author: Covello, J.

text:
    Michael P. Hammond, Administrator (Estate of Joseph W. Hammond) v. City of Waterbury
    (14099)
    Shea, Glass, Covello, Borden and F. X. Hennessy, Js.

      Argued May 3
    decision released July 16, 1991

      Vincent E. Roche, with whom, on the brief, were Joseph A. Hourihan and Gregory R. Shettle, for the appellant (third party defendant Mattatuck Beef Company).

      James K. Robertson, Jr., with whom were Pamela J. Norley and, on the brief, Suzanne Martin-Esposito, for the appellee (defendant).
   Covello, J.

This is an appeal from a judgment of the trial court, following a jury trial awarding the defendant, the city of Waterbury (city), damages by way of indemnification from the third party defendant, Mattatuck Beef Company (Mattatuck), and its driver, the third party defendant Robert Adamovicia, for sums the city paid in settlement of a liability claim arising out of the death of Joseph Hammond. The issues on appeal are whether: (1) a claim for indemnification can be based upon the secondary tortfeasor’s stipulated judgment with the injured party; (2) the requirements for a cause of action for indemnification based upon § 3122 of the Waterbury city code were met; (3) the “one-recovery rule” prevented the estate from recovering against the city; (4) there was sufficient evidence that the third party defendants’ actions were the cause of the accident; (5) the trial court properly charged the jury on the issue of nuisance; and (6) the trial court improperly failed to submit the third party defendants’ interrogatories to the jury. We affirm the judgment.

The jury might reasonably have found the following facts: On May 4,1984, a delivery truck owned by Mattatuck and operated by its employee, Robert Adamovicia, left the highway on Meriden Road in Waterbury and knocked over two telephone poles. One of the poles had an electrical transformer mounted upon it. Diesel fuel and oil from the truck and approximately thirty-three to thirty-five gallons of fluid from the transformer spilled onto the road, already wet from rain, causing the road surface to become slippery. The Waterbury police and fire departments responded and covered the spill with sand in an effort to soak up the various fluids. The site was inspected twice thereafter. Approximately twenty-six hours later, a pickup truck operated by John Kulmann skidded after hitting the sanded area. The Kulmann truck struck an automobile operated by Joseph Hammond, causing his death.

The Hammond estate sued Kulmann and the city of Waterbury in separate causes of action that were never consolidated. The city impleaded Adamovicia and Mattatuck alleging that Mattatuck and Adamovicia were primarily responsible for the road conditions causing the accident and seeking indemnification for any damages the city might owe the estate. The Hammond estate thereafter agreed to a stipulated judgment with Kulmann for $600,000. The estate then agreed to a stipulated judgment with the city for $75,000. The matter proceeded to trial solely on the city’s claim for indemnification from Adamovicia and Mattatuck. The jury returned a verdict in favor of the city for the $75,000 settlement, plus attorney’s fees, for a total of $92,727.22. Mattatuck appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and now affirm.

I

Mattatuck first claims that, because the judgment rendered against the city was pursuant to a stipulation, the city failed to prove one of the elements necessary to establish a cause of action for indemnification based upon § 3122 of the city code.

Section 3122 of the Waterbury city code states: “Whenever any person shall cause any defect in, or . . . any obstruction on, any of the streets of the city, such person shall be held to answer any claim for damages which may be made against [said] city therefor; and, whenever any suit shall be brought against the city for such damages, such person may be cited in to defend the same, in which case no judgment shall be rendered against the city until the execution issued upon the judgment against such person shall have been returned unsatisfied, and, upon the payment of any such judgment by the city, the judgment against such person shall inure to the benefit of the city. . . -”

Mattatuck argues that the stipulation agreed upon by the city and the estate is “consensual” and “arguably collusive” and is not the type of “judgment” required by § 3122. The gravamen of Mattatuck’s argument is that a stipulated judgment cannot provide the basis for a recovery under § 3122. We disagree.

There are no cases suggesting that an indemnification claim brought pursuant to § 3122 cannot be based upon a stipulated judgment, and we see no reason to impose such a limitation on a statutory cause of action. “[C]ourts must construe statutory provisions as they are written.” Zachs v. Groppo, 207 Conn. 683, 690, 542 A.2d 1145 (1988). Section 3122 itself contains no language excluding stipulated judgments and in the absence of ambiguity, “courts cannot, by construction, read into statutes provisions which are not clearly stated.” Point O’Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979).

Mattatuck also claims that § 3122 provides that in the event a third party is cited in to defend, then a judgment “shall” first be rendered against the third party and returned unsatisfied before a judgment can enter against the city. Mattatuck argues that this provision is mandatory by reason of the use of the word “shall,” Mattatuck argues that because a judgment against the third party defendants was never rendered in favor of the Hammond estate, the requirements of § 3122 have not been met and the city is barred from seeking indemnification. We agree that the procedures set forth in § 3122 were not complied with fully, but conclude that the failure to do so does not defeat the plaintiff’s cause of action.

The first portion of § 3122 states unequivocally that when a person has caused an obstruction in a street, “such person shall be held to answer any claim for damages . . . [made] against [the] city therefor.” It is this language that creates an independent, statutory cause of action for indemnification. In a separate clause set off by a semicolon, § 3122 then sets forth an optional procedure pursuant to which, if an action is brought against the city, “such person may be cited in to defend the same.” (Emphasis added.) Section 3122 continues, stating that if the third party defendant is cited in, then “no judgment shall be rendered against the city until . . . the judgment against [the third party is] returned unsatisfied” and that the city, after paying this judgment, will have recourse against the third party. The city elected, as permitted by this latter part of § 3122, to cite in the third party defendants in the underlying action. The issue then becomes whether the failure of the parties to comply fully with the statutory requirements of this second part of § 3122, by first obtaining a judgment in favor of the Hammond estate against Mattatuck and Adamo vicia, defeats the city’s underlying cause of action established under the first clause of § 3122. This, in turn, depends on whether the procedures set forth in the second clause are mandatory or directory. If they are mandatory, then failure to comply with them defeats the city’s entire cause of action under § 3122. If they are directory, then the city’s underlying claim is preserved.

As earlier noted, the relevant portion of § 3122 is divided into two sections set off by a semicolon. The first establishes the independent statutory cause of action for indemnity. The second does not create a cause of action but establishes only a procedural mechanism to be used in the event, as here, that the city elects to cite in the primary tortfeasor. In addition this second section uses the word “may” suggesting that the entire clause is optional. Finally, “[t]he most satisfactory test of whether a [provision] is mandatory or merely directory ‘is whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words whether it relates to [a] matter of substance or to [a] matter of convenience.’ International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 [1951]. Gallup v. Smith, 59 Conn. 354, 358, 22 A. 334 [1890]. Where the thing required to be done is one of substance the statutory provision is mandatory. State ex ret. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 [1963]; Blake v. Meyer, 145 Conn. 612, 616, 145 A.2d 584 [1958], However, ‘[legislative provisions designed to secure order, system and dispatch in proceedings are ordinarily held to be directory where, as here, they are stated in affirmative terms or, to express it differently, are unaccompanied by negative words.’ Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 [1956]. Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.” (Emphasis added.)Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969).

The latter part of § 3122 is cast in affirmative words, contains no penalty for noncompliance and purports only to establish a permissive procedure for the orderly processing of claims for indemnification in the event a third party is cited in, by directing that the judgment should be rendered against the third party defendant first. We conclude that the terms of the second clause of § 3122 are directory, and not mandatory, and that failure to comply fully with its requirements does not defeat the city’s underlying cause of action.

II

Mattatuck next claims that the requirements of § 3122 should be merged with the principles set out in Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 207 A.2d 732 (1965). In Kaplan, we held that there was an exception to the common law rule prohibiting contribution from among joint tortfeasors if the indemnitee could prove that: (1) the indemnitor was negligent; (2) such negligence was the direct cause of the damages; (3) the indemnitor was in control of the situation to the exclusion of the indemnitee; and (4) the indemnitee did not know or have reason to know of the indemnitor’s negligence and could reasonably have relied on the indemnitor not to be negligent. Id., 416. Mattatuck argues that there were no facts from which the jury could have concluded that it and Adamovicia, as the putative indemnitors, were ever in control of the area or that the city, as indemnitee, did not have notice of the obstruction.

Mattatuck’s argument that § 3122 actions are to be merged with the test set out in Kaplan is without merit. The Kaplan case established a narrow exception to the general common law principle that there is no contribution among joint tortfeasors. Section 3122, however, establishes an independent, statutory cause of action for indemnification. There is no suggestion in § 3122 that the legislature intended it to be limited by the separate common law exception. In the absence of an indication from the legislature that a narrow exception to a common law rule is to be applied to a statutory indemnification provision, we decline independently to do so and conclude that the trial court correctly permitted the jury to decide the city’s claim of indemnity based solely upon § 3122.

Ill

Mattatuck next claims that the Hammond estate should not have recovered from the city because the Hammond estate had already obtained a full recovery from Kulmann. “[A]n injured party is entitled to full recovery only once for the harm suffered.” Peck v. Jacquemin, 196 Conn. 53, 70 n.19, 491 A.2d 1043 (1985); Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 71, 557 A.2d 540 (1989). For a recovery from a second tortfeasor to be barred, however, it must be shown that the injured party has received a full recovery. Gionfriddo v. Gartenhaus Cafe, supra, 75-76.

The question whether the stipulated judgment between the Hammond estate and Kulmann represented a full and complete recovery was fully litigated at trial. Both parties had ample opportunity to introduce evidence and did so. The jury had before it evidence that the deceased was only nineteen. He was an energetic young man with some college experience, was working a number of jobs and, on the day he was killed, had applied for a manager’s position at an auto parts store. The jury also might reasonably have relied upon an economist’s report, introduced into evidence, that calculated the potential economic loss to the estate at $1,000,000. “ ‘Assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant.’ Slabinski v. Dix, 138 Conn. 625, 628-29, 88 A.2d 115 (1952). ‘The amount of the award is a matter within the province of the trier of the facts.’ Gorczyca v. New York, N.H. & H.R. Co., 141 Conn. 701, 703, 109 A.2d 589 (1954).” Seals v. Hickey, 186 Conn. 337, 352, 441 A.2d 604 (1982). Based upon the evidence before it, we cannot conclude that it was unreasonable for the jury to decide that the $600,000 settlement with Kulmann represented less than full value for the loss suffered.

IY

Mattatuck next claims that there was insufficient evidence as a matter of law that its actions were the cause of the accident because there was “no evidence that the oil itself on the road contributed to the Hammond accident, mainly because it had been absorbed by the sand.” There was, according to Mattatuck, “never any causal link made between the Mattatuck accident and the subsequent Hammond loss.”

“ ‘To be entitled to damages a plaintiff must establish a causal relationship’ .... This causal connection must rest upon more than surmise or conjecture.” Aspiazu v. Orgera, 205 Conn. 623, 630, 535 A.2d 338 (1987). The jury had before it ample evidence concerning the road conditions from the time the Mattatuck truck overturned until the Hammond accident. Several witnesses testified as to the character and amount of fluids spilled. Evidence was introduced indicating that thirty-three to thirty-five gallons of transformer fluid and significant amounts of fuel and oil from the truck were spilled on the road. Furthermore, the police report of the road conditions at the time of the fatal accident and several photographs of the scene depicting stains that could reasonably be inferred to be from oil and transformer fluids were introduced as evidence. We conclude that reasonable jurors, based upon the facts before them, could have concluded that the oil and transformer fluid on the road as a result of the Mattatuck accident was a substantial cause of the subsequent Hammond accident.

V

Mattatuck next claims that the trial court improperly instructed the jury on the estate’s claim that the condition on the road constituted a nuisance. Specifically, Mattatuck argues that in order for it to be held liable to the city, it was necessary that the city first be found liable to the Hammond estate. The Hammond estate had claimed that the city had created a nuisance. Mattatuck now argues that the charge to the jury was deficient in that the elements required to establish a nuisance were not described to the jury.

“To establish a nuisance four elements must be proven: (1) the condition . . . had a natural tendency to create danger ... (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries.” Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978). Examination of the record discloses that the trial court, in its charge to the jury, correctly and concisely stated that, in order to find a nuisance, the city must show that there was “a condition . .. . which has a natural tendency to create danger,” that it was “continuous,” “unreasonable” and “caused Joseph Hammond’s death.” We conclude that this instruction was a correct and adequate statement of the law and that Mattatuck’s claim is therefore without merit.

VI

Mattatuck finally claims that the trial court failed to submit its proposed interrogatories to the jury or to submit the court’s own. Mattatuck argues that, due to the complexity of the issues involved, failure to submit interrogatories was improper.

“[T]he use of interrogatories has long been accepted practice in this state, and . . . their use to avoid the implications of a general verdict has long been favored by this court.” Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979). “Although ordinarily the submission of interrogatories rests within the court’s discretion, where the complaint contains two or more counts, or when two or more causes of action are incorporated in a single count a party has the right to save himself from the implication of a general verdict by seeking from the jury answers to apt and proper interrogatories.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 527, 457 A.2d 656 (1983).

The city’s substitute third party complaint against the third party defendants contained only one count, i.e., a claim for indemnity under § 3122 of the Waterbury city code. There was therefore no mandatory requirement that the trial court submit interrogatories and, therefore, the decision to submit them was within the trial court’s discretion. Some of the proposed interrogatories were wholly inappropriate. Question 4 of the proposed interrogatories asked whether the city was “secondarily passively involved in creating . . . the obstruction” in the road. Question 6 asked whether the city’s loss was “proximately caused by the active-primary negligence” of the third party defendants. It is apparent that the interrogatories therefore attempted to introduce elements of the Kaplan test, which we have already stated were inapplicable to this statutory claim for indemnification under § 3122. The trial court, having examined the proposed interrogatories, concluded that they were “confusing” and “[did] not track the .... issues [submitted] . . . for the jury” and we agree in that they ask the jury to consider legal principles not applicable to the facts in issue. We therefore find no abuse of the trial court’s discretion in refusing to submit the proposed interrogatories.

The judgment is affirmed.

In this opinion the other justices concurred.

       The Waterbury city code derives its authority from 12 Spec. Acts 443, No. 329, § 25, and was reenacted in its present form in 21 Spec. Acts 634, No. 499, § 249.

       Mattatuck makes several additional claims relative to the recovery based upon § 3122 of the Waterbury city code. Mattatuck claims that there was no evidence that the sand and oil was an “obstruction” within the meaning of § 3122. We find this claim to be without merit. Examination of the record discloses that there was ample photographic evidence and trial testimony to support the jury’s conclusion that an obstruction existed.
      Mattatuck also claims that the case law indicates that § 3122 “has been applied exclusively to defects in sidewalks or situations involving pedestrians” and that it is inconsistent to apply it to the facts of this case. This argument is also without merit. No case has been brought to our attention stating that the statute applies only to sidewalks. Furthermore § 3122, by its terms, applies “[wjhenever any person shall cause . . . any obstruction on, any of the streets . . . .” (Emphasis added.)

       The Restatement (Second) of Judgments, § 50, comment (d), states that “when a judgment is based on actual litigation of the measure of a loss, and the judgment is thereafter paid in full, the injured party has no enforceable claim against any other obligor . . . .’’(Emphasis added.) In this case, the issue of damages was never litigated in the proceedings between Kulmann and the Hammond estate and therefore the question of whether the stipulated judgment with the estate represented a full recovery was properly before the jury here.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Craig Burge et al. v. Town of Stonington et al.
    (14052)
    Shea, Callahan, Glass, Borden and F. X. Hennessy, Js.

      Argued April 26
    decision released July 16, 1991

      Jason M. Dodge, for the appellant (named defendant).

      Thomas J. Riley, with whom was Michael R. Kerin, for the appellee (plaintiff Lawrence and Memorial Hospital).
   Shea, J.

We are asked to decide whether the “act establishing a prospective payment system for hospitals,” Public Acts 1984, No. 84-315 (the DRG Act), affected an employer’s workers’ compensation liability for hospital bills incurred by an injured employee between 1984 and 1989, after which period the act was repealed. We conclude that an employer was required to pay the diagnosis related group or “DRG” charges for hospital services billed during that five-year period.

The parties stipulated to the pertinent facts. The named plaintiff, Craig Burge (the employee), was employed by the named defendant, the town of Stoning-ton (the employer). On August 21, 1987, he suffered an injury compensable under the Workers’ Compensation Act, General Statutes § 31-275 et seq., and was hospitalized between September 2 and September 7, 1988. During his hospitalization, Lawrence and Memorial Hospital (the hospital) provided him with reasonable and necessary hospital care. The hospital’s bill, dated September 12, 1988, itemized charges totaling $3799.74. At that time, however, the DRG Act required the hospital to bill a fixed charge per case based upon the diagnosis of the patient and the patient’s payer category, without regard to the particular services rendered. General Statutes § 19a-165f (a). Accordingly, the hospital billed the employee $7207.55. The employer, conceding liability under the Workers’ Compensation Act, paid the itemized charges, but refused to pay the balance of $3407.81. In the ensuing proceedings before the workers’ compensation commissioner for the second district and the compensation review division (CRD), the employer argued that the plain language of General Statutes (Rev. to 1987) § 31-294 limited its liability for hospital fees to the actual cost of the services provided to the employee, i.e., the itemized charges, and that this language was neither explicitly nor implicitly repealed by passage of the DRG Act in 1984. The commissioner, and the CRD, disagreed.

The CRD rejected the employer’s contentions on the same basis expounded fully in an earlier CRD decision, Tannery. Walgren Tree Experts, No. 748 CRD-8-88-7 (January 17,1990). In Tanner, the CRD concluded that after the legislature in 1973 created the commission on hospitals and health care (hospital commission) with rate-setting and budget review powers, the “actual cost” language in § 31-294 “ceased to be relevant.” It found that since that date, the workers’ compensation commissioners, when determining employer liability for hospital confinement and treatment, had relied on the uniform rates set by the hospital commission, and it concluded that the DRG rates set by the commission after passage of the DRG Act were similarly applicable. Finally, the CRD held that the legislature had resolved any remaining ambiguity when it enacted No. 88-357 of the 1988 Public Acts, which explicitly amended both § 19a-165f and § 31-294 by requiring employers to pay hospital DRG charges. The CRD held that these amendments were intended to clarify existing law and thus concluded that since October 1,1984, the effective date of the DRG Act, employers would be required to pay for hospital services at the DRG rates.

I

The Workers’ Compensation Act, including § 31-294, has been a part of our law since 1913. In the ensuing seventy-eight years, the workers’ compensation commissioners have made numerous awards, including orders to employers to pay hospital charges. It is appropriate for us to consider this long history of practical application in our analysis of the statute’s meaning and scope.

In September, 1988, when the employee was injured, General Statutes § 31-294 provided in pertinent part: “The pecuniary liability of the employer for the medical and surgical service herein required shall be limited to such charges as prevail in the same community or similar communities for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person; but the liability of the employer for hospital service shall be the amount it actually costs the hospital to render the service, such amount to be determined by the commissioner . . . (Emphasis added.)

The italicized language was added to the statute in 1921; Public Acts 1921, c. 306, § 3; apparently in response to the deep division between compensation commissioners regarding the appropriate level of hospital fees for which employers would be liable. Early workers’ compensation commission decisions indicate that most members of the industrial working class at the beginning of this century lacked the funds to pay their hospital costs. As a result, hospitals commonly admitted them to the “general wards” or “public wards” of the hospital, which provided hospital'care to the general public at below cost. See, e.g., Schillinger v. Yale Brewing Co., 3 Conn. Comp. Dec. I-181 (1919); Malone v. H. R. Douglas, Inc., 1 Conn. Comp. Dec. 297 (1915). For example, a patient in the “general wards” in the period 1916 through 1919 might pay $7 per week to receive bed, board, nursing care and the services, performed on a pro bono basis, of the same doctors and surgeons who cared for the private patients. See Schillinger v. Yale Brewing Co., supra; Beinotovitz v. National Iron Works, 1 Conn. Comp. Dec. 623 (1916); Johnson v. Spring Glen Farm, Inc., 1 Conn. Comp. Dec. 593 (1916). By contrast, a private room patient could pay $25 per week for bed and board and in addition be required to pay separately for doctors’ and nurses’ fees. See, e.g., Beinotovitz v. National Iron Works, supra; cf. Christophson v. Turner Construction Co., 1 Conn. Comp. Dec. 591 (1916) ($18 and above). It was widely acknowledged that the “general ward” was in essence a “charity” ward that operated at a loss. See Spencer v. New Haven Rendering Co., 4 Conn. Comp. Dec. I-229 (1921); Schillinger v. Yale Brewing Co., supra; Kelly v. Whitaker, 2 Conn. Comp. Dec. 1-363 (1917); Anderson v. Maxim Munitions Corporation, 2 Conn. Comp. Dec. I-88, I-89 (1916). Some hospitals developed a third alternative, commonly called the “private ward,” or semiprivate rooms with eight to ten patients. These “private wards” provided a higher nurse to patient ratio, better food, and better conditions. Charges for admission to “private wards” were viewed as “compensatory,” that is, the fee charged was expected to cover the actual costs of the stay. See Spencer v. New Haven Rendering Co., supra, I-232; Anderson v. Maxim Munitions Corporation, supra, I-89. In such wards the patient also had to pay extra for doctors’ Mis, but not usually for nursing care. Some hospitals developed “private wards” only as a response to enactment of the Workers’ Compensation Act; in those hospitals the “private wards” were actually referred to as “compensation wards.” See, e.g., Spencer v. New Haven, Rendering Co., supra; Schillinger v. Yale Brewing Co., supra, I-183.

In those early days, the compensation commissioners debated whether hospitals could receive more than their below-cost “general ward” fees for hospital care provided to members of the industrial working class who would, without workers’ compensation, undoubtedly have relied on the “general” or “charity” wards for hospital care. Compare Schillinger v. Yale Brewing Co., supra, and Johnson v. Spring Glen Farm, Inc., supra. Not infrequently, a hospital would admit injured workers to the “private ward” and be paid only the fee for “general ward” treatment. See, e.g., Schillinger v. Yale Brewing Co., supra; Kelly v. Whitaker, supra; Malone v. H. R. Douglas, Inc., supra. This practice would result in a substantial loss to the hospital. Indeed, the Connecticut Medical Society in 1914 submitted to the workers’ compensation commissioners a recommendation that the legislature authorize private ward fees with additional charges for doctors’ fees, which the commissioners included, without comment, in their annual report to the governor and general assembly. 1914 Conn. Public Documents vol. 1, pt. 2, doc. 15, p. 17. Various commissioners in their decisions also invited legislative action on this issue. See Spencer v. New Haven Rendering Co., supra, I-233; Schillinger v. Yale Brewing Co., supra, I-187.

This history indicates that the 1921 amendment to the Workers’ Compensation Act, limiting hospital charges to the actual costs of the services provided, was probably added in order to prevent hospitals from being imdercompensated. This is in contrast to the other language in § 31-294 limiting employer liability for medical services to “such charges as prevail . . . when such treatment is paid for by the injured person,” which apparently was intended to prevent doctors from increasing their fees when they discovered that the “deep pocket” of compensation insurance would pay the bill. Covey v. Honiss Oyster House, Inc., 117 Conn. 282, 284, 167 A. 807 (1933); cf. Christophson v. Turner Construction Co., supra, I-593.

The CRD’s opinion in Tanner declared that since 1921, the commissioners met yearly to set the actual costs that a hospital might charge for services. It explained, however, that after 1973, when the legislature established the hospital commission; Public Acts 1973, No. 73-117; the commissioners simply deferred to the fee schedule established by the hospital commission. Presumably, the commissioners interpreted the language in § 31-294, “such amount to be determined by the commissioner,” as sufficiently broad to authorize deference to uniform rates set by the hospital commission.

The commissioners’ practical application of the statute over the last seventy years provides a useful indication of its meaning. See Board of Education v. State Board of Labor Relations, 217 Conn. 110, 120, 584 A.2d 1172 (1991). The compensation commissioners had accepted the hospital commission rates after 1973 without objection for eleven years when the DRG Act became effective, raising the stakes by creating in some cases wide disparities between itemized charges and billed charges.

“We seek the intent of the legislature ‘not in what it meant to say, but in what it did say.’ Daily v. New Britain Machine Co., 200 Conn. 562, 571, 512 A.2d 893 (1986).” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). Whatever led to its enactment, the words of § 31-294 limit the employer’s liability to the “amount it actually costs the hospital to render the service.” The compensation commissioners could not assume that the hospital commission would consider the actual costs to the hospital as the only criterion for setting rates. Indeed, No. 73-117 of the 1973 Public Acts permitted the hospital commission to consider, in addition to “necessary expenses” of the hospital, the hospital’s effectiveness, the quality of care, and the community’s need for its services, as well as “any other factors [that] the commission deems relevant.”

We conclude, nevertheless, that the commissioners’ deference to hospital commission rates was not only authorized, but required, by the legislature. In enacting No. 73-117 of the 1973 Public Acts, the legislature effectively preempted the entire field of hospital rate setting, including the portion previously occupied by the workers’ compensation commissioners. Having authorized the hospital commission to determine all hospital rates, the legislature cannot have intended to continue requiring the compensation commissioners independently to establish the actual costs of the hospital for services rendered to injured workers as distinct from other persons. The resulting two-tier system would also defeat the implicit purpose of § 31-294, namely, that fees for medical care of workers’ compensation patients should be neither more, nor less, than those paid by the general paying public. We presume that the legislature intended a reasonable and rational result. See Sanzone v. Board of Police Commissioners, supra; Zapata v. Burns, 207 Conn. 496, 507-508, 542 A.2d 700 (1988). Thus, although we commonly disfavor repeal by implication; Metropolitan District v. Barkhamsted, 199 Conn. 294, 305, 507 A.2d 92 (1986); “ ‘[s]o far as pre-existing provisions, by their repugnancy or inconsistency, stand in the way of the full and effective operation of the final expressed will of the legislature, they stand, in law, as pro tanto repealed. Not only is this true of those provisions which are on their face inconsistent with the Act, but of any others which upon examination and analysis are found to hamper or interfere with its workability.’ Connelly v. Bridgeport, [104 Conn. 238, 253, 132 A. 690 (1926)].” East Haven v. New Haven, 159 Conn. 453, 469-70, 271 A.2d 110 (1970). We conclude that No. 73-117 of the 1973 Public Acts effectively repealed the “actual cost” language of § 31-294 and required compensation commissioners to defer to the hospital commission rates.

II

In September, 1988, when the employee’s hospital costs were incurred, the DRG statute provided, in pertinent part: “(a) For the rate year commencing in 1987, and for subsequent rate years, hospitals shall charge according to a fee schedule based on a standard fixed charge per case for all inpatient cases except cases in exempt units or cases classified as outliers .... Suck fee schedule shall be used for all payers except for Medicare and for medical assistance provided pursuant to chapters 302 and 308.” (Emphasis added.) General Statutes (Rev. to 1987) § 19a-165f (a), as amended by Public Acts 1987, Nos. 87-122, 87-443, § 5, and 87-510, § 3.

“Our task is to find the expressed intent of the legislature, ‘that is, the intention of the legislative body “as found from the words employed to make it manifest.” ’ ” Sanzone v. Board of Police Commissioners, supra, 186. “To determine the collectively expressed legislative intent, we look first to the language of the statute itself.” Id., 187. The statutory language, “all payers,” which was added in 1987, demonstrates that the legislature intended no exemption from hospital commission rates for workers’ compensation cases. Thus, according to the plain language of the DRG Act, employers and workers’ compensation insurers were required to pay for hospital services at DRG rates.

A review of the legislative history, while not required, confirms our reading of the statute. “Legislative history” includes not only those discussions and circumstances that led to the enactment of the statute, but any subsequent legislative history that sheds light on the legislature’s original intent. Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 541, 494 A.2d 555 (1985). Thus, “[a] clarifying act, which ‘in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act.’ ” State v. Blasko, 202 Conn. 541, 557, 522 A.2d 753 (1987), quoting Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977).

The legislative history unquestionably indicates that §§ 3 and 19 of No. 88-357 of the 1988 Public Acts, which became effective on October 1,1988, after the employee was injured and incurred hospital costs, were intended to clarify the ambiguity created when the legislature enacted General Statutes § 19a-165f (a) without explicitly repealing the conflicting provisions of § 31-294. The statement of purpose contained in the bill that later became No. 88-357 specifically states that it was in part intended “to clarify sections pertaining to . . . the payment of hospital costs by workers’ compensation.” Raised Committee Bill No. 387, p. 15. The office of legislative research analysis, incorporating the favorable report of the public health committee, states that the act would “make it clear that workers’ compensation [program] payers [and governmental payers] must pay fixed charges” under the Prospective Payment System. OLR Amended Bill Analysis, p. 100. Representative Paul Gionfriddo, explaining the purpose of Senate Amendment “A,” which became part of the act, stated: “ [TJhis amendment . . . clarifies] that under the terms of the prospective payment system that we have in place that workers’ compensation carriers are third party carriers or payers and are to be treated as such, as was originally intended in the statute, so it is clarifying in nature.” 31 H.R. Proc., Pt. 24,1988 Sess., pp. 8329-30. Statements of purpose, committee reports, and floor debate are all legitimate sources of legislative intent. See, e.g., Nationwide Ins. Co. v. Gode, 187 Conn. 386, 391 n.5, 446 A.2d 1059 (1982) (floor debate); Tax Commissioner v. Estate of Bissell, supra, 244-45 (statement of purpose); Connecticut Rural Roads Improvement Assn. v. Hurley, 124 Conn. 20, 26, 197 A. 90 (1938) (committee reports).

It is rare to find such plentiful evidence of the legislature’s intent to clarify an earlier statute. We have no difficulty, therefore, in concluding that the legislature originally intended no exemption for employers or workers’ compensation insurance carriers from the provisions of the DRG Act.

Having established the meaning of § 19a-165f (a), we return to § 31-294. Section 19a-165f (a) of the DRG Act, as a subsequent enactment, must control over the conflicting terms of § 31-294, as modified by Public Acts 1973, No. 73-117. See Plourde v. Liburdi, 207 Conn. 412, 417, 540 A.2d 1054 (1988); Keogh v. Bridgeport, 187 Conn. 53, 65, 444 A.2d 225 (1982). We therefore conclude that the DRG Act further modified § 31-294 to require an employer to pay the DRG rate established by the hospital commission even though that rate is based upon a hospital’s average cost per diagnosis instead of the costs of providing service to a particular patient.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 19a-165f, as amended by Public Acts 1987, No. 87-122, No. 87-443, § 5, and No. 87-510, § 3, provided, in pertinent part: “(a) For the rate year commencing in 1987, and for subsequent rate years, hospitals shall charge according to a fee schedule based on a standard fixed charge per case for all inpatient cases except cases in exempt units or cases classified as outliers and the patient shall be liable for payment on the basis of such schedule. A hospital may not charge for inpatient cases not classified as outliers on other than a fixed charge per case unless otherwise authorized under sections 19a-165 to 19a-165g, inclusive. Reimbursement on behalf of such inpatient cases shall be based on the fixed charge per case. Such fee schedule shall be used for all payers except for Medicare and for medical assistance provided pursuant to chapters 302 and 308 .... The commission on hospitals and health care shall adopt regulations . . . which define a self-pay patient and shall establish an appeals process for self-pay patients . . . .”

       The bill provided the following statement of charges: “MED/SURG/GYN-S/P $1,405.00
      ANESTHESIA 808.56
      LABORATORY 110.46
      OPERATING ROOM 1,080.67
      RECOVERY ROOM 196.07
      PHARMACY 36.55
      MED/SURG/CENTRAL 74.57
      INTRAVENOUS THERAPY 87.86
      TOTAL CHARGES 3,799.74
      CT ALL PAYOR SYSTEM DRG CHARGE 7,207.55”
      Thus, the detailed charges totaled $3799.74, whereas the DRG charge was $7207.55, a difference of $3407.81.

       General Statutes (Rev. to 1987) § 31-294 provided, in pertinent part: “The pecuniary liability of the employer for the medical and surgical service herein required shall be limited to such charges as prevail in the same community or similar communities for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person; but the liability of the employer for hospital service shall be the amount it actually costs the hospital to render the service, such amount to be determined by the commissioner, except in the case of state humane institutions, in which case the liability of the employer shall be the per capita cost as determined by the comptroller under the provisions of section 17-295.”

       Prior to the 1921 amendment, General Statutes (Rev. to 1918) § 5347 provided: “The pecuniary liability of the employer for the medical and surgical service herein required shall be limited to such charges as prevail in the same community or similar communities for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person.” This provision was retained after the 1921 amendment, which added the language establishing actual cost as the standard for hospital services.

       Commission reports indicate that in later years the commissioners met with hospital and insurance officials to try to reach agreement on uniform statewide hospital rates. See Reports of the Board of Compensation Commissioners, No. 18 (1946), p. 9; No. 17 (1944), pp. 8-9; No. 16 (1942), p. 8; No. 15 (1940), p. 9; No. 14 (1938), p. 10.

       In 1973, the precursor to General Statutes § 19a-153 (a), as codified at General Statutes (Rev. to 1975) § 19-73k, provided: “considerations relative to rate-increase approval. In its deliberations under any of sections 19-73Í to 19-73o, inclusive, the commission may take into consideration the necessary expenses of the institution or facility concerned, the effectiveness of its delivery of health care services, the quality of available health care, the duplication of service by institutions and facilities in the area served, the community or regional need for any particular function or service, and any other factors which the commission deems relevant.”
      In the same act that repealed General Statutes § 19a-165f, the DRG Act; see Public Acts 1989, No. 89-371; the legislature also amended § 19a-153 (a), which now provides as follows: “[General Statutes (Rev. to 1991)] Sec. 19a-153. (Formerly Sec. 19-73k). “considerations in commission deliberations; written findings, availability of information, use of charitable gifts, (a) In any of its deliberations involving a proposal, request or submission regarding rates or services by a health care facility or institution, the commission shall take into consideration and make written findings concerning each of the following principles and guidelines: The relationship of the proposal, request or submission to the state health plan; the relationship of the proposal, request or submission to the applicant’s long-range plan; the financial feasibility of the proposal, request or submission and its impact on the applicant’s rates and financial condition; the impact of such proposal, request or submission on the interests of consumers of health care services and the payers for such services; the contribution of such proposal, request or submission to the quality, accessibility and cost-effectiveness of health care delivery in the region; whether there is a clear public need for any proposal or request; whether the health care facility or institution is competent to provide efficient and adequate service to the public in that such health care facility or institution is technically, financially and managerially expert and efficient; that rates be sufficient to allow the health care facility or institution to cover its reasonable capital and operating costs; the relationship of any proposed change to the applicant’s current utilization statistics; the teaching and research responsibilities of the applicant; the special characteristics of the patient-physician mix of the applicant; the voluntary efforts of the applicant in improving productivity and containing costs; and any other factors which the commission deems relevant, including, in the case of a facility or institution as defined in subsection (c) of section 19a-490, such factors as, but not limited to, the business interests of all owners, partners, associates, incorporators, directors, sponsors, stockholders and operators and the personal backgrounds of such persons.”

       Indeed, thirty years earlier the compensation commissioners had implored the legislature to “remove this burden” of setting hospital rates from the commissioners. Reports of the Board of Compensation Commissioners, No. 16 (1942) p. 8.

       General Statutes (Rev. to 1987) § 19a-165 (h), as amended by Public Acts 1987, No. 87-448, §§ 2, 17, defines “Outliers” as “(1) day outliers, which shall include all cases with a length of hospital stay which exceeds three times the average length of stay as determined by the commission; (2) charge outliers, which shall be cases not included within the definition of day outliers in which the itemized charges exceed by more than two and one-half times the fixed charge per case as determined by the commission; or (3) short stays which shall be inpatient cases involving hospital stays of two calendar days, or less, except for the fiscal year commencing in 1988, and subsequent fiscal years, the commission may modify the criteria for short stay outliers by regulations adopted pursuant to chapter 54.”
      General Statutes (Rev. to 1987) § 19a-165f (a) categorizes "psychiatric units and rehabilitation units of hospitals” as “exempt units” and authorizes the hospital commission to classify certain services as exempt. The parties have stipulated that the employee’s case is not an “outlier” and that the services the hospital provided are not “exempt” in themselves or by virtue of being provided by an “exempt” unit.

       We note that in 1984, the DRG Act, as codified at General Statutes (Rev. to 1985) § 19a-165f (a), provided: “Separate fee schedules shall be used for the following payer categories: Medicare, medical assistance provided pursuant to chapters 302 and 308, other third party payers.' ’ (Emphasis added.) The legislature removed this language in 1987. Public Acts 1987, Nos. 87-443, § 5, and 87-510, § 3. The statute never defined or otherwise referred to “other third party payers.” This term would presumably include both private medical insurers and workers’ compensation insurers, as well as self-insured employers. Thus, the legislature in 1984 continued to make no distinction between workers’ compensation payers and other insurers.

       “[Public Acts 1988, No. 88-857] Sec. 3. Subsection (a) of section 19a-165f of the general statutes, as amended by public act 87-122, section 5 of public act 87-443 and section 3 of public act 87-510 are repealed and the following is substituted in lieu thereof:
      “(a) For the rate year commencing in 1987, and for subsequent rate years, hospitals shall charge according to a fee schedule based on a standard fixed charge per case for all inpatient cases except cases in exempt units or cases classified as outliers, [and the] THE patient shall be liable for payment on the basis of such schedule, EXCEPT THAT IN WORKERS’ COMPENSATION CASES ALL CHARGES FOR HOSPITAL SERVICES RESULTING FROM EMPLOYMENT RELATED INJURIES OR DISEASES SHALL BE SOLELY THE RESPONSIBILITY OF THE EMPLOYER OR CARRIER, AND NO CLAIM SHALL BE MADE AGAINST THE INJURED EMPLOYEE FOR ALL OR PART OF A CHARGE. A hospital may not charge for inpatient cases not classified as outliers on other than a fixed charge per case unless otherwise authorized under sections 19a-165 to 19a-165q, inclusive, AS AMENDED BY PUBLIC ACTS 87-443 AND 87-510. Reimbursement on behalf of such inpatient cases shall be based on the fixed charge per case. Such fee schedule shall be used for all payers except for Medicare and for medical assistance provided pursuant to chapters 302 and 308 until such time as Medicare and medical assistance provided pursuant to chapters 302 and 308 pays on the basis of a standard fixed charge per case. For Medicare and medical assistance provided pursuant to chapters 302 and 308, each hospital shall establish its detailed charges in conformance with the standard fixed charge per case and the outlier charges established by the commission for the hospital’s rate year. WORKERS’ COMPENSATION PAYERS SHALL PAY FOR HOSPITAL SERVICES AS PROVIDED IN SECTION 31-294, AS AMENDED BY SECTION 19 OF THIS ACT.”
      “Sec. 19. Section 31-294 of the general statutes, as amended by public act 87-160, is repealed and the following is substituted in lieu thereof . . .
      “The pecuniary liability of the employer for the medical and surgical service herein required shall be limited to such charges as prevail in the same community or similar communities for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person; but the liability of the employer for hospital service shall be the amount it actually costs the hospital to render the service, such amount to be determined by the commissioner except (1) IN CASES FOR WHICH A STANDARD FIXED CHARGE PER CASE HAS BEEN ESTABLISHED PURSUANT TO SUBSECTION (a) OF SECTION 19a-165f, AS AMENDED BY PUBLIC ACT 87-122, SECTION 5 OF PUBLIC ACT 87-443, SECTION 3 OF PUBLIC ACT 87-510 AND SECTION 3 OF THIS ACT, LIABILITY SHALL BE THE AMOUNT CHARGED BY THE HOSPITAL USING A FEE SCHEDULE BASED ON SUCH FIXED CHARGE PER CASE AND (2) in the case of state humane institutions, in which case the liability of the employer shall be the per capita cost as determined by the comptroller under the provisions of section 17-295. ALL DISPUTES CONCERNING LIABILITY FOR HOSPITAL SERVICES IN WORKERS’ COMPENSATION CASES SHALL BE SETTLED BY THE WORKERS’ COMPENSATION COMMISSIONER IN ACCORDANCE WITH THIS CHAPTER.”
      The legislative history also indicates that the legislature intended to indicate formal approval of the commission’s regulation prohibiting hospitals from seeking any payment from injured workers. Regs., Conn. State Agencies § 31-279-9 (e). See testimony of John Arcudi, Conn. Joint Standing Committee Hearings, Public Health, 1988 Sess., p. 165.

       The employer attempts to argue that the legislature cannot have been “clarifying” the term “actual cost” contained in General Statutes § 31-294, because that language was added in 1921. We need not consider whether the legislature has the power to make dispositive declarations concerning the intentions expressed by long-dead legislators, because § 3 of No. 88-357 of the 1988 Public Acts specifically clarified General Statutes § 19arl65f(a), which was enacted in 1984, only a few terms earlier.

       Now that the DRG Act has been repealed, General Statutes § 31-294, implicitly modified by No. 73-117 of the 1973 Public Acts, returns to its pre-DRG meaning.


author: Santaniello, J.

text:
    State of Connecticut v. Robert Grant
    (14000)
    Peters, C. J., Callahan, Glass, Covello and Santaniello, Js.
    Argued May 30
    decision released July 23, 1991

      Brigid Donohue, certified legal intern, with whom were Timothy H. Everett, ToddD. Fernow and, on the brief, Michael R. Sheldon, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom were JohnM. Bailey, state’s attorney, and, on the brief, Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of accessory to murder, in violation of General Statutes §§ 53a-54a and SSa-S. In his appeal, the defendant claims that the trial court should have ordered a judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that he possessed the mental state required for the commission of the crime.

The jury could reasonably have found the following facts. On the evening of March 19, 1988, the victim, Marcel Malcolm, was found “slumped over” the seat of his white Nissan automobile at the intersection of Harold and Lyme Streets in Hartford. He was transported to the hospital where he was pronounced dead. The cause of death was certified as shotgun wounds to the head and neck. The manner of death was ruled a homicide.

Two witnesses for the state, Robert Gordon and Marc Osborne, testified about the events that occurred immediately prior and subsequent to the shooting. Gordon testified that the victim was involved in the selling of cocaine and that an association existed between the victim and Ronald Daniels, whereby Daniels would sell drugs for the victim. Disagreements had arisen over $400 that Daniels owed to the victim. Between 5 and 6 p.m. on March 19,1988, Daniels called Gordon, who, at the time, was living in Daniels’ house with Daniels’ family, and asked him to take the victim to a certain location at Lyme Street. When the victim appeared at Daniels’ house, he and Gordon drove to Lyme Street in the victim’s white Nissan automobile.

Osborne testified that at approximately 5:45 p.m. on March 19,1988, he received a telephone call at his home from Daniels, requesting the use of Osborne’s shotgun. When Osborne asked Daniels why he wanted the shotgun, Daniels responded that he “wanted to scare someone.” Between approximately 6:45 and 7 p.m., Daniels arrived at Osborne’s house and took the shotgun and three shells. Daniels put the shotgun down his sweatpants and zipped up his jacket and then he and Osborne left the house and proceeded on foot west on Tower Avenue toward its intersection with Palm Street. Before they reached Palm Street, a man, later identified as the defendant, drove up in a dark colored Mazda automobile and Daniels “flagged it down.” Osborne got in the back seat and Daniels got in the passenger seat. Once in the car, there was some whispered conversation between the defendant and Daniels, but nothing that Osborne could hear.

Without any instructions from Daniels, the defendant proceeded west down Tower Avenue, took a right onto Palm Street going north and another left onto Harold Street. About halfway between Palm and Lyme Streets, Daniels told the defendant to pull over, and Daniels and Osborne got out of the defendant’s automobile. The defendant then proceeded west down Harold Street and made a right onto Lyme Street. Daniels and Osborne continued to walk down Harold Street until they reached the intersection of Lyme Street, where they waited until the white Nissan driven by the victim pulled up and parked.

After the victim arrived and parked his car, Gordon, who was in the passenger seat, got out and walked over to Daniels, who had proceeded to the driver’s side of the vehicle. An argument developed between the victim and Daniels, after which Daniels pulled the shotgun out of his sweatpants, told the victim he had five seconds and proceeded to count backwards from five. After the countdown, Daniels fired three shots into the victim.

Within seconds of the shooting, the defendant’s dark colored Mazda automobile reappeared and pulled up next to the victim’s car. After the defendant gave certain instructions to Daniels, all three men, Daniels, Gordon and Osborne, got into the defendant’s automobile and drove away from the scene.

At the close of the evidence, the jury found the defendant guilty of accessory to murder and not guilty of conspiracy to commit murder. He was sentenced to twenty-five years in prison.

The defendant’s sole claim on appeal is that the trial court should have ordered a judgment of acquittal on the charge of accessory to murder. According to the defendant, the evidence presented at trial was insufficient to support the jury’s finding that at the time he allegedly aided Daniels, he intended to cause Malcolm’s death.

“The two-part test for appellate analysis of a claim of evidentiary insufficiency is well established. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). It is immaterial to the probative force of the evidence that it consists, in whole or in part, of circumstantial rather than direct evidence. Id., 381. Furthermore, in determining whether the jury reasonably could have found guilt, we ask whether any rational factfinder could have done so. State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986).” State v. Montanez, 219 Conn. 16, 19-20, 592 A.2d 149 (1991). “We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).

The defendant was implicated as an accessory to the murder by the testimony of Gordon, Osborne and Detective James C. Rovella. Gordon and Osborne both testified that after Daniels shot the victim, they were in shock and ran away from the crime scene. When they were a short distance away, they saw the dark colored Mazda automobile emerge from a side street at a normal rate of speed and pull up next to the victim’s car. Gordon and Osborne then went over to the Mazda and saw that the operator of the vehicle was the defendant, Robert Grant.

Both Gordon and Osborne testified that the behavior of the defendant while at the crime scene was calm. They heard the defendant tell Daniels to check the victim’s body for drugs and money, which he did. They then heard the defendant tell Daniels to get the body and put it in the back of the Mazda, which Daniels did not do because “it was too bloody.” Gordon and Osborne then got in the back of the Mazda and Daniels got in the passenger seat. Daniels had already put the shotgun in the car. The defendant then drove away in a rapid and erratic manner. While driving away, the defendant made a statement to Daniels that they should get some gasoline to burn the car. After a few blocks, Gordon and Osborne got out of the car and walked to their respective homes. Osborne took the shotgun from the defendant’s car and eventually brought it to a friend’s house.

Rovella testified regarding an interview he conducted with the defendant on March 22,1988, after the defendant was under arrest. Rovella questioned the defendant about his activities on March 19, 1988, and the defendant told Rovella that a friend of his, Mr. Williams, called him and that they were going to go out together. The defendant told Rovella that at approximately 8:30 p.m., Williams picked him up and they went to Williams’ house, and stayed for approximately one half hour, after which time they drove to Springfield, Massachusetts, where they spent the rest of the evening.

Rovella further testified that when the defendant was telling this story, he was “very confident and fluid.” After hearing this statement of events, however, Rovella confronted the defendant with the fact that Daniels was already under arrest, and that the other involved parties were giving written statements to other detectives. At that point, the defendant’s attitude changed and he became “evasive,” “argumentative” and “arrogant.” Eventually, the defendant admitted that he had picked up Daniels, Osborne and Gordon and had driven them away from the crime scene.

The gravamen of the defendant’s argument is that in order to sustain the jury’s guilty verdict, the evidence adduced at trial taken in the light most favorable to the state must afford the jury a rational basis to reject each and every other reasonable conclusion also supported by that evidence which is consistent with the defendant’s innocence of the crime charged. This argument is based on the defendant’s interpretation of the reasonable doubt standard which provides that proof beyond a reasonable doubt is “ ‘proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion. State v. Smith, 138 Conn. 196, 200, 82 A.2d 816 [1951]. . . .’ State v. Foord, [142 Conn. 285, 295, 113 A.2d 591 (1955)]; State v. Martin, [195 Conn. 166, 173, 487 A.2d 177 (1985)]; State v. Morrill, [193 Conn. 602, 610-11,478 A.2d 994 (1984)].” State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990).

The defendant claims that the evidence introduced at trial and the inferences drawn therefrom give rise to two rational conclusions consistent with the defendant’s innocence, namely (1) that Daniels himself only formed his intent to kill the victim after he, Daniels, arrived at the crime scene, and therefore that the defendant could not have shared such an intent when he aided Daniels by giving him a ride, and (2) that even if Daniels had indeed formed an intent to kill the victim before the defendant had given him a ride, the defendant was unaware of Daniels’ plan and did not share his intent to kill. Thus, the defendant argues, the evidence presented at trial was constitutionally insufficient to support the jury’s finding that at the time he aided Daniels he intended to cause the victim’s death. We find this argument unpersuasive.

“Generally, intent can be proved only by circumstantial evidence.” State v. Morrill, supra, 609. “Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” Id. From the evidence presented, the jury was entitled to infer that when Daniels borrowed the shotgun and shells from Osborne, he believed that murder was one of the potential outcomes of his confrontation with the victim. Daniels set up the meeting with the victim, kept the shotgun hidden and had only a brief discussion with the victim before he began his “countdown.” The logical inference is that Daniels did not first form the intent to kill the victim when he was standing next to the victim’s car door.

Furthermore, the defendant’s behavior in this case supports the inference that he intended to cause the victim’s death as well. Specifically, the jury was entitled to infer the defendant’s knowledge from the fact that he picked up Daniels and Osborne on the way to the crime scene, drove them part of the way to their destination without any instructions from Daniels, and had a brief, whispered conversation with Daniels in the front seat before dropping them off. The defendant returned within seconds of the murder, remained calm while the two witnesses were in shock, and gave orders to check the body for drugs and money and to put the body in the car. A rapid escape from the crime scene followed.

From all of this evidence, the jury could reasonably have found that the defendant was not surprised by the murder but rather had advance knowledge of the plan. Furthermore, the jury was entitled to infer consciousness of guilt from the defendant’s conflicting statements given to Rovella and the defendant’s change in attitude upon learning that the other involved parties were giving statements to police. “The jury was entitled to apply its own knowledge and experience of human nature to th[e] evidence”; State v. Sinclair, 197 Conn. 574, 578, 500 A.2d 539 (1985); and to conclude that when the defendant aided Daniels in murdering the victim, he shared Daniels’ intent. “That the jury might have drawn other possible inferences from these facts is not sufficient to undermine its verdict, since proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt. State v. Morrill, [supra, 610-11].” Id. “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); State v. Foord, [supra, 294].” State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985).

Finally, “[w]here a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt.” State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988); see also State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). In the present case, the ultimate conclusion of the defendant’s intent as an element of the crime of accessory to murder was proven beyond a reasonable doubt by the cumulative impact of the testimony and the rational inferences drawn therefrom. From all of the evidence the jury could reasonably have concluded that the defendant was guilty of accessory to murder.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides: “MURDER. (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .
      General Statutes § 53a-8 provides: “CRIMINAL LIABILITY FOR ACTS OF ANOTHER. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       Osborne testified that only ten seconds elapsed between the time the shooting stopped until the Mazda returned.

       Gordon testified that defendant was “very calm, like nothing had ever happened.”

       On cross-examination, Rovella admitted that this story was inconsistent with the report he made after the interview, in which he wrote that the defendant and his friend had decided to go to Springfield, but not that they actually had gone.

       The defendant argues in his reply brief that contrary inferences supporting his innocence may be drawn from the same evidence, namely: (1) that Daniels and Osborne were within walking distance of the crime scene when they set out on foot, and that Osborne believed they would have arrived promptly at their destination even if the defendant had not stopped; (2) that the defendant pulled over his car only after being “flagged down” by Daniels; and (3) that the Mazda driven by the defendant was a two-seater, with no back seat for passengers.


author: Peters, C. J.

text:
    State of Connecticut v. Mark Famiglietti
    (13991)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued May 29
    decision released July 23, 1991

      Wesley W. Horton, with whom were Jeffrey A. Hoberman and William A. Conti, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Corinne Klatt, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is the sufficiency of the evidence to sustain the conviction of the defendant, Mark Famiglietti, on a charge of having committed arson in the first degree in violation of General Statutes § 53a-lll (a) (2) and (4). After a jury trial that resulted in a verdict of guilty, the trial court denied the defendant’s motion for a judgment of acquittal and sentenced him to imprisonment for a term of twenty years, execution suspended after ten years, with five years probation. The defendant has appealed directly to this court pursuant to General Statutes § 51-199 (b) (3). We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. Valley Appliance, Inc., a retail household appliance store in Waterbury, was the scene of an intense, albeit short-lived, fire on December 10,1988. The store was a family business, having been owned by the defendant’s father until his death. At the time of the fire, the defendant’s mother was the president of the corporation that owned the business, while the defendant was its vice president and its day-to-day manager.

On the day of the fire, the defendant returned to the store at about 5:30 p.m. He unlocked the front door and entered the store to gather some papers. He saw no other person inside. In preparation for leaving for the evening, he called a Sonitrol operator at about 5:51 p.m. to initiate the store’s “intrusion detection” system. He “coded out” to a Sonitrol operator, who, recognizing the defendant by his voice and his code number, activated the security system. The system was designed to signal the defendant’s departure from the building by the activation of a red light indicator. During the interval before the red light indicator became activated, the Sonitrol operator heard sounds of someone moving around inside the store and “crackling” sounds that became “loud popping noises.” After taking further precautionary steps, including trying to reach the store by telephone, the operator called the responsible authorities at 6:06 p.m. to report a fire.

Upon their arrival at the store at 6:15 p.m., the firefighters found the building full of thick black smoke and an intensely hot fire. In about one hour, they succeeded in extinguishing the fire, which was limited to the building’s outer office area and a back furnace room. In fighting the fire, the firefighters were all exposed to the risk of backdrafts, explosions, and roof collapse, and two firefighters were actually injured.

A determination by the fire marshal that the fire had been deliberately set by the use of accelerants led to the defendant’s trial and conviction. After a trial in which the parties presented conflicting evidence about the cause of the fire and about the time of the defendant’s departure from the premises, the jury found the defendant guilty as charged.

The defendant has raised five issues in his appeal. Asserting that he is entitled to be acquitted of the charge of arson, he urges us: (1) to adopt a “substantial evidence” standard for appellate review of the sufficiency of the evidence; and (2) to find the evidence adduced at his trial to be insufficient to support his conviction. Asserting, alternatively, that he is entitled to a new trial, he claims that the proceedings against him were tainted by: (3) prosecutorial misconduct; (4) the jury’s receipt of an improper exhibit list; and (5) the court’s failure to give a unanimity charge with respect to subdivisions (2) and (4) of § 53a-lll (a). We are unpersuaded.

I

The defendant’s principal claims concern the sufficiency of the evidence to convict him of the charge of arson. To bolster his claim that the trial court should have granted his motion for acquittal, he contends that we should adopt a “substantial evidence” standard for appellate review. He also contends that, on any applicable standard, the evidence at trial did not establish beyond a reasonable doubt that he was guilty of the crime with which he had been charged.

A

This court has consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. “Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same. . . . We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991), and cases therein cited. The defendant urges us to reconsider this standard, on prudential or constitutional grounds, and to adopt instead a “substantial evidence” test of appellate review.

The defendant’s argument is predicated on the proposition that our existing standard for appellate review permits affirmance of a criminal conviction that rests on a quantum of evidence that can fairly be characterized as a “mere modicum” or “insubstantial.” We do not agree. As State v. Jarrett reiterates, we have undertaken independently to determine whether “the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” Id., 771. Consistently with that standard of review, we have on occasion found the evidence to be insufficient, as in State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990), on which the defendant relies. Contrary to his assertion, however, State v. Carpenter does not signal the de facto adoption of a new or different standard of appellate review, but illustrates the searching review of criminal convictions that this court presently undertakes in accordance with our existing standard. The scope of our appellate review is therefore consistent with the due process based warning in Jackson v. Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), that “a ‘modicum’ of evidence could [not] by itself rationally support a conviction beyond a reasonable doubt.”

B

We turn next to the defendant’s specific claims of evidentiary insufficiency. He contends that the state failed to establish, beyond a reasonable doubt, that: (1) the fire at the Valley Appliance store was intentionally set rather than accidental; (2) he was the person criminally responsible for its occurrence; or (3) firefighters at the scene were subjected to a substantial risk of injury. We disagree.

1

Whether the fire was incendiary or accidental in origin was an issue that was vigorously contested at trial. Extensive conflicting expert testimony was adduced by the state and the defendant.

For the state, the fire marshall based his opinion that accelerants had been used on inferences drawn from physical observations of the scene of the fire. He commented, inter alia, on the evidence of localized heavy damage near the floor level of the two rooms to which the fire was confined, noting that it was unusual in a fire of brief duration to have more intense heat near the floor rather than near the ceiling. He also remarked on the evidence of “V-patterns” of burn damage, at several places in the two rooms, which indicated that there was no single point of origin from which this fire spread to other areas. He concluded that the pattern of fire damage was not attributable to combustible materials falling from the ceiling because, according to tests done at the state laboratory, the ceiling material was not combustible. These physical manifestations led him to conclude that accelerants had been used even though samples of material from the burned area of the premises did not manifest any trace of flammable liquid. He explained that some types of accelerants would leave no traces: a flammable liquid with a low boiling point would evaporate in the intense heat of the fire; and a water-soluble liquid would be obliterated by firefighting hoses in the process of extinguishing the fire. In his view, the physical evidence ruled out accidental causes for the fire, including electrical malfunctioning. An electrical expert testified, as a rebuttal witness for the state, that the electrical service panel in the back furnace room did not manifest physical evidence of having undergone an explosion.

The defendant’s expert witnesses, on the other hand, concluded, on the basis of their investigation, that an electrical malfunction in an air conditioning-heating unit had caused a fire in the electrical service panel in the back furnace room which in turn had ignited combustible materials in that room and in the adjacent office room. They relied on physical evidence consisting, inter alia, of a molten and beaded piece of copper wiring in the electrical service panel and the carbonized condition of the electrical outlet for the air conditioner. They found evidence confirming their hypothesis in the electrical condition of a water meter on the premises and in the electrical plug for the air conditioner-heating unit. In their view, the charring on the floor resulted from falling ceiling materials that ignited as the fire spread and gained intensity.

On this state of the record, the jury as trier of fact had the difficult task of choosing which expert testimony to find credible. The defendant has not challenged the accuracy of the comprehensive instructions that the trial court gave the jury to assist it in this undertaking. It is reasonable to infer from the jury’s verdict that it rejected the expert testimony offered by the defendant and accepted that offered by the state. The jury was not bound by the opinion of any of the expert witnesses and could reject any or all of such testimony, regardless of whether it believed or disbelieved the subordinate facts on which the opinion was based. State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 7.16.6, p. 178. Once the state’s expert testimony was found credible by the jury, however, that evidence established beyond a reasonable doubt that the fire in this case was incendiary in origin. See State v. Silano, 204 Conn. 769, 785, 529 A.2d 1283 (1987); State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985).

2

The defendant also challenges the evidence that it was he who intentionally started the fire. Concededly, when the defendant arrived at the premises shortly before the fire, the store was locked and no one else was visible inside. The firefighters who arrived at the scene, approximately twenty minutes after the defendant’s departure, found the store locked and a smoky, intensely hot fire in progress. The Sonitrol operator to whom the defendant “coded out” at 5:51 p.m. testified that, in the time interval before the activation of a red light indicator showing that the building’s front door had been opened and closed, he had heard “crackling” sounds that became “loud popping noises.” This evidence, if the jury found it credible, established the defendant’s culpability beyond a reasonable doubt.

The defendant contends, however, that the jury could not reasonably have credited the Sonitrol operator’s testimony because of discrepancies between his trial testimony and a written incident report that he had prepared on the day of the fire. The operator’s testimony and his written report agree that the defendant had called Sonitrol to “code out” at 5:51 p.m. At trial, the operator testified that, minutes later, he had heard crackling noises and a door opening and that he had activated his tape to record what he was hearing at about 5:53 or 5:54 p.m. Only thereafter had he heard a door open and observed the red light indicator go on. When the security system then registered that it had become disconnected, he had unsuccessfully tried by telephone to reach someone at the store at about 5:54 or 5:55 p.m. After listening to the tape again, and consulting with another operator, he had concluded that there was a fire in progress, and had then called the fire department at approximately 6:06 p.m. The incident report that he then completed indicated, however, that 6:06 p.m. was the time when the fire started and the taping started. At that time, according to the defendant, he had already left the store and therefore could not have set the fire. Given the unlikelihood of having someone personally activate a security system just before committing arson, the defendant maintains that the evidence as a whole fails to establish beyond a reasonable doubt his involvement in the crime with which he was charged. We disagree.

In assessing the credibility of the Sonitrol operator, the jury might reasonably have assigned weight to the fact that he never wavered in his testimony that he had heard suspicious crackling sounds at the Valley Appliance store before the red light indicator signaled the defendant’s departure. That crucial aspect of his testimony was not impeached by the discrepancies about the precise time that these events occurred. Indeed, his testimony was buttressed by the tape of the incident that was before the jury. The jury might reasonably have accepted his explanation that the incident report reflected the time when he was filling out the report, rather than the time when the reported events had actually occurred. See, e.g., State v. Myers, 193 Conn. 457, 472-74, 479 A.2d 199 (1984).

Viewing the cumulative effect of the evidence as a whole, and giving due weight to all the considerations urged upon us by the defendant, we are persuaded that the state has established beyond a reasonable doubt that the defendant set the fire at the Valley Appliance store. Unlike State v. Osman, 218 Conn. 432, 589 A.2d 1227 (1991), in which we concluded that the identity of the perpetrator of a robbery had not been proven beyond a reasonable doubt, the record in this case contains direct evidence of the defendant’s presence at the premises shortly before the fire and of his continued presence there at a time when crackling sounds suggested that a fire had been started. The jury might have determined beyond a reasonable doubt that no one other than the defendant had the opportunity to start the fire. See State v. Jordan, 136 Conn. 201, 204, 69 A.2d 834 (1949). The state did not have to establish a motive for the arson. State v. Ruffin, 206 Conn. 678, 681, 539 A.2d 144 (1988); State v. Pisano, 107 Conn. 630, 632, 141 A. 660 (1928). The trial court, in denying the defendant’s motion for acquittal, not only concurred in the jury’s verdict but characterized the evidence against the defendant as “overwhelming.” Accordingly, we reject the defendant’s contention that the evidence was legally insufficient to implicate him in the crime.

3

The defendant’s final challenge to the sufficiency of the evidence focuses on the requirement of § 53a-lll (a) (4) that the state prove, beyond a reasonable doubt, that “at the scene of such fire or explosion, a peace officer or firefighter is subjected to a substantial risk of bodily injury.” The defendant maintains that the state failed to prove that the fire at the Valley Appliance store posed a “substantial risk of bodily injury.”

This claim need not long detain us. The statute requires proof of a risk of substantial injury, not serious injury in fact. Cf. State v. Moye, 199 Conn. 389, 398-99, 507 A.2d 1001 (1986); State v. Parmalee, supra, 161-62 (construing substantially similar language in General Statutes § 53a-112). The fortunate fact that the two firefighters who were injured at the scene suffered minor rather than major harm is therefore not dispositive. As the state notes, the jury heard testimony that the firefighters had encountered such thick smoke and such intense heat that they had to wear breathing apparatus and to crawl toward the flames that they sought to extinguish. They had been exposed to the risk of backdrafts, explosion and roof collapse. As in State v. Silano, supra, this evidence was sufficient for the jury, properly instructed, to find beyond a reasonable doubt that the firefighters were exposed to a risk of substantial injury.

II

The defendant urges us to hold that, even if he is not entitled to an acquittal, he is nonetheless entitled to a new trial because of fundamental unfairness in the conduct of his trial. He maintains that the trial court should have: (1) granted his motion for mistrial on the ground of prosecutorial misconduct; (2) granted his motion for mistrial on the ground of the clerk’s inadvertent submission of an improper exhibit list to the jury; and (3) instructed the jury more explicitly on the need for unanimity in its verdict. We disagree.

In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion. State v. Marra, 215 Conn. 716, 732, 579 A.2d 9 (1990); State v. Cruz, 212 Conn. 351, 364, 562 A.2d 1071 (1989); State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

The defendant’s claim of prosecutorial misconduct rests on the efforts by the prosecutor to establish, through evidence about the terms of an insurance policy, that the defendant had an ownership interest in the Valley Appliance store. In cross-examining the defendant, the prosecutor first attempted to impeach him on the basis of inconsistencies between his statements on the stand and in a deposition to the insurance company with regard to the fire. The trial court, finding no inconsistency, sustained the defendant’s objection to this line of questioning but denied his motion for a mistrial. The prosecutor later returned to the insurance arena by asking the defendant whether he was named as an owner on an insurance policy covering the store. The trial court again sustained the defendant’s objection but refused to grant his motion for a mistrial.

The trial court’s refusal to grant either of these motions for a mistrial did not constitute an abuse of discretion. In ruling against the prosecutor’s initial line of questioning, the court addressed the lack of demonstrated inconsistency between the deposition and the defendant’s testimony, rather than the subject of insurance itself. When the prosecutor then asked for further guidance, the court indicated its preference for ruling on particular questions as they arose. In these circumstances, the prosecutor’s further inquiry into insurance did not, as the defendant maintains, violate a specific earlier court ruling. Furthermore, the issue of insurance was tangential at best to the issues on which the parties focused their attention at trial, namely, the cause of the fire and the defendant’s presence on the premises at the relevant time.

We likewise conclude that the trial court did not abuse its discretion in failing to grant a motion for a mistrial because of the cleric’s inadvertent submission of a list of exhibits to the jury just as the jury began its deliberations. The exhibit list included a reference to “bankruptcy papers,” an exhibit that had been marked at trial for identification only, the trial court having refused to admit it as a full exhibit. The excluded exhibit was not itself submitted to the jury. Furthermore, the trial court immediately instructed the jury to disregard the exhibit list in its entirety. In light of the fact that testimony at trial had informed the jury that bankruptcy papers had been found on a desk in the Valley Appliance store on the night of the fire, we concur in the trial court’s judgment that a curative instruction was all that was required in the circumstances. Viewing the circumstances as a whole, and mindful of the presumption that the jury heeds the instructions it receives from the trial court; State v. Jennings, 216 Conn. 647, 664, 583 A.2d 915 (1990); State v. Gabriel, 192 Conn. 405, 416, 473 A.2d 300 (1984); we conclude that the clerk’s inadvertence was not so prejudicial as to require a new trial.

The defendant’s final contention is that he is entitled to a new trial because the trial court, in instructing the jury on the elements of first degree arson, did not expressly tell the jury that it had to be unanimous in finding the defendant guilty under either § 53a-lll (a) (2) or § 53a-lll (a) (4). At a charge conference prior to the delivery of the instructions to the jury, in the absence of a relevant request to charge by the defendant, the state raised the question of a unanimity instruction. The court replied by indicating that it would charge each of the alternative bases for conviction in its entirety, so that the jury “would have to be unanimous in [its] verdict in the alternative.” The defendant, by his silence, acquiesced in this proposed method of charging the jury. When the court accordingly charged the jury that the state had to prove either injury to “any other person”; § 53a-lll (a) (2); or “substantial risk of personal injury” to a firefighter; § 53a-lll (a) (4); the defendant took no exception. The court’s subsequent final charge included a general unanimity instruction but did not specifically relate this requirement to the alternative elements of the crime with which the defendant had been charged.

The state urges us not to reach the merits of the defendant’s disagreement with the charge on the alternate grounds on which he might have been convicted. The state maintains that this claim, which concededly was unpreserved at trial, is not truly of constitutional magnitude. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We have, however, held to the contrary. A claim bearing on the defendant’s right to a unanimous verdict implicates a fundamental constitutional right to a fair trial and is thus reviewable despite the defendant’s failure to request a specific unanimity charge or to take proper exceptions. State v. Smith, 212 Conn. 593, 604, 563 A.2d 671 (1989); State v. Suggs, 209 Conn. 733, 760, 553 A.2d 1110 (1989); and see State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986).

On the merits, we have not required a specific unanimity charge to be given in every case in which criminal liability may be premised on the violation of one of several alternative subsections of a statute. We have instead invoked a multipartite test to review a trial court’s omission of such an instruction. We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter. Even if the instructions at trial can be read to have sanctioned such a nonunanimous verdict, however, we will remand for a new trial only if (1) there is a conceptual distinction between the alternative acts with which the defendant has been charged, and (2) the state has presented evidence to support each alternative act with which the defendant has been charged. State v. Jennings, supra, 662-63; State v. Bailey, 209 Conn. 322, 334, 551 A.2d 1206 (1988); see also Schad v. Arizona, 501 U.S. , 111 S. Ct. 2491, 2496-2504, 115 L. Ed. 2d 555 (1991).

In this case, the defendant has not sustained his burden of showing that a unanimity charge was required. He has failed to articulate how the instructions as given demonstrate that the trial court sanctioned a nonunanimous verdict. Even if that hurdle could be surmounted, he has also failed to demonstrate how the evidence that the state presented manifested a conceptual distinction between direct injury and a substantial risk of injury to the firefighters on the scene.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-lll. arson in the first degree: class a felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (S) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant fire; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of personal injury.
      “(b) Arson in the first degree is a class A felony.”

       In the circumstances of this case, we decline to consider the defendant’s contention that we need to decide what evidence would suffice to sustain a conviction for arson in the second degree under General Statutes § 53a-112, with which the defendant was not charged. The defendant has not alleged any improper basis for the prosecutorial decision to charge him with having committed arson in the first degree.

       The defendant also maintains that the trial court’s failure to give the jury a curative instruction requires us to overturn the court’s denial of the motion for mistrial. The court was not obligated to give such an instruction where the question had not been answered; State v. Hafner, 168 Conn. 230, 252, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975); especially without a further request by the defendant at the appropriate time. State v. Malley, 167 Conn. 379, 386, 355 A.2d 292 (1974). In the absence of a request, the court might reasonably have concluded that the defendant would have been more prejudiced than assisted by having the issue of insurance expressly revisited, even if only to exclude it from further consideration by the jury. The court repeatedly instructed the jury, furthermore, not to consider questions that the court had excluded on legal grounds.