author: Glass, J.

text:
    State of Connecticut v. Mark Allen
    (13729)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.

      Argued June 6—
    decision released August 21, 1990

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, said Ashley Wille, law student intern, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Glass, J.

The defendant, Mark Allen, was charged with the crimes of felony murder in violation of General Statutes § 53a-54c, burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (l). After a jury trial, the defendant was found guilty of all charges, and on May 19, 1989, was sentenced to a total effective sentence of forty years. He appeals the judgment of conviction.

On appeal, the defendant argues: (1) that the trial court should have excused a juror who recognized the victim’s former wife; (2) that the court did not adequately explain the element of “remaining unlawfully” for the offenses of burglary in the first degree and felony murder with burglary as its predicate felony; (3) that the court should have required the prosecution to prove beyond a reasonable doubt that the defendant “entered or remained unlawfully” on the premises as required to support the charges of burglary in the first degree and the alternative form of felony murder based on burglary as the underlying felony; (4) that the court improperly instructed the jury on the requirements of felony murder by (a) including accessory liability under General Statutes § 53a-8 in its instructions on felony murder, and (b) refusing to instruct in accordance with the defendant’s requests to charge numbered eight and nine regarding the limits of liability and the “in furtherance” requirement of the charge of felony murder; and (5) that the court should not have instructed the jury on an unsupported theory of liability for the charges of robbery in the first degree and felony murder with robbery as its predicate felony. We affirm the judgment of the trial court.

The following evidence was presented at trial. In July, 1987, the victim, Theodore G, lived at a condominium complex in Branford. He owned a 1985 navy blue Chevrolet Celebrity. He was divorced from his wife, and lived alone. The victim engaged in homosexual activity, and he and David Mooney, who had a history of “hustling” homosexual men, were at some point involved in a relationship. On occasion, Mooney and the victim had been observed together outside Partners, a gay club in New Haven, as well as at the victim’s place of employment and his condominium.

The victim was last seen alive between 6:30 and 7 p.m. on Wednesday, July 29,1987, by a security guard who was working at a beach near the victim’s condominium. Family members of the victim entered his condominium at approximately 9:30 a.m. on Friday, July 31,1987. The family members found the front door unlocked and no signs of forced entry, and nothing appeared out of the ordinary on the first floor. They then discovered the victim’s naked body on the floor in the master bedroom upstairs. In reporting their observations to the police, the family also stated that the victim’s automobile was missing, and that a large amount of coins, which the victim had accumulated, was also missing.

On August 5, 1987, the Branford and New Haven police observed the defendant driving a blue car matching the description of the victim’s car, but bearing a different registration plate. Upon questioning, the defendant stated that the car belonged to his brother who had rented it. The police, however, determined that the vehicle belonged to the victim, and the defendant was then arrested. At trial, the state introduced four taped statements given by the defendant to the police during the course of the evening and early morning of his arrest. These statements were given at 9:37 p.m., 12:20 a.m., 3:40 a.m. and 4:40 a.m.

The defendant first stated that Mooney, his accomplice, had owed him $3200 for some drugs. Specifically, the defendant explained that on the afternoon of July 30,1987, Mooney had offered him a bank bag full of rolled quarters, and that he and Mooney had changed the quarters into bills at a check cashing facility, where Mooney had given him $240 in cash from the quarters. Later that evening, Mooney told the defendant that he would give him a television to pay off more of the debt. When the defendant met Mooney the next day to receive the television, Mooney did not have it, but he offered the defendant the blue car as collateral. He also told the defendant that he did have a television for him and, with the defendant driving the blue car, they left to get the television. While the defendant drove, Mooney tried to open a metal box that he thought might contain money. When he saw that it contained only papers, Mooney threw the box in a dumpster at Ken-sington Square, and ran away, leaving the defendant with the car.

In his second statement, the defendant added that Mooney told him that he had made a “score,” that he had somebody he called “Theo” tied up, and that that was how he had gotten the coins. The defendant stated that Mooney told him that the television that he had planned to give the defendant was from Theo’s house. The defendant also stated that he had helped Mooney sell a VCR to a person named Eric Daniels.

In his third statement, the defendant admitted that he actually drove Mooney to the victim’s condominium in the victim’s car on the evening of July 30,1987. The defendant claimed that Mooney had explained to him that he used to date the owner of the condominium. When they arrived at the condominium, the victim was upstairs in the master bedroom, naked, tied up and gagged. The defendant stated that he and Mooney took a VCR, some coins and a box from upstairs. As Mooney went through closets and drawers in both bedrooms, the defendant stated that the victim was “looking to me like help me.” The defendant said that he had not touched the victim, but that Mooney had “smacked him.” Mooney also told the victim to shut up or he would kill him. The defendant stated, however, that the victim had been alive when he left the condominium, and that Mooney never told him that he had killed the victim, although he did say that he was coming back to the condominium to party.

In his fourth statement, the defendant stated that he had taken the VCR when he and Mooney entered the condominium. They then went upstairs where the victim was tied up and making a lot of noise. The defendant stated that Mooney said that he had to shut the victim up. Mooney then began choking him with a cord and the defendant watched for two to five seconds. The defendant stated that he did not know if Mooney untied the victim after he finished choking him because he left the condominium and went outside to sit in the car. After a while, he went back to the door of the condominium and told Mooney to come on. When Mooney came down, he had fresh bleeding scratches on his back. Mooney took off his shirt, threw it into a bedroom and put on a blue shirt. The defendant stated that Mooney said that the victim would not stop scratching him, and that the victim had passed out.

The next morning the defendant also told the police that, if they looked in the woods behind the International House of Pancakes parking lot in Hamden, they would find the registration plate of the victim’s car and a pair of bloody pants. The defendant also assisted the police in recovering the VCR from Daniels. Additionally, the prosecution introduced the testimony of another incarcerated prisoner, who testified that, while he was in a holding cell with the defendant, the defendant told him that he had strangled the victim to death when the victim had entered the condominium and caught him and Mooney stealing items.

At trial, the defendant testified that he had driven Mooney to the victim’s condominium to get a television to repay part of the money that Mooney had owed him for the drugs. He saw a VCR downstairs and, since the television was old, he decided to take the VCR instead. He then joined Mooney upstairs, and saw the victim on the bed, naked and loosely tied while Mooney was poking him in a playful manner. He testified that he knew that Mooney had a sexual relationship with the victim, and, not wanting to get involved in that type of activity, he left. The defendant then picked up the VCR, left the condominium, and waited for Mooney in the car. Mooney came out in about fifteen minutes, and they both drove away. The defendant also presented testimony from the victim’s former wife. She testified that the victim had been engaged in homosexual activity since the early 1970s.

I

The defendant claims that the trial court should have granted his request to excuse a juror for cause when the juror acknowledged that she recognized the victim’s former wife, who ultimately became a witness for the defense. Moreover, the defendant argues that the court should not have concluded that, absent disqualification for cause, it lacked the authority to excuse the juror and substitute an alternate. The following additional facts serve as the basis for this claim.

On the second day of trial, the clerk informed the court that a juror had indicated to him that on the first day of trial she believed that she recognized someone who was seated in the courtroom “and inquired as to whether or not that person was the former wife of the victim . . . .” The court, with counsel in agreement, conducted a voir dire of the juror that revealed that she and the woman she recognized worked in the same building. The juror stated: “In the morning, as I go in, sometimes she is going up with me and I say ‘good morning and how are you.’ That is all. I don’t know her name or who she is.” The juror was, at that time, unaware of any connection between the woman she recognized and the case, but assumed that she might be a member of the victim’s family. The court then asked the following questions to determine whether her recognition of this woman would adversely affect her ability to serve on the jury:

“The Court: You have made some sort of an assumption that she was someone connected with the family?
“Juror: I would imagine.
“The Court: Be that as it may, would that, in any way, affect your ability to leave sympathy out of the case?
“Juror: No.
“The Court: It would not affect you at all?
“Juror: No.
“The Court: In other words, you would still be able to function as a juror?
“Juror: Yes.
“The Court: All right. It is not necessary if you know who that person is or is not, and that person may be in this courtroom during the course of the trial, would you be uncomfortable in any way or feel a little concerned about the fact that if you should make a ruling in this matter or make a determination in this matter, that you think might be contrary to the way she would want you to do it, that might cause you some concern when you go back to work?
“Juror: I don’t think so.
“The Court: All right. Have you discussed this situation with the other jurors?
“Juror: No.
“The Court: You have not?
“Juror: No.
“The Court: Fine. Counsel want to ask any questions?
“[State’s Attorney]: No, your Honor.
“[Defense Counsel]: No, Judge.”

Defense counsel, however, expressing concern about possible contact between the juror and the victim’s former wife after the completion of the case, then requested that the court excuse the juror. He also asserted that if he had known at voir dire the information disclosed by the inquiry, he would have peremptorily excused the juror. The court stated that it did not disagree with defense counsel’s representation that he would have excused the juror had the information elicited by the court’s inquiry been known at voir dire. Nonetheless, the court determined that, if the information elicited during the inquiry had been disclosed to the court at voir dire, the court would not have excused the juror for cause. The court stated further that once the jury is selected the only reason the court would excuse a juror would be for cause and, since the court could not find cause to excuse this juror, the court therefore denied defense counsel’s request. The defendant contends that the trial court improperly denied his request. We disagree.

The state argues, and the defendant concedes, that the defendant’s claim that the trial court improperly concluded that, absent disqualification for cause, it lacked the authority to excuse the juror is unpreserved. The claim, therefore, would not ordinarily be reviewable. It requires no elaboration, however, to recognize that it is settled law under the federal and state constitutions that the right to an “impartial jury” is a fundamental constitutional right and is one of the exceptions recognized in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Accordingly, because of the particular factual basis of this claim, and its potential impact on the defendant’s right to an impartial jury, we will review the claim.

“ ‘ “[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).’ State v. Ziel, 197 Conn. 60, 64, 495 A.2d 1050 (1985); see Murphy v. Florida, 421 U.S. 794, 799, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). ‘ “Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the [constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” ’ Irvin v. Dowd, supra, 724-25, quoting United States v. Wood, 299 U.S. 123, 145-46, 57 S. Ct. 177, 81 L. Ed. 78 (1936). The trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion. United States v. Tegzes, 715 F.2d 505, 509 (11th Cir. 1983); United States v. Carlin, 698 F.2d 1133, 1135 (11th Cir.), reh. denied, 705 F.2d 471, cert. denied, 461 U.S. 958, 103 S. Ct. 2431, 77 L. Ed. 2d 1317 (1983); United States v. Sears, 663 F.2d 896, 900 (9th Cir. 1981), cert. denied sub nom. Werner v. United States, 455 U.S. 1027, 102 S. Ct. 1731, 72 L. Ed. 2d 148 (1982); State v. Ziel, supra. In exercising this discretion the trial court must zealously protect the rights of the accused. Wainwright v. Witt, 469 U.S. 412, 429-30, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985).” State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987). This court has stated, however, that “ ‘ “[t]o succeed on a claim of bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact.” State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983); State v. Bowen, 167 Conn. 526, 532, 356 A.2d 162 (1975).’ State v. Ziel, supra, 65; see also Dennis v. United States, 339 U.S. 162, 168, 70 S. Ct. 519, 94 L. Ed. 734, reh. denied, 339 U.S. 950, 70 S. Ct. 799, 94 L. Ed. 1364 (1950).” State v. Cubano, supra, 89. “In challenging the competency of [a] juror to remain on the panel it [is] the defendant’s burden to prove actual bias on behalf of the juror. See State v. Ziel, supra; State v. Bowen, supra, 532.” State v. Cubano, supra, 90.

The defendant claims that the trial court should not have concluded that it could only have excused the juror for cause. Specifically, the defendant argues that General Statutes § 54-82h (c) mandates that the trial court could have excused the juror absent cause. We disagree. Section 54-82h (c) states, in pertinent part, “[i]f, at any time, any juror shall, for any reason, become unable to perform his duty, the court may excuse him. . . .” Thus, § 54-82h (c) expressly premises the trial court’s power to excuse a juror on its finding that the juror had “become unable to perform his duty.” This is a finding of cause. Thus, the trial court correctly concluded that it could have excused the juror only upon a finding of cause.

As for the merits of the defendant’s claim concerning the trial court’s refusal to excuse the juror, defense counsel’s expressed concern was about the juror’s contact with the victim’s former wife after the completion of the case. The following facts, however, indicate that the defendant has not met his burden of proving bias on behalf of the juror and abuse of discretion on the part of the trial court regarding its conclusion that the juror was still able to perform her duty: (1) the juror did not know the former wife; (2) the juror’s only contact with the former wife was an occasional encounter as they entered the same building in the morning; and (3) the juror maintained to the trial court that she could remain impartial and still function as a juror. In addition, the fact that the former wife became a defense witness who testified as to the victim’s homosexual activity does not alter this conclusion. The defense called the former wife to the stand; thus, if anything, an argument can be made that the former wife was called in support of the defendant. Accordingly, we find no merit to the defendant’s claim.

II

The defendant next claims that the trial court did not adequately explain in its charge the element of “remaining unlawfully” pursuant to General Statutes § 53a-100 (b) for the offenses of burglary in the first degree and felony murder with burglary as its predicate felony. The defendant also challenges the sufficiency of the state’s evidence regarding the element of “entering or remaining unlawfully.” See General Statutes § 53a-100 (b). We first consider the defendant’s sufficiency of the evidence claim.

A

For the state to prove burglary it must establish that the defendant “entered or remained unlawfully” in the victim’s home. “ ‘A person “enters or remains unlawfully” in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.’ (Emphasis [omitted].) General Statutes § 53a-100 (b). ... ‘A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein.’ (Emphasis added.) 25 Am. Jur. 2d, Easements and Licenses § 123. Generally, a license to enter premises is revocable at any time by the licensor. Id., § 128. It is exercisable only within the scope of the consent given. [Emphasis added.] Miller v. Grossman Shoes, Inc., [186 Conn. 229, 237, 440 A.2d 302 (1982)]. . . . The phrase, ‘licensed or privileged,’ as used in General Statutes § 53a-100 (b) is meant as a unitary phrase, rather than as a reference to two separate concepts.” State v. Grant, 6 Conn. App. 24, 29-30, 502 A.2d 945 (1986).

The defendant argues that the state failed to prove beyond a reasonable doubt that he entered or remained in the victim’s condominium without license or privilege to do so. “ ‘Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict. State v. Williams, 205 Conn. 456, 468, 534 A.2d 230 (1987); State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984); State v. D’Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982); State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981). “ ‘ “We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” ’ ” State v. Plourde, 208 Conn. 455, 458, 545 A.2d 1071 (1988), quoting State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987), and cases cited therein.’ State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).” State v. Anderson, 212 Conn. 31, 44, 561 A.2d 897 (1989).

The state presented to the jury several statements of the defendant, his confession to a cellmate, and various exhibits. Additionally, the jury had for consideration the defendant’s own testimony and the testimony of others that the defense presented. Particularly significant and relevant to whether the defendant entered or remained in the victim’s condominium unlawfully was the defendant’s second taped statement to the police where, inter alia, he stated that Mooney told him that he had made a “score,” and that he had somebody he called “Theo” tied up so that he could not contact anyone. In his third statement, the defendant stated his purpose for going with Mooney to the victim’s home: “We took the VCR. I say we, I mean Mooney took the VCR. I was there to get what he owed me. If he was going to steal it from this guy, I didn’t care, I just wanted what was mine.” When the parties arrived at the victim’s home, the defendant stated that Mooney opened the door with a key, but after they entered the house and went upstairs the defendant saw the victim naked on the floor, gagged and tied up with a cord. The defendant stated that “[the victim] was looking to me like help me.”

It is the defendant’s contention, however, that Mooney entered the premises with the permission of the victim or with a key provided by the victim. The defendant argues further that, since he entered the premises with Mooney’s permission, and neither the victim nor Mooney ever ordered him off of the premises, he was not unlawfully on the premises and, therefore, cannot be guilty of burglary. First, this argument assumes that Mooney had the house key with the victim’s permission. The jury, however, was not compelled to accept that contention. Moreover, this argument is weakened by the defendant’s own statements. In particular, the defendant stated that, when he saw the victim tied up, gagged, and naked on the floor, the victim looked at him as if he were asking for help. The defendant also stated that the victim was making a lot of noise so Mooney had to “shut him up.” Moreover, the defendant stated that he watched Mooney choke the victim with an extension cord for about two to five seconds. Therefore, even if the defendant initially entered the victim’s condominium lawfully, it is clear that “consent to remain was implicitly withdrawn and thus that the [defendant] ‘unlawfully remained’ within the meaning of the statute.” State v. Reyes, 19 Conn. App. 179, 193, 562 A.2d 27 (1989).

B

The defendant also argues that the trial court did not properly explain in its charge to the jury the element of “remaining unlawfully” for the offenses of burglary in the first degree and felony murder with burglary as its predicate felony. Specifically, the trial court, in detailing the elements of burglary for the jury, made the following statement concerning the state’s position on “remaining unlawfully” as it applied to the case: “[E]ven if [the defendant] believed that Mooney had the right to invite him in, at the least, once he observed the predicament of [the victim] as the defendant’s own testimony revealed, then his remaining from that position—from that time on became without license and became unlawful. That is the State’s position as I gather it from the presentation of evidence and you are to deal with that as you see fit.” The defendant argues that these comments by the trial court improperly instructed the jury regarding the element of “remaining unlawfully.” We disagree.

Because there was no exception taken to the trial court’s instruction on this point, we must first determine if the defendant’s claim is reviewable under State v. Evans, supra, 70, and State v. Golding, supra, 239-40. Since “ ‘the failure to instruct the jury adequately on each essential element of the crime charged may have resulted in a violation of the defendant’s due process rights implicating the fairness of his trial . . . ’ State v. Anderson, supra, 36, quoting State v. Foster, 202 Conn. 520, 537, 522 A.2d 277 (1987); we will review the defendant’s claim.

“It is, of course, constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” (State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988); see In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). We do not, however, conclude that the trial court’s instruction was improper. In paraphrasing the state’s position, the trial court simply explained to the jury that it could find that, even if the defendant had initially entered the victim’s condominium lawfully, consent to remain could be implicitly withdrawn.

The defendant maintains that State v. Thomas, 210 Conn. 199, 554 A.2d 1048 (1989), holds to the contrary. The defendant’s reliance on Thomas, however, is misplaced. In Thomas, we held that, when premises are “open to the public,” a defendant does not lose his status as a member of the public by manifesting a criminal intent. Id., 207. Thus, the holding of Thomas does not apply to a private dwelling that requires the continued consent of its occupant. See State v. Grant, supra, 31. Moreover, we stated in Thomas that the purpose of the definition of “enters or remains unlawfully” under § 53a-100 was “ ‘to make clear that only the kind of entry or remaining which is likely to terrorize occupants is prohibited by the crime of burglary. Thus, when the building is, at the time, open to the public, or the actor is otherwise licensed or privileged to be there, the element of terror is missing and the requirement is not met. This does not mean, however, that an initial lawful entry followed by an unlawful remaining would be excused. For example, A enters an office building during business hours—a lawful entry since the building is open to the public—and remains, perhaps hidden, after the building is closed, with intent to steal. A is guilty of burglary.’ (Emphasis [omitted].) Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969) pp. 52-53.” State v. Thomas, supra, 207-208. In addition, in State v. Reyes, supra, 192-93, the Appellate Court held that “[e]vidence that a defendant subsequently pointed a gun at one who had the right to admit him to the premises, and did admit him to the premises, clearly can form the basis for the inference that consent to remain was implicitly withdrawn and thus that the individual ‘unlawfully remained’ within the meaning of the statute.”

Therefore, it is clear that the element of terror was present in the instant case. Just as pointing a gun in Reyes implicitly withdrew consent to remain, seeing the victim naked, gagged, and tied up on the floor, and seeing Mooney threaten, strike and choke the victim while the victim, in terror, looked for help, all clearly indicated to the defendant that, even if there were consent for his initially entering the condominium, it had been withdrawn.

III

The defendant also claims that the trial court improperly instructed the jury on the requirements of felony murder: (a) by including accessory liability under § 53a-8 in its instructions on felony murder; and (b) by refusing the defendant’s requests to charge numbered eight and nine regarding the limits of liability and the “in furtherance” requirement of the charge of felony murder.

A

The defendant argues that the trial court should not have included the statutory principles of accessory liability under § 53a-8 in connection with its instructions on felony murder because the felony murder statute incorporates the principles of accessory liability applicable to the charge of felony murder. The defendant concedes that he took no exception to the accessory instruction. Nonetheless, he argues that the claim is reviewable because the accessory liability instructions violated his due process rights and implicated his right to a fair trial. Although we reviewed an identical claim in State v. Simms, 201 Conn. 395, 415, 518 A.2d 35 (1986), we concluded in Simms that such a claim did not rise to the level of a constitutional violation. In particular, we stated that “[w]e fail[ed] to see how the trial court’s reference to the accessory statute unduly expanded the scope of criminal liability imposed under [the felony murder statute].” Id., 417. Thus, having found in Simms that the trial court’s reference to accessory liability under § 53a-8 in its instruction on felony murder did not rise to the level of constitutional magnitude, the defendant’s unpreserved claim does not satisfy the second prong of State v. Golding, supra, 239, and therefore is not reviewable on appeal.

B

The defendant also contends that the trial court improperly refused to charge on his requests numbered eight and nine. These requests dealt with a murder for personal motive and a murder committed during the felony but in a separate and distinct act to satisfy one participant’s own end. We are not persuaded by the defendant’s contention.

“A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. State v. Gabriel, 192 Conn. 405, 418, 473 A.2d 300 (1984); State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980).” State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). “This court has often repeated that ‘ “ ‘ “[a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.” ’ ” ’ State v. Estep, 186 Conn. 648, 651, 443 A.2d 483 (1982); State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933). In reviewing a challenge to a portion of the jury instructions, the proper test is ‘whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.’ State v. Estep, supra, 652.” State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985).

When the charge in the present case is viewed as a whole, it is clear that, although the trial court did not use the exact language of the defendant’s requests numbered eight and nine, their substance was indeed included in the charge. Specifically, the trial court instructed: “[T]he State . . . would have to prove that the death of [the victim] was caused by [the defendant] or Mr. Mooney in the course of, and in furtherance of the crimes of either burglary or robbery. The phrase ‘in furtherance of such crime’ imposes the requirement of a logical nexus, that is a connection between the felony and the homicide. The connection between the underlying felony and homicide must be more than the mere coincidence of time and place. The nexus or connection must be one of logic or plan. This means that the felony murder statute excludes those deaths which are so far outside the plan of the felony and its execution as to be unrelated to that. In other words, a felony murder does not include any killing incidentally committed with the felony but only includes those felonies in the attempted execution of the felony of burglary and robbery. Although the homicide itself need not be in the common design, the act which results in death must be in furtherance of the unlawful purpose. In other words, [the victim’s] death must have been caused in furtherance of committing the burglary or robbery and not merely incidental to it.” We conclude that the trial court’s charge adequately instructed the jury on the requirement of a logical nexus between the felony and the homicide. Therefore, the defendant’s claim is without merit.

IV

Finally, the defendant argues that the trial court should not have instructed the jury on both alternative acts of robbery set forth in General Statutes § 53a-133 because there was insufficient evidence to establish that the victim was forced to “deliver up” any of his belongings as required for the second alternative, § 53a-133 (2). First, it must be noted that the defendant did not except to the trial court’s instruction on § 53a-133 (2). “Our holding in State v. Williams, 202 Conn. 349, 362-63, 521 A.2d 150 (1987), however, makes clear that a claim that the jury was presented with alternative forms of committing the offense for which there is no evidence or insufficient evidence is reviewable under State v. Evans, supra, 70, because it implicates a defendant’s fundamental right to be convicted only upon proof beyond a reasonable doubt.” State v. John, 210 Conn. 652, 687, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

“This court has stated that ‘[w]here a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.’ State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983); State v. Thompson, 197 Conn. 67, 79, 495 A.2d 1054 (1985).” State v. John, supra, 687-88. The trial court instructed the jury pursuant to § 53a-133 (2) that a person commits robbery if “the threatened use of physical force was to compel the owner of such property or another person to deliver up the property, or to engage in other conduct which aids in the commission of the larceny.” The defendant claims that there was insufficient evidence to support an instruction on § 53a-133 (2) in this case. We disagree.

In State v. John, supra, 687-89, the defendants raised this precise issue. In John, the defendants were convicted of felony murder, with robbery as the predicate felony, as the result of beating the victim to death. Id., 654. The evidence indicated that the victim had been struck by a brick near the front of his house and then dragged by his feet to the rear where his body was discovered. His car keys and his car were later determined to be missing. Id., 658. While instructing on the elements of robbery, the trial court in John read both subsections of § 53a-133. This court then rejected the defendants’ claim that there was insufficient evidence to warrant an instruction on subsection two. Specifically, this court stated: “From this evidence [of a struggle], the jury reasonably could have concluded that the defendants used this force to compel the victim to ‘deliver up’ the keys to his car, and having so failed, they ‘[overcame his] resistance to the taking of [his] property.’ ” Id., 688.

In the present case, the jury could have reasonably concluded that the force that was applied to the vie-tim, i.e., tying him up, striking him, and choking him, was applied, at least in part, to force him to divulge the location of valuables.

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54c. FELONY murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
      “[General Statutes] Sec. 53a-101. burglary in the first degree: class B FELONY, (a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”
      “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime . . . .”

       “[General Statutes] Sec. 53a-8. 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.”

       The defendant also maintains that, under the circumstances of this case, where the cause for concern regarding the juror was not known during voir dire, he should have been permitted to exercise his remaining peremptory challenge once the information had come to light. We know of no authority for the revival at trial of peremptory challenges and therefore reject this argument.

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

       “[General Statutes] See. 53a-100. definitions, (a) The following definitions are applicable to this part: (1) ‘Building’ in addition to its ordinary-meaning, includes any watercraft, aircraft, trailer, sleeping car, railroad car, other structure or vehicle or any building with a valid certificate of occupancy. Where a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building; (2) ‘dwelling’ means a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present; (3) ‘night’ means the period between thirty minutes after sunset and thirty minutes before sunrise.
      “(b) The following definition is applicable to sections 53a-101 to 53a-106, inclusive: A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.”

       The defendant also argues that consent to remain cannot be withdrawn implicitly. We address his contention in Part II B, infra.

       The defendant attempts to distinguish State v. Simms, 201 Conn. 395, 518 A.2d 35 (1986), by arguing that this court in Simms held that the trial court’s use of the language from General Statutes § 53a-8 was proper only with respect to its being used to explain further the scope of the “in furtherance” requirement of the felony murder statute. The defendant ignores, however, the fact that this court clearly made reference to the fact that the trial court also “elaborated upon the words ‘other participants’ by express reference to the accessory statute, General Statutes § 53a-8.” Id., 417.

       The defendant’s requests to charge numbered eight and nine are as follows: “8. A murder for personal motive is an example of a death that is so far outside the ambit of the plan of the felony and its execution as to be unrelated to them. A murder for personal motive, then, is not a death ‘in furtherance of’ the underlying felony. People vs. Lewis, [111 Misc. 2d 682,] 444 N.Y.S.2d 1003 (1981). The following facts, supported by the evidence, are facts to which this proposition would apply: the victim was a homosexual male since the mid 1970’s; the victim and David Mooney had been seen in each other’s company several times and apparently had a relationship with one another; David Mooney engaged in homosexual acts with other males; David Mooney ‘hustled’ other males and stole from them; David Mooney was a drug addict; it is reasonable to infer that David Mooney caused the death of Theodore [G] not in furtherance of any felony but rather for a motive or purpose that was peculiar to and related to the relationship between the victim and David Mooney.
      “9. Similarly, where a felon kills someone during the commission of a felony, but in a separate and distinct act and to satisfy his own end, his accomplice in the felony is not guilty of murder. People vs. Wood, [8 N.Y.2d 48, 167 N.E.2d 734,] 201 N.Y.S.2d 328 (1960).”

       “[General Statutes] Sec. 53a-133. robbery defined. A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    The Travelers Insurance Company v. Michael Kulla, Administrator (Estate of Robert Kulla)
    (13885)
    Shea, Callahan, Covello, Hull and Borden, Js.
    Argued June 7—
    decision released August 21, 1990

      William F. Gallagher, with whom were Cynthia C. Bott and, on the brief, Wilson J. Trombley and Dan Shaban, for the appellant (defendant).

      Scott B. Clendaniel, with whom were John D. Palermo and, on the brief, Geoffrey Naab, for the appellee (plaintiff).
   Borden, J.

The dispositive issue in this appeal is whether an insurance policy provision limiting underin-sured motorist coverage to liability for damages arising “out of the ownership, maintenance or use of the uninsured motor vehicle,” and the regulation on which that provision is based, are contrary to the uninsured and underinsured motorist coverage statute, General Statutes § 38-175C. The plaintiff, The Travelers Insurance Company, denied underinsured motorist coverage to the defendant, the administrator of the estate of Robert Kulla. The parties submitted the issues of coverage and damages to a panel of arbitrators, which awarded the defendant $200,000 of underinsured motorist coverage. Upon an application to vacate filed by the plaintiff and an application to confirm filed by the defendant, the trial court vacated the award and denied the application to confirm. From that judgment the defendant appealed to the Appellate Court and, pursuant to Practice Book § 4023, we transferred the appeal to this court. We hold that the policy provision and regulation in question are valid, and we affirm the judgment of the trial court.

The following facts are undisputed. On December 17, 1986, Robert Kulla was killed in an automobile driven by Constance Lawlor, who, while intoxicated, lost control of the vehicle, driving it off the side of the road in the town of Prospect. The defendant was appointed administrator of his estate.

The automobile involved in the accident was one of four vehicles owned by Muhamer Kulla, Robert Kulla’s father, an insured under the same policy issued by the plaintiff. The vehicle involved had been furnished and made available by Muhamer to Robert for his regular use. The policy provided liability and uninsured motorist coverage in the amount of $100,000 for each of Muhamer’s automobiles. At the time of the accident, Robert was an “insured” under the policy because he was a relative of the named insured, Muhamer, and resided in Muhamer’s household. Lawlor owned an automobile that was insured by the Maryland Casualty Insurance Company with liability coverage in the amount of $100,000. Each insurance company paid $100,000 of liability insurance to the defendant. The arbitrators apparently arrived at their award of $200,000 by stacking the $100,000 of uninsured motorist coverage relating to the four Kulla vehicles and deducting the $200,000 of liability insurance that the defendant had received under the liability coverages available under Lawlor’s vehicle and the policy issued by the plaintiff.

The defendant challenges the trial court’s judgment on four grounds, but at oral argument in this court, he made clear that all four claims hinge on the validity

of his third claim. That claim is that the policy provision limiting underinsured motorist coverage to damages arising out of “the ownership, maintenance or use of the uninsured motor vehicle,” is unenforceable because it is contrary to the provisions of General Statutes § 38-175c, as interpreted by this court. Because we disagree with this claim, we need not fully address the defendant’s other claims.

The defendant argues that the Lawlor vehicle, not the Kulla vehicle, is the underinsured vehicle in this case, because, as we have interpreted § 38-175c (b) (2) in American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 195-96, 530 A.2d 171 (1987), “underinsured motorist coverage is triggered when the tortfeasor’s automobile liability coverage is exhausted.” (Emphasis in original.) The defendant’s argument focuses not on the language of § 38-175c (b) (2) defining an “underinsured motor vehicle,” but on our case law interpreting the trigger for underinsured motorist coverage. Thus, he argues, the trial court failed to consider the exhaustion of Lawlor’s liability coverage as the triggering event for such coverage under the plaintiff’s policy.

Contrary to the defendant’s suggestion, neither DelGreco nor any of our other cases involving underin-sured coverage have dispensed with the necessity for determining that the definition of “underinsured motor vehicle” in § 38-175c (b) (2) must first be satisfied in order for a claimant seeking such coverage to prevail. Indeed, in Farm & City Ins. Co. v. Stevens, 215 Conn. 157, 162, 574 A.2d 1300 (1990), we recently rejected a stacking claim because, under the facts of that case, the claimant’s position would produce “an untenable result . . . not within the contemplation of § 38-175c (b) (2).” We turn, therefore, to the question of whether the Lawlor vehicle was an “underinsured motor vehicle” within the terms of § 38-175c (b) (2).

We recognize that it is possible to consider the Lawlor car as an “underinsured motor vehicle” by applying the terms of § 38-175c (b) (2) literally. Because the liability policy covering Lawlor’s car, as well as the Kulla car, applied to this accident, the Lawlor car could be viewed as “a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.” General Statutes § 38-175c (b) (2). From that premise, the conclusion would follow that the first sentence of § 38-175c (a) (1) would apply to the plaintiff’s policy: “Every such policy shall provide insurance, herein called uninsured motorist coverage . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underin-sured motor vehicles . . . because of bodily injury, including death resulting therefrom . . . .’’(Emphasis added.) Under this reading, since the defendant was legally entitled to recover damages from Lawlor, the owner of an underinsured motor vehicle, the statute would mandate coverage under the plaintiff’s policy.

Under this theory, however, the defendant’s claim would founder on the second sentence of the policy provision regarding underinsured motorist coverage, and the corresponding regulation, because the decedent’s damages did not arise out of the operation of the Lawlor vehicle. The uninsured motorist insurance coverage provision of the plaintiff’s policy provides in pertinent part: “We will pay damages that the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury suffered by the insured and caused by an accident.” (Emphasis in original.) At issue is the second sentence of this provision: “Liability for such damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.” (Emphasis in original.) The defendant does not dispute that this policy provision is authorized by a regulation of the insurance commissioner regarding uninsured and underinsured motorist coverage. That regulation provides in pertinent part: “The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle.” (Emphasis added.) Regs., Conn. State Agencies § 38-175a-6 (a).

The defendant, recognizing the limiting language of the regulation, therefore argues that, because the public policy of the uninsured motorist statute; General Statutes § 38-175c; is “ ‘person-oriented’ ” rather than “ ‘vehicle-oriented’ ”; Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248, 449 A.2d 157 (1982); and because the policy provision and the regulation tie coverage to the vehicle rather than permit it to follow the insured, both the policy provision and the regulation upon which it is based are contrary to the statute and unenforceable. We disagree. We conclude that the regulation, and thus the policy provision upon which it is based, are valid, and that the “person-oriented” purpose of § 38-175c does not reach as far as the facts of this case.

Although the defendant’s reading of § 38-175c (b) (2) has a superficial linguistic appeal, we reject it because it would be contrary to a fundamental purpose of underinsured motorist legislation. “ ‘The words of a statute should be interpreted in their natural and usual meaning unless such reading would defeat a legislative intent which becomes evident when the statute is read in the light of its history and purpose . . . even though such construction may seem contrary to the letter of the statute.’ ” State v. Delafose, 185 Conn. 517, 522, 441 A.2d 158 (1981), quoting Royce v. Heneage, 170 Conn. 387, 392, 365 A.2d 1109 (1976). Further, statutes must be read with common sense. White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990).

Certain facts bear repeating. This was a one-car accident. The sole car involved in the accident—the Kulla car—was owned by Muhamer, who furnished it to Robert for his regular use. The Lawlor vehicle was not involved in the accident. The only connection that it had with the accident was that it happened to be owned by the operator of the Kulla vehicle.

This factual situation is simply not the type of situation that underinsured motorist legislation is designed to cover. Had Lawlor not owned a car, and therefore been without automobile insurance of any kind, the defendant would be unable to claim that a nonexistent Lawlor car was somehow an “underinsured motor vehicle” within the meaning of the statute. The fact that Lawlor did own a car—but one that had no connection to the accident causing the defendant’s loss—cannot convert that car into an “underinsured motor vehicle.” Designating the Lawlor car as the underinsured motor vehicle in this factual situation “will no more change its essential character than calling a bull a cow will change its gender.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). Moreover, the defendant has not referred us to any case, and we have found none, where a vehicle totally unrelated to the accident involved was considered to meet the definition of an “underinsured motor vehicle” under § 38-175c (b) (2).

Implicit in the statutory scheme of § 38-175c and in the definition of an “underinsured motor vehicle” in § 38-175c (b) (2), is the commonsensical requirement that the underinsured vehicle be causally connected to the loss for which the claimant seeks compensation. “The purpose of underinsured coverage is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile. ” (Emphasis added.) Myers v. State Farm Mutual Automobile Ins. Co., 336 N.W.2d 288, 291 (Minn. 1983); see also Sullivan v. State Farm Mutual Automobile Ins., 513 So. 2d 992 (Ala. 1987); Preferred Risk Mutual Ins. Co. v. Tank, 146 Ariz. 33, 36, 703 P.2d 580 (1985); Meyer v. Illinois Farmers Ins. Group, 371 N.W.2d 535 (Minn. 1985); Linder v. State Farm Mutual Automobile Ins. Co., 364 N.W.2d 481 (Minn. App. 1985);Millers Casualty Ins. Co. of Texas v. Briggs, 100 Wash. 2d 1, 665 P.2d 891 (1983).

Applying this principle to the facts of this case, we conclude that the regulation and policy provision challenged by the defendant are valid. They reflect the basic premise inherent in the statutory scheme of uninsured motorist coverage that the uninsured or underinsured vehicle must be causally connected to the occurrence that results in the claimant’s loss. To conclude otherwise would defy common sense and would tear from its roots the concept of an “underinsured motor vehicle” as a condition of recovery under § 38-175c.

This conclusion is buttressed by the recognition that an administrative agency’s regulations are presumed valid and, unless they are shown to be inconsistent with the authorizing statute, they have the force and effect of a statute. Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128, 527 A.2d 672 (1987). A person claiming the invalidity of a regulation has the burden of proving that it is inconsistent with or beyond the legislative grant. Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981). The insurance commissioner has a “very broad grant of regulatory authority” in filling in the interstices of the uninsured and underinsured motorist coverage legislation, and in doing so his regulation is entitled to “great deference.” Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976). “In view of the very broad grant of regulatory authority to the insurance commissioner, we are not persuaded that the commissioner was without authority to adopt regulation § 38-175a-6 [a].” Id.

Nor is this conclusion inconsistent with our previous cases where we stated that § 38-175c is “person oriented” rather than “vehicle oriented.” We first, and most forcefully, articulated that concept in Harvey v. Travelers Indemnity Co., supra, and have reasserted it in Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 486, 518 A.2d 373 (1986), and Smith v. Nationwide Mutual Ins. Co., 214 Conn. 734, 738-39, 573 A.2d 740 (1990). Those cases are distinguishable.

In Harvey, on which the defendant relies, the plaintiff was operating an uninsured vehicle, owned by his father, that collided with another uninsured vehicle owned by a third party. The plaintiff sought coverage under a policy issued to his mother for a third vehicle. At issue was the validity of a policy provision excluding coverage to an insured who was occupying a vehicle, other than the insured vehicle, owned by the named insured or his relative. Harvey v. Travelers Indemnity Co., supra, 246. We held that the policy exclusion was invalid because it was against the public policy of § 38-175c “that uninsured motorist coverage be provided to insureds when they are not occupants of insured vehicles as well as when they are.” Id., 248. We also stated that uninsured motorist coverage “attaches to the insured person, not the insured vehicle.” Id. In Allstate Ins. Co., the claimant’s decedent was a passenger in an inadequately insured vehicle, owned by Frank DeSouza, that was involved in a collision with another inadequately insured vehicle. We held that the claimant was permitted to aggregate, or “stack,” the underinsured coverage applicable to the vehicle in which the decedent was a passenger and a second vehicle also owned by DeSouza. In Smith, the claimant was a passenger in an inadequately insured automobile, owned by Eric S. Harrington, that was involved in a one-car accident. The claimant sought to recover underinsured motorist benefits from a policy covering two other vehicles owned by Robert Harrington, the father of Eric S. Harrington. We held that the claimant could not recover because he was not “covered” by that policy, and that the coverage provision of the policy was valid. Smith v. Nationwide Mutual Ins. Co., supra, 740-41. In none of these cases was recovery for uninsured or underinsured motorist coverage permitted on the basis of a one-car accident where, as in this case, the purported underinsured vehicle was not involved in the accident in any way.

We briefly address the defendant’s final claim, namely, that because the policy did not define “underin-sured motor vehicle,” the policy was ambiguous and must be construed against the insurer. He contends that an insured under a policy containing such ambiguous underinsured motorist coverage would reasonably expect to receive coverage when injured by the fault “of an uninsured driver,” namely, Lawlor, and that to deny him coverage would be contrary to his reasonable expectations. We disagree.

First, the policy did define an underinsured motor vehicle, although it did not use that specific term. See footnote 3, supra. Second, the critical part of the policy was not that definition but the provision limiting underinsured motorist coverage to situations actually involving such a vehicle. That provision is quite clear and is authorized by the regulation, which is consistent with the statute. Moreover, we would look not to the expectations of the defendant’s decedent, but to the expectations of the purchaser of the policy, in this case, Muhamer. See Allstate Ins. Co. v. Ferrante, supra, 487. Any broader expectations he may have had would have been contrary to the regulation and the statute it implements.

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 38-175c provides: “uninsured motorist coverage. (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.”

       The four claims are: (1) the court improperly interpreted the plaintiff’s policy by failing to compare the tortfeasor’s liability coverage against the amount of Muhamer’s underinsured motorist coverage; (2) even if the statutory exclusion of General Statutes § 38-175c (a) (1) (A), on which the court relied in part, was applicable, it was unenforceable; (3) the provision in the plaintiffs policy limiting underinsured motorist coverage to damages arising out of the ownership, maintenance or use of the uninsured motor vehicle, and the state regulation on which that provision is based, are unenforceable because they exceed the requirements of § 38-175c (a) (1); and (4) the court improperly interpreted the policy in a way contrary to the reasonable expectations of the insured.

       The policy defines an “uninsured motor vehicle” to include a motor vehicle “to which a bodily'injury liability insurance policy or bond applies at the time of the accident, but with limits of liability less than the applicable uninsured motorist limits of liability provided under this policy.”

       The emphases indicate that those words are specifically defined in the policy.

       Although the defendant claimed at oral argument that he raised the invalidity of the policy provision at the trial, the record does not bear that out. We nonetheless exercise our appellate discretion in order to consider the issue, because it has been fully briefed here and is important to our underinsured motorist coverage legislative scheme.

       Indeed, nowhere in the defendant’s brief does he specifically argue that the Lawlor vehicle is the underinsured motor vehicle. It was not until oral argument that he clarified his position, and even then referred to the designation of the Lawlor vehicle as the underinsured vehicle as an apparent “nonsequitur.”

       We note, however, that in 1983, the legislature amended General Statutes § 38-175e to limit to some extent the broad sweep oí Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248, 449 A.2d 157 (1982). Public Acts 1983, No. 83-461, codified in part as § 38-175c (a) (1) (A) and (B), provides: “No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.”

       The defendant also argues that, assuming the Kulla vehicle, rather than the Lawlor vehicle, is deemed to be the underinsured vehicle, he is entitled to recover despite the resident relative exclusion of General Statutes § 38-175c (a) (1) (A). That provision excludes from underinsured motorist coverage “a named insured or relatives residing in his household when occupying . . . an . . . underinsured motor vehicle . . . that is owned by the named insured.” Recognizing that this language clearly excludes Kulla, the defendant posits the novel argument that the statutory language itself is “contrary to the intent of the legislature, and therefore, unenforceable.” This is a proposition for which the defendant cites no authority other than assertion. State v. Mancinone 15 Conn. App. 251, 286, 545 A.2d 1131 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989). We dispose of this extraordinary argument by noting the absence of any authority for such a process of judicial nullification of a statute.


author: Peters, C. J.

text:
    State of Connecticut v. Richard Lubus
    (14013)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued September 25—
    decision released November 6, 1990

      Michael K. Courtney, assistant public defender, and Valerie J. Quinn, deputy assistant public defender, with whom, on the brief, was Patricia Sloan, legal intern, for the appellant (defendant).

      Rita M. Shair, deputy assistant state’s attorney, with whom were Walter Flanagan, state’s attorney, and, on the brief, Christopher Alexy, deputy assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The sole issue in this appeal is whether a convicted felon who has permission to serve his sentence in a private home may be found guilty of the crime of escape under General Statutes § 53a-169 (a) (2) for a single failure to report to his designated supervising officer. In response to the state’s filing of an information charging the defendant Richard Lubus with escape, for such failure to report, he filed a motion to dismiss the information that challenged the applicability and the constitutionality of § 53a-169 (a) (2). When the trial court denied the motion, he entered a conditional plea of nolo contendere, pursuant to General Statutes 54-94a and Practice Book § 4003 (a), preserving his right to appeal the trial court’s ruling. After an appropriate canvass, the court accepted the defendant’s plea and imposed a one year sentence consecutive to the defendant’s prior sentence. We transferred the defendant’s subsequent appeal to the Appellate Court to this court in accordance with Practice Book § 4023 and now reverse the judgment of the trial court.

The facts are undisputed. In the case underlying the defendant’s original sentence, he pleaded guilty to a charge of possession of narcotics with the intent to sell, in violation of General Statutes § 21a-277 (a). This conviction resulted in a sentence of five years imprisonment, suspended after two years, with three years probation. His probation required the defendant to undergo drug screening.

The commissioner of correction, exercising his authority under General Statutes § 18-100 (e), immediately prepared to transfer the defendant to a “community residence” program that permitted him to live in his own home. As part of the transfer process, the defendant signed a Community Residence Agreement expressly providing that his failure to report as scheduled to his supervising officer, Juan Castillo, would be considered an “escape” pursuant to § 53a-169. The defendant entered the “community residence” program and was placed under parole supervision on March 24, 1989.

Although directed to report to Castillo on June 27, 1989, the defendant failed to do so. After a status conference with a parole supervisor, Castillo applied for an arrest warrant on August 15, 1989, that led to the initiation of the present proceedings. The record is silent about what contact, if any, the defendant had with Castillo between late June and mid-August.

I

The defendant’s principal contention is that the trial court should have granted his motion to dismiss because his conduct does not constitute an “escape” within the terms of § 53a-169 (a) (2). The relevant provisions of § 53a-169 (a) (2) impose criminal sanctions for “escapes from . . . [a] community residence to which [a defendant has been] transferred pursuant to subsection (e) of section 18-100. . . . ” We have not previously had the occasion to address the narrow issue before us, i.e., whether a single failure to report to a supervising officer may be punished as an “[escape] from . . . [a] community residence.” As a general proposition, we recently noted by way of dictum in Asherman v. Meachum, 213 Conn. 38, 48, 566 A.2d 663 (1989), that, for an individual on home release, “absconding [from supervision] constitutes a new crime, escape, that may lead to an added prison term. General Statutes § 53a-169 (a) (2).” That observation arose, however, in the context of our determination in Asherman that an individual on home release does not have a constitutionally protected liberty interest to resist official inquiry into his psychological status. Id., 47-49. Because our decision in Asherman did not purport to define what conduct would constitute absconding, it provides no answer to the issue posed here.

Interpretation of § 53a-169 (a) (2) must begin with the proposition that penal statutes “are to be construed strictly and not extended by implication to create liability which no language of the act purports to create.” State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); Nowak v. Nowak, 175 Conn. 112, 125, 394 A.2d 716 (1978); see also State v. Mattioli, 210 Conn. 573, 579, 556 A.2d 584 (1989); State v. Champagne, 206 Conn. 421, 430, 538 A.2d 193 (1988). This principle of strict construction informs the general rule of statutory interpretation that “ ‘in the interpretation of statutes, the intent of the legislature is to be found not in what it meant to say, but in what it did say.’ ” State v. Roque, supra, 150, quoting Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979). “ ‘If the words are clear and unambiguous, “it is assumed that [they] express the intention of the legislature” . . . and we need inquire no further.’ ” (Citation omitted.) State v. Mat-tioli, supra, 576. The rule that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise; General Statutes § 1-1 (a); State v. Mattioli, supra, 579; also guides our interpretive inquiry.

In this case, neither the defendant nor the state argues that the word “escape” in 53a-169 (a) (2) is unclear or ambiguous, nor does the fact that opposing counsel contend for different meanings support such a characterization. See Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 198, 438 A.2d 1178 (1981). Furthermore, the text of the statute nowhere indicates that the legislature intended to assign to the word anything other than its ordinary meaning. Accordingly, in the absence of other statutory guidance, we may appropriately look to the meaning of the word as commonly expressed in the law and in dictionaries. Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981).

Our task, then, is to determine whether, strictly construed, the ordinary meaning of the criminal prohibition against “escapes from ... [a] community residence” in § 53a-169 (a) (2) encompasses a single failure to report to a supervisor. The paradigmatic example of an “escape” is a prison break. A lawfully incarcerated person who “breaks out” of his confinement behind steel bars and concrete walls has unquestionably committed an “escape.” Black’s Law Dictionary (5th Ed. 1979) underscores the assumed nexus between escape and custody when it defines “escape” as “[t]he departure or deliverance out of custody of a person who was lawfully imprisoned before he is entitled to his liberty by the process of law.”

The New York Penal Code and the American Law Institute’s Model Penal Code, upon which our legislature relied when it revised the state penal code in 1969; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1969 Sess., p. 11; both contain “escape” provisions that have custodial overtones. The Court of Appeals of New York, interpreting the escape provisions of its penal code, understood escape to mean “ To get away (as by flight or conscious effort): break away, get free or get clear (the prisoner escaped from prison) . . . .’” (Emphasis in original; citations omitted.) People v. Hutchinson, 56 N.Y.2d 868, 870, 438 N.E.2d 1109, 453 N.Y.S.2d 394 (1982). Under the Model Penal Code, a person commits the crime of “escape” if he “unlawfully removes himself from official detention or fails to return to official detention following [a] temporary leave granted for a specific purpose . . . .”II A.L.I., Model Penal Code and Commentaries (1962) § 242.6.

The provisions of § 53a-169 in their entirety lend further support to the proposition that “escape” in § 53a-169 (a) (2) was intended to incorporate misconduct commonly understood as arising out of unauthorized departures from custodial constraints. Section 53a-169 (a) (2) itself criminalizes, in addition to “escape” from “any . . . community residence,” “escape” from “any public or private, nonprofit halfway house, group home or mental health facility.” Section 53a-169 (a) (6) criminalizes “escape” from “a hospital for mental illness.” Section 53a-169 (a) (7) provides that a person is guilty of “escape” if, “while under the jurisdiction of the psychiatric security review board, but not confined to a hospital for mental illness, he leaves the state without authorization of the board.” Consistently with the Model Penal Code, the legislature has also defined “escape” to include the failure of a person to return from an authorized furlough; General Statutes § 53a-169 (a) (4); or from work or education release. General Statutes § 53a-169 (a) (5). These various subsections of § 53a-169 represent two decades of legislative redefinition of the crime of “escape” to accommodate the needs of changing rehabilitation practices and prison overcrowding. The unifying overall theme of § 53a-169 is that an individual will risk punishment for “escape” for an unauthorized departure from, or failure to return to, whatever may be designated as his place of incarceration or confinement. That theme illuminates the meaning of § 53a-169 (a) (2). See Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984); Finkenstein v. Administrator, 192 Conn. 104, 110, 470 A.2d 1196 (1984).

Read in context, § 53a-169 (a) (2) simply identifies another environment—a community residence—from which an unauthorized departure, or to which a failure to return, is possible and made culpable. The subsection does not, in this one instance, impose criminal sanctions for an “escape” that has no demonstrated custodial nexus.

In sum, taking into account the applicable principles of statutory construction, we are persuaded that § 53a-169 (a) (2) does not penalize as an “escape” a single failure to report to a supervisor. We conclude, rather, that § 53a-169 (a) (2) employs the term “escape” to contemplate an unauthorized departure from, or failure to return to, a “community residence.” We need not decide today whether, at some juncture, repeated failures to report as scheduled would reasonably support an inference of present or imminent custodial irregularity and thus evidence a violation of § 53a-169 (a) (2). A single failure to report cannot, however, reasonably be construed as an unauthorized departure or failure to return. On the sparse record of this case, therefore, the defendant’s conviction for violation of § 53a-169 (a) (2) cannot be sustained. We know nothing about the defendant’s actual whereabouts at the time when he was required to report to his supervisor and, in this one instance, failed to do so. The state has neither alleged nor proved that the defendant had absented himself, or threatened to absent himself, from his “community residence” at any relevant time. We hold only that proof of his single failure to report was insufficient to prove him guilty of the crime of “escape.”

II

The defendant also argues, secondarily, that the commissioner of correction’s authority under General Statutes § 18-100 (d) to promulgate rules of conduct for persons transferred to a “community residence” does not include the authority to define “escape” to include conduct that the legislature itself has not criminalized. We agree.

It is fundamental that the power to enact laws resides with the legislature and may not be delegated to an administrative agency. New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 149, 384 A.2d 337 (1977). The legislature may, however, “delegat[e] to an administrative agency the power to ‘fill in the details,’ ” of a statutory scheme, provided that it establishes an articulable standard for the agency to follow. Id.

Section 18-100 (d) authorizes the commissioner of correction to promulgate “such regulations as he deems necessary for the administration of [§ 18-100]” and to suspend privileges, such as the release to a community residence, of persons who violate those regulations. Relying on this authority, the commissioner promulgated a Community Residence Agreement, which the defendant signed, expressly informing the defendant that failure to report to his supervising officer would subject the defendant to criminal sanctions for “escape.”

The question before us is whether § 18-100 (d) authorizes the criminal enforcement of the “escape” sanctions described in the Community Residence Agreement. The state argues that, in treating a failure to report as an “escape” under § 53a-169, the commissioner was not enacting a new statute, but was merely “clarif[ying] for the defendant precisely what is an ‘escape’ from his community residence placement.” The defendant correctly notes, however, that enforcing the commissioner’s “clarification” in this case would, in effect, include within the ambit of a criminal statute conduct that the statute itself, as we have held above, does not expressly proscribe. Such an enlargement of penal sanctions exceeds the authority of the commissioner. Accordingly, we conclude that although § 18-100 (d) confers upon the commissioner extensive rule-making authority over persons transferred to a community residence, it does not authorize the prosecution of a single failure to report to a supervising officer as an “escape” under § 53a-169 (a) (2).

The judgment is reversed and the case is remanded with direction to set aside the defendant’s conviction and for further proceedings.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 53a-169 provides in relevant part: “escape in the first degree: class c felony, (a) A person is guilty of escape in the first degree ... (2) if he escapes from any . . . community residence to which he was transferred pursuant to subsection (e) of section 18-100 and he is in the custody of the commissioner of correction . . . .”
      General Statutes (Rev. to 1989) § 18-100 (e) provides in relevant part: “WORK-RELEASE AND EDUCATION-RELEASE PROGRAMS. . . .
      “(e) If the commissioner of correction deems that the purposes of this section may thus be more effectively carried out, he may transfer any person from one correctional institution to another . . . or to an approved community residence with the concurrence of the warden, superintendent or person in charge of the facility to which said person is being transferred. Any inmate so transferred shall remain under the jurisdiction of said commissioner. Any inmate transferred to an approved community residence shall also be subject to specifically prescribed supervision by personnel of the department of correction until his definite or indeterminate sentence is completed.”

       General Statutes § 54-94a provides in relevant part: “conditional nolo CONTENDERE PLEA. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR DISMISS. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied . . . the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”
      Practice Book § 4003 (a) provides in relevant part: “appeals of rulings ON MOTIONS TO DISMISS OR SUPPRESS FOLLOWING JUDGMENTS ENTERED UPON CONDITIONAL PLEAS OF NOLO CONTENDERE
      “(a) When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court to have denied . . . the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution. . . .”

       See footnote 1, supra.

       At oral argument, the defendant abandoned alternate arguments for reversal contained in Ms brief in which he had maintained that (1) a private home fell outside the confines of the community residence program contemplated by General Statutes § 18-100 (e), and (2) General Statutes § 53a-169, if applicable to the facts of this case, was so unconstitutionally vague as to violate the requirements of due process under the fourteenth and fifth amendments to the United States constitution and of article first, §§ 7, 8, and 9 of the Connecticut constitution.

       General Statutes (Rev. to 1989) § 18-100 provides in relevant part: “WORK-RELEASE AND EDUCATION-RELEASE PROGRAMS. . . .
      “(d) The commissioner of correction shall establish such regulations as he deems necessary for the administration of this section and section 18-101 and for the conduct of persons granted the privileges of this section; and he may suspend the privileges of any persons who violate such regulations or whose conduct he believes is unsuitable for the continuation of such privileges.”

       General Statutes § 18-100 (d) confers broad authority on the commissioner of correction to require unrestricted compliance with any provision of the community residence as a condition of continued eligibility for community residence or home release status. See Asherman v. Meachum, 213 Conn. 38, 50-52, 566 A.2d 663 (1989), and cases therein cited. See footnote 5, supra, for the text of § 18-100 (d).


author: Callahan, J.

text:
    Frank F. Pintavalle, Conservator (Estate of Gary A. Pintavalle) v. Dimitrios Valkanos
    (13964)
    Peters, C. J., Callahan, Covello, Hull and Borden, Js.
    Argued September 26—
    decision released November 6, 1990

      Kenneth A. Paskowitz, with whom, on the brief, was Kenneth I. Friedman, for the appellant (plaintiff).

      William C. Turney, for the appellee (defendant).
   Callahan, J.

The sole issue in this appeal is the proper interpretation of General Statutes § 52-592, the accidental failure of suit statute. The trial court granted the defendant’s motion for summary judgment, concluding that the plaintiff did not comply with the limitation provisions of General Statutes § 52-584 and that the provisions of § 52-592 (a) were not applicable and could not save the plaintiff’s suit from being time barred. The plaintiff appealed to the Appellate Court, and we transferred the matter to this court pursuant to Practice Book § 4023. We agree with the trial court’s interpretation of § 52-592 (a) and affirm its granting of the defendant’s motion for summary judgment.

The relevant facts are not in dispute. On October 6, 1984, Gary A. Pintavalle was severely injured in an automobile accident. On September 80,1986, the plaintiff, John F. Pintavalle, conservator for Gary A. Pin-tavalle, brought an action against the defendant, Dimitrios Valkanos, doing business as Family Pizza House. The complaint alleged that the defendant had been grossly negligent and had acted in a wanton and reckless manner in serving alcohol to the driver of the car in which Gary A. Pintavalle was injured. On January 8,1987, the first suit was dismissed due to improper service of process.

On February 9,1987, the plaintiff filed a second suit based on the same cause of action. Although the second suit was filed more than two years after the date of the accident, it was not time barred by § 52-584 because § 52-592 (a) permits the filing of a new action within one year of the dismissal of the original action for insufficient service if the original action was timely filed. On December 9, 1988, this second suit was dismissed for failure to prosecute with reasonable diligence pursuant to Practice Book § 251. On April 6, 1989, the plaintiff filed a third suit against the defendant. The trial court granted the defendant’s motion for summary judgment, concluding that this third suit was time barred under § 52-584 because it had not been brought within two years of the date of the accident. The trial court also held that the third suit was not saved by § 52-592 (a) because it had not been brought within one year of the dismissal of the first suit.

Section 52-592 (a) provides in pertinent part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.” (Emphasis added.)

The dispositive issue in this case is the meaning of the term “original action” in § 52-592 (a). The defendant argues that “original action” means the first action filed by the plaintiff within the period allowed by the relevant statute of limitations. Under this interpretation, § 52-592 (a) cannot operate to save the plaintiff’s third suit because it was filed more than one year after the dismissal of the first suit. The plaintiff asserts, to the contrary, that “original action” refers to either (1) the next preceding action, or (2) the first action over which the court has jurisdiction. Under either of these interpretations the plaintiff’s third action would be saved by § 52-592 (a) because it was brought within one year of the dismissal of the second suit. We agree with the defendant’s interpretation.

The Appellate Court addressed this same issue in Marangio v. Shop Rite Supermarkets, Inc., 11 Conn. App. 156, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987). Relying upon canons of statutory construction and upon the interplay between the words “new action” and “original action” in § 52-592 (a), the court concluded that “original action” means the first action brought by the plaintiff within the period of the applicable statute of limitations. Id., 159-60. The Appellate Court noted that “[t]he statute does not say ‘may continue the action by bringing suit within one year,’ or use any words other than those which contemplate an end to the original action and the commencement of a new action within one year of the end of the original action.” (Emphasis in original.) Id., 160. We find the reasoning of the Appellate Court persuasive and conclude that § 52-592 (a) does not save the plaintiffs third attempt to commence his action.

In arguing that “original action” means the next preceding action, the plaintiff asserts that we must consider the following language from § 52-592 (a): “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . the plaintiff . . . may commence a new action . . . .” (Emphasis added.) Noting that this court has consistently held that § 52-592 is a remedial statute and is to be interpreted liberally; Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728, 557 A.2d 116 (1989); the plaintiff claims that the use of the phrase “one or more times” indicates that the legislature intended to permit plaintiffs to bring a potentially unlimited number of suits as long as each action is brought within one year of the failure of the prior action.

“The words of a statute are to be given their commonly approved meaning unless a contrary intent is clearly expressed.” Kilpatrick v. Board of Education, 206 Conn. 25, 28, 535 A.2d 1311 (1988). In the absence of ambiguity, statutory language should be given its plain and ordinary meaning. Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978). The plaintiffs interpretation of the term “original action” as meaning the next preceding action tortures the language of § 52-592 (a) and ignores its plain meaning. “Original” is defined as “of or relating to a rise or a beginning: existing from the start . . . .’’Webster’s Third New International Dictionary. In the context of § 52-592 (a), “original action” is used to refer to the first action filed by the plaintiff within the period of the applicable statute of limitations.

As the Appellate Court recognized, construing “original action” to mean the next preceding action would have the effect of permitting a potentially limitless extension of the time to file succeeding actions. Maran-gio v. Shop Rite Supermarkets, Inc., supra, 160. This would defeat the basic purpose of statutes of limitation, namely, promoting finality in the litigation process. Id. Although § 52-592 is a remedial statute and must be construed liberally; Isaac v. Mount Sinai Hospital, supra, 728; it should not be construed so liberally as to render statutes of limitation virtually meaningless.

The plaintiff argues in the alternative that “original action” should be interpreted to mean the first action over which the court has jurisdiction. Since the plaintiffs first action was dismissed for improper service of process, under this interpretation the plaintiff would have been entitled to file his third action within one year of the dismissal of the second action.

This interpretation must fail as well. A statute should be read as a whole and interpreted so as to give effect to all of its provisions. Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984); Finkenstein v. Administrator, 192 Conn. 104, 110, 470 A.2d 1196 (1984). Section 52-592 (a) expressly provides that one of the causes of a failure of suit that its provisions are designed to address is a failure when “the action has been dismissed for want of jurisdiction.” Section 52-592 (a) anticipates that dismissals for lack of jurisdiction are covered by its provisions and provides that a new action would have to be filed within one year of such a dismissal in order to be saved by § 52-592 (a). Under the plaintiff’s interpretation, § 52-592 (a) would have to be read as meaning that a party whose suit is dismissed for lack of jurisdiction either (1) has an unlimited period of time in which to file a new action, since the one year time limit would not apply until the court has jurisdiction, or (2) cannot file a new action under § 52-592 (a) because this section does not apply unless the court has jurisdiction. Both of these interpretations conflict with the plain language of the statute and thus “original action” cannot mean the first action over which the court has jurisdiction.

We hold that under the provisions of § 52-592 (a) “original action” means the first action filed within the time allowed by the applicable statute of limitations. This interpretation is consistent with the plain meaning of the statute and protects the policy concerns underlying statutes of limitation.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-592 provides in pertinent part: “accidental failure of suit; allowance of new action, (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       “[General Statutes] Sec. 52-584. limitation of action for injury to person or property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       “[Practice Book] Sec. 251. dismissal for lack of diligence
      “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.
      “If a case is printed on a dormancy calendar pursuant to the dormancy program administered under the direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to Sec. 128, only those papers which close the pleadings by joining issues, or raise a special defense, may be filed by any party, unless the court otherwise orders.”
      In Lacasse v. Bums, 214 Conn. 464, 474, 572 A.2d 357 (1990), we held that a dismissal of an action pursuant to Practice Book § 251 constitutes a failure “for any matter of form” within the meaning of General Statutes § 52-592 (a).

       The plaintiff recognizes that another possible interpretation of the “one or more times” language in General Statutes § 52-592 (a) is that this clause is meant to address cases where an action filed within the limitations period fails for a matter of form more than once and the plaintiff brings two or more new actions within one year of the determination of the original action. We find this interpretation to be consistent with the language and remedial purpose of the statute.

       In his brief, the plaintiff cites Parrish v. Uzzell, 41 N.C. App. 479, 484-85, 255 S.E.2d 219 (1979), in which a North Carolina statute concerning the effect of voluntary dismissals was construed as allowing a potentially unlimited series of actions based on the same claim as long as the most recent action was brought within one year of the voluntary dismissal of the preceding action. We are aware of no other jurisdictions that have reached a similar conclusion, and the great weight of authority favors a construction of accidental failure of suit statutes consistent with our interpretation of General Statutes § 52-592 (a). See, e.g., Smith v. Chicago Transit Authority, 67 Ill. App. 3d 385, 388, 385 N.E.2d 62 (1978); Denton v. Atchison, 76 Kan. 89, 91-93, 90 P. 764 (1907); Cady v. Harlan, 442 S.W.2d 517, 519-20 (Mo. 1969); Bush v. Cole, 1 Ohio App. 269, 271-72 (1913), aff'd, 91 Ohio St. 369, 110 N.E. 1056 (1914); Walker v. L. E. Meyers Construction Co., 175 Okla. 548, 550, 53 P.2d 547 (1935); Reed v. Cincinnati, N.O. & T.P. Railroad Co., 136 Tenn. 499, 503-504, 190 S.W. 458 (1916).