DocketNumber： 3208; 3209
Citation Numbers： 9 Conn. App. 686
Judges： Bieluch, Borden
Filed Date： 2/17/1987
Status： Precedential
Modified Date： 9/8/2022
The principal issues of these appeals are (1) whether negligent homicide with a motor vehicle, as defined in General Statutes § 14-222a,
On January 19,1983, at approximately 2:55 p.m., the defendant was operating a tractor-trailer truck on Interstate 95 at the Stratford toll station and caused a motor vehicle accident involving several other vehicles which resulted in the deaths of seven people. The state charged him with seven counts of misconduct with a motor vehicle in violation of General Statutes § 53a-57. The jury acquitted him of the charges of misconduct with a motor vehicle, but convicted him of seven counts of negligent homicide with a motor vehicle in violation of General Statutes § 14-222a as lesser included offenses. The trial court ruled, however, that double jeopardy principles required that only one sentence be imposed and, accordingly, imposed on all seven counts a single sentence of six months incarceration and a fine of $1000.
The defendant appealed from the judgment of conviction, claiming that the court erred (1) in submitting to the jury negligent homicide with a motor vehicle as a lesser included offense of misconduct with a motor vehicle, (2) in admitting into evidence an out-of-court statement of the defendant, (3) in denying the defendant’s motion for a mistrial which was based on the assistant state’s attorney’s allegedly improper com
I
The Defendant’s Appeal
A
NEGLIGENT HOMICIDE WITH A MOTOR VEHICLE AS A LESSER INCLUDED OFFENSE OF MISCONDUCT WITH A MOTOR VEHICLE
The defendant’s principal claim on appeal is that negligent homicide with a motor vehicle, in violation of General Statutes § 14-222a, cannot be a lesser included offense of misconduct with a motor vehicle, in violation of General Statutes § 53a-57, because negligent homicide with a motor vehicle is not a “criminal offense” but is a “motor vehicle violation” pursuant to the definitions set forth in General Statutes § 53a-24.
At the state’s request and over the objection of the defendant, the court instructed the jury that, if they were not persuaded that the defendant was guilty of misconduct with a motor vehicle, they could convict him of the lesser included offense of negligent homicide with a motor vehicle.
The defendant concedes that, if negligent homicide with a motor vehicle were a “crime” rather than a
General Statutes § 53a-24 (a) defines the term “offense” as “any crime or violation which constitutes a breach of any law . . . for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction.
While at first blush the state’s argument is attractive, on closer scrutiny it becomes apparent that a basic step has been overlooked in determining the applicability of the statutes cited in support of the analysis. It is clear from the language emphasized in the statutes defining “violation” and “misdemeanor” that, before the definitions apply, the statute violated must be an “offense.” It is equally clear, however, that by the express terms of General Statutes § 53a-24 (a) the term “offense” excludes “motor vehicle violation[s].”
First, General Statutes § 53a-24 (b) provides, inter alia, that ‘ ‘[n]otwithstanding the provisions of subsection (a) [which excepts motor vehicle violations from the definition of ‘offense’], the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations.” General Statutes §§ 53a-28 through 53a-44 are the sections of the penal code which, inter alia, set out the authorized sentences for the classified and unclassified offenses (i.e., felonies, misdemeanors and violations) and provide for such sentencing mechanisms as probation, conditional discharge and unconditional discharge. This subsection would be rendered meaningless by the state’s analysis, since “motor vehicle violations,” within the meaning of General Statutes § 53a-24 (a), could only be transgressions carrying a fine. Yet, the purpose of this subsection is to make clear that “the sentencing principles enumerated in sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations.” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes, p. 8. There would be no purpose served by legislatively authorizing the application of sentencing provisions of the penal code, i.e., suspension of execution of sentences of imprisonment conditioned on terms of probation and conditional discharge, to a “motor vehicle violation” if a “motor vehicle violation” consisted only of statutes authorizing punishment by a
The legislative history of General Statutes § 14-222a further supports our conclusion that negligent homicide with a motor vehicle is a “motor vehicle violation” and not an “offense” within the meaning of General Statutes § 53a-24. We first note that the degree of negligence prohibited by this statute is equivalent to
The statute regarding negligent homicide with a motor vehicle was originally enacted in 1941, and was codified with the motor vehicle statutes. General Statutes (Sup. 1941) § 235f. That section was part of title XII, entitled “Motor Vehicles.” In 1969, when the penal code was adopted to take effect October 1,1971, negligent homicide with a motor vehicle was left untouched as then General Statutes (Rev. to 1966) § 14-218. By contrast, the penal code repealed General Statutes (Rev. to 1968) § 53-17, entitled “Misconduct of railroad or railway servants or motor vehicle operators,” the substance of which dated from 1917 and which had always been codified with the criminal statutes, and replaced it with General Statutes § 53a-57, entitled “Misconduct with a motor vehicle.”
From 1969 to 1971, therefore, misconduct with a motor vehicle, which requires proof of criminal negligence; see General Statutes § 53a-3 (14); was part of the penal code, and negligent homicide with a motor vehicle was located in Chapter 248 of title 14 of the General Statutes, then entitled “Use of the Highway
In 1971, however, the legislature repealed General Statutes § 14-218, negligent homicide with a motor vehicle. The legislative history of this repeal indicates that the 1971 legislature believed that, when the 1969 legislature enacted the penal code, it meant, but inadvertently neglected, to repeal General Statutes § 14-218. See 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 697-98; 14 S. Proc., Pt. 2, 1971 Sess., pp. 712-13. Therefore, from 1971 to 1973 there was no proscription against ordinary civil negligent homicide with a motor vehicle.
In 1973, the statute concerning negligent homicide with a motor vehicle was reenacted; Public Acts 1973, No. 73-639, § 5; as a class B misdemeanor within the penal code. See General Statutes (Rev. to 1975) § 53a-58a. This placement of it within the penal code, however, was something of an anomaly, because penal code offenses generally require a particular criminal mental state, such as intentionally, knowingly, recklessly, or criminal negligence; see General Statutes § 53a-5; all of which are defined in General Statutes § 53a-3. The 1973 penal code offense of negligent homicide with a motor vehicle, then General Statutes § 53a-58a, however, required no particular mental state; it provided only that a “person is guilty of negligent homicide with a motor vehicle when in consequence of the negligent operation of a motor vehicle he causes the death of another person.” General Statutes (Rev. to 1975) § 53a-58a (a). Nonetheless, the class B misdemeanor of negligent homicide with a motor vehicle remained in the penal code until 1981.
Our conclusion that negligent homicide with a motor vehicle as defined in General Statutes § 14-222a is a “motor vehicle violation” and, therefore, not an “offense” for purposes of the penal code
First, as a matter of precedent, in State v. Hancich, 200 Conn. 615, 513 A.2d 638 (1986), our Supreme Court strongly suggested that the lesser included offense doctrine applies to motor vehicle violations and infractions. In that case, the defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor, in violation of General Statutes § 14-227a. The trial court denied a request by the defendant for a lesser included offense instruction on the infraction of driving while impaired, in violation of General Statutes § 14-227a (b) and (i), on the ground that the infraction “could not be considered an offense
We read State v. Hancich, supra, as standing for the proposition that the lesser included offense doctrine applies between motor vehicle violations and infractions, both of which are clearly excepted from the penal code definition of “offense.” See footnote 3, supra. Therefore, if the doctrine applies between two offenses as defined by the penal code in General Statutes § 53a-24, and if it applies between two transgressions of the law which are excepted from that definition, such as motor vehicle violations and infractions, we see no reason why it should not also apply between an offense as defined by the penal code and a transgression of the law which is excepted from that definition, such as a motor vehicle violation.
Second, the function and doctrinal roots of lesser included offense analysis lead to the conclusion that the doctrine applies in this case. “The doctrine of lesser included offenses in Connecticut serves the state by precluding acquittal due to failure of proof of the greater crime, the accused by permitting conviction of a lesser crime, and the constitution by preserving the function of the factfinder.” State v. MacFarlane, 188 Conn. 542, 546, 450 A.2d 374 (1982); see also C. Schuman & L. Lager, “Connecticut’s Lesser Included Offense Doctrine,” 54 Conn. B.J. 313 (1980). A “prin
Although it has not been held that a defendant has a constitutional right to a lesser included offense instruction; see Beck v. Alabama, 447 U.S. 625, 635, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980); State v. Whistnant, supra, 581; the doctrine’s roots grow out of the concept of establishing guilt by proof beyond a reasonable doubt. “[PJroviding the jury with the ‘third option’ of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard . . . . ” Beck v. Alabama, supra, 633-34. In a case where “one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense”; (emphasis in original) id., 634, quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973); the doctrine serves to implement the reasonable doubt standard by relieving the jury, in an appropriate case, of the Hobson’s choice between an unjust conviction and a gratuitous acquittal. Beck v. Alabama, supra. Thus, where as here the charge of negligent homicide with a motor vehicle was required to be proved beyond a reasonable doubt, and where the four traditional requirements of the doctrine were met, the court properly designated negligent homicide with a motor vehicle as a lesser included offense of misconduct with a motor vehicle.
ADMISSION OF OUT-OF-COURT STATEMENTS OF DEFENDANT
The defendant next claims that the court erred in admitting certain out-of-court statements of his which were made prior to the accident, because they were hearsay, were self-serving and lacked reliability, and thus did not come within any exception to the hearsay rule.
The state presented Trooper Harold Adams of the Virginia state police as a witness. After an examination out of the jury’s presence, he testified before the jury that at approximately 11 p.m. on January 18,1983, which was sixteen hours before the accident, he had a conversation with the defendant on Interstate 95 in Virginia. The defendant was proceeding northbound in the same tractor-trailer that was involved on the same interstate highway in the Connecticut accident. The defendant stated to Adams that he had recently replaced a head on his vehicle’s speedometer, and the defendant estimated his speed to Adams in terms, not of miles per hour as would be indicated by the speedometer, but of revolutions per minute as indicated by his tachometer. Thus, the jury could infer that the defendant’s speedometer was not working properly. The evidence was relevant to the state’s claim that the defendant was traveling too fast at the time of the accident sixteen hours later. The defendant does not question its relevance.
The defendant objected at the examination on the basis, inter alia, that the statement was not against his interest when it was made and was self-serving. The
The defendant’s claim is effectively disposed of by State v. Stepney, 191 Conn. 233, 249-54, 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). In that case the Supreme Court recognized that “ ‘[t]he statements made out of court by a [criminal defendant] are universally deemed admissible when offered against him’; 4 Wigmore, Evidence (Chadbourn Rev. 1972) § 1048, p. 2; so long as they are relevant and material to issues in the case. Although the theories for admissibility differ, the vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial.” Id., 251.
C
THE ARGUMENT OF THE STATE IN FINAL CLOSING ARGUMENT
The defendant next claims that the court erred in denying his motion for a mistrial which was based on
In final closing argument; see Practice Book § 874 (4); after the defendant had presented his final argument, the assistant state’s attorney stated the following: “I say to you ladies and gentlemen the State has proven to you beyond a reasonable doubt that not only was Charles Kluttz negligent on that day and without a reasonable explanation to show you that he was innocent, but he was criminally negligent and his criminal negligence in the operation of the [truck] with the trailer attached caused the deaths of seven people. ...” (Emphasis added.) Court was adjourned for the day immediately thereafter. The next morning the defendant moved for a mistrial, claiming that the emphasized portion of the argument amounted to improper comment on his failure to testify. The court denied the motion.
The ultimate question on a motion for mistrial is whether there was “ ‘substantial and irreparable prejudice to the defendant’s case.’ Practice Book § 887. A mistrial is warranted ‘only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial.’ ” State v. Jennings, 5 Conn. App. 500, 505, 500 A.2d 571 (1985). Such a motion invokes the court’s wide discretion. Id.
The constitutional prohibition against indirect comment on the defendant’s failure to testify “does not mean, however, that the state is precluded in argument from commenting on the strength of its case or the weakness of the defense case. State v. Magnotti, [198 Conn. 209, 220, 502 A.2d 404 (1985)]; see United States ex rel. Leak v. Follette, 418 F.2d 1266, 1268-69 (2d Cir.
A careful reading of the challenged language in its context yields the conclusion that it referred solely to the strength of the state’s case, and not to the failure of the defendant to testify. In proving guilt beyond a reasonable doubt, the state must produce proof which precludes every reasonable hypothesis of innocence, is consistent with guilt and is inconsistent with any other rational conclusion. State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985). The challenged language
Furthermore, even if we assume, as the defendant argues, that the challenged language asked the jury to seek a reasonable explanation of innocence from the defendant, taken in context it was not improper. There was evidence, introduced through the defendant’s doctor and a hospital social worker, that he suffered from retrograde amnesia, that he did not remember the accident, but that he did remember trying to use his brakes.
The challenged language was in response to statements made by defense counsel in his closing argument. He had argued that there were reasonable explanations for the accident which were consistent with the defendant’s innocence. These arguments referred to the defendant’s amnesia, and counsel further argued that it was reasonable to infer that the defendant’s brakes had unexpectedly and suddenly failed, that he downshifted gears in an attempt to slow his tractor-trailer as he approached the toll station, and that he applied his emergency brake, which explained certain skid marks on the road. In sum, his argument was that it was a reasonable explanation from the evidence that the accident was caused, not by the defendant’s negligence, but by mechanical failure which was beyond his control.
The state was entitled to comment on the weakness of the defendant’s case and his failure to support his own factual theories. State v. Allen, supra. This is especially true where the defendant has provided the jury with a reason for his failure to explain the events leading up to the accident, namely, that he suffered amnesia. The defendant’s case necessarily would require persons other than the defendant to supply information or explanations; State v. Allen, supra; as to what occurred. The failure of the defendant to call expert or lay witnesses in support of his theory is a legitimate area of comment. Where the defendant presented the jury with an explanation for his failure to explain the events surrounding the accident, and where that explanation was unrelated to the defendant’s constitutional right not to testify, we cannot conclude that the jury naturally and necessarily interpreted the state’s argument as a comment on his failure to testify. Id.
D
JURY INSTRUCTION ON NEGLIGENCE
The defendant’s fourth claim of error requires little discussion. In explaining the concepts of negligence and criminal negligence to the jury, the court a number of times used the term “simple negligence.” The defendant timely excepted to the charge.
It is clear from reading the entire charge, as we must; State v. Wright, 9 Conn. App. 275, 279, 518 A.2d 658 (1986); that the court used the term “simple negligence” solely as a label for the concept of negligence involving breach of a duty, either the common law duty of reasonable care or the breach of a statutory duty. This was a case involving thirteen days of trial, thirty-five witnesses, over 100 full exhibits, much circumstantial evidence as to the cause of the accident which resulted in seven deaths, and yielding over 1700 pages of transcript. It stretches the imagination beyond the breaking point that the jury was misled by this term, which the court clearly used as a label for a thoroughly explained concept, into thinking that their function was reduced to anything easy, mere or uncomplicated. The defendant’s claim is a classic case of hypertechnical dissection of the charge, which we do not countenance. State v. Webb, 8 Conn. App. 620, 630, 514 A.2d 345 (1986).
II
The State’s Appeal
The state challenges the trial court’s ruling that double jeopardy principles prevent imposing more than one sentence upon the defendant after his conviction on seven counts involving the deaths of seven persons. We agree with the state, and remand the case for imposition of new sentences.
We first consider the defendant’s argument that this appeal is moot because the court, in imposing the sentence, stated that even if it had determined that it was
It is well established that, from a defendant’s standpoint, multiple convictions yielding concurrent sentences do not result in mootness, because they also yield significant collateral consequences beyond the time spent in incarceration. Barlow v. Lopes, 201 Conn. 103, 112, 513 A.2d 132 (1986). The state’s interests in securing convictions of the guilty also go beyond the factors of incarceration and a fine. They include the vindication of the law which has been violated; see State v. Hansen, 8 Conn. App. 26, 29, 510 A.2d 465 (1986); and the sense of redress for the victims of that violation. See, e.g., Practice Book § 919 (2) and General Statutes § 54-91c (b), which give victims the right to address the court upon the imposition of sentence. Furthermore, we believe that just as the defendant is entitled to appeal in order to shed himself of improper collateral consequences of a conviction, the state is entitled to appeal where appropriate in order to impose proper collateral consequences. We therefore turn to the merits of the appeal.
Prior to trial, the defendant filed a “Motion for Ruling Re: The Court’s Power To Sentence Consecutively,” in which he requested the court to rule “[wjhether double jeopardy permits more than one sentence for Misconduct with a Motor Vehicle in this case and, if so, whether the sentences can be consecutive or must be concurrent?” The court ruled that double jeopardy principles required that a violation of General Statutes § 53a-57 resulting in the death of multiple vie
The trial court’s ruling, and the state’s claim of error, implicate “the protection afforded by . . . [the double jeopardy] provision against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). ‘With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’ Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d (1983). . . . [T]he issue, though essentially constitutional, becomes one of statutory construction.” State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985). Our inquiry, “when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they
General Statutes § 14-222a provides for imprisonment or a fíne or both for “[a]ny person who, in consequence of the negligent operation of a motor vehicle, causes the death of another person . . . .” (Emphasis added.) For purposes of double jeopardy analysis, this language falls squarely within the rule of State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). In that case, our Supreme Court held that the trial court did not err in sentencing the defendant, who had been convicted of three counts of felony murder arising out of the same course of action, to three consecutive terms of imprisonment based on the fact that there were three victims. The court stated: “The statute refers to the death of ‘[another] person’ in the singular. A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore, when two or more persons are the victims of a single episode there are as many offenses as there are victims.” Id., 565-66; see also State v. Madera, supra, 109-10.
The defendant argues that the reasoning underlying the Couture decision, namely, to protect “citizens from the criminal conduct of another”; State v. Couture,
The repeal of the penal code version of negligent homicide with a motor vehicle and its reenactment as a motor vehicle violation does not change this result. The legislative history makes clear that with the movement of the statute to title 14, “[t]he penalties do not change. Nothing changes in the existing law . . . The penalties remain the same . . . .”24 H.R. Proc., Pt. 3, 1981 Sess., p. 885, remarks of Representative Richard D. Tulisano. We conclude, therefore, that by proscribing conduct which leads to the death of “another person,” the legislature intended to punish the “individual acts” of causing death separately rather than “the course of action which they constitute.” State v. Rawls, supra, 121.
The conclusion that a vehicular homicide resulting in multiple deaths yields multiple sentences is in accord with the great weight of authority in other jurisdictions. See, e.g., State v. Miranda, 3 Ariz. App. 550, 557-58, 416 P.2d 444 (1966); McHugh v. State, 160 Fla. 823, 824, 36 So. 2d 786 (1948), cert. denied, 336 U.S. 918, 69 S. Ct. 640, 93 L. Ed. 1081 (1949); State v. Lowe, 130 So. 2d 288, 289 (Fla. App. 1961); People v. Allen, 368 Ill. 368, 379, 14 N.E.2d 397 (1937), appeal dismissed, 308 U.S. 511, 60 S. Ct. 132, 84 L. Ed. 436 (1939); State v. McFadden, 320 N.W.2d 608, 618 (Iowa 1982); Fleming v. Commonwealth, 284 Ky. 209, 210-11,
The defendant also argues that the rule of lenity should be applied when construing General Statutes § 14-222a because the statutory definition of “person” is ambiguous. He points out that under the penal code, “person” is defined as “a human being”; General Statutes § 53a-3 (1); whereas General Statutes § 14-212 (1) defines “person,” for purposes of General Statutes § 14-222a, by reference to General Statutes § 14-1 (41). That statute, in turn, defines “person” to include “any individual, corporation, association, copartnership, company, firm or other aggregation of individuals . . . . ” (Emphasis added.) From this he argues that General Statutes § 14-222a is not dearly aimed at the protection of individual lives from negligent vehicular operation but is ambiguous. Therefore, he claims, the rule of lenity, as articulated in State v. Rawls, supra, requires that “the issue should be resolved in favor of lenity and against turning a single transaction into multiple offenses.” Id., 122. We reject this argument because the statutory definition on which the defendant relies was not in effect at the time of the defendant’s conduct in this case. The statutory reference, in General Statutes § 14-212, to the definitions contained in General Statutes § 14-1, was not present in 1983,
There is no error on the defendant’s appeal. There is error on the state’s appeal, the judgment is set aside and the case is remanded to the trial court for resentencing in accordance with this opinion.
In this opinion Daly, J., concurred.
General Statutes § 14-222a provides: “Any person who, in consequence of the negligent operation of a motor vehicle, causes the death of another person shall be fined not more than one thousand dollars or imprisoned not more than six months or both.”
General Statutes § 53a-57 provides: “(a) A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.
“(b) Misconduct with a motor vehicle is a class D felony.”
General Statutes § 53a-24 provides: “(a) The term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or of any other state or of federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. Every offense which is not a ‘crime’ is a ‘violation.’ Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.
“(b) Notwithstanding the provisions of subsection (a), the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations. Said provisions shall apply to convictions under section 21a-278 except that the execution of any mandatory minimum sentence imposed under the provisions of said section may not be suspended.”
General Statutes § 53a-27 provides: “(a) An offense, for which the only sentence authorized is a fine, is a violation unless expressly designated an infraction.
“(b) Every violation defined in this chapter is expressly designated as such. Any offense defined in any other section which is not expressly designated a violation or infraction shall be deemed a violation if, notwithstanding any other express designation, it is within the definition set forth in subsection (a).”
An example of a penal code “violation” is General Statutes § 53a-198, entitled “Failing to identify a comic book publication . . . .”
We reject the state’s argument that the defendant did not properly preserve this issue for appeal. The defendant specifically objected to the state’s request to give the instruction, took exception when the court indicated that it intended to grant the request, took exception after the instruction was given, and reiterated his claim in argument on his motion for judgment of acquittal after the verdicts. He was not required, as the state suggests, to repeat the claim when the court, in response to specific questions from the jury regarding the meaning of negligence, repeated its instructions on that meaning. Cf. State v. Hilliard, 3 Conn. App. 339, 341, 488 A.2d 463 (1985) (where court gives correcting charge after proper exception taken, defendant must except to correcting charge in order to challenge it on appeal).
The penal code was adopted in 1969 and became effective on October 1, 1971. Public Acts 1969, No. 828. The exemption of infractions from the definition of “offense” was added in 1975. Public Acts 1975, No. 75-577, § 8. General Statutes § 51-164m (a) entrusts to the judges of the Superior Court the responsibility of establishing a schedule of fines for infractions, and subsection (d) of that section provides a fine of thirty-five dollars for any infraction not so scheduled. Examples of infractions include improper operation of a bicycle; General Statutes § 14-286; violations of certain local ordinances; General Statutes § 51-164p; and allowing a dog to roam. General Statutes § 22-364.
General Statutes § 53a-24 (a) provides in pertinent part that “[c]onviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.”
We recognize that this reasoning is at odds with that of the Appellate Session of the Superior Court in State v. Anonymous (1980-5), 36 Conn. Sup. 527, 416 A.2d 168 (1980), on which the state relies. The court in that case read the phrase, “motor vehicle violation” to incorporate the definition of “violation,” and reasoned that “motor vehicle violation” meant an offense involving the use of a motor vehicle which was punishable only by a fine. Id., 530. We, as a constitutional intermediate appellate court; see Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 354 n.8, 494 A.2d 606 (1985); are not bound, of course, by the precedent of the statutory Appellate Session of the Superior Court. State v. Hyatt, 9 Conn. App. 426, 430, 519 A.2d 612 (1987). More importantly, however, we believe that its reasoning unduly disregards the statutory analysis which builds on the term “offense,” and unduly disregards the import of General Statutes § 53a-24 (b). We, therefore, decline to follow it.
We also recognize that the commentary to General Statutes § 53a-24 (b) is less than a model of clarity and contributes to the confusion of whether a motor vehicle violation is an “offense.” See Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes. The first three sentences of the commentary point toward the conclusion that a motor vehicle violation is not an “offense.” The fourth sentence lends some support to the contrary conclusion, namely, that it is an “offense." In this instance, we hesitate to draw any firm inferences as to legislative intent from this Delphic commentary.
We do not suggest that a motor vehicle violation cannot be treated as a criminal offense for purposes of the procedures which must be followed for prosecution thereof. Indeed, the Practice Book rules and procedures in criminal cases; Practice Book §§ 592 through 1022; are applicable to motor vehicle violations by virtue of Practice Book § 1021 (5), which specifically defines “offense” to include “traffic offenses.” This inclusion, for purposes of procedure, is fully consistent with our traditional allocation of power between the legislative and judicial branches: the legislature defines crimes and the judiciary defines the procedures by which they are prosecuted. State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974). Although the rules of criminal procedure do not specifically state that the requisite burden of proof for a motor vehicle violation is the traditional criminal standard of proof beyond a reasonable-doubt, that is implicit in the rules, particularly in the definition of “Trial” as “that judicial proceeding at which the guilt or innocence of the defendant to the offense or offenses charged is to be determined.” (Emphasis added.) Practice Book § 1021 (11).
The two cases from other jurisdictions which the defendant has brought to our attention; Commonwealth v. Galvin, 388 Mass. 326, 446 N.Ed.2d 391 (1983); Bloomington v. Kossow, 269 Minn. 467, 131 N.W. 2d 206 (1964); are not pertinent, because they involve interpretation of statutory language and schemes which are unlike ours.
We reject the state’s claim that the defendant did not raise this claim with sufficient clarity in the trial court,. Our review of the transcript indicates otherwise.
We also reject the state’s claim that the defendant did not preserve this issue for appeal by restating his objection when the testimony was repeated, in somewhat abbreviated and refined terms, in the presence of the jury. Although there is prior authority supporting the state’s position; see State v. Bell, 188 Conn. 406, 414, 450 A.2d 356 (1982) (defendant’s failure to object to introduction of evidence at trial, where objection and exception voiced during pretrial motion in limine, deprives him of a basis for his claim); the current rules of appellate procedure, effective October 1,1986, provide as follows: “In jury trials, where there is a motion, argument or offer of proof or evidence in the 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 his objection 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 [preservation on appeal] 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.” Practice Book § 4185. This procedural rule applies to this appeal. Practice Book § 4189 (formerly § 3166); State v. McIver, 201 Conn. 559, 568 n.3, 518 A.2d 1368 (1986)
The defendant’s suggestion that our civil cases have not yet adopted the rule that a statement of a party-opponent, as distinguished from a declaration against interest, need only be relevant to be admissible, is both beside
We need not discuss at length the competing claims of the parties concerning two earlier, pretrial rulings by the court, Reilly, J., on a motion to dismiss or consolidate filed by the defendant, and on an earlier “Motion Re: Ruling,” filed by the defendant which was worded identically to the motion acted on by the judge who presided at the trial, Bingham, J. Judge Reilly denied both of the earlier motions. Suffice it to say that our review of the trial court record discloses that the parties did not understand Judge Reilly’s decisions to determine conclusively, for purposes of the case, whether multiple punishments could be imposed in the event of multiple convictions, as opposed to whether there could be multiple counts of prosecution. In tackling head-on the thorny issue of multiple sentences when it was presented, Judge Bingham did not violate the “flexible principle” of the law of the case; Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982); or the more limited stricture of State v. Deep, 181 Conn. 284, 286, 435 A.2d 333 (1980), on which the state relies, but which was subsequently limited to reconsideration of the propriety of a grand jury charge. See Breen v. Phelps, supra, 100-101.
We note, moreover, that even under the defendant’s analysis the requisite ambiguity would be lacking. “The ‘touchstone’ of the rule of lenity is ‘statutory ambiguity.’ ” State v. Madera, 198 Conn. 92, 122, 503 A.2d 136 (1985), quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S. Ct. 2247, 65 L. Ed. 2d 205 (1980). “Lenity thus serves only as an aid for resolving an ambiguity; it is not meant to be used to beget one. The rule comes into operation ‘at the end of the process of construing what [the legislature] has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.’ Callanan v. United States, [364 U.S. 587, 596, 81 S. Ct. 321, 5 L. Ed. 2d 312, reh. denied, 365 U.S. 825, 81 S. Ct. 687, 5 L. Ed. 2d 703 (1961)].” Albernaz v. United States, 450 U.S. 333, 342, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981).
The title 14 definition of a “person” as “any individual” is no less singular in its connotation than the Penal Code definition of a “person” as “a human being.” State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 409 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Nor does that part of General Statutes § 14-1 (41) which defines a “person” as any “other aggregation of individuals” lend support to the proposition that the statute is ambiguous as to whether convictions can be had for each individual death.
General Statutes § 14-212 provides that “[t]erms used in this chapter shall be construed as follows, unless another construction is clearly apparent from the language or context in which the term is used or unless the construction is inconsistent with the manifest intention of the general assembly . . . .” In determining the meaning of the phrase “other aggregation of individuals,” we are mindful of the rule of ejusdem generis “which explains that ‘where a particular enumeration is followed by general descriptive words, the latter will be understood as limited in their scope to . . . things of the same general kind or character as those specified in the particular enumerations.’ Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296, 82 A. 561 [1912].” Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 413, 429 A.2d 905 (1980). Accordingly, the phrase “other aggregation of individuals” must be construed in light of the immediately preceding enumeration which includes corporations, associations, copartnerships, companies and firms. We conclude that the phrase “other aggregation of individuals” refers, not to the victims of vehicular negligence but, from the context; General Statutes § 14-212; to businesses or officially recognized entities.