author: Glass, J.

text:
    State of Connecticut v. Leslie Jones
    (13523)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued February 27
    decision released May 29, 1990

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

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

The defendant, Leslie Jones, was found guilty by a jury of kidnapping in the first degree, in violation of General Statutes § 53a-92 (a) (2) (A). On August 26, 1988, the court sentenced him to a term of twenty-five years imprisonment. The defendant now claims on appeal: (1) that § 53a-92 (a) (2) (A), prohibiting kidnapping in the first degree, is, under the circumstances of this case, unconstitutionally vague, and thus violates his right to due process; (2) that the evidence submitted in this case was insufficient to sustain a conviction of the crime of kidnapping in the first degree; (3) that the state’s use of the defendant’s post-Miranda refusal to sign his transcribed statement violated his constitutional rights; and (4) that the trial court erred in admitting a portion of his statement that was irrelevant and unduly prejudicial. We find no error.

The jury could reasonably have found the following facts. At approximately 10 a.m. on July 19, 1987, the victim was jogging through Edgewood Park in New Haven. In particular, she was running down the center of a two car-widths wide paved road that runs through the park. While she was running on a portion of the road that passed through a heavily wooded area, she noticed the defendant walking toward her on the road. As they approached each other, the victim adjusted her position to pass the defendant on the left, attempting to leave “plenty of space” between the two of them as she passed.

As the defendant and the victim were about to pass each other, however, the defendant suddenly blocked the victim’s path. He grabbed her by the shoulders and said: “Come here, I want to show you something.” The victim started screaming, hoping that someone in the park would hear her, but no one was in the immediate area. The defendant then began dragging the victim off to the right side of the road. Once they were off the road, the defendant threw the victim down to the ground in a grassy area. The defendant pinned her down with one hand, and attempted to stuff a white cloth into her mouth with the other hand. His hand was locked around her jaw in such a manner that she “thought he was trying to rip [her] jaw off,” and she “felt as if [she] was being smothered because [the cloth] was being pressed right on [her] nose and mouth.” The victim began twisting her head back and forth “trying to struggle out of his grasp,” and, at some point, the defendant raised his hand as if he were about to strike her. As the defendant was leaning over her body, however, the victim, who was on her back, coiled her legs up to her chest and kicked him in his stomach. As a result, the defendant lost hold of her. The victim was able to roll out from under the defendant and she began to run away. After running approximately thirty feet, the victim turned and saw that the defendant was not giving chase. She ran out to Edgewood Avenue, where she reported the incident to Sergeant Edward Saccavino of the New Haven police department, who happened to be parked nearby.

Saccavino immediately broadcast the victim’s description of her assailant over the radio. Detective Ralph Dinello, who was patrolling the Edgewood Avenue area, heard the broadcast, and a few minutes later spotted the defendant, who matched the description, walking in the vicinity of the park. Dinello approached the defendant and asked him where he lived and from where he was coming. The defendant replied that he lived at 249 Whalley Avenue, and was coming from a friend’s house. Dinello was then informed by another officer, who had arrived on the scene, that there was no residence at 249 Whalley Avenue. The defendant then asked why he was being stopped, and Dinello told him that there was an incident in Edgewood Park and that he fit the description of the assailant. The defendant stated that he “was not at Edgewood Park or anywhere near Edgewood Avenue Park” and that he was coming from Whalley Avenue. By this time, Saccavino had arrived with the victim, who stated that she was at least 60 percent sure that the defendant was her assailant.

The defendant was then placed under arrest, given his Miranda warnings and taken to the New Haven police station. At the station, the defendant was again given his Miranda warnings prior to being interrogated by Dinello. In response to Dinello’s questions, the defendant again stated that he knew absolutely nothing about the incident and that he was not in the park. When Dinello stopped interviewing the defendant in order to speak with the victim, Sergeant Melvin Wearing asked Dinello if he could speak with the defendant for a few minutes. After speaking with Wearing, the defendant agreed to give a statement to Dinello concerning the incident. In his statement, which was tape recorded, the defendant admitted that he had encountered the victim in Edgewood Park. He claimed, however, that he had merely “staggered” into the victim and that he was attempting to say “excuse me” when she began screaming. He denied having grabbed the victim at all, and claimed that he first denied being anywhere near Edgewood Park because he “was afraid of what that lady may [have] thought.”

As a result of the attack, the victim immediately noticed a number of scrapes and bruises. The morning after, she felt pain in her jaw, neck and back. In addition, she discovered bruises on her face, shoulders and chest. The victim then went to be examined by a physician’s assistant, Kelly Ann Martens, who testified at trial regarding numerous injuries that the victim had sustained, including an abrasion on her elbow, muscle tenderness in many parts of her body, and an abnormal “click” in her jaw. Martens then referred the victim to a physician concerning her particular injuries, and provided the victim with a cervical collar to wear after leaving the examination.

I

The defendant first claims that General Statutes § 53a-92 (a) (2) (A) is, under the circumstances of this case, unconstitutionally vague. We disagree. In particular,- § 53a-92 (a) (2) (A) provides: “A person is guilty of kidnapping in the first degree when he abducts another person and when ... he restrains the person abducted with intent to . . . inflict physical injury upon him . . . . ” General Statutes § 53a-91 (l) defines “restrain” in part as follows: “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved . . . .”

In charging the jury, the trial court limited its definition of “restrain” to moving “from one place to another.” The defendant now claims that, in using the phrase “from one place to another,” the legislature “has provided an impermissibly vague standard which allows an offense involving any movement at all to be prosecuted as a kidnapping and elevated to the level of [a class] A felony.” The defendant asserts further that the lack of precision in this phrase allows a “gross distortion of lesser crimes” into much more serious crimes “by excess of prosecutorial zeal,” thus permitting the “absurd and unconscionable” result reached in this case.

First, before reaching the merits of the defendant’s claim, we must consider the threshold question of reviewability. The state maintains that the defendant’s vagueness claim is not reviewable because it was not distinctly raised at trial. We conclude that, despite this procedural default, the defendant’s claim of unconstitutional vagueness falls within the parameters of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and therefore warrants appellate scrutiny. See State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988).

Turning to the merits of the defendant’s vagueness challenge: “The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975).” State v. Schriver, supra, 459-60. “In order to surmount a vagueness challenge, ‘a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.’ McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 33 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1948).” State v. Schriver, supra, 460.

Furthermore, it is well established that, as a general rule, “the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue. United States v. Powell, 423 U.S. 87, 92, 96 S. Ct. 316, 46 L. Ed. 2d 228 [1975]; United States v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 42 L. Ed. 2d 706 [1975]; United States v. National Dairy Products Corporation, 372 U.S. 29, 32-33, 83 S. Ct. 594, 9 L. Ed. 2d 561 [1963]; United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 4 L. Ed. 2d 524 [1960].” State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980). “For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987).” State v. Schriver, supra, 461.

Thus, we must examine the defendant’s claim of unconstitutional vagueness within the parameters of the facts of this case. Although we can conceive of factual situations in which charging a defendant with kidnapping based upon the most minuscule movement would result in an “absurd and unconscionable” result; People v. Adams, 389 Mich. 222, 232, 205 N.W.2d 415 (1973); we conclude that the facts of this case do not present such a situation. Specifically, we conclude that this defendant clearly moved his victim “from one place to another” pursuant to §§ 53a-91 (1) and 53a-92 (a) (2) (A). The victim was jogging down the center of the road through the park. Upon seeing the defendant, she moved to the left of the road. The defendant then grabbed her and dragged her to the right until she was completely off the road. Photographs of the road where the victim was attacked indicate that it was two car-widths wide and surrounded on both sides by a heavily wooded area. In sum, we conclude that the victim was clearly moved “from one place to another,” and therefore § 53a-92 (a) (2) (A) is not unconstitutionally vague under the facts of this case.

II

Next, the defendant argues that the evidence submitted in this case was insufficient to sustain a conviction of kidnapping in the first degree. Specifically, the defendant asserts that the state failed to prove that he moved the victim from one place to another, and failed to prove that the victim was abducted with the intent to inflict physical injury upon her as required under § 53a-92 (a) (2) (A). We are not persuaded.

“When a verdict is challenged because of insufficient evidence, the issue is whether ‘ “ ‘the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” ’ State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985), quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict. State v. Williams, 205 Conn. 456, 468, 534 A.2d 230 (1987); State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984); State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982); State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981). ‘ “ ‘We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . ’ State v. Plourde, 208 Conn. 455, 458, 545 A.2d 1071 (1988), quoting State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987), and cases cited therein.” State v. Avis, 209 Conn. 290, 308-309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).

As noted in part I of this opinion, the jury could reasonably have concluded that, by dragging the victim across the road and onto a grassy patch off the road, the defendant moved the victim from one place to another. Furthermore, the jury could reasonably have concluded that the defendant intended to inflict physical injury upon the victim. Specifically, “ ‘[ijntent may be, and usually is, inferred from conduct.’ ” State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977); State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 (1972). In this case, the jury could reasonably have concluded that the defendant intended to inflict physical injury upon the victim by: (1) dragging her off the road; (2) throwing her down to the ground; (3) pinning her down with one hand while locking his hand around her jaw in such a way that she “thought he was trying to rip [her] jaw off”; (4) pressing a cloth up against her nose and mouth in such a way that she “felt as if [she] was being smothered”; and (5) raising his hand as if he were about to strike her.

In sum, the jury could reasonably have concluded that the evidence presented in this case established guilt beyond a reasonable doubt.

Ill

The defendant also argues that the state’s use of his post-Miranda refusal to sign his transcribed statement violated his constitutionál rights. Despite the defendant’s failure to voice an objection at trial, this claim is reviewable under State v. Evans, supra, and State v. Golding, supra. See State v. Hull, 210 Conn. 481, 486, 556 A.2d 154 (1989); State v. Plourde, supra, 462. In particular, the defendant argues that the prosecutor’s reference to his failure to sign his statement constituted a violation of his right to remain silent and his right to due process as guaranteed by the fifth and fourteenth amendments to the United States constitution. We agree.

Specifically, on the day of his arrest, the defendant gave a tape recorded statement to Dinello in which he claimed that he did not attack the victim, but rather, accidently “staggered” into her. The statement was transcribed overnight, and the next day Dinello again met with the defendant. Dinello advised the defendant of his rights and the defendant signed “an acknowledgement of his rights.” At this point, however, the defendant refused to sign his transcribed statement. During closing argument, the prosecutor twice made reference to the defendant’s failure to sign his statement. Specifically, in an attempt to impeach the defendant’s statement, the prosecutor, after denigrating the statement in its particulars, stated: “[A]nd when [the statement] is ultimately transcribed, he won’t sign it.” Later, while contrasting the credibility of the victim with that of the defendant, the prosecutor stated: “I think it’s also interesting to note that you have two versions, one on tape and one on a written statement, or a transcribed statement by [the victim], and it’s a signed statement as the truth. The defendant was not willing to sign his version as the truth.”

In Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), “the United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process. The court based its holding in two considerations: First, it noted that silence in the wake of Miranda warnings is ‘insolubly ambiguous’ and consequently of little probative value. Second and more important, it observed that ‘while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.’ ” State v. Plourde, supra, 465-66; see Wainwright v. Greenfield, 474 U.S. 284, 290-92, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986).

In the present case, the defendant had been arrested and had received his Miranda warnings when he chose not to sign his statement. He thus clearly manifested his exercise of his right to remain silent. See United States v. Valencia, 773 F.2d 1037, 1040 (9th Cir. 1985) (declining to sign a Miranda waiver form is equivalent to an assertion of the right to silence); Coppola v. Powell, 878 F.2d 1562, 1564-65 (1st Cir. 1989) (invocation of right to remain silent must be given liberal construction); Ullmann v. United States, 350 U.S. 422, 426, 76 S. Ct. 497, 100 L. Ed. 511 (1956) (right to remain silent must “not be interpreted in a hostile or niggardly spirit”). Accordingly, the prosecutor’s use of the defendant’s silence to impeach his statement was “fundamentally unfair and a deprivation of due process . . . .” Doyle v. Ohio, supra, 618; see State v. Plourde, supra, 468.

Having concluded that the prosecutor’s use of the defendant’s failure to sign his statement was error, we must next consider whether such error was harmful. When error is of constitutional dimension, the state has the burden of proving it harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24-26, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Green, 207 Conn. 1, 9, 540 A.2d 659 (1988). “The test for harmfulness is whether ‘there is a reasonable possibility that the improperly admitted evidence contributed to the conviction . . . . ’ Schneble v. Florida, 405 U.S. 427, 432, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972); State v. Hoeplinger, 206 Conn. 278, 294, 537 A.2d 1010 (1988); State v. Shifflett, 199 Conn. 718, 751-52, 508 A.2d 748 (1986). ‘ “The harmlessness of an error depends upon its impact on the trier and the result, not upon whether the particular evidence involved was legally essential to support the finding.” ’ State v. Hoeplinger, supra, 295 . . . . ” State v. Hull, supra, 492.

‘A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s postarrest silence does not constitute reversible error.’ State v. Silano, 204 Conn. 769, 781, 529 A.2d 1283 (1987). ‘ “The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant’s silence in his cross-examination and closing remarks and where the prosecutor’s comments do not strike at the ‘jugular’ of the defendant’s story.” ’ Id.; United States v. Davis, 546 F.2d 583, 594 (5th Cir.), cert. denied, 431 U.S. 906, 97 S. Ct. 1701, 52 L. Ed. 2d 391 (1977); State v. Pellegrino, 194 Conn. 279, 292, 480 A.2d 537 (1984); State v. Zeko, 177 Conn. 545, 555, 418 A.2d 917 (1979).” State v. Hull, supra.

Our examination of the record in the present case persuades us that the prosecutor did not “focus upon” or “highlight” the defendant’s invocation of his right to silence. Furthermore, we conclude that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible comments by the prosecutor during his closing argument. In particular, the prosecutor only made two references to the defendant’s failure to sign his transcribed statement. Clearly, these references were not the centerpiece of the state’s case. Furthermore, the defendant failed to object to the prosecutor’s reference to his failure to sign his statement. The failure of an attorney to object or to move for a mistrial indicates that he did not consider the prosecutor’s comments to have substantially prejudiced his client. State v. Silano, supra, 782; see State v. Hull, supra, 493.

On the present record, the prosecutor’s remarks could not have played a significant role in the defendant’s conviction. Prior to the state’s closing argument, the jury had already been made aware of the fact that the defendant had not signed his statement. In particular, Dinello, in testifying as to the sequence of events surrounding the taking of the defendant’s statement, stated that the defendant had refused to sign his statement. We have held that evidence of a defendant’s silence that is not used to impeach, but rather is presented to show the investigative effort made by the police and the sequence of events as they unfolded, is not inadmissible under Doyle v. Ohio, supra. See State v. Casey, 201 Conn. 174, 183, 513 A.2d 1183 (1986); State v. Moye, 177 Conn. 487, 499, 418 A.2d 870, vacated and remanded on other grounds, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979). In addition, the defendant’s statement had already been significantly impeached by the fact that, prior to making his statement, the defendant had given a contradictory version to the police of the nature of his involvement in the incident. Thus, given that the prosecutor did not “highlight” the defendant’s refusal to sign his statement, that the defendant’s statement had already been significantly impeached, that the jury already knew of the defendant’s failure to sign his statement, and that the defendant did not object to the prosecutor’s references to his refusal to sign his statement, we conclude that the prosecutor’s comments were harmless beyond a reasonable doubt.

IY

Finally, the defendant argues that the trial court erred in admitting a portion of his statement that was irrelevant and unduly prejudicial. In particular, he complains that the trial court should not have permitted the jury to hear the tape recording of his statement in its entirety. Prior to its admission, the defendant moved to redact portions of the statement wherein he referred to his use of drugs and alcohol. Specifically, the defendant objected to the admission of the following portions of his statement:

“Q. Have you been in this park previous to this incident?
“A. I was there—I was there about a month ago and this—there was one other time that I was there just sitting right on the bench. I went down there with my cousin, one of my cousins one day, and we just sat there and got high, but we used to like go out there and get high because like, you know, the Police don’t be messing with you out there if you like, ya know, just sitting out.
“Q. Are you in the customary habit of using either alcohol or drugs?
“A. Yes.
“Q. Which, both?
“A. Yes.
“Q. What type of drugs do you use, sir?
“A. Urn,
“Q. Do you consider you an addict at this point?
“A. Yes.
“Q. How much drugs do you use on a daily average?
“A. It goes oh all day and all night. Far as how much I use, I don’t—I don’t really, I don’t really know. I just use enough to keep me—I just function off it.”

The defendant argued that these portions of his statement were irrelevant and prejudical, and moved for their redaction. The trial court, however, denied his motion, noting that his statements were voluntary and relevant to show the defendant’s knowledge that the area was not patrolled by the police. The defendant then duly noted his exception to the court’s ruling. We were not persuaded by the defendant’s disagreement with the trial court’s ruling. “The court has a wide discretion in its rulings on the relevancy of evidence; State v. Saia, 167 Conn. 286, 291, 355 A.2d 88 [1974]; State v. Carnegie, 158 Conn. 264, 273, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S. Ct. 488, 24 L. Ed. 2d 455 [1969]; and in determining whether the probative value of the evidence outweighs its prejudicial tendency. State v. Ralls, [167 Conn. 408, 417, 356 A.2d 147 (1974)]; State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 [1973]. ‘In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 [1972]. Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. Thomas v. Thomas, 159 Conn. 477, 480, 271 A.2d 62 [1970] . . . .’” State v. Carr, 172 Conn. 458, 464, 374 A.2d 1107 (1977).

In sum, we conclude that the trial court did not abuse its discretion by admitting the challenged portions of the defendant’s statement, as these portions were indeed probative of the defendant’s knowledge that the area was not patrolled by the police.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-92. kidnapping in the first degree. (a) A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

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

       Martens’ videotaped testimony was played at trial.

       “[General Statutes] See. 53a-91. definitions. The following definitions are applicable to this part:
      “(1) ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining Mm either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (a) deception and (b) any means whatever, including acquiescience of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.”

       These photographs were introduced into evidence at trial as state’s exhibits.

       Furthermore, the defendant conceded at oral argument that Dinello’s testimony was admissible.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Richard M. Harris
    (13888)
    Petees, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued April 12
    decision released May 29, 1990

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Donald B. Caldwell, state’s attorney, NinaN. Rosen, assistant state’s attorney, and Eric Higgins, legal intern, for the appellant (state).

      Arthur P. Meisler, with whom were John E. Nimio, certified law student intern, and, on the brief, Joseph D. Courtney, for the appellee (defendant).
   Callahan, J.

The defendant, Richard M. Harris, was charged in a summons and complaint with operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a. He subsequently filed a motion in limine requesting that the trial court exclude “any and all statements” made by him until the state had produced “material and substantial corroborative evidence” of the corpus delicti of the crime with which he was charged.

The trial court, after reviewing police reports, the statement of a witness, and memoranda filed by the state and the defendant, determined that there existed insufficient extrinsic evidence of operating under the influence to permit the introduction into evidence, at trial, of the defendant’s inculpatory statements. Conceding that it had no other extrinsic evidence and that it would be unable to obtain a conviction without the use of the defendant’s statements, the state moved the trial court to dismiss the charge against the defendant with prejudice. See State v. Ross, 189 Conn. 42, 49, 454 A.2d 266 (1983). The trial court granted the state’s motion and also granted the state permission to appeal its ruling on the defendant’s motion in limine. See General Statutes § 54-96. We find error.

The evidence available to the trial court for its review disclosed that in the early morning hours of June 4, 1988, at approximately 2:13 a.m., Scott Greenwood was driving on Daly Road in Coventry. At that time, at a point on Daly Road a short distance from his home, he observed a red Jeep lying on its side in the roadway. Apparently the Jeep had struck a large tree and rolled over. A man, later identified as the defendant, was standing in the road alongside the Jeep and flagged down Greenwood. After Greenwood stopped, he observed that the defendant had blood on his hands and face. Greenwood also perceived that the defendant appeared “out of it, like he was drunk.” It was Greenwood’s impression that the accident had occurred just moments before his arrival because the defendant inspected the damage to the Jeep as if seeing it for the first time.

While at the scene Greenwood refused the defendant’s request to assist him in righting the Jeep. Instead, with the defendant’s acquiescence, Greenwood proceeded to his home and called the Coventry police. When Officer Nancy Gillon arrived minutes later she observed that the weather was dry, that the defendant had blood on his hands and face from minor cuts, that his eyes were glassy and bloodshot and that there was a strong odor of an intoxicating liquor emanating from his person. The officer also determined from the vehicle’s registration that the defendant was the owner of the Jeep. There is no mention in any of the police reports or other documents of any pedestrians or persons in the area of the accident prior to Greenwood’s arrival.

While at the scene of the accident the defendant made statements to both Greenwood and Gillon in which he said that he was the only person in the Jeep and that he was its operator at the time of the accident. He also admitted, in response to Gillon’s questions while she was preparing the alcohol influence report, that he had been operating the Jeep and that he had been drinking prior thereto. It is these statements to Gillon and Greenwood that the trial court ruled were to be excluded at trial unless the state, independent of the defendant’s statements, produced further evidence of the corpus delicti of the crime, i.e., that the defendant was actually operating the Jeep while under the influence of intoxicating liquor prior to the accident.

“ Tt is a well-settled general rule that a naked extrajudicial confession of guilt by one accused of crime is not sufficient to sustain a conviction when unsupported by any corroborative evidence.’ (Emphasis added.) State v. Grant, 177 Conn. 140, 144, 411 A.2d 917 (1979).” State v. Arnold, 201 Conn. 276, 286, 514 A.2d 330 (1986). Properly, the corroborative evidence of the corpus delicti should be presented; and the court satisfied of its material character and adequacy to render any inculpatory statements admissible before they are allowed into evidence. State v. DelVecchio, 191 Conn. 412, 426-27, 464 A.2d 813 (1983). This corroborating evidence, however, may be circumstantial in nature. State v. Arnold, supra.

In State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964), we adopted Wigmore’s definition that limits the required showing of the corpus delicti to the specific kind of loss or injury embraced in the crime charged. 7 J. Wigmore, Evidence (3d Ed.) § 2072. In Tillman, which involved a manslaughter prosecution, we held that, “in a homicide case, the corpus delicti is the fact of the death, whether or not feloniously caused, of the person whom the accused is charged with having killed or murdered.” State v. Tillman, supra. Tillman, however, did not decide the applicability of its corpus delicti rule to a crime that is conduct oriented rather than harm or injury oriented. In this case, for instance, § 14-227a, the statute allegedly violated by the defendant, does not prohibit any particular harmful result but rather proscribes the conduct of operating a motor vehicle on a public highway while under the influence of intoxicating liquor. Because there is no harmful result or injury embraced in the statute it is nearly impossible to apply the Tillman corpus delicti rule to such a crime. See State v. Parker, 315 N.C. 222, 232-33, 337 S.E.2d 487 (1985).

Therefore, when the crime charged prohibits certain conduct but does not encompass a specific harm, loss or injury, a different approach to the corpus delicti rule, other than that enunciated in Tillman, is required. We conclude that the most reasonable approach is that stated in Opper v. United States, 348 U.S. 84, 93, 75 S. Ct. 158, 99 L. Ed. 101 (1954), wherein the court said: “[W]e think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is [only] necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the [defendant’s] statement. ’ ’

“The federal courts are nearly unanimous in approving [this] trustworthiness version of corroboration. . . . Also, the corroboration rule focusing on the sufficiency of independent evidence tending to demonstrate the trustworthiness of the defendant’s confession has found favor with [an increasing] number of state courts.” (Citations omitted.) State v. Parker, supra, 235-36; Bremerton v. Corbett, 106 Wash. 2d 569, 578, 723 P.2d 1135 (1986); see also 4 F. Wharton, Criminal Evidence (14th Ed. 1987), Confessions and Admissions § 648.

Under this formulation of the corroboration rule, proof of the elements of the crime charged, independent of the defendant’s statements, is not required before the statements may be admitted, as long as there is sufficient corroborating evidence to demonstrate the reliability of those statements. “The government must introduce sufficient independent evidence that tends to establish that a defendant’s admission is trustworthy.” United States v. Miller, 874 F.2d 1255, 1279, reh. denied, 884 F.2d 1149 (9th Cir. 1989). “[I]t is sufficient if the corroboration merely fortifies the truth of the confession without independently establishing the crime charged.” Fallada v. Dugger, 819 F.2d 1564, 1570 (11th Cir. 1987). “But such corroborative evidence need not be in and of itself sufficient to establish, independent of the admission, the corpus delicti; ‘[i]t is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.’ ” United States v. Fasolino, 586 F.2d 939, 941 (2d Cir. 1978), quoting Opper v. United States, supra, 93. “Logically therefore, there need be only sufficient corroboration to indicate that the confession or admission is trustworthy. This does not require proof of the crime by evidence independent of the confession or admission. It does require substantial independent evidence indicating that the admission of the defendant is true.” State v. George, 109 N.H. 531, 533, 257 A.2d 19 (1969); see also United States v. Marshall, 863 F.2d 1285, 1287 (6th Cir. 1988); United States v. Grizales, 859 F.2d 442, 445 (7th Cir. 1988); United States v. Trombley, 733 F.2d 35, 37-38 (6th Cir. 1984); State v. Yoshida, 44 Haw. 352, 357, 354 P.2d 986 (1960); State v. Zysk, 123 N.H. 481, 487, 465 A.2d 480 (1983); State v. Hanley, 116 N.H. 235, 237, 356 A.2d 687 (1976); State v. Lucas, 30 N.J. 37, 56, 152 A.2d 50 (1959); State v. Parker, supra, 236.

If, therefore, there is substantial extrinsic evidence tending to demonstrate that the statements of the accused are “true,” i.e., trustworthy, the statements are admissible. United States v. Seckler, 431 F.2d 642, 643 (5th Cir. 1970). The corpus delicti of the crime may then be established by the statements of the accused and the extrinsic evidence considered together. Smith v. United States, 348 U.S. 147, 156, 75 S. Ct. 194, 99 L. Ed. 192 (1954); United States v. Miller, supra, 1280; United States v. Grizales, supra; United States v. Seckler, supra, 643-44; State v. Yoshida, supra; 30 Am. Jur. 2d, Evidence § 1142.

This rule concerning the corroboration required for the admission into evidence of postcrime statements of an accused is uncomplicated and workable. It will eliminate the complexities and difficulties attendant upon the application of the corpus delicti rule requiring independent corroborating evidence of all the elements of a crime before an accused’s statement may be admitted into evidence. Landsdown v. United States, 348 F.2d 405, 409 (5th Cir. 1965); State v. Tillman, supra, 18-20. It is also adaptable to any conduct crime and is more in harmony with the spirit of Tillman than the traditional corpus delicti rule. See State v. Tillman, supra, 20 n.2; State v. Parker, supra, 232. Yet, at the same time, it will fulfill the “avowed purpose and reason” for the existence of the corpus delicti rule and protect accused persons against conviction of offenses that have not in fact occurred; see United States v. Johnson, 589 F.2d 716, 718 (D.C. Cir. 1978); State v. Arnold, supra, 287; and prevent “errors in convictions based upon untrue confessions alone.” Warszower v. United States, 312 U.S. 342, 347, 61 S. Ct. 603, 85 L. Ed. 876 (1941); United States v. Marshall, supra.

In this case it would require an ostrich-like view of the previously recited independent evidence to conclude that it did not render the defendant’s statements trustworthy. The evidence that the defendant was alongside his overturned Jeep, alone on a deserted road, in the early hours, with fresh injuries and smelling of intoxicating liquor, certainly lends credence to his statements that he had been operating his vehicle on Daly Road prior to the accident and that he had been drinking. The independent evidence was more than sufficient to corroborate the defendant’s statements and to attest to their reliability. Those statements, therefore, should not have been suppressed by the trial court in response to the defendant’s motion in limine.

Of course, it goes without saying that there can be no conviction in this, or any other criminal case, unless there exists independent evidence that, together with the statements of the accused, furnishes proof beyond a reasonable doubt of each essential element of the crime charged and also of the agency of the accused in its commission. Opper v. United States, supra, 93; United States v. Montenieri, 652 F. Sup. 237, 240 (D. Vt. 1986), aff'd, 823 F.2d 545 (2d Cir. 1987); State v. Tillman, supra, 20-21. Safeguards for the accused, however, should not be turned into doctrinal obstacles whereby the guilty can escape just punishment. State v. Lucas, supra, 58 (state’s burden is to furnish independent corroborative proof tending to establish that when defendant confessed he was telling the truth).

The judgment is reversed and the case is remanded with direction to reinstate the case on the docket and to deny the defendant’s motion in limine.

In this opinion the other justices concurred.

       General Statutes § 14-227a (a) provides: “operation while under the INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR, (a) Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       There was no evidentiary hearing held.

       “[General Statutes] Sec. 54-96. appeals by the state from superior court in criminal cases. Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       The defendant failed a field sobriety test administered at the scene of the accident. He also registered readings of .165 and .148 on breath tests administered at 2:51 a.m. and at 3:25 a.m. respectively.


author: Peters, C. J.

text:
    Arthur L. French et al. v. Town of Clinton et al.
    (13777)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued April 4
    decision released June 5, 1990

      Jane W. Freeman, for the appellants (plaintiffs).

      Emil A. Augustine, for the appellees (defendants).
   Peters, C. J.

The principal issue in this condemnation case is the propriety of the trial court’s method of determining the value of property taken by eminent domain. The defendants, the town of Clinton and the Clinton water pollution control commission, filed a statement of compensation in the amount of $275,000 in connection with the taking, for the purpose of constructing a municipal water pollution control facility, of a parcel of property owned by the plaintiffs, Arthur L. French and Mario, Louise and Angelo Lupone. The defendants subsequently filed a return of notice, whereupon the clerk of the court issued a certificate of taking. Upon the plaintiffs’ application for review of the statement of compensation, pursuant to General Statutes § 8-132, the Hon. Harry W. Edelberg, state trial referee, exercising the powers of the Superior Court, assessed additional damages of $100,000. The court also ordered that the defendants pay interest on the deficiency and reimburse the plaintiffs for appraisal and engineering fees. The plaintiffs appealed to the Appellate Court, and we transferred the case to ourselves pursuant to Practice Book § 4023. We affirm the trial court’s judgment.

The trial court’s memorandum of decision reveals the following undisputed facts. The property at issue is located at 30 Highland Drive in Clinton. In all, the property contains approximately 6.78 acres, 2.78 acres of which are tidal wetland, and also includes 820 feet of frontage along the Hammonassett River as well as riparian rights extending to the center of the river. A 720 square foot one-story cottage is located on the property. Municipal water is available in the area, and an on-site sewage disposal system could be constructed.

The trial court found that, due to the proximity of the property to Long Island Sound and the shortage of dockage and winter storage space available to the boating public, a small craft marina was the highest and best use of the premises. The court found in particular that a conceptual marina site plan proposed by the plaintiffs, which included 89 boat slips, year round storage for 100 boats and a winter storage shed for 50 boats, could be accommodated on the property. Such a marina could, however, serve only small craft because access from Long Island Sound is limited by a low clearance bridge. The trial court also determined that a marina would be a permissible use under the Clinton Zoning Regulations, and further determined that the plaintiffs probably could have secured the necessary permits from the town, state, and the Army Corps of Engineers but for the condemnation of the property.

Turning to the question of value, the court found that the taken property was worth $375,000 in light of its potential for use as a marina. The court thus ordered that the defendants pay an additional $100,000 along with the $275,000 deposited with the statement of compensation. In addition, the court awarded the plaintiffs interest on the $100,000 by which the defendants’ statement of compensation was deficient, $7700 for appraisal fees and $5000 for costs incurred in preparing maps, plans and mechanical drawings.

On appeal, the plaintiffs raise two challenges to the trial court’s decision. First, the plaintiffs contend that the court’s valuation of the taken property is flawed because the court failed to apply the most appropriate appraisal method and erroneously rejected the testimony of their appraiser concerning the value of certain comparable properties. Second, the plaintiffs argue that the trial court erred in refusing to award full reimbursement for the engineering costs that they incurred in preparing the conceptual site plan for a marina.

I

The plaintiffs’ first and central contention on appeal challenges the trial court’s valuation of the taken property. The plaintiffs contend that the trial court should have adopted the appraisal method proposed by their expert when both parties’ experts agreed that the appraisal method was appropriate under the circumstances of this case, and that the trial court erred in rejecting that appraisal method. The plaintiffs further argue that the trial court mistakenly concluded that the real estate conveyance tax stamp on a deed provides more reliable evidence of the purchase price of comparable properties than the out-of-court statements of the owners of those properties. We conclude that neither of these arguments is persuasive.

We have consistently reaffirmed the principle that, because each parcel of real property is in some ways unique, trial courts must be afforded substantial discretion in choosing the most appropriate method of determining the value of a taken property. D ’Addario v. Commissioner of Transportation, 180 Conn. 355, 365, 429 A.2d 890 (1980); Slavitt v. Ives, 163 Conn. 198, 209, 303 A.2d 13 (1972); Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425-26, 151 A.2d 693 (1959). “In condemnation proceedings, the trial court is more than a trier of facts or an arbiter of differing opinions of witnesses; it is charged with the duty of making an independent determination of value and fair compensation in light of all the circumstances, the evidence, its general knowledge and its viewing of the premises.” D'Addario v. Commissioner of Transportation, supra, 366; E & F Realty Co. v. Commissioner of Transportation, 173 Conn. 247, 253, 377 A.2d 302 (1977).

At trial, the plaintiffs’ appraiser, Norman Benedict, testified that the fair market value of the taken property was $675,000, calculated on the basis of a formula of $7500 per potential boat slip. Benedict testified that he reached the $7500 per slip figure after studying the recent sales of ten area marinas, with a particular focus on three that he regarded as most similar to the marina proposed in this case. Benedict explained that, because the comparable properties were fully developed, he adjusted the sales prices by an amount reflecting the value of the improvements. He determined the value of the improvements by asking the owners of the comparable properties to allocate the amount of the purchase price attributable to land and the amount attributable to the improvements, with the results for the three most comparable marinas as follows: (1) $600,000 to land and $50,000 to improvements; (2) $500,000 to land and $30,000 to improvements; and (3) $925,000 to land and $425,000 to improvements. Howard Russ, an appraiser for the defendants, agreed that it is customary appraisal practice to inquire of property owners the amounts that they would allocate to land and improvements when fully developed properties are used to establish the value of unimproved land, although he emphasized that an appraiser should also make an independent evaluation of the respective values of the land and the improvements.

In its memorandum of decision, the trial court relied exclusively on the three comparable marinas that Benedict had found most similar to the property at issue in this case, and reiterated in detail Benedict’s testimony concerning the allocation of the purchase price between land and improvements. The court also considered, however, in accordance with the testimony of the defendants’ appraiser, that the owners’ allocations of value between land and improvements should not be regarded as conclusive since the owners had no expertise in the field of land appraisal. In addition, the court found that the value of the taken property would be less than Benedict’s appraisal because Benedict had failed to take into account the substantial expense associated with the process of obtaining the necessary permits to construct a marina in such an ecologically fragile area, as well as the fact that a marina at this location would likely be less profitable than the comparable marinas due to its greater distance from Long Island Sound and to the limitations on boat size imposed by the low clearance bridge.

Contrary to the plaintiffs’ assertions, the memorandum of decision does not indicate that the trial court rejected Benedict’s appraisal method. Both the court’s exclusive reliance on the comparable sales on which Benedict had focused and the court’s careful consideration of his testimony comparing those comparable properties to the property in this case indicate that the court in fact adopted Benedict’s appraisal method, albeit with some modification. That the court also considered several other factors that it considered relevant to the value of the property in no way undermines the propriety of the court’s judgment. To the contrary, as we have previously emphasized, a trial court may seek aid in the testimony of experts, but must ultimately make its own “independent determination of fair compensation”; McDermott v. New Haven Redevelopment Agency, 184 Conn. 444, 447, 440 A.2d 168 (1981); on the basis of all the circumstances bearing upon value. Bowen v. Ives, 171 Conn. 231, 239, 368 A.2d 82 (1976); Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 516, 172 A.2d 612 (1961). We conclude that the trial court applied an appropriate method of valuation under the circumstances of this case.

The plaintiffs further maintain, however, that the trial court should not have rejected certain testimony concerning the value of comparable marinas. The testimony at issue concerns the actual purchase price of two of the ten marinas that Benedict cited. Benedict testified that it was his opinion, based upon the statements of the owners of these two marinas, that the sales prices for the properties were substantially higher than the amounts indicated by the real estate conveyance tax stamps on the deeds. In the case of the first comparable property, Benedict testified that the owner had indicated an actual purchase price of $650,000, while the tax stamp showed a consideration of only $280,000. Benedict represented that the owner of the second comparable marina had claimed an actual purchase price of $530,000, but the tax stamp on the deed indicated a sales price of only $435,000. According to the plaintiffs, the trial court’s statement that it regarded the tax stamps as more reliable evidence than the statements of the owners is erroneous because the court had no evidence that Benedict’s testimony was unworthy of belief.

The plaintiffs’ argument fails to recognize the independent evidentiary value of the real estate conveyance tax stamp. Although the plaintiffs correctly note that the consideration stated in the deed does not necessarily reflect the actual purchase price, the tax stamp is an endorsement made by the town clerk stating the actual amount of tax paid. General Statutes § 12-495. The amount of tax paid, in turn, is based upon a percentage of the true purchase price, which the party recording the instrument must disclose under penalty of law. General Statutes § 12-502. Absent some compelling evidence that the tax stamp was based upon a falsified statement of the actual consideration, the amount indicated by the stamp provides persuasive evidence of the true purchase price.

Furthermore, we have often reaffirmed the principle that “[t]he credibility of . . . expert witnesses and the weight to be accorded to their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.” New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 240, 348 A.2d 641 (1974); Transportation Plaza Associates v. Powers, 203 Conn. 364, 377, 525 A.2d 68 (1987); Ferri v. Pyramid Construction Co., 186 Conn. 682, 690, 443 A.2d 478 (1982). The plaintiffs’ contention asked the court to accept as true the statements of two parties who never appeared before the court, notwithstanding the inherent infirmities of hearsay evidence; Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987); Danahy v. Cuneo, 130 Conn. 213, 217, 33 A.2d 132 (1943); while rejecting the evidence provided by a public record concerning a transaction to which the same out-of-court declarants had been parties. Under the circumstances, the trial court was entitled to conclude that Benedict’s testimony was less worthy of belief than the purchase prices indicated by the tax stamps.

II

In their second challenge to the trial court’s decision, the plaintiffs contend that the trial court should have awarded them full reimbursement for engineering fees incurred in preparing for trial. According to the plaintiffs, the trial court’s determination that $5000 was a reasonable amount for engineering fees was clearly erroneous when the engineer’s total bill was $48,933 because the trial court explicitly found that the plaintiffs’ engineer had done extensive work in researching the feasibility of a marina, surveying the site, preparing maps, plans, and mechanical drawings and testifying at trial. We disagree.

The determination of the costs to be awarded in condemnation cases involving municipal water pollution control authorities is governed by General Statutes § 8-133. Section § 8-133 provides that the trial court shall award “costs of court ... as the court determines to be reasonable” whenever the court finds a statement of compensation to be inadequate. The question of what constitutes a reasonable amount is an issue of fact for the trial court, and we will not overturn that finding unless it is clearly erroneous. Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 219-22, 435 A.2d 24 (1980).

The trial court’s finding that only $5000 of a $48,933 bill was reasonable is not clearly erroneous. Although the court did find the engineer’s maps and plans useful, the court could reasonably have found that the engineer’s fees were based in part on work that was not necessary for the court’s determination of the value of the taken property. In addition, the court could reasonably have concluded that $48,933 was an excessive amount in light of the fact that the appraiser’s total fee, which the court ordered reimbursed in full, was only $7700.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 8-132 provides in pertinent part: “Any person claiming to be aggrieved by the statement of compensation . . . may, at any time within six months after the same has been filed, apply to the superior court for the judicial district in which such property is situated . " Although § 8-132 applies by its terms only to condemnations by redevelopment agencies, the provision applies also to takings by municipal water pollution control authorities by virtue of General Statutes § 7-248, which provides that compensation for such takings shall be determined “in the same manner specified for redevelopment agencies in accordance with sections 8-129 to 8-133, inclusive . . . . ”

       During the trial, the court did indicate that it would consider only the tax stamps and would give no consideration to Benedict’s testimony concerning the owners’ statements. The court later concluded, however, that Benedict’s testimony on this subject could be considered, but that it was less reliable evidence than the tax stamps.

       General Statutes § 8-133 provides: “COSTS TAXABLE AGAINST AGENCY. If, as the result of any review under the provisions of section 8-132, the applicant obtains an award from the court greater than the amount determined as compensation by the redevelopment agency, costs of court, including such appraisal fees as the court determines to be reasonable, shall be awarded to the applicant and taxed against the redevelopment agency in addition to the amount fixed by the judgment.”

       The trial court also relied in part upon General Statutes § 52-257 (b) (5), which authorizes an award of costs for “maps, plans, mechanical drawings and photographs, necessary or convenient in the trial of any action,” in support of its award of partial reimbursement for engineering fees.


text:
    Joseph Misenti v. International Silver Company et al.
    (13911)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued May 3
    decision released June 5, 1990

      Kevin J. Maher, with whom, on the brief, was Colette Mauborgne for the appellants (defendants).

      Markus L. Penzel, for the appellee (plaintiff).
   Peters, C. J.

The sole issue in this workers’ compensation appeal is whether the plaintiff, Joseph Misenti, is entitled to receive permanent partial disability-benefits, under General Statutes § 31-308 (b), for the partial loss of use of his hands. A workers’ compensation commissioner, after an evidentiary hearing, found that the plaintiff had proved his entitlement to such an award, and the compensation review division affirmed this award as factually and legally justified. The defendants International Silver Company and Liberty Mutual Insurance Company thereafter took a further appeal to the Appellate Court, which we transferred to this court in accordance with Practice Book § 4023. We uphold the validity of the plaintiff’s compensation award.

The commissioner found that the plaintiff’s employment as a plumber with the defendant International Silver Company from 1964 to 1983 exposed him to chemicals and mechanical friction that caused hand contact dermatitis compatible with psoriasis. The plaintiff’s dermatitis manifested itself in intermittent symptoms of redness, scaling, skin thickening and cracking on both hands. As a result of this condition, the plaintiff has periodically been totally disabled. The plaintiff reached maximum medical improvement in October, 1983. At the present time, the plaintiff’s hands are permanently partially disabled, in that restricted motion and desensitization of the hands and fingers prevent use of the hands for work as a plumber or for many other daily activities.

On the basis of these findings, the commissioner awarded the plaintiff 50 percent permanent partial disability of both his left and right hand. The commissioner also awarded $500 in fees to the physician on whose testimony he relied for his findings about the nature and the extent of the plaintiff’s disability.

In their appeal to the compensation review division, the defendants did not contest the commissioner’s finding that the plaintiff had suffered a compensable injury arising out of and in the course of his employment. Although they had raised evidentiary objections at the hearing before the commissioner, these objections were not cited as grounds for their appeal. The defendants’ contention was, instead, that the plaintiff had failed to establish a disability of his hands, as opposed to his skin, and that he was therefore not entitled to recover specific benefits for impairment of his hands under § 31-308 (b). The review division considered and rejected these claims and affirmed the commissioner’s finding and award.

The defendants have renewed, in the present appeal, the same basic contentions that they raised before the compensation review division. In statutory terms, they maintain that the plaintiffs condition m.ade him eligible for an award of special damages for an unscheduled loss under § 31-308 (d)* * rather than an award for a specific scheduled loss under § 31-308 (b). They challenge both the factual finding that the plaintiffs injury resulted in any loss of use of his hands, and the legal conclusion that such a disability is compensable under § 31-308 (b) when its origins are dermatological, rather than orthopedic or neurological. We are unpersuaded.

In his determination of whether the plaintiff had established a permanent impairment of his hands, the commissioner was entitled to rely on the evidence presented by Steven R. Cohen, a dermatologist who has treated the plaintiff from 1980 to 1984. Cohen described in detail the history and the etiology of the chronic skin condition that has led to the plaintiffs permanent partial impairment. In his medical judgment, that impairment has resulted in the plaintiff losing 50 percent of the use of his hands. As a consequence of the plaintiffs skin condition, Cohen stated, the motion of the fingers of the plaintiffs hands has become restricted. The commissioner could reasonably have found this evidence more persuasive than that of the defendants’ dermatologist, who examined the plaintiff only once, and who, despite acknowledging the severity of the plaintiffs chronic skin condition, determined that, on the date of his examination, he could see no permanent impairment and no loss of use or function of the plaintiffs hands. “The credibility of ‘expert witnesses and the weight to be accorded to their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.’ New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 240, 348 A.2d 641 (1974). . . .” Ferri v. Pyramid Construction Co., 186 Conn. 682, 690, 443 A.2d 478 (1982). We agree with the compensation review division, therefore, that the record supports the commissioner’s factual finding.

The defendants’ alternate claim is that, as a matter of law, a functional impairment of the hands does not qualify for specific benefits unless the claimant’s disability can be traced to an orthopedic or neurological cause. This contention has no foundation whatsoever in the text of the governing statutes. Because the Workers’ Compensation Act is a remedial statute, this court should not impose limitations on the benefits provided for a disabled worker that the statute itself does not clearly specify. Costello v. Fairfield, 214 Conn. 189, 194, 571 A.2d 93 (1990); Kinney v. State, 213 Conn. 54, 59, 566 A.2d 670 (1989); Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). Furthermore, the compensation review division’s rejection of this claim of law is, at the very least, a reasonable construction of § 31-308 (b) “that warrants respect as the considered judgment of the governmental agency vested with primary authority for enforcing our workers’ compensation statutes.” Felia v. Westport, 214 Conn. 181, 188, 571 A.2d 89 (1990); see also Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 599, 522 A.2d 771 (1987); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975).

The judgment of the compensation review division is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 31-308 (b) provides in pertinent part that “[wjith respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than twenty dollars weekly ... (2) for the loss of the master hand at or above the wrist, or the complete and permanent loss of the use of said hand, two hundred and fifty-two weeks, and for such loss of the other hand or the use of said hand, two hundred and thirty-two weeks . . . . ”

       The defendants allude also to a separate issue about the propriety of an award under General Statutes § 31-308 (b) for a claimant who has previously received a disfigurement award. Although the memorandum of decision of the compensation review division mentions that the plaintiff had previously received “a disfigurement award for fifteen weeks,” the review division apparently was not asked to consider, and did not consider, the relationship between that award and the specific benefits awarded under § 31-308 (b). The defendants had not raised this issue in their reasons of appeal from the compensation commissioner. Indeed, the defendants have not separately identified this issue in their brief in this court. We decline to consider the merits of a claim that was not properly raised below or briefed here. See Deschnow v. Stamford, 214 Conn. 394, 399 n.5, 572 A.2d 345 (1990), and authorities therein cited.

       General Statutes § 31-308 (d) provides in pertinent part that “[i]n addition to compensation for total or partial incapacity for a specific loss of a member or loss of use of the function of a.member of the body the commissioner may award such compensation as he deems just ... for the loss or loss of use of the function of any organ or part of the body not otherwise provided for herein, taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the nécessity of the organ or complete functioning of the organ with respect to the entire body, but in no case more than the sum equivalent to compensation for seven hundred and eighty weeks.”


author: Shea, J.

text:
    Katherine M. Mulrooney v. Christie Wambolt
    (13893)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued April 6
    decision released June 5, 1990

      Michael P. Del Sole, for the appellant (named defendant).

      Roger Sullivan, for the appellee (plaintiff).
   Shea, J.

The dispositive issue in this appeal is whether the trial court abused its discretion by precluding the defendant from calling an expert witness to testify because of the defendant’s failure to disclose timely that she intended to call the witness as an expert. The plaintiff, Katherine M. Mulrooney, brought an action to recover damages for personal injuries sustained in an automobile accident involving the defendant, Christie Wambolt. During the discovery procedures, the defendant failed to disclose in her answers to the plaintiff’s interrogatories that she intended to call Franklin Robinson, a neurologist, as an expert witness. It was not until jury selection, when the defendant’s counsel announced his intent to call Robinson as a witness, that the plaintiff was notified that Robinson would be called as an expert. On the first day of testimony, the plaintiff filed a motion in limine to preclude the defendant from calling Robinson as an expert, which the trial court granted. We find no error.

The following facts are undisputed. On January 11, 1983, the plaintiff was proceeding in a northerly direction on South Grove Street in Meriden when she collided with the defendant’s automobile traveling in an easterly direction on West Main Street. The accident was caused by the negligence of the defendant in the operation of her motor vehicle. In the plaintiff’s amended complaint, filed July 20,1989, she alleged that she had suffered and would continue to suffer injuries of her chest, cervical spine, shoulder region and shock to her nervous system. In addition, the plaintiff alleged that, as a result of these injuries, she had incurred and would incur medical and hospital expenses and would be unable to perform household and occupational duties as she did prior to the accident.

In November, 1985, the defendant requested, pursuant to Practice Book § 229, that the plaintiff submit to an independent medical examination on January 21, 1986, to be conducted by Robinson. On January 22, 1986, Robinson forwarded a detailed report to the defendant. The case was claimed to the trial list on February 4, 1986.

The plaintiff served her first set of interrogatories and requests for production on the defendant on March 27, 1987. On April 24, 1987, the defendant filed her objections to this disclosure request and filed a motion to extend the time to answer. The record does not disclose that any action was taken on the defendant’s objections to the plaintiff’s first set of interrogatories and, therefore, we assume that the plaintiff withdrew the first set.

The plaintiff filed notice that she had served the defendant with a second set of interrogatories and requests for production on May 14, 1987. On July 15, 1987, the plaintiff filed a motion for “Rule 231 orders” to compel the defendant to answer the plaintiff’s second set of interrogatories and requests for production. The trial court, Burns, J., on August 31, 1987, ordered a default to be entered if the defendant did not answer by September 14, 1987. On September 21, 1987, the trial court, Flanagan, J., granted the defendant’s motion for an extension of time to October 14, 1987, to answer the plaintiff’s interrogatories and requests for production. Following a pretrial conference, the plaintiff filed a second motion for “Rule 231 orders” on January 11, 1988, at which time the trial court, Burns, J., ordered the defendant to answer the plaintiff’s interrogatories within two weeks from January 11, 1988.

On February 9,1988, the defendant filed her answers to the plaintiff’s second set of interrogatories and requests for production. Interrogatory No. 2 requested the defendant to give the name of any expert the defendant expected to call as a witness, state the subject matter of his testimony, and summarize each of his opinions. The defendant responded: “No expert contemplated at this time.” In response to a request to produce any medical reports of experts concerning the plaintiff, the defendant furnished a copy of Robinson’s medical report.

On May 3,1988, the defendant filed a request to have the plaintiff submit to an independent medical examination to be conducted by another physician, Alan H. Goodman, and the plaintiff filed an objection on the ground that she had already been examined by an independent medical examiner selected by the defendant. On May 23, 1988, the trial court, Berdon, J., denied the defendant’s request.

During jury selection, on June 29,1989, the defendant’s counsel for the first time announced his intent to call Robinson as an expert witness. On the day testimony began, July 17, 1989, the plaintiff made a motion in limine to preclude the defendant from calling Robinson to testify as an expert. The trial court, Hodgson, J., granted the plaintiffs motion on the basis of Practice Book § 220 (D). The case proceeded to trial on the issue of damages and the jury returned a verdict in the amount of $191,926.53 for the plaintiff.

On appeal, the defendant contends that the trial court (1) erred in applying Practice Book § 220 (D), and (2) abused its discretion in precluding the defendant from calling Robinson to testify as an expert witness.

We must first address the threshold question of whether the trial court erred in applying Practice Book § 220 (D). Section 220 (D) became effective eight months after the case was claimed to the trial list. The defendant asserts that, although procedural amendments to the Practice Book apply to pending cases, an amendment should not apply if considerations of “good sense and justice dictate that it not be so applied.” The defendant asserts that the trial court’s application of § 220 (D) infringed upon her ability to defend the claim against her.

It is generally presumed that legislation is intended to operate prospectively “[ejxcept as to amending statutes that are procedural in their impact . . . "Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981); Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989). Procedural statutes and rules of practice ordinarily apply “retroactively to all actions whether pending or not at the time the statute [or rule] became effective, in the absence of any expressed intent to the contrary.” Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 196, 286 A.2d 308 (1971); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 525, 562 A.2d 1100 (1989); Darak v. Darak, supra; Camputaro v. Stuart Hartford, Corporation, 180 Conn. 545, 556-57, 429 A.2d 796 (1980). We have noted, however, that a procedural statute will not be applied “ ‘ “retroactively if considerations of good sense and justice dictate that it not be so applied.”. . . Carvette v. Marion Power Shovel Co., 157 Conn. 92, 96, 249 A.2d 58 [1968].’ (Citations omitted.) American Masons’ Supply Co. v. F. W. Brown Co., [174 Conn. 219, 223, 384 A.2d 378 (1978)].” State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); State v. Paradise, 189 Conn. 346, 350, 456 A.2d 305 (1983). Rules of statutory construction pertaining to the application of statutory enactments and amendments apply with equal force to Practice Book rules. See Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); Camputaro v. Stuart Hartford Corporation, supra.

Section 220 was enacted in 1978 following the repeal of General Statutes § 52-159 (a) in 1976 which had provided that a plaintiff could not be compelled to disclose the names and reports of his expert witness. 1 W. Moller, Connecticut Practice § 220 (D). Paragraph (D) was added eight years later over “vociferous” bar opposition and became effective October 1, 1986. Id. Paragraph (D) is a procedural rule that sets out a time limitation for each party in a civil action to disclose the name of an expert witness he intends to use, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. A plaintiff must disclose this information within sixty days from the date the case is claimed to a trial list and a defendant must do so within 120 days from such date. If a party fails to disclose the name of any expert expected to testify at trial, “such expert shall not testify except in the discretion of the court for good cause shown.” Practice Book § 220 (D).

Since the case was claimed to a trial list on February 4, 1986, eight months prior to the effective date of the rule, the defendant could not have satisfied the time constraints in § 220 (D). The defendant does not, however, offer any reason why she did not comply with the rule within the two years and nine months that elapsed between October 1, 1986, the effective date of the rule, and June 29,1989, when the defendant’s counsel during jury selection first announced his intent to call Robinson as a witness. Although the defendant’s counsel has characterized in his brief his failure to disclose as an “inadvertent omission,” the defendant’s counsel, during oral argument before this court, stated that it was a policy of his firm not to disclose independent medical examinations and it was a practice he had seen with other firms. Such an admission is equivalent to a wilful disregard of the rules of practice. If a party to an action chooses to disregard the rules of practice any claimed “injustice” that has occurred through the imposition of a sanction is the result of the party’s own failure to act.

Furthermore, the defendant was not prejudiced by the trial court’s retroactive application of Practice Book § 220 (D). Section 220 (D) provides a sanction similar to that provided in Practice Book § 231, which has been in effect since 1931. Section 231 provides in part that “[i]f any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead . . . or has failed to comply with the provisions of Sec. 232 . . . the court may, on motion . . . [enter] an order prohibiting the party who has failed to comply from introducing designated matters in evidence.” In the plaintiff’s motion in limine she argued that the defendant should be precluded from calling Robinson as an expert witness on the basis of §§ 220 (D) and 231. In particular, the plaintiff argued under § 231 that the defendant’s disclosure, i.e., “[n]o expert contemplated at this time,” was misleading and unfair. Although the trial court entered its order precluding the defendant from calling Robinson as an expert witness under § 220 (D), it could have imposed a similiar sanction under § 231.

The trial court was undoubtedly persuaded by “some indicia present of a misleading character to the disclosures that were filed” in response to the plaintiff’s interrogatories. The trial court found that it “appear[s] that the plaintiff [was] . . . lulled into thinking that the defendant had not intended to use” Robinson as an expert. Prior to entering its order the trial court further found that “given the statement that there was 'no expert contemplated’ rather than that 'this would be determined at some other time’ ... it is appropriate to apply . . . section 220.” The trial court was also authorized by § 231 to preclude the defendant from calling Robinson as an expert witness for failure to answer the interrogatories fairly or for answering the interrogatories in a manner calculated to mislead. See Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 509 A.2d 552 (1986); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 476 A.2d 1074 (1984).

In addition, although the trial court did not explicitly mention Practice Book § 232, which was adopted in 1975 and was therefore effective at the time the plaintiff filed her action, it could have found that the defendant had failed to comply with the requirements of § 232 and, therefore, could have precluded the defendant’s expert witness from testifying by imposing the sanction available under § 231. Section 232 required the defendant to supplement and correct her answer to the plaintiff’s interrogatories, in particular, interrogatory Nos. 2, 2 (a), 2 (b) and 2 (c), pertaining to the name, subject matter and substance of any opinion of any expert that the defendant expected to call at trial. This rule plainly applied to her answer to those interrogatories, “[n]o expert contemplated at this time.” The defendant’s failure to correct and supplement her answers to the plaintiff’s interrogatories authorized the trial court to impose any of the sanctions provided in § 231, which include “an order prohibiting the party who has failed to comply from introducing designated matters in evidence.” The defendant was not prejudiced, therefore, by the trial court’s reliance on § 220 (D), even if it were not intended to be applied retroactively, to preclude the defendant from calling Robinson to testify as an expert when a similar sanction was available to the trial court under rules in effect at the time the plaintiff brought her action.

The defendant has failed to offer any reasonable explanation for not complying with the disclosure requirements of Practice Book §§ 220 (D), 231 and 232. The trial court, therefore, was authorized to impose the sanctions prescribed by those rules, which include prohibiting the introduction of certain evidence.

The defendant next contends that the trial court abused its discretion in using such a severe sanction as barring Robinson from testifying as an expert witness. The defendant asserts that the trial court could not reasonably have concluded that the plaintiff would have been prejudiced or that she had been misled by the defendant’s failure to disclose Robinson as an expert witness because she was aware of the substance of his report and failed to depose him after she became aware that he was to be called as an expert witness during the two weeks that elapsed between jury selection and the commencement of testimony. She contends that the plaintiff was adequately prepared to cross-examine Robinson on the matters covered in his report.

“A trial court’s decision on whether to impose the sanction of excluding the testimony of a party’s expert witness rests within the court’s sound discretion.” Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989); Rullo v. General Motors Corporation, 208 Conn. 74, 78, 543 A.2d 279 (1988); Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 39-40, 404 A.2d 889 (1978). In reviewing a claim that the court has abused this discretion, “ ‘great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . . ’ ” Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252 (1983); Pool v. Bell, supra; Rullo v. General Motors Corporation, supra, 74-75. The determinative question for an appellate court is not whether it would have imposed a similar sanction but whether the trial court could reasonably conclude as it did given the facts presented. “Never will the case on appeal look as it does to a [trial court] . . . faced with the need to impose reasonable bounds and order on discovery.” Hull v. Eaton Corporation, 825 F.2d 448, 452 (D.C. Cir. 1987).

The trial court did find, contrary to the defendant’s contentions, that the plaintiff was prejudiced by the late disclosure in that she was “lulled into thinking that the defendant had not intended to use” Robinson as an expert witness. The court did not rely primarily upon prejudice, however, but upon its express finding of a “misleading character to the disclosures” made by the defendant. The court’s implicit conclusion that the failure to disclose was not inadvertent but deliberate was confirmed by the statement of the defendant’s counsel, mentioned previously, that it had been his firm’s policy not to disclose “independent medical examinations.” It is also supported by the absence of any claim during argument of the motion in limine that the failure to respond fully concerning the defendant’s intention to use an expert witness had been inadvertent. Under these circumstances, we conclude that the trial court could reasonably have concluded that the defendant intentionally failed to disclose Robinson as an expert witness and, therefore, did not abuse its discretion by imposing the sanction of precluding him from testifying.

Trial court “judges face great difficulties in controlling discovery procedures which all too often are abused by one side or the other” and this court should “support the trial judges’ reasonable use of sanctions to control discovery.” Hull v. Eaton Corporation, supra, 452. The United States Supreme Court has noted that “the most severe in the spectrum of sanctions provided by statute or rule must be available to the [trial] court ... to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.” National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S. Ct. 2778, 49 L. Ed. 2d 747, reh. denied, 429 U.S. 874, 97 S. Ct. 196, 50 L. Ed. 2d 158 (1976); Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 145, 470 A.2d 246 (1984). The sanctions provided in our rules of practice are there for several reasons, including deterrence of those who intentionally flout them.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff’s first set of interrogatories and requests for production concerning expert and medical reports involved interrogatory Nos. 8 and 12 to which the defendant objected on the ground that they required disclosure of an attorney’s work product. Interrogatory Nos. 21, 22 and 23 requested the defendant to state the name, subject matter, and substance of the testimony of any expert witness the defendant expected to call at trial, to which the defendant did not file an objection.

       The term “independent medical examiner” has been used by the parties in their briefs to refer to a physician employed by one of the parties to examine a personal injury claimant for the purpose of testifying at trial concerning the extent of his injuries and not simply for the purpose of treating the claimant.

       During oral argument before this court the plaintiff maintained that the trial court had based its decision on Practice Book §§ 220 (D) and 231. Nowhere in the trial court’s oral decision does the court explicitly mention § 231, although in argument before the trial court the plaintiff did claim that both §§231 and 220 (D) authorized the court to grant her motion. Neither the plaintiff nor the defendant filed a motion for articulation of the trial court’s decision. In any event, this court may rely upon different grounds from those relied upon by the trial court for the purpose of affirming the judgment. Rubin v. Rubin, 204 Conn. 224, 232, 527 A.2d 1184 (1987); Pepe v. New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987); Heffernan v. New Britain Bank & Trust Co., 175 Conn. 8, 14, 392 A.2d 481 (1978).
      Practice Book § 220 (D) provides: “In addition to and notwithstanding the provisions of subsections (A), (B) and (C) of this section, any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”
      Practice Book § 231 provides: “If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure of the existence and contents of an insurance policy or the limits thereof, or has failed to submit to a physical or mental examination, or has failed to comply with a discovery order made pursuant to See. 230A, or has failed to comply with the provisions of Sec. 232, or has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Secs. 222, 226, and 229, the court may, on motion, make such order as the ends of justice require.
      “Such orders may include the following:
      “(a) The entry of a nonsuit or default against the party failing to comply;

        “(b) The award to the discovering party of the costs of the motion, including^ reasonable attorney’s fee;
      “(c) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      “(d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
      “(e) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.
      “The failure to comply as described in this section may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Secs. 222, 226, and 229 has been filed.”

       Practice Book § 232 provides: “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though correct when made, is no longer true and the circumstances are such that a failure to amend the complianee is in substance a knowing concealment, he shall promptly notify the other party, or his attorney, and file and serve in accordance with Sec. 120 a supplemental or corrected compliance.”

       The trial court stated, inter alia, that the defendant’s use of the phrase, “[n]o expert contemplated at this time,” specifically the phrase, “at this time,” did not relieve the defendant from the obligation to supplement her answers to the plaintiff’s interrogatories.

       The defendant argued at the hearing on the motion in limine and at oral argument before this court that Practice Book § 220 (D) is inapplicable to this case because the rule refers to disclosure of an “expert” witness and Robinson is not the type of “expert” witness the rule intended parties to an action to disclose. During oral argument before this court, the defendant referred to Welhelm v. Czuczka, 19 Conn. App. 36, 561 A.2d 146 (1989), Voight v. Selman, 14 Conn. App. 198, 540 A.2d 104 (1988), and Cronin v. Blaisdell, 12 Conn. App. 632, 533 A.2d 884 (1987), for the proposition that treating physicians are not the type of “expert” contemplated under § 220 (D) and, because an independent examining physician’s testimony is similar to a “treating physician’s” testimony, he should similarly not be considered an “expert” under the rule. Thus, he contends, because Robinson is an independent medical examiner, he was not required to disclose his intent to call him as an expert witness under § 220 (D). A careful review of those cases cited by the defendant clearly indicates that they do not support the defendant’s argument. See Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 518, 509 A.2d 552 (1986). Because we conclude that this issue lacks merit and neither party has briefed the issue on appeal, we need not address it further.

       The defendant further contends that the plaintiff was not prejudiced or surprised by the defendant’s late disclosure of Robinson as an expert witness because the plaintiff herself disclosed in her answers to the defendant’s interrogatories that she intended to call Robinson as an expert witness and, therefore, the trial court abused its discretion in precluding Robinson from testifying. In the plaintiff’s supplemental answers to the defendant’s interrogatories filed April 9, 1987, she stated: “The plaintiff expects to call as expert witnesses all her medical doctors whose bills and reports are included and any medical doctors employed by the defense, depending upon their availability at the time of trial.” The plaintiff’s disclosure was required under Practice Book § 220 (D) if the plaintiff intended to call any of the expert witnesses employed by the defendant. The plaintiff’s disclosure does not relieve the defendant from complying with § 220 (D). Section 220 (D) requires both parties in an action to disclose the name of any expert witness they expect to call at trial. The defendant cannot rely on the plaintiff’s proper disclosure for her failure to comply with § 220 (D).