author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. JIMMY STEVENSON
    (AC 20133)
    Lavery, C. J., and Flynn and Daly, Js.
    Argued October 25, 2001
    officially released May 21, 2002

      Barbara J. OBrien, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Antonia Carabillo, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Jimmy Stevenson, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-102, conspiracy to commit burglary in the second degree in violation of General Statutes §§ 53a-48 and 53a-102, larceny in the fifth degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-125a, conspiracy to commit larceny in the fifth degree in violation of §§ 53a-48 and 53a-125a, burglary in the third degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-103, conspiracy to commit burglary in the third degree in violation of §§ 53a-48 and 53a-103, larceny in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-123, and conspiracy to commit larceny in the second degree in violation of §§ 53a-48 and 53a-123.

The defendant claims that (1) the prosecutor engaged in prosecutorial misconduct that deprived the defendant of his constitutional right to a fair trial, (2) the court improperly denied his motion to suppress his written confession and (3) the court improperly violated his constitutional right against double jeopardy when it sentenced him under two conspiracy convictions arising from the same incident. Because we conclude that the prosecutor engaged in prosecutorial misconduct that deprived the defendant of his right to a fair trial, we reverse the judgment of the trial court and order a new trial. We also address the defendant’s claim that the court improperly denied his motion to suppress his confession because the issue is likely to arise in the new trial.

The jury reasonably could have found the following facts. On the evening of October 22,1998, Marilyn Mejia returned home from church and found that her first floor apartment at 475 Myrtle Street in New Britain had been burglarized. The next afternoon, Dorotka Wilczynska returned home from shopping and found that her first floor apartment at 200 Smith Street in New Britain had been burglarized. On November 11, 1998, two detectives from the New Britain police department, William Durkin and Stanley Masternak, questioned the defendant, who was under arrest and in custody on another charge, regarding the two burglaries. The defendant waived his Miranda rights, orally confessed to the crimes, and signed a written statement indicating his complicity as a conspirator and accessory thereto. During the trial that followed, the court denied the defendant’s motion to suppress his written confession. Thereafter, the jury returned a verdict of guilty on all eight charges against the defendant. This appeal followed.

I

The defendant claims that he was denied his constitutional right to a fair trial due to prosecutorial misconduct during the cross-examination of witnesses and closing argument. He claims that the prosecutor improperly shifted the burden to the defendant to show that the police witnesses were liars, expressed her personal views as to the witnesses’ credibility and referred to facts outside the record. The defendant objected to only some of the alleged improprieties at trial and now seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the plain error doctrine and the court’s supervisory powers.

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Westberry, 68 Conn. App. 622, 635, 792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002).

We conclude that the record is adequate for review and that the claim of prosecutorial misconduct in violation of a fundamental right is of constitutional magnitude. State v. Jefferson, 67 Conn. App. 249, 266, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). Because we also conclude that there was constitutional error requiring a new trial, the defendant has satisfied all four prongs of Golding and there is no need to conduct plain error review or to invoke our supervisory powers to reverse the defendant’s conviction.

The standard of review for a claim of prosecutorial misconduct is well established. “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 356-57, 696 A.2d 944 (1997).

“We have long recognized the special role played by the state’s attorney in a criminal trial. He is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. ... By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe.” (Internal quotation marks omitted.) State v. Alexander, 254 Conn. 290, 302, 755 A.2d 868 (2000).

Prosecutorial misconduct may occur in the course of cross-examination of witnesses and during closing argument. State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996); State v. Daniels, 42 Conn. App. 445, 456, 681 A.2d 337, cert. denied, 239 Conn. 928, 683 A.2d 397 (1996). “In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court . . . has focused on several factors.” State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). Those factors include (1) the extent to which the misconduct was invited by defense conduct or argument, (2) the severity of the misconduct, (3) the frequency of the misconduct, (4) the centrality of the misconduct to the critical issues in the case, (5) the strength of the curative measures adopted and (6) the strength of the state’s case. Id. We will address each of the defendant’s claims of prosecutorial misconduct in turn.

A

The defendant first claims that the prosecutor’s questions and comments improperly shifted the burden to the defendant to show that the police witnesses were liars. We agree that the questions and comments were improper.

During her cross-examination of the defendant at the suppression hearing, the prosecutor asked the defendant if the two officers who testified for the state had lied about his signing the confession, and the following colloquy ensued:

“Q. So . . . you heard the police officers, I take it, testify today?
“A. Oh, yes, I have.
“Q. And your testimony is in direct conflict with what they said?
“A. Yes, it is.
“Q. So, you are saying that they came in here and lied about you, is that right?
“A. Yes, I am.”

The prosecutor later argued that there was “no reason for the police officers to come in here and lie about something like that.” Defense counsel argued in reply that one “reason for the police officers to lie” would be to connect someone to the town’s twenty-two unsolved burglaries.

Defense counsel did not object to a similar line of questioning when the prosecutor cross-examined the defendant before the jury with respect to his waiver of his Miranda rights and his oral confession to the burglaries:

“Q. And, presumably, you understood your rights when [Detective] Durkin gave them to you?
“A. He didn’t read me my rights, ma’am.
“Q. Okay. So, when he testified that he read you your rights and that you initialed them, that was a lie?
“A. He did not read me my rights.
“Q. So, you are saying the officer lied?
“A. Yes, I am.”

A short time later, the following exchange occurred:

“Q. Did you read your rights that day?
“A. No, I did not.
“Q. Okay, so when [Detective] Durkin said he read you your rights and you initialed them, you didn’t read them?
“A. No, I did not.
“Q. So, he was lying?
“A. Yes, he was.
“Q. He came in here and lied about that?
“A. Yes, he did.
“Q. Okay. And when they said they gave you food before you went out on your excursion, that was a lie, too?”

The cross-examination continued:

“Q. Okay. So you never told the police that you and Johnny Ayala burglarized those two locations?
“A. No, I did not.
“Q. Okay. They made that up or you made that up or whatever?
“A. I never told them that.”

In his closing argument, defense counsel suggested that the officers had conspired to frame the defendant and that the state had based its entire case on the officers’ testimony. Defense counsel argued that the officers “were under pressure. They had to find a scapegoat. . . . [T]hey had to come up with a name.” He also pointed out that the prosecutor was the only person in the courtroom to describe the officers as liars and that her questions had forced the defendant to agree with this characterization: “Now, the only one in this court that brought up the word liar was the prosecutor. She’s the one who pressed my client, saying, ‘Okay, the officer wrote this down.’ Does that mean he is a liar? And my client agreed with her.

“Our contention is that the officers either put another spin on whatever happened at that police department, and in their cruiser, and then gathered their own knowledge of what happened at each one of those houses, and that’s what they were telling you the last couple of days of their whole knowledge of what happened, not necessarily by what [the defendant] had told him.”

In her rebuttal, the prosecutor stated to the jurors that the defendant and the defense witnesses had “everything to gain” by lying on the witness stand: “Now, through the state’s witnesses [the two police detectives], a confession was introduced into evidence and it was signed by the defendant. It was their testimony that they drove through the city of New Britain, and [the defendant] pointed out the locations. Now, the defendant says he didn’t commit the crimes. He signed the document but denies reading it. Why should you believe him? The defendant has everything to gain if he lies on the [witness] stand. After all, it is he who’ll be punished in this case if he is found guilty.

“Furthermore, the defendant’s witnesses have everything to gain from lying on the [witness] stand. They want their grandson or their Mend free from punishment. . . . Compare that to the police officers. They have nothing to gain personally if you convict the defendant. Their lives will continue on unchanged. The defendant insists that they lied on the [witness] stand, but why would they do that? They have nothing to gain.” The defendant did not object.

Our resolution of this issue is guided by our Supreme Court’s recent decision in State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002). In Singh, the prosecutor also compelled the defendant to characterize the testimony of other witnesses as untruthful and then emphasized that testimony during closing argument. Id., 704-705. The court expressly held that questions that require a defendant to comment on another witness’ veracity are improper because they invade the province of the jury, create the risk that the jury may conclude that, in order to acquit the defendant, it must find that the other witness lied, and distort the state’s burden of proof. Id., 707-709. The court rejected the minority position that an exception should apply when the defendant’s testimony is “the opposite of or contradicts the testimony of other witnesses, thereby presenting a basic issue of credibility . . . [that cannot] be attributed to defects or mistakes in a prior witness’ perception or inaccuracy of memory, rather than to lying,” because there was no good reason to carve out such an exception. (Emphasis in original; internal quotation marks omitted.) Id., 710-11. “The state’s objective of ‘highlighting’ inconsistencies in testimony may be accomplished by other, proper means. Moreover . . . testimony may be in direct conflict for reasons other than a witness’ intent to deceive.” Id., 711. The Singh court also concluded that “closing arguments providing, in essence, that in order to find the defendant not guilty, the jury must find that witnesses had lied, are similarly improper.” Id., 712.

Here, as in Singh, the prosecutor improperly forced the defendant to describe the police witnesses as liars and later emphasized that testimony during closing argument. She then compounded the error by suggesting that, in contrast to the officers, it was the defendant and the defense witnesses who testified untruthfully because they had “everything to gain” from lying on the witness stand. Such comments are prohibited under Singh because they distort the state’s burden of proof by incorrectly suggesting that, to acquit the defendant, the jury had to find that the officers lied. Accordingly, we conclude that the prosecutor’s questions and comments were improper.

B

The defendant next claims that the prosecutor improperly expressed her personal opinion as to the credibility of the witnesses. We agree.

During closing arguments, the prosecutor stated that the defendant’s explanation of how he got the money to support his drug habit “was totally unbelievable.” She concluded her rebuttal by arguing: “This is what this case comes down to in the final analysis, it’s credibility. I suggest to you that the policemen and the victims have no ax to grind against [the defendant]. They have much more credibility than the defendant and those who would like to see him found not guilty.” The defense did not object.

“[I]t is well established that the evaluation of [witnesses’] testimony and credibility are wholly within the province of the trier of fact.” (Internal quotation marks omitted.) Hoffer v. Swan Lake Assn., Inc., 66 Conn. App. 858, 861, 786 A.2d 436 (2001). “The prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Citations omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 263, 780 A.2d 53 (2001).

Nonetheless, “[b]ecause closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Internal quotation marks omitted.) State v. Hampton, 66 Conn. App. 357, 373, 784 A.2d 444, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001).

In this case, the prosecutor expressed her personal opinion when she suggested to the jury that the defendant’s story about where he got the money to support his drug habit was not believable and that the officers and victims, whom she said had no ax to grind against the defendant, were much more credible than the defendant and the defense witnesses. See Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 401, 726 A.2d 657 (use of pronoun “I” in argument increases chances arguments will deteriorate into expressions of personal opinion), cert. denied, 249 Conn. 920, 733 A.2d 233 (1999). These remarks were not an appropriate way to highlight the evidence presented or to suggest a reasonable conclusion that could be drawn by the jury; see State v. Hampton, supra, 66 Conn. App. 373; but, rather, constituted a form of unsworn testimony that would have been difficult for the jury to ignore because of the prosecutor’s special position. We therefore conclude that the comments were improper.

C

The defendant finally claims that the prosecutor improperly referred to facts outside the record. We agree.

At trial, the officers testified that the defendant initially was cooperative when he was questioned about the burglaries. They further testified that they had no firm suspect at that time for the Myrtle Street and Smith Street burglaries or several other unsolved burglaries. A number of witnesses, including the defendant, also testified as to his serious drug habit. In connection with this testimony, defense counsel entered records into evidence indicating that the defendant had been hospitalized voluntarily for detoxification.

In her closing argument, the prosecutor invited the jury to consider that the defendant might have cooperated and signed the written confession because he “figured he was the number one suspect anyway” and “maybe he would get a better deal in court.” The defendant did not object. Thereafter, the prosecutor argued that the defendant “had to commit the crimes” to finance his drug habit: “And finally, what about his drug problem? It’s still hard to believe — it’s hard for me to believe that mothers of small children would want some junkie hanging around their kids. Think about it. Who are the people that commit burglaries? Often [they are] the people with drug habits, drug users. Of course, the defendant had to commit the crimes.” The court overruled defense counsel’s objection, observing that “[t]his is argument . . . .”

The prosecutor continued to elaborate on the drug theme: “Of course, the defendant had to commit crimes. He had his drug habit to support. If you honestly believe that someone hooked on crack cocaine can support his habit by getting money from his girlfriend [who is] a waitress at [the International House of Pancakes]. And how many friends could this defendant con to lend him money? Maybe once or twice, but for somebody who is hooked on crack cocaine? His story about money was totally unbelievable. Presumably, he needed a lot more money than his friends or family would provide. Especially, if they knew he was on drugs. Breaking into other people’s houses is a lot quicker money.”

The prosecutor then argued: “Now, the defendant also testified that the police never read him his rights. Anybody who has ever watched a police show on television or in the movies knows that is the first thing the police do before questioning the suspect.” The court again overruled defense counsel’s objection, and the prosecutor continued: “For the defendant to deny something as basic as that is absurd.” Defense counsel did not object to the court’s subsequent instructions that the arguments of counsel are not evidence and that the jurors had a duty to determine and weigh the evidence.

“[W]hile a prosecutor may argue the state’s case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . [T]he privilege of counsel in addressing the jury . . . must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury [has] no right to consider.” (Citation omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 336-37, 746 A.2d 761 (2000). Nonetheless, “the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered . . . .” (Internal quotation marks omitted.) State v. Pouncey, 241 Conn. 802, 811, 699 A.2d 901 (1997). Moreover, “[t]he state may . . . properly respond to inferences raised by the defendant’s closing argument.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 717.

Here, the prosecutor’s remarks that the defendant may have cooperated to get a better deal in court because he assumed that he was the number one suspect in the city’s unsolved burglaries, and that something must have happened thereafter that caused him to change his story, cannot reasonably be inferred from the evidence. The comments also were not a proper response to inferences raised by the defendant’s closing argument. To the contrary, there was no evidence presented as to what the defendant may have thought, if anything, about the unsolved burglaries. There also was no evidence presented suggesting that the defendant was the primary suspect in the unsolved burglaries or that anything happened after his initial questioning by the officers that caused him to change his story. The defense instead argued that the defendant was intoxicated at the time he signed the confession and that he thought it was a form to enroll in a drug treatment program. There also was no evidence in the record to support the prosecutor’s statements that the defendant “of course” had to commit crimes to support his drug habit, that people who commit burglaries have drug habits and that the defendant needed a lot more money to support his habit than his friends or family could provide.

The prosecutor’s attempt to compare the defendant with suspects who routinely are read their Miranda rights in television shows and the movies also was inappropriate. “A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence.” Id., 718. Accordingly, we conclude that the prosecutor improperly referred to evidence outside the record and invited the jurors to engage in speculation as to why the defendant signed the confession, why he was motivated to commit the burglaries and why he denied having been read his Miranda rights.

D

We finally consider whether the cumulative effect of the prosecutor’s misconduct so infected the proceedings as to deprive the defendant of his right to a fair trial.

At various times throughout the trial, the court advised the jury as to how to view the evidence and the arguments of counsel. At the commencement of trial, the court instructed that the arguments of counsel were not to be treated as evidence. At the close of the arguments, the court instructed that the jury was the sole judge of the facts, and that “[n]o matter what I say concerning these facts or what any of the lawyers may have said, it’s your recollection which is to guide you in deciding this case.” The court continued, “As I have said to you several times, it’s what comes out of that witness chair, under oath, that is evidence. That is the testimony or evidence .... You are the sole triers of the fact. . . . You the jury are responsible to determine the facts.” The court also instructed that the burden was on the state to prove the defendant guilty beyond a reasonable doubt. The court later instructed on the factors to be considered in assessing the credibility of the witnesses and advised that the credibility of the police officers was entitled to no special consideration. The defense did not take exception to the instructions.

As previously stated, our determination as to whether the prosecutor’s misconduct deprived the defendant of his right to a fair trial requires us to consider the factors set forth in Williams, namely, the extent to which the misconduct was invited by the defense, the severity of the misconduct, the frequency of the misconduct, the centrality of the misconduct to the critical issues in the case, the strength of the curative measures adopted and the strength of the state’s case. State v. Williams, supra, 204 Conn. 540. We conclude that the defendant was denied his right to a fair trial.

Our conclusion is based, first, on the fact that the prosecutor’s misconduct was not invited by the defense. The prosecutor initially pressed the defendant to characterize the officers as liars, which set in motion a chain of responses in which counsel for both sides portrayed the testimony of the opposing witnesses as untruthful. Second, the misconduct did not consist of a single, isolated episode, but recurred throughout the prosecutor’s cross-examination and closing argument. Moreover, the effect of the misconduct was accentuated because the only evidence linking the defendant to the crimes charged was the signed confession and the information he provided to the officers during his interrogation. As a result, the state’s case was not strong because it rested entirely on the officers’ credibility.

Furthermore, by expressing her personal opinion that the officers had no ax to grind and were much more credible than the defendant and the defense witnesses, the prosecutor improperly emphasized that the only way the defendant could be acquitted was for the jury to conclude that the officers had lied. The references to facts outside the record, in particular, the comment as to how suspects are routinely portrayed in the movies and television, also emphasized that the defendant rather than the officers had lied on the witness stand. The court’s instructions to the jury were insufficient to cure this misconduct. Accordingly, we conclude that the cumulative effect of the prosecutor’s misconduct deprived the defendant of his right to a fair trial.

II

We next consider the defendant’s claim that the court improperly denied his motion to suppress his written confession because this issue is likely to arise in the new trial. The defendant claims that he did not voluntarily, knowingly and intelligently waive his Miranda rights and did not sign the confession voluntarily. He contends that food and sleep deprivation, combined with intoxication due to drugs and alcohol, rendered him incapable of waiving his Miranda rights and confessing to the burglaries voluntarily. He further claims that the court improperly placed the burden of proving that the waiver and confession were involuntary on him, rather than on the state. We disagree.

At the suppression hearing, the officers testified that they brought the defendant from the lockup to the interview room at 2:30 p.m. on November 11, 1998, and asked if he would speak to them about some unsolved burglaries. The defendant agreed to do so, and Durkin read him his Miranda rights. After indicating that he understood his rights, the defendant read the waiver form and initialed it in four different places. Durkin then signed the form as a witness. The defendant did not sign the form on the line provided at the bottom.

The officers testified that the defendant admitted his participation, usually as a lookout, in numerous burglaries with Johnny Ayala. Both officers described the defendant as cooperative, calm, attentive and polite, saying that he responded to every question they asked and had no difficulty communicating with or understanding them. Both also testified that the defendant showed no signs of being under the influence of alcohol or drugs. While speaking with the officers, the defendant drank a can of soda and ate some candy bars that they had given him.

The defendant agreed to show the officers various locations that he and Ayala had burglarized. He was permitted to use the bathroom before they left. After the officers took the defendant to an unmarked surveillance car, the defendant said that he was hungry, so they drove to a McDonald’s restaurant where the officers purchased him lunch. During the next three hours, the defendant directed the officers to twenty-four locations. At each location, the defendant described the method of entry, the items stolen and some of the individuals who purchased the stolen items. As the defendant was talking, Durkin typed the information he gave them into a laptop computer. The officers described the defendant’s ability to recall the locations, including 475 Myrtle Street and 200 Smith Street, and the items taken, as “very good” and “extraordinary.”

Upon their return to the police station, Durkin prepared a confession statement and read it to the defendant. After the defendant read and signed each of its three pages, Durkin signed the statement as a witness. The officers testified that they did not make any threats or promises to the defendant in exchange for his cooperation.

Later that afternoon, Durkin compared the defendant’s accounts of the burglaries with existing police records and found most of the accounts to be accurate. Further investigation revealed that the defendant’s accounts of several unreported burglaries also were accurate. Durkin prepared a warrant and Mastemak subsequently arrested the defendant for the Myrtle and Smith Street burglaries. At the time of his arrest, the defendant asked Mastemak to tell the prosecutor and defense attorney that he had been cooperative, and Mastemak did so.

The defendant’s girlfriend testified that she had lived with the defendant for almost a year and that he had been at her home on the night of November 11, 1998, before his arrest. She said that the defendant was suffering badly from the effects of drags, that his eyes were bloodshot and that he was unresponsive when she attempted to communicate with him. She testified that the defendant had been on drugs for three or four years, used drugs every day, got money for his drugs from her and from Mends, and had participated voluntarily in a detoxification program at New Britain General Hospital two months before his arrest. On cross-examination, she also testified that the defendant was the father of her child and that she did not want the defendant to get into trouble.

The defendant testified that at the time of his arrest he was twenty years old and had a tenth grade education. He confirmed that he had been a drug user for three or four years and had participated voluntarily in a detoxification program. He claimed that when he was arrested he had just finished drinking and smoking, was intoxicated by drugs and alcohol and had not eaten in five days. The defendant further testified that after he was taken to the police station, the officers assured him they knew he did not have anything to do with the unsolved burglaries and that they wanted him only to implicate Ayala. The defendant claimed that the officers said that they would help him obtain treatment for his drug habit if he cooperated. He also testified that they asked him to show them the places Ayala had burglarized and never advised him of his Miranda rights. He claimed that he showed the officers no more than three places Ayala said he had burglarized. He did not recall going down Myrtle or Smith Streets and he denied that he told the officers he had burglarized any houses. In addition, he testified that the officers bought him lunch at McDonald’s after, rather than before, he showed them the locations.

The defendant further testified that, after returning to the police station, he slept on a table while someone typed the confession statement. He then was awakened and told to sign it. When the prosecutor showed him the signed statement, he initially denied he had ever seen it before, but then admitted his signature was at the bottom. He testified that he did not recall reading the statement and that he was tricked into signing it after the officers told him it implicated only Ayala. He also testified that he believed the statement was a form to enroll in a drug treatment program. On cross-examination, the defendant conceded that his testimony conflicted with that of the officers who had testified before him.

On rebuttal, Durkin denied that the defendant told him that he had not eaten for five days. Durkin also denied the defendant’s claim that the officers took him to the McDonald’s restaurant after, rather than before, he showed them the locations burglarized, and that the officers promised he would be admitted into a drug treatment program if he signed the confession.

After hearing the testimony, the court, in an oral decision, denied the defendant’s motion to suppress. The court concluded, on the basis of the evidence and the totality of the circumstances, that the defendant’s waiver and confession were voluntary, knowing and intelligent. The court made no formal findings of fact. It noted, however, that the conduct of the officers was not overreaching, but comported with the requirements of Miranda. The court also observed that the defendant was willing to talk with the police and that he seemed alert and able to “rise to the occasion” when necessary to act on his own behalf, despite his claims of a weakened condition. The court concluded that the defendant’s capacity to resist questioning by the police did not seem impaired and that he “clearly voluntarily participated in the continued dialogue with the police.”

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . [W]e engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . We give great deference to the findings of the trial court because it weighs the evidence before it and assesses the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Nieves, 65 Conn. App. 212, 216, 782 A.2d 203 (2001).

A

We turn first to the defendant’s claim that he did not waive his Miranda rights voluntarily, knowingly and intelligently. The defendant claims that he has no recollection that he was advised of his Miranda rights before he signed the confession. He claims that he was under the influence of alcohol and drugs when he was taken into custody and that he did not sign the waiver form on the signature line. We are unpersuaded.

“Pursuant to the fifth and fourteenth amendments to the United States constitution, a statement made by a defendant during custodial interrogation is admissible only upon proof that he . . . waived his rights [under Miranda] .... To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. . . . Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. . . .

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings . . . his level of intelligence, including his IQ ... his age ... his level of education ... his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation. . . . Furthermore, [a] defendant’s express written and oral waiver is strong proof that the waiver is valid.” (Internal quotation marks omitted.) State v. Williams, 65 Conn. App. 59, 72-73, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001).

The court’s conclusion that the defendant waived his Miranda rights voluntarily, knowingly and intelligently, and its findings that he was alert, able to represent his own interests when necessary, had the capacity to resist questioning and voluntarily participated in a continued dialogue with the police are supported by substantial evidence. The defendant testified that he was twenty years old and had a tenth grade education. Although he pointed out that he did not sign his name on the signature line of the waiver form, he did not deny that he initialed the form in four different places. The initials alone are strong proof that the waiver was valid. See id., 76. Moreover, there is no evidence in the record that the officers employed threats, promises or coercive or deceptive measures to obtain the defendant’s initials. The officers also testified that the defendant was calm, cooperative and did not appear to be under the influence of drugs or alcohol when he signed the form. Accordingly, we reject the defendant’s claim.

B

We turn next to the defendant’s claim that he did not sign the confession voluntarily. He claims that Durkin and Mastemak induced him to sign the confession by promising to enroll him in a drug treatment program and that he thought he was signing a form to enroll in such a program. This claim also has no merit.

“[0]ur Supreme Court has . . . clarified the proper scope of appellate review of a trial court’s determination of voluntariness. ... To begin, we note the established rule that the [tjrial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous. ... In its review of state court determinations of voluntariness, the United States Supreme Court long has concluded that the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination. . . . Consistent with the well established approach taken by the United States Supreme Court, we review the voluntariness of a confession independently, based on our own scrupulous examination of the record. . . . [A]pplying the proper scope of review to the ultimate issue of voluntariness requires us, not to ascertain whether the trial court’s finding is supported by substantial evidence, but to conduct a plenary review of the record in order to make an independent determination of voluntariness. . . . Having that clarified standard of review in mind, we now must determine whether the defendant’s confession was voluntary.

“We make such a determination by examining the totality of the circumstances surrounding the confession, and determining whether the confession [was] the product of an essentially free and unconstrained choice by the maker. . . . Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Internal quotation marks omitted.) State v. Smith, 65 Conn. App. 126, 141-42, 782 A.2d 175, cert. granted on other grounds, 258 Conn. 930, 783 A.2d 1032 (2001).

We conclude, on the basis of our scrupulous examination of the record, that the defendant confessed voluntarily. The defendant was twenty years old, had a tenth grade education and the officers advised him of his Miranda rights before he signed the confession. See State v. Lewis, 60 Conn. App. 219, 248, 759 A.2d 518 (confession voluntary where defendant literate, twenty-one years old and had completed three years of high school), cert. denied, 255 Conn. 906, 762 A.2d 911 (2000). The record further indicates that the defendant was not unreasonably detained for a long period of time, was given a can of soda and some candy bars at the police station, was permitted to use the rest room before the drive with the officers and was given lunch from a McDonald’s restaurant sometime after he left the station. See State v. Hafford, 252 Conn. 274, 299, 746 A.2d 150 (confession voluntary where defendant unrestrained and given soda and cigarette), cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). Moreover, the officers testified that the defendant spoke clearly and did not exhibit any signs of intoxication. See State v. Downey, 45 Conn. App. 148, 163, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997). Even more compelling, the officers described the defendant’s ability to recall the twenty-four locations and the items taken as “very good” and “extraordinaiy,” and the defendant advised the officers of several unreported burglaries that later were confirmed. Finally, after the defendant signed the confession, he specifically requested that Mastemak tell the prosecutor and the defense attorney that he had been cooperative, and Mastemak did so.

To the extent that the defendant’s testimony differs from that of the officers, we find no reason to discredit the officers’ testimony. Fiirthermore, testimony by the defendant’s girlfriend supporting his contention that he was intoxicated on the day he was interrogated is not credible. She claimed that she observed the defendant intoxicated at her home on the evening of November 11, 1998, but the written confession indicates that the officers interrogated the defendant and the defendant signed the confession on the afternoon of November 11,1998. Accordingly, on the basis of our plenary review of the entire record, we conclude that the defendant’s confession was voluntary.

C

We finally consider the defendant’s claim that the court improperly placed the burden on him of proving that the waiver and confession were not voluntary, rather than on the state. The defendant claims that in its oral decision denying the motion to suppress, the court improperly focused on the deficiencies in the defendant’s evidence instead of the persuasiveness of the state’s evidence. We do not agree.

In denying the defendant’s motion to suppress, the court stated that it had looked at the “totality of the circumstances” in reaching its decision. The court specifically referred to the defendant’s brief, the relevant case law, the argument of the state and the testimony of the witnesses. In addition, the court expressly concluded that “the state has met its burden [of] proof

The state has the burden of proving by a preponderance of the evidence that the defendant confessed voluntarily and that he voluntarily, knowingly and intelligently waived his Miranda rights. State v. Williams, supra, 65 Conn. App. 72. Here, the court’s discussion of the factors it considered in reaching a decision belies the defendant’s claim. Furthermore, the court specifically concluded that the state had met its burden of proof. Accordingly, we conclude that the court did not shift the burden of proving that the waiver and confession were not voluntary from the state to the defendant.

We do not consider the defendant’s final claim that the court improperly sentenced him in violation of his constitutional right against double jeopardy because we cannot say that this claim is likely to arise in the new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Mejia told the investigating police officer that the value of the stolen items was $400.

       Wilczynska estimated the value of the stolen items at more than $5000.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


source: Caselaw Access Project

license: Public Domain

text:
    DANIEL W. KOBYLUCK ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF MONTVILLE ET AL.
    (AC 21641)
    Lavery, C. J., and Schaller and Flynn, Js.
    Argued March 21
    officially released May 21, 2002

      Ronald F. Ochsner, for the appellant (defendants).

      Stanley Maxim Lucas, for the appellees (plaintiffs).
   Opinion

LAVERY, C. J.

The defendants appeal from the judgment of the trial court remanding the plaintiffs’ zoning appeals to the defendant zoning board of appeals of the town of Montville (board) for a new hearing. The defendants claim impropriety in the court’s conclusion that General Statutes § 8-7 requires that the parties to a zoning appeal receive written notice of the hearing thereon and that the defendants’ failure to provide the plaintiffs with such notice violated the plaintiffs’ due process rights. We conclude that there is no final judgment and, therefore, dismiss the appeal.

The following facts and procedural history are relevant. The plaintiffs own residential property at 143 Oxoboxo Cross Road in Montville and a quarry site at 170 Oxoboxo Brook Road, which also is known as Oxoboxo Dam Road, in Montville. On October 19,1999, the Mont-ville zoning enforcement officer issued the plaintiffs two cease and desist orders alleging zoning violations related to activities conducted at the two properties. On November 8, 1999, the plaintiffs filed appeals for each cease and desist order. See General Statutes § 8-7. Thereafter, the defendants arranged for newspaper publication in the New London Day of the notice of the public hearing scheduled to consider the plaintiffs’ appeals. The defendants did not provide any personal notice of the scheduled hearing to the plaintiffs. On December 1, 1999, a public hearing was held at which the board considered the plaintiffs’ appeals, and upheld the cease and desist orders. Not having seen the notice in the New London Day, neither the plaintiffs nor their attorney attended the public hearing.

On December 15, 1999, the plaintiffs appealed from the decisions of the board to the Superior Court. See General Statutes § 8-8 (2) (b). The appeals were consolidated and tried together on October 31, 2000. The plaintiffs claimed that the board acted illegally, arbitrarily and in abuse of its discretion by not providing the plaintiffs with personal notice of the hearing on their appeals. They made additional arguments alleging substantive error in the board’s decisions. The court found the notice issue dispositive and, after concluding that § 8-7 and due process both required that the plaintiffs receive personal notice of the public hearing on their appeals, remanded the matters for new hearings before the board. Thereafter, the defendants appealed to this court.

While this appeal was pending, we asked the parties to appear and to give reasons, if any, why the appeal should not be dismissed for lack of an appealable final judgment. After hearing argument, we marked the motion “off.” Having completed a review of the case upon full briefing, however, our concern has been renewed, and we have concluded that it is necessary to reconsider our jurisdiction to hear the appeal. See Governors Grove Condominium Assn., Inc. v. Hill Development Corp., 187 Conn. 509, 511 n.6, 446 A.2d 1082 (1982). We now conclude that because the court’s remand for a new hearing will require the board of appeals to hear new evidence and to exercise its discretion, the court’s order is not an appealable final judgment.

“The right of appeal exists only by virtue of statutory authority. In re Judicial Inquiry No. 85-01, 221 Conn. 625, 633, 605 A.2d 545 (1992), citing State v. Audet, 170 Conn. 337, [341], 365 A.2d 1082 (1976). Generally, appellate courts in this state do not have jurisdiction to entertain appeals not taken from final judgments. See General Statutes § 52-263; States v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The lack of a final judgment is a jurisdictional defect that mandates dismissal. Connecticut National Bank v. Rytman, 241 Conn. 24, 34, 694 A.2d 1246 (1997).” (Internal quotation marks omitted.) Stem v. Allied Van Lines, Inc., 246 Conn. 170, 174, 717 A.2d 195 (1998).

“Because the provisions of the Uniform Administrative Procedure Act [General Statutes § 4-166 et seq.] do not govern a zoning appeal; see General Statutes §§ 8-8 (o), 8-9 and 8-30g (b) [now 8-30g (f)]; it is the scope of the remand order in this particular case that determines the finality of the trial court’s judgment. Eastern Connecticut Cable Television, Inc. v. Dept. of Public Utility Control, 214 Conn. 609, 613, 573 A.2d 311 (1990). A judgment of remand is final if it ‘so concludes the rights of the parties that further proceedings cannot affect them.’ Id., quoting State v. Curdo, [supra, 191 Conn. 31]; see also Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 409-11, 521 A.2d 566 (1987). A judgment of remand is not final, however, if it requires [the agency to make] further evidentiary determinations that are not merely ministerial.” (Internal quotation marks omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 129-30, 653 A.2d 798 (1995).

In Kaufman, the plaintiff appealed to the Superior Court from the defendant zoning commission’s denial of his application for a zone change so that he could develop his land as an affordable housing project. The court, after concluding that the applicable statute required the zoning commission to approve the application, reversed the decision of the commission and remanded the case to allow the commission to impose reasonable conditions and changes. The commission appealed from the court’s decision, and our Supreme Court, before addressing the merits of the case, concluded that the court’s remand order was a final judgment. Id., 129-31.

In reaching that conclusion, the Supreme Court “attach[ed] significance to the fact that the trial court’s judgment did not order further evidentiary determinations on remand.” Id., 130. “Even more important, the trial court’s judgment required the commission to approve the plaintiffs application.” Id., 131. Thus, “[w]ith respect to [that] central issue, the trial court’s decision so conclude[d] the rights of the parties that further proceedings [could not] affect them.” (Internal quotation marks omitted.) Id.; see also Children’s School, Inc. v. Zoning Board of Appeals, 66 Conn. App. 615, 617-19, 785 A.2d 607, cert. denied, 259 Conn. 903, 789 A.2d 990 (2001); Wisniowski v. Planning Commission, 37 Conn. App. 303, 308-11, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995).

In this case, after concluding that the board’s hearing was held without sufficient notice to the plaintiffs, the court remanded the matter for a new hearing at which the plaintiffs will be able to present their arguments regarding the alleged zoning violations and to introduce evidence in support thereof. Unlike the commission in Kaufman, the board has not been directed by the court as to how it must rule on the plaintiffs’ appeals. Because the notice issue was dispositive, the court did not reach the other issues relating to the merits of the plaintiffs’ appeals. It is conceivable that after an adversarial hearing in which all of the relevant evidence is considered, the board may decide differently. Therefore, the court’s decision has not so concluded the rights of the parties such that the further proceedings cannot affect them.

“The expeditious resolution of disputes counsels against appellate review of trial court rulings that do not finally dispose of all the issues between the litigating parties.” (Internal quotation marks omitted.) Wisniowski v. Planning Commission, supra, 37 Conn. App. 308. Because the defendants have appealed from a decision that is not final, their appeal must be dismissed.

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendants are the zoning board of appeals of the town of Montville, its chairman, Joseph DeVito, the Montville zoning enforcement officer, Thomas E. Sanders, and Montville’s town clerk, lisa DiMarco.

       The plaintiffs are Daniel W. Kobyluck and Maureen A. Kobyluck.


author: PETERS, J.

text:
    SHORELINE COMMUNICATIONS, INC. v. NORWICH TAXI, LLC
    (AC 21896)
    Foti, Mihalakos and Peters, Js.
    Argued February 19
    officially released May 28, 2002

      Lloyd L. Langhammer, with whom, on the brief, was Amy M. Stone, for the appellant (defendant).

      James F. Spallone, for the appellee (plaintiff).
   Opinion

PETERS, J.

This appeal concerns the rights of an assignee to terminate a license agreement when it discovers, after the assignment, that it had been mistaken in its assumption that the licensed property would suit its commercial needs. The trial court held that the assignee had assumed the risk of its unilateral mistake because it had failed to inspect the licensor’s premises before assuming the license agreement. Having assumed the risk, the assignee was obligated to pay license fees during the unexpired term of the license agreement. We agree and affirm the judgment of the trial court.

The plaintiff, Shoreline Communications, Inc., the owner of a radio communications tower, sued the defendant, Norwich Taxi, LLC, to recover unpaid license fees due under a license agreement with the defendant’s assignor, Eagle Cab Corporation (Eagle). Eagle had assigned its contractual rights to use space on the tower to the defendant, which unconditionally assumed Eagle’s obligations to the plaintiff. The defendant declined to pay the license fees once it became evident that, contrary to its expectations, its equipment could not make profitable use of the tower space. Characterizing the defendant’s disappointment as a unilateral mistake, the court held that the defendant’s mistake did not authorize its unilateral rescission of the license agreement. Accordingly, the court rendered judgment in favor of the plaintiff, awarding it damages in the amount of $12,600 for the unpaid license fees, as well as interest of $273.92 and costs. The defendant has appealed.

The trial court’s memorandum of decision recites the relevant facts, which are undisputed. On October 30, 1997, the plaintiff and Eagle entered into a five year license agreement that enabled Eagle to use its radio equipment at a designated space on the plaintiffs radio transmission tower in order to pursue its taxicab business. The license agreement granted Eagle the right to use the space without restriction to any particular usage. In return, Eagle undertook to pay stipulated monthly payments to the plaintiff. Eagle encountered no problems in its use of the transmission tower and promptly made license payments as they became due.

On May 20, 1999, Eagle assigned the license agreement to the defendant. Without reserving any additional rights, the defendant informed the plaintiff that it had assumed the rights and obligations stated in the license agreement. As assignee, it made payments to the plaintiff until the end of October of that year.

Between May, 1999, and October, 1999, the defendant made a good faith effort to install its radio equipment on the plaintiffs tower. Because Eagle’s installation had encountered no difficulties, the defendant had not anticipated that its own installation would be problematic.

At the time of the assignment, the defendant did not know whether it could use Eagle’s equipment but it did know that its own taxicab service differed from Eagle’s because its service area was wider and its business was conducted at a location further away from the plaintiffs tower. Despite this uncertainty, the defendant unconditionally assumed the rights and duties set out in the license agreement. From May to October, 1999, the defendant attempted, unsuccessfully, to use the tower space. It discovered that its use of the plaintiffs tower space would have required the services of two different telephone companies, with unacceptable uncertainties about prompt detection and remediation of transmission failures.

When these facts came to light, the defendant informed the plaintiff that the licensing agreement was terminated. The plaintiff promptly replied that the defendant had no right to terminate the agreement unilaterally. The plaintiff reminded the defendant of the provision of the agreement that required the payment of license fees until the expiration of the agreement on October 31, 2002. It demanded prompt payment of the fees already overdue. Nevertheless, the defendant stopped making payments as of November 1, 1999.

At the time when the defendant assumed liability under the licensing agreement, it had taken no steps to ascertain whether installation of its equipment would be feasible. The defendant assumed that Eagle’s favorable experience with Eagle’s equipment would carry over to the defendant’s own operations. Despite known differences between its business operations and that of Eagle, the defendant did not avail itself of the opportunity to arrange for a preassignment inspection of the tower space.

On the basis of these findings of fact, the court concluded that, as a matter of law, the defendant had failed to establish that its mistaken assumptions entitled it to terminate the license agreement without the assent of the plaintiff. Relying on 1 Restatement (Second), Contracts §§ 153 and 154, pp. 394, 402 (1981), the court held that the defendant had assumed the risk of a misfit between the plaintiffs tower space and the defendant’s equipment. It had assumed that risk, the court held, because prior to becoming Eagle’s assignee, it had relied on Eagle’s experience without ascertaining whether its own greater needs might encounter difficulties that Eagle had not experienced.

The defendant challenges the court’s conclusion on three grounds. Conceding that it made a unilateral mistake, the defendant maintains that the mistake terminated the licensing agreement because (1) it did not bear the risk of that mistake, (2) enforcement of an agreement that is of no benefit to the defendant is unconscionable and (3) prompt repudiation of the agreement did not injure the plaintiff because it could be restored to the rights it had before the assignment.

Because the claims that the defendant has raised challenge the trial court’s conclusions of law, our review is plenary. See Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002); Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000); Hunnicutt v. Commissioner of Correction, 67 Conn. App. 65, 68, 787 A.2d 22 (2001). We conclude that none of these claims is persuasive.

I

THE RISK OF UNILATERAL MISTAKE

The defendant argues that it falls within various exceptions to the general rule that a unilateral mistake is not a viable basis for rescission of a bilateral contract. The defendant maintains that it did not assume the risk of incompatibility between its equipment and the plaintiffs tower because it had no reason to expect any such incompatibility and, therefore, was acting in good faith when it delayed its inquiry into such matters to a time subsequent to the assignment. We do not agree that, under the circumstances of this case, the defendant was entitled unilaterally to set aside its contract obligation to pay license fees.

As the trial court noted, the principles governing the law of mistake are set out in 1 Restatement (Second), supra, §§ 153 and 154. Under § 153, a unilateral mistake may make a contract voidable if the mistaken party “does not bear the risk of the mistake under the rule stated in § 154 . ...” 1 Restatement (Second), supra, § 153, p. 394. Under § 154, “A party bears the risk of a mistake when . . . (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient . ...” 1 Restatement (Second), supra, § 154, pp. 402-403.

The court, in its careful and comprehensive memorandum of decision, concluded that the defendant bore the risk of its unilateral mistake because, when it assumed the licensing agreement, it was aware of significant differences between its own planned operations and that of Eagle. Relying on § 154 of the Restatement (Second) of Contracts, the court held that, because of this awareness, the defendant bore the risk of mistake when it nonetheless undertook to become an assignee, without conditioning its assigned duties in any way.

The defendant argues, to the contrary, that its knowledge of these differences was insufficient to assign the risk of loss to it because, relying on Eagle’s favorable experience, it was entitled to assume that its operations would likewise be able to make use of the plaintiffs tower site. The defendant maintains that it did not have the kind of “limited knowledge” that would require it to bear the risk of its mistake. It was not, therefore, “consciously” aware of treating “[its] limited knowledge as sufficient . . . .”

One difficulty with the defendant’s view of the law of mistake is that its argument rests entirely on the defendant’s subjective state of mind at the time of the assignment. The defendant concedes that its position finds no support in the terms of the license agreement. The agreement did not make a licensee’s obligation to pay license fees contingent on the licensee’s ability to make profitable use of the designated space on the plaintiffs radio tower. Neither in writing nor orally did the plaintiff undertake any contractual obligation other than to make tower space available.

Apart from the agreement, the plaintiff had no reason to anticipate an assignment of any kind and consequently had no reason to anticipate the difficulties that an assignee might encounter. The plaintiffs operations bore no resemblance to a business such as the construction business, in which unilateral mistakes are known to occur as a result of the pressure of last minute preparation of competitive bids. See, e.g., Geremia v. Boyarsky, 107 Conn. 387, 388-89, 140 A. 749 (1928); Regional School District No. 4 v. United Pacific Ins. Co., 4 Conn. App. 175, 182, 493 A.2d 895, cert. denied, 196 Conn. 813, 494 A.2d 907 (1985); Drennan v. Star Paving Co., 51 Cal. 2d 409, 333 P.2d 757 (1958). In short, the plaintiff did not contribute to the defendant’s mistake in any way.

The record does not show that the defendant revealed to anyone, in advance of the assignment, that it had specific expectations about its use of the tower space. Negation of a contract obligation in these circumstances would place a risk on the plaintiff that the plaintiff could have neither foreseen nor avoided. It is the rare case in which contract rights are so ephemeral. “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity. . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000); HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 357, 727 A.2d 1260 (1999); John M. Glover Agency v. RDB Building, LLC, 60 Conn. App. 640, 644-45, 760 A.2d 980 (2000).

A second difficulty with the defendant’s position is that the proven facts demonstrate that the defendant assumed the risk of its unilateral mistake as that risk is defined in § 154 of the Restatement. Before the assignment, the defendant knew that its use of the tower space would differ from that of Eagle because the defendant’s taxicab business covered a larger geographical area and was located farther away from the tower. It did not ascertain whether Eagle’s equipment would be suitable for its own needs. It made no effort to determine the suitability of the plaintiffs tower space. The defendant could as readily have discovered possible problems before the assignment as after the assignment. The defendant cannot avoid its contractual obligation when it could have taken steps to check out the accuracy of its expectations.

The defendant has not brought to our attention any case that would permit the defendant to avoid contractual liability under the circumstances of this case. The out-of-state authorities that it cites are readily distinguishable.

Harley v. Magnolia Petroleum Co., 378 Ill. 19, 37 N.E.2d 760 (1941), is a case of mutual mistake, not unilateral mistake. The question was whether both parties understood that their agreement failed to express their common understanding. Id., 28. That question is far removed from the present controversy.

Bentley v. Slavik, 663 F. Sup. 736 (S.D. Ill. 1987), is a case in which the seller of a violin warranted, in writing, that the instrument had a specified provenance. Although the purchaser briefly played the violin before the purchase, it was not until the purchaser had played the violin for a more extended period of time, after the purchase, that she began to doubt that the violin was what it had been warranted to be. Because the defendant in the present case has never claimed that the plaintiff made any such warranty, Bentley is irrelevant.

Knudsen v. Jensen, 521 N.W.2d 415 (S.D. 1994), is a case of a contract for the sale of a house. The buyers had inspected the house before the closing, but their inspection had not revealed serious structural problems. The court permitted rescission of the contract on the ground that the latent defect in the house could not have been discovered by a reasonable inspection. Id., 419. In the present case, the lack of a proper fit between the tower space and the defendant’s equipment could have been discovered by a site inspection, as is demonstrated by the speedy discovery of technical obstacles after the assumption of the license agreement. Even more important, the tower space that the defendant hoped to utilize was not defective. It did not become defective just because the defendant found it to be unsuitable for its own uncommunicated needs.

On the basis of the facts found by the trial court and the law that it correctly stated and applied, we conclude that the defendant has not established that it was excused from the consequences of its unilateral mistake. Contrary to its arguments, we conclude that it bore the risk of loss attributable to its mistake.

II

UNCONSCIONABILITY

The defendant further argues that, even if it bore the risk of mistake, enforcement of the license agreement would be unconscionable because it should not be required to pay for space that it cannot use. We disagree.

The text of the Restatement does not support the defendant’s argument. Although § 153 speaks of unconscionability, that provision applies only in the absence of an assumption of risk by the party that has made a unilateral mistake.

As a general matter, we know of no case, and the defendant has cited none, in which a party may invoke unconscionability without a showing of some kind of relevant misconduct by the party seeking enforcement of a contract. The usual case concerns the liability of a consumer who assumed unexpectedly onerous contract obligations that were not fully disclosed by a commercial seller. See, e.g., Mack Financial Corp. v. Crossley, 209 Conn. 163, 550 A.2d 303 (1988); Barco Auto Leasing Corp. v. House, 202 Conn. 106, 520 A.2d 162 (1987); Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754, 677 A.2d 479 (1996).

Many of the unconscionability cases arise in the context of some kind of misleading conduct that comes close to being fraudulent. Under the law of procedural unconscionability, such contracts may be voidable by an innocent party who has been misled about the advisability of entering into a contract. See 1 Restatement (Second), supra, § 153; see also General Statutes § 42a-2-302; A. Leff, “Unconsionability and the Code — The Emperor’s New Clause,” 115 U. Pa. L. Rev. 485 (1964).

The defendant does not claim that its duty to pay licensee fees should be set aside because the plaintiff engaged in misleading conduct. Instead, the defendant maintains that the license agreement should be set aside on the ground of substantive unconscionability. The leasing agreement is substantively unconscionable, according to the defendant, because of a “gross disparity in the values exchanged” by the parties. The defendant argues that it should not have to pay for tower space that is useless.

The defendant’s argument is unpersuasive for two reasons. The defendant fails to distinguish between personal lack of utility and general lack of utility. It fails to explain why an assignee has rights of termination that are greater than those of its assignor.

It is important to restate that the tower space is not defective or valueless. It had value for some licensees, such as Eagle, and not for others, such as the defendant. So long as the plaintiff did not undertake to warrant the suitability of the tower space, it is inaccurate to describe the tower space as useless.

Further, it bears remembering that the defendant’s rights and obligations are derived from those undertaken by Eagle. The licensing agreement was fully enforceable before the assignment. There was no novation or modification of the license agreement. The defendant does not allege that Eagle, the assignor, had any right to terminate the agreement before expiration of its five year term. Eagle successfully made use of its assigned space on the plaintiffs tower. Eagle never made a unilateral mistake of any kind. In effect, the defendant asserts that, because its equipment differs from that of Eagle, it has a greater right to terminate than Eagle had.

The defendant nonetheless claims the right to add a new condition to the license agreement to accommodate its own uncommunicated needs. It is hornbook law, however, that an assignee “stands in the shoes of the assignor.” (Internal quotation marks omitted.) Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 277, 757 A.2d 526 (2000); National Loan Investors Ltd. Partnership v. Heritage Square Associates, 54 Conn. App. 67, 73, 733 A.2d 876 (1999); 3 E. Farnsworth, Contracts (1998) § 11.8, pp. 105-107; 3 S. Williston, Contracts (3d Ed. 1960) § 404, p. 5, and § 432, pp. 181-83. An assignee has no greater rights or immunities than the assignor would have had if there had been no assignment. Fairfield Credit Corp. v. Donnelly, 158 Conn. 543, 552, 264 A.2d 547 (1969).

We can find no support for the proposition that, by dint of an assignment, an enforceable agreement has become unconscionable. To the contrary, it would be unreasonable to allow an assignment to deprive the plaintiff of its unconditional contractual right to license payments. The terms of the leasing agreement did not change. The plaintiff did not solicit the assignment. Standing in the shoes of the assignor, the defendant had no authority to rewrite the contract for which it has assumed full responsibility.

We are not persuaded that the defendant was empowered, as a result of its own mistake, to change absolute contractual obligations into provisional contract obligations. Contrary to the defendant’s argument, this case does not exemplify a “gross disparity in the values exchanged by the parties.”

In its argument for “gross disparity,” the defendant underscores the cost of making license payments for space that, for its purposes, has no value. That cost must, however, be compared to the cost to the plaintiff if it does not receive such payments, because that is the other side of the equation.

The trial court analyzed the consequences to the plaintiff of failing to receive license fees. In its discussion of the plaintiffs right to damages, the court considered whether such damages should be reduced as a result of the plaintiffs failure to search for other users for the defendant’s tower site. The court concluded that such a reduction would be inappropriate because the plaintiffs tower had many vacant spaces. The defendant’s nonpayment would not give the plaintiff the opportunity to profit from a new license agreement of the defendant’s tower space. See Neri v. Retail Marine Corp., 30 N.Y.2d 393, 399-400, 285 N.E.2d 311 (1972); 3 Restatement (Second), Contracts § 347, comment (f), p. 117 (1981); J. Calamari & J. Perillo, Contracts (4th Ed. 1998) § 14.16, p. 565. In this appeal, the defendant has not challenged the validity of the court’s analysis.

It follows from the court’s conclusion that, in the event of nonpayment by the defendant, the plaintiff cannot be made whole. It cannot be restored to its situation before the leasing agreement unless it has forfeited its rights to payment because of the defendant’s mistake. Put differently, the question of “gross disparity” devolves into the question of whether the innocent plaintiff or the mistaken defendant should be $12,600 out of pocket. It would turn contract principles on their head to put this burden on the plaintiff when, as we have decided earlier in this opinion, the defendant bore the risk of its mistake.

We conclude, therefore, that enforcing the licensing agreement is not unconscionable. Two commercial parties, presumably with access to attorneys, entered into an agreement that the plaintiff has honored fully. There is nothing inherently unfair in an agreement that unambiguously and unconditionally requires one of the parties to assume the risk that its use of the licensed space might be unprofitable. If such an agreement, in retrospect, seems harsh to the defendant, the defendant could have refused to become an assignee. Having undertaken the assignment without discussion with the plaintiff and without inspection of the tower site, the defendant cannot rely on a defense of unconscionability.

Ill

CONSEQUENCES OF A RESCISSION

Underlying the defendant’s final argument for rescission is that, even if it bore the risk of unilateral mistake, its mistake was the result of good faith expectations and therefore gave it an equitable claim, apart from unconscionability, to rescind its obligations under the license agreement. We disagree with this argument as well.

Part of the defendant’s claim is its contention that the agreement is rescindable because the plaintiff can be returned to the contractual rights that it had before the assignment. We have already addressed and rejected that contention. In Milford Yacht Realty Co. v. Milford Yacht Club, Inc., 136 Conn. 544, 549, 72 A.2d 482 (1950), our Supreme Court held that “[a] court of equity is always reluctant to rescind, unless the parties can be put back in statu quo. If this cannot be done, it will give such relief only where the clearest and strongest equity imperatively demands it.” (Emphasis in original; internal quotation marks omitted.)

The other part of the defendant’s claim is that rescission is proper because the plaintiffs rights are adequately protected by the fact that the plaintiff can seek recovery from Eagle. The defendant correctly notes that, as a matter of law, an assignor’s obligations are not extinguished by an assignment. Despite Eagle’s assignment of its contract rights and duties to the defendant, Eagle could not and did not unilaterally discharge its duties to pay license fees to the plaintiff. “When a duty is delegated . . . the delegating party . . . continues to remain liable. . . . [Delegation] does not free the obligor . . . from [its] duty to see to it that performance is rendered, unless there is a novation.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 233, 654 A.2d 342 (1994), citing J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 18-25, p. 757; cf. Carrrano v. Shoor, 118 Conn. 86, 95-98, 171 A. 17 (1934). There was neither an allegation nor a finding that the assignment constituted a novation that would have relieved Eagle from liability.

As a matter of fact, however, a judgment against Eagle would likely be unenforceable. As the defendant acknowledges in the opening paragraph of its appellate brief, it “bought the assets of Eagle Cab.” There is no suggestion in the record that Eagle ever acquired other assets or, for that matter, that it stayed in business.

It is anomalous that a party seeking equitable relief from the consequences of its own mistake should seek to justify its failure to make license payments by pointing the innocent party to an alternate source of relief that is illusory. As far as the record shows, Eagle no longer exists.

The defendant, therefore, has no right to rescind the licensing agreement. It has not made a persuasive case that “the clearest and strongest equity imperatively demands” such a rescission. The defendant must fulfill the obligations that it assumed when it became an assignee of the licensing agreement.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant filed a denial and seven special defenses. This appeal is limited to questions of mistake. The defendant’s sixth and seventh special defenses alleged that the defendant never used the plaintiffs facilities or its equipment. The court addressed these defenses as part of its discussion of the law of mistake.
      None of the other defenses is before us in this appeal. The defendant has not appealed from the court’s rulings that, contrary to the defendant’s first and second special defenses, the text of the license agreement did not preclude the plaintiff from pursuing a claim for damages. The court also held, contrary to the defendant’s third special defense, that the plaintiff had pleaded a claim for which relief could be granted.
      The defendant apparently abandoned, at trial, its fourth special defense that alleged the absence of valid consideration for the defendant’s assumption of the license agreement. It similarly abandoned the seventh special defense alleging fraudulent concealment by the defendant’s assignor.

       There is no suggestion in the record that the defendant was in any way precluded from making the relevant inquiries. Neither is there any suggestion that consummation of the assignment was so urgent that the defendant had no time to have testing done.

       1 Restatement (Second), supra, § 153, p. 394, provides: “Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake under the rule stated, in § 154, and (a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or (b) the other party had reason to know of the mistake or his fault caused the mistake.” (Emphasis added.)
      1 Restatement (Second), supra, § 154, pp. 402-403, provides in relevant part: “A party bears the risk of a mistake when ... (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient . . . .”

       This failure of communication does not mean that the defendant did not, in fact, have preassignment expectations. The trial court made no such finding.

       Such cases arise under the law of impossibility or frustration of purpose. See 2 Restatement (Second), Contracts § 266, pp. 338-39 (1981). The defendant has not raised any such issue in this case.

       Unlike the arguments made in Knudsen, this case does not address the role of negligence in the law of unilateral mistake. At trial, there was neither an allegation nor a finding that the defendant had been negligent. The defendant’s reliance on 1 Restatement (Second), supra, § 157, is therefore misguided.

       This issue was raised in the trial court although the court chose not to address it because of its conclusion that the defendant bore the risk of loss.

       See footnote 3.