author: Callahan, J. Shea, J.,

text:
    Jeannette S. Simko et al. v. Zoning Board of Appeals of the Town of Fairfield et al.

    (13193)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      (One justice dissenting)

    Argued October 6
    decision released December 1, 1987

      Vincent M. Simko, with whom was Bruce L. Elstein, for the appellants (plaintiffs).

      James F. Stapleton, with whom were Roy H. Ervin, Jr., and, on the brief, Donat C. Collimore, for the appellees (defendants).

       The plaintiffs filed a motion for reconsideration that was granted. See Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988).

   Callahan, J.

The plaintiffs, Jeannette S. Simko and Valerie Varga, filed this appeal from a judgment of the trial court, Meadow, J., dismissing their administrative appeal from a decision of the zoning board of appeals of the town of Fairfield (hereinafter the board). The issue presented is whether the trial court erred in dismissing the appeal for the plaintiffs’ failure to name the clerk of the municipality in the appeal citation. We find no error.

The relevant facts are not in dispute. On August 1, 1986, the board granted a variance, subject to certain conditions, to the defendant Roy Henry Ervin, trustee for certain property located at 909-911 Fairfield Beach Road in Fairfield. Simko and Varga, the owners of the contiguous parcels known as 901 Fairfield Beach Road and 919 Fairfield Beach Road respectively, appealed the board’s decision to the Superior Court pursuant to General Statutes § 8-8 (a) and (b) on August 20,1986.

The plaintiffs filed a complaint, an application for a temporary injunction and order to show cause, a citation, a summons, an order of service and a recognizance with surety.

The citation directed the sheriff to summon the board and Ervin to appear before the Superior Court within and for the judicial district of Fairfield at Bridgeport on September 19,1986, by leaving with or at the usual place of abode of the chairman or clerk of that board, and Ervin, a true and attested copy of the complaint and of the citation. The citation and the other appeal papers failed to mention the clerk of the municipality. Despite this deficiency, Deputy Sheriff Donald W. Mat-tice personally served not only the board and Ervin, but also Evelyn L. Hiller, the Fairfield town clerk.

Thereafter, the board entered an appearance and filed an answer on September 5,1986. Ervin also filed an appearance on September 2, 1986, but thereafter moved to dismiss the appeal, pursuant to General Statutes § 8-8 (d) for the plaintiffs’ failure, inter alia, to have named the clerk of the municipality in the citation as required by § 8-8 (b). The trial court, Meadow, J., granted the motion to dismiss the appeal and held that “[a] proper citation is essential to the validity of an administrative appeal and the jurisdiction of this court.” Additionally, the court held that “[t]he service made by the sheriff constituted ‘mere extra judicial delivery of copies of appeal papers and has no legal effect.’ ”

The plaintiffs, upon having been granted certification, have challenged the trial court’s dismissal of their appeal. They argue that the citation issued here complied with the requirements of § 8-8 (b) since the board, the only necessary party intended by the legislature, had been cited and properly served. Alternatively, the plaintiffs argue that the alleged defect in the citation is merely a circumstantial defect that does not raise an issue of subject matter jurisdiction and can be cured by amendment pursuant to General Statutes § 52-128.

I

The plaintiffs first argue that “in a zoning appeal brought pursuant to General Statutes § 8-8 (b) the Zoning Board is the [only] necessary party, and where a citation has been issued citing said zoning board, [the citation] is sufficient.” We disagree.

The determination of who is a necessary or a proper party in a proceeding to review the actions of an administrative agency is primarily governed by statute. See 2 Am. Jur. 2d § 742, Administrative Law, p. 641. Prior to October, 1985, General Statutes (Rev. to 1985) § 8-8 (b) provided in pertinent part: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, or by serving a true and attested copy upon the clerk of the municipality.” (Emphasis added.) Clearly the statute required service upon the chairman of the zoning board or the clerk of the municipality, but not upon both. Thereafter, the legislature amended General Statutes § 8-8 (b), effective October 1,1985, to provide : “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality.” (Emphasis added.) Public Acts 1985, No. 85-284, § 3.

We find no ambiguity on the face of § 8-8 (b), as amended. The statute clearly mandates that both the zoning board and the clerk of the municipality be named parties to a zoning appeal. Additionally, a review of the relevant legislative history regarding Public Acts 1985, No. 85-284, § 3, supports a literal construction of its language. In commenting on the purpose for the 1985 amendment to § 8-8 (b), Senator John Consoli stated: “The bill would also make it mandatory rather than optional to serve notices of appeals from the zoning board of appeals and the planning commission to the town clerk.” (Emphasis added.) 28 S. Proc., Pt. 9,1985 Sess., p. 2928. Further, in the House of Representatives, Representative Vincent Chase stated: “They’re [sub-sections 3 and 4 of Public Acts 1985, No. 85-284] of a technical nature, which would require that when an appeal is filed on a planning and zoning board, that the appeal notice also be served on the town clerk of the municipality. . . . This would insure that the town clerk and the administrator of the board were aware in sufficient time, that an appeal may have been served.” 28 H.R. Proc., Pt. 13, 1985 Sess., pp. 4773-74.

It is clear that under Public Acts 1985, No. 85-284, § 3, the clerk of the municipality has become a statutorily mandated, necessary party to a zoning appeal. Where, as here, the language of the'statute is clear and unambiguous, courts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for doing so. See Johnson v. Manson, 196 Conn. 309, 314, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061,106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986); Murach v. Planning & Zoning Commission, 196 Conn. 192,197 n.10, 491 A.2d 1058 (1985). Therefore, we hold that the clerk of the municipality is under the statute a necessary party who must properly be served for a zoning appeal brought pursuant to General Statutes 8-8.

II

The issue then becomes whether the failure to cite the clerk of the municipality constitutes a jurisdictional defect rendering the appeal subject to dismissal. The plaintiffs argue that such a defect does not destroy the subject matter jurisdiction of the trial court because the failure to name the clerk of the municipality in the citation is merely a circumstantial defect that can be cured as of right in accordance with General Statutes § 52-128. We disagree.

“We note at the outset that appeals from administrative agencies exist only under statutory authority. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 201, 440 A.2d 286 (1982). ‘A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.’ ” Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 356, 514 A.2d 749 (1986); see also Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985). We have repeatedly held that statutory appeal provisions are mandatory and jurisdictional in nature, and, if not complied with, the appeal is subject to dismissal. Basilicato v. Department of Public Utility Control, supra, 322, 324; Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975).

Although this issue has not been addressed in connection with § 8-8 (b), the courts of this state have consistently held that, in appeals from administrative decisions, the failure to include the name of a necessary party or defendant in the citation is a jurisdictional defect that renders the appeal subject to dismissal even where, as here, that party was served or provided with copies of the appeal papers. See Sheehan v. Zoning Commission, 173 Conn. 408, 413, 378 A.2d 519 (1977); Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 339,170 A.2d 732 (1961); Nanavati v. Department of Health Services, 6 Conn. App. 473, 474, 506 A.2d 152 (1986); Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 645-46, 501 A. 2d 1223 (1985); State v. One 1981 BMW Automobile, 5 Conn. App. 540, 544, 500 A.2d 961 (1985); Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985); Daniels v. New Haven Police Department, 3 Conn. App. 97, 99, 485 A.2d 579 (1985); Board of Education v. State Board of Education, 38 Conn. Sup. 712, 716-17, 461 A.2d 997 (1983). The underlying rationales for this rule of law have been (1) the unique statutory nature of an administrative appeal previously discussed, and (2) the character of the citation.

‘A citation is a writ issued out of a Court of competent jurisdiction commanding a person therein named to appear on a day named to do something therein mentioned.’ ” Sheehan v. Zoning Commission, supra, 412; see also State v. One 1981 BMW Automobile, supra; 1 E. Stephenson, Connecticut Civil Procedure § 18. “The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. . . . Without it, the officer would be little more than a deliveryman. . . . [Additionally, the] citation is a matter separate and distinct from the sheriff’s return and is the important legal fact upon which the judgment rests. . . . [Thus, a] proper citation is essential to the validity of the appeal and the jurisdiction of the court. ... A citation is not synonymous with notice.” (Emphasis added.) Village Creek Homeowners Assn. v. Public Utilities Commission, supra; Atkins v. Bridgeport Hydraulic Co., supra, 645-46; State v. One 1981 BMW Automobile, supra; see also Chestnut Realty, Inc. v. CHRO, supra; Sheehan v. Zoning Commission, supra, 412-13.

Because of the failure to name the clerk of the municipality in the citation, the sheriff had no authority to command the clerk’s appearance for any purpose. Therefore, contrary to the plaintiffs’ claim, the delivery to the clerk of the papers comprising the appeal was of no legal significance.

Accordingly, we hold that the failure to name a statutorily mandated, necessary party in the citation is a jurisdictional defect which renders the administrative appeal subject to dismissal. Thus the trial court properly dismissed the appeal below.

There is no error.

In this opinion Peters, C. J., Glass and Hull, Js., concurred.

Shea, J.,

dissenting. In arriving at the conclusion that the amendment to General Statutes § 8-8 (b) effectuated by Public Acts 1985, No. 85-284, § 3, made it essential to include the town clerk in the citation as a necessary party defendant in a zoning appeal, in addition to making service upon him, as the plaintiffs did, the majority opinion conveniently ignores a significant part of the legislative history upon which it purports to rely. The complete remarks of Representative Vincent Chase, who sponsored the amendment, at the time it was approved by the House of Representatives, were as follows: “[The amendment is] of technical nature, which would require that when an appeal is filed on a planning and zoning board, that the appeal notice also be served on the Town Clerk of the Municipality. I’m offering this amendment as a result of the discussions that I’ve had concerning an appeal being served on a zoning official who may be at [sic] vacation and no one realizing that the board, had been served because it was just stuck in a mailbox. This would insure that the Town Clerk and the administrator of the Board were in sufficient time, [sic] that an appeal may have been served.” (Emphasis added.) 28 H.R. Proc., Pt. 13,1985 Sess., pp. 4773-74.

These remarks indicate that the purpose of the amendment was to ensure that notice of the appeal would always be received in hand by a town official who is ordinarily available at the town office building and thus to avoid the uncertainties of abode service upon a part-time chairman or clerk of a zoning board, who may be absent for a considerable period of time after notice of an appeal has been delivered to his residence. See General Statutes §§ 8-8 and 52-57 (b).

It is difficult to conceive of any useful purpose to be accomplished by making the town clerk a party to a zoning appeal in addition to the zoning board, whose action is the subject of the appeal, other than to provide additional notice of the appeal so that the board may properly defend it. Neither the majority opinion nor the legislative history suggest any other objective. A town clerk in his individual capacity would have no judicially cognizable interest in the controversy and his presence as a party to the appeal would be superfluous. This court should reject a construction of a statute that produces “bizarre results.” State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985).

The legislative history is completely silent about any intention to include as a party the town itself, for which the town clerk is a statutorily designated agent for service. General Statutes § 52-57 (b). If such a change in our long standing practice with respect to zoning appeals were contemplated by the legislature, it is probable that some comment upon it would appear. It is plain that prior to the adoption of the 1985 amendment to § 8-8 (b) the town clerk was designated as an alternative agent for service upon a zoning board and did not become a party to the appeal merely because the complaint had been served upon him. The change in the conjunction from “or” to “and” effectuated by the amendment was never intended to modify this status but merely to provide additional assurance that the board would receive notice of an appeal by requiring service upon two persons as agents for the board.

In addition to the legislative history, the majority opinion relies upon several cases supporting the proposition that, “in appeals from administrative decisions, the failure to include the name of a necessary party or defendant in the citation is a jurisdictional defect which renders the appeal subject to dismissal even where, as here, that party was served or provided copies of the appeal papers.” This principle, by its terms, applies only to necessary parties and it would not apply in this case unless the amendment was intended to make the town clerk a necessary party rather than an agent for service as formerly. None of the cases relied upon supports the proposition that the failure of a citation to name the agent for service who has been actually served constitutes a jurisdictional defect.

Accordingly, I dissent.

       The variance granted to Roy Henry Ervin, trustee, provided for the following: (1) a reduction in the setback requirement of § 7.5 of the Fair-field zoning regulations from seven feet to six feet; (2) a reduction in the required sum of setbacks of § 7.5.1 of the Fairfield zoning regulations from twenty-five feet to thirteen feet; and (3) the demolition of an existing one story nonconforming structure to be replaced with an enlarged two story nonconforming dwelling which was to contain a rental unit. The variance, as granted, contained the following conditions: “(a) No occupancy of third floor; (b) Maximum height to be 30 ft. from existing grade to peak of roof; (c) Minimum one year lease; and (d) House to stay within the footprint.”

       “[General Statutes] Sec. 8-8. appeal from board to court, review by appellate court, (a) Any person or persons severally or jointly aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.
      “(b) Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality. The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.”

       The citation issued provided as follows:
      “To any proper officer:
      “CITATION
      “By authority of the State of Connecticut, you are hereby commanded to summon the Zoning Board of Appeals of the Town of Fairfield, and ROY HENRY ERVIN, Trustee, of the Town of Fairfield, County of Fairfield, State of Connecticut, to appear before the Superior Court within and for the Judicial District of Fairfield at Bridgeport on September 19,1986, then and there to answer unto the foregoing complaint of JEANNETTE S. SIMKO of 901 Fairfield Beach Road, and VALERIE VARGA of 919 Fair-field Beach Road, Fairfield, Connecticut, by leaving with or at the usual place of abode of the Chairman or Clerk of that Board, and ROY HENRY ERVIN, TRUSTEE a true and attested copy of the complaint and of this Citation at least twelve days before the return date.
      “JEANNETTE S. SIMKO as principal and HENRY ELSTEIN, 6 Shell Street, Milford, as surety are recognized in the sum of Two Hundred Fifty ($250.00) Dollars to prosecute this appeal to effect and comply with the orders and decrees of this Court.
      “Hereof fail not, but of this writ with your doings thereon make due service and return.
      “Dated at Bridgeport, Connecticut, this 19th day of August, 1986.’’

       General Statutes § 8-8 (d) provides: “The court, upon the motion of the person who applied for the board’s decision, shall make such person a party defendant in the appeal. Such defendant may, at any time after the return date of such appeal, make a motion to dismiss the appeal. At the hearing on such motion to dismiss, each appellant shall have the burden of proving his standing to bring the appeal. The court may, upon the record, grant or deny the motion. The court’s order on such motion shall be a final judgment for the purpose of the appeal as to each such defendant. No appeal may be taken from any such order except within seven days of the entry of such order.”

       “[General Statutes] Sec. 52-128. amendment of pleadings by plaintiff; costs. The plaintiff may amend any defect, mistake or informality in the writ, complaint, declaration or petition, and insert new counts in the complaint or declaration, which might have been originally inserted therein, without costs, within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court; but, after any such amendment, the defendant shall have a reasonable time to answer the same.”

       Contrary to the claim made by the minority in the dissenting opinion, the majority did not ignore the portion of Representative Vincent Chase’s statement cited by the minority and the plaintiffs. Rather, the majority did not find it persuasive in light of: (1) the preceding and subsequent statements made by Chase; 28 H.R. Proc., Pt. 13,1985 Sess., pp. 4773-74; (2) the statements made by Senator John Consoli; 28 S. Proc., Pt. 9,1985 Sess., p. 2928; (3) the clear wording of the statute; and (4) the fact that a change from the disjunctive to the conjunctive was made in the statute. Additionally, we cannot find that the sentence relied upon by the minority supports the proposition that the clerk of the municipality is merely an “agent for service” who is not a necessary party.

       The references in footnote 6 of the majority opinion to the “preceding and subsequent statements made by [Representative] Chase” apparently relate to the first and third sentences of these quoted remarks, since Representative Vincent Chase made no other comments pertaining to this legislation. The first sentence indicates merely that the amendment was intended to make service upon the town clerk mandatory rather than optional, as does also the statement of Senator John Consoli relied upon by the majority. The third sentence is an amplification of the second sentence, which has been omitted from the majority opinion. Nothing in the legislative history indicates that the requirement of service upon the town clerk was for the purpose of making him a necessary party to the appeal.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Frank Giulietti et al. v. Connecticut Insurance Placement Facility
    (13099)
    (13100)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued October 6
    decision released December 8, 1987

      David M. Reilly, for the appellant-appellees (plaintiffs).

      John E. Tener, with whom, on the brief, was Mary T. Nicholson, for the appellee-appellant (defendant).
   Shea, J.

In this action upon a policy issued by the defendant, insuring the plaintiffs against loss by vandalism and malicious mischief to their apartment house on Starr Street, New Haven, the jury returned a verdict for the plaintiffs of 114,00o. After denying motions of both parties to set aside the verdict, the court rendered judgment in accordance therewith. The plaintiffs have appealed and the defendant has also appealed from the judgment. We find no error in either appeal.

The plaintiffs claim that the trial court erred: (1) in refusing to set aside the verdict as to damages because the evidence does not support the amount of the verdict; and (2) in directing a verdict for the defendant on the second count of the complaint seeking damages for its refusal to submit the determination of the amount of the loss to appraisers, as the policy provides.

On its appeal the defendant claims that the court erred: (1) in failing to set aside the verdict because the evidence did not indicate that any vandalism of the apartment house had occurred on the date alleged in the complaint; (2) in excluding evidence that the loss was due to other causes; and (3) in refusing to allow the defendant to amend its answer.

I

A

The first issue we consider on the plaintiffs’ appeal is whether the jury could reasonably have concluded that the loss to the plaintiffs insured by the policy was $14,000. Under the insuring agreement the defendant insured the property up to the policy limit of $28,000 against the hazards specified “to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property. ...” The insurance loss adjusters who testified in behalf of both the plaintiffs and the defendant estimated the cost of repairing the vandalism damage to the building, with an allowance for depreciation, at more than $40,000. This sum exceeded not only the policy limit, but also two valuations of the building that had been made before it was insured. At the time the policy was issued in May, 1978, the defendant obtained an appraisal that valued the building at $28,000, the limit of coverage the policy provided. The 1978 records of the New Haven tax assessor indicated a value of $24,000. These valuations were made prior to April, 1979, when the plaintiffs first reported a loss due to the vandalism of one apartment in the building, for which they were paid $4369.06 by the defendant. The damage for which this payment was made was never repaired. The plaintiffs made no repairs or improvements after they acquired the building in 1977. The last of the tenants residing in the building had moved out just before the occurrence of the vandalism loss in April, 1979.

On July 23, 1979, the policy was amended by an endorsement changing the reference to the building “occupied as a 6 family dwelling” to read “vacant and secured.” The plaintiffs produced testimony that the building had been secured by boarding up some doors and windows and by nailing others shut after the building had become vacant in April, 1979. The named plaintiff, Frank Giulietti, testified that from August through December, 1979, he visited the property every two or three weeks to observe the exterior of the building. He said that “[t]he condition was good” when he last saw the building four to six weeks prior to his discovery that the building had been vandalized.

Giulietti testified that, as a result of a telephone call he had received from a friend, he visited the Starr Street building on January 9,1980. He then observed that the plywood boards he claimed to have placed over the windows and doors had been removed, “everything was open,” many door and window frames had been removed, plumbing fixtures had been taken or damaged, pipes had been ripped out and the furnace in the basement had been stolen.

After the defendant had received notice of the plaintiffs’ claim under the policy, it engaged an adjuster, Richard McKenna, to examine the building and investigate the claim. The photographs taken when he visited the premises on January 14,1980, graphically portray the damaged condition of both the exterior and interior of the building. Doors and windows were broken or missing; large holes had been made in the plaster walls and ceilings; and the window and door frames, baseboards and other wood trim had been removed. McKenna’s estimate of the cost of repairing the damage, excluding the cost of purchasing items that had been removed from the building and allowing for the vandalism damage in April, 1979, which had not been repaired, was $40,107.44. He testified that such an extensive theft of the items taken from the building would have taken three to five months to accomplish.

The defendant also presented the testimony of several witnesses residing near the building who said that the building had not been secured, as Giulietti had testified, but was readily accessible. These witnesses had seen people entering the buñding and removing boards and windows therefrom during the summer of 1979. Several months after the discovery of the vandalism, the plaintiffs transferred the real estate, including the building, for no consideration except the agreement of the purchaser to assume the unpaid real estate taxes. The building was later demolished.

In pursuing their claims in the fourth count of the complaint that the defendant had failed to adjust the claimed loss in good faith and had engaged in unfair trade practices, the plaintiffs introduced some correspondence between McKenna and the adjuster representing them, Meyer Biller. A letter from Biller to McKenna dated April 23, 1980, referred to “a final offer of $15,000 that [McKenna] would recommend to the company” but asserted that the plaintiffs had rejected such a figure. To this letter McKenna responded on May 1,1980, somewhat irately, that he had made no such offer but that he had “indicated to [Biller], verbally . . . that, if [Biller] didn’t get to a figure below $13,000, there would be no sense in contacting the carrier as it would not be economically feasible to even think about it.” In another letter dated April 18,1980, McKenna informed the defendant that Biller had telephoned him on April 11,1980, to report that the plaintiffs “would not go less than $20,000.” In this letter McKenna also declared that he had told Biller that “if [the plaintiffs] get down around $13,000, [he] would be in a position to call [the defendant] . . . .” Neither the plaintiffs nor the defendant raised any objection to this evidence of the negotiations between the parties nor does it appear that any instructions were requested limiting the purposes for which the jury might use such evidence. No claim of error has been raised in this appeal by either party regarding the admission of this evidence or the absence of an appropriate instruction restricting its use. Even if we were to assume that the jury was influenced in arriving at its $14,000 verdict by its knowledge of these negotiations, the plaintiffs, who introduced the evidence without taking appropriate measures to avoid any such effect, are hardly in a position to complain.

Under the terms of the policy the defendant’s liability was limited to the “ 'actual cash value’ of the property at the time of loss,” unless the cost of repair or replacement of the items vandalized amounted to a lesser sum, a circumstance the defendant does not claim in this case. In determining the actual cash value of the property, the jury could consider, “under the so-called broad evidence rule, any evidence logically tending to the formation of a correct estimate of the value” of the insured property. Sullivan v. Liberty Mutual Fire Ins. Co., 174 Conn. 229,232, 384 A.2d 384 (1978); Castoldi v. Hartford County Mutual Fire Ins. Co., 21 Conn. Sup. 265, 269, 154 A.2d 247 (1959). This rule afforded a wide latitude to the factfinder in this case. The jury may well have accepted the lowest appraisal of the value of the building, the $24,000 estimate made in 1978 according to the tax assessor’s records, and deducted therefrom the payment of $4369.06 made for the April, 1979, vandalism damage, which was never repaired. From the figure resulting from this calculation, $19,630.94, a further deduction may well have been made for the vandalism of the building that occurred after the April, 1979 loss but long before January 9,1980, when Giulietti learned of the damage. His testimony that the building had been secured with boards and nails was contradicted by several witnesses who testified that it was readily accessible to vagrants and children. The jury might reasonably have found that a substantial portion of the vandalism damage occurred as a result of the plaintiffs’ failure to secure the building adequately, thereby rendering applicable the policy provision excluding liability “for loss occurring . . . while the hazard is increased by any means within the control or knowledge of the insured.” This provision was pleaded as a special defense and the court instructed the jury upon it.

Although it is not possible to ascertain exactly how the jury arrived at the $14,000 verdict, such precision is not essential to sustain the verdict. The issue in this case was the actual cash value of the building at the time of the loss recoverable under the policy. “[Value] is a matter of opinion based on all the evidence and, at best, is one of approximation.” Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967). “Although from the very nature of the situation the amount of loss could not be proved with exactitude, the evidence afforded a basis for a reasonable estimate by the jury of that amount.” Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 517, 271 A.2d 69 (1970). The plaintiffs have not demonstrated that the amount of the verdict does not fall within the permissible range supported by the evidence.

B

The plaintiffs’ second claim of error relates to the trial court’s direction of a verdict for the defendant on the second count of the complaint, which sought damages for breach of the policy clause providing for determination of the amount of the loss by appraisers. The defendant concedes that it refused the plaintiffs’ timely demand for appraisal of the loss in accordance with the policy. It maintains, however, that its refusal was “based on a denial of any coverage” and claims, therefore, that it was not obliged to participate in a loss appraisal proceeding that would be useless if it should prevail on its liability defenses.

We are inclined to agree with those courts that have rejected the defendant’s contention on the ground that it renders the loss appraisal clause illusory whenever an insurer resists its invocation by an insured. If the defendant’s proposition were sound, it would provide “an effective and simple way to destroy the insured’s right of appraisal.” Itasca Paper Co. v. Niagara Fire Ins. Co., 175 Minn. 73, 79-80, 220 N.W. 425 (1928); see Orient Ins. Co. v. Skellet Co., 28 F.2d 968, 969 (8th Cir. 1928). A determination of the amount of the plaintiffs' loss by appraisers pursuant to the policy would not have precluded a subsequent determination of the liability issues at a trial and would greatly have shortened the duration of a trial. Itasca Paper Co. v. Niagra Fire Ins. Co., supra.

We conclude, however, that the trial court properly directed a verdict for the defendant on this count, because the plaintiffs, by proceeding to trial before the jury upon the question of the amount of their loss, the very issue to be determined by appraisers, effectively waived their rights under the appraisal clause. This court has held that such a clause in the standard form of policy set forth in General Statutes § 38-98 constitutes an agreement to arbitrate and falls within the ambit of our arbitration statutes, General Statutes §§ 52-408 through 52-424. Covenant Ins. Co. v. Banks, 177 Conn. 273, 279, 413 A.2d 862 (1979). “[A]n arbitration clause may be waived by the parties or by the one entitled to its benefit .... The same result follows from going to trial without insisting upon the arbitration condition.” Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 11, 110 A.2d 464 (1954). We have held that the remedy provided by General Statutes § 52-411 for the appointment of an arbitrator or umpire is applicable to the standard form of loss appraisal clause and have commented that the statutory procedure is “both prompt and efficient.” Cove nant Ins. Co. v. Banks, supra, 280. The plaintiffs’ course of conduct in electing a jury determination of the issues for which the appraisal procedure was available constituted a waiver of their rights under that provision of the policy. See Waterbury Teachers Assn. v. Waterbary, 164 Conn. 426, 435, 324 A.2d 267 (1973). We need not discuss, as an alternative ground for upholding the direction of a verdict on the second count, the problem of assessing damages for the breach of a refusal to arbitrate in this case, where there is no basis in the evidence for determining whether the jury verdict was greater or less than the amount that appraisers might have awarded.

On the plaintiffs’ appeal, we find no error.

II

A

We now consider the defendant’s appeal. The defendant first claims that the trial court erred in refusing to set aside the verdict because the evidence did not indicate that any vandalism of the apartment house had occurred on the date alleged in the complaint.

The plaintiffs in the first count of their complaint alleged: “On January 9,1980, during the period when the policy was in effect, the dwelling house was greatly damaged by vandalism or malicious mischief.” The defendant maintains that this paragraph clearly stated that all of the alleged vandalism took place on that single day. The plaintiffs argue that this paragraph can be fairly read to imply that the damage had occurred by this date, when it was discovered. The plain language of the paragraph supports the defendant’s reading. The plaintiffs would treat the word “was” as equivalent to “had been.”

“Justice is not served by accepting a claim of variance [between allegations and proof] from a party who at all times has been in a position of knowing the true state of facts.” Schaller v. Roadside Inn, Inc.. 154 Conn. 61, 67, 221 A.2d 263 (1966). “ ‘[Slight linquistic ambiguity’ does not serve to nullify a cause of action which is sufficiently raised to notify the defendant of its existence. Schenck v. Pelkey, 176 Conn. 245, 255, 405 A.2d 665 (1978).” Leabo v. Leninski, 2 Conn. App. 715, 721, 484 A.2d 239 (1984). While the first count of the plaintiffs’ complaint stated that the vandalism took place on January 9,1980, the defendant was well aware that the plaintiffs’ theory was that the loss had occurred over the four to six week period from the last time Giulietti inspected the building until the date recited in the complaint. The defendant had taken both a statement and a deposition to that effect from the plaintiffs prior to trial. It was the defendant who during the trial presented evidence discovered during its investigation that the building had been vandalized weeks and even months before January 9,1980. Realizing that all of the acts of vandalism could not possibly have occurred on one day, as alleged, the defendant could not reasonably have assumed that it would prevail simply because of the plaintiffs’ oversight in drafting the complaint. The time has passed when such a pleading deficiency, in the absence of surprise or other prejudice, may be relied upon to defeat a cause of action.

B

The defendant next claims that the trial court erred in excluding evidence that a large part of the loss was due to other causes, such as theft of fixtures from the building, which the defendant maintains its policy does not cover. The defendant’s brief does not indicate that it took an exception to the trial court’s ruling on this issue; see Practice Book § 4065 (d) (3); and we can find no exception in the transcript. Because the defendant did not take an exception, this court will not review its claim. Practice Book §§ 288, 4185.

C

The defendant’s final claim is that the trial court erred in refusing to allow an amendment to its answer.

The defendant filed a motion on January 21,1986,to amend its answer by adding defenses entitled “Second Special Defense” and “Fourth Special Defense.” In its second special defense, the defendant claimed that part of the loss had occurred as a result of theft rather than vandalism and thus was excluded from coverage. The fourth special defense maintained that the plaintiffs had failed to notify the defendant promptly about the losses as they occurred, as required by the policy.

The defendant filed this motion five years and eight months after the plaintiffs had brought their complaint on May 27, 1980. The defendant filed its answer on January 15, 1981, and did not seek to amend it until five years later. Its motion was filed just six days before the trial began on January 27, 1986.

The only question for this court is whether the trial court abused its discretion in denying the defendant’s motion. Lawson v. Godfried, 181 Conn. 214, 215, 435 A.2d 15 (1980); Dubose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971). In determining whether there has been an abuse of discretion, “[f] actors that should be considered include unreasonable delay, fairness to the opposing parties and the negligence of the party offering the amendment.” Dubose v. Carabetta, supra. The defendant contends that the two proposed additional special defenses would not have delayed the proceedings, nor prejudiced the plaintiffs in any manner. On the other hand, the plaintiffs argue that the delay of five years between filing the answer and moving to amend it would have seriously prejudiced them.

The defendant’s proposed second special defense raised for the first time in the proceedings some factually and legally intricate questions concerning an exclusion from the vandalism coverage of losses “by pilferage, theft, burglary or larceny, except that [the defendant] shall be liable for willful damage to the building^) covered caused by burglars in gaining entrance to or exit from the building(s) or any part of the building^). ” The plaintiffs can at least make a plausible argument that a five year delay seriously prejudiced their ability to find witnesses who remembered whether property had been stolen from the building in the months before January 9,1980. The trial court did not abuse its discretion in denying the defendant’s motion in respect to the second special defense.

The fourth special defense advanced for the first time the issue of whether the plaintiffs had given immediate written notice of their losses. This defense also implicated the question of whether the losses had occurred as the result of either vandalism or theft over several months. Again, the delay could have prejudiced the ability of the plaintiffs to find witnesses who remembered what had happened to the building in 1979. In addition, this special defense also raised new legal questions that could have delayed the trial. The trial court did not abuse its discretion in denying the defendant’s motion.

There is no error.

In this opinion the other justices concurred.

       This verdict for the plaintiffs related to the first count of the complaint claiming a breach of the insurance contract. As directed by the court, the jury returned verdicts for the defendant on the second count, which sought damages for refusal of the defendant to submit to an appraisal of the loss, and also on the third count claiming the defendant was estopped from contesting the “actual cash value” as stated in the plaintiffs’ proof of loss. On the fourth count, claiming a breach of the defendant’s duty as an insurer to negotiate in good faith concerning an adjustment of the loss and also a violation of our Unfair Trade Practices Act (CUTPA), the jury found the issues for the defendant.

       The plaintiffs’ brief also has raised some additional claims, “in the event new trial is ordered upon issues of liability.” Those claims relate to the charge and to rulings upon pleadings and the admission of evidence. Since we conclude that no new trial is warranted, these additional issues need not be discussed.

       This portion of the letter was as follows: “You indicate, in the first paragraph, that you advised the insured that we had made a final offer of $15,000, and would recommend it to the Company. Your statement goes on to indicate that, if the insured refused the offer, we would send a letter denying the claim in its entirety.

        “No offer was made on this matter whatsoever!
      “I am not sure if your hearing is impaired, but all I indicated to you, verbally, was that, if you didn’t get to a figure below $13,000, there would be no sense in contacting the carrier as it would not be economically feasible to even think about it.” (Emphasis added.)

       The insurance policy contained the following provision pertaining to the duty of the insured upon the occurrence of a loss: “The insured shall give immediate written notice to this Company of any loss, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, furnish a complete inventory of the destroyed, damaged and undamaged property, showing in detail quantities, costs, actual cash value and amount of loss claimed; and within sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn to by the insured . . . .”
      The plaintiffs’ proof of loss, signed on February 2, 1980, was received by the defendant on February 4, 1980. The defendant did not plead this condition of the policy as a defense, nor did the court charge upon it. The provision was included, however, in the copy of the policy introduced as an exhibit and thus available to the jury during deliberations. No attempt was made to exclude this provision from the jury.

       The appraisal clause of the policy provides as follows: “Appraisal. In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.”
      This clause is identical to that contained in the “standard form of fire insurance policy of the state of Connecticut.” General Statutes § 38-98.

       The two additional special defenses were as follows:
      “second special defense:
      “1. In Paragraph 4 of the First Count of plaintiffs’ complaint, the plaintiffs allege that the damage to the building was the result of ‘vandalism or malicious mischief.’
      “2. After April, 1979, numerous valuable fixtures were stolen from plaintiffs’ building.
      “3. To the extent that plaintiffs’ claims include items of property that were stolen from the premises, the damage so sustained by the plaintiffs was sustained as the result of theft.
      “4. Pursuant to line 24 of the plaintiffs’ insurance policy with defendant, the defendant is not liable for such loss by theft.”
      “fourth special defense:
      “1. Lines 90 through 91 of the plaintiffs’ policy with defendant, provides, in pertinent part, that the plaintiffs were obligated to give defendant immediate written notice to the defendant of any loss.
      “2. The damages alleged in plaintiff’s complaint occurred as the result of separate losses occurring over a long period of time.
      “3. Plaintiffs failed to notify defendant immediately in writing of these losses as they occurred, and the plaintiffs thereby breached their argument with the defendant voiding the policy.”

       See footnote 4, supra.

         This motion was filed by the attorneys who had entered their appearance on January 16, 1986, in substitution for former counsel for the defendant.


author: Peters, C. J.

text:
    State of Connecticut v. William Barrett
    (12018)
    Peters, C. J., Healey, Shea, Callahan and Santaniello, Js.

      Argued October 7
    decision released December 8, 1987

      Robert L. Genuario, for the appellant (defendant).

      James G. Clark, assistant state’s attorney, with whom were Julia DiCocco Dewey, assistant state’s attorney, and, on the brief, Alice Osedach, legal intern, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is whether incriminating oral statements that the defendant made to the police during a custodial interrogation should have been suppressed by virtue of the right to counsel guaranteed by article first, § 8, of the Connecticut constitution. In our original decision in this case, we concluded that the statements were inadmissible under the fifth and fourteenth amendments to the United States constitution. State v. Barrett, 197 Conn. 50, 495 A.2d 1044 (1985). We declined to consider what state constitutional rights the defendant might have had because he had raised no such claim either in the trial court or before us. Id., 54 n.3. The United States Supreme Court concluded that we had misinterpreted the applicable precedents and held that the statements were admissible as a matter of federal constitutional law. Accordingly, it reversed our judgment and remanded the case for further proceedings not inconsistent with its opinion. Connecticut v. Barrett, 479 U.S. 523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987). We now conclude that the trial court correctly admitted the defendant’s oral statements into evidence. There is therefore no error in the defendant’s conviction.

The defendant, William Barrett, was convicted, after a jury trial, of sexual assault in the first degree, in violation of General Statutes § 53a-70 (a), unlawful restraint in the first degree, in violation of General Statutes § 53a-95 (a), and possession of less than four ounces of a cannabis-type substance, in violation of General Statutes (Rev. to 1979) § 19-481 (c). The underlying facts are fully recounted in our earlier opinion. For present purposes, we note that the jury could reasonably have found that the defendant and another man sexually assaulted the victim after she had accepted an offer by the defendant to drive her to her sister’s home. The victim’s prompt report of the crime led the New Haven police to take the defendant into custody. The defendant was thereafter transferred to the Wal-lingford police for questioning.

The facts of the defendant’s custodial interrogation are not disputed. After being advised by the Walling-ford police of his constitutional rights, the defendant signed and dated an acknowledgment that he had received the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,16 L. Ed. 2d 694 (1966). When he was then asked to give a statement concerning the assault, “[t]he defendant immediately replied that he would not give a written statement without his attorney present, although he was willing to answer questions orally. Without further inquiry, the police proceeded to interrogate him in the absence of counsel and to elicit an incriminating statement from him.” State v. Barrett, supra, 55. After discovering that a tape recorder used to preserve the oral statements had malfunctioned, the police interrogated the defendant for a second time. After being again advised of his Miranda rights by the police, the defendant reiterated his wish to have his lawyer present before giving a written statement, but again stated that he was willing to discuss the matter orally. When the interrogation ended, a police officer made a final request to have the defendant put his oral statements into writing, but he again refused to do so without an attorney.

The trial court ruled that the incriminating oral statements were admissible because the defendant had freely and intelligently waived his rights both to remain silent and to have counsel present. In so ruling, the trial court concluded that the defendant had been repeatedly informed of his rights, had understood them, had signed a standard waiver form, and had agreed to speak with the police. The trial court found that the defendant’s request for counsel before giving a written statement was evidence that he in fact understood his rights.

In the original appeal, we interpreted federal constitutional law to mandate a two step inquiry to determine whether the defendant’s oral statements were admissible. Smith v. Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984); Edwards v. Arizona, 451 U.S. 477,101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973,101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981). “We must determine: (1) whether the defendant had in fact invoked his right to counsel; and (2) if so, whether he subsequently waived it.” State v. Barrett, supra, 54. We held that the defendant had, in effect, invoked his right to counsel and that his continuous interrogation by the police precluded a finding of waiver. Id., 57-58. Accordingly, because his incriminatory statements should have been suppressed, we ordered a new trial.

In reversing this judgment and remanding the case to us, the United States Supreme Court in Connecticut v. Barrett, supra, 832-33, determined that federal constitutional law permitted a distinction between the defendant’s willingness to make uncounseled oral statements and his disinclination to make a written statement in the absence of his attorney. While acknowledging that, in light of the defendant’s objection, a written statement obtained from the defendant would not have been admissible unless it met the strict waiver standards of Edwards v. Arizona, supra, the court concluded that no federal constitutional objective would be served by suppressing the oral statements in this case. “Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak.” Connecticut v. Barrett, supra, 832. Further, the court saw no need for liberal construction of the defendant’s request for counsel. Because the defendant’s request, in its clear and plain meaning, was aimed solely at obtaining counsel prior to giving a written statement, the court held that a broad reading would “disregard the ordinary meaning” of the request. Id. The court rejected the argument that it should undertake a more expansive interpretation of the defendant’s verbally precise request in light of the defendant’s apparent failure fully to understand the constitutional implications of his effort to distinguish between oral and written statements. Instead, the court relied upon the unchallenged findings of the trial court to conclude that the defendant had fully understood his right to remain silent and his right to counsel. Id., 832-33.

On remand, the defendant claims that the trial court erred in denying his motion to suppress because: (1) his state constitutional right to consult with an attorney during custodial interrogation was violated; (2) the police did not obtain a knowing and intelligent waiver of his right to remain silent; (3) his oral statements were given involuntarily; and (4) the state violated a specific court order in not disclosing all written summaries of his oral statements on a timely basis. We find no error.

I

Before we address the merits of the defendant’s state constitutional claim, we must first resolve the preliminary issue whether such a claim is reviewable at this stage in the proceedings. As the state properly concedes, this court has the inherent authority to interpret the state constitution in the context of specific cases. “We clearly have the power to construe the Connecticut constitution in accordance with our particular analysis of the specific right at issue.” State v. Kimbro, 197 Conn, 219, 234, 496 A.2d 498 (1985); see also State v. Jarzbek, 204 Conn. 683, 707-708, 529 A.2d 1245 (1987); State v. Scully, 195 Conn. 668, 674 n.11, 490 A.2d 984 (1985); State v. Couture, 194 Conn. 530, 564, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Cohane, 193 Conn. 474,498-99 n.19, 479 A.2d 763, cert. denied, 469 U.S. 990,105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); Cologne v. Westfarms Associates, 192 Conn. 48, 57,469 A.2d 1201 (1984); Griswold Inn, Inc. v. State, 183 Conn. 552, 559 n.3, 441 A.2d 16 (1981); Fasulo v. Arafeh, 173 Conn. 473, 475, 378 A.2d 553 (1977); Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977). The state nonetheless urges us to decline review for prudential reasons. Because of the defendant’s acknowledged failure to raise a state constitutional claim until the present remand from the United States Supreme Court; State v. Barrett, supra, 54 n.3; the state asserts that it “would be a travesty if this Court were to emasculate” established rules of appellate procedure by reviewing the state constitutional claim at this stage. We nonetheless conclude that review is appropriate in this case.

The basic rule governing the scope of appellate review is contained in Practice Book § 4185, which states that the Supreme Court “shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial.” The phrase “shall not be bound” implies that this court may, if it wishes, address an issue not properly preserved at trial. Mickel v. New England Coal & Coke Co., 132 Conn. 671, 674, 47 A.2d 187 (1946). The rule embodied in § 4185 “serves the salutary purpose of alerting the trial court to possible errors while there is still opportunity to correct them.” State v. Simms, 170 Conn. 206, 212, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976); see also State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985). We have therefore often declined on appeal to consider claims of error relating to trial practice unless appropriate steps were taken at the initial hearing to preserve the claim for review. State v. Young, 191 Conn. 636, 653, 469 A.2d 1189 (1983); State v. Johnson, 188 Conn. 515, 518A-19, 450 A.2d 361 (1982); State v. Nardini, 187 Conn. 513, 516-18, 447 A.2d 396 (1982). In the realm of constitutional adjudication, however, it is familiar learning that we may address unpreserved constitutional claims that fall within the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Under Evans, an unpreserved claim may be reviewed where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal or if the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial. Id., 70.

This court has applied the Evans doctrine to a great variety of federal constitutional claims. See State v. Rouleau, 204 Conn. 240,243, 528 A.2d 343 (1987); State v. Robinson, 204 Conn. 207, 209-10, 527 A.2d 694 (1987); State v. Sinclair, 197 Conn. 574, 580,500 A.2d 539 (1985); State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985); State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982); State v. Williams, 182 Conn. 262, 267, 438 A.2d 80 (1980). Despite our recognition that belated constitutional adjudication provides incentives for tactical jockeying by defense counsel and at times encounters the practical obstacle of an unfocused trial court record, we have tempered the rigors of the rule of § 4185 to accommodate federal constitutional requirements for a fair trial. State v. Evans, supra, 68-71; see also State v. Jones, 193 Conn. 70, 74, 475 A.2d 1087 (1984); State v. Darwin, 155 Conn. 124,142, 230 A.2d 573 (1967), rev’d on other grounds, 391 U.S. 346, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968). We can perceive no reason of principle to devise a different rule of procedure for constitutional rights that have their origin in the state, constitution.

In the circumstances of this case, review of the defendant’s state constitutional claims falls within the established parameters of State v. Evans, supra. Con-cededly, we have before us transcripts and exhibits that provide a trial record affording us a sufficient basis for addressing the defendant’s claim. Because this court has not yet addressed the precise state constitutional question that the defendant asks us to resolve, we conclude that the defendant’s claim falls outside the realm of those “well-known or long-established” constitutional rights that counsel should be required to have raised at the trial level. Id., 68. State constitutional law is only now emerging from the shadow of its federal counterpart. It is therefore understandable that parties may not engage in elaborate discussion and analysis of untested and novel state constitutional theories in trial court proceedings where defense counsel has other more immediately accessible and tangible targets to pursue. “The reality is that time for original analysis is scarce, particularly in the ordinary criminal case; and particularly at the trial level, lawyers and courts often depend on the shorthand of case citations in preference to scrutinizing statutes and constitutional principles.” State v. Kennedy, 295 Or. 260, 266, 666 P.2d 1316 (1983); see also E. Peters, “State Constitutional Law: Federalism in the Common Law Tradition,” 84 Mich. L. Rev. 583, 589-92 (1986). We therefore conclude that the defendant’s claim under article first, § 8, is reviewable at this juncture, despite his failure to raise the claim during the trial or on the original appeal.

Our decision today to review a state constitutional claim raised for the first time on remand from the United States Supreme Court is consistent with authority elsewhere. The Supreme Court of South Dakota has held that “this court has the inherent power on remand to hear an issue of such importance to the citizens of this state.” State v. Opperman, 247 N.W.2d 673, 675 n.6 (S.D. 1976). The history of State v. Opperman resembles that of the instant case. In the initial appeal, the state supreme court, "without mentioning the state constitution, held that a warrantless inventory search was unreasonable under the fourth amendment to the United States constitution. State v. Opperman, 89 S.D. 25, 37, 228 N.W.2d 152 (1975) (Opperman I). The United States Supreme Court reversed the judgment and remanded for further proceedings. South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). On remand, the state supreme court affirmed its original decision, as a matter of state constitutional law, even though the defendant had not pursued such a claim in his initial appeal. State v. Opperman, 247 N.W.2d 673,675 (S.D. 1976) (Opperman II). Similarly, the Washington Supreme Court, in State v. Chrisman, 94 Wash. 2d 711, 619 P.2d 971 (1980) (Chrisman I), in its first decision, ruled that physical evidence seized in a warrantless search of the defendant’s dormitory room should be suppressed on constitutional grounds but did not expressly refer to the state constitution. After reversal and remand by the United States Supreme Court; Washington v. Chrisman, 455 U.S. 1, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982); the court held that the state constitution afforded broader protection than its federal counterpart. State v. Chrisman, 100 Wash. 2d 814, 676 P.2d 419 (1984) (Chrisman II). The New York Court of Appeals has also recently affirmed, on remand, its inherent power to interpret the state constitution to order the suppression of items that the United States Supreme Court had deemed admissible as a matter of federal constitutional law. New York v. P. J. Video, Inc., 475 U.S. 868, 106 S. Ct. 1610, 89 L. Ed. 2d 871 (1986); People v. P. J. Video, Inc., 68 N.Y.2d 296, 501 N.E.2d 556, 508 N.Y.S.2d 907 (1986) (P. J. Video, Inc. II), cert. denied, 479 U.S. 1091,107 S. Ct. 1301, 94 L. Ed. 2d 156 (1987); People v. P. J. Video, Inc., 65 N.Y.2d 566, 483 N.E.2d 1120, 493 N.Y.S.2d 988 (1985) (P. J. Video, Inc. I). Comparable rulings can be found in other jurisdictions as well. See Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985); State v. Jackson, 672 P.2d 255 (Mont. 1983); State v. Kennedy, supra.

II

We turn now to the merits of the defendant’s claim of a constitutional infirmity, under the state constitution, in the incriminatory statements that he made to the police. The defendant maintains that the due process clause contained in article first, § 8, of our state constitution requires a more expansive interpretation of the defendant’s invocation of his right to counsel than the Supreme Court of the United States found to be warranted as a matter of federal constitutional law. Connecticut v. Barrett, supra, 832. In the circumstances of this case, we are unpersuaded.

Article first, § 8, provides in pertinent part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . . ” We have held that the warnings enunciated by Miranda v. Arizona, supra, originally made applicable in state prosecutions only because of the due process clause of the fourteenth amendment to the United States constitution, are independently required under the due process clause of article first, § 8, of the Connecticut constitution. State v. Chung, 202 Conn. 39, 45 n.7, 519 A.2d 1175 (1987); State v. Simms, 201 Conn. 395, 411 n.12, 518 A.2d 35 (1986); State v. Burge, 195 Conn. 232,246 n.15, 487 A.2d 532 (1985); State v. Ferrell, 191 Conn. 37, 40-41, 463 A.2d 573 (1983); State v. Falby, 187 Conn. 6,11 and n.1, 444 A.2d 213 (1982). “The warnings represent the belief, deep-seated in the Anglo-American legal tradition, that a person accused of a crime may be convicted only if exacting measures have been taken to assure that the accused has been treated with the most scrupulous fairness by agents of the government.” State v. Ferrell, supra. By informing a person held in custody of the right to consult with an attorney prior to and during police interrogation, the warnings required by article first, § 8, significantly enhance that person’s opportunity to make a knowing, intelligent and voluntary decision whether to speak or remain silent. Id. The Miranda warnings reflect the “perception that the lawyer occupies a critical position in our legal system because of his [or her] unique ability to protect the [due process] rights of a client undergoing custodial interrogation.” Fare v. Michael C., 442 U.S. 707, 719, 99 S. Ct. 2560, 61 L. Ed. 2d 197, reh. denied, 444 U.S. 887, 100 S. Ct. 186, 62 L. Ed. 2d 121 (1979).

In the absence of a subsequent waiver, an accused who invokes his right to counsel in accordance with Miranda warnings may not be further interrogated until he has been able to secure the advice of an attorney. State v. Ferrell, supra, 44 n.10; State v. Acquin, 187 Conn. 647, 667, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). A necessary predicate to the injunction against further interrogation is that the defendant did indeed invoke his right to counsel. If the defendant’s request is equivocal, it is the obligation of the police to clarify the defendant’s request. State v. Acquin, supra, 667-68.

The difficulty in this case is what implication to draw from the defendant’s unequivocal but limited invocation of his right to counsel. The defendant made it clear that he would make no written statement in the absence of counsel, and the police in fact did not obtain such a statement from him. Cf. State v. Shifflett, 199 Conn. 718, 737-38, 508 A.2d 748 (1986). The defendant was equally explicit about his willingness to make oral statements prior to consultation with an attorney. This expressed willingness to speak may well have had its origins in a misperception about the risk associated with incriminatory oral communications. The record reveals, however, that the police did nothing to foster such a misperception. The defendant could not have overlooked the presence of the police tape recorder, especially when its initial malfunction led the police, after renewed Miranda warnings, to elicit from the defendant a renewal of his incriminatory oral statements. In these circumstances, we conclude that the defendant’s limited request for counsel did not encompass the oral statements that he now seeks to suppress. By his election to make such oral statements in the absence of counsel, the defendant surrendered the rights afforded to him under article first, § 8.

Ill

The defendant next claims that the trial court should have granted his motion to suppress his incriminatory oral statements because the police failed to obtain a knowing and intelligent waiver of his right to remain silent and because the statements were made involuntarily. We are unpersuaded.

A

The state has the burden of proving by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights, including his right to remain silent. State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987); State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987); State v. Toste, 198 Conn. 573, 579-80, 504 A.2d 1036 (1986). A valid waiver is defined, in accordance with the well known test of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), as the intentional relinquishment or abandonment of a known right. State v. Shockley, 188 Conn. 697, 706, 453 A.2d 441 (1982); State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978). Although mere silence of the accused is not enough to establish waiver; State v. Wilson, 183 Conn. 280, 284, 439 A.2d 330 (1981); the record need not show a specific expression of relinquishment of rights. State v. Pecoraro, 198 Conn. 203, 208, 502 A.2d 396 (1985). Instead, a waiver may be “inferred from the actions and words of the person interrogated”; North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); and from his “course of conduct.” State v. Wilson, supra, 285.

In this case, the defendant asserts that his decision to speak with the police, viewed in the context of his adamant refusal to commit anything to writing without the advice of counsel, demonstrates that he did not fully understand either his right to remain silent or the warning that anything he said could be used against him. This claim is foreclosed by our decisions in State v. Harris, 188 Conn 574, 580,452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983), and State v. Frazier, 185 Conn. 211, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). In State v. Harris, supra, 578, the defendant was unwilling to make a written statement before consultation with a lawyer, but nonetheless proceeded to make oral statements placing himself at the scene of the crime. We concluded that “the defendant’s expressed willingness to speak constituted an explicit affirmative act evidencing waiver, which the court could reasonably find persuasive despite the defendant’s refusal to sign the waiver form.” Id., 580. In a similar vein, we held, in State v. Frazier, supra, 225-26, that a refusal to give a written statement does not, in itself, preclude a finding of waiver.

The determination that the defendant validly waived his right to remain silent is buttressed by affirmative evidence of the defendant’s knowing participation in his custodial interrogation. The officer who administered the Miranda warnings to the defendant in this case testified at the suppression hearing that the defendant, when asked if the warnings needed to be clarified, “indicated to me, no, he understood everything fairly well.” More important, the defendant himself testified that he understood his rights. The defendant in fact partially exercised his Miranda rights by refusing to give a written statement without his attorney present. In an analogous situation, we have held that the assertion of the right to remain silent after an initial willingness to speak with police is a strong indication that the defendant understood his rights. State v. Pecoraro, supra, 208-209; State v. Pellegrino, 194 Conn. 279, 289, 480 A.2d 537 (1984). The only contrary indicium to which the defendant points is his lack of prior experience with the police. That single fact is not sufficient to defeat a finding of waiver otherwise supported by the record. State v. Frazier, supra, 226. Accordingly, we find ample support for the trial court’s conclusion that the defendant knowingly and intelligently waived his constitutional right to remain silent.

B

The defendant also claims that his oral statements should be suppressed because they were made involuntarily. Irrespective of Miranda, and the fifth amendment itself, due process of law prohibits the state from using an involuntary confession at trial. Brown v. Allen, 344 U.S. 443, 475, 73 S. Ct. 397, 97 L. Ed. 469 (1953); State v. Shifflett, supra, 727. The state has the burden of proving the voluntariness of a confession by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Chung, supra, 53; State v. Smith, 200 Conn. 465, 477, 512 A.2d 189 (1986). Unless that burden is met, a confession compelled by pressure from a police officer is inadmissible for any purpose. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); State v. Smith, supra, 476. The United States Supreme Court recently declared that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, supra, 167. Provided that predicate exists, “ ‘[t]he ultimate test remains ... ‘Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). The question of voluntariness is one of fact for determination by the trial court in the exercise of its discretion, subject to the constitutional standards of due process. State v. Derrico, 181 Conn. 151,162-63, 434 A.2d 356, cert. denied, 449 U.S. 1064,101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); State v. Staples, 175 Conn. 398, 408, 399 A.2d 1269 (1978).

We find no persuasive evidence of involuntariness on the present record. The defendant contends that he involuntarily incriminated himself because the police: (1) offered no medical attention to an eye injury he had suffered prior to interrogation; and (2) repeatedly urged him to make a written statement, in spite of his limited invocation of his right to counsel. As to the former, the record indicates that the minor eye injury did not interfere with the defendant’s capacity to decide for himself whether to cooperate with the police. The defendant conceded under cross-examination that his eye injury did not render him incapable of hearing and understanding his rights. The latter claim is similarly meritless. Whatever persuasion the police attempted to exercise was, in the final analysis, irrelevant because it was fruitless: the police never succeeded in having the defendant execute a written statement. The defendant therefore suffered no visible harm from whatever pressure the police exerted. The defendant does not claim on appeal that he was physically restrained or abused or otherwise coerced or cajoled into incriminating himself. The record fails to indicate that the defendant suffered from a disabling educational, intellectual or psychological deficit. State v. Weidenhof, 205 Conn. 262, 268, 533 A.2d 545 (1987); State v. Harris, supra, 581. The trial court therefore did not err in finding his statements to have been voluntary.

Ill

The defendant’s final claim of error relates to an allegedly late disclosure of written summaries of the defendant’s oral statements prepared by the police. By pretrial motion pursuant to Practice Book § 750, the defendant moved for production of the substance of any oral declarations he had made to the police of which a written or other tangible recording existed. The trial court, Reynolds, J., granted this motion. Prior to trial, the state disclosed the substance of oral statements contained in a written report of Officer Peter Cameron, one of the three officers present during the interrogation sessions. The state did not, however, disclose similar reports filed by the two other officers, Sergeant John Genovese and Lieutenant Murt Howard. These reports were only disclosed to the defendant after the complaining witness had testified at trial. None of the officers had as yet testified.

The trial court held a suppression hearing to determine the consequences of this late disclosure. The defendant argued that Genovese and Howard should be precluded from testifying about his oral statements because the delay in the disclosure of their reports violated the trial court’s discovery order. The trial court ruled, however, that the state had in fact complied with the discovery order because the untimely reports did not reveal anything new of “substance” as that term is used in Practice Book § 750. The defendant properly preserved his objection to this ruling.

In his brief on appeal, the defendant initially claimed that the trial court’s ruling had been erroneous because the belated reports contained a new and significant fact, damaging to the defendant, concerning the victim’s struggle during the assault. At oral argument, however, defense counsel withdrew this claim after noticing that the Cameron report, which had been disclosed prior to trial, had also referred to the struggling of the victim. The defendant nonetheless maintains that he suffered prejudice because the allegedly late disclosures contained four additional facts not revealed by the first report. The gist of this claim is that the late disclosures denied the defendant the opportunity to prepare for cross-examination of the victim and the officers.

We decline to review this claim, however, because the defendant admittedly did not seek a continuance or recess in order to minimize the possibility of prejudice. When an allegedly erroneous nondisclosure does not implicate a constitutional right, this court has rarely set aside a conviction unless the defendant has suffered unavoidable prejudice. A continuance is ordinarily the proper method for dealing with a late disclosure. State v. Villafane, 171 Conn. 644, 669, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); see State v. Miner, 197 Conn. 298, 305-306, 497 A.2d 382 (1985). We reject the defendant’s claim that the trial court erred in not ordering a continuance sua sponte. We have not previously imposed such a duty on the trial court and the present circumstances do not warrant a departure from existing procedures. State v. Boucino, 199 Conn. 207, 215, 506 A.2d 125 (1986).

There is no error.

In this opinion the other justices concurred.

       The court noted, however, that the defendant had alluded to a state constitutional claim at the original suppression hearing. State v. Opperman, 247 N.W.2d 673, 675 n.5 (S.D. 1976) (Opperman II).

       By quoting from a case of the United States Supreme Court, we do not mean to imply that its decisions have anything more than a persuasive impact on our interpretation of the Connecticut constitution. Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977). “Lest there be any doubt about it, when this court cites federal opinions in interpreting a provision of [the Connecticut constitution], it does so because it finds the views there expressed persuasive, not because it considers itself bound to do so by its understanding of federal doctrines.” State v. Kennedy, 295 Or. 260, 267, 666 P.2d 1316 (1983).

       Because of the limited nature of the invocation of right to counsel in this case, we need not consider what standard for the waiver of that right is embodied by the Connecticut constitution.

       The defendant makes both of these claims under federal law only. We therefore do not consider whether the Connecticut constitution embodies a different standard regarding the waiver of Miranda rights and the question of voluntariness.

       “[Practice Book] Sec. 750. —discoverable as of right
      “Subject to the provisions of Sec. 784, upon written motion of the defendant the prosecuting authority shall disclose to the defendant and allow the defendant to inspect, copy or photograph any of the following items which are known to him and obtainable by him in the exercise of due diligence:
      “(1) Any relevant statements made by the defendant to any law enforcement officer of this state or his agent, or any copies of the same;
      “(2) The substance of any oral declarations of the defendant of which a written or other tangible recording has been made and which were made by the defendant, whether before or after arrest, in response to interrogatories by any person then known to the defendant to be a law enforcement officer or his agent or a prosecuting authority or his agent; or
      “(3) Any relevant statements of coconspirators which the prosecuting authority intends to offer in evidence at any trial or hearing.”

       The court appreciates the candor of defense counsel in withdrawing this claim.