author: Shea, J.

text:
    State of Connecticut v. Vance Williams
    (13082)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued December 1, 1987
    decision released February 2, 1988

      John M. Massameno, assistant state’s attorney, with whom were Frank S. Maco, assistant state’s attorney, and, on the brief, John J. Kelly, chief state’s attorney, for the appellant (state).

      John A. Gawrych, with whom was Jamie V. Gregg, for the appellee (defendant).
   Shea, J.

The dispositive issue in this appeal is whether the defendant, Vance Williams, has standing to challenge the procedure by which a witness against him has been immunized under General Statutes § 54-47a. We conclude that the defendant lacks standing to raise such a challenge. There is error, and the case is remanded to the trial court with direction to permit the immunized witness to testify at the trial of this case.

The chief court administrator appointed Anthony V. DeMayo, a judge of the Superior Court, to conduct an inquiry pursuant to General Statutes (Rev. to 1985) § 54-47 into allegations of professional gambling and municipal corruption in the city of Torrington. During the course of that inquiry a witness, Daniel Sabia, invoked his right not to testify under the fifth amendment to the United States constitution. Thereafter, the special prosecutor assisting in the inquiry notified Sabia and his attorney that he would, pursuant to § 54-47a, submit to a judge of the Superior Court an application for an order directing Sabia to testify under a grant of immunity. That application was heard and granted by Judge DeMayo on August 26, 1985. Sabia later responded to the question posed.

The evidence Sabia gave, together with other evidence, led to the arrest of the defendant, a Torrington police officer, on charges of possessing cocaine and hindering prosecution. Prior to trial, the defendant filed a motion seeking to bar the admission into evidence of the opinion testimony of Sabia and others that substances they had provided to the defendant or had observed him possess or consume were in fact narcotic substances under our drug laws. During the course of a hearing concerning that motion, Sabia refused to testify and asserted his federal and state constitutional rights against self-incrimination.

The state’s attorney then made a second application for an order directing Sabia to testify under a grant of immunity. In the argument that ensued, the trial court, Moraghan, J., was apprised that it was Judge DeMayo who had acted upon the earlier application for the order directing Sabia to testify during the inquiry he was conducting. The defendant then claimed that a judge conducting an inquiry under § 54-47 could not, in essence, “wear two hats,” and that the prior grant of immunity was, therefore, invalid. The court agreed but, nevertheless, after the state had applied for another grant of immunity to Sabia, granted this second application. Sabia then testified in accordance with the court’s order in such a manner as to implicate the defendant in the crimes charged.

Notwithstanding its order directing Sabia to testify, the trial court, after defense counsel renewed his objection, later suppressed that testimony. The trial court relied on two separate grounds for excluding Sabia’s testimony. First, the trial court determined that a judge who has been appointed for the purpose of an investigation under § 54-47 cannot grant immunity to a witness in connectioh with that inquiry. Second, the court held that our immunity statute required the state to establish an independent source for all immunized testimony whenever its admission is objected to by any party. The trial court concluded that, although the general rule of standing would forbid the vicarious assertion of fifth amendment rights, this case called for an exception because, in its view, the grant of immunity had been made without authority. The trial court also relied upon the last sentence of § 54-47a (b) as giving the defendant standing to challenge the admission of Sabia’s testimony. Accordingly, the court ordered his testimony to be suppressed. The state then moved to dismiss with prejudice all pending charges; see State v. Ross, 189 Conn. 42, 51, 454 A.2d 266 (1983); and, after that motion had been granted, sought permission to appeal. After a hearing, the motion for permission to appeal was granted. This appeal followed.

The state raises the following issues in challenging the trial court’s exclusion of Sabia’s testimony: (1) whether the immunity statute or considerations of public policy forbid a judge of the Superior Court who is conducting a judicial inquiry from performing the allegedly nondiscretionary act of granting an application for an order to compel a witness to testify before the inquiry; (2) whether, even if there were error in granting the application to compel testimony during the inquiry, the exclusionary rule would in any event be applicable; (3) whether the defendant has standing to contest the allegedly erroneous grant of immunity to Sabia; and (4) whether our immunity statute requires the state to establish an independent source for immunized testimony. In view of our conclusion that the defendant lacks standing to challenge the admissibility of Sabia’s testimony, we shall not address the state’s first two claims.

I

The trial court acknowledged that a defendant ordinarily lacks standing to challenge a grant of immunity to a witness who testifies against him. United States v. Foster, 478 F.2d 1001, 1003 (7th Cir. 1973); State v. Melvin, 390 A.2d 1024, 1029 (Me. 1978). The trial court determined, nevertheless, that because the grant of immunity by Judge DeMayo to Sabia was “clearly illegal” that “this case demanded] an exception to the general rule that one party has no standing to raise another’s rights.” We conclude that the circumstances of this case do not warrant a departure from the general principle that a defendant does not have standing to challenge the method by which a witness against him has been immunized.

The trial court relied on Ellis v. United States, 416 F.2d 791, 799 (D.C. Cir. 1969), for the proposition that a defendant has standing “to complain that his conviction was obtained in a case where the trial judge went outside his judicial province to grant immunity to a witness.” We note initially that Ellis is not binding precedent on this court, in contrast to a decision by the United States Supreme Court. We decline to apply the rationale of Ellis to this case for two reasons. First, subsequent decisions by the United States Supreme Court, while not directly overruling Ellis, have emphasized that the right to be free from testimonial compulsion is a personal one that may not be asserted vicariously. Fisher v. United States, 425 U.S. 391, 398-99, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976); Broadrick v. Oklahoma, 413 U.S. 601, 610-11, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). Second, the facts in Ellis were quite different from those in the case at bar. In Ellis, the District Court had usurped executive power by acting on its own initiative to grant immunity to a witness. The District Court in Ellis had assumed a role outside the scope of the judicial power. In the present case the state applied for an order directing Sabia to testify under a grant of immunity. The defendant concedes that any judge of the Superior Court except Judge DeMayo could properly have granted immunity to Sabia. We decline in the present circumstances to depart from the general rule that a defendant lacks standing to challenge the procedure by which a witness against him has been immunized. We hold that the defendant does not have standing in this case to challenge whether a judge of the Superior Court who is conducting a judicial inquiry may properly grant an application for an order to compel a witness to testify before the inquiry.

II

The trial court also held that the defendant had standing to challenge the admissibility of Sabia’s compelled testimony under § 54-47a (b), because the last sentence of the statute provides that, “[w]henever evidence is objected to as inadmissible because it was discovered as a result of or otherwise derived from compelled testimony or evidence, the burden shall be upon the person offering the challenged evidence to establish a source independent of the compelled testimony or evidence.” Acknowledging that its construction of our immunity statute might well produce a “bizarre” result, the trial court nevertheless concluded that the quoted provision requires the state, even when the immunized witness is not a defendant, to establish an independent source for immunized testimony whenever an objection is raised. We conclude that the trial court erred in construing our immunity statute to confer standing upon anyone but the immunized witness in a proceeding against the witness to require the state to establish an independent source for evidence derived from compelled testimony.

The state argues that the trial court’s interpretation of the last sentence of the statute effectively renders the entire immunity statute unworkable. Section 54-47a (a) requires the state to establish that a grant of immunity “is necessary to the public interest.” A serious question would arise whether immunized testimony was “necessary to the public interest” if “a source independent of the compelled testimony or evidence” existed. General Statutes § 54-47a (a) and (b). Under the court’s interpretation of the statute the state is enmeshed in a virtually unsolvable conundrum. The state would have to provide independent evidence corroborating the testimony of an immunized witness before that compelled evidence might be admitted. It would be inappropriate, however, for the state to apply for immunity of a witness, if independent evidence were available of the facts to be elicted from the witness, because his testimony would not then be “necessary to the public interest.” The court recognized that “[t]he dilemma framed by the State is not insignificant.” It concluded, nevertheless, that the last sentence of the statute required this strange result.

In determining the meaning of statutory language, this court must read a statute as a whole. Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 699, 535 A.2d 357 (1988); Struckman v. Burns, 205 Conn. 542, 546, 534 A.2d 888 (1987); State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985). Moreover, where a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to “bizarre results” destructive of that purpose, the former should prevail. Simko v. Zoning Board of Appeals, 205 Conn. 413, 422-23, 533 A.2d 879 (1987) (Shea, J., dissenting); State v. Parmalee, supra, 165.

If the last sentence of the statute, on which the trial court relied, stood alone, it would literally bar the testimony of any immunized witness, because such evidence must necessarily have been “discovered as a result of or otherwise derived from compelled testimony,” quite apart from any question, such as that raised in this case, of the validity of the immunity grant. Thus, the purpose of the enactment, to enable the state to use testimony otherwise unavailable because of the privilege against self-incrimination, would be entirely defeated. The last sentence would effectively nullify the preceding provisions of the statute, because it would have to be shown that the evidence to be furnished by the immunized witness had been obtained from “a source independent of the compelled testimony or evidence.” Such a self-contradictory result could not have been intended by the legislature.

The immunity created by § 54-47a (b) is contained in the sentence preceding the last one and is plainly intended to provide witnesses compelled to testify in criminal proceedings against others with protection at least equivalent to that available under the constitutional privilege against self-incrimination. See Kastigar v. United States, 406 U.S. 441, 448-62, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). “No such witness may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled to testify or produce evidence . . . .” General Statutes § 54-47a (b). It is plain that the protection afforded by this provision, like that inherent in the privilege, is expressly restricted to the immunized witness. The last sentence must be read in this light, because the references in the preceding sentence to prosecutions against “such witness” and to the use of derivative evidence “against him” would be superfluous if every defendant could object to evidence because compelled testimony was its source. General Statutes § 54-47a (b). The broad language upon which the trial court relied, “[w]henever evidence is objected to as inadmissible because it was discovered as a result of or otherwise derived from compelled testimony or evidence,” when read with the preceding sentence, implicitly refers to objections raised only by the immunized witness in proceedings against him and does not authorize other defendants to invoke the rights of the immunized witness. We perceive no intention on the part of the legislature to abandon the well established principle of standing that a defendant cannot rely upon a possible violation of another’s rights. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); State v. Morrill, 197 Conn. 507, 540, 498 A.2d 76 (1985).

The trial court was concerned that the last sentence of § 54-47a (b) would become wholly superfluous if it were applicable to only those objections raised in a proceeding against the immunized witness, because the preceding sentence appears to provide the same protection to him against the use of his compelled testimony and, in addition, provides transactional immunity, barring any prosecution, penalty or forfeiture “for or on account of any transaction, matter or thing concerning which he is compelled to testify or produce evidence.” We need not consider whether the prohibition against use or derivative use of compelled testimony is necessarily redundant where transactional immunity has been given to the immunized witness. The sparse legislative history of § 54-47a clearly demonstrates that the General Assembly intended to provide both transactional and derivative use immunity to witnesses compelled under the statute to testify. Representative Lawrence Merly in discussing the statute in the House of Representatives remarked that “not only is the witness granted immunity from prosecution, but also any evidence which might be derived from his testimony cannot be used against him.” 13 H.R. Proc., Pt. 8, 1969 Sess., p. 3628. Nothing in this history, however, suggests an intention to afford protection to anyone except the immunized witness.

We do not view the last sentence of § 54-47a (b) as superfluous simply because it protects only immunized witnesses. Where such a witness is being prosecuted for a crime not related to a “transaction, matter or thing” mentioned in his previously compelled testimony, it may well be disputed whether evidence offered in proof of the unrelated crime has been discovered from use of his compelled testimony. In such event the last sentence makes it clear that it is not the defendant but the state that has the burden of establishing that the evidence has been obtained from “a source independent of the compelled testimony or evidence.” A statutory provision allocating the burden of proof in this manner is not superfluous.

There is error, the judgment of dismissal is set aside and the case is remanded to the trial court with direction to permit the testimony of the immunized witness in this case.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 54-47a. compelling testimony op witness, immunity prom prosecution, (a) Whenever in the judgment of the chief state’s attorney, a state’s attorney or the deputy chief state’s attorney, the testimony of any witness or the production of books, papers or other evidence of any witness (1) in any criminal proceeding involving narcotics, arson, bribery, gambling, election law violations, felonious crimes of violence or any violation which is an offense under the provisions of title 25, before a court or grand jury of this state or (2) in any investigation conducted by an investigatory grand jury as provided in sections 54-47b to 54-47g, inclusive, is necessary to the public interest, the chief state’s attorney, the state’s attorney, or the deputy chief state’s attorney, may, with notice to the witness, after the witness has claimed his privilege against self-incrimination, make application to the court for an order directing the witness to testify or produce evidence subject to the provisions of this section.
      “(b) Upon the issuance of the order such witness shall not be excused from testifying or from producing books, papers or other evidence in such case or proceeding on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. No such witness may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled to testify or produce evidence, and no testimony or evidence so compelled, and no evidence discovered as a result of or otherwise derived from testimony or evidence so compelled, may be used as evidence against him in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence. Whenever evidence is objected to as inadmissible because it was discovered as a result of or otherwise derived from compelled testimony or evidence, the burden shall be upon the person offering the challenged evidence to establish a source independent of the compelled testimony or evidence.”

       General Statutes (Rev. to 1985) § 54-47, has been repealed. Public Acts 1985, No. 85-611, § 9. It has been supplanted by provisions for an investigatory grand jury under General Statutes §§ 54-47c and 54-47d, effective October 1, 1985. Public Acts 1985, No. 85-611, §§ 2, 3. The repeal of this statute does not affect our analysis of the provisions of General Statutes § 54-47a (b).


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    State of Connecticut v. Hector Gonzalez
    (12976)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.
    Argued November 4, 1987
    decision released February 9, 1988

      Suzanne Zitser, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Jonathan C. Benedict, assistant state’s attorney, for the appellee (state).
   Covello, J.

On November 1,1985, a jury found the defendant, Hector Gonzalez, guilty of capital felony in violation of General Statutes § 53a-54b (8) and attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a. The defendant appeals from the judgment of conviction and claims that the trial court erred in (1) concluding that the defendant knowingly and intelligently waived his constitutional right against self-incrimination, (2) refusing to dismiss the prosecution against him based on the loss or destruction of physical evidence and refusing to instruct the jury on adverse inferences they could draw from the unexplained disappearance of this evidence, and (3) instructing the jury on circumstantial evidence. We find no error.

The jury could reasonably have found that on the morning of May 6,1983, police responded to a call and discovered two men who had been shot to death in a Bridgeport apartment. A third victim, Roberto Marin, had survived the shooting and had been taken to the hospital before the police arrived. Police observed a car speeding away from the area of the crimes and, between 9:30 and 10 that morning, brought the driver, Jose “Willy” Rivera, to the police station. Rivera wore a T-shirt which bore “sprinkles” of blood, but, in an interview with detectives, he denied any knowledge of the shootings. Rivera gave the T-shirt to the police for laboratory testing of the stains.

Later that morning, a detective interviewed Marin at the hospital. Marin declared that while Rivera had been present at the attack, it was “Iran” who had shot him and the two other victims. The detectives then interviewed Rivera again. During this second meeting, Rivera admitted having been present during the shootings and identified “Iran” as the nickname of the defendant, Hector Gonzalez. Rivera stated further that “Iran” had done all the shooting.

On the basis of this information, Bridgeport police located and arrested the defendant later that day. The police read him his Miranda rights in English during the ride to the police station. Upon arrival, Inspector Anthony Fabrizi advised the defendant of his rights in Spanish. After inquiring whether the defendant had understood his rights, and receiving an affirmative response, Fabrizi asked the defendant in Spanish and in English whether he would be willing to make a statement concerning the circumstances surrounding the shootings. The defendant admitted one of the shootings and then related his version of the events in English that the police understood without difficulty. The defendant claimed that a third person, whom he identified as the “Cuban man,” shot the two victims following a robbery in the victims’ apartment. The “Cuban man” then tossed the gun to the defendant, who then shot Marin accidentally. Upon Fabrizi’s request, the defendant agreed to give a written statement.

Lieutenant Frank Nerkowski obtained the defendant’s written statement with the assistance of a fellow Bridgeport employee who translated. After Nerkowski readvised the defendant of each Miranda right, his colleague translated the right into Spanish and asked the defendant if he understood the right. The defendant indicated each time that he did. The defendant then gave his statement concerning the shootings and Nerkowski typed the statement as the defendant spoke. The translator read the statement to the defendant, who then signed it.

I

The defendant first claims that the trial court erred in denying, after a hearing, his motion to suppress his oral and written statements given to the police after his arrest. The defendant alleges that he was unable to execute a knowing and intelligent waiver of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that his incriminating statements were made involuntarily.

The defendant concedes that his Miranda rights were explained to him in the police car at the time of his arrest and again after arrival at the police station before any of his statements were made. He claims, however, that he was intellectually incapable of understanding, and consequently, of waiving his Miranda rights. The defendant bases this claim on (1) his limited facility with the English language, and (2) results of psychological testing that characterized him as falling within the “dull normal” range of intelligence.

Where, as here, a defendant claims that his statement was “obtained in violation of our Miranda doctrine, the [s]tate need prove waiver only by a preponderance of the evidence.” Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); see also State v. Pecoraro, 198 Conn. 203, 208, 502 A.2d 396 (1985). To be valid, a waiver must be voluntary, knowing and intelligent. “Whether a purported waiver satisfies these requirements is a question of fact in which the circumstances of the particular case, including the record of the defendant’s conduct in police custody, should be considered.” State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987).

In support of his argument that he was intellectually incapable of making a knowing and intelligent waiver of his Miranda rights, the defendant presented testimony from a clinical psychologist for the city of Hartford, a graduate student in Spanish who was a teaching associate, and a physician specializing in neurology and psychiatry. The psychologist testified as to intelligence testing she had performed on the defendant that indicated that he had “low” comprehension of verbal material. The physician testified as to neurological and psychiatric findings he had made after examining the defendant. He stated that his “major finding” on the neurologic examination was the defendant’s reduced ability to perceive pin prick and vibration sensations on the right side of his body, which indicated damage to the left hemisphere of his brain. On the basis of the results of his psychiatric examination, the physician found the defendant to have a thought disorder characterized by too many thoughts at one time and “thoughts which go too fast,” accompanied by an inability to deal effectively with stress.

We agree with the trial court’s conclusion that the expert testimony was not necessarily determinative of the defendant’s ability to execute a knowing and intelligent waiver. See State v. Boscarino, supra, 744. Examination of the record convinces us that the trial court’s finding of a valid waiver is supported by substantial evidence. State v. Barrett, 205 Conn. 437, 451, 534 A.2d 219 (1987); State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). The defendant conceded “that he had been read, and had acknowledged his understanding of, his Miranda rights.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); see State v. Boscarino, supra; State v. Chung, 202 Conn. 39, 48, 50, 519 A.2d 1175 (1987). Although the defendant spoke clear and understandable English, the police, out of an abundance of caution, advised him of his constitutional rights in both English and Spanish. During the translation of the rights form into Spanish, the translator paused after reading each right and asked the defendant whether he had understood. The defendant indicated in each instance that he had, and he then placed his initials on the form next to the right that had just been read to him. After translating all the rights on the rights form, including her translation that “he’s been advised of all his rights and that he fully understands his rights, and that he’s waiving his rights freely and voluntarily with no fear and no promises,” the translator told the defendant that if he agreed with the document, he could sign it. The defendant then signed the rights form that had been read to him.

“The question [of valid waiver] is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” North Carolina v. Butler, supra. The defendant contends that the Bridgeport police committed reversible error in obtaining his signature on a “Notice of Rights,” rather than a “Waiver of Rights” form. We reject this argument as one that elevates form over substance. See State v. Weidenhof, 205 Conn. 262, 269, 533 A.2d 545 (1987). After having been advised of all the Miranda rights, including the right to remain silent, the right to an attorney, and the right not to be questioned without consent, the defendant was asked whether he would be willing to make a statement to police about the crimes with which he was being charged. He responded by narrating his version of the events in question. “Under these circumstances, the defendant’s expressed willingness to speak constituted an explicit affirmative act evidencing waiver, which the court could reasonably find persuasive despite the defendant’s [failure] to sign [a] waiver form.” State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).

On the issue of the language used during the translation of the Miranda rights waiver, the defendant presented the expert testimony of the graduate student in Spanish who was a teaching associate. She testified that the translator erroneously had used the Spanish word for “exercising” (“ejerciendo”) instead of the word for “waiving” (“renunciando”) in the translation. Her testimony, in essence, was that the defendant might reasonably have understood the translation as “I am exercising my rights” rather than “I am waiving my rights.”

The expert graduate student’s testimony regarding the translation was compromised in two significant respects. First, there was no recording, either on tape or by transcription, of the actual translation at the time the translator made it. The translator testified at the suppression hearing sixteen months after the event in question as to her recollection of what she thought she would have said. It was this recollection, then, rather than the actual translation, that formed the basis of the defense witness’ criticism. Second, the psychologist testified that “ejerciendo” is a difficult Spanish word and that it was unlikely that the defendant would have understood its meaning. Thus, even if the translator’s recollection had been accurate and the defense witness correctly described an error in the translation, the error might reasonably have been found to have had no impact, because the more sophisticated word was beyond the defendant’s understanding. On the whole record, coupled with the fact that the defendant had a working understanding of English, as evidenced by his conversations with the police, we conclude that the trial court did not err in finding that the defendant was competent to waive his Miranda rights knowingly and intelligently. State v. Boscarino, supra.

The defendant also claims that his oral and written statements to police on May 6, 1983, the day of his arrest, along with a further oral statement given at the Bridgeport jail on June 30, 1983, should not have been admitted because they were made involuntarily. The factual context of the defendant’s May 6, 1983 statements has been previously recited and requires no repetition at this juncture. As to those statements, we are satisfied that they were the “ ‘product of an essentially free and unconstrained choice.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). We find no evidence in the record that the statements in issue were involuntary or that their admission offends due process; see Colorado v. Connelly, supra, 166-67; State v. DeForge, 194 Conn. 392, 397-98, 480 A.2d 547 (1984); and we therefore hold that it was within the trial court’s discretion to admit them.

The defendant further claims that the trial court should have suppressed as involuntary his statement to Detective Leo Krusinski at the Bridgeport jail. The record discloses that on June 30, 1983, the defendant telephoned the Bridgeport detective bureau, requesting to speak with Krusinski. In response, Krusinski went to the Bridgeport correctional center and met the defendant in a holding area. The detective asked the defendant why he wanted to speak to him. The defendant recounted to Krusinski his version of the shooting, i.e., that the “Cuban man” had killed the two victims and then had thrown the gun to the defendant. See footnote 4, supra. He then gave Krusinski the names of two men who he claimed had witnessed the shootings. Both Krusinski and the defendant spoke only in English at this meeting. Although Krusinski knew that the defendant had been arraigned and had retained a lawyer, he did not advise the defendant of his Miranda rights.

“ ‘The [traditional] test of voluntariness is whether an examination of all the circumstances shows that the conduct of police was such as to overbear the defendant’s will to resist and bring about a confession, not freely self-determined.’ ” State v. Perry, 195 Conn. 505, 516, 488 A.2d 1256 (1985), quoting State v. DeForge, supra.

The defendant concedes that there were no police threats or coercion and that, therefore, his federal constitutional claim of involuntariness is now foreclosed by the United States Supreme Court’s decision in Colorado v. Connelly, supra, 163-64. In that case, the court required “police overreaching’’ as the “crucial element” in any inquiry into “constitutional ‘voluntariness.’ ” Id.

The defendant requests, however, that this court review his challenge to the admissibility of the statements based solely upon factors other than police coercion. The defendant claims that, under the broader protections afforded him by article first, § 8, of the Connecticut constitution, it was error for the trial court to admit these statements. The defendant contends that this article of the Connecticut constitution requires us to consider his limited intelligence and education, his brain damage, his inability to deal effectively with stress, and his continued incarceration, in determining whether these statements were voluntary.

This court has not had occasion to decide whether, in light of the recent United States Supreme Court decision in Colorado v. Connelly, supra, a claim of involuntariness in the absence of any allegations of police overreaching may be successfully pursued under our state constitution. Because “[w]e find no persuasive evidence of involuntariness on the present record”; State v. Barrett, supra, 452; we do not decide whether statements characterized as involuntary by reason of their being motivated by factors other than police coercion, are inadmissible under our state constitution.

“ ‘On appeal, in order to determine whether the defendant’s constitutional rights have been infringed, we review the record in its entirety . . . .’ State v. Toste, [198 Conn. 573, 576, 504 A.2d 1036 (1986)].” State v. Shifflett, 199 Conn. 718, 729, 508 A.2d 748 (1986). Our examination of the facts in this record does not support the defendant’s claim that his psychological characteristics deprived him of his ability to make a free and rational choice to speak with the police. See footnote 5, supra. Nor is, as the defendant asserts, his continued incarceration from the time of his arrest in and of itself enough to render his statement to Krusinski involuntary. See Schneckloth v. Bustamonte, supra, 226; Chambers v. Florida, 309 U.S. 227, 60 S. Ct. 472, 84 L. Ed. 716 (1940); State v. Toste, supra, 584. Further, the defendant, rather than the police, requested the June 30,1983 contact. Although defense counsel, at the hearing on the motion to suppress, sought to characterize the meeting as an “interrogation,” Krusinski maintained throughout his testimony that the conversation was merely an “interview.” No matter how the meeting is characterized, if the defendant’s responses to questions were made voluntarily, no error occurs in admitting the responses. See State v. DeForge, supra. Considering the totality of the circumstances, we believe that the trial court’s ruling on voluntariness is supported by substantial evidence. State v. Shifflett, supra, 730.

II

The defendant next claims that the trial court erred in denying his motion to dismiss based on the loss or destruction of physical evidence and in refusing to instruct the jury on adverse inferences they would be permitted to draw if they found that the loss or destruction had been intentional.

The T-shirt worn by Jose “Willy” Rivera and the clothing removed from the victims were examined by the state toxicological laboratory. The laboratory tests revealed that the blood stains found on the T-shirt and the clothing had been made by type O human blood. Both victims had type O blood. The state laboratory returned the T-shirt and the victims’ clothing to the Bridgeport police department on December 19, 1983. They were never seen again.

The defendant claimed at trial that the loss or destruction of this clothing, particularly the T-shirt, so impaired his right to a fair trial that it should serve as the basis for dismissal. To establish the prejudice caused to him by the unavailability of the T-shirt, he called a bloodstain-pattern analyst to testify. The expert testified that with physical observation of the stains on the T-shirt he might have been able to determine the distance between Rivera and the victims. He testified further that he could possibly have determined whether the spots of blood were “back spatter,” which may have tended to show that Rivera was not, as he claimed, an inactive participant. Throughout the trial, the defendant sought to show that the loss or destruction of the evidence was an intentional act on the part of the Bridgeport police motivated by the weakness of their case and the desire to destroy potentially exculpatory evidence.

“ ‘In considering whether testimony concerning lost or destroyed evidence should be admitted [or the underlying prosecution dismissed], the trial court has to look to numerous factors including [1] the reason for the unavailability of the evidence, [2] the materiality of the evidence, [3] the likelihood of mistaken interpretation of it by witnesses or the jury, and [4] the prejudice to the defendant caused by the unavailability of the evidence.’ State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982).” State v. Boucino, 199 Conn. 207, 229, 506 A.2d 125 (1986).

As to the first factor, the trial court found that while the police department was certainly negligent in failing to preserve the evidence, there was no evidence of deliberate and intentional destruction. Second, while the court found that the evidence, consisting of the bloodstained clothing of the victims and a witness, was of such a nature as to be material to the case, it was not so related to the commission of the murders as to warrant a dismissal. The third factor, the likelihood of mistaken interpretation, was minimized by the trial court’s adverse inference instruction on the missing evidence. See State v. Hamele, supra, 382 n.5. Moreover, the court allowed extensive testimony on this issue and the defendant was permitted to develop fully through his examination of the witnesses the negative implications to be imputed to the state’s case by the absence of this evidence. Finally, the prejudice to the defendant was not substantial. The additional evidence that might have been obtained from further examining or testing of the T-shirt could only have served to inculpate Rivera, the eyewitness, who claimed to have observed the shootings from the doorway. Such evidence could have been significant had either the defendant or Marin, the surviving victim, claimed that Rivera was the assailant. The gravamen of the defendant’s claim throughout, however, was not that Rivera had committed the murders but that the “Cuban man” was the killer. Marin, on the other hand, implicated the defendant. Since neither eyewitness claimed that Rivera was the assailant, the patterns of the stains on his T-shirt did not have substantial materiality.

On the record before us, then, we agree with the trial court that granting the defendant’s motion for dismissal under these circumstances would have been too harsh a sanction, and that the defendant’s right to a fair trial was protected by allowing full development and presentation of the missing evidence issue at trial and by the court’s adverse inference instruction to the jury.

The defendant also claims error in the trial court’s failure to charge, as requested, on adverse inferences the jury would be permitted to draw if they found that the loss or destruction of the evidence had been intentional. The defendant sought an instruction to the effect that the destruction had been deliberate, as the evidence tended to weaken the state’s case. The court found, however, that there was no factual basis for a conclusion that the loss or destruction had been intentional or deliberate. It was within the trial court’s discretion, therefore, to modify the adverse inference instruction requested. See footnote 7, supra. State v. Vennard, 159 Conn. 385, 399, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971).

III

The defendant’s final claim is that the trial court violated his state and federal constitutional rights of due process when it charged the jury concerning circumstantial evidence. The trial court instructed that an inference must be not only logical and reasonable, but strong enough so that the jury could find “it is more probable than not that the fact inferred is true.” (Emphasis added.) We have examined similar language concerning the drawing of inferences on numerous recent occasions and have found such language to be erroneous because it has a high probability of misleading the jury on the important issue of the burden of proof imposed on the state. State v. McDonough, 205 Conn. 352, 533 A.2d 857 (1987); State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Rogers, 198 Conn. 53, 502 A.2d 360 (1985); State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). The ultimate issue that we must resolve upon review is whether the instruction has made it “reasonably possible that the jury was misled by the alleged errors in the court’s instructions.” State v. Reddick, supra, 132. “The trial court’s instructions [therefore] must be read with reference to the factual issues in the case.” State v. Miller, 202 Conn. 463, 491, 522 A.2d 249 (1987).

The central factual issues in this case were the identity of the assailant and the circumstances surrounding this bizarre crime. Two eyewitnesses testified that the defendant was the lone attacker. The defendant claimed that a third person, the “Cuban man,” had killed two of the victims and had thereafter thrown the gun to him, Gonzalez, who then had shot Marin inadvertently. The ultimate factual issue, therefore, was the credibility of the conflicting testimony of the three witnesses.

“A significant factor for the jury’s consideration was the credibility to be accorded to the [other eyewitnesses as opposed] to the defendant. The principal factual issues, therefore, were not classically dependent upon circumstantial evidence for their proof . . . .” State v. McDonough, supra, 358-59.

“We have recognized that an erroneous charge is not always harmful. State v. Miller, supra, 489-92. An isolated error in an instruction may be cured by other portions of the charge, or circumstantial evidence may be so insignificant compared to direct evidence that it is clear beyond a reasonable doubt that the erroneous instruction did not affect a jury’s determination of guilt or innocence. Id.” State v. McDonough, supra, 356. Our task is not to evaluate the challenged portion of the instructions in “isolation from the overall charge,” nor to conduct “a microscopic search for possible error,” but to review the charge as a whole. State v. Reddick, supra; see also State v. McDonough, supra.

Reviewing the instructions as a whole within the context of the factual posture of this case, we find that it was not reasonably possible that the jury was misled concerning the state’s burden of proof. See State v. McDonough, supra, 356-62; State v. Miller, supra, 490-91; State v. Farrar, 7 Conn. App. 149, 155, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986). The trial court reiterated no less than sixty-eight times the state’s burden of proving every element of each crime charged beyond a reasonable doubt. The contested portion of the charge occurred but once.

There is no error.

. In this opinion the other justices concurred.

       General Statutes § 53a-54b provides in part: “capital felony. 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-49 provides in part: “criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-54a provides in part: “murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       The defendant’s complete version of events was that he had been in a pool hall next door to the apartment in which the victims were found when, at about 2:20 a.m., a “Cuban man” asked him to step outside. Three men who had been waiting for them pushed the defendant and the Cuban man into the apartment. One of the men held the Cuban man, one man held a knife to the defendant’s throat, and the third man robbed the defendant of $205 from his wallet and his jewelry. The Cuban man then took a gun from the attache case he was carrying and shot two of the men dead, and then handed the gun to the defendant, telling him to “defend [him]self.” The defendant concluded this recital of the events by declaring: “I got nervous because I didn’t want to do it but the gun went off accidentally and I shot the man.”

       We note that the intelligence levels ascribed to the defendant by his own expert witnesses were not inconsistent with those found to permit a finding of a valid waiver in other cases. The psychologist testified that the defendant’s “overall intellectual ability falls in the dull normal range.” See, e.g., State v. Boscarino, 204 Conn. 714, 744, 529 A.2d 1260 (1987) (defendant with “low IQ” and poor ability to “formulate abstract concepts”; incriminating statement held admissible and waiver found valid); State v. Toste, 198 Conn. 573, 579, 504 A.2d 1036 (1986) (statement of defendant with IQ of 68-71, who was mildly retarded, schizophrenic, and of “dull normal” intelligence held admissible).

       Article first, § 8, of the Connecticut constitution provides in part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”

       The charge to the jury included the following instruction regarding the missing evidence: “There was also testimony in evidence that the T-shirt, upon return from the State Toxicologist, was left on the detective’s desk and never placed in the property room or evidence room for preservation for trial. And that this T-shirt is lost and is not available as evidence. There is a principle of law that where evidence is within the sole power of one party to present or when one party has supervision or sole access to such evidence and that evidence is not produced, the other party, in this case the defendant, is entitled to an inference that [that] evidence would have favored the defense and would have been unfavorable to the State.”

       In the charge complained of, the trial court instructed the jury: “You may apply the rule of circumstantial evidence. This rule involves the offering of evidence from facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of the rule are satisfied. First, the fact from which you are to draw the inference has itself been proven beyond a reasonable doubt. Secondly, the inference has [sic] to be drawn is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the fact inferred is true.”


author: Glass, J.

text:
    Dorothy B. Polmatier, Executrix (Estate of Arthur R. Polmatier) v. Norman Russ
    (12926)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued December 2, 1987
    decision released February 9, 1988

      Marcia A. Winn, with whom, on the brief, were Cindy A. O’Connor, Cheryl Sladicki and Robin A. Forshaw, legal interns, for the appellant (defendant).

      Thomas P. Heslin, with whom, on the brief, were Richard P. Lawlor and Thomas J. Egan, for the appellee (plaintiff).
   Glass, J.

The principal issue on this appeal is whether an insane person is liable for an intentional tort. The plaintiff, Dorothy Polmatier, executrix of the estate of her deceased husband, Arthur R. Polmatier, brought this action against the defendant, Norman Russ, seeking to recover damages for wrongful death. The state trial referee, exercising the power of the Superior Court, rendered judgment for the plaintiff. The defendant has appealed from that judgment. We find no error.

The trial court’s memorandum of decision and the record reveal the following undisputed facts. On the afternoon of November 20, 1976, the defendant and his two month old daughter visited the home of Arthur Polmatier, his father-in-law. Polmatier lived in East Windsor with his wife, Dorothy, the plaintiff, and their eleven year old son, Robert. During the early evening Robert noticed a disturbance in the living room where he saw the defendant astride Polmatier on a couch beating him on the head with a beer bottle. Robert heard Polmatier exclaim, “Norm, you’re killing me!” and ran to get help. Thereafter, the defendant went into Polmatier’s bedroom where he took a box of 30-30 caliber ammunition from the bottom drawer of a dresser and went to his brother-in-law’s bedroom where he took a 30-30 caliber Winchester rifle from the closet. He then returned to the living room and shot Polmatier twice, causing his death.

About five hours later, the defendant was found sitting on a stump in á wooded area approximately one half mile from the Polmatier home. The defendant was naked and his daughter was in his arms wrapped in his clothes, and was crying. Blood was found on his clothes, and he had with him the Winchester rifle, later determined to be the murder weapon.

The defendant was taken to a local hospital and was later transferred to Norwich Hospital. While in custody he was confined in Norwich Hospital or the Whiting Forensic Institute. The defendant was charged with the crime of murder pursuant to General Statutes § 53a-54a (a), but was found not guilty by reason of insanity pursuant to General Statutes § 53a-13. Dr. Walter Borden, a psychiatrist, testified at both the criminal and this civil proceeding regarding the defendant’s sanity. In the present civil case Borden testified that, at the time of the homicide, the defendant was suffering from a severe case of paranoid schizophrenia that involved delusions of persecution, grandeur, influence and reference, and also involved auditory hallucinations. He concluded that the defendant was legally insane and could not form a rational choice but that he could make a schizophrenic or crazy choice. He was not in a fugue state. The trial court found that at the time of the homicide the defendant was insane.

The substitute complaint for the wrongful death of Polmatier alleged in the first count that the death resulted from an assault, beating and shooting by the defendant, and included a second count for exemplary damages and a third count based on negligence. The defendant filed a substitute answer denying all material allegations of the plaintiff’s substitute complaint and asserted three special defenses: (1) as to all counts, the defendant was non compos mentis at the time of the alleged assault and, therefore, not capable of forming the intent necessary for tort liability; (2) the third count was barred by General Statutes § 52-584, the statute of limitations; and (3) as to all counts, the plaintiff or the plaintiff’s decedent was comparatively or contributorily negligent. The trial court determined that the first and second special defenses were inapplicable to this case and that the third special defense had not been proven.

After a trial to the court, the court found for the plaintiff on the first count and awarded compensatory damages. On appeal the defendant claims that the trial court erred in failing to apply the following two-pronged analysis to his claim: first, whether the defendant intended the act which produced the injury; and second, whether he intended the resulting injury. We find no error.

I

Connecticut has never directly addressed the issue of whether an insane person is civilly liable for an intentional tort. The majority of jurisdictions that have considered this issue have held insane persons liable for their intentional torts. See 4 Restatement (Second), Torts § 895J. This rule is reflected in the Restatement (Second) of Torts § 283B, which provides: “Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.” The majority rule has been applied to cases involving intentional homicide. See Aetna Casualty & Surety Co. v. Porter, 181 F. Sup. 81 (D.D.C. 1960); Parke v. Dennard, 218 Ala. 209, 118 So. 396 (1928); McIntyre v. Sholty, 121 Ill. 660, 13 N.E. 239 (1887); Vosnos v. Perry, 43 Ill. App. 3d 834, 357 N.E.2d 615 (1976); Seals v. Snow, 123 Kan. 88, 254 P. 348 (1927); Bolen v. Howard, 452 S.W.2d 401 (Ky. 1970); Jewell v. Colby, 66 N.H. 399, 24 A. 902 (1890); Shapiro v. Tchernowitz, 3 Misc. 2d 617, 155 N.Y.S.2d 1011 (1956); Ballinger v. Rader, 153 N.C. 488, 69 S.E. 497 (1910); Ross v. York, 233 S.W.2d 347 (Tex. Civ. App. 1950).

Commentators trace the majority rule back to the dictum of a seventeenth century English case. The majority rule is not, however, without criticism. For example, Professor Bohlen has stated: “[W]here a liability, like that for the impairment of the physical condition of another’s body or property, is imposed upon persons capable of fault only if they have been guilty of fault, immaturity of age or mental deficiency, which destroys the capacity for fault, should preclude the possibility of liability. . . . But so long as it is accepted as a general principle that liability for injuries to certain interests are to be imposed only upon those guilty of fault in causing them, it should be applied consistently and no liability should be imposed upon those for any reason incapable of fault.” F. Bohlen, “Liability in Tort of Infants and Insane Persons,” 23 Mich. L. Rev. 9, 31-32 (1924-25). For a similar view, see R. Ague, “The Liability of Insane Persons in Tort Actions,” 60 Dick. L. Rev. 211 (1956). Nonetheless, we are persuaded by the proponents of the majority rule, especially when the cases in which it has been applied are examined.

A leading case is Seals v. Snow, 123 Kan. 88, 254 P. 348 (1927). In Seals, the widow of Arthur Seals brought a civil action against Martin Snow to recover damages for the death of her husband. Several interrogatories were submitted to the jury, including: “Was Martin Snow insane when he shot Arthur Seals? A. Yes. If you answer the last question in the affirmative, was Martin Snow at the time he shot Arthur Seals able to distinguish right from wrong? A. No.” Id., 89. The jury returned a verdict for the plaintiff. In upholding the ensuing judgment, the Kansas Supreme Court stated: “The defendant challenges the doctrine generally sustained by the courts that an insane person is liable to make compensation for his torts. It is conceded that the great weight of authority is that an insane person is civilly liable for his torts. This liability has been based on a number of grounds, one that where one of two innocent persons must suffer a loss, it should be borne by the one who occasioned it. Another, that public policy requires the enforcement of such liability in order that relatives of the insane person shall be led to restrain him and that tort-feasors shall not simulate or pretend insanity to defend their wrongful acts causing damage to others, and that if he was not liable there would be no redress for injuries, and we might have the anomaly of an insane person having abundant wealth depriving another of his rights without compensation.” Id., 90.

Like Seals, another homicide case applying the majority rule is McIntyre v. Sholty, 121 Ill. 660, 13 N.E. 239 (1887), where recovery was allowed against an insane person’s estate for the wrongful killing of the plaintiff’s wife. The court reasoned: “There is, to be sure, an appearance of hardship in compelling one to respond for that which he is unable to avoid for want of the control of reason. But the question of liability in these cases is one of public policy. If an insane person is not held liable for his torts, those interested in his estate, as relatives or otherwise, might not have a sufficient motive to so take care of Mm as to deprive Mm of opportunities for inflicting injuries upon others. There is more injustice in denying to the injured party the recovery of damages for the wrong suffered by Mm, than there is in calling upon the relatives or friends of the lunatic to pay the expense of his confinement, if he has an estate ample enough for that purpose. The liability of lunatics for their torts tends to secure a more efficient custody and guardianship of their persons. Again, if parties can escape the consequences of their injurious acts upon the plea of lunacy, there will be a strong temptation to simulate insanity with a view of masking the malice and revenge of an evil heart.” Id., 664-65.

Our adoption of the majority rule holding insane persons civilly liable, in appropriate circumstances, for their, intentional torts finds support in other Connecticut case law. We have elsewhere recognized the vitality of the common law principle that “ ‘where one of two innocent persons must suffer loss from an act done, it is just that it should fall on the one who caused the loss rather than upon the other who had no agency in producing it and could not by any means have avoided it.’” Verrilli v. Damilowski, 140 Conn. 358, 360, 100 A.2d 462 (1953), citing Granniss v. Weber, 107 Conn. 622, 625, 141 A. 877 (1928); Grissell v. Housatonic R. Co., 54 Conn. 447, 461, 9 A. 137 (1887).

II

We now turn to the defendant’s claim that the trial court should have applied a two-pronged analysis to his claim. The first prong is whether the defendant intended the act that produced the injury. The defendant argues that for an act to be done with the requisite intent, the act must be an external manifestation of the actor’s will. The defendant specifically relies on the Restatement (Second) of Torts § 14, comment b, for the definition of what constitutes an “act,” where it is stated that “a muscular movement which is purely reflexive or the convulsive movements of an epileptic are not acts in the sense in which that word is used in the Restatement. So too, movements of the body during sleep or while the will is otherwise in abeyance are not acts. An external manifestation of the will is necessary to constitute an act, and an act is necessary to make one liable [for a battery] . . . .” The defendant argues that if his “activities were the external manifestations of irrational and uncontrollable thought disorders these activities cannot be acts for purposes of establishing liability for assault and battery.” We disagree.

We note that we have not been referred to any evidence indicating that the defendant’s acts were reflexive, convulsive or epileptic. Furthermore, under the Restatement (Second) of Torts § 2, “act” is used “to denote an external manifestation of the actor’s will and does not include any of its results, even the most direct, immediate, and intended.” Comment b to this section provides in pertinent part: “A muscular reaction is always an act unless it is a purely reflexive reaction in which the mind and will have no share.” Although the trial court found that the defendant could not form a rational choice, it did find that he could make a schizophrenic or crazy choice. Moreover, a rational choice is not required since “[a]n insane person may have an intent to invade the interests of another, even though his reasons and motives for forming that intention may be entirely irrational.” 4 Restatement (Second), Torts § 895J, comment c. The following example is given in the Restatement to illustrate the application of comment c: “A, who is insane believes that he is Napoleon Bonaparte, and that B, his nurse, who confines him in his room, is an agent of the Duke of Wellington, who is endeavoring to prevent his arrival on the field of Waterloo in time to win the battle. Seeking to escape, he breaks off the leg of a chair, attacks B with it and fractures her skull. A is subject to liability to B for battery.”

We recognize that the defendant made conflicting statements about the incident when discussing the homicide. At the hospital on the evening of the homicide the defendant told a police-officer that his father-in-law was a heavy drinker and that he used the beer bottle for that reason. He stated he wanted to make his father-in-law suffer for his bad habits and so that he would realize the wrong that he had done. He also told the police officer that he was a supreme being and had the power to rule the destiny of the world and could make his bed fly out of the window. When interviewed by Dr. Borden, the defendant stated that he believed that his father-in-law was a spy for the red Chinese and that he believed his father-in-law was not only going to kill him, but going to harm his infant child so that he killed his father-in-law in self-defense. The explanations given by the defendant for committing the homicide are similar to the illustration of irrational reasons and motives given in comment c to § 895J of the Restatement, set out above.

Under these circumstances we are persuaded that the defendant’s behavior at the time of the beating and shooting of Polmatier constituted an “act” within the meaning of comment b, § 2, of the Restatement. Following the majority rule in this case, we conclude that the trial court implicitly determined that the defendant committed an “act” in beating and shooting Polmatier. Accordingly, the trial court did not err as to the first prong of the defendant’s claim.

Ill

The second prong of the defendant’s claim is that the trial court erred in failing to determine whether the defendant intended the resulting injury to the decedent. The defendant argues in his brief that “[t]he trial court must satisfy the second prong of its intentional tort analysis with a finding that the defendant acted ‘for the purpose of causing’ [1 Restatement, Torts § 13, comment d] or with a ‘desire to cause’ [1 Restatement (Second), Torts § 8A] the resulting injury.” (Emphasis added.) This argument is more persuasive in its application to proof of the elements of crimes than in its relation to civil liability.

In the criminal law the “act” and the “intent” of the actor are joined to determine the culpability of the offender. For example, the allegations of the essential elements of murder are as follows: “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-54a (a). The defendant claims that “[i]ntent need not involve ill will or malice, but must include a design, purpose and intent to do wrong and inflict the injury.” Under the Restatement, “intent” is used “to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” 1 Restatement (Second), Torts § 8A. Comment b to § 8A of the Restatement provides in pertinent part: “All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences aré certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.” We have stated that “[i]t is not essential that the precise injury which was done be the one intended.” Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975).

As discussed above, the defendant gave the police and Borden several reasons why he killed Polmatier. Under comment c to § 895J of the Restatement, it is not necessary for a defendant’s reasons and motives for forming his intention to be rational in order for him to have the intent to invade the interests of another. Considering his statements to the police and to Borden that he intended to punish Polmatier and to kill him, we are persuaded that the defendant intended to beat and shoot him. Because the defendant was found not guilty by reason of insanity, it is uncontested in this civil action that he was incapable of forming the intent necessary for criminal responsibility for Polmatier’s death. Under General Statutes § 52-555, the wrongful death statute, however, intent is not an essential element of the cause of action.

IV

The remaining claims asserted by the defendant are that the trial court erred in: (1) finding the defendant liable for an intentional assault and battery where the findings of fact compelled a conclusion that the defendant lacked the requisite intent to commit an intentional assault and battery; (2) finding the defendant liable for an intentional assault and battery in the absence of any fault by the defendant; (3) imposing liability on insane persons for their tortious conduct regardless of fault, without justification on any public policy grounds; (4) applying Connecticut case law that is not conclusive regarding liability of the insane for tortious conduct; and (5) finding the defendant liable in the absence of finding of intent contrary to current Connecticut law and in violation of his right to equal protection of the laws. We have considered these claims and find them without merit.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative defenses, evidence of mental condition, classification, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . ."

       “[General Statutes] Sec. 53a-13. lack of capacity due to mental disease or defect as affirmative defense, (a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.”

       The trial court found for the defendant on the second and third counts. As to the second count, the trial court fround that exemplary damages based on reckless, willful and wanton misconduct are not recoverable. The trial court also found that the third count, alleging negligent assault and battery, was encompassed in the first count and did not consider the third count.

       Under the Restatement (Second) of Torts § 283B is the following: “Comment:
      “a. If the actor is a child, his mental deficiency is taken into account. See § 283 A.
      “b. The rule that a mentally deficient adult is liable for his torts is an old one, dating back at least to 1616, at a time when the action for trespass rested upon the older basis of strict liability, without regard to any fault of the individual. Apart from mere historical survival, its persistence in modem law has been explained on a number of different grounds. These are as follows:
      “1. The difficulty of drawing any satisfactory line between mental deficiency and those variations of temperament, intellect, and emotional balance which cannot, as a practical matter, be taken into account in imposing liability for damage done.
      “2. The unsatisfactory character of the evidence of mental deficiency in many cases, together with the ease with which it can be feigned, the difficulties which the triers of fact must encounter in determining its existence, nature, degree, and effect; and some fear of introducing into the law of torts the confusion which has surrounded such a defense in the criminal law. Although this factor may be of decreasing importance with the continued development of medical and psychiatric science, it remains at the present time a major obstacle to any allowance for mental deficiency.
      “3. The feeling that if mental defectives are to live in the world they should pay for the damage they do, and that it is better that their wealth, if any, should be used to compensate innocent victims than that it should remain in their hands.
      “4. The belief that their liability will mean that those who have charge of them or their estates will be stimulated to look after them, keep them in order, and see that they do not do harm.
      “c. Insane persons are commonly held liable for their intentional torts. While there are very few cases, the same rule has been applied to their negligence. As to mental deficiency falling short of insanity, as in the case of stupidity, lack of intelligence, excitability, or proneness to accident, no allowance is made, and the actor is held to the standard of conduct of a reasonable man who is not mentally deficient, even though it is in fact beyond his capacity to conform to it.”

       See footnote 3, supra, for the comment pertaining to the Restatement (Second) of Torts § 283B.

       The English case is Weaver v. Ward, Hobart 134, 80 Eng. Rep. 284 (1616). Weaver is analyzed in an article by Professor F. Bohlen, “Liability in Tort of Infants and Insane Persons,” 23 Mich. L. Rev. 9 (1924-25). “In Weaver v. Ward, [supra,] the defendant had pleaded to an action of trespass for assault and battery that he and the [plaintiff] were members of a trained band, and that while they were skirmishing with their muskets against another band, the defendant ‘by chance and misadventure and against his will in discharging his piece’ wounded the plaintiff. Upon the demurrer to this plea, judgment was given to the plaintiff, the court saying that ‘no man should be .excused of a trespass’ merely because he did not intend the harm which he had caused, but must show that it was ‘uterly without his fault,’ and stating as an instance of liability without intention ‘that if a lunatic kills a man this shall not be a felony,’ because ‘felony must be done animo felónico.’ ‘Yet in trespass which tends only to give damages according to a hurt or loss, it is not so.’” F. Bohlen, supra, 16.

       The defendant refers to Rogers v. Doody, 119 Conn. 532, 178 A. 51 (1935), in support of this statement. In Rogers v. Doody, supra, the defendant obtained a judgment against the plaintiff on a cause of action based on the plaintiffs reckless disregard of the rights of others in the operation of a motor vehicle in which the defendant’s intestate was riding as a guest. After the defendant’s judgment the plaintiff was adjudged as bankrupt and was duly discharged of all of his provable debts by the United States District Court for the District of Connecticut. Thereafter, the defendant threatened to take out execution on the judgment and to levy the same upon the property of the plaintiff and in default thereof upon his body. The plaintiff brought an action seeking to have the defendant enjoined from the threatened action. The trial court granted the injunction. The issue on appeal was whether the plaintiff’s discharge in bankruptcy released him from the judgment. The United States Backruptcy Act provides that “ ‘a discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as . . . (2) are liabilities for . . . willful and malicious injuries to the person or property of another.’” Id., 533. On appeal the question framed was: “Is the judgment obtained by a guest in a motor vehicle against its owner or operator for injuries received in an accident caused by the latter’s reckless disregard of his rights a liability for willful and malicious injury to person or property within the meaning of . . . the Bankruptcy Act?” Id. This court answered the question in the negative, and found no error in the action of the trial court in granting the injunction. It is readily apparent that Rogers is unlike this case, and any statements in the case beyond the answer to the question framed by the court are dicta and do not require our response or consideration at this time.

       “[General Statutes] Sec. 52-555. actions for injuries resulting in death. In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.”


author: Callahan, J.

text:
    Juanita Williams Collier v. City of Milford et al.
    (13157)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued November 10, 1987
    decision released February 9, 1988

      Lorraine W. Osborne, for the appellant (plaintiff).

      Douglas L. Drayton, for the appellees (defendants).
   Callahan, J.

Charles Collier, an employee of the city of Milford, suffered work related injuries when he fell from a truck on April 24, 1978. He died from those injuries on May 3, 1978. It is undisputed that Collier’s injuries and death arose out of and in the course of his employment. Subsequent to Collier’s death, Fontella Rudene Williams, the daughter of the decedent and of Juanita Felder Williams, filed a claim for workers’ compensation benefits as a presumptive dependent under General Statutes § 31-306 (a) (3). At the time of Collier’s death, Fontella was eleven years old, had been supported by Collier, and had been living with Collier and the plaintiff Juanita Williams.

The daughter’s claim was uncontested and, after a hearing on January 7, 1980, the workers’ compensation commissioner for the third district issued a finding and award ordering compensation to be paid to Fontella Rudene Williams at the rate of $139.83 per week commencing May 4, 1978. The commissioner also ordered burial expenses in the amount of $1500 to reimburse Juanita Williams who had paid the funeral bill.

On September 21, 1981, Juanita Williams moved to open the January 7, 1980 order of compensation on the ground that she had an interest superior to that of her daughter in the receipt of any workers’ compensation benefits resulting from Collier’s death. The commissioner denied the plaintiff’s motion to open. The plaintiff thereafter appealed to the compensation review division, pursuant to General Statutes § 31-301 (a). The compensation review division dismissed the plaintiff’s appeal and affirmed the commissioner’s denial of the plaintiff’s motion to open. Thereafter the plaintiff appealed the decision of the compensation review division to the Appellate Court under General Statutes § 31-301b. This court transferred the appeal to itself. See Practice Book § 4023.

The gravamen of the plaintiff’s claim, as stated in her brief to this court, is that “she had lived with Charles Collier for sixteen years, that her union with Charles Collier was a valid common law marriage, that she was dependent on him for support, and that under the Workers’ Compensation Act she is a presumptive dependent and entitled to compensation.” The commissioner and the compensation review division both found that the union of Juanita Williams and Collier did not constitute a common law marriage cognizable under Connecticut law. Therefore, the commissioner held, and the compensation review division affirmed, that “[t]he claims of Juanita Williams do not comply with the provisions of the Workers’ Compensation Act and must be denied.”

The plaintiff contends that the commissioner and the review division erred when they determined that she was not married to Collier and was, therefore, not entitled to compensation as a presumptive dependent under General Statutes § 31-306 (a) (1). Her argument is premised on the claim that her testimony before the commissioner compelled a finding that she and Collier had contracted a valid common law marriage.

The plaintiff’s testimony revealed that she was born Juanita Felder in Alabama on April 20, 1934. On May 7, 1952, she married Luke Williams in Montgomery, Alabama. “[AJbout 1959” Luke Williams left her and their five children in Alabama and moved to Ohio. In the “early 1960s” the plaintiff moved from Alabama, first to Rye, New York, and later to Connecticut. Shortly after moving to Connecticut she met and formed a relationship with Charles Collier. In approximately 1962 she and Collier commenced living together in Bridgeport. Their child, Fontella, was born of their liaison on October 16, 1966. Luke Williams, Juanita Williams’ husband, from whom she had never been divorced, died in Cleveland, Ohio, on December 31, 1968.

The plaintiff’s testimony also disclosed that, after the death of Luke Williams, she and Collier continued to live together in Bridgeport until Collier’s death in 1978. During their years together, both before and after the death of her husband in Ohio, she and Collier took annual vacation trips together of approximately two weeks duration. On these trips, in alternate years, they visited Collier’s mother in Orangeburg, South Carolina, and the plaintiff’s sister in Montgomery, Alabama. While in South Carolina and Alabama, she and Collier stayed with the family member whom they were visiting. There they slept together, had sexual relations, generally represented themselves as being married to each other, and were generally regarded as married by those with whom they came in contact.

It is the plaintiff’s contention that, because of their living arrangements while on vacation, their representations and the perception of their relationship by the community, and the fact that South Carolina and Alabama both recognize common law marriages, she and Collier entered into a valid common law marriage on their trips to those states. She concedes that she never went through a marriage ceremony with Collier anywhere.

In order to qualify as a presumptive dependent under § 31-306 (a) (1), and to have a claim for compensation superior to that of her daughter, the statute requires that the plaintiff be the legal “wife” of the deceased. Wheat v. Red Star Express Lines, 156 Conn. 245, 250, 240 A.2d 859 (1968). Connecticut does not presently recognize, as valid marriages, living arrangements or informal commitments entered into in this state and loosely categorized as common law marriages. McAnerney v. McAnerney, 165 Conn. 277, 285, 334 A.2d 437 (1973); Hames v. Hames, 163 Conn. 588, 593, 316 A.2d 379 (1972); State ex rel. Felson v. Allen, 129 Conn. 427, 432, 29 A.2d 306 (1942). Only recently this rule of law has been reaffirmed. “In this jurisdiction, common law marriages are not accorded validity. . . . The rights and obligations that attend a valid marriage simply do not arise where the parties choose to cohabit outside the marital relationship.” (Citations omitted.) Boland v. Catalano, 202 Conn. 333, 339, 521 A.2d 142 (1987).

In order to have any possible claim for benefits under the workers’ compensation act, therefore, the plaintiff must demonstrate that the commissioner and the compensation review division erred when they determined that the periodic sojourns of the plaintiff and Collier to South Carolina and Alabama did not result in a valid common law marriage. Both South Carolina and Alabama recognize as valid common law marriages contracted within those states. Mattison v. Kirk, 497 So. 2d 120, 122 (Ala. 1986); Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978); Hodges v. Nelson, 370 So. 2d 1020, 1021 (Ala. Civ. App. 1979); Parker v. Parker, 46 N.C. App. 254, 258, 265 S.E.2d 237 (1980); Tedder v. Tedder, 109 S.C. 451, 96 S.E. 157 (1917); Lucken v. Wichman, 5 S.C. 411 (1874).

This court has never had the occasion to rule directly on the question of the validity in this state of a common law marriage validly contracted in accordance with the law of another state. The Superior Court in Delany v. Delany, 35 Conn. Sup. 230, 405 A.2d 91 (1979), however, held that the validity of a marriage is governed by lex loci contractus and recognized the validity of a common law marriage contracted in Rhode Island. See also Parker v. Parker, 29 Conn. Sup. 41, 43, 270 A.2d 94 (1970). Further, it is the generally accepted rule that a marriage that is valid in the state where contracted is valid everywhere; Catalano v. Catalano, 148 Conn. 288, 291, 170 A.2d 726 (1961); Davis v. Davis, 119 Conn. 194, 197-98, 175 A. 574 (1934), Matter of Jenkins, 133 Misc. 2d 420, 506 N.Y.S.2d 1009 (N.Y. Sur. 1986); unless for some reason the marriage is contrary to the strong public policy of the state required to rule on its validity. Catalano v. Catalano, supra, 291-92; Hager v. Hager, 3 Va. App. 415, 416, 349 S.E.2d 908 (1986).

We are not, however, called upon to decide that question. The commissioner found that it would be “spurious to contemplate under the facts presented that said Juanita Williams and Charles Collier contracted a valid common law marriage in the States of South Carolina and Alabama.” The compensation review division also determined that a valid marriage had not been contracted in South Carolina or Alabama. The review division, therefore, affirmed the commissioner’s decision that the plaintiff was not entitled to benefits and that the commissioner did not err when she refused to open the compensation award to the plaintiff’s daughter.

The existence of a common law marriage is a question of fact. Byers v. Mount Vernon Mills, Inc., 268 S.C. 68, 71, 231 S.E.2d 699 (1977); Johnson v. Johnson, 235 S.C. 542, 545-46, 112 S.E.2d 647 (1960); Campbell v. Christian, 235 S.C. 102, 105, 110 S.E.2d 1 (1959). Where the evidence is in conflict, the determination of whether there exists a common law marriage is for the trier. Mitchell v. Smyser, 236 S.C. 332, 333-34, 114 S.E.2d 226 (1960); Johnson v. Johnson, supra, 551; Campbell v. Christian, supra. The findings of the trier of fact “will not be disturbed unless palpably wrong . . . .” Downs v. Newman, 500 So. 2d 1062, 1063 (Ala. 1986); Etheridge v. Yeager, 465 So. 2d 378, 380-81 (Ala. 1985); Skipworth v. Skipworth, 360 So. 2d 975, 977 (Ala. 1978); King v. King, 114 So. 2d 145, 148 (Ala. 1959); Baker v. Townsend, 484 So. 2d 1097, 1098 (Ala. Civ. App. 1986); Luther v. M & M Chemical Co., 475 So. 2d 191, 193 (Ala. Civ. App. 1985). “It was the commissioner’s function to find the facts and determine the credibility of witnesses.” Wheat v. Red Star Express Lines, supra, 249. “We will not review the facts found by the commissioner. Our role is to determine whether the review division’s decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).

To constitute a valid common law marriage there must first be a present agreement, that is, a present mutual understanding or a present mutual consent to enter at that time into the marriage relationship. Piel v. Brown, supra, 93; Skipworth v. Skipworth, supra, 976; Goodman v. McMillan, 258 Ala. 125, 129, 61 So. 2d 55 (Ala. 1952), cert. denied, 345 U.S. 929, 73 S. Ct. 789, 97 L. Ed. 1359, reh. denied, 345 U.S. 961, 73 S. Ct. 942, 97 L. Ed. 1381 (1953); Baker v. Townsend, supra; Luther v. M & M Chemical Co., supra; Cluxton v. Cluxton, 431 So. 2d 1296, 1298 (Ala. Civ. App. 1983); Eaton v. State, 423 So. 2d 352, 354 (Ala. Civ. App. 1982); Walton v. Walton, 409 So. 2d 858, 860 (Ala. Civ. App. 1982); Golden v. Golden, 360 So. 2d 994, 995-96 (Ala. Civ. App. 1978); Peacock v. Peacock, 196 Ga. 441, 451-52, 26 S.E.2d 608 (1943); Johnson v. Johnson, supra, 551; Campbell v. Christian, supra; 52 Am. Jur. 2d., Marriage § 48. That mutual understanding or consent must be conveyed with such a demonstration of intent and with such clarity on the part of the parties that marriage does not creep up on either of them and catch them unawares. One cannot be married unwittingly or accidentally. State v. Newman, 66 Mont. 180, 213 P. 805 (1923). The intention of the parties to enter into a marriage contract may be demonstrated by words of present assent; Golden v. Golden, supra, 995; or may be inferred from facts and circumstances and need not rest exclusively on the declarations of the parties. Piel v. Brown, supra, 94; Cluxton v. Cluxton, supra. There must, however, be evidenced a present, mutual, intention to marry. Piel v. Brown, supra; Beck v. Beck, 286 Ala. 692, 697, 246 So. 2d 420 (1971); Howell v. Littlefield, 211 S.C. 462, 465, 46 S.E.2d 47 (1947). An “[illicit relationship, though accompanied by cohabitation, is not transformed into a legal state of marriage by the mere lapse of time.” Campbell v. Christian, supra, 109. Moreover, “due to the serious nature of the marriage relationship, the courts will closely scrutinize a claim of common-law marriage and require clear and convincing proof thereof.” Piel v. Brown, supra, 95; Luther v. M & M Chemical Co., supra; Walton v. Walton, supra, 860-61; In re Estate of Dodge, 361 Pa. Super. 188, 191, 522 A.2d 77 (1987); In re Estate of Kovalchick, 345 Pa. Super. 229, 232, 498 A.2d 374 (1985).

The plaintiffs testimony was the only evidence that was introduced before the commissioner and the compensation review division concerning the relationship that existed between Collier and her. Under the circumstances revealed by her testimony, we cannot say that there was error when the commissioner found, and the compensation review division affirmed, that the plaintiff and Collier had not entered into a valid common law marriage in either South Carolina or Alabama. It cannot be gleaned from the plaintiffs testimony that any contemporaneous agreement was ever entered into or even contemplated in either of those two states to change the status of the relationship of the parties that existed in Connecticut. Further, there is nothing in the plaintiffs testimony to signal a change in the status of her relationship with Collier in Connecticut after the death of her husband in 1968 had removed him as an impediment to her remarriage. See Steadman v. Turner, 357 Pa. Super. 361, 365, 516 A.2d 21 (1986), appeal denied, 531 A.2d 431 (Pa. 1987); Byers v. Mount Vernon Mills, Inc., supra, 71. Therefore, even if, as the plaintiff testified, on their vacation trips to South Carolina and Alabama she and Collier had slept together, had sexual relations and generally held themselves out to be married, a finding that a valid common law marriage was contracted was not required.

The plaintiff’s testimony, in fact, is wholly consistent with a finding that, while on vacation in South Carolina and Alabama, the parties simply continued cohabiting without benefit of marriage, as they had at home. As previously indicated, however, cohabitation is not enough to create a valid common law marriage nor is an intention to marry sometime in the future. Peacock v. Peacock, supra, 448-49. There must, at a minimum, have been some evidence of a present contemporaneous mutual intention to marry, in either South Carolina or Alabama, when the parties were present in those states, to give rise to a valid common law marriage. The plaintiffs testimony was devoid of any such evidence.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 31-306. death RESULTING FROM accident OR OCCUPATIONAL DISEASE. DEPENDENTS. COMPENSATION, (a) The following-described persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee and are referred to hereinafter as presumptive dependents: (1) A wife upon a husband with whom she lives at the time of his injury or from whom she receives support regularly; (2) a husband upon a wife with whom he lives at the time of her injury or from whom he receives support regularly; (3) any child under the age of eighteen years, or over said age but physically or mentally incapacitated from earning, upon the parent with whom he is living or from whom he is receiving support regularly, at the time of the injury of such parent; (4) any unmarried child who has attained the age of eighteen but has not attained the age of twenty-two and who is a full-time student, upon the parent with whom he is living or from whom he is receiving support regularly, provided that any such child who has attained the age of twenty-two while a full-time student but has not completed the requirements for, or received, a degree from a postsecondary educational institution shall be deemed not to have attained such age until the first day of the first month following the end of the quarter or semester in which he is enrolled at such time, or if he is not enrolled in a quarter or semester system, until the first day of the first month following the completion of the course in which he is enrolled or until the first day of the third month beginning after such time, whichever occurs first. In all other cases where there is no presumptive dependent, questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury. Such other dependents are referred to hereinafter as dependents in fact.”

       The plaintiff was referred to during the course of these proceedings by various names, e.g., Juanita Williams, Juanita Felder Williams, Juanita Williams Collier and Juanita Collier. For the sake of clarity and uniformity the plaintiff will be referred to as Juanita Williams or the plaintiff throughout this opinion.

       “[General Statutes] Sec. 31-301. appeals to compensation review DIVISION. PAYMENT OF AWARD DURING PENDENCY OF APPEAL, (a) At any time within ten days after entry of such award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the compensation review division by filing in the office of the commissioner from which such award or such decision on a motion originated an appeal petition and five copies thereof. Such commissioner within three days thereafter shall mail such petition and three copies thereof to the chairman of the compensation review division and a copy thereof to the adverse party or parties. Such appeal shall be heard by a panel of the compensation review division, except that no commissioner may sit in review of an award or decision rendered by him. The compensation review division shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the division that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the compensation review division may hear additional evidence or testimony. Upon the final determination of the appeal by the compensation review division, but no later than (1) October 1, 1987, for those appeals pending on October 1, 1986, or (2) one year after the date the appeal petition was filed for those petitions filed on or after October 1, 1986, it shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the compensation review division shall include its findings and award and conclusions of law. When any appeal is pending, and it appears to the compensation review division that any part of the award appealed from is not affected by the issues raised by such appeal, the compensation review division may, on motion or of its own motion, render a judgment directing compliance with any portion of such award not affected by such appeal; or if the only issue raised by such appeal is the amount of the average weekly wage for the purpose of determining the amount of compensation, as provided in section 31-310, the commissioner shall, on motion of the claimant, direct the payment of such portion of the compensation payable under his award as is not in dispute, if any, pending final adjudication of the disputed portion thereof. In all appeals in which one of the parties is not represented by counsel, and in which the party taking the appeal does not prosecute the case within a reasonable time from the date of appeal, the compensation review division may, of its own motion, affirm, reverse or modify the award. When an appeal is taken to the compensation review division, the clerk thereof shall notify the commissioner from whose award the appeal was taken, in writing, of any action of the compensation review division thereon and of the final disposition of such appeal, whether by judgment, withdrawal or otherwise, and shall upon the decision of the appeal, furnish the commissioner with a copy of such decision. Whenever any appeal is pending, if it appears to the compensation review division that justice so requires, the compensation review division shall order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal. The procedure in appealing from an award of the compensation commissioner shall be the same as the procedure employed in an appeal from the superior court to the supreme court, where applicable. Acting together as a compensation review division, the commissioners shall adopt regulations in accordance with the provisions of chapter 54 to establish rules, methods of procedure and forms as they deem expedient for the purposes of this chapter, and in which the party taking the appeal does not prosecute the case within a reasonable time from the date of appeal, the compensation review division may, of its own motion, affirm, reverse or modify the award. When an appeal is taken to the compensation review division, the clerk thereof shall notify the commissioner from whose award the appeal was taken, in writing, of any action of the compensation review division thereon and of the final disposition of such appeal, whether by judgment, withdrawal or otherwise, and . . . .”

       The plaintiff relied on facts, when she advanced this rationale for her motion to open, which were fully known to her at the time the original claim for benefits for her daughter was filed. There is a serious question, therefore, whether the commissioner was required to consider this proposition at all or whether she would have been justified in denying the plaintiffs motion solely on procedural grounds. See General Statutes § 31-315. Our decision to review the substantive basis for the action taken is nonetheless appropriate because both the commissioner and the compensation review division opted to review the merits of the plaintiffs argument.

       The transcript of the plaintiffs testimony before the commissioner was the only testimony before the compensation review division.

       The plaintiff testified, however, that on one of their trips to South Carolina Collier informed his mother that he and the plaintiff were not married.

       The plaintiff also appears to argue that, even if she were not determined to be legally married to Collier, given the change in sexual mores and the repeal of statutes prohibiting extramarital sexual relations since Wheat v. Red Star Express Lines, 156 Conn. 245, 240 A.2d 859 (1968), and given the humanitarian purpose of workers’ compensation and the liberal construction of the workers’ compensation act in favor of the employee, she should be entitled to collect benefits as his presumptively dependent wife. The legislature has, however, determined that claimants in the position of this plaintiff can only recover as “dependents in fact.” Unlike presumptive dependents, “dependents in fact” receive compensation “according to the relative degree of their dependence.” General Statutes § 31-306 (b) (6). In no case can a “dependent in fact” displace the compensation claims of a presumptive defendant like the decedent’s daughter. General Statutes § 31-306 (a).

       The compensation review division said: “The theory is an ingenious one imaginatively crafted by claimant’s counsel. . . . Their relationship was contracted in Connecticut, the state of the parties’ domicile and not in Alabama and South Carolina which they visited temporarily.”

       The only other evidence before the commissioner and the compensation review division was the death certificate of Luke Williams, which was made an exhibit at the hearing before the commissioner.

       When asked why she and Collier had never married, the plaintiff replied, “We kept putting it off, I don’t know. Just never got married that’s all.”