author: Hull, J.

text:
    Town of Preston et al. v. Department of Environmental Protection et al.
    (14185)
    Shea, Glass, Covello, Hull and Borden, Js.
    Argued February 22
    decision released May 21, 1991

      Kathleen Eldergill, for the appellants (plaintiffs).

      Robert B. Teitelman, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).

      Francis J. Brady, with whom were Roger E. Koontz, Elizabeth C. Barton and, on the brief, Mary Adamowicz and Mark R. Sussman, for the appellees (defendant Connecticut Resources Recovery Authority et al.).
   Hull, J.

The defendants Connecticut Resources Recovery Authority, Southeastern Connecticut Regional Resources Recovery Authority and American Ref-Fuel Company (the defendants) filed applications with the defendant Connecticut department of environmental protection (DEP) for three permits necessary to construct a proposed resources recovery facility (the facility) in the plaintiff town of Preston. See General Statutes § 22a-208a (solid waste construction permit); § 22a-174 (c) (air emissions permit); § 22a-430 (a) (water discharge permit). Pursuant to General Statutes § 22a-19 (a), the plaintiffs, the town of Preston, Citizens for Alternatives to the Incineration of Refuse, the Mohegan Indian Tribe and Nation, John E. Hamilton and Eleanor C. Fortin, intervened as parties in the administrative proceeding. Following public hearings, the commissioner of environmental protection (the commissioner) granted the defendants’ applications for a solid waste construction permit and an air emissions permit. The plaintiffs appealed to the Superior Court, which dismissed the appeal on its merits. The plaintiffs thereafter appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We affirm.

The plaintiffs claim that the trial court should have concluded that the commissioner improperly granted the defendants’ applications for a solid waste construction permit and an air emissions permit.

I

The plaintiffs first claim that the trial court should have concluded that the defendants’ application for a solid waste construction permit was improperly granted by the commissioner. According to the plaintiffs, because the application was incomplete, the commissioner was prohibited from granting it. The plaintiffs also argue that because the defendants failed to demonstrate that a parent company of the defendant Ref-Fuel, Browning-Ferris Industries, Inc. (BFI), had not repeatedly violated pertinent statutes, the application should have been denied.

A

We first address the plaintiffs’ assertion that the defendants’ application for a solid waste construction permit was incomplete and that, therefore, the commissioner was precluded from granting it. According to the plaintiffs, § 22a-209-4 (b) of the Regulations of Connecticut State Agencies, requires that specific information be included in every application for a solid waste construction permit and that, therefore, the absence of certain of this information from the defendants’ application rendered the application incomplete and precluded issuance of a solid waste permit. We do not agree.

Section 22a-209-4 (b) provides in pertinent part: “The information required to be in an application for a permit to construct shall depend upon the type of solid waste facility proposed. . . . An application will not be deemed complete until all information required by statutes or regulations or otherwise requested by the Commissioner have [sic] been submitted in proper form. (1) Application for each solid waste facility permit to construct . . . shall include but not be limited to the following as the Commissioner deems necessary . . . (Emphasis added.) This language is followed by a comprehensive list of items that relate to all solid waste facilities. Section 22a-209-4 (b) thereafter provides: “(2) A facility plan, including engineering studies and proposals, shall accompany the application . . . and shall include but not be limited to the following information and supporting materials as the Commissioner deems necessary . . . (Emphasis added.) This language is followed by two specific lists of items. The first applies to “solid and special waste disposal areas,” while the second applies to “transfer stations, resources recovery facilities or other volume reduction plants, and biomedical waste treatment facilities.” Regs., Conn. State Agencies § 22a-209-4 (b) (2) (A) and (B).

The plaintiffs argue that use of the phrase “shall include” in the prefatory language of § 22a-209-4 (b) (1) and (2) requires that every application for a solid waste construction permit include each item set forth in § 22a-209-4 (b) (1) and, if applicable, each item set forth in § 22a-209-4 (b) (2) (A) or (B). It is quite plausible, however, that the phrase “as the Commissioner deems necessary” modifies “shall include” and that, therefore, an application for a solid waste construction permit “shall include” the information set forth only if the commissioner deems it necessary. Nevertheless, the plaintiffs maintain that the phrase “as the Commissioner deems necessary” modifies only the phrase “but not be limited to the following” and that, therefore, any discretion that the phrase imparts to the commissioner is restricted to determining whether an application will be limited to the information set forth in the regulation.

Because § 22a-209-4 (b) is subject to two plausible interpretations, it requires our construction. As is true in every case involving the construction of a statute, our starting point must be the language employed. King v. Board of Education, 203 Conn. 324, 332, 524 A.2d 1131 (1987); Verdon v. Transamerica Ins. Co., 187 Conn. 363, 366, 446 A.2d 3 (1982). “The test for determining whether the use of the word ‘shall’ is mandatory or directory is ‘whether the prescribed mode of action is of the essence of the thing to be accomplished.’ Vartuli v. Sotire, 192 Conn. 353, 360, 472 A.2d 336 (1984). That test must be applied with reference to the purpose of the statute. See id.” LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990).

General Statutes § 22a-208a (a), part of the legislative scheme that § 22a-209-4 was designed to implement; see General Statutes § 22a-209; provides: “The commissioner of environmental protection may issue, deny, modify, renew, suspend, revoke or transfer a permit, under such conditions as he may prescribe and upon submission of such information as he may require, for the construction, alteration and operation of solid waste facilities, in accordance with the provisions of this chapter and regulations adopted pursuant to this chapter.” (Emphasis added.) The legislature intended, therefore, that the decision of what information must be included in a solid waste construction permit application is, ultimately, a matter within the commissioner’s discretion.

Furthermore, by rendering a decision on the defendants’ application, despite the fact that the application did not include every item of information set forth in the regulation, the commissioner implicitly interpreted § 22a-209-4 (b) as requiring the application for a solid waste construction permit to include only the information that he deemed necessary. We accord great deference to the construction of a provision given by the administrative agency charged with the provision’s enforcement. Trumbull v. State, 206 Conn. 65, 77, 537 A.2d 431 (1988); Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128-29, 527 A.2d 672 (1987). “This principle applies with even greater force to an agency’s interpretation of its own duly adopted regulations.” Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 497, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986).

Considering the comprehensiveness of the lists set forth in § 22a-209-4 (b), construction of the section as the plaintiffs suggest would elevate form over substance by requiring the inclusion of information in an application in cases where the commissioner, in his discretion, deems such information either unnecessary or superfluous. “ ‘[Wjhere a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to “bizarre results” destructive of that purpose, the former should prevail.’ State v. Williams, 206 Conn. 203, 210, 536 A.2d 583 (1988).” State v. Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988).

We conclude that, because the purpose of § 22a-209-4 (b) is to ensure that the commissioner has an adequate basis upon which to render a decision on a solid waste construction permit application and because both the legislature and the commissioner have determined that the commissioner is in the best position to decide what information is necessary under the circumstances of each case, the more reasonable interpretation of § 22a-209-4 (b) is that an application thereunder must include only those items set forth that the commissioner deems necessary.

B

The plaintiffs next assert that because the defendants failed to demonstrate that BFI, a parent company of Ref-Fuel, had not repeatedly violated pertinent statutes, their application for a solid waste construction permit should have been denied. We disagree.

Section 22a-209-4 (d) (1) (D) of the Regulations of Connecticut State Agencies provides in pertinent part: “(1) The Commissioner shall issue a permit to construct or to operate upon receipt of satisfactory evidence from the applicant that . . . (D) the owner or operator of the facility or, if the owner or operator is a business entity, a parent or subsidiary corporation . . . has not repeatedly violated pertinent statutes, regulations, orders or permit terms or conditions at any solid waste facility.”

In support of their position, the plaintiffs assert that, pursuant to § 22a-209-4 (d) (1) (D), evidence of the following precluded the commissioner from issuing a solid waste construction permit to the defendants: BFI had been ordered to cease operations and alter its methods of operation at various waste disposal sites. BFI had been the subject of investigation in connection with enforcement actions involving hazardous waste disposal. Administrative proceedings involving the discharge of materials into the environment were pending against BFI. BFI was a named defendant in a pending civil action that alleged price fixing for waste services. After considering this evidence, the commissioner determined that BFI’s compliance history did not warrant denial of the defendants’ application for a solid waste construction permit.

In reviewing a decision of an administrative agency, we will reverse the decision upon a showing that the agency acted illegally, arbitrarily or in abuse of its discretion or that the decision is unsupported by the evidence. Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 762, 591 A.2d 395 (1991); Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 605, 590 A.2d 447 (1991). The determination of whether an applicant has “repeatedly violated pertinent statutes, regulations, orders or permit terms or conditions at any solid waste facility” is a question of fact. We conclude that nothing in the record indicates an abuse of discretion by the commissioner in refusing to find that BFI’s violations had been repeated. We further conclude that the commissioner reasonably determined that evidence of investigations, alleged violations of pertinent statutes and pending proceedings involving BFI, did not require denial of the defendants’ application for a solid waste construction permit.

II

The plaintiffs next claim that the trial court should have concluded that the defendants’ application for an air emissions permit was improperly granted. According to the plaintiffs, because the defendants failed to analyze the particulate matter measuring less than ten microns in diameter that will be emitted by the facility and because they failed properly to analyze the impact that the facility will have on the prevention of significant deterioration of the ambient air quality, then-application should have been denied.

A

The plaintiffs first assert that the defendants’ failure to analyze the particulate matter measuring less than ten microns in diameter (PMi0) that will be emitted by the facility required denial of their application for an air emissions permit. We disagree.

Title 40 C.F.R. § 52.21 (i) (1990) provides in pertinent part: “(1) No stationary source ... to which the requirements of paragraphs (j) through (r) of this section apply shall begin actual construction without a permit which states that the stationary source . . . would meet those requirements.” Title 40 C.F.R. § 52.21 (j) (2) (1990) provides: “A new major stationary source shall apply best available control technology for each pollutant subject to regulation under the Act that it would have the potential to emit in significant amounts.” The plaintiffs argue that, pursuant to § 52.21 (i), the defendants’ application was required to include an analysis showing that the facility would apply the best available control technology with respect to limiting PM10 emissions and, therefore, meet the requirement of § 52.21 (j) (2). We are unpersuaded.

Title 40 C.F.R. § 52.21 (i) (4) (1990) provides in pertinent part: “The requirements of paragraphs (j) through (r) of this section shall not apply to a particular major stationary source ... if . . . (x) The source . . . was subject to 40 CFR 52.21, with respect to particulate matter, as in effect before July 31,1987 and the owner or operator submitted an application for a permit under this section before that date, and the Administrator [of the environmental protection agency] subsequently determines that the application as submitted was complete with respect to the particulate matter requirements then in effect in this section. Instead, the requirements of paragraphs (j) through (r) of this section that were in effect before July 31,1987 shall apply to such source or modification.”

It is undisputed that the facility was subject to 40 C.F.R. § 52.21, with respect to particulate matter, as in effect before July 31, 1987. See 40 C.F.R. § 52.21 (1986). The plaintiffs assert, however, that the defendants failed to submit a complete application for an air emissions permit under § 52.21 prior to July 31,1987. The plaintiffs first argue that because the defendants submitted their application for a permit to the commissioner, rather than to the administrator of the environmental protection agency (the administrator), they failed to submit an application under § 52.21. Because the administrator has delegated authority to enforce the standards of performance for new stationary sources to the commissioner; see Regs., Conn. State Agencies § 22a-174-3 (a) (2) (commissioner has been delegated authority to enforce 40 C.F.R. Part 60 by the administrator); 40 C.F.R. Part 60 (1990) (standards of performance for new stationary sources); this argument is without merit.

The plaintiffs next assert that the defendants’ application was not complete until September 16,1987, and that, therefore, the exemption set forth in § 52.21 (i) (4) (x) does not apply. The commissioner determined that a complete application for an air emissions permit was submitted by the defendants before July 31, 1987. The plaintiffs’ second assertion, therefore, is equally without merit.

Because the defendants submitted a complete application for an air emissions permit prior to July 31,1987, the requirements of 40 C.F.R. § 52.21 (i) and (j) (1990) do not apply to their application for an air emissions permit. Instead, the requirements of 40 C.F.R. § 52.21 (1986), which were the regulations in effect prior to July 31, 1987, govern the defendants’ application. 40 C.F.R. § 52.21 (i) (4) (x) (1990). PM10 is not a pollutant subject to regulation under the 1986 regulations. See 40 C.F.R. § 52.21 (b) (23) (i) (1986). We conclude, therefore, that the defendants were not required to conduct an analysis of PM10 emissions in order to obtain an air emissions permit.

B

The plaintiffs next assert that because the defendants failed to analyze properly the effect that the facility will have on the prevention of significant deterioration of the ambient air quality (PSD), their application for an air emissions permit should have been denied. We disagree.

Title 40 C.F.R. § 52.21 (m) (1) (1990) provides in pertinent part: “(i) Any application for a permit under this section shall contain an analysis of ambient air quality in the area that the major stationary source . . . would affect for each of the following pollutants: (a) For the source, each pollutant that it would have the potential to omit in a significant amount . . . .’’The plaintiffs do not dispute that the defendants submitted an analysis of PSD with their application. They assert, however, that, because the defendants’ analysis did not contain all essential data and because some of the data that it included was outdated, inaccurate or unverified, the analysis was inadequate. Nevertheless, the plaintiffs have not challenged the commissioner’s conclusion that “[t]he [fjacility will meet all applicable state and federal regulations governing the issuance of permits for a new source of air emissions.”

We conclude that, despite the alleged inadequacy of the defendants’ PSD analysis, because the plaintiffs do not challenge the commissioner’s conclusion that the facility will comply with applicable federal and state regulations governing new stationary sources of air emissions, including regulations designed to ensure PSD, the commissioner properly granted the defendants’ application for an air emissions permit.

The judgment is affirmed.

In this opinion the other justices concurred.

       The Connecticut Resources Recovery Authority (CRRA) is a body established to implement the Solid Waste Management Services Act. General Statutes § 22a-257 et seq.; see General Statutes §§ 22a-261, 22a-262. The CRRA has delegated responsibility for solid waste management in southeastern Connecticut to the Southeastern Connecticut Regional Resources Recovery Authority (SCRRRA). See General Statutes §§ 22a-260 (18), 22a-275.

       We refer to the Connecticut Resources Recovery Authority, the Southeastern Connecticut Regional Resources Recovery Authority and American Ref-Fuel Company collectively as the defendants. Where necessary to distinguish among these defendants, we refer to them as CRRA, SCRRRA and Ref-Fuel, respectively.

       “ ‘Resources recovery facility’ means a facility utilizing processes to reclaim energy from solid wastes.” General Statutes § 22a-219a.

       General Statutes § 22a-208a provides in pertinent part: “(a) The commissioner of environmental protection may issue, deny, modify, renew, suspend, revoke or transfer a permit, under such conditions as he may prescribe and upon submission of such information as he may require, for the construction, alteration and operation of solid waste facilities, in accordance with the provisions of this chapter and regulations adopted pursuant to this chapter. . . .
      “(b) No solid waste facility shall be built or established and no solid waste facility -without a permit to construct shall be altered after July 1, 1971, until the plan, design and method of operation of such facility have been filed with the department and approved by the commissioner by the issuance of a permit to construct, provided, nothing in this chapter or chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. The commissioner shall send a written notification of any application for a permit to construct to the chief elected official of each municipality in which the proposed facility is to be located, within five business days of the date on which any such application is filed. . . .”
      General Statutes § 22a-174 (c) provides in pertinent part: “The commissioner shall have the power, in accordance with regulations adopted by him, (1) to require that a person, before undertaking the construction, installation, enlargement or establishment of a new air contaminant source specified in the regulations adopted under subsection (a), submit to him plans, specifications and such information as he deems reasonably necessary relating to the construction, installation, enlargement, or establishment of such new air contaminant source; (2) to issue a permit approving such plans and specifications and permitting the construction, installation, enlargement or establishment of the new air contaminant source in accordance with such plans, or to issue an order requiring that such plans and specifications be modified as a condition to his approving them and issuing a permit allowing such construction, installation, enlargement or establishment in accordance therewith, or to issue an order rejecting such plans and specifications and prohibiting construction, installation, enlargement or establishment of a new air contaminant source in accordance with the plans and specifications submitted . . . .”
      General Statutes § 22a-430 (a) provides in pertinent part: “No person or municipality shall initiate, create, originate or maintain any discharge of water, substance or material into the waters of the state without a permit for such discharge issued by the commissioner. ...”

       General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       With respect to the application for a water discharge permit, the commissioner ordered the defendants to submit their construction plans and specifications to the water compliance unit of the DEP for review. The commissioner stated that, following review and approval of the plans and specifications by the water compliance unit and construction of the facility in accordance with such approval, a water discharge permit would be issued.

       Section 22a-209-4 (b) of the Regulations of Connecticut State Agencies provides in pertinent part: “The information required to be in an application for a permit to construct shall depend upon the type of solid waste facility proposed. Such information shall be outlined in these regulations and further detailed in guidelines prepared by the Department. The information in the application must be sufficient to demonstrate the ability of the facility to comply with the requirements of these regulations. An application will not be deemed complete until all information required by statutes or regulations or otherwise requested by the Commissioner have been submitted in proper form.
      “(1) Application for each solid waste facility permit to construct shall be made by the owner or operator of the facility on forms furnished by the Commissioner and signed by the owner and, if the applicant is the operator, the operator, and shall include but not be limited to the following as the Commissioner deems necessary:
      “Information required by the Rules of Practice of the Department; name and address of the operator, owner, and, if the operator or owner is a business entity, the names and addresses of all parent and subsidiary corporations, partners, corporate officers and directors, stockholders holding more than fifty percent of the stock of the corporation; a list of all solid waste facilities which each of the above persons are or have been associated with and their positions and responsibilities; name and address of the agent for service; facility location; type of facility; type of proposal (e.g. new facility, expansion or other alteration); a list of other permits required for the facility; an explanation of how the proposal relates to the State Solid Waste Management Plan; information as to the financial stability of the applicant; a commitment to post the proper surety if required by these regulations; a copy of any lease, deed or other agreement regarding the ownership, control or use of the facility; a list of any outstanding administrative orders against the facility; a list of supporting materials submitted with the application; and any other information which the Commissioner deems necessary.
      “(2) A facility plan, including engineering studies and proposals, shall accompany the application and be prepared by an engineer licensed to practice in the State of Connecticut; shall contain sufficient information to demonstrate an ability to comply with these regulations; and shall include but not be limited to the following information and supporting materials as the Commissioner deems necessary and as further detailed in engineering guidelines provided by the Commissioner:
      “(A) For solid and special waste disposal areas:
      “(i) a detailed area map at a scale and contour interval approved by the Commissioner which shall depict the site and surroundings within one-half mile, noting natural and artificial features and land use; including but not limited to all structures and overhead and underground utilities and a statement by each affected utility that the proposed activity adequately protects these utilities in compliance with applicable standards;
      “(ii) detailed site maps at a scale and contour interval approved by the Commissioner depicting all items specified in (A) (i) above and existing, site preparation, and final grades, property boundaries, existing and proposed fill limits including location of fill limit markers, soil boring and monitoring locations, proposed structures on site, access and site roads, fencing, buffer zones and screening;
      “(iii) cross sections through the site, at a minimum of one parallel and one perpendicular to ground water flow, depicting existing, site preparation and final grades and elevation and flow direction of ground water, type and structure of bedrock and type and location of soils.
      “(iv) supplemental maps and plans not prepared as part of the engineering study but used as reference materials for engineering and operational interpretations;
      “(v) hydrogeologic and geologic information including predictions of movement of and impact on surface and ground water, including water supply wells, from existing and proposed site activities, and the names and addresses of all landowners within the area of potentially impacted ground waters, detailed soil boring logs; details of monitor well construction and development, the method of testing and testing results;
      “(vi) operational plans suitable for field use by the operator including but not limited to details of construction, sequence of fill, a list of the type and amount of equipment and the number and responsibilities of staff, daily operations, traffic flow, controls necessary to protect the public health, safety and welfare, emergency procedures, communications equipment, regular maintenance schedules, information to be recorded and recording procedures, and methods of measuring waste, and monitoring parameters and schedule;
      “(vii) a discussion of expected site life and post-closure use; and
      “(viii) any other information which the Commissioner deems necessary.
      “(B) For transfer stations, resources recovery facilities or other volume reduction plants, and biomedical waste treatment facilities:
      “(i) all applicable information required under Section 22a-209-4 (b) (2) (A) of these regulations;
      “(ii) detailed drawings and specifications of site structures, all fixed and transport equipment, methods of volume reduction and storage, and a discussion of utility provision;
      “(in) approximate volume of each waste type to be handled, a list of types of facility users and municipalities served, associated facilities for the ultimate disposal of the wastes, residues, and recycled materials, and contingency plans for periods of shut down or breakdown;
      “(iv) a copy of all facility operation and maintenance manuals, and a discussion of: OSHA requirements and how these requirements will be met, materials and energy balance as appropriate, proposed performance tests, system reliability and redundancy/backup system, operation and maintenance budget; and
      “(v) any other information which the Commissioner deems necessary.”

       The plaintiffs’ assertion that the defendants’ application was incomplete is based on the absence of the following: (1) a list of solid waste facilities with which Ref-Fuel is associated; (2) information as to Ref-Fuel’s financial stability; (3) hydrogeologic and geologic information about the facility, specifically, the proposed location of soil borings and information about the soil pertaining to foundation design; (4) detailed information concerning the operation and maintenance of the facility; and (5) information identifying the location for the ultimate disposal of ash residue and bypass waste produced by the facility. See Regs., Conn. State Agencies § 22a-209-4 (b).

       Our rules of statutory construction apply to administrative regulations. See Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 641, 687 A.2d 415 (1991); see also Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 228, 497 A.2d 1005 (1985).

       Particulate matter measuring less than ten microns in diameter, PMio, is a pollutant, the emission of which is subject to regulation under the Clean Air Act. 42 U.S.C. § 7401 et seq. (1988); see 40 C.F.R. § 52.21 (b) (23) (i) (1990).

       With respect to PM10, “a significant amount” is the potential to emit 15 tons per year. See 40 C.F.R. § 52.21 (a) (23) (i) (1990). It is undisputed that the facility has the potential to emit PMi0 in significant amounts.

       Ambient air quality is a classification of the air based on the level of pollutants that are present. 1 F. Grad, Treatise on Environmental Law § 2.03, p. 2-82. Under the Clean Air Act, the administrator is required to establish standards of ambient air quality for designated regions of the United States that the states are required to implement, maintain and enforce pursuant to state implementation plans. Id.; see also 42 U.S.C. §§ 7409, 7410 (1988). The prevention of significant deterioration of the ambient air quality (PSD) is an express policy of the Clean Air Act. See 42 U.S.C. § 7471 (1988); see also 1 F. Grad, supra, § 2.03 [b], p. 2-170. The requirements of 40 C.F.R. § 52.21 (c) through (m), (p) (1990), are designed to ensure PSD.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. William H. Bethea
    Decided February 28, 1991

      William A. Collier, special public defender, in support of the petition.

      James M. Ralls, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 13, is denied.


text:
    Augustus J. Simmons v. State of Connecticut
    Decided February 28, 1991

      Otto P. Witt, in support of the petition.

      Arnold K. Shimelman, assistant attorney general, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 801, is denied.


text:
    Ruth Dorsett v. General Dynamics Corporation
    Decided March 7, 1991

      John W. Grenier, in support of the petition.

      Robert M. Fitzgerald, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 827, is denied.


text:
    State of Connecticut v. Charles S. Lange
    Decided March 14, 1991

      Charles S. Lange, pro se, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 807, is denied.


text:
    State of Connecticut v. Viola Crumble
    Decided March 14, 1991

      John R. Williams, in support of the petition.

      Marjorie Allen Dauster, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 57, is denied.


text:
    Michael C. Ruotolo v. Boyer Realty Management, Inc.
    Decided March 14, 1991

      Michael C. Ruotolo, pro se, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 806, is denied.


text:
    State of Connecticut v. Jeffrey Membrino
    Decided March 14, 1991

      A. Paul Spinella, in support of the petition.

      Rita M. Shair, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 811, is denied.


text:
    ABF Freight System, Inc. v. Edward Ochman
    Decided March 14, 1991

      Gregory P. Lynch, in support of the petition.

      Richard J. Shapiro, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 812, is denied.


text:
    State of Connecticut v. Richard L. Clark
    Decided March 21, 1991

      Lauren Weisfeld, assistant public defender, in support of the petition.

      Leon F. Dalbec, Jr., assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 115, is denied.


text:
    Clarette Lemonious v. J. William Burns, Commissioner of Transportation, et al.
    Decided March 27, 1991

      Louis B. Blumenfeld, in support of the petition.

      Allisan L. Adams, in opposition.
   The defendant commissioner of transportation’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 735, is denied.


text:
    Morton Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., et al.
    Decided March 27, 1991

      William F. Gallagher, in support of the petition.

      Carl A. Secola, Jr., in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 24 Conn. App. 99, is denied.


text:
    Boyer Agency, Inc. v. Paul Beletsky et al.
    Decided March 27, 1991

      Raymond L. Baribeault, Jr., in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 812, is denied.


text:
    In re Sean H. et al.
    Decided March 27, 1991

      David B. Rozwaski, in support of the petition.

      Melissa A. Buckley and Linda Pearce Prestley, assistant attorney general, in opposition.
   The respondent Albert Harris’ petition for certification for appeal from the Appellate Court, 24 Conn. App. 135, is denied.


text:
    State of Connecticut v. Carl Nesmith
    Decided April 11, 1991

      James N. Crane, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 158, is granted, limited to the following issue:

“In the circumstances of this case, was the defendant entitled to have the trial court instruct the jury, in accordance with his request, on the doctrine of nonexclusive possession of the premises?”


text:
    E. Janice Augeri v. Planning and Zoning Commission of the City of Middletown et al.
    Decided April 11, 1991

      Gerald L. Garlick, in support of the petition.

      Trina A. Solecki, city attorney, and JohnH. Hanks, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 172, is denied.


text:
    Savings Bank of Manchester v. Robert J. Sheridan et al.
    Decided April 11, 1991

      Steven R. Dernbo, in support of the petition.

      Elliot G. Macht, in opposition.
   The defendants Robert J. Sheridan and Carol A. Sheridan’s petition for certification for appeal from the Appellate Court is denied.


text:
    The Connecticut National Bank and Trust Company, N.A. v. William L. Wollenberg et al.
    Decided April 11, 1991

      Richard P. Weinstein, in support of the petition.

      Thomas W. Witherington, in opposition.
   The defendant William W. Berman’s petition for certification for appeal from the Appellate Court is denied.


text:
    Katherine G. Ivimey et al. v. American Bank of Connecticut
    Decided April 11, 1991

      Katherine G. Ivimey, pro se, and John R. Ivimey, pro se, in support of the petition.

      Scott A. Garver, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court is dismissed.


text:
    Greenwich Federal Savings and Loan v. Olf Veldhuis et al.
    Decided April 11, 1991

      Lydia B. Veldhuis, in support of the petition.

      Scott E. Ivey and Peter M. Ryan, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Richard J. Tanzella
    Decided April 11, 1991

      Jon L. Schoenhorn, in support of the petition.

      Jack W. Fischer, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    State of Connecticut v. Charles Burke
    Decided April 11, 1991

      Charles Burke, pro se, in support of the petition.

      Jacqueline J. Footman, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 528, is denied.


text:
    Georgia Kilpatrick v. Connecticut Education Association, Inc.
    Decided April 11, 1991

      Georgia Kilpatrick, pro se, in support of the petition.

      William J. Dolan, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 23 Conn. App. 727, is denied.


text:
    Todd Lavigne v. Warden, State Prison
    Decided April 11, 1991

      Louis S. Avitabile, in support of the petition.

      Jack W. Fischer, deputy assistant state’s attorney, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 24, is denied.


text:
    Mary Lou Matey v. City of Waterbury et al.
    Decided April 11, 1991

      Laurence V. Parnoff, in support of the petition.

      Michael J. Belzer, assistant attorney general, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 93, is denied.


text:
    State of Connecticut v. Jose Cotto
    Decided April 11, 1991

      Brian M. O’Connell, in support of the petition.

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 801, is denied.


text:
    The Chase Manhattan Bank, N.A. v. Stephanie W. Shea
    Decided April 15, 1991

      Stephen R. Humphery, in support of the petition.

      Deborah L. Magnotta, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 169, is denied.


text:
    State of Connecticut v. Ronald Moody
    Decided April 18, 1991

      Christine Perra, in support of the petition.

      James A. Killen, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    Manuel Fernandes et al. v. Zoning Board of Appeals of the City of Bridgeport et al.
    Decided April 18, 1991

      J. Roger Shull, in support of the petition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 24 Conn. App. 49, is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that the trial court should not have sustained the appeal because there had been no material change of circumstances since the denial of a previous application concerning the same property?
“2. Was the record before the Appellate Court adequate for the purpose of considering the plaintiffs’ claim that the variance was granted in violation of certain provisions of the Bridgeport zoning regulations?”


text:
    State of Connecticut v. David Farr
    Decided April 18, 1991

      Arthur P. Meisler, in support of the petition.

      Timothy J. Sugrue, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 259, is denied.


text:
    State of Connecticut v. Clyde Turner
    Decided April 18, 1991

      Susan M. Hankins, assistant public defender, in support of the petition.

      Mary H. Lesser, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 264, is denied.


text:
    Alice Freeman v. Alamo Management Company et al.
    Decided April 26, 1991

      Joseph Procopio, in support of the petition.

      Thomas W. Calkins, in opposition.
   The defendants Alamo Management Company and Duane Boise’s and the plaintiff Alice Freeman’s petitions for certification for appeal from the Appellate Court, 24 Conn. App. 124, are granted, limited to the following issues:

“1. What is the standard of proof for double damages arising out of the violation of the unlawful entry and detainer statute?
“2. Did the trial court apply the appropriate standard of proof?
“3. If the trial court applied the wrong standard of proof, is a retrial limited to damages appropriate?”


text:
    Philip C. Ferraro v. Rocco T. Lauretti et al.
    Decided April 26, 1991

      Ronald Petosa, in support of the petition.

      Edward W. Gasser, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 24 Conn. App. 818, is denied.


text:
    State of Connecticut v. Eric Anthony
    Decided April 26, 1991

      Roger J. Frechette, in support of the petition.

      RitaM. Shair, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 195, is dismissed.


text:
    State of Connecticut v. David A. Palangio
    Decided May 2, 1991

      Thomas K. McDonough, in support of the petition.

      Paul J. Ferencek, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 300, is denied.


text:
    State of Connecticut v. Menaces Torres
    Decided May 2, 1991

      Suzanne Zitser, assistant public defender, in support of the petition.

      James A. Kitten, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 316, is denied.


author: Glass, J.

text:
    Frank Oakes v. New England Dairies, Inc.
    (14179)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued February 21
    decision released May 28, 1991

      Clifford J. Grandjean, for the appellant (defendant).

      Anne Goldstein, with whom was Jonathan L. Gould, for the appellee (plaintiff).
   Glass, J.

The plaintiff, Frank Oakes, commenced this action in the Superior Court alleging that the defendant, his former employer, New England Dairies, Inc., had discharged him for exercising his workers’ compensation rights in violation of General Statutes § 31-290a. After the jury returned a verdict awarding the plaintiff $67,500 in economic damages and $97,500 in noneconomic damages, the defendant moved for a new trial, to set aside the verdict, for judgment notwithstanding the verdict and for a remittitur. The trial court denied the motions and rendered judgment on the verdict for the plaintiff. In addition, the court awarded the plaintiff $40,000 in attorney’s fees and granted his motion for reinstatement to his former position. The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

On appeal, the defendant claims that the trial court improperly: (1) instructed the jury as to the plaintiff’s burden of proof under § 31-290a as well as the measure of the plaintiff’s damages for lost wages; (2) instructed the jury respecting the plaintiff’s burden of proving damages for emotional distress; (3) refused to set aside the verdict or order a remittitur because the verdict was contrary to the law and the evidence; and (4) ordered the plaintiff reinstated to his former position without inquiring into whether such relief was appropriate.* We affirm.

The jury could reasonably have found that for approximately eleven years prior to May 10,1985, the plaintiff had been employed by the defendant as a route truck driver. His primary task was to deliver milk products to the defendant’s customers along a designated route. In 1978, the plaintiff injured his knee when he slipped in snow while unloading his truck. From 1980 to 1985, the plaintiff suffered several additional injuries in the course of this employment for which he missed approximately thirty-eight weeks of work and collected workers’ compensation benefits. The plaintiff’s concern with “losing time” prompted him some months before his discharge to approach Russell Roly, the defendant’s vice president of distribution, with a request for a “job inside.” Roly informed the plaintiff that a position in the defendant’s shipping department might be available, but both Roly and the plaintiff agreed that such a position would be more difficult for the plaintiff.

On May 6,1985, following a ten week absence caused by one of his injuries, the plaintiff was summoned to a meeting in Roly’s office. Roly handed the plaintiff a memorandum entitled “Excessive Personal Injuries” that described each of the plaintiff’s injuries and listed the corresponding number of weeks of workers’ compensation benefits collected by him. The plaintiff was informed that the defendant’s workers’ compensation carrier had been “putting pressure” on the defendant because of the number of injuries he had suffered, and he was given a choice between resignation and discharge. After consulting an attorney, the plaintiff informed Roly on May 10, 1985, that he had decided not to resign. Roly handed the plaintiff a second memorandum stating in part that it was “the opinion of [the defendant] that your chronic knee condition has rendered you unable to perform your duties assigned to you.” The plaintiff was then formally discharged. Accordingly, the plaintiff’s medical, dental and life insurance coverage, as well as his vested pension rights, were terminated.

After his discharge, the plaintiff felt “desolate.” He testified regarding his emotional state as follows: “I just didn’t know what I was going to do because the only thing I knew how to do was drive; and I was forty-eight years old, and I was worried about when I go look for a job, not only my age, they’re going to say, ‘You worked eleven years at a place. Why did you leave?’ And, ‘I was fired.’ ... I was depressed, I was sick over it.” The plaintiff’s depression manifested itself in stomach pains and he “passed out” on two occasions. The plaintiff’s physician prescribed valium for his depression, and he took nonprescription medication for his stomach pains, which continued up to and including the date of trial.

The plaintiff’s discharge also led to a search for alternative employment that he described as a “nightmare.” The plaintiff’s applications for employment at forty-four places of business were rejected before he finally secured a position in September, 1985, at the Douglas Battery Manufacturing Company. After almost two years in that position, the plaintiff was intermittently unemployed or employed at various other places of business. In all of his postdischarge positions, the plaintiff earned less money than he would have earned if he had continued to work for the defendant. He never obtained a position that included pension benefits, and some of his positions did not include medical or life insurance coverage. The plaintiff was unemployed at the time of trial. In the plaintiff’s view, “people wouldn’t hire [him]” due to his “age” and “the reason [he had] lost” his position with the defendant.

I

The defendant initially claims that the court improperly failed to instruct the jury on the plaintiff’s burden of proof in a § 31-290a action and the calculation of the plaintiff’s damages for lost wages. The plaintiff responds that these claims are unpreserved, and hence unreviewable, because the defendant either did not request the particular instructions alleged to have been improperly omitted or did not take exception to the charge as given. Agreeing with the plaintiff, we do not reach the merits of the defendant’s claims.

This court is not bound to consider claims challenging the failure to give an instruction “unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.” Practice Book § 315. An exception to a charge serves to alert the court to any claimed deficiency in the charge while there is still time for the court to take appropriate remedial action. See Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 237-38, 520 A.2d 1008 (1987). “ ‘The time has long since passed when a party can sit silent at the close of a charge and, if the verdict proves unpalatable, thereafter for the first time raise claims of error based on obvious inadvertencies in the charge.’ ” Scott v. Barrett, 212 Conn. 217, 222-23, 561 A.2d 941 (1989). Furthermore, a party may not secure a reversal on the basis of an alleged instructional defect induced by his own actions. Id., 222; see Thompson v. Thompson, 183 Conn. 96, 99, 438 A.2d 839 (1981).

The defendant contends that the court improperly failed to instruct the jury that it was the plaintiff’s ultimate burden in a § 31-290a action to prove that he “was the victim of discrimination ‘either directly by persuading [the jury] that a discriminatory reason more likely motivated the [defendant] or indirectly by showing that the [defendant’s] proffered explanation is unworthy of credence.’ ” Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 54, 578 A.2d 1054 (1990). The defendant’s request to charge with respect to the burden of proof, however, allocated to itself the burden of proving “that it terminated the plaintiff for reasons other than his filing a workers’ compensation claim” and “that the reason was more than a pretext . . . .’’In accordance with the defendant’s request, the court allocated this burden to the defendant in its instructions, and the defendant did not object or take an exception. Even if we were to assume that the court’s instruction were incorrect, therefore, the defendant, having induced the court to give the instruction, cannot obtain a reversal on the ground that it was given in lieu of an instruction allocating the burden of proof to the plaintiff.

As for the defendant’s claim that the court improperly omitted an instruction that, in calculating the plaintiff’s lost wages, the jury should consider what portion of the loss was caused by his physical problems and employment preferences subsequent to his discharge, the defendant did not request such an instruction, and, again, the defendant did not take exception to the charge as given. The defendant’s posttrial motions, moreover, were not, as claimed, the functional equivalent to an exception to the charge. See State v. Dabkowski, 199 Conn. 193, 198, 506 A.2d 118 (1986). Since the motions were filed subsequent to the verdict, they did not provide the court with a timely opportunity to remedy any omission determined improper. See Scott v. Barrett, supra, 222-23. At this late date, we, therefore, are not bound to consider the propriety of the omission. Practice Book § 315.

Finally, we reject the defendant’s contention that either of the above claims are reviewable as plain error under Practice Book § 4185. We are not persuaded that the interests of justice require a review of the defendant’s claim regarding the omission induced; see Scott v. Barrett, supra; nor do we find, after a careful review of the record, that the omission with respect to the calculation of the plaintiffs lost wages impaired the effectiveness or integrity of the trial. See State v. Foreshaw, 214 Conn. 540, 547, 572 A.2d 1006 (1990). Consequently, we decline to review the defendant’s claims on their merits.

II

The defendant next challenges another omission in the court’s instructions to the jury. The defendant’s claim, as refined at oral argument, is that the court improperly failed to instruct the jury that the plaintiff was not entitled to recover damages for emotional distress unless he proved the defendant’s common law liability for the tort of intentional infliction of emotional distress. To the extent that the defendant requested such an instruction, it was properly refused.

The plaintiffs action against the defendant was premised upon the defendant’s violation of § 31-290a, a statutorily created tort action derived from the common law action for wrongful discharge. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 52. Section 31-290a (b) permits a plaintiff who establishes his or her employer’s liability under the statute to recover “other damages,” including damages for emotional distress, that are “caused by such discrimination or discharge.” See id., 62. Unlike the defendant, we do not construe the statutory term “caused” to encumber a plaintiff seeking damages for emotional distress as recompense for his or her employer’s violation of § 31-290a with the additional burden to prove the employer’s liability for the distinct tort of intentional infliction of emotional distress. We conclude, rather, that the term “caused” in § 31-290a embodies the common law principle that “damages recoverable in tort must be proximately caused by a defendant’s tortious conduct”; (emphasis added) Solomon v. Aberman, 196 Conn. 359, 385, 493 A.2d 193 (1985); “whether or not the consequences were reasonably anticipated.” Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 689 n.3, 508 A.2d 438 (1986); see 1 Restatement (Second), Torts § 47, comment (b). In a § 31-290a action, the employer’s tortious conduct is that which is proscribed by the statute. The court’s refusal to deliver a legally incorrect instruction to the jury does not constitute a ground for reversal. See Slicer v. Quigley, 180 Conn. 252, 258, 429 A.2d 855 (1980).

Ill

The defendant next claims that the court should have set aside the verdict or ordered a remittitur because the verdict of $67,500 in economic damages and $97,500 in noneconomic damages was contrary to the law and the evidence. We consider the economic and noneconomic components of the verdict separately below.

A

The defendant argues that the portion of the $67,500 economic damage award representing the plaintiffs lost wages was inflated due to improper calculation. In particular, the defendant asserts that certain evidence demonstrated the plaintiffs physical inability to perform the duties of a route truck driver at the time of his discharge and thereafter. The defendant thus maintains that the jury improperly determined the plaintiffs lost wages by comparing the wages earned by a route truck driver during the period of discharge with the wages actually earned by the plaintiff during that period. In the defendant’s view, the wage loss differential should have been narrowed to account for the plaintiff’s physical incapacity. We are unpersuaded.

In evaluating the defendant’s claim, we find the court’s jury charge regarding the calculation of economic damages instructive. The court admonished the jury that if it were to award the plaintiff damages for lost wages, the award should reflect “the difference of what he would have been able to earn since he was discharged . . . and what he would have earned if he continued to work for the defendant.” The court then referred to exhibits in evidence indicating that the driver who had replaced the plaintiff had earned $122,411.42 from the date of the plaintiff’s discharge, and that the plaintiff had earned $55,393.12 from that date. The difference between these figures, as the court pointed out, was $67,018.30. Other economic losses were identified by the court as totaling $506.24, and it was suggested that the jury might round off its economic damage award, if any, to $67,500. The defendant did not object or take exception to this charge. As noted above, the jury returned a verdict awarding the plaintiff economic damages in the amount of $67,500.

“By failing to take an exception to the court’s charge to the jury, the [defendant] accepted the instructions as the law of the case.” A-G Foods, Inc. v. Pepperidge Farms, Inc., 216 Conn. 200, 212, 579 A.2d 69 (1990). “It necessarily follows that a verdict rendered in accordance with the unexcepted-to charge of the court is not a verdict contrary to the law.” Lengel v. New Haven Gas Light Co., 142 Conn. 70, 77, 111 A.2d 547 (1955). “ ‘The jury were bound to follow the court’s instructions and to bring in a verdict for the plaintiff consistent with them, or a verdict for the defendants.’ Rosenblatt v. Berman, 143 Conn. 31, 37,119 A.2d 118 (1955). We must view the claim of insufficiency of the evidence in light of the law of the case.” A-G Foods, Inc. v. Pepperidge Farms, Inc., supra.

The jury’s economic damage award was entirely consistent with the court’s unchallenged instructions. Furthermore, the defendant has not identified any evidence that it introduced in contradiction to the exhibits indicating the wages of the replacement driver and the plaintiff that the court referred to in its charge. Construing the evidence in the light most favorable to sustaining the verdict; Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991); the jury could reasonably have found that the plaintiff was entitled to the amount of economic damages awarded. We therefore conclude that the verdict with respect to economic damages was not contrary to the law or the evidence. Accordingly, the court properly declined to set aside the verdict or to order a remittitur on this ground.

B

With respect to the verdict of $97,500 in noneconomic damages, the defendant’s principal challenge is based on the plaintiff’s failure to introduce “expert medical testimony” or “medical or psychiatric care bills” to substantiate his claim of emotional distress. The defendant also argues that the “size” and the “characterization” of the award, that is, “pain-and-suffering,” suggest that the jury “may not have limited the award solely to the emotional distress arguably attributable to retaliation for filing a workers’ compensation claim.” We do not agree.

While it is true that the jury foreperson labeled the noneconomic component of the damage award “pain- and-suffering,” we do not consider this circumstance to make it manifest that the jury included in the award “items of damage which are contrary to law.” Tomczuk v. Alvarez, 184 Conn. 182, 188, 439 A.2d 935 (1981). The court unambiguously instructed the jury that the “only” noneconomic item of damage awardable was “damages for mental suffering and emotional distress.” Other than this item and the economic items of damage identified in the charge, the court cautioned: “You are not to concern yourselves with any other subject matter as far as damages are concerned.” We presume that, as instructed, the jury limited its consideration of noneconomic damages to the emotional distress alleged by the plaintiff, and we are unpersuaded that what appears to be the foreperson’s accidental mislabeling of the award amounts to “a fair indication to the contrary . . . .” State v. Ortiz, 217 Conn. 648, 669, 588 A.2d 127 (1991).

As for the plaintiff’s evidence in support of his claim for damages for emotional distress, the court was obliged, when ruling on the defendant’s motions to set aside the verdict and for a remittitur, to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby. Bartholomew v. Schweizer, supra. “ ‘The size of the verdict alone does not determine whether it is excessive. “The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” ’ ” Id. Every reasonable presumption in favor of the correctness of the court’s refusal to set aside the verdict as excessive should be indulged; Todd v. Glines, 217 Conn. 1, 5, 583 A.2d 1044 (1991); and its ruling will not be disturbed unless there is a clear abuse of discretion. Bartholomew v. Schweizer, supra. We perceive no such abuse here.

We have already set forth the facts, viewed in the light most favorable to sustaining the verdict, that the jury could reasonably have found. In sum, we repeat here that from the plaintiff’s testimony, the jury could have determined that he had suffered significant emotional distress and feelings of desperation as a result of his discharge, his concomitant loss of benefits and the termination of his vested pension rights. The plaintiff’s precarious mental condition, necessitating prescription medication, also manifested itself in physical illness and discomfort. His futile four year search for employment as beneficial and financially secure as his former position was accompanied by numerous humiliating rejections which caused recurring physical problems and led to further emotional distress. We have previously rejected the proposition that proof of the existence of emotional distress requires expert testimony; see Aspiazu v. Orgera, 205 Conn. 623, 631, 535 A.2d 338 (1987); see also LaBieniec v. Baker, 11 Conn. App. 199, 204, 526 A.2d 1341 (1987). Similarly, an award may be valid even though it is not substantially based on incurred medical expenses. See Manning v. Michael, 188 Conn. 607, 616, 452 A.2d 1157 (1982). “The test is whether the amount awarded, aside from medical expenses, ‘ “falls within the necessarily uncertain limits of just damages . . . .” ’ ” Id.

Given the plaintiffs age, the emotional and physical effects of his discharge and his endurance of a prolonged period of uncertainty as to his future financial security, we cannot say that the verdict, while generous, failed to meet that test. Like the trial court, we conclude that the award was not so large as to shock this court’s sense of justice or to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. Bartholomew v. Schweizer, supra, 688-89.

IV

Finally, the defendant claims that the trial court improperly granted the plaintiff’s motion for reinstatement to his former position pursuant to § 31-290a (b) without first inquiring into whether such relief was appropriate. In support of this claim, the defendant directs our attention to a number of federal cases holding that reinstatement is inappropriate if the position sought no longer exists, an innocent incumbent would be displaced or excessive friction between employee and employer would result. The defendant further relies on federal precedent to the effect that where reinstatement is inappropriate, a court may award damages in lieu thereof.

The defendant cannot prevail on this claim because it has not fulfilled its duty to provide an adequate record for appellate review. See Practice Book § 4061. Specifically, the defendant has not provided us with the transcript of the hearing on the plaintiff’s motion, and, therefore, we are unable to determine whether or to what extent the court inquired into the appropriateness of reinstatement. In the absence of any indication in the record that the court did not so inquire, the defendant’s claim necessarily fails.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 31-290a provides in pertinent part: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
      “(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court . . . .”

       The defendant also asserts that the court improperly awarded the plaintiff $40,000 in attorney’s fees. Since the defendant indicates in its brief that it challenges the award of fees “only to the extent” that it is based on the verdict claimed excessive, and we conclude that the verdict was not excessive, we have no occasion to consider this claim.
      As for the defendant’s contention that the court improperly denied his motions for a new trial, to set aside the verdict, for judgment notwithstanding the verdict and for a remittitur, its brief addresses only the denial of the latter three motions insofar as the court failed to find the verdict excessive in light of the evidence. We consider the alleged excessiveness of the verdict and the evidence in support thereof in connection with the defendant’s third issue on appeal and deem abandoned any unbriefed claims with respect to the court’s rulings.

       The April 2,1985 memorandum stated in pertinent part: “A review of your accidents indicate to me that you are not a safe worker, that you take no precautions in these situations to protect yourself or the Company’s interest. You have indicated that you have a problem with your knees, perhaps this is a contributing factor to your accident history.
      “[The defendant’s] position in this matter due to the high exposure with our insurance carrier in the past and . . . potential claims in the future would be: (A) Receive your written resignation effective immediately; (B) Discharge from New England Dairies, Inc. employment immediately and forfeiture of all vacation and sick leave benefits. Under Article XIII, Physical Qualification of Employees. It is unfortunate that we are left with these alternatives.”

       The May 10, 1985 memorandum stated in relevant part: “In accordance with Article XIII of the Labor Agreement all employees must be physically qualified to perform the duties required of them. It is the opinion of [the defendant] that your chronic knee condition has rendered you unable to perform your duties assigned to you. Under Article XIII, you must be qualified to perform as a route driver and that hazards encountered each day such as ice, snow, climbing up and down on your truck and making deliveries to customers, all have led to a series of personal accidents with extended lost time.
      “The first conclusion is that you have made little effort to protect yourself or the Company’s interest. But on the other hand, as you stated in our discussion that the normal hazards can cause your knee to fail and allow you to fall or slip. A review of your accidents indicates your chronic knee condition which you have indicated to me, is the contributing factor. It is apparent that under Article XIII that you are not physically qualified to perform your duties and the general work environment of lifting, climbing up and down, etc., offers no other suitable employment due to your knee problem . . . .”

       See footnote 1, supra.

       The defendant’s request to charge reads in pertinent part: “To prevail, New England Dairies would have to satisfy you that it terminated the plaintiff for reasons other than his filing a workers’ compensation claim. Though it would have to show that the reason was more than a pretext, it would not have to establish that the grounds for the plaintiff’s termination amounted to ‘just cause’ under the Collective Bargaining Agreement.”
      Mirroring the language of this request, the court charged the jury that “to prevail New England Dairies would have to satisfy you that it terminated the plaintiff for reasons other than this exercise of rights under the Workers’ Compensation Act.”

       Practice Book § 4185 states: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial onarose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objections or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”

       The defendant’s request to charge reads, in pertinent part: “In order to recover from [sic] emotional distress, you must find that the defendant should have realized that its conduct involves an unreasonable risk of causing emotional distress and that, this distress if it were a cause might result in an illness or bodily harm.” Citing Murray v. Bridgeport Hospital, 40 Conn. Sup. 56, 62, 480 A.2d 610 (1984), the defendant now claims that the court should have instructed the jury that the plaintiff could not recover damages for emotional distress unless he proved: “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress, and (4) that the emotional distress sustained by the plaintiff was severe.”

       See footnote 1, supra.

       For these propositions, the defendant cites the following cases. Cassino v. Reichold Chemicals, Inc., 817 F.2d 1338 (9th Cir. 1987), cert. denied, 484 U.S. 1047, 108 S. Ct. 785, 98 L. Ed. 2d 870 (1988); Briseno v. Central Technical Community College Area, 739 F.2d 344 (8th Cir. 1984); Cancellier v. Federated Department Stores, 672 F.2d 1312 (9th Cir.), cert. denied, 459 U.S. 859, 103 S. Ct. 131, 74 L. Ed. 2d 113 (1982); Kiel v. Goodyear Tire & Rubber Co., 575 F. Sup. 847 (N.D. Ohio 1983), aff’d, 762 F.2d 1008 (6th Cir. 1985); Bitsouni v. Sheraton Hartford Corporation, 37 Fed. R. Serv. 2d 1248 (D. Conn. 1983).


author: Borden, J.

text:
    State of Connecticut v. Ricardo Montanez
    (13750)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued March 26
    decision released May 28, 1991

      Patricia A. King, special public defender, with whom, on the brief, was William F. Gallagher, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Brown, state’s attorney, and Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant, Ricardo Montanez, appeals from the judgment of conviction, after a jury trial, of murder in violation of General Statutes § 53a-54a (a). He claims that the trial court improperly: (1) denied his motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that he intended to kill the vietim; (2) refused to charge the jury on the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l); and (3) admitted a prior consistent statement of a witness for the state. We affirm the judgment.

The jury reasonably could have found the following facts. The victim, William McDougall, who lived in Fair-field, drove into Bridgeport in an attempt to retrieve money for a friend who had been cheated in a drug transaction. McDougall arrived at Clinton Avenue, where a group of people were standing in the street. McDougall backed his car into the group, knocking down one person who was on a bicycle, and then drove down the street, hitting a telephone pole at the corner of Clinton Avenue and Railroad Avenue. Four of the people in the group, including James Brown and Ilideo Leite, ran after McDougall, who had exited his car and was walking away. The four caught McDougall and beat him with a pipe until he fell to the ground.

As Brown turned and walked away, the defendant ran by him with a gun in his hand. The defendant ran to a point approximately two feet from where McDougall was lying on the ground, and fired two shots at McDougall in rapid succession, one of which hit him in the right leg. The defendant then stopped Leite, who had started to run away, and handed him the gun. Leite went to the defendant’s house, and, when the defendant arrived there, Leite returned the gun to him and left. Although the gun was never recovered, two shell casings were found at the scene. McDougall died later that day in the hospital, after suffering a massive loss of blood. The cause of death was the gunshot wound to his right leg, which had nearly severed his right femoral artery, the main artery for carrying blood to the lower leg and foot.

The defendant first claims that the evidence was insufficient to establish that he had acted “with intent to cause the death of” McDougall, as required by General Statutes § 53a-54a (a). He argues that Brown and Leite, who were the only witnesses to the shooting, “gave widely divergent and incomplete testimony” regarding the defendant’s conduct, and that neither version “providefd] evidence sufficient to support only one reasonable finding—-that the defendant specifically intended to cause McDougall’s death . . . .” This argument is without merit.

The principal difference between the testimony of Brown and that of Leite concerns the distance between the defendant and McDougall at the time of the shooting. Brown testified that the distance was two to three feet, while Leite estimated that the distance was approximately thirty feet. Because we conclude that the jury reasonably could have inferred intent to cause death from Brown’s testimony alone, we need not discuss Leite’s testimony as part of this analysis.

The two-part test for appellate analysis of a claim of evidentiary insufficiency is well established. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). It is immaterial to the probative force of the evidence that it consists, in whole or in part, of circumstantial rather than direct evidence. Id., 381. Furthermore, in determining whether the jury reasonably could have found guilt, we ask whether any rational factfinder could have done so. State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986).

“In order to be convicted under our murder statute, the defendant must possess the specific ‘intent to cause the death’ of the victim. General Statutes § 53a-54a. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11) . . . .” State v. Carpenter, 214 Conn. 77, 82, 570 A.2d 203 (1990). Ordinarily, intent can only be proved by circumstantial evidence; it may be and usually is inferred from the defendant’s conduct. Id. Intent to cause death may be inferred from “the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981); see also State v. Carpenter, supra, 82-83. Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct. State v. Amarillo, 198 Conn. 285, 300-304, 503 A.2d 146 (1986).

Brown testified that he saw the defendant in a parked car on Clinton Avenue just before McDougall backed up his car into the group of people. He also testified that he saw the defendant, gun in hand, run toward McDougall and, from two to three feet away, fire two shots in rapid succession at him as he lay motionless on the ground. The medical examiner testified that most people with the type of injury suffered by McDougall do not live long enough to get to a hospital. Based on this evidence, the jury reasonably could have con-eluded beyond a reasonable doubt that the defendant intended to cause McDougall’s death.

The defendant’s argument rests on the assertion that he hit McDougall with only one of his two shots, and that McDougall was hit in the thigh rather than “in a vital area.” The defendant claims that those facts preclude an inference that he “specifically intended to cause McDougall’s death, rather than injure or frighten him.” We disagree. While it would have been permissible to infer from those facts that the defendant intended only to injure or frighten McDougall, the evidence did not preclude the equally permissible inference that the defendant intended to kill the victim by shooting at him twice as he lay on the ground two feet away.

The defendant next claims that the trial court improperly refused his request to charge the jury on the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l). We are not persuaded.

This claim focuses on the third and fourth requirements of the well established Whistnant test for determining whether a defendant is entitled to a lesser included offense instruction. State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Those requirements are that “(3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense, but guilty of the lesser.” Id.

Manslaughter in the second degree under § 53a-56 (a) requires that a defendant “recklessly [cause] the death of another person.” A person acts “recklessly” with respect to a particular result “when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur . . . .” General Statutes § 53a-3 (13). In this case, the differentiating element between murder and manslaughter in the second degree was the defendant’s state of mind, namely, whether he intentionally killed McDougall or recklessly caused his death. “Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result.” State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986). Under the facts presented, therefore, in order for the defendant to have been entitled to the lesser included charge he requested, the evidence bearing on his state of mind must have been such that the jury reasonably could have found that he acted recklessly, rather than intentionally, with respect to McDougall’s death.

In determining whether the defendant was entitled to a lesser included offense charge, we view the evidence “in a light most favorable to the defendant’s request.” State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Evidence is “ ‘sufficiently in dispute’ where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal.” State v. Manley, 195 Conn. 567, 579, 489 A.2d 1024 (1985), quoting State v. Whistnant, supra. Nonetheless, jurors “ ‘are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence . . . from which inferences can fairly be drawn.’ ” State v. Manley, supra, quoting Schultz v. Pennsylvania R. Co., 350 U.S. 523, 526, 76 S. Ct. 608, 100 L. Ed. 668 (1956). They should not be encouraged to engage in speculation. State v. Manley, supra, 580.

The defendant relies on the following evidence to support his assertion that the jury reasonably could have concluded that the defendant acted recklessly, rather than intentionally, with respect to McDougall’s death. Leite testified that, after beating McDougall, he was walking back toward Clinton Avenue when he heard a shot. He turned around and saw the defendant approximately thirty feet away from McDougall, who was lying on the ground. After Leite had turned around, he heard another shot and saw the defendant holding a gun with two hands in front of his body, pointing it at McDougall. In addition, Leite had given two written statements to the police. In the first statement, contrary to his testimony at trial, he stated that he was not sure who had fired the shots. The defendant also relies on testimony that the two shells from the shots fired by the defendant were found approximately four feet from each other, giving rise to an inference that the defendant “was not standing in the same place when he fired both shots at McDougall.”

We conclude that, taking all this evidence in the light most favorable to the defendant, the jury could not reasonably have concluded that the defendant acted recklessly, rather than intentionally, with respect to McDougall’s death. Common sense and common understanding would preclude the conclusion that the defendant acted recklessly when he shot at the victim twice from a distance of thirty feet and when the second shot was fired from the classic firing position of holding his arms out in front of his body. Based on this evidence, an inference of reckless rather than intentional conduct would have been the result of speculation. The only question could have been whether his intent was to kill or to cause serious physical injury, and the trial court adequately protected his rights by appropriately charging on the other lesser included offenses. See footnote 4, supra.

The defendant’s final claim is that the trial court improperly admitted into evidence a written statement of Leite as a prior consistent statement. We disagree.

On direct examination, Leite testified that, as he was walking away from McDougall, he had heard a shot, had turned around, and then had seen the defendant fire the second shot at McDougall. On cross-examination, the defendant introduced, as a prior inconsistent statement, a portion of a written statement that Leite had given to the police in which he stated that “I am not sure who fired the shots but [the defendant] had this gun, it was a black 45 automatic.” On redirect examination, the state offered a second written statement of Leite, given right after the first, in which he stated that his first statement was not “the complete truth,” and that he had seen the defendant fire the gun twice at McDougall.

The defendant objected to the admission of the second statement, claiming that it was not a prior consistent statement. The court overruled the objection and admitted the second statement, and the defendant excepted. Thereafter, the court stated that, since both the first and second statements were in writing and signed by Leite, they were also admissible under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

The defendant’s argument that the second statement was not truly consistent with Leite’s testimony on direct examination and, therefore, was not admissible as a prior consistent statement misses the mark. In Whelan, we “adopt[ed] ... a rule allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” Id., 753. The rationale for that rule is that its requirements—that the declarant testify and be subject to cross-examination, that he have personal knowledge of the facts stated, and that the statement be in writing and signed by him—justified “an exception to the hearsay rule . . . to allow the trial court to admit for substantive purposes prior inconsistent statements given under prescribed circumstances reasonably assuring reliability.” Id., 752.

Under the circumstances, therefore, the second written statement was admissible whether it was consistent or inconsistent with Leite’s testimony. If it were consistent therewith, as initially determined by the trial court, it was admissible as a prior consistent statement. If, on the other hand, it were inconsistent therewith, as the defendant implicitly argues, it was admissible under Whelan.

The defendant argues, however, that Whelan states a rule of use of testimony, rather than admissibility. Thus, he asserts, Whelan merely permits the use of a written statement of a witness as substantive evidence, but the statement first must be admitted under some other rule of admissibility. This argument misreads Whelan.

It is true that the precise procedural posture of Whelan involved only the use, rather than the admissibility, of a prior inconsistent statement of a witness as substantive evidence. In Whelan, the statement had been admitted into evidence in order to impeach a hostile witness. Id., 746-47. The defendant thereafter requested that the trial court instruct the jury that the statement could “be considered solely with respect to the credibility of the witness, and not as probative of the facts it contained.” Id., 748. On appeal, we rejected that limitation on its use, and “adopt[ed] . . . a rule allowing the substantive use of prior written inconsistent statements signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” Id., 753.

Contrary to the defendant’s argument, however, our rationale for the rule adopted in Whelan went beyond mere use to admissibility. As noted above, that rationale is premised on the notion that the contours of the rule justify an exception to the hearsay rule “to allow the trial court to admit for substantive purposes prior inconsistent statements given under prescribed circumstances reasonably assuring reliability.” (Emphasis added.) Id., 752. It is clear, moreover, that in Whelan we considered the concept of the “use” of such statements as equivalent to their “admissibility.” See id., 752-53. Therefore, in Whelan we announced a new exception to the hearsay rule for the admission of prior inconsistent written statements of a witness, not simply a new rule concerning the use of such statements that must be shown to have been admissible on some other, independent basis.

The judgment is affirmed.

In this opinion the other justices concurred.

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

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

       Leite’s testimony is significant, however, in the analysis of the defendant’s second claim, discussed infra.

       Because such an inference was permissible, the trial court properly charged the jury on the lesser included offenses of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), both of which require proof of intent to cause serious physical injury.

       See footnote 2, supra, for the full text of General Statutes § 53a-56 (a) (1). As noted above; see footnote 4, supra; the court instructed the jury on the lesser included offenses of manslaughter in the first degree under General Statutes § 53a-55 (a) (1) and assault in the first degree under General Statutes § 53a-59 (a) (1).

       There is no dispute that the defendant met the first two Whistnant requirements, as clarified by State v. Jacobs, 194 Conn. 119, 128 n.4, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985), namely, that (1) he requested an appropriate instruction, and (2) it was not possible to commit the greater offense in the manner stated in the information without first committing the lesser. State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

       The defendant also argues that “|t]here is some testimony that there may have been other people in the immediate area of the victim.” Thus, he attempts to argue that the jury could have found recklessness based on his conduct with respect to those other people. We reject this argument, for two reasons. First, as the state points out, there is no such testimony in this record. Second, even if the defendant had acted recklessly with respect to others by shooting intentionally at McDougall, that would not justify a finding that he acted recklessly with respect to McDougall. General Statutes § 53a-8 (13) provides in pertinent part that “[a] person acts ‘recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” (Emphasis added.) The result described by the manslaughter statute is the death of the victim. Thus, what may have been reckless conduct “with respect to” other results or circumstances would not ipso facto be reckless conduct “with respect to” that result.

       The court stated: “And as long as we’re citing cases. In line with State v. Whelan in 200 Conn. [743, 513 A.2d 86, cert. denied, 479 U.S 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986)], both the first statement and the second statement were in writing and signed by the maker of the statement, so that I believe they come in without any further instructions by me as to limitation. Any disagreement with that?” The defendant did not register any such disagreement.

       In view of this conclusion, we need not consider whether the trial court was correct in its reading of State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); see footnote 8, supra; that a signed, written statement of a witness is admissible, at the behest of the party who called the witness, irrespective of whether it is inconsistent or consistent with his testimony on direct examination.