author: KATZ, J.

text:
    FRANK LAWSON v. WHITEY’S FRAME SHOP DOROTHY CHAREST v. WHITEY’S FRAME SHOP
    (SC 15545)
    Callahan, C. J., and Borden, Berdon, Katz and Peters, Js.

      Argued April 23
    officially released July 15, 1997

      Michael D. O’Connell, with whom, on the brief, was Julia B. Morris, for the appellant (defendant).

      Kirstin B. Coffin, for the appellees (plaintiffs).
   Opinion

KATZ, J.

The principal issue in this certified appeal is whether, under the circumstances of these consolidated cases, the Appellate Court properly concluded that the defendant, Whitey’s Frame Shop, violated the Connecticut Unfair Trade Practices Act (CUTPA) by disposing of automobiles owned by the plaintiffs, Frank Lawson and Dorothy Charest, in accordance with the defendant’s contract with the city of Hartford (city). We conclude that the city acted within its authority in enacting an ordinance providing for the towing of scofflaw vehicles and that the defendant was authorized by its contract with the city, entered into under that ordinance, to tow and dispose of the plaintiffs’ vehicles. Therefore, we conclude that the trial court improperly determined that the defendant had violated CUTPA and we reverse the judgment of the Appellate Court insofar as it affirmed the trial court’s finding of a CUTPA violation.

The opinion of the Appellate Court sets forth the following facts relevant to these appeals. “The plaintiffs each incurred over $3000 in fines arising from unpaid parking tickets issued by the city of Hartford. The plaintiffs did not contest the tickets when they were issued. On April 5, 1990, the defendant, acting at the direction of the Hartford police department, towed the plaintiffs’ automobiles to its lot. At a hearing pursuant to a city ordinance before the Hartford tax department on April 6, 1990, a hearing officer reduced the amount of the fines the plaintiffs owed by eliminating the additional interest and penalties due. Each plaintiff still owed over $1000, the total of the face amounts of the tickets. Some time later, the plaintiffs contacted the defendant and informed it that they were still contesting the validity of the tickets.

“Pursuant to both a city ordinance and the contract between the defendant and the [city], the defendant was prohibited from releasing automobiles to their owners until all outstanding parking fines were satisfied. The contract specified that when the automobile owner came to retrieve his or her automobile with proper proof of payment of the fines, the defendant was to collect its towing, storage and administrative fees from the automobile owner. The contract also stated that any automobiles not claimed by their legal owners should be stored and disposed of pursuant to General Statutes § 14-150.

“The plaintiffs did not pay the parking fines and thus could not retrieve their automobiles from the defendant. On April 24, 1990, allegedly acting pursuant to § 14-150 (g), the defendant sent notice to the department of motor vehicles of its intent to sell both automobiles. On May 4, 1990, the defendant, also allegedly acting pursuant to § 14-150 (g), sent notice to the plaintiffs that their automobiles would be sold. On July 16, 1990, the defendant sold the automobiles for their salvage value of $50 each.

“The trial court determined that because the plaintiffs demanded the return of their automobiles while they contested the tickets in a variety of fora, the automobiles were not ‘abandoned’ as that term is used in § 14-150. Because the automobiles were not abandoned, the court reasoned, the defendant did not have the authority to dispose of them. Therefore, the trial court awarded to each plaintiff the $50 salvage value the defendant received for each automobile. This amount was then trebled pursuant to General Statutes § 52-564. The trial court also awarded to each plaintiff CUTPA damages of $1018 because it concluded that the defendant’s improper disposal of the automobiles could cause substantial injury to consumers. These awards were offset by the trial court’s determination that each plaintiff owed the defendant $1168 in towing and storage fees.” Lawson v. Whitey’s Frame Shop, 42 Conn. App. 599, 601-603, 682 A.2d 1016 (1996).

The plaintiffs appealed from the judgments of the trial court to the Appellate Court, arguing that the trial court had improperly awarded fees and costs to the defendant. The defendant filed cross appeals, challenging the trial court’s determination that it had violated CUTPA. The Appellate Court affirmed the trial court’s judgment with respect to the towing and storage charges, and also affirmed the trial court’s determination on the CUTPA claim, concluding that the defendant’s actions were not exempt from CUTPA despite the defendant’s argument that it had acted on the authority and direction of the city in disposing of the plaintiffs’ automobiles. We granted the defendant’s petition for certification to appeal, limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the trial court properly concluded that the defendant violated the Connecticut Unfair Trade Practices Act by disposing of the plaintiffs’ automobiles?” Lawson v. Whitey’s Frame Shop, 239 Conn. 929, 683 A.2d 397 (1996). Thereafter, pursuant to Practice Book § 4140 (b), the plaintiffs argued that the judgment of the Appellate Court should be modified because the Appellate Court had improperly concluded that: (1) the trial court did not abuse its discretion in awarding only the $50 salvage value for the plaintiffs’ automobiles; and (2) the trial court did not abuse its discretion in its ruling on attorney’s fees and punitive damages. We reverse in part the judgment of the Appellate Court with respect to its resolution of the CUTPA issue.

I

The defendant argues that it did not violate CUTPA because: (1) the city had the authority to tow scofflaw vehicles pursuant to the city ordinance; and (2) the defendant relied, in good faith, upon its contract with the city, which authorized the defendant to store and dispose of such vehicles in accordance with the procedures set forth in § 14-150 (g). In response, the plaintiffs argue that the defendant could not have relied on the disposal procedures in § 14-150 because that statute does not contemplate scofflaw vehicles within its provisions. We agree with the defendant.

We begin by recognizing that the city, in accordance with its police powers and the Home Rule Act; General Statutes §§ 7-187 through 7-201; had the authority to take the necessary actions to carry out its municipal duties. See New Haven Commission on Equal Opportunities ex rel. Washington v. Yale University, 183 Conn. 495, 499, 439 A.2d 404 (1981) (“a municipality [has] such powers as are necessary to enable it to discharge its duties and carry into effect the objects and purposes of its creation”). Here, the city ordinances provided that the police department had the right to tow any vehicle that had five or more unpaid municipal parking citations. Those ordinances, however, did not set forth any procedures for the disposal of such vehicles when their owners failed to pay the amounts owed to the city and the towing company.

The defendant argues that, for such scofflaw vehicles, the city, recognizing such omission in the ordinances, adopted the storage and disposal procedures set forth in § 14-150 (g). The defendant further argues that a plain reading of the contract between the city and the defendant confirmed the intent to adopt those storage and disposal procedures. We agree.

The contract outlines the reasons that the city might have for directing the defendant to tow and store a vehicle, including clearing vehicles during snowstorms, removing vehicles following accidents or to be held for evidence, removing scofflaw vehicles and such other actions as the police department may designate. Furthermore, the contract provides that “[f]or vehicles not claimed by their legal owners, the [defendant] shall store and dispose of said vehicles as provided by section 14-150 of the Connecticut Statutes.”

The trial court concluded that because the plaintiffs had continually demanded the return of their vehicles, the vehicles were not “abandoned” under § 14-150 (a) and, accordingly, the defendant could not rely on the statute. The Appellate Court agreed with the trial court, concluding that the failure of the contract to reference subsection (g) of the statute; see footnote 4 of this opinion; which governs the procedure for storage and disposal of unclaimed vehicles, required application of § 14-150 in its entirety. The Appellate Court then concluded that, “because § 14-150 does not contemplate the disposal of scofflaw vehicles, the contract between the city and the defendant by necessity could not have provided for the disposal of such vehicles.” Lawson v. Whitey’s Frame Shop, supra, 42 Conn. App. 616.

Our resolution of the defendant’s claim is guided by the general principles governing the construction of contracts. A contract must be construed to effectuate the intent of the parties, which is “determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . Absent a statutory warranty or definitive contract language, the trial court’s interpretation of a contract, being a determination of the parties’ intent, is a question of fact that is subject to reversal on appeal only if it is clearly erroneous.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 295, 685 A.2d 305 (1996).

In our view, the Appellate Court improperly concluded that the failure expressly to reference subsection (g) of § 14-150 in the contract required application of the entire statute. The contract’s language is clear and unambiguous that vehicles that are unclaimed by their legal owners shall be stored and disposed of in accordance with § 14-150. Furthermore, it is undisputed that such storage and disposal procedures are set forth in subsection (g) of that statute. It would be a hypertechnical construction of the contract, indeed, to require application of the entire statute merely because the contract provision does not refer specifically to that particular subsection.

Even if we were to assume, without deciding, that the contract’s failure to refer to subsection (g) meant that the entire statute applies, the Appellate Court’s conclusion that the defendant could not dispose of vehicles that were not specifically designated by § 14-150 is contrary to common sense and to a plain reading of the contract as a whole. Because the contract expressly provides for the seizure of scofflaw vehicles, it is only logical, in the absence of any provision to the contrary, that the city intended to authorize the defendant to dispose of such vehicles. Moreover, there is no reason to interpret the contract to provide that the defendant could dispose only of those vehicles that are specifically designated in the statute. See, e.g., General Statutes § 14-150 (b) (“menace to traffic”); General Statutes § 14-150 (c) (“motor vehicle without proper registration”); General Statutes § 14-150 (d) (“no registration marker plates or invalid registration marker plates”). Here, the city acted well within its authority in enacting an ordinance that provided that the police department could direct authorized persons to tow scofflaw vehicles. It would indeed be a foolish reading of the contract to confer upon the defendant the authority to tow scofflaw vehicles, but to deny the defendant, if the vehicles were not claimed by their legal owners, any opportunity to recoup its expenses by disposing of the vehicles after proper notice. Accordingly, we conclude that the Appellate Court improperly held that the defendant, under its contract with the city, was not authorized to tow, store and dispose of scofflaw vehicles and, therefore, improperly affirmed the trial court’s judgment finding that the defendant had violated CUTPA by disposing of the plaintiffs’ vehicles. We recognize that the defendant’s authority to dispose of the plaintiffs’ automobiles under its contract with the city does not necessarily mean that the defendant would be immune from CUTPA liability under all other circumstances. We need not decide, however, whether the presence of bad faith in the performance of a valid contract could form the basis of a CUTPA claim because the plaintiffs make no such claim in this case.

II

We next consider the plaintiffs’ argument that, with respect to their claim for conversion, the judgment of the Appellate Court should be modified because the Appellate Court improperly concluded that the trial court did not abuse its discretion in awarding only the $50 salvage value for the plaintiffs’ automobiles. In response, the defendant argues that the Appellate Court properly concluded that the plaintiffs had failed to prove greater compensatory damages than those awarded by the trial court. We agree with the defendant.

In its memorandum of decision, the trial court stated: “[A]s to the first count of their amended complaints, the plaintiffs have failed to produce actual damages apart from perhaps a claim for the salvage price of $50 the defendant received for each of the cars. Neither plaintiff presented any evidence as to the actual value of the vehicles; repair bills on the Lawson car [cannot] establish a value for this 1979 car. Also, Ms. Charest did not prove any damages as regards to lost income because of the defendant’s disposal of this vehicle. She sold items from the car or by using the car but lost money from this business venture over a period of years. She did not give any estimate as to how much money she lost as a result of missed business opportunities. Similarly as to Mr. Lawson, he vaguely testified as to lost employment opportunities but did not present any evidence as to actual monetary loss.”

“It is axiomatic that the burden of proving damages is on the party claiming them. . . . When damages are claimed they are an essential element of the plaintiff’s proof and must be proved with reasonable certainty. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty. . . . Although damages often are not susceptible of exact pecuniary computation and must be left largely to the sound judgment of the trier . . . this situation does not invalidate a damage award as long as the evidence afforded a basis for a reasonable estimate by the [trier] of that amount. . . . Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate.. . .’’(Citations omitted; internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., supra, 239 Conn. 308-309. “The determination of damages involves a question of fact that -will not be overturned unless it is clearly erroneous.” Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 28, 664 A.2d 719 (1995).

Having reviewed the record, we agree with the Appellate Court that the plaintiffs failed to establish damages beyond the $50 awarded for the salvage value of their automobiles. As the Appellate Court stated: “First, Charest testified that not only did she initially have another vehicle to use in her weekend job as a produce vendor, but that in previous years she had never shown a profit in this endeavor. Second, Charest testified that Lawson was not able to work from 1990 to 1992 as a result of losing the use of his automobile. The plaintiffs, however, offered no other evidence to substantiate the claim for Lawson’s lost wages. Finally, the plaintiffs did not offer any evidence regarding the book value of either automobile. In light of the paucity of evidence relating to actual damages, therefore, the trial court clearly did not abuse its discretion in awarding compensatory damages of $50 for each car.” Lawson v. Whitey’s Frame Shop, supra, 42 Conn. App. 605.

The judgment of the Appellate Court is affirmed with respect to the conversion counts of the plaintiffs’ complaints and with respect to the defendant’s counterclaim; the judgment is reversed with respect to the CUTPA counts of the plaintiffs’ complaints and the cases are remanded to the the Appellate Court with direction to remand the cases to the trial court with direction to render judgments in favor of the defendant on the CUTPA counts.

In this opinion the other justices concurred.

       General Statutes §§ 42-110a through 42-110q.

       “On April 23, 1991, the city issued parking ticket releases to each plaintiff because the fines were deemed to be uncollectable.” Lawson v. Whitey’s Frame Shop, 42 Conn. App. 599, 601 n.2, 682 A.2d 1016 (1996).

       Section 22-44 (b) of the Hartford city ordinances provides: “The chief of police shall not authorize or direct the release of any vehicle placed within a vehicle pound pursuant to [the scofflaw ordinance] until such time as the owner or person in charge of such vehicle shall have:
      “(1) Supplied the chief of police with evidence of his identity and ownership;
      “(2) Satisfied all outstanding municipal parking citations against the subject vehicle to the satisfaction of the chief of police;
      “(3) Paid the cost of removal, impoundment, and administration; and
      “(4) Signed a receipt for such vehicle.”

       General Statutes § 14-150 provides in pertinent part: “Abandoned or unregistered motor vehicles and motor vehicles which are a menace to traffic. Notice. Removal. Storage. Hearing. Lien. Sale, (a) Any person who abandons any motor vehicle within the limits of any highway or upon property other than his own without the consent of the owner thereof for a period longer than twenty-four hours shall have committed an infraction and shall be fined not less than eighty-five dollars. The last owner of record of a motor vehicle found abandoned, as shown by the files of the Department of Motor Vehicles, shall be deemed prima facie to have been the owner of such motor vehicle at the time it was abandoned and the person who abandoned the same or caused or procured its abandonment.
      “(b) Any inspector of the Department of Motor Vehicles, any officer attached to an organized police department or any state police officer upon discovery of any motor vehicle, whether situated within or without any highway of this state, which is a menace to traffic or public health or safety, shall take such motor vehicle into his custody and cause the same to be taken to and stored in a suitable place. . . .
      “(g) The owner or keeper of any garage or other place where such motor vehicle is stored shall have a lien upon the same for his storage charges. Unless title has already vested in the municipality pursuant to subsection (d), if the current market value of such motor vehicle as determined in good faith by such owner or keeper does not exceed five hundred dollars and such motor vehicle has been stored for a period of not less than fifteen days, such owner or keeper may, unless an application filed by the owner pursuant to subsection (d) of this section is pending and the owner of such motor vehicle has notified such owner or keeper that such application for hearing has been filed, sell the same for storage and towing charges owed thereon, provided a notice of intent to sell shall be sent to the commissioner and the owner of such motor vehicle, if known, five days before the sale of such vehicle. ...”

       “The trial court awarded the $50 under the plaintiffs’ first count of conversion. The trial court refused to award compensatory damages for lost wages or for the alleged full value of the automobiles because, the court asserted, the plaintiffs failed to produce any evidence to substantiate those claims for damages.” Lawson v. Whitey’s Frame Shop, 42 Conn. App. 599, 603 n.5, 682 A.2d 1016 (1996).

       General Statutes § 52-564 provides: “Treble damages for theft. Anyperson who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       The Appellate Court also concluded, however, that the trial court’s award of treble damages under § 52-564 on the plaintiffs’ award of the $50 salvage value of each of their automobiles constituted plain error. Lawson v. Whitey’s Frame Shop, supra, 42 Conn. App. 607. Those portions of the judgments were reversed. Id., 616-17. The plaintiffs do not challenge the finding of plain error on appeal. See footnote 8 of this opinion. Additionally, the defendant did not appeal from the plaintiffs verdict on the conversion count.

       Practice Book § 4140 (b) provides in relevant part: “Any party may . . . present for review any claim that the relief afforded by the appellate court in its judgment should be modified, provided such claim was raised in the appellate court either in such party’s brief or upon a motion to reargue.”

       General Statutes § 7-194 provides in pertinent part: “[A]ll towns, cities, or boroughs which have a charter or which adopt or amend a charter under the provisions of this chapter shall have the following specific powers in addition to all powers granted to towns, cities and boroughs under the constitution and general statutes: To manage, regulate and control the finances and property, real and personal, of the town, city or borough and to regulate and provide for the sale, conveyance, transfer and release of town, city or borough property and to provide for the execution of contracts and evidences of indebtedness issued by the town, city or borough.”

       Specifically, § 22-42 (b) of the Hartford city ordinances provides: “Whenever any vehicle is found parked upon the streets and public grounds of the city and where there are five (5) or more municipal parking citations issued for violation of any municipal traffic ordinance, rale or regulation upon such vehicle, which are delinquent, unpaid, otherwise unsettled and uncontested, then a member of the police department may place or direct a person or persons so authorized by the chief of police to place an immobilization device upon such vehicle or, in the alternative, the member of the police department may remove and convey such vehicle by means of towing or otherwise, to a. vehicle pound or he may order such person so authorized by the chief of police to remove and convey such vehicle by means of towing, or otherwise, to a vehicle pound.”

       We note that, at oral argument before this court, a question arose as to whether, applying § 14-150 in its entirety, that statute does in fact contemplate the disposal of scofflaw vehicles in light of subsection (a) of the statute, which deems a vehicle abandoned if it has been left on the property of another for a period longer than twenty-four hours. Because we conclude that the defendant had the authority to dispose of the plaintiffs’ automobiles in accordance with the terms of the contract with the city, and without relying on the application of § 14-150 (a), we need not decide this issue today.

       Because the defendant did not appeal from the plaintiffs’ verdict on the conversion counts; see footnote 7 of this opinion; that verdict is still intact even though we conclude that the defendant had the authority to dispose of the plaintiffs’ automobiles.

       The plaintiffs also argue that the Appellate Court improperly concluded that the trial court did not abuse its discretion by not awarding them attorney’s fees and punitive damages. Although the plaintiffs’ argument is unclear whether they claim that such fees and damages should have been awarded as part of the conversion or the CUTPA claim, we nevertheless decline to address either claim.
      The Appellate Court noted that the trial court had found that the defendant’s practice of disposing of unclaimed scofflaw vehicles could cause substantial injury to consumers and, therefore, treated the $1018 in CUTPA damages as punitive damages. Lawson v. Whitey’s Frame Shop, supra, 42 Conn. App. 609. The plaintiffs argue in their brief that “[t]he Appellate Court chose to consider the $50 salvage value of the plaintiffs’ vehicles as the only actual damages the trial court, awarded the plaintiffs, and therefore assumed that the award of punitive damages was ‘over twenty times’ the actual damage award. The plaintiffs believe that given their expansive testimony on lost employment opportunities from the loss of their vehicles that the $1018 CUTPA award may have also involved actual damages, and that therefore they were entitled to a larger punitive damage award.” (Emphasis added.)
      Because the plaintiffs failed to seek an articulation from the trial court to clarify whether the $1018 in CUTPA damages was for compensatory damages, punitive damages or attorney’s fees relating to the $50 compensatory award, we decline to review this claim. See Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 154 n.2, 595 A.2d 872 (1991) (“[i]t is the responsibility of the appellant to seek an articulation of the trial court’s decision in order to provide this court, with an adequate record for review”); see also Practice Book § 4051. Moreover, because we conclude that the defendant did not violate CUTPA, we need not address whether the trial court abused its discretion by not awarding attorney’s fees and punitive damages to the plaintiffs as part of the CUTPA award.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PRINCE ALEXANDER
    (SC 15622)
    Callahan, C. J., and Katz, Palmer, McDonald and Peters, Js.
    Argued June 5
    officially released July 15, 1997

      Michael A. Fusco and Yvonne M. Schoff, certified legal interns, with whom was Richard Emanuel, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, executive assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The judgment is affirmed.


author: PETERS, J.

text:
    JOHN DOE v. CITY OF STAMFORD ET AL.
    (SC 15631)
    Callahan, C. J., and Borden, Norcott, Katz and Peters, Js.
    Argued May 29
    officially released July 22, 1997

      Stewart M. Casper, with whom, on the brief, were Victoria de Toledo mid Renee M. Cannella, for the appellant (plaintiff).

      Kevin J. Maher, with whom were James D. Moran, Jr., and James J. Sullivan, for the appellees (defendants).
   Opinion

PETERS, J.

The sole issue in this appeal is whether, under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., an employee has suffered a compensable injury for purposes of recovering expenses for medical testing and treatment at a time when he has been exposed to, but has not yet contracted, a potentially fatal contagious disease. The claimant, John Doe, an employee of the named defendant, the city of Stamford, appealed from the decision of the compensation review board (review board) affirming the decision of the workers’ compensation commissioner (commissioner). The commissioner had denied the claimant’s application for compensation and his request for an order requiring the defendant to enter into a voluntary agreement with him. We transferred the appeal from the Appellate Court to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), and now reverse the judgment of the review board.

The parties have stipulated to the relevant facts, which arise out of two separate incidents. In the first incident, which occurred in February, 1993, the claimant, a police officer engaged in the performance of police duties, was exposed to the human immunodeficiency virus (HIV) when medical pads contaminated with body fluids of a criminal suspect came into contact with an open wound on the claimant’s thumb. After the suspect revealed that he had tested positive for HIV, the claimant proceeded immediately to Stamford Hospital, where his wound was treated and he was released. In the second incident, which occurred in May, 1993, the claimant, again while engaged in the performance of police duties, was exposed to tuberculosis when he came into repeated, close physical contact with another criminal suspect who, it was later learned, suffered from an active case of that disease.

The claimant subsequently underwent testing for the two diseases. Although he did not test positive for either disease, his physician recommended a follow-up consultation with respect to his HIV exposure. In connection with the initial testing, the claimant incurred bills for medical treatment and laboratory work. The defendant has paid for the laboratory services, but not for the medical treatment. With the exception of time lost for the medical testing, the claimant has missed no work as a result of these incidents and claims no loss of income.

The parties agree that both incidents arose out of and occurred in the course of the claimant’s employment with the defendant. The parties further agree that the claimant’s contacts with both suspects were sufficient to constitute “exposures” to HIV and tuberculosis. Nonetheless, although the claimant filed a timely application for compensation for past and future unpaid medical testing and treatment, the defendant refused his application and refused also to enter into a voluntary agreement with the claimant recognizing the compensability of his exposures. Accordingly, the claimant’s compensation claim proceeded to a formal hearing before the commissioner. See General Statutes § 31-294c (b).

At the hearing, held in May and August, 1994, the principal witness for the claimant was Debra Adler-Klein, a physician specializing in infectious diseases. Adler-Klein testified that an exposure to HIV similar to that sustained by the claimant would, for at least one year thereafter, require regular testing, drug therapy and, potentially, psychological counseling. She also testified that an exposure to tuberculosis similar to that sustained by the claimant would require testing and preventive drug therapy for at least six months. The defendant offered no contradictory medical testimony.

The commissioner denied the claimant’s application for compensation. He found no fault with the claimant’s factual representation but held that, as a matter of law, “mere exposure to infectious diseases does not give rise to a viable claim that the [c]laimant has suffered an injury or occupational disease” under the act.

The review board affirmed the commissioner’s decision. The board agreed with the commissioner that exposure to an infectious disease, without more, constitutes neither a “personal injury” nor an “occupational disease” under the act. While recognizing that principles of equity militate against the defendant’s refusal to cover the claimant’s medical expenses, the review board concluded that, in the absence of statutory authorization, it could not compel the defendant to fulfill its equitable obligation. One member of the review board dissented.

On the claimant’s appeal to this court, we must decide whether exposure to an infectious disease constitutes a compensable “injury” under the act. The claimant contends that, in order to effectuate the act’s humanitarian purposes, “injury” cannot be defined so narrowly as to exclude a serious risk of contracting a life threatening disease. At least, he argues, the term “injury” must be construed to include exposures in circumstances under which the prevailing standard of care calls for immediate and ongoing medical monitoring and treatment. The defendant urges us to uphold the decision of the commissioner and the review board. It contends that, in the absence of either visible physical trauma or present loss of income, a claimant has not suffered a compensable injury. We conclude that, under the circumstances of this case, in which the claimant concededly has sustained actual exposures to life threatening infectious diseases in incidents that arose out of and occurred in the course of his employment, the claimant has suffered compensable injuries under the act and may recover the expenses associated with reasonable medical testing and treatment.

The principles that govern our standard of review in workers’ compensation appeals are well established. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Emphasis added; internal quotation marks omitted.) Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). Neither the review board nor this court has the power to retry facts. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996). Where, however, the appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision. See Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995) (state agency not entitled to special deference when its construction of statute has not undergone previous judicial scrutiny).

Although the parties have called our attention to the public policy implications of this case, the issue presented is, at bottom, a matter of statutory construction. General Statutes § 31-294d (a) provides in relevant part that “[t]he employer, as soon as he has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid ... as the physician or surgeon deems reasonable or necessary.” (Emphasis added.) See also General Statutes § 31-294d (e) (if employer refuses to provide medical assistance, “the injured employee” may pursue medical assistance at employer’s expense). The defendant does not dispute that the claimant’s exposures to HIV and tuberculosis reasonably require both long and short term medical monitoring. The sole issue, rather, is whether these exposures constitute compensable “injuries” within the definitional boundaries of the act. We conclude that they do.

We reach this conclusion mindful both of general principles of statutory construction and of principles specifically applicable to workers’ compensation law. As a general matter, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). We discern that intent by looking to the statutory language, to legislative history and policy and to other legislation and common law principles. See id., 409. In appeals arising under workers’ compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act. See Hansen v. Gordon, 221 Conn. 29, 32, 602 A.2d 560 (1992). Although we recognize that, in enacting workers’ compensation law, the legislature did not intend to create “a general health and benefit insurance program”; id.; we do not read the act to include limitations on eligibility for compensation for which there is no statutory basis. See Crochiere v. Board of Education, 227 Conn. 333, 359, 630 A.2d 1027 (1993).

The dispositive statute in this case is General Statutes § 31-275 (16) (A), which defines the term “injury” to encompass an “accidental injury which may be definitely located as to the time when and the place where the accident occurred . . . .” There is no dispute in this case that the claimant’s exposures to HIV and tuberculosis may be definitely located as to time or place or that they resulted from accidental contact with infected suspects. The commissioner and the review board concluded, however, that, because the claimant had not yet contracted either disease, he had not suffered an “injury” within the meaning of § 31-275 (16) (A).

Nothing in the text or the legislative history of the act supports such a limited reading of the statutory definition of “injury.” See Crochiere v. Board of Education, supra, 227 Conn. 359 (§ 31-275 “uses the term ‘injury’ without limitation”). Although actual infection may be necessary to establish an “occupational disease” as that term is defined in § 31-275 (15), the definition of “injury” in § 31-275 (16) (A) does not require a similar pathological manifestation. Indeed, it would be contrary to the humanitarian and remedial purpose of the act to infer that the legislature intended that an employee who sustains actual exposure to a potentially fatal infectious disease must await the onset of the disease before he can recover expenses associated with necessary, and possibly lifesaving, medical intervention. See Jackson Township Volunteer Fire Co. v. Workmen’s Compensation Appeal Board (Wallet), 594 A.2d 826, 828 (Pa. Commw. 1991).

The defendant raises two alternate grounds in support of the decision of the commissioner and review board. One focuses on the form of the claimant’s injury and the other focuses on the extent of the injury. Neither ground is persuasive.

First, the defendant contends that the claimant has not suffered a compensable injury because his exposures were not accompanied by a physical wound or trauma. The defendant concedes that, if, for example, the claimant’s skin had been punctured by a syringe containing blood contaminated with HIV, that puncture would be sufficient to constitute an injury. The defendant contends, however, that, in the absence of similar trauma, the claimant cannot recover under the act.

The defendant’s argument cannot be reconciled with the undisputed facts in this case. The parties have stipulated that the claimant’s contacts with the contagious suspects were sufficient to constitute “exposures.” The defendant, therefore, cannot be arguing that the contacts were not sufficiently serious to create a risk of infection. The defendant must be arguing, instead, that the claimant did not suffer an “injury” because the incidents giving rise to his exposures did not leave a mark, abrasion or other outward sign not already present. The defendant, in effect, invites us to exalt the form of the claimant’s contact with the infected suspects over the substance of the claimed injury. We decline this invitation. For purposes of workers’ compensation law, the injury suffered by the claimant is the exposure to potentially fatal contagious diseases. That injury is no less real or cognizable because it was not attended by puncture or abrasion. See Arkansas Dept. of Correc tion v. Holybee, 46 Ark. App. 232, 235, 878 S.W.2d 420 (1994) (in case involving correction officer bitten by HIV positive inmate, claimant’s injury was not merely bite wound but also risk of infection); Jackson Township Volunteer Fire Co. v. Workmen’s Compensation Appeal Board (Wallet), supra, 594 A.2d 828 (in case involving ambulance attendant who came into contact with HIV contaminated blood, claimant’s “injury was the risk of infection”).

Second, the defendant contends that the claimant has not suffered a compensable injury because he has not, as yet, been incapacitated or suffered any loss of income. To the extent that this argument relies on dicta in Mulligan v. F. S. Electric, 231 Conn. 529, 541, 651 A.2d 254 (1994), and cases cited therein for the proposition that “ ‘ [c] ompensation under [the act] is based upon incapacity . . . [and] loss of earning power,’ ” that dicta has been disavowed. Williams v. Best Cleaners, Inc., 237 Conn. 490, 492-93, 677 A.2d 1356 (1996). To the extent that this argument is based on the provisions of General Statutes § 31-295 (a), which provide that no compensation for total or partial disability shall be payable under the act until the injured employee misses more than three days of employment, those provisions are irrelevant to the present case. The claimant does not seek disability compensation. He seeks, rather, to recover medical expenses in connection with the testing and treatment for HIV and tuberculosis exposure. Pursuant to § 31-294d, he is entitled to these medical expenses without any showing of incapacity or disability. See also Coca Cola Bottling Co. v. Superior Court, 233 Cal. App. 3d 1273, 1284, 286 Cal. Rptr. 855 (1991) (“a compensable injury is one which causes disability or need for medical treatments”); Elliott v. Dugger, 579 So. 2d 827, 830 (Fla. App. 1991) (“[t]he fact that [workers’ compensation claimant] has yet to suffer any proven disability ... as a result of his exposure to [acquired immune deficiency syndrome] does not make his injury any less compensable”).

Accordingly, in light of the undisputed factual circumstances of record, we conclude that the claimant has estabhshed, as a matter of law, that his exposures to two potentially fatal infectious diseases are compensable “injuries” under the act. Accordingly, the commissioner and the review board improperly denied him the right to recover for reasonable expenses that he incurred for medically appropriate testing and treatment.

The judgment is reversed and the case is remanded to the review board with direction to remand it to the commissioner for further proceedings according to law.

In this opinion the other justices concurred.

       As did the compensation review board, we will refer to the claimant as John Doe in order to protect his identity.

       The Connecticut Interlocal Risk Management Agency, the claims administrator for the city of Stamford, is also named as a defendant in this action. In the interest of simplicity, we will refer to the city of Stamford as the defendant.

       Although a “tine test” performed on the claimant indicated that he had been exposed to tuberculosis, chest X rays revealed no evidence of the disease. As of the date of the oral argument, the claimant had not contracted either HIV or tuberculosis.

       The parties stipulated that the incubation period following an IIIV exposure “can be several years.”

       The claimant does not dispute the conclusion of the review board that exposure to a disease, without actual contraction of the disease, does not constitute an “occupational disease” under the act.

       General Statutes § 31-275 (15) provides in relevant part: “ ‘Occupational disease’ includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such . . . .”

       The defendant does not dispute that, under federal law, an employee who has been exposed to HIV at the workplace is required to receive postexposure medical treatment, counseling and evaluation. See 29 C.F.R. c. XVII, § 1910.1030 (f) (3) (iv) through (vi). The claimant contends, and we agree, that it would undermine the importance of prompt medical testing to hold that an exposed employee must obtain this testing at his own cost.

       We note that, in the context of tort law, at least one court has set forth a four part inquiry to determine whether a plaintiff who has been exposed to, but has not yet contracted, an illness has stated a viable claim for economic damages associated with medical monitoring. See In re Paoli R. Yard PGB Litigation, 916 F.2d 829, 852 (3d Cir. 1990), cert. denied sub nom. General Electric Co. v. Knight, 499 U.S. 961, 111 S. Ct. 1584, 113 L. Ed. 2d 649 (1991) (Paoli 1); see also In re Paoli R. Yard PCB Litigation, 35 F.3d 717, 788 (3d Cir. 1994), cert. denied sub nom. General Electric Co. v. Ingram, 513 U.S. 1190, 115 S. Ct. 1253, 131 L. Ed. 2d 134 (1995). Pursuant to this test, a plaintiff can succeed on such a claim if he demonstrates that: (1) he was significantly exposed to hazardous materials as a result of the negligence of the defendant; (2) as a proximate result of his exposure, he suffers a significantly increased risk of contracting a serious latent disease; (3) the increased risk makes regular medical monitoring and treatment reasonably necessary; and (4) the monitoring and treatment make early detection and/or prevention of the disease possible. Paoli I, supra, 916 F.2d 852. Although neither party has asked us to adapt this test to the context of workers’ compensation law, we note that the factors it embraces are demonstrated in the undisputed facts of this case.

       Accordingly, we express no opinion on the degree or duration of contact with infectious disease that is sufficient to constitute an “exposure” for purposes of workers’ compensation law.

       At oral argument before this court, the defendant attempted for the first time to draw a distinction between the review board’s authority to compel the defendant to pay for the claimant’s medical bills and its authority to compel the defendant to enter into a voluntary agreement with the claimant. According to the defendant, the claimant’s exposures constituted nothing more than “compensable events,” and, therefore, triggered only the review board’s power to award medical compensation and not its power to order a voluntary agreement. This argument and the distinctions upon which it relies are, to our knowledge, entirely unsupported by either statute or case law. It is, however, unnecessary for us to address these deficiencies in light of the defendant’s concession that, if we conclude the claimant’s exposures constituted “injuries” within the scope of the act, the review board had the authority to order the parties to enter into a voluntary agreement.

       The defendant also calls our attention to federal cases in which an exposed employee has brought an action for emotional distress and medical monitoring costs under the Federal Employers Liability Act. See, e.g., Buckley v. Metro-North Commuter R. Co., 79 F.3d 1337 (2d Cir. 1996). Subsequent to oral argument in this case, the Circuit Court’s decision in Bucldey was overturned by the United States Supreme Court, which held that the employee could not maintain such an action under that federal act in the absence of pathological manifestations. Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424, 117 S. Ct. 2113, 2117, 138 L. Ed. 2d 560 (1997). Because the Buckley case arose in the context of a federal statute that is closely tied to traditional tort principles, it does not constrain our independent analysis of Connecticut workers’ compensation law.


author: NORCOTT, J. MCDONALD, J.,

text:
    STATE OF CONNECTICUT v. DUANE B. JOHNSON
    (SC 15132)
    Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.

      Argued February 20
    officially released July 22, 1997

      Louis S. Avitabile, special public defender, with whom, on the brief, was Meryl Anne Spat, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom were Mark S. Solak, state’s attorney, and, on the brief, Harry Weller, assistant state’s attorney, Ronald G. Weller, deputy assistant state’s attorney, and David Scanned, legal intern, for the appellee (state).

      G. Douglas Nash, chief of legal services, and Gerard A. Smyth, chief public defender, filed a brief for the office of the chief public defender as amicus curiae.
   Opinion

NORCOTT, J.

The principal issue in this appeal is whether, under the circumstances of this case, felony murder can serve as the predicate murder for a capital felony conviction. The defendant, Duane B. Johnson, was charged in an amended information with felony murder in violation of General Statutes § 53a-54c, capital felony in violation of General Statutes § 53a-54b (1), burglary in the first degree in violation of General Statutes §§ 53a-101 (a) and 53a-8, larceny in the third degree in violation of General Statutes §§ 53a-119, 53a-124 (a) (2) and 53a-8, and twenty counts of stealing a firearm in violation of General Statutes §§ 53a-212 and 53a-8. The charges against the defendant stemmed from his involvement in the burglary of a sporting goods store that culminated in the shooting death of Connecticut State Trooper Russell Bagshaw. Following a jury trial, the defendant was convicted on all counts. He appealed to this court from the judgment of conviction pursuant to General Statutes § 51-199 (b) (3). We reverse the judgment of conviction on the capital felony count and remand the case to the trial court with direction to vacate the capital felony conviction and to resentence the defendant on the felony murder conviction, and we affirm the judgment of conviction on the remaining counts.

The jury could have reasonably found the following facts. On June 5, 1991, sometime after midnight, the defendant and his brother, Terry Johnson, broke into the Land and Sea Sports Center (sporting goods store) in North Windham. Once inside, Terry loaded a nine millimeter semi-automatic pistol and handed the pistol out the window to the defendant. Terry also passed approximately twenty shotguns and rifles, boxes of ammunition and other merchandise through the window to the defendant, who carried them to Terry’s car.

Meanwhile, Bagshaw was patrolling the area near the sporting goods store in his police cruiser. At approximately 3 a.m., the defendant saw Bagshaw’s cruiser approaching the sporting goods store and warned Terry Johnson. Terry then climbed out the store’s window, grabbed the loaded pistol and waited near the corner of the building. As Bagshaw drove up the driveway toward the store, Terry began shooting at the cruiser. His gunshots hit and fatally wounded Bagshaw. The defendant and Terry then fled. Additional facts will be provided where necessary.

After his conviction, but before sentencing, the defendant filed a motion in arrest of judgment pursuant to Practice Book § 905, claiming that a charge of capital felony based on the commission of a felony murder is not a cognizable offense under the laws of Connecticut. After the state declined to seek the death penalty on the capital felony conviction, the trial court denied the motion and sentenced the defendant to life imprisonment without the possibility of release on the capital felony conviction, ten years imprisonment on the burglary count, five years imprisonment on the larceny count and three years imprisonment on each of the twenty counts of stealing a firearm. The defendant’s sentences on the burglary, larceny and firearms counts were to run concurrently with the capital felony sentence. No sentence was imposed on the defendant for the felony murder conviction, which was merged with the capital felony conviction in order to avoid exposing the defendant to double jeopardy. The total effective sentence was life imprisonment without the possibility of release.

On appeal, the defendant claims that the trial court improperly denied: (1) his motion in arrest of judgment; (2) his motion to suppress two oral statements that the defendant had made before having been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and (3) his motion to suppress his two written statements, which, although preceded by Miranda warnings, were the product of the allegedly illegally obtained oral statements. After the parties filed their briefs in the present appeal, we decided a similar case, State v. Harrell, 238 Conn. 828, 681 A.2d 944 (1996). In Harrell, we held that the term “murder” as used in the capital felony statute, § 53a-54b, could be applied only to intentional murder. Id., 839. Consequently, this court concluded that, under the circumstances of that case, the defendant’s conviction for two counts of arson murder under General Statutes § 53a-54d could not serve as the predicate murders for a charge of capital felony. Id.

In light of our decision in Harrell, we ordered supplemental briefing in the present appeal limited to the following three issues: “(1) Under the circumstances of this case, as a matter of statutory construction, can the defendant’s conviction for felony murder under General Statutes § 53a-54c properly serve as the predicate murder for purposes of the capital felony statute, General Statutes § 53a-54b? (2) What effect, if any, does this court’s decision in State v. Harrell, [supra] 238 Conn. 828 . . . have on the resolution of this question? (3) [What are] the possible constitutional consequences, if any, under the federal and state constitutions of a construction of § 53a-54b that provides for a conviction of felony murder as the predicate murder under § 53a-54b?” We conclude that, under the circumstances of this case, the defendant’s conviction for felony murder under § 53a-54c cannot serve as the predicate murder for capital felony under § 53a-54b. The trial court, therefore, improperly denied the defendant’s motion in arrest of judgment. As for the defendant’s remaining claims, we conclude that the trial court properly denied the defendant’s motion to suppress his oral and written statements.

I

The defendant first claims that, under the circumstances of this case, his conviction for felony murder under § 53a-54c cannot serve as the predicate murder for the crime of capital felony under § 53a-54b. In support of this argument, the defendant relies on our recent holding in State v. Harrell, supra, 238 Conn. 839, that an unintentional murder cannot serve as the predicate murder for capital felony. The defendant argues that Harrell controls the resolution of the present case because his conviction for felony murder was based on the claim that Bagshaw was killed in the course of the burglary, not on any claim that the defendant intentionally murdered, or aided in the murder of, Bagshaw. The state seeks to distinguish Harrell on the ground that the present case does involve an intentional murder, whereas Harrell did not. We agree with the defendant that Harrell is dispositive and conclude that, under the circumstances of this case, the defendant’s felony murder conviction cannot serve as the predicate murder for capital felony.

In Harrell, we were presented with the question of whether the term “murder” as used in § 53a-54b included unintentional as well as intentional murder. The state argued that, in the absence of any language hmiting the term solely to intentional murder, “murder” refers to the three types of murder recognized in the penal code: intentional murder under General Statutes § 53a-54a, felony murder under § 53a-54c, and arson murder under § 53a-54d. Id., 831, 833-34. The defendant argued that, in light of the legislative history of the capital felony statute, the term “murder” refers only to intentional murder under § 53a-54a. Id., 834. When the legislature enacted the present capital felony statute in 1973, it contemporaneously repealed the felony murder statute, leaving intentional murder as the only form of murder expressly recognized under the penal code. Id., 835-36. The defendant argued that, when the legislature later enacted the present felony murder statute in 1974, it did not evince an intent to expand the scope of the capital felony statute to include felony murder as a predicate offense. Id., 836. In the alternative, the defendant argued that the term “murder” was at least ambiguous and, thus, should be construed in favor of the defendant. Id., 831.

To determine whether the term “murder” in the capital felony statute includes unintentional as well as intentional murder, we employed the familiar principles of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . We are also mindful of well established principles that govern the construction of penal statutes. Courts must avoid imposing criminal liability where the legislature has not expressly so intended. . . . Accordingly, [c]riminai statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.” (Citations omitted; internal quotation marks omitted.) Id., 832.

After applying these principles, we stated: “After a careful consideration of the parties’ arguments concerning the language of the capital felony statute and the statute’s relationship to other provisions of the penal code, and a review of the relevant legislative history, we are persuaded that it is not apparent that the legislature unambiguously intended both intentional and unintentional murder to fall within the meaning of the term ‘murder’ in the capital felony statute. In light of the ambiguity surrounding the proper scope of the definition of ‘murder,’ we must construe that term in favor of the defendant. . . . We therefore hold that the term ‘murder’ in the capital felony statute may be applied only to intentional murder. Accordingly . . . under the circumstances of this case, the two counts of arson murder could not serve as predicate murders for a charge of capital felony under § 53a-54b (8).” (Citations omitted.) Id., 838-39.

After a thorough review of the statutory construction arguments raised by the parties in the present case, we conclude that these same arguments were raised and fully addressed in Harrell. In fact, the state concedes that in Harrell we rejected its argument that the term “murder” in § 53a-54b encompasses both intentional and unintentional murder. Furthermore, the state acknowledges that Harrell stands for the proposition that the term “murder” as used in § 53a-54b “may be properly applied only to intentional murder and does not encompass unintentional murder.” Faced with this precedent, the state does not raise any new arguments that would clarify the legislature’s intent in using the term “murder” in the capital felony statute, nor does the state argue that Harrell should be overruled. Instead, the state argues that the holding of Harrell should be limited to its facts, which are distinguishable from those of the present case. We are not persuaded.

The state seeks to distinguish Harrell on the ground that it did not involve an intentional murder, whereas the present case does. According to the state, there was sufficient evidence introduced at trial for a finding that Terry Johnson intentionally murdered Bagshaw. The state argues that the intentional murder committed by Terry can be used as the predicate murder for the defendant’s capital felony conviction and that such a result is permissible under Harrell.

Contrary to the state’s argument, however, our holding in Harrell cannot be stretched to support this novel proposition. In Harrell, we held that “the term ‘murder’ in the capital felony statute may be applied only to intentional murder.” Id., 839. This requirement of an intentional murder refers to the underlying murder that the defendant was convicted of and that served as the predicate offense for the capital felony conviction. See General Statutes § 53a-54b (“[a] person is guilty of a capital felony who is convicted of any of the following: [1] Murder of a member of the Division of State Police . . . [or] [8] murder of two or more persons at the same time or in the course of a single transaction” [emphasis added]). Whether the predicate offense was murder under subdivision (1) of § 53a-54b, as in the present case, or murder under subdivision (8), as in Harrell, the requirement of an intentional murder refers to the underlying murder of which the defendant was convicted.

It is important to note that, in the present case, the state did not charge the defendant with intentional murder or aiding an intentional murder. In the amended information brought against the defendant, the state charged the defendant with felony murder under § 53a-54c, in that the defendant “committed or attempted to commit [b]urglary and in the course of and in furtherance of such [b]urglary or of the flight therefrom, he, or another participant, if any, caused the death of a person, to wit: Connecticut State Trooper Russell Bagshaw who was other than one of the participants in said [b]urglary.” This language tracks the language of the felony murder statute. See General Statutes § 53a-54c (“[a] person is guilty of murder when ... he commits or attempts to commit . . . burglary . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants”). Furthermore, the trial court did not charge the jury on a theory of intentional murder or aiding an intentional murder, nor did the state request such a charge. Rather, the trial court charged the jury that the defendant would be guilty of felony murder if, in the course of and in furtherance of the burglary, he or another person caused Bagshaw’s death. The defendant was charged, tried and convicted of felony murder, not intentional murder or aiding an intentional murder.

We conclude that Harrell is dispositive and hold that, under the circumstances of the present case, felony murder cannot be the predicate murder for capital felony. Accordingly, we conclude that the trial court improperly denied the defendant’s motion in arrest of judgment.

Having determined that the capital felony conviction cannot stand, we must next consider the defendant’s claim that he is entitled to a new trial. The defendant claims that he was denied the right to a fair trial by having to defend against the capital felony charge. He contends that he was prejudiced by the introduction of evidence that the victim was a police officer, a fact he claims is material only to a charge of capital felony based on the murder of a police officer in violation of § 53a-54b (1). We are not persuaded.

The victim’s status as a police officer would have been a material fact even in the absence of a charge of capital felony under § 53a-54b (1). Bagshaw was murdered in the course of, and as a result of, performing his duties as a police officer in discovering a burglary in progress. That burglary was the predicate felony for the defendant’s conviction on the felony murder charge. Bagshaw’s status as a state trooper was undisputed and would necessarily and appropriately have been introduced into evidence even in the absence of a capital felony charge. We conclude that the defendant has failed to meet his burden of demonstrating prejudice and, accordingly, we deny the defendant’s request for a new trial. See State v. McGann, 199 Conn. 163, 178-79, 506 A.2d 109 (1986) (case remanded to trial court to vacate capital felony conviction and to resentence defendant on underlying murder conviction).

II

The defendant’s next claim on appeal is that the trial court improperly admitted into evidence two oral statements he had given to the police on the day after the murder. The defendant argues that he was in police custody at the time he made the statements and that the police did not advise him of his rights under Miranda v. Arizona, supra, 384 U.S. 478-79, before interrogating him. The state responds that Miranda warnings were not required because the defendant was not in custody at the time he made the statements. We agree with the state.

Before trial, the defendant filed a motion to suppress two oral statements and two written statements, all of which he had given to the police on June 6, 1991. At a pretrial suppression hearing, the trial court, Sferrazza, J., denied the motion on the basis that the defendant was not in custody at the time he made the statements. In his memorandum of decision, Judge Sferrazza found the following facts.

On the morning of the murder, the detectives who were investigating the crime scene discovered that a boat in the yard of the sporting goods store had been propped up against the store beneath a shattered window. Metal bars protecting this window had been sawed off and lay on the ground below. Blood stains were discovered on one of these bars, as well as on the window casing. In addition, the detectives noticed a shoe print on the boat. A witness told the police that he had seen a gray Volkswagen Rabbit, with its headlights turned off, exiting the driveway of the store at approximately 3 a.m. The witness assisted the detectives in creating a composite drawing of the driver, who was described as a white male under twenty-five years of age.

The next day, the detectives learned that Terry Johnson, who had just been arrested for an altercation with an off-duty police officer, had been at a bar near the crime scene the night before. Detectives Thomas Davoren and Lawrence Gibeault met with Terry and noted that he resembled the witness’ composite drawing and that his hands bore lacerations. They learned that Terry drove a gray Volkswagen Rabbit, which was parked at his father’s home at that time. They discovered, however, that the pattern on the soles of his sneakers did not match the footprint found on the boat.

Davoren and Gibeault, who were dressed in civilian clothes, and a uniformed police officer then drove to the home of the defendant’s father in an unmarked police car. The detectives saw a gray Volkswagen Rabbit parked at the house. They observed a shoe print on one bumper of the car that matched the pattern of the shoe print found on the boat at the crime scene. They also saw blood on the interior of one of the car doors. Soon after their arrival, the defendant’s father arrived at the house. The detectives explained to him why they were there. He told them that Terry Johnson had been at the house the day before and had had an animated discussion with the defendant in the driveway, during which Terry had appeared to be agitated and the defendant had appeared to be angry with Terry.

The defendant then approached the house in his car, slowed down and put his turn signal on. Instead of turning into the driveway, however, he continued straight past the house. Suspecting that the defendant might know something about Terry Johnson’s involvement in the burglary and shooting, Gibeault and the uniformed police officer entered the unmarked police car and drove after the defendant. They had driven approximately 100 yards when the defendant turned his car around and returned to the house. The police followed him into the driveway.

The detectives asked the defendant if he would be willing to speak to them inside the house. The defendant agreed. The detectives also asked the defendant’s father for permission to speak with his son in his house. He also agreed. The two detectives and the defendant sat at the kitchen table while the defendant’s father and the uniformed police officer stayed outside. Davoren told the defendant that the defendant knew why the detectives were there and that the defendant had a story to tell. Gibeault then produced a copy of the composite drawing. The defendant stated that he did not know how to begin, and Davoren suggested that the defendant use a “once upon a time” method. The defendant then told the detectives about the burglary and the shooting of Bagshaw. At some point during the defendant’s recounting of events, his father entered the kitchen to get a portable telephone and left. The detective then asked the defendant to repeat the story with more detail, and the defendant did so.

The defendant’s first recitation of the events took approximately seven minutes and the second recitation took approximately twenty-five minutes. Judge Sferrazza found that “ [throughout this period of time, the detective [s] remained reserved and as neutral as possible. They refrained from any shouting, threatening, or menacing behavior. They made no promises to the defendant nor did they restrain his ability to move in any fashion. The defendant never asked the detectives to leave or cease questioning. Nor did he express a desire to leave or speak to his father or anyone else

After the defendant completed the second recitation of the events, Davoren read him his rights under Miranda v. Arizona, supra, 384 U.S. 478-79. The defendant then waived his rights to remain silent and to obtain the assistance of counsel, and gave two written statements to the detectives.

Judge Sferrazza further found that the defendant was “an eighteen year old, literate member of the [United States] Army Reserve,” and that “[i]n this familiar setting [of his father’s kitchen], the defendant had access to his car, a phone, refreshments, and his father. The detectives did not lay their hands upon the defendant, nor did they utter words or make gestures restricting his movement in any way.” The court concluded that “no reasonable person would have believed, under these circumstances, that his freedom of movement has been curtailed in any fashion.” As to the circumstances surrounding the giving of the second statement, the court found that “[t]he only differences in circumstance between the first and second oral statements were the passage of seven minutes, the detective’s request that the story be repeated, and the fact that the defendant had incriminated himself. While the defendant might reasonably have surmised that, because of his admission of assisting in the burglary, he might eventually be arrested for that burglary, no action on the detectives’ part would have led a reasonable person to believe his own words suddenly converted freedom into custody.” The court concluded that, based upon these findings, the defendant was not in custody at the time he made the two oral statements.

At trial, the defendant objected to the introduction of his two oral and two written statements given to the police on June 6, 1991. The trial court, Spada, J., adopted Judge Sferrazza’s findings and concluded that the defendant was not in custody at the time he made the statements. Accordingly, the trial court overruled the defendant’s objection.

On appeal, the defendant first claims that his two oral statements were unlawfully obtained because the police failed to advise him properly of his rights under Miranda v. Arizona, supra, 384 U.S. 478-79, before subjecting him to custodial interrogation. We disagree.

“The defendant has the burden of proving custodial interrogation . . . before the state must prove that adequate warnings of the rights that inhere in the privilege against self-incrimination were given to the defendant and that the defendant’s waiver of his rights was constitutionally valid .... Custodial interrogation [occurs when] questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . . Although the circumstances of each case must certainly influence a determination of whether a suspect is in custody for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. ... A person is in custody only if a reasonable person would have believed he was not free to leave. . . . We must look at the totality of the circumstances of the questioning in order to determine whether a reasonable person would have construed those circumstances as placing him in a custody situation. . . .” (Citations omitted; internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 76, 621 A.2d 728 (1993). “We first examine the trial court’s conclusion regarding the historical facts in order to determine whether it is clearly erroneous. We next conduct an independent review in light of the totality of the circumstances by scrupulously examining the record to determine if an application of the law to the facts leads us to conclude that the defendant was in custody.” State v. Atkinson, 235 Conn. 748, 759 n.17, 670 A.2d 276 (1996); see also Thompson v. Keohane, 516 U.S. 99, 112-114, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995) (historical facts surrounding custody reviewed for clear error; ultimate determination of custody reviewed de novo).

On the basis of our review of Judge Sferrazza’s findings, as adopted by Judge Spada, we agree that the defendant was not in custody when he made his two oral statements to the police. The detectives, who had approached the defendant at his father’s home, had asked the defendant if he would speak with them, and he had voluntarily agreed to do so. The interview took place in the familiar surroundings of his father’s kitchen. There was no evidence that the defendant was ever handcuffed or otherwise restrained at the time of the statements, nor did the officers use or threaten the use of force, or display their weapons. The court expressly found that the police had been neutral and reserved. The defendant had access to a telephone. The defendant’s father entered the kitchen during this period. The defendant never expressed a desire to leave, stop talking, or speak with his father. Under these circumstances, we cannot conclude that the defendant has met his burden of proving custodial interrogation.

The defendant nonetheless argues that he was in custody from the moment the unmarked police car pulled out from the driveway of his father’s house and followed him back. He contends that he exercised his freedom by not pulling into the driveway at first, as he had originally intended to do, and that the police displayed a show of authority by following him back to his father’s home. This claim, however, is contrary to the defendant’s own testimony. At the suppression hearing, the defendant himself testified that he had not seen a uniformed police officer in his driveway, had driven past his house to get a soda, but then had changed his mind, had turned his car around and had driven back to the house because he “was going to go home.” Furthermore, Gibeault and the police officer followed the defendant in an unmarked car that did not display a police light. We conclude that, under these circumstances, a reasonable person would not believe that his freedom of movement was restricted by a display of police authority. We conclude, therefore, that the trial court properly allowed the defendant’s two oral statements to be admitted into evidence at trial. Because we determine that the oral statements were legally obtained, the defendant cannot prevail on his additional claim that his written statements should have been suppressed as the product of the alleged initial illegality.

The judgment of conviction of capital felony is reversed and the case is remanded with direction to vacate the capital felony conviction and to resentence the defendant on the felony murder conviction; the judgment of conviction on the remaining counts is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN, BER-DON, KATZ and PALMER, Js., concurred.

MCDONALD, J.,

concurring and dissenting. I disagree with part I of the majority opinion, which reverses the defendant’s conviction of capital felony and vacates his sentence of life imprisonment without the possibility of release. In doing so, the majority relies on State v. Harrell, 238 Conn. 828, 681 A.2d 944 (1996). I submit that the present case should not be controlled by Harrell, where this court refused to apply the death penalty to multiple arson murders.

The jury could and did find that Connecticut State Trooper Russell A. Bagshaw was killed when he interrupted the defendant, Duane B. Johnson, and his brother, Terry Johnson, while they were burglarizing a gun shop at 3 a.m. The Johnsons were loading the guns from the shop into the defendant’s vehicle, parked near the shop, when Trooper Bagshaw drove his cruiser toward them. The defendant warned Terry Johnson, who was inside the building, that the cruiser was approaching. The two then waited in the dark outside the shop as the Trooper drove nearer. Terry Johnson, without warning from him or the defendant, repeatedly fired into the cruiser with a stolen handgun that he had loaded during the burglary. Trooper Bagshaw was fatally wounded and left to bleed to death in the cruiser while the Johnsons escaped. Terry Johnson had also parked his vehicle in the gun shop yard and each drove off in his own vehicle. With the defendant were the stolen guns, some of which had been loaded into his car after the Trooper was shot.

After the defendant was convicted of felony murder and capital felony, he was sentenced to life imprisonment without the possibility of release.

In Harrell, the defendant was charged with arson murder and capital felony for his role in the arson of an apartment building and the resulting deaths of two people. In that case, bowing to the special rule of lenity in death penalty cases, we refused to allow its possible imposition. We interpreted the legislative intent in enacting the capital felony statute as not imposing the death penalty in a case of unintended multiple arson murders. This case is different. In this case, we do not have the crime of arson murder, which may be punished by life imprisonment without parole, may be proven by a reckless burning resulting in death and may truly be an unintended homicide. Here also, the jury did not impose the death penalty. I do not agree that Harrell applies to this felony murder of a state trooper acting within the scope of his duties.

Our fundamental objective in interpreting the meaning of a statute, as pointed out in State v. Harrell, supra, 238 Conn. 832, is to give it the meaning that was intended by the legislature by looking to its plain words, its legislative history and the circumstances of its passage, and its relationship to existing legislation and common law and legislative policy.

The plain words of the capital felony statute; General Statutes § 53a-54b; indicate that it was meant to apply where a law enforcement officer is murdered while acting within the scope of his duties. The statute does not, therefore, protect an officer from murder, intentional or unintentional, because of his profession when not acting “within the scope of his duties.” General Statutes § 53a-54b. Because a law enforcement officer’s principal duties under General Statutes § 54-1f (b) and (d) are to arrest those persons committing crimes, it is plain that the severe penalties were designed to protect Trooper Bagshaw. Here, it is clear that Trooper Bagshaw was killed because he was a police officer.

At common law, felony murder applied the penalties for intentional murder to those persons who participated in dangerous or violent felonies resulting in death. State v. Edwards, 163 Conn. 527, 532, 316 A.2d 387 (1972); State v. Cross, 72 Conn. 722, 729, 46 A. 148 (1900). The penal code, by statute, carries that scheme forward to the present day. Both intentional murder and felony murder are now simply defined as “murder.” See General Statutes §§ 53a-54a and 53a-54c. The purpose of felony murder was and is to deter the commission of such crimes and to protect the innocent lives of victims, law enforcement officers and bystanders. See 2 F. Wharton, Criminal Law (15th Ed. Torcia 1994) § 147, p. 300, citing People v. Satchell, 6 Cal. 3d 28, 489 P.2d 1361, 98 Cal. Rptr. 33 (1971).

The history in this state of the murders of state troopers and other police officers bears out the stark fact that those murders occurred mainly as the officers attempted to apprehend persons committing dangerous or violent crimes. See State v. Chapman, 103 Conn. 453, 130 A. 899 (1925); State v. Donahue, 141 Conn. 656, 109 A.2d 364 (1954), appeal dismissed and cert. denied, 349 U.S. 926, 75 S. Ct. 775, 99 L. Ed. 1257 (1955). This fact could hardly escape the attention of the legislature. History clearly supports an intention to protect police officers interrupting armed felonies.

The majority’s narrow reading of the capital felony statute was not intended by the legislature. It deprives police officers and the public they serve of needed protection. It bars the imposition of a life sentence without release for a crime that strikes at the heart of our justice system and at the public’s safety. Hereafter, because the killer of a police officer and the other participants in a dangerous felony had other crimes as their objective, both the killer and those participants will be beyond the reach of the capital felony statute.

Upon receiving his badge, Trooper Bagshaw subscribed to a code of honor. He swore: “I will serve the State of Connecticut honestly and faithfully and, if need be, lay down my life as others have done rather than swerve from the path of duty.” 1996 Membership Directoiy, Connecticut State Police Academy Alumni Assn., Inc., p. 69. The badge should be both a symbol of lawful authority and, by the law’s sternest protection, a shield from harm. It is simply unreasonable to conclude that the General Assembly meant to give Trooper Bagshaw and his fellow law enforcement officers anything less.

I see no reason to interpret our law so narrowly to absolve this defendant of capital felony and to revoke his sentence.

       General Statutes § 53a-54c provides: “Felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       General Statutes § 53a-54b provides in relevant pari,: “Capital felony. A person is guilty of a capital felony who is convicted of any of the following: (1) Murder of amember of the Division of State Police within the Department of Public Safety . . . while such victim was acting within the scope of his duties; (2) murder committed by a defendant who is hired to commit the same for pecuniary gain or murder committed by one who is hired by the defendant to commit the same for pecuniary gain; (3) murder committed by one who has previously been convicted of intentional murder or of murder committed in the course of commission of a. felony; (4) murder committed by one who was, at the 1 ime of commission of the murder, under sentence of life imprisonment; (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety; (6) the illegal sale, for economic gain, of cocaine, heroin or melhadone to a person who dies as a direct result of the use by him of such cocaine, heroin or methadone; (7) murder committed in the course of the commission of sexual assault in the first degree; (8) murder of two or more persons at the same time or in the course of a single transaction; or (9) murder of a person under sixteen years of age.”

       General Statutes § 53a-101 provides in relevant part: “Burglary in the first degree: Class B felony, (a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone. . . .”
      General Statutes § 53a-8 provides: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicit s, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct, and may be prosecuted and punished as if he were the principal offender.
      “(b) A person who sells, delivers or provides any firearm, as defined in subdivision (19) of section 53a-3, to another person to engage in conduct which constitutes an offense knowing or under circumstances in which he should know that such other person intends to use such firearm in such conduct shall be criminally liable for such conduct and shall be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-119 provides in relevant part: “Larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”
      General Statutes § 53a-124 provides in relevant part: “Larceny in the third degree: Class D felony, (a) A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds one thousand dollars . . . .”
      See footnote 3 of this opinion for the text of § 53a-8.

       General Statutes § 53a-212 provides in relevant part: “Stealing a firearm. Class D felony, (a) A person is guilty of stealing a firearm when, with intent to deprive another of his firearm or to appropriate the same to himself or a third party, he wrongfully takes, obtains or withholds a firearm, as defined in subdivision (19) of section 53a-3. . . .”
      See footnote 3 of this opinion for the text of § 53a-8.

       Practice Book § 905 provides: “ — Motion in Arrest of Judgment
      “On motion of the defendant, the judicial authority shall arrest judgment if the indictment or information does not charge an offense or if the judicial authority was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made prior to the imposition of sentence.”

       General Statutes § 53a-54d provides: “Arson murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. Notwithstanding any other provision of the general statutes, any person convicted of murder under this section shall be punished by life imprisonment and shall not be eligible for parole.”

       The specific subdivision of the capital felony statute at issue in Harrell was § 53a-54b (8), which provides in relevant part: ‘'A person is guilty of a capital felony who is convicted of . . . (8) murder of two or more persons at the same time or in the course of a single transaction . . . (Emphasis added.)

       Even during closing argument, the state did not claim that the defendant committed an intentional murder or aided in the commission of an intentional murder. Instead, the state asserted that the defendant participated in the burglary and that, in the course of and in furtherance of this burglary, Terry Johnson caused Bagshaw’s death.

       The dissent and the state argue that the holding of Harrell should be limited to the particular subdivision of the capital felony statute involved in that case, namely, § 53a-54b (8). We disagree. Neither the dissent nor the state offers any support in the text or the legislative history of § 53a-54b for why the term “murder” in subdivision (1) should be given a different meaning than the same term in subdivision (8). It is a familiar principle of statutory construction that “where the same words are used in a statute two or more times they will ordinarily be given the same meaning in each instance.” Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 694, 674 A.2d 1300 (1996).

       Because we conclude that the defendant’s capital felony conviction must be vacated, we need not reach the constitutional issues we raised in our request for additional briefing by the parties.

       I concur with part II of the majority opinion.

       Prior to Trooper Bagshaw’s death, three other state troopers had been murdered, all while interrupting violent crimes: Trooper Irving H. Nelson in 1928 (shot during armed robbery); Trooper Ernest J. Morse in 1953 (shot by operator of stolen vehicle); and Trooper Joseph M. Stoba, Jr., in 1962 (shot while attempting to resolve domestic dispute). 1996 Membership Directory, Connecticut State Police Academy Alumni Assn., Inc., p. 68.

       In late 1977, this state began compiling and publishing annual reports on crime. See State of Connecticut, Annual Uniform Crime Reports (1978-1995). A review of these reports reveals that the total number of Connecticut law enforcement officers killed in the line of duty from 1978 to 1995 was eleven. Of those deaths, five were caused by felonious acts.
      On the national level, a total of 1418 federal, state and local law enforcement officers were feloniously killed over the same period of time. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1995, table 3.160, p. 377.