.

Following summations by both counsel and before the court had given the jury instructions, one of the members of the jury requested a meeting with the trial judge. During this meeting in chambers, both counsel and the court reporter were present. At the meeting, the juror indicated that she had, on that day, noticed Domingo Astirazan, a friend of hers, in the courtroom. She related that Astirazan’s family and her family were very close, that she and Astirazan worked together but not in the same building, and that he was a person whom she knew “very well.” She stated that she had concluded from her observations of Astirazan in the courtroom that he- was a friend of the defendant and that she was “shocked” at that thought. In reference to Astirazan, the juror stated: “I am a little bit confused at this point because, I mean, in my sense, if that person—I cannot associate this person that I’m talking—I cannot associate this person to not a good person.” When asked by the court if she could decide the case fairly despite her friend’s apparent acquaintance with the defendant, the juror stated that she could do so. The court instructed the juror to refrain from discussing the matter with the other jurors and excused her from chambers.

After the juror had left chambers, defense counsel indicated that he felt that the juror had already formed an adverse opinion of the defendant. After consultation with his client, defense counsel, in the absence of the jury, moved for a mistrial, claiming that the juror had “already arrived at a fixed opinion as to the guilt of my client.” The court denied the motion, finding that the juror had not made up her mind as to the guilt or innocence of the defendant and that even if she had, she had stated that her friend’s acquaintance with the defendant “would in no way affect her deliberations in this case for or against the defendant . . . .” Defense counsel took an exception. On October 28, 1985, the court denied the defendant’s motion for a new trial which alleged, inter alia, that the defendant had been denied a fair and impartial jury. The defendant claims that the denial of these motions constitutes reversible error. We disagree.

The defendant argues that from the moment the juror saw her friend in the courtroom during summation, she formed an adverse opinion about the defendant and that the juror’s “repeated” expressions of the “shock” she had experienced, upon realizing that the two men were acquainted, clearly indicated her adverse feelings about the defendant. The defendant also contends that any instruction relating to the premature formation of an opinion would be futile given “this particular juror’s obvious inability to abide by the court’s twice given admonition not to think about the merits of the case until after the court instructed the jury on the law . . . .” The defendant argues, therefore, that although his motion for a mistrial had been made after the substantial investment of valuable resources in a trial that was near conclusion, “ ‘ “the right to an impartial jury . . . dominated all other considerations” ’ ” and thus the court erred in failing to declare a mistrial.

“ ‘[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, “indifferent” jurors.’ Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).” State v. Ziel, 197 Conn. 60, 64, 495 A.2d 1050 (1985); see Murphy v. Florida, 421 U.S. 794, 799, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). “ ‘Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the [constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.’ ” Irvin v. Dowd, supra, 724-25, quoting United States v. Wood, 299 U.S. 123, 145-46, 57 S. Ct. 177, 81 L. Ed. 78 (1936). The trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion. United States v. Tegzes, 715 F.2d 505, 509 (11th Cir. 1983); United States v. Carlin, 698 F.2d 1133, 1135 (11th Cir.), reh. denied, 705 F.2d 471, cert. denied, 461 U.S. 958, 103 S. Ct. 2431, 77 L. Ed. 2d 1317 (1983); United States v. Sears, 663 F.2d 896, 900 (9th Cir. 1981), cert. denied sub nom. Werner v. United States, 455 U.S. 1027, 102 S. Ct. 1731, 72 L. Ed. 2d 148 (1982); State v. Ziel, supra. In exercising this discretion the trial court must zealously protect the rights of the accused. Wainwright v. Witt, 469 U.S. 412, 429-30, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985).

This court has recognized that a defendant may lose the benefit of his right to a fair and impartial jury where the jury has been instructed that it may discuss the case prior to the time the case is submitted to it for deliberation. State v. Castonguay, 194 Conn. 416, 433, 481 A.2d 56 (1984); State v. Washington, 182 Conn. 419, 424-25, 438 A.2d 1144 (1980). Similarly, this court has held that where a potential juror has such a fixed and settled opinion in a case that he cannot judge impartially the guilt of the defendant, he should not be selected to sit on the panel. State v. Ziel, supra, 66; State v. Potter, 18 Conn. 166, 174-75 (1846); see also Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). This court has also stated that “ ‘[t]o succeed on a claim of bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact.’ State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983); State v. Bowen, 167 Conn. 526, 532, 356 A.2d 162 (1975).” State v. Ziel, supra, 65; see also Dennis v. United States, 339 U.S. 162, 168, 70 S. Ct. 519, 94 L. Ed. 734, reh. denied, 339 U.S. 950, 70 S. Ct. 799, 94 L. Ed. 1364 (1950). With these principles in mind, we address the merits of the defendant’s claim.

In challenging the competency of the juror to remain on the panel it was the defendant’s burden to prove actual bias on behalf of the juror. See State v. Ziel, supra; State v. Bowen, supra, 532. While the juror was in chambers, the court inquired whether the relationship between her friend and the defendant would affect her decision on guilt or innocence. The juror stated that it would not and that she could decide the case impartially irrespective of the fact that her friend was an acquaintance of the defendant. After the juror had been excused from chambers, defense counsel argued that the “shock” she had expressed was a result of the fact that the juror had already formed an adverse opinion as to the innocence of the defendant. At this time, however, defense counsel admitted that the opinion was “somewhat oblique” and “not clearly stated.” The court asked defense counsel whether he wanted the court to call the juror back to “satisfy you as to whether or not she has formed any pre-opinion at this time . . . as to the innocence or guilt of the accused.” Rather than take advantage of this opportunity to question the juror as to the nature and effect of her alleged “opinion,” defense counsel left chambers to confer with the defendant and he did not return. When court reconvened, defense counsel moved for a mistrial without seeking any further inquiry of the juror. The court denied the motion, specifically finding that the juror had not “indicated that she [had] made up her mind by anything that she said in chambers.” The court also noted that the juror had stated that the fact that her friend might be “acquainted with the defendant would in no way affect her deliberation in this case for or against the defendant . . . .” Given the “oblique” nature of the juror’s statement, the failure of defense counsel to examine the juror to establish bias or premature formation of an opinion, which is his burden, and the court’s finding that the juror had not “indicated that she [had] made up her mind by anything she said in chambers,” we conclude that the defendant has failed to “raise his contention of bias from the realm of speculation to the realm of fact.” The denial of the motions for mistrial and for a new trial was within the reasonable exercise of the trial court’s discretion. See State v. Almeda, supra; State v. McCall, 187 Conn. 73, 77, 444 A.2d 896 (1982).

Even if we assume, arguendo, that the defendant had established that the juror’s statements amounted to an expression of a premature opinion of the defendant’s guilt, that by itself would not be enough to establish error in the court’s denial of his motion for a mistrial. Not every incident of juror misconduct requires a new trial. See, e.g., United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 95 S. Ct. 62, 42 L. Ed. 2d 61 (1974), and cases there cited; State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). The test for a new trial is “ ‘whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.’ ” State v. McCall, supra, quoting United States v. Klee, supra; see also United States v. Hendrix, 549 F.2d 1225 (9th Cir.), cert. denied, 434 U.S. 818, 98 S. Ct. 58, 54 L. Ed. 2d 74, reh. denied, 434 U.S. 960, 98 S. Ct. 493, 54 L. Ed. 2d 321 (1977). In State v. McCall, supra, 81, we said: “Mere expression of opinion, as opposed to positive expression of facts, does not warrant a mistrial.” Even where a juror has formed some preconceived opinion as to the guilt of an accused, a juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based on evidence in the case. United States v. Moon, 718 F.2d 1210, 1218-19 (2d Cir. 1983), cert. denied, 466 U.S. 971, 104 S. Ct. 2344, 80 L. Ed. 2d 818 (1984). “Only where a juror has indicated a refusal to consider testimony and displayed evidence of a closed mind concerning [the] defendant’s innocence can it be said that [the court] abused its discretion in refusing to [remove] a juror [from the panel].” United States v. Smith, 748 F.2d 1091, 1092 (6th Cir. 1984). It is enough if a juror is able to set aside any preconceived notions and decide the case on the evidence presented and the instructions given by the court. Patton v. Yount, supra; State v. Zeil, supra; see also Irvin v. Dowd, supra, 723. While we recognize that a juror’s assurances that he or she is equal to the task are not dispositive of the rights of an accused; Murphy v. Florida, supra, 800; we are aware of the broad discretion of a trial judge which includes his determination of the credibility to be given a juror’s statement in this context. United States v. Thompson, 744 F.2d 1065, 1068 (4th Cir. 1984); State v. Ziel, supra, 65; State v. Bowen, supra, 533; see Rosales-Lopez v. United States, 451 U.S. 182, 188-89, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1980).

Our review of the transcript of the in camera and in-court colloquy between the trial judge, the juror and counsel leads us to conclude that the defendant has failed to establish that the alleged “juror misconduct” violated his constitutional right to a fair trial before an impartial jury. Even if we assume that the statements made by the juror amounted to an expression of a premature opinion of guilt, the record does not support a finding that the opinion was irrevocable and could not be set aside. To the contrary, the record does support the trial court’s finding that the juror’s friend’s acquaintance with the “defendant would in no way affect her deliberation in this case for or against the defendant . . . .” When asked whether her decision as to the guilt or innocence of the defendant would be influenced, she said that it would not and that she could “decide this case irrespective of the fact that [she thought her] friend . . . may be a friend of the defendant.” Moreover, the determination of the trial court, which was based on actual observation and conversation with the juror, is entitled to reasonable deference. See United States v. Thompson, supra; State v. Hohman, 138 Vt. 502, 512, 420 A.2d 852 (1980). Under the circumstances of this case, we cannot conclude that the trial court abused its broad discretion in denying the defendant’s motion for a mistrial and motion for a new trial.

II

The defendant next claims that the trial court erred in denying his motion to suppress the out-of-court and in-court identifications of the defendant made by Peter DiNello.

“ ‘ “A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” ’ State v. Hinton, 196 Conn. 289, 293, 493 A.2d 836 (1985); State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). In order to succeed, ‘the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of circumstances.’ State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Hinton, supra, 292-93.” State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986).

Prior to trial, the defendant filed a motion to suppress all identification testimony. At the suppression hearing, Detective Sergeant William Ludecke of the Southington police department testified that after the robbery of the Kwik Stop on May 3, 1984, he learned that a similar robbery had occurred in Newington and the description of the perpetrator fit the description of the individual involved in the Southington robbery. Ludecke requested that DiNello accompany him to Newington for the purpose of having DiNello view a photographic array. Ludecke told DiNello that a man fitting the description he had provided had been arrested for a “very similar robbery” in Newington. When shown the pictures of six persons, DiNello positively identified the defendant as the individual who had robbed the Southington Kwik Stop.

At the suppression hearing, the six photographs were introduced into evidence. In each photograph, the individual was pictured wearing a Newington police department arrest placard clearly displaying the date of his arrest. DiNello testified that at the time he viewed the photographs he was under the impression that the Neydngton robbery had occurred after the Kwik Stop robbery. DiNello correctly interpreted the numbers on the placards as representative of dates. Four of the six placards showed dates of March 23, 1977, November 25,1973, August 14,1969, and May 15,1976. The placards in the remaining two photographs showed the date of May 6, 1984. One of these two photographs depicted an individual with a thick moustache. The individual who had robbed the Kwik Stop just three days prior to the date on the placard had been described by DiNello as not having a moustache.

The defendant argues that when DiNello viewed the photographs at the Newington police department, he was aware that subsequent to the Kwik Stop robbery, the Newington police had arrested a similar looking individual for a similar robbery. The dates in the photographs indicated that only two of the individuals pictured had been arrested during this time frame and that of these two individuals, one of them did not fit the description DiNello had supplied to the police. The defendant therefore argues that the identification procedure employed in this case was unnecessarily suggestive and that the resulting identification was not reliable in the totality of circumstances.

Although the state concedes that the identification procedures employed in this case were unnecessarily suggestive, it argues, nonetheless, that the evidence presented at the suppression hearing was more than sufficient to support the trial court’s finding that the identification in this case was reliable under the “totality of circumstances.” We agree.

In determining whether an identification is reliable in the “totality of circumstances,” the corruptive influence of the suggestive procedure is weighed against “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Collette, supra, 311 n.3; State v. Hinton, supra.

Under the totality of the circumstances, DiNello’s identification of the defendant was reliable. DiNello had the opportunity to view the defendant when for several minutes he was within two or three feet of the defendant. “We have said of identification that ‘a good hard look will pass muster even if it occurs during a fleeting glance.’ (Emphasis added.) State v. Ledbetter, [185 Conn. 607, 615, 441 A.2d 595 (1981)].” State v. Hinton, supra, 296. DiNello testified that although a nylon stocking covered the perpetrator’s head above his bottom lip, he was able to see the defendant’s face through the stocking. DiNello’s degree of attention was very good and his description accurate. See State v. Collette, supra, 311-12. In addition to giving a general description of his clothing (“dark clothing”) and an approximation as to age (“in his . . . early 40’s”), height (5’4”) and weight (“between 145-163 pounds”), DiNello also noticed that the man had a “tan complexion” and a “round face” and appeared to need a shave. Additionally, only nine days elapsed between the crime and the identification and DiNello stated that he was “positive” of the identification. Moreover, DiNello testified that he attached no special significance to the dates on the placards depicted in the photographs. We conclude, therefore, that under the circumstances of this case, the suggestive procedures did not corrupt the overall reliability of DiNello’s identification and that the trial court was justified in admitting the identification under the “totality of circumstances.” See State v. Collette, supra, 312-13.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-134 (a) provides: “robbery in the first degree: CLASS B felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       General Statutes § 53a-40 (a) provides: “persistent offenders: definitions; defense; authorized sentences, (a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in the first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1,1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) or (2).”

       Although the defendant makes his claim under both the federal and state constitutions, we need not discuss the issue under our state constitution because the defendant “ ‘ “has 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), quoting State v. Toste, 198 Conn. 573, 576 n.3, 504 A.2d 1036 (1986).

       The colloquy discloses, inter alia, the following statements:
      “[The Juror]: This morning, you know, I was listening attentively to the two lawyers. And all of a sudden I saw a person inside the courtroom that I know him very well. And I believe that he was—must be a friend of the defendant. So I just wanted to—
      “The Court: You don’t know that for sure.
      “[The Juror]: I can say yes.
      “The Court: Did you know he is a friend of the defendant?
      “[The Juror]: I believe so, sir.
      “The Court: And you know him very well?

        “[The Juror]: Very well. His family and my family are very close.
      “The Court: He is a friend of the defendant?
      “[The Juror]: He, yes. He must be on the side of the defendant.
      “The Court: Huh?
      “[The Juror]: He must be on the side of the defendant.
      “Mr. Hunt: Would it be permissible to inquire who she recognized in the courtroom?
      “The Court: Who did you recognize?
      “[The Juror]: The name of the person?
      “The Court: Yes.
      “[The Juror]: Domingo Astirazan.
      “The Court: All right. Let me ask you this question. Assuming what you tell me is true, do you think that would in any way influence your decision in this case?
      “[The Juror]: I am a little bit confused at this point because, I mean, in my sense, if that person—I cannot associate this person that I’m talking—I cannot associate this person to not a good person.
      “The Court: What?
      “[The Juror]: Let me rephrase this. I cannot see this person being friends of a person that might be—that is very hard for me to answer, your Honor.
      “The Court: Are you trying to say you cannot associate this person who is your friend with knowing a person who is alleged to have committed a crime?
      “[The Juror]: Right.
      “The Court: Well, would you—on that fact alone would you be—would you feel that you would not be able to be an impartial juror?
      “[The Juror]: I am a little bit confused at this point because I was really shocked when I saw th^t person inside the courtroom this morning, I was—I mean, I was—my God—of all these people—”

       The colloquy discloses the following statements:
      “The Court: Assuming for the moment that you are correct that this person you saw in the courtroom is a friend of the defendant. Would that fact influence you in your decision in this case for or against the defendant?

        “[The Juror]: It shouldn’t.
      “The Court: It would not influence you in any way?
      “[The Juror]: It shouldn’t.
      “The Court: In other words, if you are shocked at this person being a friend—being a friend of the defendant, you would be shocked at your friend being a friend of the defendant, not that—
      “[The Juror]: Exactly.
      “The Court: Okay. So, in other words, so you are telling both counsel and the Court that assuming you are correct that your friend that you saw in the courtroom is a friend of the defendant in this ease, that that would in no way influence your decision of guilt or innocence based on that knowledge?
      “[The Juror]: Right.
      “The Court: That you would decide this case irrespective of the fact that you think your friend in the courtroom may be a friend of the defendant?
      “[The Juror]: Yes, sir.
      “The Court: Okay. Thank you. You can go back to the jury. One other question. Sit down a minute. Have you told any of the other jurors about this?
      “[The Juror]: No, sir.
      “The Court: Okay. Don’t tell any of the other jurors.
      “[The Juror]: I won’t.
      “The Court: You will not tell any of this at any time during the deliberations.
      “[The Juror]: No, sir.
      “The Court: Thank you.
      “[The Juror]: Thank you.”

       At the time that the juror requested the meeting in chambers, the two alternates originally selected had already replaced jurors who could not serve through the end of the case.

       On the first day evidence was presented, the court instructed the jury as follows: “[T]his is most important, that you are not to discuss this case at any time during the course of the trial among yourselves or with anybody else, nor allow anybody else to talk to you about it. The only time you will think about this case insofar as deciding the case is when the six of you that are going to deliberate are in the jury room after you have heard the instructions of law that I will give you.” Four days later, after all the evidence had been presented, the court instructed the jury: “So please don’t think about the case, even though you have heard all the evidence. Don’t give it any thought until you hear the law that I give to you which applies to this case. And after you have heard the law then you will deliberate in the jury room.”

       Initially, the state argues that this court cannot overturn the jury’s verdict and grant a new trial in this case because of the “firmly established” rule that evidence of juror misconduct or mistake cannot be received from a juror to vitiate the verdict. See Practice Book § 871. We disagree for two reasons. First, the state has treated the defendant’s motion for a mistrial as an attempt to impeach the jury’s verdict. This characterization of the defendant’s claim is inappropriate because at the time the defendant moved for a mistrial, there did not exist a verdict per se, which is the subject of this appeal. Second, although Practice Book § 871 prohibits receiving evidence concerning the mental processes by which a verdict was determined, the rule does allow evidence of juror misconduct. “ ‘The question is whether the misconduct is of such a nature that it probably rendered the juror unfair or partial.’ ” State v. Castonguay, 194 Conn. 416, 437, 481 A.2d 56 (1984). Therefore, it would be proper to inquire whether the juror had reached a fixed opinion on the evidence; however, “[a]ny inquiry into the content of the opinion or the impact it had on the juror is clearly impermissible. Aillon v. State, [168 Conn. 541, 551-52, 363 A.2d 49 (1975)].” State v. Castonguay, supra.

       The sixth amendment to the United States constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . .” This guaranty has been made applicable to the states by incorporation into the fourteenth amendment. See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, reh. denied, 392 U.S. 947, 88 S. Ct. 2270, 20 L. Ed. 2d 1412 (1968).
      The constitution of Connecticut, article first, § 8, provides in pertinent part: “In all criminal prosecutions, the accused shall have a right . . . to a speedy, public trial by an impartial jury.”

       In Ms attack on the reliability of the identification, the defendant emphasizes DiNello's limited opportunity to view the perpetrator’s face through the stocking mask. The defendant argues that “although DiNello testified that he could see through the stocking, his view was necessarily significantly impaired.” The defendant acknowledges that many factors “certainly weigh in a finding of a reliable identification.” He argues, however, that “in light of the fact that most of the robber’s face was masked during the incident, the overall weight of these factors is lessened to the extent that they are outweighed by the corrupting effect of the suggestive procedure.” We disagree. As the state correctly points out in its brief, there is nothing talismanic about the fact that a masked criminal, by virtue of his criminal preparations, has sought to impair a witness’ opportunity to view the criminal. This court has held an identification of a masked criminal to be reliable under the “totality of circumstances.” See, e.g., State v. Boucino, 199 Conn. 207, 221, 506 A.2d 125 (1986).

       Because of our conclusion that the out-of-court identification was reliable under the totality of the circumstances, we need not address the issue of the reliability of the in-court identification. See State v. Davis, 198 Conn. 680, 684, 504 A.2d 1372 (1986).


author: Callahan, J.

text:
    State of Connecticut v. Joseph W. Cichowski
    (12790)
    (12791)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued January 9
    decision released April 7, 1987

      Robert M. Axelrod, with whom, on the brief, was Norman B. Teague, for the appellant (defendant).

      James G. Clark, assistant state’s attorney, with whom were James Turcotte, deputy assistant state’s attorney, and, on the brief, Frank M. D'Addabbo, assistant state’s attorney, Carl Schuman, former assistant state’s attorney, and Mary K. Miller, law student intern, for the appellee (state).
   Callahan, J.

The dispositive issue in these appeals is whether an accused, who is charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a, has a sixth amendment right to counsel when deciding whether to submit to a chemical test of the alcohol content in his blood. The defendant was arrested on two separate occasions and each time charged with violating General Statutes § 14-227a. In the first case, after a jury trial, he was convicted and a fine of $500 plus costs was imposed by the trial court, DeMayo, J. In the second case, the trial court, DeMayo, J., accepted the defendant’s conditional plea of nolo contendere under General Statutes § 54-94a, entered a finding of guilty, and sentenced the defendant to thirty days in jail suspended after forty-eight hours, with probation for one year and also fined him $750 plus costs. In both cases, the defendant filed motions to dismiss prior to trial claiming that he had been denied his sixth amendment right to counsel when deciding whether to submit to a chemical test of the alcohol content in his blood. Subsequent to conducting a combined evidentiary hearing, the trial court, Susco, J., denied the defendant’s motions. On appeal, the defendant claims that the trial court erred in denying his motions to dismiss. We find no error.

I

The facts relevant to the issue raised in this appeal are as follows. After the defendant’s first arrest, he was taken to Wallingford police headquarters. There, he was informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and advised of his chemical test options as provided for in General Statutes § 14-227b (a). The defendant responded that he would not submit to any of the tests under § 14-227b (a). After requesting and receiving permission to contact his attorney, Vincent McManus, the defendant refused for a second time to take any of the tests. McManus arrived at the police station shortly thereafter, consulted with the defendant, and then informed the police officer that his client was refusing to submit to a blood test. He indicated, however, that he wished to consult further with his client because the defendant was considering taking the intoximeter or “breath test.” Officer David Blythe responded that McManus and the defendant could confer in the hallway, but that he wanted to be present so that he could observe whether the defendant “smoked, ate, drank, belched, or vomited,” actions which might affect the results of the intoximeter. McManus agreed, but the defendant objected to the police officer’s presence in the hallway. Blythe, noting the defendant’s two prior refusals to submit to any of the chemical tests, informed the defendant and McManus that if he (Blythe) left, he would not administer the intoximeter test to the defendant. At this point, McManus informed the officer that his client would not take the intoximeter test.

In the second case, after the defendant’s arrest, Sergeant Donald McNeil of the Wallingford police department advised the defendant of his rights under Miranda v. Arizona, supra, and another police officer informed him of his chemical test options under § 14-227b (a). The defendant stated that he wished to consult with Attorney McManus. At that point, McNeil attempted to telephone McManus for the defendant, apparently calling him at his office, rather than at his home. For whatever reason, the police were unable to contact McManus. The defendant then refused to submit to any of the chemical tests.

On the basis of these facts, the defendant asks this court to vacate his two convictions and order dismissal of the charges, claiming first, that he has a constitutional right to counsel when deciding whether to submit to a chemical alcohol test, and, second, that the Wallingford police officers interfered with this right. Because we find that the sixth amendment right to counsel does not extend to an accused’s decision whether to consent to a chemical test prior to the formal initiation of a criminal prosecution, we do not reach the defendant’s second claim of error.

II

The defendant, relying on Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972), argues that the sixth amendment right to counsel extends to the decision to submit to a chemical sobriety test. He asserts that the pretest period is a “critical stage” of the drunk driving prosecution in that the defendant must make a trial strategy decision as to whether to submit to any of the tests as provided in § 14-227b. He also argues that he is entitled to counsel at this stage because the adversarial process was initiated at the moment he was arrested and charged. We disagree.

“The Sixth Amendment guarantees that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.’ ” United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984). This right attaches only “at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, supra, 689; State v. Falcon, 196 Conn. 557, 560-61, 494 A.2d 1190 (1985); State v. Vitale, 190 Conn. 219, 232, 460 A.2d 961 (1983); State v. Ledbetter, 185 Conn. 607, 609, 441 A.2d 595 (1981). The United States Supreme Court has indicated that the sixth amendment’s core purpose “is to assure that in any ‘criminal prosecutio[n],’ U.S. Const., Amdt. 6, the accused shall not be left to his own devices in facing the ‘ “prosecutorial forces of organized society.” ’ Maine v. Moulton, [474 U.S. 159, 170, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985)] (quoting Kirby v. Illinois, [supra, 689]). By its very terms, it becomes applicable only when the government’s role shifts from investigation to accusation. For it is only then that the assistance of one versed in the‘intricacies . . . of law,’ [Maine v. Moulton, supra], is needed to assure that the prosecution’s case encounters ‘the crucible of meaningful adversarial testing.’ United States v. Cronic, 466 U.S. 648, 656 [104 S. Ct. 2039, 80 L. Ed. 2d 657] (1984).” Moran v. Burbine, 475 U.S. 412, 430, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986).

We have consistently adopted the reasoning of the United States Supreme Court with respect to when the sixth amendment right to. counsel attaches in a criminal proceeding, finding that “[n]o right to counsel attaches until prosecution has commenced.” (Emphasis in original.) State v. Ferrell, 191 Conn. 37, 44 n.10, 463 A.2d 573 (1983); see, e.g., State v. Falcon, supra (neither the issuance of an arrest warrant nor the initiation of extradition proceedings against the defendant constitutes the commencement of adversarial proceedings for purposes of the sixth amendment right to counsel); State v. Vitale, supra (no sixth amendment right to counsel during the period between arrest and the filing of an information or indictment). In both of the present cases, the defendant was not formally charged with violating § 14-227a until after he decided not to submit to a chemical test of the alcohol content of his blood. We, therefore, conclude that no sixth amendment right to counsel attached before the defendant decided to refuse to submit to any of the chemical sobriety tests.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 54-94a. conditional nolo contendere plea, appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, 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 or motion to dismiss, 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 or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The factual circumstances surrounding the defendant’s arrest in each case are not in dispute, and, therefore, will not be discussed in this appeal.

       General Statutes § 14-227b (a) provides: “implied consent to test. REFUSAL TO SUBMIT TO TEST. REVOCATION AND SUSPENSION OF LICENSE. hearing, (a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, his parent or parents or guardian shall also be deemed to have given his consent. . . .”

       Both the defendant and the state indicate that the police did not construe the defendant’s first two remarks concerning the test as a final refusal.

       There is some dispute as to whether McNeil telephoned McManus at his office, or at his home on the Saturday evening of the defendant’s arrest. The defendant argues that the police were negligent in their attempt to contact the defendant’s attorney. Because of our disposition of the sixth amendment issue in this case, we do not reach this argument of the defendant.

       We note that the defendant has not asserted a claim under the state constitutional counterpart to the sixth amendment right to counsel. See Conn. Const., art. I, § 8.

       The majority of jurisdictions which have addressed the issue raised in this appeal have also declined to find that a sixth amendment right to counsel attaches at the time a defendant is deciding whether to take a chemical sobriety test. See Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); State v. Vietor, 261 N.W.2d 828 (Iowa 1978); State v. Jones, 457 A.2d 1116 (Me. 1983); Sites v. State, 300 Md. 702, 481 A.2d 192 (1984); Holmberg v. 54-A Judicial District Judge, 60 Mich. App. 757, 231 N.W.2d 543 (1975); Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975); State v. Petkus, 110 N.H. 394, 269 A.2d 123 (1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1522, 28 L. Ed. 2d 867 (1971); Seders v. Powell, 298 N.C. 453, 259 S.E.2d 544 (1979); McNulty v. Curry, 42 Ohio St. 2d 341, 328 N.E.2d 798 (1975); State v. Newton, 291 Or. 788, 636 P.2d 393 (1981); Law v. Danville, 212 Va. 702, 187 S.E.2d 197 (1972); see also Nyflot v. Minnesota Commissioner of Public Safety, 474 U.S. 1027, 106 S. Ct. 586, 88 L. Ed. 2d 567 (1985) (appeal, in which the defendant claimed a sixth amendment right to counsel with respect to the decision whether to consent to a blood alcohol test, was dismissed for want of substantial federal question).


author: Dannehy, J.

text:
    Leonard Berlingo v. Sterling Ocean House, Inc.
    (12923)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued January 6
    decision released April 7, 1987

      William H. Narwold, for the appellant (defendant).

      D. Seeley Hubbard, with whom, on the brief, was James W. Cuminale, for the appellee (plaintiff).
   Dannehy, J.

This is an action of forcible entry and detainer. From a judgment for the plaintiff the defendant appealed to the Appellate Court which found no error. See Berlingo v. Sterling Ocean House, Inc., 5 Conn. App. 302, 504 A.2d 516 (1986). We granted certification and now reverse the judgment of the Appellate Court.

This action was commenced as an action of forcible entry and detainer under General Statutes § 47a-43. Proceedings of this nature are necessarily of a summary kind. Section 47a-43 definitively provides that when forcible entry and detainer occurs the party held out of possession may exhibit his complaint to any judge of the Superior Court. Such judge shall then issue a summons to the party complained of, notifying him to appear within eight days from the exhibition of the complaint, in the Superior Court for the judicial district wherein the injury complained of occurred and to answer to the matters in the complaint. General Statutes § 47a-43 (b). This summons must be served six days, inclusive, before the day set for trial. General Statutes § 47a-43 (c). The issue joined on a complaint brought under § 47a-43 shall be tried by the judge, unless one of the parties, before the issue is joined, moves for trial by jury. General Statutes § 47a-44; see generally Tuite v. Tuite, 150 Conn. 345, 189 A.2d 394 (1963).

The present complaint is brought under § 47a-43. It alleges that the defendant forcefully entered certain premises in the possession of the plaintiff, and continues, with strong hand, to detain possession from him. In his prayer for relief, the plaintiff requests (1) that process be issued against the defendant in the manner prescribed by statute, (2) double money damages and costs, and (3) such other relief as the court finds just and proper.

The record shows that the action was instituted by a complaint dated April 27,1984. A motion to dismiss the complaint on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted was filed on May 8, 1984. The court apparently denied the motion but failed to file any note or memorandum disclosing the reasons for its action. The case was assigned for trial on May 10,1984. Prior to trial, the defendant called the court’s attention to the fact that the pleadings had not been closed in that the defendant had not filed any answer to the plaintiff’s complaint. We infer that the court did not feel bound by the usual rules of pleading, and, over the objection of the defendant, ordered the trial to proceed. The pleadings have not yet been closed to our knowledge.

The trial judge was remiss in ordering the trial to proceed without insisting upon the filing of proper pleadings. The court’s order predictably plunged the case into confusion and possible error to the advantage of no one.

We are not unmindful of the time already spent in hearing this case. Justice more than judicial economy requires an attempt to decide the case rather than reversing and remanding with instructions to put the pleadings in proper form before rendition of appropriate judgment. Reluctantly, we have made an independent examination of the whole record. We are satisfied that the facts the court found are those upon which the parties expect the appeal to be decided. We are convinced that we can decide the appeal with certainty and without exceeding the limits of our jurisdiction.

These are the salient facts. In January, 1980, the Stamford Golf Authority (SGA) leased to the defendant certain premises located at the Sterling Farms Golf Course and Recreational Complex in Stamford. The demised premises consisted of space in the main clubhouse to be used as a restaurant and a separate building known as Halfway House. On August 13,1981, the plaintiff entered into a long term agreement with the defendant to manage the snack bar in Halfway House. Also by the provisions of the agreement, the plaintiff was to have possession of Halfway House and to pay a stated monthly rental for the months of March through November in each year. The plaintiff entered into and took possession of Halfway House under this agreement in August, 1981. Almost from the beginning a controversy existed between the plaintiff and the defendant as to their rights and liabilities in the management agreement. It is not necessary to discuss the particulars of that controversy.

In the spring of 1983, a fire occurred in the main clubhouse which rendered the space occupied by the restaurant untenantable. On May 25, 1983, SGA voted, at a special meeting, to terminate its lease with the defendant. SGA then entered into a month-to-month lease with the plaintiff for Halfway House. The plaintiff continued to operate the snack bar under this lease until November, 1983, when he vacated Halfway House. His month-to-month tenancy, however, remained in effect and he continued to keep some of his personal property there until April 20, 1984.

Immediately after the fire in 1983, SGA proceeded to rebuild the restaurant in the main clubhouse. In December, 1983, when the rebuilding was completed, SGA relet both the restaurant and Halfway House to the defendant for the balance of the term of their original lease. Meanwhile, the plaintiff continued in possession of Halfway House. On February 13, 1984, the defendant wrote the plaintiff a letter stating that their management agreement was terminated and requesting that the plaintiff remove his personal property from Halfway House. On the same day that the letter was sent, the defendant padlocked the entrance to Halfway House. The next day, after some conversation with SGA, the defendant turned over the keys to the padlock to SGA. Two days later SGA removed the padlock and placed its own lock on Halfway House. During the two day period in which Halfway House was padlocked by the defendant, the plaintiff did not attempt to enter the premises. It does not appear that he was even aware that the lock was placed on the door. On March 22,1984, SGA sent a letter to the plaintiff advising him that his periodic tenancy in Halfway House was terminated and notifying him to relinquish possession of Halfway House within thirty days. On April 20,1984, the plaintiff removed his personal belongings from Halfway House and quit possession.

One week later, on April 27,1984, the plaintiff commenced an action of forcible entry and detainer against the defendant. SGA was not made a party to this action. The court rendered judgment for the plaintiff and, upon its denial of the defendant’s motion to reconsider and for a new trial, the court issued a writ of restitution restoring the plaintiff to possession of Halfway House. From the judgment rendered for the plaintiff, the defendant appealed to the Appellate Court. That court found no error, holding that the trial court’s conclusion that the defendant violated the forcible entry and detainer statute was not clearly erroneous. Berlingo v. Sterling Ocean House, Inc., supra, 308B-309. This court granted the defendant’s petition for certification to determine whether the decision of the Appellate Court was erroneous.

The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force. See generally Communiter Break Co. v. Scinto, 196 Conn. 390, 493 A.2d 182 (1985). For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant’s entry. Id., 393. Section 47a-43 “was made to protect a person in such possession, although a trespasser, from disturbance by any but lawful and orderly means.” Orentlicherman v. Matarese, 99 Conn. 122, 126, 121 A. 275 (1923).

The facts in the present case show that the plaintiff, on April 27, 1984, did not have a right to possession of Halfway House which entitled him to maintain this action. He claimed under a lease from SGA, but, as we have said, SGA terminated the lease and recovered possession by resort to summary process. The utmost that the evidence shows is that the plaintiff still had a month-to-month lease from SGA on February 13, 1984, and at that time continued to maintain certain personal property in Halfway House. The only action of the defendant that could be deemed violative of General Statutes § 47a-43 was its padlocking of the door to the premises for two days, February 13 and 14, 1984. At that time, the plaintiff made no attempt to enter the premises or to seek aid from a court. The subsequent padlocking was done under the authority of SGA, which was never made a party to this action. SGA then terminated its lease with the plaintiff by letter dated March 22, 1984, and requested that the plaintiff quit possession within thirty days. The plaintiff complied with this request by quitting possession on April 20, 1984. Thereafter he was not entitled to the demanded premises as against the defendant.

There is error, the judgment of the Appellate Court is reversed and the court is directed to remand the case to the trial court with direction that judgment be rendered for the defendant.

In this opinion the other justices concurred.

       The Appellate Court initially, on September 17,1985, rendered a decision finding error in the judgment of the trial court and directing that judgment be rendered in favor of the defendant. That decision, published at 497 A.2d 1031 (1985), was superseded when the Appellate Court, on its own motion, then heard reargument, reversed itself and, in an opinion published January 28, 1986, held that there was no error in the trial court’s judgment. Berlingo v. Sterling Ocean House, Inc., 5 Conn. App. 302, 504 A.2d 516 (1986).

       “[General Statutes] Sec. 47a-43. complaint and procedure, forcible entry AND detainer; entry AND detainer, (a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand or (3) enters into any land, tenement or dwelling unit and causes damage to the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the superior court.
      “(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint.
      “(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial.
      “(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present.”