author: KATZ, J.

text:
    STATE OF CONNECTICUT v. CAROL TOMASKO
    (15088)
    Peters, C. J., and Berdon, Norcott, Katz and Palmer, Js.

      Argued June 5
    officially released July 23, 1996

      David J. Laudano, with whom was Raymond W. Ganim, 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).
   KATZ, J.

Following a jury trial, the defendant, Carol Tomasko, was convicted of murder in violation of General Statutes § 53a-54a (a). The defendant has appealed from the judgment of the trial court sentencing her to fifty years imprisonment. On appeal, the defendant claims that: (1) the evidence was insufficient to prove beyond a reasonable doubt that she intended to kill the victim; (2) the trial court improperly refused to instruct the jury on the lesser included offense of criminally negligent homicide in violation of General Statutes § 53a-58; and (3) the trial court improperly overruled the defendant’s objection to the introduction into evidence of two tape-recorded conversations between the state’s chief witness and the defendant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 14, 1981, the defendant lived in Stratford with her husband, the victim, and her daughter, Suzette Meyer. The defendant and the victim shared a history of marital strife. On the night of the murder, the defendant and the victim were arguing because the victim had been arrested for driving an unregistered motor vehicle, and the victim had accused the defendant of having informed the police. In the course of the argument, the defendant threw a beer bottle at the victim, who had been drinking. Meyer, who was sitting at the kitchen table across from the victim, was looking down when she heard a loud noise. When Meyer looked up, she saw that the defendant was standing near the doorway holding a small handgun, and that the victim was slumped in his seat at the kitchen table. The victim died from a single gunshot wound to the back of the head.

Although Meyer did not actually see the defendant pull the trigger, she testified that the defendant had been moving around during the course of the argument and, at one point, had entered Meyer’s bedroom. Meyer and the victim’s son both testified that the defendant customarily carried the handgun in her pocketbook, which she normally kept in Meyer’s bedroom.

After the shooting, the defendant held the gun to Meyer’s head and told her to help clean up the blood from the floor. While Meyer was cleaning the floor, the defendant dragged the victim’s body out the back door and into the yard. Meyer then assisted the defendant in lifting the victim’s body into a pickup truck. Thereafter, the defendant, with Meyer as a passenger, began driving the pickup truck through Stratford. Because the truck developed mechanical problems, the defendant drove the truck to the house of her brother, Ellsworth Hull, where the engine stopped running. Hull, who never noticed the victim’s body in the bed of the truck, was unable to jump start the vehicle. Hull then drove Meyer and the defendant home. Meyer never saw the victim’s body again. One week later, Meyer learned that the victim’s body had been found floating in Long Island Sound.

Because Meyer feared for her life as a result of the defendant’s threats, she did not tell the police about the incident until 1992. On September 2, 1992, after reading an article in the local newspaper about the unsolved murder, Meyer told Hull, in whose home she was then living, about the murder. Meyer contacted the police that same day and implicated the defendant. After an investigation in which Meyer assisted the police, the defendant was arrested and charged in a one count information with murder. Additional facts will be presented as needed.

I

The defendant’s first claim is that the trial court improperly denied her motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that she had had the specific intent to cause the death of the victim. We disagree.

“In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). The specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11). . . . State v. Raguseo, 225 Conn. 114, 120, 622 A.2d 519 (1993). Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. State v. Greenfield, supra, 77. Therefore, intent is often inferred from conduct; id., 76; and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. State v. Raguseo, supra, 119.” (Internal quotation marks omitted.) State v. Mejia, 233 Conn. 215, 223, 658 A.2d 571 (1995). “Furthermore, [i]ntent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death. . . . State v. Raguseo, supra, 120.” (Internal quotation marks omitted.) State v. Mejia, supra, 224. “This does not require that each subordinate conclusion established by or inferred from evidence, or even from other inferences, be proved beyond a reasonable doubt because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. State v. Crafts, 226 Conn. 237, 244, 627 A.2d 877 (1993). Nevertheless, because intent to cause the death of a person is an element of the crime; State v. Raguseo, supra, 120; that intent must be proven beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).” (Internal quotation marks omitted.) State v. Mejia, supra, 223-24.

“We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . State v. Hart, 198 Conn. 424, 427, 503 A.2d 588 (1986).” (Internal quotation marks omitted.) State v. Mejia, supra, 233 Conn. 224.

The evidence presented at the defendant’s trial was sufficient to support the jury’s finding beyond a reasonable doubt that she had intended to kill the victim. Meyer testified that the defendant and the victim had had a history of marital conflicts. On the night of the shooting, the victim had accused the defendant of telling the police that he had been operating an unregistered vehicle. An argument ensued and the defendant threw a beer bottle at the victim. Although Meyer did not see the defendant leave the kitchen, she did testify that the defendant customarily carried her gun in her pocketbook, which she normally left in Meyer’s bedroom. Therefore, the jury could have inferred that the defendant had left the kitchen to retrieve her gun before shooting the victim in the back of the head. We conclude, moreover, that this evidence was sufficient for the jury also to infer that the defendant possessed an intent to kill, stemming from the permissible inference that the defendant had left the room to retrieve her gun and then returned to shoot the victim. “We have stated that [o]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill. . . . State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977).” (Internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 680, 613 A.2d 788 (1992).

Likewise, the jury was free to infer an intent to kill from the defendant’s failure to assist the victim after the shooting. We have previously noted that “the defendant’s failure to summon medical assistance for [her] victim [is] part of the evidence from which the jury could have inferred an intent to kill.” State v. Sivri, 231 Conn. 115, 129, 646 A.2d 169 (1994). Instead of seeking medical assistance for the victim, the defendant threatened Meyer not to tell anyone about the incident and immediately began the process of hiding the body. Consequently, there was sufficient evidence to support the jury’s finding that the defendant, when she shot the victim, had the requisite intent to kill him.

II

The defendant next claims that the trial court improperly denied her request to charge the jury on criminally negligent homicide as a lesser included offense of murder. In addition to charging murder, the trial court gave jury instructions on manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l). The trial court, however, concluded that the defendant was not entitled to a jury instruction on criminally negligent homicide because there was no evidence justifying conviction of the lesser offense. The state argues that the defendant failed to request an appropriate instruction. We agree with the state.

“There is no fundamental constitutional right to a jury instruction on every lesser included offense”; State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980); rather, the right to such an instruction is purely a matter of our common law. “A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id., 588.

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. State v. Montanez, 219 Conn. 16, 22-23, 592 A.2d 149 (1991); State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). ‘[T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.’ . . . State v. Rasmussen, 225 Conn. 55, 68, 621 A.2d 728 (1993). On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if ‘we cannot as a matter of law exclude [the] possibility’ that the defendant is guilty only of the lesser offense. State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982).” State v. Arena, 235 Conn. 67, 73-74, 663 A.2d 972 (1995).

Under the first prong of State v. Whistnant, supra, 179 Conn. 588, we must determine whether the request to charge constituted an appropriate instruction. “A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book § 854. State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990); State v. Ostroski, [201 Conn. 534, 556-58, 518 A.2d 915 (1986)]; State v. McIntosh, [199 Conn. 155, 158-61, 506 A.2d 104 (1986)]. Section 854 provides in relevant part: ‘When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply . . . .’ ” (Emphasis added.) State v. Arena, supra, 235 Conn. 75. “We have held that, in the context of a written request to charge on a lesser included offense, this requirement of § 854 is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested.” (Internal quotation marks omitted.) State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990).

“ ‘While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved . . . the ever increasing refinement of our lawjustifi.es cooperation of counsel in stating requests for jury instruction. The minor burden of cooperation imposed by [Practice Book § 854] is neither unreasonable nor novel.’ . . . State v. Hall, supra, 213 Conn. 593.” State v. Arena, supra, 235 Conn. 75-76.

General Statutes § 53a-58 provides in pertinent part: “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” (Emphasis added.) “A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” General Statutes § 53a-3 (14). Accordingly, to comply with the first prong of State v. Whistnant, supra, 179 Conn. 588, and Practice Book § 854, the defendant’s request to charge must enumerate the essential facts to justify the court’s instruction to the jury pertaining to the defendant’s failure to “perceive a substantial and unjustifiable risk” of the victim’s death.

We conclude that the defendant’s request to charge did not set forth the essential facts to warrant the court’s instruction on criminally negligent homicide. The defendant’s request included the following facts: “You heard testimony that the victim was shot. However, the State’s witness Suzette Meyer testified that she did not actually see the defendant pull the trigger. She testified that she was seated with her head down when the shot was fired. Suzette Meyer did not testify as to what caused the gun to be fired.” The request does not enumerate any essential facts demonstrating the defendant’s failure to “perceive a substantial and unjustifiable risk” of the victim’s death. We find unpersuasive the fact that Meyer did not actually see the defendant pull the trigger because that circumstance “is as applicable to the offenses of murder, manslaughter in the first degree, and manslaughter in the second degree as to criminally negligent homicide.” State v. Hall, supra, 213 Conn. 592. In our view, the defendant’s written request to charge constitutes “[a] mere general statement of the entire incident at issue [which] does not comply with our rules of practice.” Id., 591-92. Accordingly, the trial court did not improperly refuse the defendant’s request to instruct the jury on the offense of criminally negligent homicide.

Ill

The defendant’s final claim is that the trial court improperly admitted into evidence two tape-recorded conversations between the defendant and Meyer. We disagree.

The following additional facts are relevant to this issue. In September, 1992, after reading a newspaper article about the unsolved death of the victim, Meyer approached the local police and gave a statement implicating the defendant. In exchange for immunity, Meyer agreed with the state’s attorney’s office to wear a recording device and to attempt to elicit an admission of guilt from the defendant.

On September 11,1992, Meyer and the defendant met at a local supermarket. The police had informed Meyer that the defendant would be at the supermarket at the designated time. Meyer, who was wearing a microphone in her baseball hat, met with the defendant and attempted to obtain an admission.

On September 15, 1992, the police tape-recorded a telephone conversation between Meyer and the defendant. Meyer telephoned the defendant from a police car, accompanied by police officers, and asked the defendant to call her back at a pay telephone. The telephone number that Meyer gave the defendant was actually that of the telephone she was then using in the police car. When the defendant returned Meyer’s telephone call, Meyer again attempted to elicit an admission.

At trial, the state offered the cassette tapes and transcripts of the conversations into evidence. The defendant objected, arguing that because Meyer was acting as an agent of the state, Miranda warnings were required. The trial court overruled the defendant’s objection, determining that there had been no custodial interrogation.

The defendant argues that: (1) both recordings were improperly admitted because they were the product of custodial interrogation and, consequently, Miranda warnings had been required; and (2) the recorded telephone conversation was improperly admitted because it constituted an intercepted wire communication in violation of General Statutes § 54-41/,. We disagree with each of these claims.

A

The defendant argues that, because the tape-recorded conversations occurred in a “police dominated environment,” Miranda warnings were required. We disagree.

“Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police inteirogation. Miranda v. Arizona, [384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]. . . . State v. Williams, 227 Conn. 101, 112, 629 A.2d 402 (1993); accord State v. DesLaurier, 230 Conn. 572, 576, 646 A.2d 108 (1994). As stated by the United States Supreme Court in California v. Beheler, [463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983)], [although the circumstances of each case must certainly influence a determination of whether a suspect is ‘in custody’ for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 711 (1977)]. See also New York v. Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984); Minnesota v. Murphy, 465 U.S. 420, 430-31, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984); United States v. Cadmus, 614 F. Sup. 367, 370 (S.D.N.Y. 1985). State v. Pittman, 209 Conn. 596, 608, 553 A.2d 155 (1989); accord State v. Ross, 230 Conn. 183, 204, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); see also Thompson v. Keohane, [516 U.S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995)]. Further, the United States Supreme Court has adopted an objective, reasonable person test for determining whether a defendant is in custody. . . . Thus, in determining whether Miranda rights are required, the only relevant inquiry is whether a reasonable person in the defendant’s position would believe that he or she was in police custody of the degree associated with a formal arrest. . . . State v. DesLaurier, supra, 577.

“Furthermore, we note that [n]o definitive list of factors governs a determination of whether a reasonable person in the defendant’s position would have believed that he or she was in custody. Because, however, the Miranda court expressed concern with protecting defendants against interrogations that take place in a ‘police-dominated atmosphere’ containing inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely; Miranda v. Arizona, supra, 384 U.S. [467]; circumstances relating to those kinds of concerns are highly relevant on the custody issue. See generally C. Whitebread & C. Slobogin, Criminal Procedure (3d Ed. 1993) § 16.03, pp. 385-91; 1 W. LaFave & J. Israel, Criminal Procedure (1984) § 6.6, pp. 494-99. State v. DesLaurier, supra, 230 Conn. 577-78.

“The defendant bears the burden of proving custodial interrogation. State v. Pittman, supra, 209 Conn. 606. The trial court’s determination of the historical circumstances surrounding the defendant’s interrogation are findings of fact; id.; which will not be overturned unless they are clearly erroneous. State v. Young, 191 Conn. 636, 652, 469 A.2d 1189 (1983); State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982); see Practice Book § 4061. In order to determine the ultimate issue of custody, however, we will conduct a scrupulous examination of the record; State v. Weidenhof, 205 Conn. 262, 267-68, 533 A.2d 545 (1987); in order to ascertain whether, in light of the totality of circumstances, the trial court’s finding is supported by substantial evidence. State v. Pittman, supra, 606; State v. Toste, 198 Conn. 573, 580, 504 A.2d 1036 (1986); State v. Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985).” (Emphasis in original; internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 757-59, 670 A.2d 276 (1996).

Applying these principles to the facts of this case, we conclude that there is substantial evidence in the record to support the trial court’s conclusion that the defendant failed to prove that she was in custody during the course of either the September 11, 1992 meeting or the September 15, 1992 telephone conversation. At all times during the meeting in the supermarket, the defendant was free to leave. Meyer neither used, nor threatened to use, force to detain the defendant. Further', during the September 15,1992 telephone conversation, the defendant was not obligated to return Meyer’s telephone call. Indeed, the defendant could have terminated the conversation at any time by simply hanging up the receiver. Accordingly, because a review of the facts in the record reveals that a reasonable person in the defendant’s position would not have believed that she was in custody, during either the supermarket meeting or the telephone conversation, we agree with the trial court’s conclusion that the defendant was not entitled to Miranda warnings.

B

The defendant next claims that the trial court improperly admitted into evidence the tape-recorded September 15,1992 telephone conversation in violation of § 54-41Í. See footnote 12. In particular, the defendant argues that, because she was not served with a copy of the court order authorizing the intercepted wire communication, a new trial is warranted. We disagree.

“In general terms, our wiretap act [General Statutes § 54-41a et seq.] provides that, based upon certain specified findings, a panel of three Superior Court judges may issue an order authorizing ‘the interception of wire communications within the state of Connecticut. . . .’ General Statutes § 54-41d. For these purposes, ‘ “¡intercept” means the intentional overhearing or recording of a wire communication through the use of any electronic, mechanical or other device.’ General Statutes § 54-41a (Z).” State v. McVeigh, 224 Conn. 593, 604-605, 620 A.2d 133 (1993). Section 54-41l prohibits the contents of intercepted wire communications from being admitted into evidence unless the “aggrieved person” has been served with a copy of the court order at least thirty days before trial.

We have held, however, that the protections of the wiretap act are inapplicable to wiretaps in which one party consents to the recording. State v. Grullon, 212 Conn. 195, 211, 562 A.2d 481 (1989). In Grullon, we emphasized that “ ‘[t]he competing interests of the community in effective law enforcement and of the individual in his privacy are, in a unique way, drawn into question by police wiretapping. Clearly, our statutes are aimed at balancing these competing interests.’ ” Id., 210-11, quoting State v. Ross, 194 Conn. 447, 458, 481 A.2d 730 (1984). Accordingly, if one of the parties to a telephone conversation consents to wiretapping, the provisions of the wiretap act, including § 54-417, do not apply.

In this case, it is undisputed that Meyer consented to the wiretapping of the September 15, 1992 telephone conversation with the defendant. We conclude that, because the wiretap act does not apply to consensual wiretaps, the state was under no statutory obligation to obtain a court order authorizing the wiretap or to give the defendant a copy of that order and the accompanying application.

The judgment is affirmed.

In this opinion PETERS, C. J., and NORCOTT and PALMER, Js., concurred.

BERDON, J. I concur in the result.

       General Statutes § 53a-54a (a) provides: “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 or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

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

       General Statutes § 53a-58 provides: “Criminally negligent, homicide: Class A misdemeanor, (a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person, except where the defendant, caused such death by a motor vehicle.
      “(b) Criminally negligent homicide is a class A misdemeanor.”

       On June 12, 1996, the defendant filed an amended appeal, pursuant to Practice Book § 4013 (a) (1), from the trial court’s decision, dated May 31, 1996, denying the defendant’s motion for a new trial dated November 21, 1995. Because the pleadings relating to the amended appeal have not been received, we do not consider the amended appeal as part of this appeal. Practice Book § 4006. Therefore, our review is limited to the issues raised in the defendant’s original appeal.

       General Statutes § 53a-55 provides in relevant part: “(a) A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person. . . .”

       General Statutes § 53a-56 provides in relevant part: “(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person

       The state also argues that the defendant has failed to meet the third and fourth prongs of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Because we conclude that the defendant failed to request an appropriate instruction, we need not address the state’s additional arguments.

       We are also unpersuaded by the defendant’s contention at oral argument that the trial court improperly failed to provide the requested jury charge because the jury could have found that the defendant, in self-defense or in a state of emotional distress, shot the victim in the course of a heated domestic altercation. We note that this argument, which is totally inconsistent with the defendant’s trial testimony in which she denied shooting the victim, was not specified in the requested jury charge and, consequently, could not constitute the essential facts required to satisfy the first prong of State v. Whistnant, supra, 179 Conn. 588.

       The transcript of the September 11, 1992 meeting provides in relevant part:
      “[Meyer]: I gotta stay at home. There’s an article in the paper.
      “[The Defendant]: About what? About George?
      “[Meyer]: Yes.
      “[The Defendant]: What does that have to do with staying home?
      “[Meyer]: I don’t know. I’m getting real nervous about it.
      “[The Defendant]: Why?
      “[Meyer]: After all this time, what the hell’s going on.
      “[The Defendant]: They do that once a week. All unsolved crimes.
      “[Meyer]: Yeah. I know they’re going to make it into Unsolved Mysteries thing and they open it back up again.
      “[The Defendant]: This is the second time they’ve done it.
      “[Meyer]: I don’t go for it. Makes me very nervous.
      “[The Defendant]: I don’t think there’s anything to be nervous about. They don’t have any — any evidence that they didn’t have before.
      “ [Meyer]: Well, even though I got my shit together now, I don’t wanna — I’m not going down for something like that. Even if they opened it, they come back for more information or something.
      “[The Defendant]: It’s only because it’s one of these unsolved crimes that they did put it in the paper.
      “[Meyer]: They don’t contact you?
      “[The Defendant]: Yeah.
      “[Meyer]: Oh, they did?
      “[The Defendant]: Oh, yeah. I told ’em I had no comment. That’s why only, the only thing that was in the paper was George’s family. And they didn’t want to talk to ’em either. No, they said it was too much pain or aggravation or something. They don’t want to talk to ’em.
      “[Meyer]: They better not come after me. I’m nervous.
      “[The Defendant]: Well, what good’s that going to do you?
      “[Meyer]: I don’t know. What if they want you to take a lie detector or something after all this time?
      “[The Defendant]: Just — Just deny it. You just say, ‘No, I won’t. I don’t have anything to do with it and you can’t bother me.’
      “[Meyer]: What if they make you though?

        “[The Defendant]: They can’t make you. They have to have some kind of evidence against you to get a warrant for you. And they have none. So, they can’t do it Do you want a free trip to my lawyer’s office?
      “[Meyer]: No.
      “[The Defendant]: Go down and talk to them about—
      “[Meyer]: I’m just concerned. I don’t wanna go down for something that I consider out of my past. And now it’s back up again and I’m looking over my shoulder, and I don’t — I don’t like it. I don’t like it. (inaudible)
      “[The Defendant]: You’re making yourself too nervous. Don’t be scared ’cause nothing’s gonna happen. . . .”

       The transcript of the September 15, 1992 telephone conversation provides in relevant part:
      “[Meyer]: Hello.
      “[The Defendant]: Hello. What’s going on?
      “[Meyer]: They called me. They want to talk to me. I put ’em off till three o’clock. They’re going to come to the house.
      “[The Defendant]: Who called you?
      “[Meyer]: The police.
      “[The Defendant]: What’s — What police?
      “[Meyer]: I don’t know. They — they didn’t say. Did they call you?
      “[The Defendant]: No.
      “[Meyer]: What the fuck’s going on?
      “[The Defendant]: I don’t know, but there is no — there is no evidence.
      “[Meyer]: There’s — there’s got to be. Because I—
      “[The Defendant]: You know, the only thing there is is you telling Robin Wade all these stories and — and—unless somebody said something. There is no evidence. There never was evidence. Never, ever. There was no evidence.
      “[Meyer]: There’s got to be something or they’re — I don’t [know] why they’re contacting me. They’re not contacting you. They’re contacting—
      “[The Defendant]: Well, they—
      “[Meyer]: —me. Why?
      “[The Defendant]: —they contacted George’s family and asked him what they had to say, you know, last time what they had to say. I mean — ah— Grandpa and Steve and Auntie May—
      “[Meyer]: Yeah.

        “[The Defendant]: —and they said they didn’t have anything to say.
      “[Meyer]: Well—
      “[The Defendant]: There isn’t anything to say.
      “[Meyer]: Look, I don’t remember that far back, what I said, what I didn’t say. They’re going to question me. I don’t know what to say. What’ll—
      “[The Defendant]: Say, T don’t remember.’
      “[Meyer]: Oh—
      “[The Defendant]: How about—
      “[Meyer]: And if they give me a lie detector test?
      “[The Defendant]: Bullshit. You have to say ‘No’ to that. You know, zero.
      “[Meyer]: But I’m — I’m not going to jail for something you did. I am scared shitless. You know, I don’t know what to say.
      “[The Defendant]: Well, you’re telling me that you’re not going to jail. There’s no reason for you to go to jail.
      “[Meyer]: Hey, look! I’m just as guilty as you are.
      “[The Defendant]: Right. So, if you just shut up, there isn’t anything else—
      “[Meyer]: Yeah, what if — what if they’ve got something?
      “[The Defendant]: They have nothing. . . .”

       In overruling the defendant’s objection, the trial judge stated: “You’re actually touching on a number of interesting doctrine here — question of agency; whether she is an agent of the state, which is arguable in this case.
      “There are a number of elements that the courts require in order to get to the agency question. The most significant one is compensation. And that appears to be lacking in this case. Also, whether they actually placed her, such as putting someone into a cell. Apparently she took care of this part of it herself, and whether they get the fruits of the — the adventure, which I’m sure they did in this case.
      “That leaves that as an arguable situation.
      “But the more critical one is the fact that the constitution requires a custodial interrogation. This was not a custodial interrogation, which brings up the question of should it have been? Which really impinges on the question of preaccusational delay which is a fifth amendment problem, really due process. And this case does not come anywhere close to the preaccusational delay cases that I’ve seen.

        “This was a one-on-one situation, basically daughter against mother. And seems to me that it would be fatuous to say that the state should not go out and try to get some corroboration for a one-on-one situation.
      “I just don’t think that this is anywhere near the required threshold for a preaccusational situation.
      “What you're really saying is that she had a right to be arrested. And I don’t think that that follows from the set of facts.
      “I’m going to deny your motion for all of those reasons.”

       General Statutes § 54-411 provides: “Intercepted communication admissible as evidence, when. The contents of any intercepted wire communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in a court of this state unless each aggrieved person, not less than thirty days before such trial, hearing or proceeding, has been served with a copy of the court order, and accompanying application, under which the interception was authorized.”

       Contrary to the state’s argument that the defendant has not preserved this issue for appeal, we find that it was sufficiently raised at trial to warrant review.

       The defendant also argues that the admission of the recorded telephone conversation deprived her of her constitutional right to a fair trial. Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) We are free to dispose of the claim “by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240. In this case, we conclude that the defendant has failed to satisfy the third condition of Golding because she has not provided any meaningful analysis establishing how the admission of the telephone conversation “clearly deprived” her of her right to a fair trial.

       General Statutes § 54-41a provides: “Definitions. The following words and phrases, as used in this chapter, shall have the following meanings, unless the context otherwise requires:
      “(1) 'Wire communication’ means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of telephone or telegraph between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications;
      “(2) ‘Intercept’ means the intentional overhearing or recording of a wire communication through the use of any electronic, mechanical or other device;
      “(3) ‘Electr onic, mechanical or other device’ means any device or apparatus which can be used to intercept a wire communication other than (A) any telephone or telegraph instrument, equipment or facility, or any component thereof (i) furnished to the subscriber or used by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business, or (ii) being used by a communications common carrier in the ordinary course of its business, (B) a hearing aid or similar device being used to correct subnormal hearing to not better than normal;
      “(4) ‘Person’ means any officer, agent or employee of the state of Connecticut or any political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation;
      “(5) ‘Investigative officer’ means (A) any officer of the Connecticut state police, (B) the chief inspector or any inspector in the division of criminal justice who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, (C) any municipal police officer who has been duly sworn as a special state police officer under the provisions of section 29-177 and who is currently assigned to the state-wide narcotics task force or the state-wide organized crime investigative task force and is acting under the direct authority of the Connecticut state police, and (D) any attorney authorized by law to prosecute or participate in the prosecution of offenses enumerated in this chapter;
      “(6) ‘Law enforcement officer’ means any officer of any organized police department of this state or of the state police of any other state, an official of the Federal Bureau of Investigation, Drug Enforcement Administration or United States Customs Service, or the United States attorney for the district of Connecticut or a person designated by him in writing to receive the contents of any wire communication or evidence derived therefrom;

        “(7) ‘Contents’, when used with respect to any wire communication, means and includes any information concerning the identity of the parties to such communication or the existence, substance, purport or meaning of that communication;
      “(8) ‘Panel of judges’ or ‘panel’ means any panel or panels of three superior court judges specifically designated by the chief justice of the supreme court from time to time to receive applications for, and to enter orders authorizing, interceptions of wire communications in accordance with the provisions of this chapter;
      “(9) ‘Communication common carrier' means any person engaged as a common carrier for hire in the transmission of commrmications by wire or radio;
      “(10) ‘Aggrieved person’ means a person who was a party to any intercepted wire communication, a person against whom the interception was directed, a person named in any order authorizing an interception, or a person having a property interest in any premises involved in any interception.”


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    MATTATUCK MUSEUM-MATTATUCK HISTORICAL SOCIETY v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (15372)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.
    Argued April 23
    officially released July 23, 1996

      W. Fielding Secor, for the appellant (plaintiff).

      Beth Z. Margulies, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (named defendant).
   BERDON, J.

The dispositive issue raised in this appeal is whether, for the purposes of eligibility for unemployment compensation benefits, the provision of art courses by the plaintiff, Mattatuck Museum-Mattatuck Historical Society, constitutes an activity within its usual course of business. The plaintiff appeals from the judgment of the trial court in which the court held that the employment security board of review (board) had properly concluded that the plaintiff had failed to prove that the claimant, Karen Perrella, was employed as an independent contractor under the provisions of the Unemployment Compensation Act (act). We affirm the judgment of the trial court.

The following facts relevant to this appeal are undisputed. The plaintiff operates largely as an exhibition hall for regional historic artifacts and art. According to its own literature, however, the plaintiff also offers several artistic programs, including lectures, workshops, and arts and crafts courses, which are the subject of this appeal.

A variety of instructional art courses were offered by the plaintiff. The classes were held at the museum and taught by individuals hired by the plaintiff. Enrollment was open to the general public, and registration fees for the courses were discounted for museum members. In an effort to publicize the courses, the plaintiff prepared and distributed brochures describing the nature of the courses being offered, course schedules, and the cost of enrollment.

Perrella contacted the plaintiff to express her interest in teaching art courses, and was employed in January, 1989. Between 1989 and 1990, Perrella taught several courses, including watercolor, portraiture, pastels and oil painting, sculpture, and children’s workshops.

In August, 1990, however, the plaintiff terminated Perrella’s services. Subsequently, Perrella filed for unemployment compensation benefits. The plaintiff contested Perrella’s claim, arguing that she had been employed as an independent contractor. The named defendant, the administrator of the act (administrator), applying General Statutes § 31-222 (a) (1) (B) (ii), found Perrella to be an employee of the plaintiff and thus eligible for unemployment compensation benefits. The plaintiff appealed the administrator’s decision to an appeals referee, who determined that an employment relationship existed because, pursuant to § 31-222 (a) (1) (B) (ii) (II), the plaintiffs art courses were within its “usual course of business.” After unsuccessful appeals to the board and then to the Superior Court, the plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

We first consider the appropriate standard of review for the question presented. “To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry facts nor hear evidence. ... If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion. ...” (Citations omitted.) United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385-86, 551 A.2d 724 (1988). In this case, therefore, we must determine whether, in light of the evidence presented, the board’s finding that the provision of art courses was within the plaintiffs usual course of business was unreasonable, arbitrary or an abuse of discretion.

An individual may receive unemployment compensation benefits if he or she was an “employee” within the meaning of the act. In addition to defining the employer-employee relationship pursuant to the common law, § 31-222 (a) (1) (B) provides that individuals who perform services for others are presumed to be employees, unless the recipient of the services (enterprise) satisfies the statutory exclusion, which is popularly known as the “ABC test.” In order for an enterprise to demonstrate that an individual was not an employee, and that the enterprise therefore has no liability for unemployment taxes under the act, the enterprise must prove that the individual satisfies each of the three prongs of the ABC test. This test is conjunctive; failure to satisfy any one of the prongs will render the enterprise subject to the act. Latimer v. Administrator, 216 Conn. 237, 247, 579 A.2d 497 (1990). Under the ABC test, an individual will not be considered an employee if: “[A] such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and [B] such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and [C] such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed . . . .” (Emphasis added.) General Statutes § 31-222 (a) (1) (B) (ii) (I) (II) and (III).

At issue in this appeal is prong B of the test: whether the provision of art courses falls outside the plaintiffs “usual course of business.” Resolution of this question requires that the phrase “usual course of business” be defined. This court has not previously defined this phrase expressly for the purposes of unemployment compensation. See Daw’s Critical Care Registry, Inc. v. Dept. of Labor, 42 Conn. Sup. 376, 401-402, 622 A.2d 622 (1992), aff'd, 225 Conn. 99, 622 A.2d 518 (1993) (characterizing Connecticut precedent relating to prong B of ABC test as limited). Nevertheless, we find guidance in the plain language of the statute and the precedents of those states that have analyzed the meaning of this term.

In making our determination, we take as our starting point the fact that the act is remedial and, consequently, should be liberally construed in favor of its beneficiaries. Taminski v. Administrator, 168 Conn. 324, 328, 362 A.2d 868 (1975). Indeed, the legislature underscored its intent by expressly mandating that the act “shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases.” General Statutes § 31-274 (c).

Our analysis commences with a review of the text of the act. “In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended. . . . When the language is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. . . . Indeed, [a] basic tenet of statutory construction is that when a statute ... is clear and unambiguous, [generally] there is no room for construction. ...” (Citations omitted; internal quotation marks omitted.) Oller v. Oller-Chiang, 230 Conn. 828, 848, 646 A.2d 822 (1994).

First, it must be determined for whose “business” the service was performed — that is, for museums in general or specifically for the business of the plaintiffs museum. The plaintiff focuses on that which is outside the usual course of business for museums generally. It argues that, because the dictionary defines “museum” as “an institution devoted to the procurement, care, and display of objects of lasting interest or value”; Webster’s Third New International Dictionary; art courses are outside the usual course of its business. This argument, however, ignores the plain language of prong B, which requires inquiry into “the business for which the service is performed . . . .” (Emphasis added.) General Statutes § 31-222 (a) (1) (B) (ii) (II). Prong B does not refer to the type of business, but, rather, to the specific business activities engaged in by the enterprise. Accordingly, with respect to this prong, we examine the particular activities engaged in by the plaintiff.

We next define the term “usual.” The plaintiff argues that “usual” does not mean “if you do it, it is within your usual course of business.” We agree. To define the term in such a manner would include every relationship, including bona fide independent contractors, within the purview of the act. Indeed, the administrator does not argue for such a definition. Rather, the administrator asserts, and we agree, that “usual,” in accordance with its common usage, simply means that an activity is performed by the enterprise on a regular or continuous basis. In the terms of § 31-222 (a) (1) (B) (ii) (II), if the activity is not performed on a regular or continuous basis, then the employer has satisfied prong B because the activity is “outside the usual course of the business” of the enterprise.

The plaintiff further argues that the offering of art courses was outside its “usual course of business” because the services provided by Perrella as compared to its other activities were de minimis with respect to the revenue generated from or resources devoted to the art courses. Prong B, however, does not compel an inquiry into the substantiality or extent of a particular business activity in relation to other activities conducted by the enterprise. We agree that the mere fact that an enterprise undertakes an activity as an isolated instance does not render that activity within its “usual course of business.” If, however, an enterprise undertakes an activity, not as an isolated instance but as a regular or continuous practice, the activity will constitute part of the enterprise’s usual course of business irrespective of its substantiality in relation to the other activities engaged in by the enterprise.

In sum, prong B requires the finder of fact to determine whether the activity performed is within the “usual course of business” of the specific business at issue. In our view, “usual course of business,” as used in § 31-222 (a) (1) (B) (ii) (II), means that the enterprise performs the activity on a regular or continuous basis, without regard to the substantiality of the activity in relation to the enterprise’s other business activities.

This definition of “usual course of business,” as used in prong B of the ABC test, is in accord with the precedent of other states. In Bigfoot’s, Inc. v. Board of Review of the Industrial Commission of Utah, 710 P.2d 180, 180-81 (Utah 1985), the Supreme Court of Utah considered whether the performance of entertainers was within the usual course of business of the plaintiff’s bar for the purposes of unemployment compensation. During a fifteen month period, the bar engaged numerous bands to perform at its place of business with the expectation that the bands would attract customers and increase business. Id., 181. The court reasoned that because it was “usual and customary” for the plaintiffs bar to provide entertainment, the employment of entertainers was within its “usual course of business.” Id.

For slightly different reasons, in Yurs v. Director of Labor, 94 Ill. App. 2d 96, 103, 235 N.E.2d 871 (1968), the Appellate Court of Illinois concluded that an organist was an employee of a funeral home within the terms of Illinois’ Unemployment Compensation Act. Between 1959 and 1962, the organist performed at nearly 285 funeral services, and the music was included in the “package price” of each service. Id., 102, 104. Concluding that the funeral home was required to pay unemployment compensation taxes, the court stated: “The frequency of the inclusion of music in the funeral services indicated that it was a usual part of the services offered by [the] plaintiffs. ... It cannot be said under these circumstances that the furnishing of music was not in aid of and a part of [the] plaintiffs’ business.” Id., 104.

Accordingly, we concur in the trial court’s judgment that the board did not act unreasonably or arbitrarily in concluding that the offering of art courses was within the plaintiffs “usual course of business.” The referee found that the plaintiff offered the art courses on a regular and continuous basis. The record reflects the fact that the plaintiff had employed instructors to teach art courses for several years. Perrella approached the plaintiff with her resume because she knew that it offered art courses to the general public. Moreover, the plaintiff held itself out to the public as offering art courses. The plaintiff produced and distributed brochures announcing the courses, class hours, location, registration fees, and the instructors’ names. Indeed, the brochure listed Perrella as a member of its “faculty,” from which the general public could infer that the art courses were a regular part of the plaintiffs business. Furthermore, the appeals referee found that the plaintiff discounted the art courses for members in an effort to bolster its membership. We therefore conclude that substantial evidence exists in the record for the board to have determined that the provision of art courses was within the plaintiffs usual course of business and that the trial court properly so held.

The judgment is affirmed.

In this opinion the other justices concurred.

       The Mattatuck Historical Society operates the Mattatuck Museum. For simplicity, we refer solely to the Mattatuck Museum as the plaintiff.

       Perrella was named as a defendant in the administrative appeal to the Superior Court.

       General Statutes § 31-222 et seq.

       General Statutes § 31-222 (a) (1) (B) provides in relevant part: “Any service performed . . . after December 31, 1977, including service in interstate commerce, by . . . (ii) any individual who, under either common law rules applicable in determining the employer-employee relationship or under the provisions of this subsection, has the status of an employee. Service performed by an individual shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the administrator that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed . . . .”

       In his decision, the appeals referee determined in relevant part: “The museum seeks to distance itself from the art courses through a claim that these courses are not the usual work of a museum. It, however, is unsuccessful.
      “The museum began a program of art study prior to those which the claimant taught. It determined a need within the community and responded. These then became part of the museum’s normal business as they are offered continually to the public. Other evidence is supplied by the course offerings. Members are provided a discounted fee. This is obviously to encourage membership, a fee situation. This furthers the museum’s program and mission and closely ties the art courses to the museum.”

       The board concluded that the plaintiff failed to satisfy any of the prongs of the ABC test provided in § 31-222 (a) (1) (B), discussed hereinafter. Because we conclude, like the trial court, that prong B of the test has not been satisfied, we need not reach the question of whether the board’s additional determinations with respect to prongs A and C were correct.

       Prong B is also satisfied if it is proven, in the alternative, that the service “is performed outside of all the places of business of the enterprise for which the service is performed . . . .” General Statutes § 31-222 (a) (1) (B) (ii) (II). The plaintiff does not make this claim because Perrella’s services were performed on-site at the museum.

       The term “usual” is defined as “such as accords with usage, custom, or habit: of the character or amount in common use . . . commonly or ordinarily employed . . . such as occurs in ordinary practice or in the ordinary course of events.” Webster’s Third New International Dictionary.

       We note that there may be some situations, for example, those involving start-up businesses or new ventures of established businesses, in which the activity in question has not been performed for a sufficient duration to be deemed to be performed on a regular or continuous basis. In such cases, a better indication of whether the activity is in the “usual course of business” may be whether the enterprise holds itself out to the public or other interested entities as performing the activity. See Hart v. Johnson, 68 Ill. App. 3d 968, 976, 386 N.E.2d 623 (1979).


author: PER CURIAM.

text:
    RAYMOND FLINT v. NATIONAL RAILROAD PASSENGER CORPORATION
    (15248)
    Callahan, Borden, Berdon, Katz and Palmer, Js.
    Argued May 1
    officially released July 30, 1996

      William F. Gallagher, with whom, on the brief, was Cynthia C. Bott, for the appellant (plaintiff).

      David Thomas Ryan, with whom were John W. Steinmetz and, on the brief, Craig A. Raabe, for the appellee (defendant).
   PER CURIAM.

The plaintiff, Raymond Flint, an employee of the defendant, National Railroad Passenger Corporation, brought an action against the defendant under the Federal Employers’ Liability Act for injuries he sustained while attempting to lift a section of railroad track with a jack. The case was tried to the court, but the court declared a mistrial before rendering judgment. The plaintiff then filed a motion to amend his complaint, together with a claim for a jury trial. The trial court, Fracasse, J., granted the plaintiffs motion to amend but struck his jury trial claim. The case subsequently was referred to Hon. John C. Flanagan, state trial referee, and judgment was rendered in favor of the defendant. The plaintiff appealed from the trial court’s decision striking his jury trial claim to the Appellate Court, which affirmed the judgment of the trial court. Flint v. National Railroad Passenger Corp., 37 Conn. App. 162, 655 A.2d 266 (1995). The plaintiff then petitioned for certification to this court. We granted certification limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the plaintiffs amendments to his complaint did not enlarge the existing issues or present new issues of fact so as to entitle him to claim a jury trial pursuant to General Statutes § 52-215?” Flint v. National Railroad Passenger Corp., 233 Conn. 905, 657 A.2d 642 (1995). We affirm the judgment of the Appellate Court.

The parties agree that § 52-215 permits either party to request a jury trial within ten days after an issue of fact has been joined. The parties disagree, however, as to whether the amendments to the plaintiffs original complaint joined new issues of fact. The trial court, in its striking of the jury trial claim, concluded that the amendments added no new issues of fact but only restated the factual claims already alleged. The Appellate Court affirmed the trial court’s judgment, concluding that “[t]he allegations of the original complaint were broad enough to have permitted the plaintiff to offer proof of the [additional theory in the amended complaint].” Flint v. National Railroad Passenger Corp., supra, 37 Conn. App. 166.

Our examination of the record, briefs and arguments of the parties persuades us that the judgment of the Appellate Court should be affirmed. The central issues relating to § 52-215 and the plaintiffs claim for a jury trial were properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. Id. Because that opinion fully states and addresses the arguments raised in the present appeal, we adopt the Appellate Court’s well reasoned opinion as a statement of the facts and the applicable law concerning the certified issue. It would serve no useful purpose for us to repeat the discussion contained therein. Cf. Val-Pak of Central Connecticut North, Inc. v. Commissioner of Revenue Services, 235 Conn. 737, 740, 669 A.2d 1211 (1996); Greater Bridgeport Transit District v. State Board of Labor Relations, 232 Conn. 57, 64, 653 A.2d 151 (1995).

The judgment is affirmed.

       45 U.S.C. § 51 et seq.

       General Statutes § 52-215 provides in relevant part: “When, in any of the above-named cases an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk; and any such case may at any time be entered in the docket as a jury case by the clerk, upon written consent of all parties or by order of court. All issues of fact in any such case shall be tried by the jury, provided the issues agreed by the parties to be tried by the court may be so tried. . . .”


author: CALLAHAN, J. BERDON, J.,

text:
    RELIANCE INSURANCE COMPANY v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA
    (15396)
    Peters, C. J., and Callahan, Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued June 6
    officially released July 30, 1996

      Jack G. Steigelfest, with whom, on the brief, was Constance L. Epstein, for the appellant (plaintiff).

      Jon Berk, with whom, on the brief, were David B. Heintz and Christopher L. Slack, for the appellee (defendant).
   CALLAHAN, J.

In accordance with Practice Book §§ 4147 and 4148, the trial court granted the parties’ joint interlocutory motion for reservation of a question of law to the Appellate Court. We subsequently transferred the reservation to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The issue agreed upon by the parties and reserved by the trial court for advice is as follows: “In light of the provisions of Public Act No. 93-297, §§ 1 and [29], is an employee barred from recovering uninsured motorist coverage benefits against his employer’s insurer in regard to a motor vehicle accident that occurred prior to the effective date of the [Public] Act?” We conclude that an employee is not so barred and answer “no” to the reserved question.

The following facts are not disputed. On January 13, 1989, Beverly Martin was involved in a two car accident with an uninsured vehicle in Danbury during the course of her employment as a driver for Jace Transportation (Jace). Martin suffered injuries in the accident, which was caused by the tortious conduct of the driver of the uninsured vehicle. As a result of her injuries, Martin applied for, and received, workers’ compensation benefits from Jace’s workers’ compensation carrier.

At the time of Martin’s accident, Jace was covered by an insurance policy issued by the defendant, American Casualty Company of Reading, Pennsylvania, that included uninsured motorist coverage. At the same time, Martin also had a personal automobile insurance policy with the plaintiff, Reliance Insurance Company, that included uninsured motorist coverage. Martin sought and received compensation for her injuries pursuant to the uninsured motorist coverage provided by her personal insurance policy issued by the plaintiff.

The plaintiff subsequently brought this action against the defendant seeking to recover the sum that the plaintiff had paid to Martin. At this early stage in the proceedings, the trial court has deemed the resolution of the reserved question sufficiently important to invoke the procedural mechanism of Practice Book § 4147, which allows this court or the Appellate Court to answer specific reserved questions if that answer is “reasonably certain to enter into the decision of the case” and if it appears that answering the question “would be in the interest of simplicity, directness and economy of judicial action.”

In CNA Ins. Co. v. Colman, 222 Conn. 769, 610 A.2d 1257 (1992), we concluded that an employee injured in an automobile accident during the course of his or her employment who had received workers’ compensation benefits was barred by General Statutes § 31-284 (a) from recovering “against a commercial insurance provider on an uninsured motorist insurance policy procured by [his or her] employer.” Id., 772. We reasoned that “[b]ecause of the central role that the exclusive remedy provision [of § 31-284 (a)] plays in our workers’ compensation law, an employee who can receive workers’ compensation benefits is . . . barred from collecting under his employer’s uninsured motorist coverage, whether that coverage is provided through self-insurance or through a commercial insurance policy.” Id., 774.

In 1993, in response to our decision in Colman, the legislature enacted No. 93-297 of the 1993 Public Acts (P.A. 93-297), § (1) (f) of which provides that “[n]otwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured’s otherwise applicable uninsured and underinsured motorist coverage.” The effective date of this provision was January 1, 1994, several years after Martin’s automobile accident. The plaintiff, however, asserts that § (1) (f) of P.A. 93-297 was intended by the legislature to seive as clarifying legislation and therefore must be viewed by this court as a declaration of the legislature’s original intent regarding the interplay of the exclusivity provision of the workers’ compensation laws and the uninsured motorist laws. See Darak v. Darak, 210 Conn. 462, 471, 556 A.2d 145 (1989).

“In principle, a statutory amendment that construes and clarifies a prior statute operates as the legislature’s declaration of the meaning of the original act. State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987); Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985). [I]f the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act .... State v. Blasko, supra, 558, quoting 1A J. Sutherland, [Statutory Construction (4th Ed. Sands 1986)], § 22.31, p. 276; see also Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 640, 513 A.2d 52 (1986). To determine whether an act should be characterized as clarifying legislation, we look to the legislative history to determine the legislative intent. State v. Blasko, supra, 558.” (Internal quotation marks omitted.) Darak v. Darak, supra, 210 Conn. 471.

An exchange on the floor of the House of Representatives between Representative Robert Farr and Representative Richard Tulisano, one of the sponsors of the House amendment that contained the provision at issue, provides uncontroverted support for the plaintiffs argument that § (1) (f) of P.A. 93-297 was enacted in direct response to our decision in Colman, and that the legislature, in enacting that provision, clarified its intent regarding an injured worker’s ability to collect uninsured motorist benefits from his or her employer’s automobile insurance carrier after having received workers’ compensation benefits. Referring to § (1) (f), Representative Farr asked Representative Tulisano if that provision was “intended to be a recital of what [Representative Tulisano] believe[d] the current law [to be] or [was] that intended to be new legislation?” 36 H.R. Proc., Pt. 27, 1993 Sess., p. 9673. Representative Tulisano responded, “[I]n drafting this, it was intended to be a recital. What we believe current law was and has been, there is a recent Supreme Court case that may have interpreted differently and I think it is a restatement of what we consider [the] law to be at this point in time.” (Emphasis added.) Id. Representative Farr then asked how the amendment would affect pending cases in which an employee injured in an automobile accident during the course of his or her employment was seeking to recover from his or her employer’s automobile insurance carrier under the uninsured motorist provisions of the employer’s policy. Representative Tulisano replied, “Since this law doesn’t go into effect until, I think, January, 1994,1 think what it would be is just, as I understand, I think the courts might look at this as [a] restatement of legislative intent and probably inteipret the law [as] we always have been. I just note that we have always understood that the workers’ compensation] carriers had a lien on any proceeds and therefore, they were always covered and I think a, Supreme Court decision was just out of the ordinary in this area.” (Emphasis added.) Id., p. 9674. Representative Farr then responded, “For the record, I would concur with Representative Tulisano’s interpretation of what this language is intended to do.” Id.

This legislative history persuades us that § (1) (f) of P.A. 93-297 was intended to be clarifying legislation and, as such, must be accepted as a declaration of the legislature’s original intent pertaining to the interplay between the uninsured motorist provisions of General Statutes § 38a-336 and the workers’ compensation exclusivity provision of § 31-284. See Darak v. Darak, supra, 210 Conn. 471. Consequently, we conclude that an employee is not barred from recovering uninsured motorist coverage benefits against his or her employer’s insurer in regard to a motor vehicle accident that occurred prior to the effective date of P.A. 93-297.

The reserved question is answered “no.”

No costs will be taxed in this court to either party.

In this opinion PETERS, C. J., and BORDEN, NORCOTT, KATZ and PALMER, Js., concurred.

BERDON, J.,

concurring. I agree with the opinion of the court today. It is clear from the legislative history that subsection (1) (f) of No. 93-297 of the 1993 Public Acts, which effectively reversed the decision in CNA Ins. Co. v. Colman, 222 Conn. 769, 610 A.2d 1257 (1992), was intended to clarify the legislature’s original intent that employees not be barred from recovering uninsured motorist coverage benefits against their employer’s insurer. As I stated in my dissent in Bouley v. Norwich, 222 Conn. 744, 765, 610 A.2d 1245 (1992), which I incorporated in my dissent in CNA Ins. Co. v. Colman, supra, 775: “[T]he exclusivity provision of the Worker’s Compensation Act . . . does not bar an employee injured in an automobile accident while in the course of his employment from receiving uninsured motorist benefits from his [employer’s insurer]. Any other result would simply confuse tort law with contract law — both of which, of course, are birds of a different feather.”

       The matter went to arbitration, where the plaintiff was ordered to pay Martin $97,500 under the uninsured motorist provisions of Martin’s personal automobile policy.

       General Statutes § 31-284 provides in pertinent part: “Basic rights and liabilities. Civil action to enjoin noncomplying employer from entering into employment contracts. Notice of availability of compensation, (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation.”

       The plaintiffs asserted statutory basis for recovery in Colman was General Statutes § 38-175c (a) (2), the precursor to § 38a-336 (a) (2). At the time of the automobile accident in Colman, § 38-175c provided: “(a) Every [automobile liability insurance] policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations [as the insurance commissioner adopts], with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles or of insured and underinsured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily ipjury coverage of such policy issued to such named insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of subsection (b) of this section.”

       We need not decide today the effect of No. 93-297 of the 1993 Public Acts on those cases in which the employer is self-insured. See Bouley v. Norwich, 222 Conn. 744, 610 A.2d 1245 (1992) (companion case to Colman holding that an employee who has received workers’ compensation benefits is precluded from receiving uninsured motorist benefits from his self-insured employer).

       “Even though the legislative clarification was prompted by a judicial decision that the legislature deemed mistaken, such a clarification does not constitute an invasion of judicial authority. Like legislatures, judges are fallible. The legislature has the power to make evident to us that it never intended to provide a litigant with the rights that we previously had interpreted a statute to confer. Circle Lanes of Fairfield, Inc. v. Fay, [195 Conn. 534, 540-41, 489 A.2d 363 (1985)]; Neyland v. Board of Education, [195 Conn. 174, 180-85, 487 A.2d 181 (1985)]; Lee v. Board of Education, [181 Conn. 69, 75, 434 A.2d 333 (1980)]; Tax Commissioner v. Estate of Bissell, [173 Conn. 232, 245, 377 A.2d 305 (1977)]. State v. Blasko, supra, [202 Conn.] 558. Similarly, the legislature has the power to make evident to us that it did intend to provide a litigant with rights which we previously had interpreted a statute not to confer.” (Internal quotation marks omitted.) State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987).