author: Peters, C. J.

text:
    State of Connecticut v. Derek Roseboro
    (14216)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued January 7
    decision released March 17, 1992

      Suzanne Zitser, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defende'r, and Kent Drager, assistant public defender, for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, with whom were Steven M. Sellers, assistant state’s attorney, and, on the brief, Mary M. Galvin, state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is the effect of a declarant’s hospitalization and medication on the admissibility of his incriminatory statements in criminal proceedings against him. The defendant, Derek Roseboro, was charged, by a substitute information, with the crimes of capital felony in violation of General Statutes § 53a-54b (8), three counts of murder in violation of General Statutes § 53a-54a (a), and first degree burglary in violation of General Statutes § 53a-101 (a) (1) and (2). A probable cause hearing determined that the state had adduced sufficient evidence to try the defendant for capital felony and murder. The defendant waived his right to a jury trial, electing instead a court trial by a three judge panel. The trial court rendered a verdict in which it concluded that the defendant was guilty as charged. In accordance with the defendant’s election to have the trial court conduct the sentencing hearing, the trial court considered whether to impose the death penalty for the defendant’s conviction of the capital felony. The trial court rendered a judgment sentencing the defendant to life imprisonment without the possibility of release on the conviction of capital felony; General Statutes §§ 53a-35b and 53a-46a (f); and to twenty years of concurrent.imprisonment on his conviction of first degree burglary. The defendant has appealed directly to this court in accordance with General Statutes 51-199 (b). We affirm the judgment.

The trial court, Curran, Mancini and S. Freedman, Js., made the following findings of fact in delivering its verdict. The defendant, armed with a dangerous weapon and intending to commit a larceny, unlawfully entered and remained in a house in Derby owned by Mary Ferrara. In the course of committing this crime, the defendant engaged in a struggle with Mary Ferrara and intentionally killed her. The defendant also intentionally killed her son Joseph Ferrara and her niece Nina Ferrara. Each of the victims died of stab wounds.

The trial court found the defendant guilty of capital felony and of burglary beyond a reasonable doubt. The court noted that testimony concerning the defendant’s handprints and a footprint at the Ferrara house provided physical evidence linking him to the scene of the crime. The court found, furthermore, that the defendant had secreted a number of items in the nearby underbrush in an effort to hide evidence of his crimes, and that he had attempted to clean the house in an effort to eradicate evidence of what had transpired there. The court relied as well on evidence of consciousness of guilt, opportunity and motive, and on incriminatory statements that the defendant made to the police.

The defendant’s appeal raises two issues. He maintains that: (1) the trial court, Curran, Mancini and S. Freedman, Js., should have granted his motion for acquittal because the state produced insufficient evidence to sustain his conviction of capital felony and of burglary in the first degree; and (2) the trial court, Fuller, J., should have granted his pretrial motion to suppress, which addressed both incriminating statements made by the defendant and physical items seized by the police. We are unpersuaded by either of these claims.

I

The defendant does not challenge the standard by which this court reviews claims relating to the sufficiency of the evidence to sustain a criminal conviction. “Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same . . . . We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Steiger, 218 Conn. 349, 378, 590 A.2d 408 (1991). Applying that standard in this case, we conclude that the evidence presented by the state could reasonably have persuaded the trial court, beyond a reasonable doubt, that the defendant had committed both a capital felony and burglary.

The defendant was charged with a capital felony for having murdered two or more persons, namely Mary Ferrara, Joseph Ferrara and Nina Ferrara, in the late evening hours of August 11, 1989, at Mary Ferrara’s house in Derby. As the trial court observed in rendering its verdict, various items of physical evidence could reasonably be found to have placed the defendant at the scene of the crime. His hand, distinctive in its size, exactly matched the length and the width of a bloody handprint found on wallpaper in the bathroom of the Ferrara house, where the body of Joseph Ferrara was discovered. A similar handprint was found on a pillowcase near Nina Ferrara’s body in a bedroom in the Ferrara house. A bloody footprint found under Nina’s body was made by a sneaker with an identifiable brand name. A bloody watch, found on the floor of the Ferrara kitchen, evidenced damage consistent with a struggle between the defendant and Mary Ferrara. The watch was linked to the defendant by the testimony of a witness and by the discovery of a hair microscopically similar to his body hair. All three victims died from multiple stab wounds that were inflicted by a knife or knife-like instrument.

A search of the underbrush near the Ferrara house uncovered further incriminating evidence. A bag was found containing, among other items, a local newspaper addressed to the defendant’s house, a surgical glove, a blood-stained sneaker, a blood-stained shirt, and some pantyhose. Forensic tests revealed that the blood on the sneaker and on the shirt matched that of the defendant and one of the victims. The sneaker was similar in size to, and of the same brand name as, the sneaker that had made the bloody footprint found in the house, and showed patterns of wear identical to that on sneakers worn by the defendant. A podiatry expert testified that this unique pattern was caused by a deformity in the defendant’s foot. The pantyhose contained a human hair similar to that of Mary Ferrara. An investigation at the defendant’s house disclosed a number of rubber gloves similar to that found in the bag. Near a turnaround on the road on which the Ferrara house was located, the police found a teacup from the Ferrara house, as well as a trifold piece of paper commonly used to hold drugs.

The defendant’s appearance and conduct corroborated his involvement in the Ferrara murders. Returning to his house two doors down from the Ferrara house, in the early morning hours of the day following the crime, the defendant was observed coming out of the woods, looking surprisingly cool and dry despite a night of heavy rain and humidity, and suspiciously devoid of curiosity about the extensive police activity at the scene. Shortly after the murders, police officers questioning the defendant at his house noticed that he had a swollen left hand and a cut on his right hand. No money was found in the Ferrara house after the crime, contrary to Mary Ferrara’s habit of keeping some $100 to $400 in cash in her house, and the defendant was seen uncharacteristically giving out money and drugs shortly after the occurrence of the murders. The defendant made statements about his whereabouts that were inconsistent with the observations of a police officer who saw the defendant entering a car with his girlfriend, Deborah Gorzelaney, and made inquiries about whether it was possible to obtain fingerprints from the inside of rubber gloves.

Much of this evidence also supported the defendant’s conviction for burglary. The amended information charged that he had unlawfully entered and remained in the Ferrara house with the intent to commit larceny and, while there, armed with a dangerous instrument, had inflicted bodily injury on another person. When the defendant was apprehended, he had a knife in his possession. The trial court could have inferred that the defendant had used this knife to stab his victims, just as it could have inferred that he had taken money belonging to various members of the household when he left the scene of the crime.

The defendant’s statements corroborated his guilt of both crimes. He admitted having been at the Ferrara house, having observed Mary Ferrara’s body and having participated in cleaning up blood stains in the house, on his and Gorzelaney’s clothing, and on Gorzelaney’s car. Those statements, together with the other direct and inferential evidence reasonably connecting the defendant with the crimes with which he was charged, enabled the trial court to find him guilty beyond a reasonable doubt. The trial court was entitled to reject, as less credible, other testimony and inferences offered on behalf of the defendant. See State v. Grant, 219 Conn. 596, 603, 594 A.2d 459 (1991); State v. Sinclair, 197 Conn. 574, 578, 500 A.2d 539 (1985).

II

The defendant’s principal argument is not, however, that he is entitled to an acquittal but that he is entitled to a new trial because the trial court should have suppressed certain of his statements and one item of evidence. With respect to his statements, the defendant claims that they were: (a) involuntary; (b) inextricably related to certain of his statements that were suppressed; (c) not supported by a knowing, intelligent and voluntary waiver of his Miranda rights; and (d) procured in violation of his invocation of his right to remain silent. With respect to the evidentiary item, the Ferrara teacup recovered in a turnaround near the Ferrara house, the defendant disputes the court’s ruling that this evidence was admissible under the inevitable discovery rule.

A

The statements whose admissibility is at issue were made in the following circumstances. Although the Derby police had identified the defendant as a suspect in the Ferrara crimes, and had questioned him about his possible involvement, he was not immediately arrested. On August 27, 1989, the New Haven police received a complaint from Gorzelaney, the defendant’s girlfriend, and another woman charging the defendant with having assaulted and kidnapped them at a house on Humphrey Street in New Haven. Sergeant Michael Sweeney, a New Haven police detective, after having alerted Derby police, went to Humphrey Street to investigate the complaint. Discovering that a burglar alarm had gone off at that address, Sweeney and other New Haven police officers pursued the defendant through the house and caught up with him in a bathtub, bleeding heavily from two self-inflicted stab wounds. While Sweeney was stanching the defendant’s wounds, he persuaded the defendant to identify himself. Thereafter, at a time when both Sweeney and the defendant thought that the defendant was dying, the defendant, in reponse to Sweeney’s questioning, first implicated himself in the killings in Derby, but then said that Gorzelaney was responsible. Sweeney asked what had happened, what weapon had been used, and whether anything had been taken from the Ferrara house. The defendant replied that he and Gorzelaney had taken a teacup, which they had used for cocaine, and had left the cup on a dirt path near a turnaround in the vicinity of the Ferrara house. This questioning occurred without the defendant’s having been advised of his constitutional right to remain silent.

The police arranged for the defendant to be taken by ambulance to Yale New Haven Hospital. During the ride in the ambulance, he was questioned by Detective Martin White of the Connecticut state police and Detective Marcel Lajeunesse of the Derby police. The defendant answered some of their questions about the Ferrara murders, discussing the newspaper found in the bag in the underbrush and referring again to the teacup near the turnaround. He told them that he and Gorzelaney had been using drugs on the evening of the crimes, but that she had committed the murders. This questioning, too, occurred without advice to the defendant of his constitutional right to remain silent.

Upon the defendant’s arrival at the hospital, he was taken to the hospital trauma area where he was diagnosed as having wounds that were serious enough to require surgery, but were not fatal. In the emergency room, prior to the defendant’s surgery, Sweeney advised the defendant of his constitutional right to remain silent, but continued to interrogate him despite the defendant’s request that he “come back tomorrow.” Most of the defendant’s comments on that occasion related to his involvement, and Gorzelaney’s involvement, with cocaine. He reiterated that it was Gorzelaney who had gone to the house armed with a knife.

On August 28, 1989, immediately after the defendant’s surgery, and on several succeeding days, the police interviewed the defendant at the hospital. They relied on nursing personnel for a determination that the defendant, although medicated, was lucid and alert. Early on August 28, the defendant signed a Miranda waiver form with great difficulty, and agreed to talk to the police for five minutes. He told them how he and Gorzelaney had gained entry to the Ferrara house and that the crimes had occurred because Gorzelaney was in a frenzy as a result of the cocaine she had taken. He said he had seen Mary Ferrara’s body as he entered. He described the amount of blood everywhere and the measures that he and Gorzelaney had taken to clean up the blood in the house, on their clothes, and on Gorzelaney’s car. At subsequent interviews, starting later on August 28 and continuing intermittently until September 8, the defendant was regularly reminded of his constitutional rights, and made a number of statements, some not entirely consistent, about how far he himself had gone into the house, about how much he had seen, and about his role in cleaning up the house and the garbage on the porch. In an interview on August 29, he drew some sketches for the police of where he and Gorzelaney had been standing when they gained access to the house. At the end of this interview, he acknowledged that he was cooperating voluntarily, having been advised by his lawyer, earlier that day, that he did not have to talk further to the police. The trial court conducted an extensive hearing and wrote a comprehensive memorandum of decision concerning the admissibility of these various statements. The court suppressed the first three statements as having been elicited, while the defendant was in custody, in violation of the rules of Miranda v. Arizona, 384 U.S. 436, 471-78, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The statements at Humphrey Street and in the ambulance were suppressed for failure to advise the defendant of his constitutional right to remain silent, while the statement in the hospital emergency room was suppressed for failure to honor the defendant’s invocation of his right to remain silent. The court found the remaining statements admissible, however, concluding that the state had established their voluntariness and an intelligent, voluntary and knowing waiver of Miranda rights. The defendant maintains that the court should have excluded all the statements made by the defendant during his period of hospitalization at Yale New Haven Hospital. We disagree.

B

The defendant’s central contention is that, in view of his physical condition, all the statements that he made on August 27 and thereafter should have been suppressed because they were involuntary. The defendant maintains that, upon an independent and scrupulous examination of the entire record to examine the constitutional validity of the trial court’s adjudication of this factual issue; see State v. Schroff, 206 Conn. 182, 195-96, 536 A.2d 952 (1988); State v. Shifflett, 199 Conn. 718, 727, 508 A.2d 748 (1986); we should conclude that the trial court’s finding of voluntariness was clearly erroneous. The defendant urges us to follow Mincey v. Arizona, 437 U.S. 385, 401-402, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), in which the United States Supreme Court concluded that statements were inadmissible because they resulted from interrogation in an intensive care unit under circumstances showing that Mincey’s will had been overborne. If the statements elicited from the defendant at Humphrey Street, in the ambulance, and in the emergency room were involuntary as well as a violation of the defendant’s Miranda rights, the defendant contends such an overbearing of the defendant’s will would have constitutional implications for the admissibility of his subsequent statements to the police. Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).

In its inquiry into the voluntariness of all of the defendant’s statements, the trial court applied the test of Colorado v. Connelly, 479 U.S. 157, 167-68,107 S. Ct. 515, 93 L. Ed. 2d 473 (1986), and Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). State v. Schroff, supra, 196; State v. Barrett, 205 Conn. 437, 451-52, 534 A.2d 219 (1987). Looking at the totality of the circumstances, the court considered whether the conduct of the police caused the will of the defendant to have been overborne and his capacity for self-determination to have been critically impaired. Distinguishing Mincey v. Arizona, supra, the court balanced the defendant’s weakened physical condition against other indicia of voluntary conduct the accuracy of which is largely undisputed. The defendant readily answered the questions of the police officers. He had prior experience with the criminal justice system and therefore probably had received Miranda warnings on earlier occasions. He was an English speaking adult with a college education. The police questioned the defendant in interviews that were of relatively short duration. Except for the questioning in the emergency room, the defendant seemed willing to talk to the police. He seemed alert. In sum, the court was persuaded that the state had met its burden of proving by a preponderance of the evidence that the defendant’s self-inflicted wounds and hospital-administered medication did not impair his capacity to resist questioning by the police. See State v. Wynter, 19 Conn. App. 654, 658-60, 564 A.2d 296 (1989).

Our independent review of the record, the exhibits, and the tapes of the interviews with the defendant persuades us that, as a matter of federal constitutional law, the trial court’s finding of voluntariness was not clearly erroneous. Although the police were aggressively pressing their investigation, the defendant repeatedly demonstrated a spirited capacity to resist questioning that he found inappropriate. While his responses to interrogation were at times inaudible and manifested some confusion, he voluntarily participated in a continued dialogue with the police except in the one instance, in the emergency room, that the trial court found to be a Miranda violation. On that occasion, any temporary inability to resist official questioning that the defendant may have manifested was attributable to his own imminent surgery, rather than to coercive conduct on the part of the police. “[I]n Colorado v. Connelly, supra, 163-64 . . . the court required police overreaching as the crucial element in any inquiry into constitutional voluntariness.” (Internal quotation marks omitted.) State v. Gonzalez, 206 Conn. 213, 222, 537 A.2d 460 (1988); State v. Northrop, 213 Conn. 405, 419, 568 A.2d 439 (1990).

The defendant suggests that, if his federal constitutional claim fails, we should examine the voluntariness of his statements under the state constitution. On several occasions, we have left open the possibility that our state constitution might render a defendant’s involuntary statements inadmissible even if they were motivated by factors other than police coercion. State v. Northrop, supra, 419-20; State v. Gonzalez, supra, 222; State v. Barrett, supra, 452; State v. Smith, 200 Conn. 465, 476, 512 A.2d 189 (1986). The factual predicate for such an inquiry is, however, a finding that, for whatever reason, the defendant’s will was overborne. The trial court in this case found to the contrary. We are not persuaded that the record demonstrates that the defendant’s physical condition left him at any time so enfeebled that we should conclude that the trial court’s finding was clearly erroneous.

C

Our conclusion upholding the trial court’s finding that the defendant’s statements to the police were voluntary makes it difficult for the defendant to prevail on the other issues that he raises about the admissibility of his statements. We need, therefore, to address these contentions only briefly.

Having concluded that the defendant’s initial statements to the police were voluntary, although procured in violation of his Miranda rights, the trial court was justified in concluding that the Miranda violations did not taint the admissibility of his subsequent statements. As long as all of the statements were voluntarily made, the fact that the police procured those statements in violation of the defendant’s Miranda rights does not create a presumption that the police acted coercively. Oregon v. Elstad, supra; State v. Shifflett, supra, 740-42; State v. Derrico, 181 Conn. 151, 167, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

The evidence that establishes the voluntariness of the defendant’s statements equally establishes that his waiver of his Miranda rights was knowing, intelligent and voluntary. With respect to his waiver of these rights, the defendant relies on the same fact-bound contentions about the effect of pain and medication that the trial court found unpersuasive when it ruled on the overall voluntariness of his statements. In these circumstances, we do not subscribe to the defendant’s contention that his waiver was ineffective.

The defendant maintains, finally, that the police violated his Miranda rights in their interrogations at the hospital because they failed to honor his requests that interrogation cease. The defendant maintains that the record shows that the police overrode these requests in violation of their constitutional duty at least to clarify his arguably equivocal invocation of his right to silence. See Michigan v. Mosely, 423 U.S. 96, 104, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975); State v. Shifflett, supra, 738-42. The record also shows that the defendant repeatedly expressed his desire to cooperate with the police in their inquiry and agreed with their suggestion to resume questioning him at a later time. In these circumstances, the trial court could reasonably find that the conduct of the police comported with the requirements of Miranda v. Arizona, supra.

D

The defendant’s final argument is that he is entitled to a new trial because the trial court should have suppressed the teacup taken from the Ferrara house. The police first learned about the existence of the teacup in one of the statements that the trial court ruled inadmissible because it had been procured in violation of the defendant’s Miranda rights. The trial court nevertheless held that the teacup need not be suppressed because, prior to the defendant’s statement, the police had already been engaged in such an extensive search of the area near the Ferrara house that the teacup would inevitably have been discovered without regard to the defendant’s inadmissible statement. Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); State v. Ortiz, 14 Conn. App. 493, 502, 542 A.2d 734 (1988). We agree with the trial court.

The court applied the inevitable discovery doctrine to the facts of this case with sensitivity to what the record showed. The court acknowledged that it was “arguably suspicious” that the police had found the teacup near the turnaround the day following the defendant’s reference, during his ambulance ride to the hospital, to a teacup at that location. The court found credible, however, the testimony of Detective David Bates of the state police describing the far-reaching scope of the prior investigation by the police of the public area in the environs of the Ferrara house, including the specific place where the teacup was found. The court was entitled to infer that this ongoing search would inevitably have led, sooner or later, to the discovery of the teacup even though an earlier search of the entire area had evidently overlooked it. Considering the totality of the evidence and the inferences reasonably to be drawn therefrom, the trial court could reasonably have concluded that the state had met its burden of proving inevitable discovery by a preponderance of the evidence.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction.”
      General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
      General Statutes § 53a-101 provides in relevant part: “(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: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (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-35b. ‘life imprisonment’ defined. A sentence of imprisonment for life shall mean a definite sentence of sixty years, unless the sentence is life imprisonment without the possibility of release, imposed pursuant to subsection (f) of section 53a-46a, in which case the sentence shall be imprisonment for the remainder of the defendant’s natural life.”
      General Statutes § 53a-46a provides in relevant part: “hearing on imposition OF DEATH PENALTY. AGGRAVATING AND MITIGATING FACTORS, (a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
      “(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h). . . .
      “(f) If the jury or, if there is no jury, the court finds that one or more of the factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death. If the jury or, if there is no jury, the court finds that none of the factors set forth in subsection (h) exists or that one or more mitigating factors exist, the court shall impose a sentence of life imprisonment without the possibility of release.”

       Although the trial court had determined that the defendant was guilty of the three counts of murder with which he had been charged, the court rendered no judgment on those counts, because the double jeopardy clause of the fifth amendment of the United States constitution forbids punishment for both a capital felony and the murder that constitutes a lesser included offense. State v. Wood, 208 Conn. 125, 145, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); State v. Usry, 205 Conn. 298, 318, 533 A.2d 212 (1987).

       General Statutes § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years

       As a result of these observations, the state police obtained a search and seizure warrant, which they served on the defendant. The police took the defendant to Derby police headquarters, where he was advised of his constitutional rights and questioned about the murders at the Ferrara house. The defendant consented to a search of his locker at his place of employment, and underwent blood tests at Griffin Hospital. Although he denied involvement in the Ferrara murders, the police viewed him as a suspect.

       It is of no consequence that the evidence does not clearly establish which of the killings were committed by the defendant and which were done by his accomplice, Gorzelaney. Under General Statutes § 53a-8, a person may be prosecuted and punished as if he were the principal offender when, “acting with the mental state required for commission of an offense, [he] solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense . . . .” “Therefore, as we have stated in the past, the terms accessory and principal refer to the alternate means by which one substantive crime may be committed.” (Internal quotation marks and brackets omitted.) State v. Smith, 212 Conn. 593, 598, 563 A.2d 671 (1989); see also In re Ralph M., 211 Conn. 289, 299-300, 559 A.2d 179 (1989).

         Miranda v. Arizona, 384 U.S. 436, 471-78, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant’s pretrial motion to suppress also challenged the legality of the action of the police in seizing an umbrella from the defendant’s locker at his workplace on August 29,1989. Because the trial court agreed that the umbrella had been illegally seized, this seizure is not an issue in this appeal.

       The state urges us to consider the admissibility of this evidence on an alternate ground, the independent source doctrine. In addition to the defendant’s statements, the police had a statement given by Deborah Gorzelaney about the Ferrara murders, in which she indicated that she and the defendant had been using drugs at the turnaround where the teacup was found. The state maintains that the information contained in this statement would have been an independent, constitutional source for the evidence admitted at trial. See Segura, v. United States, 468 U.S. 796, 813-16, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984); Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); State v. Ostroski, 201 Conn. 534, 542, 518 A.2d 915 (1986). We need not address this issue in light of our disposition of the inevitable discovery rule as applied in this case.


source: Caselaw Access Project

author: Shea, J. Berdon, J.,

license: Public Domain

text:
    State of Connecticut v. Everald Howard
    (14285)
    Shea, Callahan, Covello, Borden and Berdon, Js.

      Argued November 8, 1991
    decision released March 17, 1992

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief was G. Douglas Nash, public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Rosita M. Creamer, senior assistant state’s attorney, for the appellee (state).
   Shea, J.

After a jury trial, the defendant, Everald Howard, was found guilty of the following crimes: robbery in the first degree, General Statutes § 53a-134 (a) (4); conspiracy to commit robbery in the first degree, General Statutes §§ 53a-48 and 53a-134 (a) (4); burglary in the first degree, General Statutes § 53a-101 (a) (2); conspiracy to commit burglary in the first degree, General Statutes §§ 53a-48 and 53a-101 (a) (2); and assault in the second degree, General Statutes § 53a-60 (a) (2). He was subsequently sentenced to eighteen years imprisonment for the robbery conviction, eighteen years for the conspiracy to commit robbery conviction, ten years for the burglary conviction, ten years for the conspiracy to commit burglary conviction, all of which were ordered to be served concurrently, and five years for the assault conviction, to be served consecutive to the other sentences, resulting in an effective term of twenty-three years imprisonment. The defendant appeals from that judgment claiming that the trial court improperly: (1) allowed the admission of in-court and out-of-court identifications of him that were the result of an unnecessarily suggestive pretrial identification procedure; (2) denied him access to certain psychiatric and juvenile court records pertaining to an alleged accomplice who testified for the prosecution; and (3) convicted him of two counts of conspiracy arising out of a single agreement. We reverse the judgment in part.

The jury could reasonably have found the following facts. On January 11,1989, Dennis Crosswell, Charlyene Holmes, another person identified only as Jasper and the defendant agreed to steal $15,000 that Jasper believed was hidden in an apartment in a three-family house in Hartford. They decided that Holmes would knock on the door to the apartment, in the hope that, because she was a woman, someone unsuspecting would open it and that they would then all enter the house and steal the money.

That evening, Crosswell, Holmes, Jasper and the defendant drove to the house as agreed. Holmes checked the rear door of the first floor apartment and, finding it locked, returned to the car, where the defendant handed her a loaded revolver. Approximately one-half hour later, Holmes, accompanied by CrossweU, who was wearing a mask, and the defendant, who was not, knocked on the door of the first floor apartment. Suzette Hutchinson came to the door and asked who was there. She opened the door after Holmes had falsely identified herself as “Tuesday,” Hutchinson's sister. Crosswell, Holmes and the defendant then pushed the door wide open and entered the kitchen of the apartment where Hutchinson had been watching television with Chesley Smith, her cousin, and Hilda Edwards, their grandmother. Holmes gave the revolver to the defendant, who pointed it at Hutchinson, Smith and Edwards and ordered them into the bedroom. Hutchinson and Smith complied, but Edwards remained in the kitchen because of her limited ability to walk. Already in the bedroom were several other relatives of Hutchinson: Roxanne Facey, her sister, Timothy Hester, her ten year old brother and Travalis Johnson, her four year old nephew. The defendant pointed the revolver at the group in the bedroom and demanded money. Smith, Hutchinson and Facey gave the defendant a total of $43.75. Meanwhile, Holmes searched the bedroom, overturning the bed, pulling off the mattress and tearing out dresser drawers, but failed to discover any money. The defendant then threatened to shoot Smith if more money was not handed over. When Smith denied knowing about any other money in the apartment, the defendant hit him on the head with the revolver. Smith knelt down and began crying. The defendant then took him to another bedroom where he again hit him on the head with the revolver and punched him in the stomach and shoulders.

While these events were unfolding, Edwards, the grandmother, was screaming from the kitchen. Cross-well hit Edwards on the head to silence her, causing her to cry out louder. When Smith attempted to come to her aid, the defendant prevented him from doing so. The search for money continued throughout the apartment until Holmes noticed a small basement room in which she discovered a pouch containing $15,000. Holmes, Crosswell and the defendant then ran from the house and later divided the money, the defendant receiving $5000, Holmes receiving $4000, Crosswell receiving $2000 and Jasper receiving $4000.

I

In his first claim on appeal, the defendant maintains that identifications of him made from an impermissibly suggestive photographic array and again at trial should have been suppressed as unreliable and violative of his due process rights under the state and federal constitutions. We conclude that no constitutional violation occurred by admission of the pretrial and trial identifications.

Some background information is necessary for the proper analysis of this claim. Shortly after the crimes were committed, the victims, according to a police report, described the assailants “as one being a Jamaican male . . . five feet eleven in height, a hundred and seventy pounds in weight, dark complexion, having [dreadlocks] and having a tan scarf on the lower portion of his face. The other Jamaican male was described as being five foot nine in height, a hundred and sixty pounds in weight, having [dreadlocks], a mustache and beard, and bearing a handgun.” From these descriptions as well as information obtained from other sources, the police suspected the defendant and Cross-well of having committed the crimes. They placed pictures of the two men in an array containing photographs of a total of twelve black males, only three of whom wore their hair in dreadlocks. The only two men who had beards, mustaches and dreadlocks were the defendant and Crosswell. About two and one-half months after the incident, Hutchinson and Smith chose the photographs of the defendant and Crosswell as those of their assailants. Hester was able to identify only the defendant from the photographic array. Each identification was made in the absence of the other witnesses, and none were told whether the others had selected any photograph from the array.

Before trial, the defendant moved to suppress the identifications made from the photographic array and any subsequent in-court identifications. After a hearing the trial court denied the motion, finding that, although the identification procedure used was unnecessarily suggestive in that only three individuals, two of them the defendants, could reasonably be said to fit the description given by the victims, the identifications were nevertheless reliable under the totality of the circumstances. The defendant took exception to the court’s ruling.

To determine whether a pretrial identification procedure, such as the photographic array in this case, violated a defendant’s due process rights, “the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ ” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). At issue in this case is the second prong of the above test, since the state has not challenged the trial court’s finding with respect to the first prong, that the photographic array was unnecessarily suggestive. To determine whether an identification resulting from an unduly suggestive procedure is nevertheless reliable, a court must weigh the corrupting effect of the suggestive procedure in light of the following factors: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Ramsundar, 204 Conn. 4, 10-11, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

Because the Manson reliability inquiry contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals “ ‘clear and manifest error.’ ” State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). Because the issue of the reliability of an identification involves the constitutional rights of an accused, we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. State v. Gordon, 185 Conn. 402, 416, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); see Culombe v. Connecticut, 367 U.S. 568, 605, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).

We turn to a review of the record to determine whether the trial court’s findings are adequately supported. In deciding that the suggestive photographic array had not corrupted the overall reliability of the identifications, the trial court noted that the witnesses had had a good opportunity to view the assailants at close range for a period of thirty-five to forty-five minutes, that their prior descriptions of the assailants accurately described the defendant and Crosswell, that they had displayed a high level of certainty upon identifying the defendant and that the two and one-half months that had transpired between the commission of the crimes and the photographic array identifications was a relatively short period of time. The record supports the court’s findings that the witnesses closely observed their assailants for thirty-five to forty-five minutes, that their prior descriptions matched the characteristics of the defendant and that they did not hesitate in selecting the defendant’s photograph from the array. Moreover, the trial court was correct in concluding that the two and one-half month hiatus between the commission of the crimes and the identifications was not so lengthy that it rendered the identifications unreliable. See State v. Parker, 197 Conn. 595, 600, 500 A.2d 551 (1985) (dictum indicating that an identification made ten months after the commission of the crime was reliable).

The defendant contends that the identifications were unreliable in spite of the trial court’s findings because, due to the victims’ fright at being threatened at gunpoint, they probably focused more intently on the locus of the gun than on the physical appearance of the intruders. Although it is possible that the victims’ concentration on the features of their assailants was compromised because of the stress of the violent surrounding circumstances, such a possibility did not require exclusion of the identifications. Whether the victims’ terror rendered the identifications of the defendant of little or no value was a question properly left to the jury’s determination, after it had heard the cross-examination of the victims on that issue. State v. Perez, 198 Conn. 68, 76-77, 502 A.2d 368 (1985). Because the record adequately supports the trial court’s findings regarding the reliability of the identifications of the defendant and because none of the weaknesses claimed by the defendant are so substantial as to require outright exclusion of the identifications, we decline to disturb the trial court’s decision denying the motion to suppress the identifications.

II

The defendant next claims that his rights to due process of law, to confront witnesses against him, to compulsory process and to present a defense, guaranteed by the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution, were violated when the trial court refused to allow him access to certain privileged psychiatric and juvenile court records pertaining to Charlyene Holmes, who testified for the prosecution against the defendant and Crosswell. We believe the trial court acted properly in denying the defendant access to both sets of records and, therefore, conclude that the defendant’s constitutional rights were not abridged.

A

We first address the issue of whether the defendant was entitled to access to Holmes’ psychiatric records for the purpose of impeaching her credibility. The issue arose in the following context. Holmes testified for the state, providing a detailed description of the crimes committed and identifying the defendant as one of the perpetrators. She was cross-examined by the defendant, principally about her desire to obtain a favorable sentence in exchange for her testimony, about her felony convictions, and about her former romantic relationship with the defendant, with whom she had had a child. After Holmes had been excused, defense counsel represented to the trial court that he had recently learned of certain records relating to in-patient psychiatric treatment Holmes had received at the Cedar-crest Regional Hospital in Newington and that he had subpoenaed those records. He then sought to question Holmes on the basis of what was contained in the records. Holmes waived her privilege with respect to the records so that the trial court could conduct an in camera inspection to ascertain whether the records contained information material to her reliability as a witness. After inspecting the records, the court stated that “there is nothing in these records that remotely relate[s] to the witness’ capacity to testify, to her credibility, [or to] any facts bearing on her reliability or sense of perception, and in short, they have no probative value ... as to her ability to relate the truth or to observe or recollect and narrate relevant occurrences.” The records were then sealed for possible appellate review, and defense counsel reserved the right to challenge the court’s ruling.

A well established procedure exists for determining whether a defendant should be granted access to the psychiatric records of a witness. “If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury’s presence, attempt to make a preliminary showing that ‘there is a reasonable ground to believe’ that the failure to produce the records would likely impair his right to impeach the witness. . . . If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken. . . .

“Upon inspecting the records in camera, the trial court must determine whether the records are espedally probative of the witness’ capadty to relate the truth or to observe, recollect and narrate relevant occurrences. . . . If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. . . . Once the trial court has made its inspection, the court’s determination of a defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb unless abused.” (Citations omitted.) State v. D’Ambrosio, 212 Conn. 50, 58-59, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990); State v. McMurray, 217 Conn. 243, 257-58, 585 A.2d 677 (1991).

Our review of the psychiatric records at issue leads us to conclude that the trial court did not abuse its discretion in denying the defendant access to them because they do not contain information that is especially probative of Holmes’ “ability to comprehend, know or correctly relate the truth . . . .” State v. D Ambrosio, supra, 58. We are convinced that nothing in the Cedar-crest records would have added weight to the defendant’s thorough cross-examination of Holmes and that the trial court properly exercised its discretion in denying the defendant access to those privileged records.

B

After the trial court had issued its ruling on the disclosure of the psychiatric records, it permitted the defendant to recall Holmes as a witness. Holmes testified that she did at times use cocaine, contradicting testimony she had given earlier. She stated that she had smoked cocaine during the week prior to the commission of the crimes and, on occasion, over a period of seven to eight years, whenever she was in the company of the defendant. Defense counsel then began to inquire about the child Holmes had had with the defendant. When the state objected to a question concerning the whereabouts of the child, defense counsel stated that he was seeking to demonstrate that Holmes felt animosity toward the defendant at the time the crimes were committed. After the jury was excused, Holmes testified that she had placed the child in the temporary custody of the department of children and youth services (DCYS), that DCYS had extended the period of its care for the child and that the child was a ward of DCYS when the crimes were committed. When asked by the court how such evidence would tend to establish animosity between the defendant and Holmes, defense counsel replied that he suspected that DCYS had removed the child from Holmes’ custody because of her cocaine abuse and that, since Holmes had testified that she only used drugs when she was around the defendant, she may have blamed the defendant for the loss of custody of her child. The trial court ruled that the entire line of inquiry was irrelevant. The defendant took an exception.

The defendant then moved for an in camera inspection by the trial court of juvenile court records pertaining to neglect proceedings involving DCYS, Holmes and the child, claiming that they might contain information bearing upon Holmes’ credibility. He renewed his argument that a connection between Holmes’ drug abuse and the removal of the child by DCYS would have motivated her to fabricate testimony against the defendant since she might have associated using drugs, and her subsequent loss of the child, with being in his presence. The trial court rejected this argument and refused to conduct an in camera inspection of the juvenile court records. The defendant took an exception to the ruling.

“We have found error in the refusal of a trial court to examine documents in camera where a sufficient foundation has been laid to indicate a reasonable likelihood that they contain material relevant to the case or useful for impeachment of a witness. State v. Hufford, 205 Conn. 386, 404-405, 533 A.2d 866 (1987); State v. Januszewski, 182 Conn. 142, 172-74, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).” State v. James, 211 Conn. 555, 579, 560 A.2d 426 (1989). In this case the defendant made no showing that the records might contain anything relevant to the case or to the credibility of Holmes. He attempted to formulate a motive for Holmes to falsify her testimony by hypothesizing that she might have blamed the defendant, in whose presence she had used cocaine, for the commitment of their child to DCYS on account of her drug usage. Any correlation between these events and the credibility of Holmes was extremely attenuated. Even if the juvenile court records had revealed that the child was removed by DCYS because Holmes was abusing drugs, that fact has little or no relevance to the question of whether Holmes had a motive to incriminate the defendant falsely. The trial court, therefore, did not abuse its discretion when it refused to examine the juvenile court records because the defendant in this case failed to lay a sufficient foundation for the belief that the records likely contained relevant impeachment material. Id.

Ill

The defendant claims, finally, that his convictions of both conspiracy to commit robbery in the first degree and conspiracy to commit burglary in the first degree violate the prohibition against double jeopardy contained in the fifth amendment to the United States constitution and article first, § 8 of the Connecticut constitution. The state agrees, as do we, that the defendant’s constitutional protection against double jeopardy was violated by the existence of the two conspiracy convictions.

The double jeopardy clause of the fifth amendment to the United States constitution, which was made applicable to the states in Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This provision has been regarded as serving three separate functions: “[1] It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense [in a single trial].” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); State v. Lonergan, 213 Conn. 74, 78-79, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). The defendant’s claim that he was unconstitutionally convicted of two counts of conspiracy arising out of a single unlawful agreement implicates the third aspect of double jeopardy protection.

In a substitute information, the state charged the defendant, in one count, with having agreed with Cross-well and Holmes at a certain time and place to commit robbery and, in a separate count, with having agreed with Crosswell and Holmes at the same time and place to commit burglary. In essence, the state charged the defendant with having entered into a single unlawful agreement to accomplish two criminal purposes. “Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute .... For such a violation, only the single penalty prescribed by the statute can be imposed.” Braverman v. United States, 317 U.S. 49, 53-54, 63 S. Ct. 99, 87 L. Ed. 23 (1942); see also State v. Hayes, 127 Conn. 543, 18 A.2d 895 (1941); State v. Kitt, 8 Conn. App. 478, 489-90, 513 A.2d 731 (1986), cert. denied, 202 Conn. 801, 518 A.2d 648 (1987). Accordingly, the defendant’s convictions for two separate conspiracies cannot stand.

Although the parties agree that a double jeopardy violation has occurred, they disagree about what the appropriate order of remand should be to remedy that violation. The defendant argues that we should remand the case to the trial court with direction that it exercise its discretion to render judgment and sentence on only one conspiracy conviction. The state maintains that the trial court should be directed to combine the two conspiracy convictions and to vacate the sentence for one of them. The only practical difference between these two dispositions is that, under the state’s theory, if the remaining conspiracy conviction were later invalidated upon collateral attack for a reason not affecting the merged conspiracy conviction, that unaffected conviction would be resuscitated and the defendant punished for it. If we were to adopt the defendant’s proposal and the remaining conspiracy conviction were somehow invalidated, no other conviction would remain to be resuscitated, and, therefore, the defendant could not be punished for the conviction previously vacated. We considered this question quite thoroughly in State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, U.S. , 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), and decided to adopt the approach advocated by the state. We perceive no reason to undertake a reconsideration of our reasoning in Chicano, particularly in light of the fact that the defendant has not requested that we do so.

The judgment is reversed in part and the case is remanded to the trial court with direction to combine the defendant’s two conspiracy convictions and to vacate the sentence for one of the conspiracy convictions.

In this opinion Callahan, Covello and Borden, Js., concurred.

Berdon, J.,

concurring. While I agree with the majority that double jeopardy bars one of the two conspiracy convictions, I disagree with the procedure ordered on remand. Before this court’s holding in State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, , 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), a successful double jeopardy claim on appeal resulted in an order to remand the case to the trial court with direction to vacate both the impermissible sentence and the impermissible conviction. State v. John, 210 Conn. 652, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Rawls, 198 Conn. 111, 502 A.2d 374 (1985); State v. Amaral, 179 Conn. 239, 425 A.2d 1293 (1979); State v. Goldson, 178 Conn. 422, 423 A.2d 114 (1979); State v. Napoleon, 12 Conn. App. 274, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987); State v. Stellato, 10 Conn. App. 447, 523 A.2d 1345 (1987).

In Chicano, however, we adopted the remand procedure used by the United States Court of Appeals for the Second Circuit, whereby the trial court is directed to vacate only the sentence imposed for the impermissible conviction and leave the judgment of conviction intact by merging or combining it with the remaining conviction. State v. Chicano, supra, 725. The procedure was changed so that if the permissible conviction or sentence were invalidated later by collateral attack, then the impermissible conviction would be resuscitated and the defendant could be punished for that conviction rather than escaping all criminal liability. Id., 723. The rationale behind combining or merging the two convictions is to prevent the use of the impermissible conviction for any purpose except resuscitation. Id., 724.

I believe that Chicano was wrongly decided for the reasons expressed by the Appellate Court when it rejected the Second Circuit’s method in Napoleon. The Appellate Court agreed with the United States Supreme Court’s rationale in Ball v. United States, 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985), and recognized that keeping both convictions on the defendant’s record could have “ ‘potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a further offense. Moreover, the second conviction may be used to impeach the defendant’s credibility and certainly carries the societal stigma accompanying any criminal conviction. . . . Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.’ ...” (Citations omitted.) State v. Napoleon, supra, 280, quoting Ball v. United States, supra, 865.

The defendant has not requested that we reconsider Chicano; therefore, I concur in the result.

       General Statutes § 53a-134 (a) (4) provides: “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 . . . displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       General Statutes § 53a-48 provides: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
      See footnote 1, supra, for the text of General Statutes § 53a-134 (a) (4).

       General Statutes § 53a-101 (a) (2) provides: “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 ... in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       See footnotes 2 and 3 for the text of General Statutes §§ 53a-48 and 53a-101 (a) (2).

       General Statutes § 53a-60 (a) (2) provides: “A person is guilty of assault in the second degree when . . . with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . .

       Jasper, a drug dealer, was involved in a dispute over drug money with someone living in the house and devised this plan to obtain the money.

       The detective who testified at the suppression hearing did not believe that any of the other victims had been asked to view the photographic array, and he could not recall whether he had shown the array to anyone who had failed to make an identification.

       The defendant claims that the descriptions given by the victims, although accurate, were too general to be considered reliable. We do not agree with this assertion. Not only were the victims’ descriptions of the general characteristics of the defendant, such as height, weight, race and facial hair, accurate, as the defendant admits, but they also included a reference to a specific and distinctive hairstyle known as dreadlocks. Such a description is sufficiently specific to justify admission of the identification testimony. The degree of specificity of a prior description is, rather, a factor for the trier of fact to consider in determining how much weight to assign to such an identification.

       Such psychiatric records are privileged pursuant to General Statutes § 52-146e.

       Juvenile court records pertaining to neglect proceedings and encompassing information from DCYS are confidential and subject to disclosure to third parties only upon court order. General Statutes §§ 17a-24 and 46M24.

       Although the Connecticut constitution does not contain a specific provision regarding double jeopardy, the common law rule against double jeopardy has been adopted as necessary to the due process guaranteed by article first, § 8. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

       Although this double jeopardy claim was not preserved at trial, this court has held that such a claim arising in the context of a single trial is nonetheless reviewable. State v. Chicano, 216 Conn. 699, 705, 584 A.2d 425 (1990), cert. denied, U.S. , 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State v. Snook, 210 Conn. 244, 263, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); see also State v. Golding, 213 Conn. 233, 238-42, 567 A.2d 823 (1989).

       Adoption of either view will not affect the twenty-three year total effective sentence of the defendant because the trial court ordered the sentences on both conspiracy convictions to run concurrently with the eighteen year sentence on the robbery conviction.


author: Glass, J.

text:
    Russell Grant et al. v. Charles Bassman et al.
    (14274)
    Shea, Callahan, Glass, Borden and Berdon, Js.
    Argued November 1, 1991
    decision released March 17, 1992

      Lawrence D. Church, with whom was Cheryl Brienza Cook, for the appellants (named plaintiff et al.).

      Robert J. Enright, with whom was Christine C. Murphy, for the appellee (defendant Charles Bassman, Inc.).
   Glass, J.

The plaintiffs, Russell Grant (Grant) and his mother, Gail Grant, brought this action against the defendants, Charles Bassman, Inc. (CBI), and its president, Charles Bassman, seeking damages for personal injuries suffered by Grant while, as a minor, he was illegally employed by CBI. CBI moved to dismiss the plaintiffs’ complaint on the ground that the trial court lacked subject matter jurisdiction because Grant had applied for and received workers’ compensation benefits for his injuries and, thus, was precluded from bringing this action by General Statutes § 31-284 (a). The trial court granted CBI’s motion and the plaintiffs appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023. We reverse the judgment of the trial court.

The plaintiffs’ revised complaint alleged the following. Grant was born on August 25,1969. While a minor, Grant was employed as a laborer by CBI in its excavation contracting business. As part of his duties, Grant was required to operate certain equipment owned and used by CBI in its business, including a backhoe. The defendants employed Grant in an occupation determined to be hazardous by the Connecticut state labor department, in violation of General Statutes (Rev. to 1987) § 31-23 (b), (c) and (d),* and § 31-23-1 of the Regulations of Connecticut State Agencies. Bassman hired Grant with the knowledge that he was a minor and instructed him to start the backhoe by placing a screwdriver across the metal contact points on the starter motor while standing next to the engine compartment and between the wheels. The backhoe was equipped with a safety neutral switch to prevent it from starting while in gear. This switch had been disconnected, however, and was maintained in an inoperable condition. On June 17, 1987, while starting the backhoe as he had been instructed, Grant suffered serious and permanent physical injuries when the backhoe started and crushed him beneath a rear wheel.

The record reveals that Grant applied for and began receiving workers’ compensation benefits for his injuries while he was still a minor.* * A determination has not been made, however, concerning Grant’s entitlement to temporary total disability benefits, specific disability benefits or additional compensation benefits. As a defendant, CBI intervened in this action as a third party plaintiff and has notified the plaintiffs of its claim, pursuant to General Statutes § 31-293 (a), for reimbursement of benefits paid to Grant. CBI filed a motion to dismiss, claiming that the trial court lacked subject matter jurisdiction because Grant’s application for and receipt of workers’ compensation benefits precluded him, pursuant to § 31-284 (a), from bringing this action. The trial court granted CBI’s motion.* *** On appeal, the plaintiffs claim that the trial court improperly concluded that: (1) an illegally employed minor who exercises his right to workers’ compensation benefits is barred from pursuing his common law rights; (2) an illegally employed minor who exercises his right to workers’ compensation benefits has ratified his employment contract and thereby has elected to forego his common law rights; and (3) to show “serious and willful misconduct” by his employer, Grant had to show that CBI deliberately intended to injure him.

The plaintiffs argue that our decision in Blancato v. Feldspar Corporation, 203 Conn. 34, 522 A.2d 1235 (1987), stands for the proposition that an illegally employed minor, such as Grant, is not governed by the exclusive remedy provisions of the Workers’ Compensation Act, and, therefore, may pursue both a workers’ compensation claim and a common law tort action. CBI contends that Blancato requires an illegally employed minor either to avoid the employment contract by bringing a common law tort action or to ratify the contract by pursuing his workers’ compensation remedy. CBI argues that, by applying for and receiving workers’ compensation benefits, Grant ratified the employment contract and is thereby precluded under § 31-284 (a) from bringing a common law action. Because we conclude that CBI’s claim that the plaintiff had made an exclusive election of remedies was not properly raised by a motion to dismiss, we do not reach the substantive issues raised by the parties in this appeal.

In its motion to dismiss, CBI claimed that Grant had elected his exclusive remedy by applying for and receiving workers’ compensation benefits. CBI asserted that as a result of this election, the trial court lacked subject matter jurisdiction over this action. CBI argued, rather, that the workers’ compensation commission had sole jurisdiction over the plaintiffs’ claims. The trial court dismissed the plaintiffs’ complaint against CBI on that basis.

“ ‘Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.’ ” LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990), quoting Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). We start with the premise that the Superior Court has subject matter jurisdiction over a common law negligence action. The question raised by the present case is whether Grant’s commencement of a proceeding with the workers’ compensation commission ousted the trial court of such jurisdiction. “That determination must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction. . . .” LeConche v. Elligers, supra, 709-10.

This court has not squarely addressed the question of whether a claim that an injured plaintiff has elected workers’ compensation as his exclusive remedy deprives the Superior Court of subject matter jurisdiction over a tort action for personal injury. In the past, parties have raised and we have reviewed claims that an injured plaintiff’s exclusive remedy is under the Workers’ Compensation Act both by way of a motion to dismiss and by way of a special defense. Compare Pallanck v. Donovan, 105 Conn. 591, 136 A. 471 (1927) (plea in abatement), with Mancini v. Bureau of Public Works, 167 Conn. 189, 355 A.2d 32 (1974) (special defense), and Bates v. Connecticut Power Co., 130 Conn. 256, 33 A.2d 342 (1943) (special defense). Because these cases did not address the propriety of the procedural posture, however, “[w]e do not read our case law ... as conclusively deciding that such a claim is subject matter jurisdictional.” Gurliacci v. Mayer, 218 Conn. 531, 543, 590 A.2d 914 (1991).

In Fusaro v. Chase Brass & Copper Co., 21 Conn. Sup. 240, 154 A.2d 138 (1956), the trial court discussed the appropriate procedural mechanism for raising a claim that an injured plaintiff has made an exclusive election of workers’ compensation. In that case, the defendant filed a plea to the jurisdiction and in abatement on the ground that workers’ compensation was the plaintiff’s exclusive remedy. The court sustained the plaintiff’s demurrer to the plea, concluding that the matter raised by the plea should properly have been raised by a special defense in the answer. Id., 244. In referring to the predecessor to § 31-284 (a), the court stated: “It is true that our compensation act provides (Rev. 1949, § 7419) that as to an employee covered by it, ‘the employer shall not be liable to any action for damages on account of personal injury.’ This provision, however, is not at all a denial of jurisdiction in the Superior Court, as such, but is basically a destruction of an otherwise existent common-law right of action. The facts alleged in the plea to the jurisdiction would, if proven, establish such a destruction. Consequently, they constitute matter in bar. The confusion, if there be any, arises from the fact that the compensation procedure which is substituted for the common-law right of action involves a special tribunal, rather than the Superior Court. However, this is a mere incident of the destruction of the common-law right of action. In other words, there is not a lack of jurisdiction in the court but a want of a cause of action in the plaintiff. ” (Emphasis added.) Id., 243; see also Gurliacci v. Mayer, supra, 541-45 (suit against fellow employee not subject to motion to dismiss for lack of subject matter jurisdiction).

We agree with the reasoning of the court in Fusaro that a claim that an injured plaintiff has made an exclusive election of workers’ compensation is properly raised by a special defense. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 164. The claim that a plaintiff has elected an exclusive remedy relies on facts outside those alleged in the complaint that operate to negate what may once have been a valid cause of action. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 127, p. 519. It is therefore both rational and fair to place the burden of pleading and proving an election of remedies on the party asserting the claim, usually the defendant. “It is sufficient to require the plaintiff to allege facts showing that at one time, at least, he had a cause of action. It would be an undue burden to require him to negate the occurrence of any and all subsequent events that could operate to destroy his cause of action.” Id. In the present case, CBI asserted in a motion to dismiss that regardless of the truth of the allegations in the plaintiffs’ complaint, they could not maintain a common law action because Grant had elected workers’ compensation as his exclusive remedy. We conclude, however, that a special defense, and not a motion to dismiss, was the proper procedural vehicle for CBI’s challenge to the plaintiffs’ complaint.

The judgment is reversed and the case is remanded with direction to deny the motion to dismiss and for further proceedings according to law.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 31-284. basic rights and liabilities, civil ACTION TO ENJOIN NONCOMPLYING EMPLOYER FROM ENTERING EMPLOYMENT contracts, (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       “[General Statutes (Rev. to 1987)] Sec. 31-23. employment of minors PROHIBITED IN CERTAIN OCCUPATIONS. EXCEPTIONS. . . .
      “(b) No minor under the age of eighteen years shall be employed or permitted to work in any occupation which has been or shall be pronounced hazardous to health by the department of health services or pronounced hazardous in other respects by the labor department. This section shall not apply to the employment or enrolment of minors sixteen years of age and over as apprentices in bona fide apprenticeship courses in manufacturing or mechanical establishments, vocational schools or public schools, or to the employment of such minors who have graduated from a public or private secondary or vocational school, in any manufacturing or mechanical establishment or to the enrolment of such minors in a cooperative work-study program approved by the state board of education and the labor commissioner. No provision of this section shall apply to agricultural employment, domestic service, street trades or the distribution of newspapers. For purposes of this subsection, the term ‘cooperative work-study program’ means a program of vocational education, approved by the state board of education and the labor commissioner, for persons who, through a cooperative arrangement between the school and employers, receive instruction, including required academic courses and related vocational instruction by alternation of study in school with a job in any occupational field, provided these two experiences are planned and supervised by the school and employers so that each contributes to the student’s education and to his employability. Work periods and school attendance may be on alternate half-days, full-days, weeks or other periods of time in fulfilling the cooperative work-study program.
      “(c) Each person who employs a minor under the age of eighteen years shall obtain a certificate from the state board of education stating the age of such minor as provided in section 10-193. Such certificates shall be kept on file at the place of employment and shall be available at all times during business hours to the inspectors of the labor department.
      “(d) Any person, whether acting for himself or as an agent for another, who employs or authorizes or permits to be employed any minor in violation of this section shall be fined not more than one hundred dollars.”

       Grant has received more than $30,000 of indemnity and medical benefits.

       General Statutes § 31-293 (a) provides in relevant part: ‘ ‘When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. . . .”

       The defendant Charles Bassman also filed a motion to dismiss the counts against him, relying on the same ground asserted by CBI. The trial court had not ruled on Bassman’s motion at the time this appeal was filed and, therefore, only the dismissal of the plaintiffs’ complaint as to CBI is before this court. Bassman notified the appellate clerk, however, that he wished to join CBI in its brief on appeal.

       Prior to 1978, Connecticut had merged the common law plea to the jurisdiction with the plea in abatement. 1E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 103, pp. 415-16. The 1978 amendments to the rules of practice replaced the plea in abatement with the motion to dismiss as the proper vehicle to challenge the court’s jurisdiction. 1W. Moller & W. Horton, Practice Book Annotated (3d Ed.) § 142.

       Connecticut case law in areas other than workers’ compensation supports our conclusion that election of remedies should be pleaded as a special defense rather than by a motion to dismiss. See, e.g., DelVecchio v. DelVecchio, 146 Conn. 188, 148 A.2d 554 (1959) (defendant executor alleged in special defense that plaintiff widow had made election of remedies by choosing to take statutory share rather than accept provisions made in husband’s will); Dotolo v. Petrucelli, 5 Conn. Cir. Ct. 274, 250 A.2d 336 (1968) (defendant in personal injury action alleged in special defense that plaintiff had made election of remedies by first proceeding on written compromise settlement rather than alleged oral agreement); but see Masone v. Zoning Board, 148 Conn. 551, 172 A.2d 891 (1961) (trial court lacked jurisdiction to entertain zoning appeal because plaintiffs had elected review of board’s decision by city’s board of representatives as permitted by city charter). For cases in other jurisdictions regarding the proper procedural mechanism for raising a claim of election of remedies, see 25 Am. Jur. 2d, Election of Remedies § 35.


text:
    Deann K. Seymour v. Lynne M. Carcia
    (14287)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.

      Argued December 11, 1991
    decision released March 24, 1992

      Philip J. O’Connor, with whom was Steven Seligman, for the appellant (defendant).

      Kathryn Calibey, for the appellee (plaintiff).
   Glass, J.

This is a tort action brought by the plaintiff, Deann Seymour, against the defendant, Lynne Carcia, for personal injuries suffered by the plaintiff as a result of the alleged negligent operation of an automobile by the defendant. After a trial, the jury returned a verdict in the amount of $176,081 in favor of the plaintiff. Thereafter, the defendant moved to set aside the verdict, claiming that it was excessive, contrary to law and against the evidence. The trial court denied the motion. On appeal, the Appellate Court affirmed the judgment of the trial court. We granted certification limited to the issue of whether the Appellate Court was correct in determining that the plaintiff had introduced sufficient evidence to support the jury’s award for future economic loss. Seymour v. Carcia, 24 Conn. App. 446, 589 A.2d 7, cert. granted, 219 Conn. 903, 593 A.2d 130 (1991). We conclude that there was sufficient evidence to support the award and, therefore, we affirm the judgment of the Appellate Court.

Although the facts are set forth fully in the opinion of the Appellate Court; Seymour v. Carcia, supra; we relate those facts necessary to a determination of the certified issue. The jury could reasonably have found the following facts. On March 6,1987, at approximately 8:50 p.m., the defendant was driving west on route 44 in Avon. At approximately the same time, the plaintiff was travelling east on route 44 in a car being driven by Joseph Anastasio. As Anastasio entered the intersection of Waterville Road and route 44, the defendant made a left turn and crossed into the eastbound lane where she collided with the car driven by Anastasio. As a result of the collision, the plaintiff suffered injuries to the cervical, dorsal and lumbosacral regions of her spine. She received treatment for those injuries from the time of the accident until the time of trial more than two years later.

At the trial, the plaintiff testified that she continued to suffer discomfort in her lower back. The plaintiff further testified that she was unable to sit in a car for extended periods of time. She also testified that she had missed between six and seven days of work during the two years following the accident and, as a result, had lost earnings of approximately $500. She testified that she had suffered “flare-ups” for which she had sought medical treatment, and that only a week before the trial when she had last sought such treatment, she had experienced “great difficulty” walking.

Steven Shifreen, a physician, testified for the plaintiff as an expert witness. Shifreen had treated the plaintiff for the first time one week after the accident and had continued to treat her until shortly before the time of trial. Shifreen testified that as a result of the accident, the plaintiff had a fifteen percent permanent disability of her lower back. He testified farther that based on the plaintiffs past medical history and the permanency of her injuries, she would “in all probability suffer some relapses,” and that he had “no doubt” that she would require medical care in the future. Shifreen testified that when the plaintiff had come to see him approximately one week before the trial, she had “hobbled into the office, almost unable to walk.” He described the various types of therapy that he had administered to the plaintiff during the course of her treatment. Shifreen also testified that he had recommended that the plaintiff purchase an orthopedic car seat. Medical bills admitted into evidence indicated that the plaintiff had incurred $874.96 in medical expenses in 1989. The evidence also established that the cost of the car seat recommended by Shifreen was $2372.33. The parties stipulated that the plaintiff’s life expectancy was 54.9 years.

The jury awarded the plaintiff total damages of $176,081, including $68,372 for future economic loss. The court denied the defendant’s motion to set aside the verdict and judgment was rendered on the verdict accordingly. The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. We granted certification and now affirm the judgment of the Appellate Court.

The sole issue in this appeal is whether the Appellate Court was correct in determining that the plaintiff had introduced sufficient evidence to support the jury’s award for future economic loss. The defendant claims that the evidence introduced by the plaintiff to prove future economic loss did not provide the jury with a sufficient basis to arrive at an award for such damages and, therefore, the Appellate Court incorrectly affirmed the judgment of the trial court. The plaintiff contends that the Appellate Court correctly determined that the evidence she had presented at trial regarding the nature and extent of her injuries, her past medical treatment and expenses, her projected life expectancy and the cost of a prescribed orthopedic car seat was sufficient to support the jury’s award. We agree with the plaintiff and, therefore, we affirm the judgment of the Appellate Court.

“Litigants have a constitutional right to have factual issues resolved by the jury. . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury. . . . In considering a motion to set aside the verdiet, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. . . .The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness.” (Citations omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 138-39, 540 A.2d 666 (1988).

Under General Statutes (Rev. to 1987) § 52-225d, “[fjuture economic damages” are defined as “compensation determined by the trier of fact for pecuniary losses not yet incurred by the claimant at the time the damages findings are made including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any past or future noneconomic damages.” Thus, as long as the plaintiff met the requisite burden of proof for these elements of damages, she could recover the cost of reasonable and necessary future medical care and the projected loss of earnings resulting from her injury. “Damages for the future consequences of an injury can never be forecast with certainty. With respect to awards for permanent injuries, actuarial tables of average life expectancy are commonly used to assist the trier in measuring the loss a plaintiff is likely to sustain from the future effects of an injury.” Petriello v. Kalman, 215 Conn. 377, 396-97, 576 A.2d 474 (1990); see also 47 Restatement (Second), Torts § 912, comment (e). In addition, “[t]he cost and frequency of past medical treatment . . . may be used as a ‘yardstick for future expenses’ if it can be inferred that the plaintiff will continue to seek the same form of treatment in the future.” 2 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages In Tort Actions § 9.55[4], p. 9-80. “It is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date, particularly when there is also a degree of medical certainty that future medical expenses will be necessary. . . . Future medical expenses do not require the same degree of certainty as past medical expenses. . . . Where the doctor testifies that the injured party might need future treatment and the injured party testifies he still suffers pain, that testimony is sufficient for consideration of the element of future medical expense.” (Citations omitted.) Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 233, 788 S.W.2d 729 (1990).

Viewing the record as a whole in light of the foregoing standards, we conclude that the plaintiff in this case presented sufficient evidence to support the jury’s award for future economic loss. The jury could reasonably have found that more than two years after the accident had occurred, the plaintiff continued to experience discomfort in her lower back as a result of her injuries, and that she had suffered several relapses for which she had sought medical treatment. The evidence introduced at the trial further established that in 1989, the plaintiff had incurred medical expenses of $874.96. Shifreen, the plaintiff’s medical expert, testified that the plaintiff’s injuries were permanent, and that based on the plaintiff’s past medical history, she would “in all probability suffer some relapses.” He further testified that he had “no doubt that [the plaintiff would] require care in the future.” The parties stipulated that the plaintiff’s life expectancy was 54.9 years. Shifreen also testified that he had recommended that the plaintiff purchase an orthopedic car seat. Evidence submitted by the plaintiff established that the cost of this seat was $2372.33.

The expert testimony that the plaintiff would require lifelong medical care in conjunction with the evidence regarding the type and cost of medical treatment received by the plaintiff since the accident raised a reasonable inference that she would continue to seek similar treatment in the future. See 2 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, supra. In addition, the plaintiff’s testimony regarding the amount of earnings she had lost as a result of her injuries provided a reasonable basis for the jury to estimate future loss of earnings.* *** See Delott v. Roraback, 179 Conn. 406, 411, 426 A.2d 791 (1980) (evidence of loss of earning capacity need not be established with exactness as long as it affords the jury a basis for a reasonable estimate). Thus, in view of the expert medical testimony, the evidence of the plaintiff’s past loss of earnings and the plaintiff’s stipulated life expectancy, we cannot say that the jury’s award for future economic damages was unreasonable.

“Damages in a personal injury case are not to be awarded upon a fixed basis, table, standard, or precise mathematical formula.” D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.) § 171, p. 488, citing Floyd v. Fruit Industries, Ine., 144 Conn. 659, 675, 136 A.2d 918 (1957). Rather, “[i]n awarding future medical expenses, a jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities. Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884 (1971). Such evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. See Healy v. White, 173 Conn. 438, 442, 378 A.2d 540 (1977); Nash v. Hunt, 166 Conn. 418, 428, 352 A.2d 773 (1974); Hanauer v. Coscia, 157 Conn. 49, 53, 244 A.2d 611 (1968).” Reilly v. DiBianco, 6 Conn. App. 556, 575, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 192 (1986).* **

The defendant, as previously noted, contends that the plaintiff introduced insufficient evidence as to the nature, frequency and cost of future medical treatment, and the economic implications of any future medical problems resulting from the accident, to support the jury’s award of future economic loss. We disagree. Giving the evidence the most favorable construction in support of the jury’s award to which it is reasonably entitled, we conclude that the award of $68,372 for future economic loss was not unreasonable. The Appellate Court, therefore, correctly concluded that the defendant was not entitled to have that portion of the damages award set aside. See Healy v. White, supra, 449. “ ‘The ultimate test is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. . . .’ Marin v. Silva, 156 Conn. 321, 323, 240 A.2d 909 [1968].” Jerz v. Humphrey, supra. In the present case, the defendant has not claimed that any incident occurred during the trial to influence the jury improperly, nor are we able to say that the jury’s award for future economic loss is so excessive as to compel such a conclusion.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       Shifreen testified that he had treated the plaintiff with a course of physical and manual therapy applied to the injured areas, including infrared heat treatments, massage therapy, manual mobilization and ultrasound. Shifreen also testified that he had prescribed medication for the plaintiff, bills for which were admitted into evidence. Upon cross-examination, Shifreen testified that he usually charged $15 for heat treatment, $15 for massage therapy and $20 for mobilization therapy. He stated that the lowest charge to the plaintiff for any one visit had been $50.

       This figure was attributable to treatment administered to the plaintiff by Shifreen. The evidence presented at the trial established that since the time of the accident, the plaintiff had incurred a total medical bill of $6922.46 for services rendered by Shifreen.

       The remainder of the verdict was apportioned as follows: $8125 for past economic loss, $3750 for past noneconomic loss, $54,000 for future noneconomic loss, and $41,834 in fees and costs. Pursuant to the defendant’s motion to open the judgment, the trial court later reduced the judgment by $3125 to conform with the collateral source provisions of No. 86-338 of the 1986 Public Acts.

       Although the evidence fails to show the useful life of an orthopedic car seat, we agree with the Appellate Court that the jury could have determined a reasonable useful life for that item and estimated the number of repurchases necessary during the stipulated 54.9 years remaining of the plaintiffs life. Seymour v. Carcia, 24 Conn. App. 446, 450, 589 A.2d 7 (1991).

       The Appellate Court concluded that the jury’s award for future economic loss was not unreasonable without regard to any loss of earning capacity. Seymour v. Carcia, 24 Conn. App. 446, 450, 589 A.2d 7 (1991). The Appellate Court noted, however, that there was some evidence of the plaintiff’s loss of earning capacity. Id.

       In Hartt v. Wiggin, 379 A.2d 155, 156-57 (Me. 1977), the plaintiff sustained back injuries as a result of an automobile accident with the defendant. At trial the plaintiff introduced evidence regarding the permanency of his injuries, the past frequency of medical treatments and the cost of such treatments. He also introduced evidence of the cost of medications prescribed by his physician. The defendant requested a mistrial on the ground that the plaintiff’s closing argument had improperly projected a mathematical computation of, inter alia, future medical care costs based on unproven facts and facts not in evidence. In upholding the trial court’s refusal to grant a mistrial, the Supreme Judicial Court of Maine stated: “It was permissible for the jury to infer from [the] evidence that [the plaintiff’s] back condition would persist as it had persisted for the preceding three and one-half years and that [the plaintiff] would reasonably continue to seek the same forms of relief and treatment in the future as he had in the past. Under those circumstances the cost and frequency of past medical treatment, the average monthly cost of medication, and [the plaintiff’s] life expectancy were proper factors to be considered in assessing future medical costs.” Id., 157. We can discern no reason why the same or similar factors should be insufficient to prove future economic damages in the present case.

       In Petriello v. Kalman, 215 Conn. 377, 397-98, 576 A.2d 474 (1990), this court held that “in a tort action, a plaintiff who has established a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm is entitled to compensation to the extent that the future harm is likely to occur.” This court overruled the following cases to the extent that they held otherwise: Healy v. White, 173 Conn. 438, 378 A.2d 540 (1977); Davis v. P. Gambardella & Son Cheese Corporation, 147 Conn. 365, 161 A.2d 583 (1960); Sheiman v. Sheiman, 143 Conn. 222, 121 A.2d 285 (1956); and Johnson v. Connecticut Co., 85 Conn. 438, 83 A. 530 (1912). Petriello v. Kalman, supra, 398 n.ll. The holding, however, did not affect these cases insofar as any of them held that damages for future economic loss could not he sustained when the jury lacked a reasonable basis to estimate such damages. See Sheiman v. Sheiman, supra, 225-26; cf. Hulk v. Aishberg, 126 Conn. 360, 363,11 A.2d 380 (1940) (trial court was not required to charge jury on permanent disability or future loss of earnings when no evidence had been introduced as to the duration of plaintiffs disability).