author: GRUENDEL, J.

text:
    COREY BROOKS v. COMMISSIONER OF CORRECTION
    (AC 27944)
    Bishop, Gruendel and Cretella, Js.

      Argued September 11, 2007
    officially released January 1, 2008

      Jo Anne Sulik, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Tiffany M. Lockshier, assistant state’s attorney, for the appellant (respondent).

      Annacarina Del Maslro, senior assistant public defender, for the appellee (petitioner).
   Opinion

GRUENDEL, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting relief to the petitioner, Corey Brooks, on count two of his habeas petition and ordering the petitioner resentenced to a lesser term of years on his violation of probation and other charges. The respondent claims that (1) the court’s finding that the state violated its plea agreement with the petitioner is not supported by the evidence, (2) the court acted improperly when it ordered specific performance of the original plea agreement and (3) the court lacked jurisdiction to impose a criminal sentence. We affirm in part and reverse in part the judgment of the habeas court.

The following facts and procedural history are relevant to the respondent’s appeal. On January 20, 2000, while on probation, the petitioner was arrested for possession of narcotics within 1500 feet of a school or housing project. While that charge was pending, the petitioner again was arrested for possession of narcotics and also for possession of a stolen credit card. On June 29, 2000, the petitioner appeared before the trial court regarding his charges. On that day, he pleaded guilty to the charge of violation of probation. He returned to court on September 7, 2000, and was sentenced for violation of probation to a term of six years incarceration. On October 12, 2000, the petitioner again appeared before the court to resolve the charges of possession of narcotics and possession of a stolen credit card. He pleaded guilty to one count of possession of narcotics in exchange for a four year sentence to run consecutively to the six year sentence he previously had received for the violation of probation charge. The remaining charges were nolled. He did not file a direct appeal from either judgment.

On March 1, 2004, the petitioner filed a petition for a writ of habeas corpus, alleging that the prosecutor’s office had “reneged” on a plea agreement it had entered into with him for a total sentence of eight years and that his counsel had failed to represent him adequately. The relief he sought was to have his sentence reduced from ten years to eight years or, in the alternative, to be allowed to withdraw his guilty pleas. The petitioner then filed an amended petition, restating the facts pertinent to his claim of ineffective assistance of trial counsel and added a second count alleging that the state breached the plea agreement it had entered into with him. On June 29, 2006, the habeas trial was heard. At the close of testimony, the petitioner withdrew his ineffective assistance of counsel claim, leaving only the claim of the state’s breach of agreement for the court to decide. The court found in favor of the petitioner that there had been a global settlement agreement between the petitioner and the state for an eight year sentence on all of the charges pending against him when he agreed to plead guilty to the violation of probation. The court ordered specific performance of the plea agreement and, as such, further ordered that the six year sentence on the mittimus dated September 7,2000, pertaining to the violation of probation charge, be changed to four years so that the eight year sentence contemplated by the global agreement could be effectuated. This appeal followed. Additional facts will be set forth as necessary.

I

The respondent first argues that there was evidence that would tend to show that (1) the state did not enter into a plea agreement with the petitioner, and, therefore, the state could not have breached any such agreement and (2) if there was such an agreement, it was implicitly rejected by the trial court, and, therefore, the habeas court should not have ordered specific performance. The respondent’s argument, however, is premised on an inaccurate standard of review.

“It is axiomatic that it is not the function of this court to find facts.” Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 96 Conn. App. 326, 335, 901 A.2d 49 (2006). As such, we will not engage in a rebalancing of the evidence to determine whether the evidence would have supported a different outcome. “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Hill v. Commissioner of Correction, 103 Conn. App. 641, 646, 932 A.2d 413, cert. denied, 284 Conn. 925, 933 A.2d 726 (2007). “[T]his court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Id., 645-46. On the basis of our review in the present case, we conclude that there was sufficient evidence provided to the court in the form of transcripts and testimony from which the court found that, in fact, there was an agreement between the state and the petitioner and that the petitioner was entitled to receive the benefit of that agreement. We cannot, therefore, conclude that the court’s findings of fact were clearly erroneous.

The following additional facts are relevant to this issue. During the habeas proceeding, the court was presented with several transcripts of the petitioner’s previous dealings with the trial court, as well as the petitioner’s testimony. Neither the state’s attorney nor the petitioner’s previous defense attorney testified. The court was presented with a transcript from June 29, 2000, in which the state’s attorney represented to the trial court that all of the petitioner’s pending files would be resolved within an eight year settlement. He stated: “What is contemplated here with the new arrest that he has is that he is going to get every bit of the eight years when we sentence him. Counsel provided me with some information that he wants me to confirm. I indicated that I would do that. [An attorney in the state’s attorney’s] office indicated to [the petitioner’s counsel] that he would sentence his client to eight years. So, we are going to continue it for [the petitioner] to get his eight years. And on the continuance, if you could canvass him today, he will plead guilty to the pending files, get eight years on everything, and he’ll be sentenced.” (Emphasis added.)

The court proceeded to canvass the petitioner on the charge of violation of probation, and he entered a guilty plea on the basis of the understanding that he would receive a sentence of eight years on all of his pending files. The petitioner did not enter pleas on the other charges because the state’s attorney indicated to the court that he had to confirm some information first. The respondent argues that the plea agreement was contingent on the information’s being confirmed, and, as such, there could not have been an agreement until such time as it was confirmed. The petitioner explained through his testimony, however, that he had a deal with the state for an eight year sentence on all of his then pending files. He further explained that the agreement contemplated a reduction in the eight year sentence if some information that he had given to the federal Drug Enforcement Administration (DEA) was confirmed. The state’s attorney did not testily at the habeas proceeding. The court, therefore, was free to accept or reject the petitioner’s uncontested testimony that he had a firm deal for an eight year sentence and that it could have been reduced had the information he provided been helpful to the DEA.

The petitioner returned to the trial court on September 7,2000, with the expectation that the plea agreement that had been represented to the court on June 29, 2000, would be effectuated, namely, that he would plead guilty to the remaining files and receive an eight year sentence for all charged offenses. The September 7, 2000 transcript tells a different story. After the state’s attorney described the events that led to the petitioner’s arrest on the pending files, he requested that the petitioner receive a sentence of eight years on the violation of probation charge. Regarding the other pending files, the state’s attorney requested a new date and suggested going to trial on them because they could not be resolved. The petitioner’s attorney requested that the petitioner receive a four year sentence for violation of probation and requested another pretrial on the pending files, suggesting that “tempers” might have been the problem with the resolution of the other files.

The petitioner explained through his testimony that, prior to the proceedings on September 7, 2000, he was meeting with his attorney about securing a better offer than the eight year offer. At that point, the state’s attorney walked in on the conversation and then left the room. The petitioner’s attorney spoke with the state’s attorney and reported back to the petitioner that the state’s attorney would no longer honor the agreement for the eight year sentence on all pending files because the state’s attorney “felt like [the petitioner] insulted his intelligence by saying that [he] couldn’t take the eight . . . .” The petitioner asked his attorney what his options were and asked if he could take his plea back. The petitioner explained that his attorney instructed him that it was too late to take his plea back because he had already been canvassed on it. When the parties appeared before the court, the state’s attorney argued that the petitioner should receive eight years on the violation of probation charge and the petitioner’s attorney argued that the petitioner should receive four years on the charge. The corut ultimately sentenced the petitioner to six years on the violation of probation charge but continued the case with the understanding that the petitioner would plead guilty to and be sentenced on the remaining files.

The respondent argues that “[o]bviously, the state withdrew from the ‘agreement’ when the petitioner failed to enter a guilty plea by September 7, 2000, and moved for a speedy trial.” The court was free, however, to accept the petitioner’s uncontested testimony that he failed to enter guilty pleas on the remaining charges and moved for a speedy trial because the state refused to honor the plea agreement after overhearing a conversation between the petitioner and his defense attorney.

The petitioner’s case was continued to September 26, 2000, for the petitioner to enter his pleas to the remaining files. On that day, however, the court refused to accept the petitioner’s pleas because it was “convinced that [the petitioner] [did not] know what [he was] doing.” The petitioner explained that the court refused to accept his pleas because he was upset. He further explained that he was upset because his attorney “wasn’t going after [the state’s attorney] because he didn’t give [him] that original eight year deal.”

The case eventually was continued to October 12, 2000. By that point, the petitioner had begun serving his sentence for violation of probation, the state continued to refuse to honor the plea agreement, and the petitioner was confronted with either taking a four year plea agreement on one of the narcotics charges or risking going to trial on all of his remaining charges. The petitioner testified that although he continued to insist on the eight year sentence and instructed his attorney to attempt to effectuate it, his attorney had indicated to him that it was “too late” to withdraw his plea or to enforce the agreement. The petitioner explained that he trusted the representation of his attorney and “didn’t really . . . push the issue” because he “felt that [it] was a done matter.” On advice of counsel, therefore, and facing a trial on the pending charges, the petitioner pleaded guilty to one of the narcotics charges and accepted a four year sentence, which was consecutive to the six years to which he had already been sentenced. The remaining charges were nolled.

The respondent argues that the petitioner’s request for and acceptance of a four year sentence on the narcotics charge on October 12, 2000, was “simply a situation in which two parties ‘renegotiated’ the terms of their ‘contract’ when the petitioner failed to meet his obligations.” The record reveals, however, that by October 12, 2000, the global agreement for an eight year sentence on all pending files would not be honored. Facing a trial on his remaining charges, the petitioner accepted an offer under which he would plead guilty to one of his narcotics charges and receive a four year sentence to run consecutively to the six year sentence he had already received. The petitioner, therefore, did not simply renegotiate the original plea agreement. Rather, as the court found, he entered into a new agreement with the state to resolve his remaining charges.

Finally, the respondent’s contention that the court implicitly rejected the plea agreement because it ultimately sentenced the petitioner to a term of years greater than eight, is unpersuasive. The respondent argues that when a trial court imposes a sentence greater than that agreed to in the plea agreement, the trial court implicitly rejects that plea agreement. See Miller v. Commissioner of Correction, 29 Conn. App. 773, 780, 617 A.2d 933 (1992). In Miller, after the state’s attorney advised the court of the plea agreement it had reached with the defendant, the court canvassed the defendant and advised the defendant that he would have a right to withdraw his plea if the court imposed a sentence greater than that to which the parties had agreed. Id., 774. When the defendant returned to court, the court did in fact sentence him to a term greater than that stated in the plea agreement but did not advise the defendant that he could withdraw his plea. Id., 774-75. This court held that the defendant in Miller should have had the right to withdraw his plea, in accordance with Practice Book § 39-10, because the court effectively had rejected his plea by sentencing him to a term of years greater than that agreed on in the plea agreement. Miller v. Commissioner of Correction, supra, 780-81.

In contrast, the record in the present case reflects that on June 29,2000, after the state’s attorney presented the plea agreement to the court, the court canvassed the petitioner and accepted his plea to the charge of violation of probation. The petitioner returned to the court on September 7, 2000, for sentencing and received a sentence of six years on the violation of probation charge, a term of years less than the agreed on sentence. As the habeas court pointed out, this sentence was not a “clear abrogation” of the plea agreement. Further, by the time the petitioner returned to court on October 12, 2000, his circumstances had changed drastically. By this point, the petitioner had begun serving his sentence for violation of probation, the state’s attorney had refused to honor the plea agreement and the petitioner was confronted with either taking an additional sentence of four years or going to trial on his remaining charges. The record reflects, therefore, that the court’s sentencing of the petitioner to four years on October 12, 2000, which made the petitioner’s total sentence ten years, was not an implicit rejection of the June 29, 2000 plea agreement but, rather, it was the court’s acceptance of a separate and distinct plea agreement struck between the state and the petitioner after the state had refused to honor the original plea agreement. The habeas court concluded that “[the petitioner] voluntarily gave up the constitutional right to contest the violation of probation in exchange for a total eight year sentence. He did not get the benefit of that; he is entitled to that.” On the basis of all the evidence presented to the court, we cannot conclude that the court’s findings were clearly erroneous.

II

The respondent’s second claim is that the court improperly granted specific performance of the plea agreement. The respondent argues that it is the unique function of the trial court, not the habeas court, to weigh the equities and to decide whether the petitioner should be afforded the opportunity to withdraw his plea or to receive specific performance of the plea agreement. We conclude that under the facts and circumstances of this case, it was proper for the habeas court to order specific performance of the plea agreement.

“[T]he writ of habeas corpus holds an honored position in our jurisprudence . . . [as] a bulwark against convictions that violate fundamental fairness.” (Internal quotation marks omitted.) Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984). Pursuant to General Statutes § 52-470 (a), the court hearing any habeas petition “shall . . . dispose of the case as law and justice require.” In accordance with § 52-470, “the [habeas] trial court, much like a court of equity, has considerable discretion to frame a remedy, so long as that remedy is commensurate with the scope of the constitutional violations which have been established.” (Emphasis added.) Gaines v. Manson, supra, 528. In the present case, the petitioner gave up his constitutional right to be tried before a jury and to have the state prove every element of the offense when he entered a guilty plea in reliance on a plea agreement. The question remains as to what type of remedy is appropriate when a finding of guilt is made on the basis of a plea agreement, which ultimately is not honored.

We have held that “[w]hen a guilty plea is induced by promises arising out of a plea bargaining arrangement, fairness requires that such promises be fulfilled by the state. . . . The same concept of fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea.” (Internal quotation marks omitted.) Miller v. Commissioner of Correction, supra, 29 Conn. App. 778. “One alternative may do justice in one case, and the other in a different case. In choosing a remedy, however, a court ought to accord a defendant’s preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by [the state’s] breach of a plea bargain are those of the defendant, not of the [s]tate.” (Internal quotation marks omitted.) State v. Rivers, 283 Conn. 713, 732-33, 931 A.2d 185 (2007); see also United States v. Kummer, 89 F.3d 1536, 1543 (11th Cir. 1996) (“[t]his court has said that when the government . . . does not follow a plea agreement the court should order specific performance or afford the defendant an opportunity to withdraw the plea; and specific performance is preferred”), cited with approval in State v. Rivers, supra, 733.

“[T]he primary purpose of a decree of specific performance, which is always an equitable remedy, is to place an injured [party] in a position that replicates, as nearly as possible, that which [he or she] would have enjoyed but for the [other party’s] unexcused breach.” (Internal quotation marks omitted.) Id. In the present case, the petitioner requested that his plea agreement be specifically performed, and the habeas court granted the relief requested. The question presented is whether the habeas court acted properly in granting such relief. Although “[generally, the determination of what equity requires in a particular case is within the discretion of the trial court;” id., 734; our Supreme Court has found that under appropriate circumstances, the provision of the habeas corpus statute that provides that the court shall dispose of the case, “as law and justice require,” allows the habeas court to grant specific performance of a petitioner’s plea agreement. See Medley v. Commissioner of Correction, 235 Conn. 413, 417 n.5, 667 A.2d 549 (1995); General Statutes § 52-470.

In the present case, the respondent failed to provide the habeas court with any evidence of equitable considerations. Because there were no equitable considerations presented, there was no reason for the habeas court to remand the case to the trial court, except for resentencing in accord with the agreement, after it found that there was in fact an agreement entered into between the petitioner and the respondent and that the petitioner was entitled to the benefit of that agreement. In so concluding, we also follow our Supreme Court’s most recent pronouncement in this area, that “[b]ecause the state has failed to raise any factual issues that would affect the equitable determination in the present case ... we reject the state’s contention that a determination of the propriety of granting specific performance requires a factual weighing of the equities by the trial court.” State v. Rivers, supra, 283 Conn. 734. We conclude, therefore, that the habeas court acted properly in granting a judgment of specific performance when it found that a plea agreement had been entered into and that the petitioner had not received the benefit of the agreement, where the respondent failed to provide evidence of any factual issues that would affect an equitable determination of the propriety of granting specific performance.

Ill

The respondent finally claims that the court lacked jurisdiction to resentence the petitioner. The court stated in its decision that “the relief the court is going to order is on the mittimus dated September 7, 2000 ... in order to effect the agreement between the petitioner and the state, the sentence on that violation of probation should have been four years, with the four year consecutive sentence that was adjudged on [October] 12 ... . Consequently, the relief ... is ordered effective.” We conclude that although the habeas court had the authority to order the relief, it lacked the ability to effectuate the relief. It was necessary for the habeas court to issue a writ of habeas corpus directing the trial court to vacate the original sentences and to resentence the petitioner in accordance with the original plea agreement. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 743-44, 937 A.2d 656 (2007) (concluding that habeas court should have directed trial court to resentence petitioner in accordance with the habeas court’s determination that petitioner should have been sentenced in accordance with plea agreement); Medley v. Commissioner of Correction, supra, 235 Conn. 417 (case remanded to habeas court with direction to render judgment granting that part of petition seeking specific performance of plea agreement and to order trial court to resentence petitioner accordingly).

The judgment is affirmed in part and reversed in part and the case is remanded to the habeas court with direction to issue a writ of habeas corpus directing the trial court to vacate the original sentences and to resentence the petitioner in accordance with the original plea agreement.

In this opinion the other judges concurred.

       Practice Book § 39-10 provides: “If the judicial authority rejects the plea agreement, it shall inform the parties of this fact; advise the defendant personally in open court or, on a showing of good cause, in camera that the judicial authority is not bound by the plea agreement; afford the defendant the opportunity then to withdraw the plea, if given; and advise the defendant that if he or she persists in a guilty plea or plea of nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.”

       The respondent argues that the separate plea agreement entered into between the petitioner and the state’s attorney on October 12, 2000, is also evidence that there was never a firm agreement on June 29, 2000, for an eight year sentence on all pending files. This argument fails to consider that there was sufficient evidence before the court to find that the state’s attorney had entered into such an agreement on June 29, 2000, and had breached that agreement prior to October 12,2000, making it necessary for the petitioner to secure a new agreement.


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    MARK LINGENHELD v. DESJARDINS WOODWORKING, INC.
    (AC 27608)
    Flynn, C. J., and Gruendel and Berdon, Js.

      Argued September 5, 2007
    officially released January 1, 2008

      Joseph A. LaBella, for the appellant (defendant).

      Kathryn Calibey, with whom was Michael C. Jain-chill, for the appellee (plaintiff).
   Opinion

BERDON, J.

This appeal arises out of an action brought by the plaintiff, Mark Lingenheld, against the defendant, Desjardins Woodworking, Inc., a corporation that is owned by Peter Desjardins, for damages resulting from the defendant’s allegedly negligent conduct. Following a trial, the jury returned a verdict in favor of the plaintiff on his claim of negligence and awarded him $342,879.43. The court rendered judgment in accordance with the jury verdict, from which the defendant appeals. On appeal, the defendant claims that the court improperly (1) admitted three pieces of wood into evidence, (2) excluded two reports prepared by the department of labor’s division of occupational safety and health (department) from evidence, (3) admitted the videotaped testimony of the plaintiffs treating physician and (4) instructed the jury regarding noneconomic damages. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff, a subcontractor, was engaged by the defendant to assist with cabinet installation. As part of the cabinet construction process, the defendant used a fifteen horsepower Martin T-25 table shaper (table shaper) to construct cabinet components. The defendant purchased this machine sometime in May, 1995, and it was operated regularly by the defendant’s employees. On February 14, 2003, Michael Kelmelis, an employee of the defendant, was utilizing the table shaper to convert blanks of white oak into finished cabinet molding. The plaintiff had arrived at the shop earlier that morning to pick up these materials. As Kel-melis inserted a blank into the table shaper, the white oak broke apart and was ejected nineteen or twenty feet across the room into a walkway, where it struck the plaintiffs right hand. Upon impact, the blank of white oak immediately shattered into several pieces. As a result of this incident, the plaintiff sustained three fractures, contused tendons and a partially transected radial sensoiy nerve of the right hand. Subsequently, the plaintiff underwent surgery. He suffered permanent injuries and significant functional impairment to his right hand.

The plaintiff brought an action against the defendant, alleging that his injuries were caused by the defendant’s negligence. The jury returned a verdict in favor of the plaintiff and awarded him $352,807.96 in damages. This award included $28,807.96 for past economic damages, $24,000 for future economic damages and $300,000 for noneconomic damages. After collateral source reductions, the court rendered judgment in the amount of $342,879.43. This appeal followed. Additional facts and procedural history will be provided where pertinent.

I

The defendant first claims that the court abused its discretion by admitting three pieces of white oak into evidence as those that struck the plaintiffs hand. Specifically, the defendant argues that the plaintiff failed to lay an adequate foundation for admission of this wood because, at trial, Kelmelis, through whom the plaintiff sought to introduce the wood fragments, testified that he was uncertain if the proffered wood was the actual white oak that hit the plaintiff. We disagree.

The following additional facts are necessary to the resolution of the defendant’s claim. After the blank of white oak broke apart and hit the plaintiff, he immediately began bleeding. At trial, the plaintiff testified that after being struck in the hand, he asked Kelmelis to collect several pieces of white oak that he had observed on the floor. The plaintiff testified that approximately one week later, Kelmelis gave the plaintiff three pieces of wood. During his direct examination, Kelmelis testified that immediately before the plaintiffs injury, he was utilizing the table shaper to shape pieces of white oak, a hard, brittle wood. Nearly three years after the incident, when counsel for the plaintiff asked Kelmelis whether he recognized the piece of wood offered at trial as the piece of white oak that hit the plaintiff, Kelmelis testified that he was not sure. He was able, however, to identify the wood as white oak that was of similar dimensions to the piece that he was working on immediately before the February 14, 2003 incident. During direct examination, the plaintiff pointed out a substance that he identified as his dried blood on the wood. After observing these marks, the plaintiff testified that these pieces had comprised the object that struck his hand. Subsequently, the court admitted the white oak fragments as a full exhibit, concluding that the defendant’s objection related to the weight rather than to the admissibility of the proffered items.

We note that “[i]t is axiomatic that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. ” (Internal quotation marks omitted.) Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 779-80, 882 A.2d 653 (2005). “To establish a foundation for admission, [a]n item offered as real evidence must be positively identified as the actual item in question. This can be done by establishing unique or distinguishable configurations, marks, or other characteristics, or by satisfactory proof of the item’s chain of custody from the time of the incident to the time of trial.” (Internal quotation marks omitted.) State v. Dearborn, 82 Conn. App. 734, 744-45, 846 A.2d 894, cert. denied, 270 Conn. 904, 853 A.2d 523 (2004). “Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [challenging party] of substantial prejudice or injustice.” (Internal quotation marks omitted.) Drea v. Silverman, 55 Conn. App. 107, 109, 737 A.2d 990 (1999).

In the present case, the court heard testimony from the plaintiff and Kelmelis. Although Kelmelis testified that he was uncertain as to whether the white oak offered by the plaintiff was the actual wood that was ejected from the table shaper, he was able to confirm that the wood offered at trial was the same type of wood, white oak, that he had been using to make cabinet molding on the morning of February 14, 2003. Kelmelis also testified that the proffered white oak was of similar dimensions to the white oak that was ejected from the table shaper. Moreover, the plaintiff was able to point out unique marks on the wood that he identified as his blood. Accordingly, in light of this testimony, we cannot say that the court abused its discretion in admitting the pieces of white oak into evidence.

Furthermore, we fail to understand the evidentiary significance of whether these were the specific fragments of white oak that struck the plaintiffs hand. It is undisputed that white oak ejected from the table shaper hit the plaintiff. Indeed, in its brief, the defendant concedes that “[a]t the moment the wood was ejected from the [table] shaper, the plaintiff, who was present to pick up the molding, was in a walkway near the machine and was struck in the right hand by the ejected wood.” Whether the wood proffered at trial comprised the actual piece of wood that hit the plaintiff has no bearing on the question of the defendant’s liability. We note that “[t]o be reversible, evidentiary error must be both wrong and harmful.” (Internal quotation marks omitted.) Constantine v. Schneider, 49 Conn. App. 378, 392, 715 A.2d 772 (1998).

II

Next, the defendant claims that the court abused its discretion by precluding it from introducing into evidence two department reports that were prepared following the department’s inspections of the defendant’s woodworking shop. Specifically, on appeal, as it did at trial, the defendant contends that these reports, which failed to disclose any safety concerns relating to the table shaper, were relevant because they tended to establish that it did not have knowledge of the allegedly dangerous condition created by the placement of the table shaper and, therefore, suggested by implication that the placement and operation of the table shaper were reasonable. In response, the plaintiff argues that even if the reports were relevant, their probative value was greatly outweighed by their prejudicial effect. We agree with the plaintiff.

The following additional facts and procedural history are relevant to our discussion of this issue. In the course of pretrial discovery, it was learned that on December 21, 1995, and again on July 5, 1996, the defendant had invited the department to its shop to provide an on-site safety survey and consultation. After inspecting the defendant’s premises, the department issued two reports. The December, 1995 report was prepared by Bernard Vignali, a safety consultant, and the July, 1996 report was prepared by John Rosa, an occupational hygienist. In these reports, a number of violations and concerns were identified; however, none of the resulting safety recommendations mentioned the table shaper. Subsequently, the plaintiff filed a motion in limine to preclude the department reports. The court granted the plaintiffs motion, finding that the reports would unduly prejudice the plaintiff.

“[A]s noted by our Supreme Court, evidence, even if relevant, may be excluded by the court if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or considerations of undue delay, waste of time or needless presentation of cumulative evidence. Conn. Code Evid. § 4-3. . . . The trial court . . . must determine whether the adverse impact of the challenged evidence outweighs its probative value. . . . Finally, [t]he trial court’s discretionary determination that the probative value of the evidence is . . . outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [B]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only whe[n] an abuse of discretion is manifest or whe[n] injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) Deegan v. Simmons, 100 Conn. App. 524, 538-39, 918 A.2d 998, cert. denied, 282 Conn. 923, 925 A.2d 1103 (2007); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168, 109 S. Ct. 439, 102 L. Ed. 2d 445 (1988) (noting that federal Occupational Safety and Health Administration investigatory report properly excluded under Federal Rules of Evidence when trial judge has determined contents of report irrelevant or unfairly prejudicial); Hayes v. Camel, 283 Conn. 475, 483-86, 927 A.2d 880 (2007).

In the present case, our review of the record supports the court’s conclusion that the reports’ potential for prejudicing the plaintiff and confusing the jury well outweighed their probative value, if any. To permit evidence of the department’s inspections, without any attendant testimony relating to the scope of the investigation or the qualifications of the individual who composed the report, would have been highly prejudicial to the plaintiff. See Deegan v. Simmons, supra, 100 Conn. App. 539. As we have noted, the reports contained several recommendations designed to create a safer workplace. The reports, however, did not include any recommendations relating to the table shaper. Thus, this evidence, if admitted, would likely have confused and prejudiced the jury against the plaintiff. Accordingly, we conclude that the court did not abuse its discretion in excluding the reports.

Ill

The defendant’s final two claims relate to the court’s admission of the testimony of Andrew Caputo, the plaintiffs treating physician. The defendant first argues that the court improperly admitted Caputo’s testimony regarding the plaintiffs need for future surgeries. Alternatively, the defendant claims that even if Caputo’s testimony was admitted properly, the court improperly instructed the jury regarding noneconomic damages by failing to instruct the jury to consider the probable outcome of the plaintiffs future surgery on the plaintiffs condition. We address these arguments in turn.

A

The defendant first claims that the court improperly admitted Caputo’s testimony regarding the plaintiffs need for future surgeries. Specifically, the defendant argues that the plaintiff failed to establish the foundational requirements necessary to satisfy the “standard of admissibility” governing evidence of future medical procedures. We are not persuaded.

The following additional facts are relevant to the resolution of the defendant’s claim. At trial, the jury viewed Caputo’s videotaped deposition. During direct examination, Caputo testified that he had “discussed the idea of doing” a dorsal wrist arthroplasty and arte-riogram and that he would “consider [having the plaintiff get] the arteriogram . . . and . . . the dorsal wrist arthroplasty.” Caputo further testified that it was reasonably probable that these surgeries would improve the plaintiffs condition. According to Caputo, these future surgeries would reduce the plaintiffs present impairment rating of 35 percent to 15 or 20 percent, which would represent nearly a 50 percent reduction in the plaintiffs disability. During trial, citing Marchetti v. Ramirez, 240 Conn. 49, 688 A.2d 1325 (1997), counsel for the defendant moved to strike this testimony, arguing that it was not admissible as evidence of future economic damages because it did not indicate specifically that it was reasonably probable that the plaintiff would undergo the future medical procedures. The court denied the defendant’s motion, concluding that the issue of whether it was reasonably probable that the plaintiff would require future medical procedures was a question of fact for the jury to decide.

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. . . . With respect to expert testimony, this court has observed that [t]he trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Citation omitted; internal quotation marks omitted.) Porter v. Thrane, 98 Conn. App. 336, 339-40, 908 A.2d 1137 (2006).

In support of its claim on appeal, the defendant contends that Marchetti v. Ramirez, supra, 240 Conn. 49, requires, as a requisite to the admissibility of an expert’s testimony regarding future medical expenses, an expert to utilize clear language indicating that it is reasonably probable that the plaintiff will undergo such future medical procedures.

We conclude that Marchetti establishes no such rule of admissibility. In reaching this conclusion, we note that “[f]uture medical expenses do not require the same degree of certainty as past medical expenses . . . .” (Internal quotation marks omitted.) Hamernick v. Bach, 64 Conn. App. 160, 170, 779 A.2d 806 (2001). In Marchetti v. Ramirez, supra, 240 Conn. 49, our Supreme Court acknowledged that “[i]t is well established that [i]n assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities. . . . [A]s to future medical expenses, the jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 54. Accordingly, “[t]he evidence at trial must be sufficient to support a reasonable likelihood that future medical expenses will be necessary.” (Internal quotation marks omitted.) Calvi v. Agro, 59 Conn. App. 732, 736, 757 A.2d 1260 (2000). “Whether an expert’s testimony is expressed in terms of a reasonable probability . . . does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987).

In the present case, Caputo testified that he had discussed the possibility of future surgery with the plaintiff and believed that it was reasonably probable that the future surgical procedures would improve the plaintiff s condition. This testimony was both relevant and probative as to the extent of the plaintiffs injuries. Therefore, such testimony, when considered in conjunction with the plaintiffs testimony indicating that he would seek the surgeries in the future, aided the jury in determining whether it was reasonably probable that the plaintiff would undergo the dorsal wrist arthroplasty and arte-riogram in the future. Accordingly, we conclude that the court did not abuse its discretion in admitting Caputo’s testimony.

B

The defendant next contends that the court improperly instructed the jury regarding noneconomic damages by failing to instruct the jury clearly to consider the probable outcome of the plaintiffs future surgery on the plaintiffs condition. Specifically, the defendant asserts that by failing to include an instruction regarding the law’s prohibition against double recovery, the court improperly permitted the jury to award noneconomic damages without consideration of the effect of the plaintiffs future surgery on the plaintiffs future pain and suffering. The defendant contends that this alleged impropriety entitles it to a new trial. We disagree.

“As a preliminary matter, we identify the applicable standard of review and set forth the legal principles that govern our resolution of the defendant’s instructional [claim], A challenge to the validity of jury instructions presents a question of law over which this court has plenary review.” Pickering v. Rankin-Carle, 103 Conn. App. 11, 14, 926 A.2d 1065 (2007). “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 572-73, 898 A.2d 178 (2006). Furthermore, “[i]t is axiomatic . . . that not every error is harmful. . . . [Our Supreme Court has] often stated that before a party is entitled to a new trial ... he or she has the burden of demonstrating that the error was harmful. ... An instructional impropriety is harmful if it is likely that it affected the verdict.” (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 243, 828 A.2d 64 (2003).

To apply these principles in the present case, we must examine the defendant’s requested charge, the actual jury charge and the defendant’s subsequent objection to the charge. In its supplemental request to charge, the defendant requested an instruction pertaining to double recovery. This proposed instruction included language suggesting that “the plaintiff is entitled to damages not based upon his current condition but based upon his condition after he has undergone reasonable additional care.” During its subsequent charge to the jury, the court stated that “the plaintiffs noneconomic damages should be decreased if he underwent—or would be decreased if he underwent [the] two operations recommended by . . . Caputo.” In its instruction to the jury on the plaintiffs duty to mitigate damages, the court next stated that if “the defendant has not proven a failure to mitigate damages, you would award the plaintiff noneconomic damages for the full extent of his present suffering and impairment.”

On appeal, as it did at trial, the defendant essentially challenges the sequence of these statements, claiming that these instructions could have caused the jury to consider the reduction in the plaintiffs impairment “only if it found that the defendant had proven that it was unreasonable for [the plaintiff] not to have undergone that treatment.” The defendant objected to this portion of the charge, preserving the issue for appellate review.

We first note that “[t]he amount of damages awarded is a matter peculiarly within the province of the juiy .... [I]t is the jury’s right to accept some, none or all of the evidence presented.” (Internal quotation marks omitted.) Fontana v. Zymol Enterprises, Inc., 95 Conn. App. 606, 611, 897 A.2d 694 (2006). General Statutes § 52-572h (a) (2) defines noneconomic damages as “compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering .. . .”

Our Supreme Court has determined that it is the responsibility of the trial court to adapt the law to the case in question correctly and to provide the jury with sufficient guidance that would enable it to reach a correct verdict on the basis of a proper application of the law. See Vertex, Inc. v. Waterbury, supra, 278 Conn. 572-73. Here, in its charge to the jury, the court stated that “as to permanent injury, if you find that it is reasonably probable that the plaintiff has suffered a permanent injury, you should endeavor to compensate him for what he would be expected to suffer from those permanent conditions over the period of his life expectancy.” Although the court rejected the defendant’s requested instruction, the court’s instructions conveyed the same general principle. After stating that “the plaintiffs non-economic damages should be decreased if he underwent—or would be decreased if he underwent [the] two operations recommended by [Caputo],” the court instructed the jury that “[i]n connection with noneco-nomic damages for future suffering and impairment, you may consider the evidence from [Caputo] about additional surgery.” Although these statements immediately preceded the court’s instruction on mitigation of damages, we conclude that these instructions, when read as a whole, were adapted properly to the law and provided the jury with sufficient guidance. We conclude, therefore, that the court properly charged the jury regarding noneconomic damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the record indicates that the defendant corporation is owned by Desjardins, it does not indicate the extent of his ownership.

       A table shaper is a piece of woodworking equipment with a rotating cutting head that projects above the table surface of the machine. It is used to cut profiles into wood for molding, chair rails and other products. The machine uses a power feed, which consists of rollers that guide a wood blank across the cutting head and ultimately moves the finished product away from the machine. The cutting head is capable of rotating at 9000 revolutions per minute.

       During his direct examination, to lay a foundation for the admission of the white oak fragments, the plaintiff sought to introduce testimony to show that after he was hit by the white oak, he asked Kelmelis to save the piece of wood that struck his hand. The defendant argues that the court improperly admitted this testimony under the residual exception to the hearsay rule. Even if we were to decide that the proffered testimony was not admitted properly under the residual exception, we conclude that this utterance, which the plaintiff made several minutes after the incident as he was being carried out of the defendant’s shop on a stretcher, was admissible under the spontaneous utterance exception to the hearsay rule. “This court may sustain the admission of evidence on any proper ground that exists for its admission.” State v. Torelli, 103 Conn. App. 646, 662, 931 A.2d 337 (2007).

       During voir dire of the plaintiff, his counsel asked: “Mr. Lingenheld, looking at exhibit C for identification, do you recognize these three pieces that have now been taped together as the same pieces of wood you saw on the floor after you were hit?” The plaintiff replied: “That’s correct.”

       Desjardins conceded at trial that if he had read the maintenance manual that he received upon purchasing the table shaper, he would have known that there was a risk of kickback and that the location of the table shaper was unsafe.

       “We recognize that [i]n awarding future medical expenses, a jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities.” (Internal quotation marks omitted.) Madsen v. Gates, 85 Conn. App. 383, 396, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004). In its brief on appeal, however, the defendant has not argued that the court improperly denied its motion to set aside the verdict because the evidence presented at trial was inadequate to establish that there was a reasonable probability that the plaintiff would incur future economic damages.

       During cross-examination of the plaintiff, the following testimony was elicited:
      “[The Defendant’s Counsel]: And when you feel like your business is in a position that you can take the time off, then you will pursue the surgery as Dr. Caputo talked about?
      “[The Plaintiff]: I believe so, yeah.”

       The defendant’s objection claimed that “the jury [was] free to find that [the plaintiff] could at some point undergo additional surgery, which would have the probable consequence of reducing his impairment rating and thus reducing the associated pain and suffering, but that he could be compensated fully for—he could be compensated for the full cost of that surgery as well as the full cost of his current impairment.”

       “A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 47, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995).