author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. KEVIN J. WICKES
    (AC 21555)
    Spear, Mihalakos and Dupont, Js.

      Argued April 23
    officially released September 17, 2002

      Richard S. Cramer, for the appellant (defendant).

      Paul E. Murray, state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appel-lee (state).

       This appeal was argued before a panel comprised of Judges Spear, Mihalakos and Dupont. Although Judge Spear agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that rather than rearguing the appeal to this court with a panel consisting of the original two judges and an additional judge, they would permit the remaining two judges alone to render a written decision.

   Opinion

DUPONT, J.

The defendant, Kevin J. Wickes, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit larceny in the first degree in violation of General Statutes §§ 53a-49 and 53a-122, and attempt to commit insurance fraud in violation of General Statutes §§ 53a-49 and 53a-215. The sole issue on appeal is whether certain remarks made by the prosecutor in his closing and rebuttal arguments to the jury amounted to prosecutorial misconduct that denied the defendant a fair trial. We conclude that the defendant was not denied a fair trial and, therefore, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 30, 1997, the defendant, a Groton city police officer was working the day shift. Later in the afternoon, he informed his wife, Dara Wickes, that he would not be home at his normal time because he was working an overtime shift but that maybe the two could meet for dinner. At approximately 4:30 p.m., the defendant spoke with Dara Wickes and asked her to meet him at the Streeter boat launch in Groton. She agreed, believing they were meeting for dinner, and arrived there to meet the defendant sometime between 6 p.m. and 6:30 p.m.

Dara Wickes, who was driving the defendant’s minivan, stopped next to his police cruiser, which was on the ramp facing the water. The defendant grabbed her, pushed her into the back of his police cruiser and told her to remain there. The defendant then opened all of the windows and the rear hatch of the minivan. Thereafter, he used a rubber hammer, to break off the key from the ignition, causing cosmetic damage to the steering column. The defendant pushed the minivan down the ramp into the water. As the defendant and Dara Wickes drove away from the boat launch, he threw the broken piece of the ignition key into a grassy area.

The defendant drove to a nearby shopping center where Dara Wickes got out of the vehicle. He told her to call 911 and to report the minivan stolen, and he threatened her when she refused to do so. The defendant left and Dara Wickes went into the shopping center. At 7:23 p.m. Dara Wickes called the Groton city police station to speak with the defendant. Former Sergeant Robert Giesing, the desk officer, informed her that the defendant was not there. After shopping in a grocery store, at 7:40 p.m. she again telephoned the police station and asked for the defendant. Giesing informed her that the defendant was not there.

Dara Wickes then called the Groton town police to report that the minivan had been stolen. At approximately 7:50 p.m., Officer Paul Reams of the Groton town police was dispatched to the scene. At 7:51 p.m., the dispatch officer telephoned Groton city police and spoke with Giesing. Giesing transmitted a message to the defendant over the police computer network, telling him to call the Groton town police station. The defendant, who was at the Mystic Icehouse speaking with Officers William Wagner and Michael Vanover of the Groton city police, used a pay telephone to call the Groton town police department. Thereafter, at 7:55 p.m. the defendant requested permission from Giesing to go to the shopping center where the car allegedly had been stolen.

The defendant spoke with the responding officer, Reams, and then told Dara Wickes to call the Liberty Mutual Insurance Company when she got home. Thereafter, the defendant returned to duty, and Groton town police officers transported Dara Wickes home. A short time later, the defendant returned to the police station and got permission from Giesing to call his insurance company to report the theft of his minivan. At 9:15 p.m., the defendant called the insurance company and spoke with its claims center.

The minivan was found on December 4, 1997, in the Thames River off the shore of the Streeter boat launch. Following its retrieval from the river, the Groton town police began an investigation into the circumstances surrounding its alleged theft and disposal into the river. The investigation revealed that the minivan had not been broken into or started by “popping” the ignition. There only was cosmetic damage to the ignition, in which the broken key was found. That evidence and further investigation led to the conclusion that the vehicle had not been stolen. Additional facts will be set forth as necessary.

I

REVIEWABILITY

The defendant did not properly preserve his claim of prosecutorial misconduct at trial and therefore requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “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. Stevenson, 70 Conn. App. 29, 32, 797 A.2d 1 (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, and, therefore, we will consider whether the alleged constitutional violation clearly exists and whether it denied the defendant a fair trial. See State v. Jefferson, 67 Conn. App. 249, 266, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

In evaluating a prosecutorial misconduct claim, we review whether the record discloses a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. See State v. Dudley, 68 Conn. App. 405, 409-10, 791 A.2d 661, cert. denied, 260 Conn. 916, 797 A.2d 515 (2002). A statement within closing argument is blatantly egregious as to implicate the fundamental fairness of the trial itself where “in light of all of the facts and circumstances ... no curative instruction could reasonably be expected to remove [its] prejudicial impact.” (Internal quotation marks omitted.) State v. Ancona, 69 Conn. App. 29, 37, 797 A.2d 1138, cert. granted on other grounds, 260 Conn. 928, 798 A.2d 970 (2002). In reviewing a claim of prosecutorial misconduct during closing argument, “we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) Id.

To determine whether prosecutorial conduct amounts to a denial of due process, we evaluate whether the conduct was improper and, if so, whether the conduct caused substantial prejudice to the defendant. State v. Thompson, 69 Conn. App. 299, 304, 797 A.2d 539, cert. granted on other grounds, 260 Conn. 936, 802 A.2d 90 (2002). In that analysis, “[w]e do not focus alone ... 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.) Id.

In our analysis, however, we also are mindful of the long recognized “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. Stevenson, supra, 70 Conn. App. 33.

The defendant presents for review eight allegedly improper comments by the prosecutor. With regard to each comment, he claims that the prosecutor improperly (1) expressed his personal opinion as to the credibility of witnesses, (2) argued facts that were not in evidence or (3) gave a personal evaluation of the evidence. We first will consider each claim of impropriety separately to determine whether any of the comments were improper and, if so, second, we will determine whether, in light of the entire trial, the conduct caused substantial prejudice to the defendant, thereby requiring a new trial.

II

EXPRESSION OF PERSONAL OPINION ON THE CREDIBILITY OF WITNESSES

The defendant argues that in four instances, the prosecutor improperly expressed his personal belief as to the credibility of a witness.

“[I]t is well established that the evaluation of [witnesses’] testimony and credibility are wholly within the province of the trier of fact. . . . The prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . 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.” (Citation omitted; internal quotation marks omitted.) Id.

As the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, something must be allowed for the zeal of counsel in the heat of the argument. State v. Singh, 259 Conn. 693, 712, 793 A.2d 226 (2002). “The mere use of phrases such as I submit, I find, or I believe does not constitute improper argument.” (Internal quotation marks omitted.) State v. Dudley, supra, 68 Conn. App. 415; Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 400, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999). “[U]se of the personal pronoun T is a normal and ordinary use of the English language. If courts were to ban the use of it, prosecutors would indulge in even more legalese than the average lawyer, sounding even more stilted and unnatural.” (Internal quotation marks omitted.) State v. Dillard, 66 Conn. App. 238, 260-61, 784 A.2d 387, cert. denied, 258 Conn. 943, 786 A.2d 431 (2001).

Further, although a prosecutor may not interject personal opinion about the credibility or truthfulness of a witness, he may comment on the credibility of the witness as long as the comment reflects reasonable inferences from the evidence adduced at trial. State v. Dudley, supra, 68 Conn. App. 415.

In other words, “[i]t is not improper for a prosecutor to comment on the credibility of a witness as long as he neither personally guarantees the witness’ credibility nor implies that he has knowledge of the witness’ credibility outside the record.” State v. Jeudis, 62 Conn. App. 787, 794, 772 A.2d 715, cert. denied, 256 Conn. 923, 774 A.2d 140 (2001). Thus, it has been noted that “even though it is unprofessional, a prosecutor can argue that a defendant is a ‘liar’ if such an argument is supported by the evidence.” State v. Spyke, 68 Conn. App. 97, 113, 792 A.2d 93, cert. denied, 261 Conn. 909, 804 A.2d 214 (2002); see also State v. Oehman, 212 Conn. 325, 334, 562 A.2d 493 (1989) (prosecutor’s characterization of defendant as liar supported by evidence).

A

In the first instance of an allegedly improper comment as to credibility that occurred dining the prosecutor’s closing argument to the jury, the prosecutor stated, “I submit no credibility whatsoever to [the defendant’s] testimony that he talked to [Dara Wickes] about [paying off the credit card bills].”

In context, the statement referred to the discrepancies in the testimony of the defendant and Dara Wickes. Dara Wickes testified that the defendant never spoke with her about what they would do with the insurance proceeds received from the insurer of the minivan. She testified, and there was physical evidence showing, that the defendant, on his own, had written three checks totaling $13,800 to pay off his credit card bills on the night that he reported to the insurance company that the minivan had been stolen. There also was evidence presented that the account from which the checks were drawn did not have sufficient funds to pay the checks. When the defendant testified, he claimed that he had spoken to Dara Wickes about what they were going to do with the insurance proceeds and that they had decided to pay off his credit card bills. In an attempt to explain why he had written the checks without the money to cover them, he testified that it was his practice to write checks as soon as payments become due and then, when he had sufficient funds, he would mail the checks.

The prosecutor’s statement was not a personal expression of his opinion as to the credibility of the defendant. Credibility was a critical issue in the case. The prosecutor merely was arguing that the evidence showed that the defendant’s testimony was not credible. He used the words “I submit” followed by a detailed account of the evidence that the jury could use in determining whether the defendant was credible. The prosecutor based his statement solely on the evidence presented. We conclude, therefore, that his statement was proper argument.

B

The second comment from the state’s closing argument that the defendant claims was improper related to the testimony of Giesing. The prosecutor stated, “I would submit to you that there is no credibility whatsoever to be given to the testimony of former Sergeant Giesing.”

The comment related to Giesing’s testimony regarding the whereabouts of the defendant on the evening that he allegedly drove his minivan into the water and reported to the insurance company that it had been stolen. Giesing testified that the defendant had relieved him as the desk officer in the police station at approximately 6 p.m. Giesing also stated that the defendant remained at the desk until Giesing returned at approximately 6:45 p.m.

In contrast, the state presented evidence that it was Officer Donald Comstock who relieved Giesing at the desk and not the defendant. Comstock testified that he was at the desk on the evening of November 30, 1997, from approximately 6:15 p.m. to 6:45 p.m. and that he did not see the defendant in the police station. The state further substantiated Comstock’s testimony by presenting tapes that were made from the recordings of the desk telephone and the transcriptions of those tapes. The tapes and transcripts showed that Comstock answered all of the telephone calls received at the desk between 6:15 p.m. and 6:45 p.m.

That contradictory evidence made Giesing’s credibility an issue for consideration. The prosecutor argued, therefore, that the evidence showed that Giesing was not credible. His statement directly related to, and was prefaced and followed by, discussion of the evidence regarding Giesing’s credibility. Giesing was a close personal Mend of the defendant. He did not come forward with his statement regarding the defendant’s whereabouts until nearly one year after the defendant’s arrest and more than one and one-half years after the incident. Giesing also wrote a statement after having reviewed the entire case file and having spoken with the defendant and his attorney. He could not explain inconsistencies between the radio transmissions and his testimony. After discussing that evidence, the prosecutor presented to the jury the reasonable inference that Giesing had not testified truthfully.

That was not a personal expression of the prosecutor’s opinion of Giesing’s credibility; it was a reasonable inference that the jury could draw from the evidence. The statement did not imply that it was based on evidence outside the record. The facts and evidence clearly presented an issue of credibility, which the prosecutor properly argued to the jury. His statement was, therefore, not improper.

C

The last comment from the prosecutor’s closing argument that the defendant claims improperly expressed the prosecutor’s personal opinion was essentially a reiteration of the previous remarks that were made in the summation of the argument. In reference to the discrepancies between the state’s evidence and the testimony of the defendant and Giesing, the prosecutor stated: “I submit to you that there’s no credibility whatsoever to believe the testimony of [the defendant] or Giesing.”

As previously stated, the credibility of the witnesses was a central issue. The jury was presented with two differing accounts of the events on November 30,1997. One version, offered by the state, was that the defendant drove his minivan into the Thames River off the Streeter boat launch and reported it stolen to collect the insurance proceeds because of his financial difficulties and his inability to sell the minivan for what it was worth. The second version, offered by the defendant, was that he had nothing to do with the minivan’s disappearance and that he was at the Groton city police station the entire time that the minivan allegedly was put into the river.

The prosecutor’s comment concerning the credibility of the defendant and Giesing occurred in the summation of the closing argument. It was not an expression of the prosecutor’s personal opinion, and there was no implication that the comment was based on anything outside the record. The prosecutor argued from the evidence that it reasonably could be inferred that the defendant and Giesing had not been truthful in their testimony.

D

The final comment that the defendant claims was an improper expression of the prosecutor’s personal opinion as to credibility occurred during the prosecutor’s rebuttal argument. In reference to the credibility of Giesing, the prosecutor argued, “I don’t lightly accuse him of lying. But I do accuse him of lying.” Preceding and following the statement, the prosecutor discussed the evidence that would lead to that conclusion.

That statement is in stark contrast to the previously discussed comments regarding Giesing’s and the defendant’s credibility. The comments previously discussed were not a personal opinion, but a suggested inference that could be drawn from the evidence as discussed by the prosecutor. That type of argument is permissible. In contrast, the statement accusing Giesing of having lied was a blatant expression of the prosecutor’s personal opinion as to Giesing’s credibility. The prosecutor did not “submit” his statement to the jury for its consideration; he personalized the argument by stating, “I don’t lightly accuse him of lying.” That statement therefore was improper.

III

ARGUING FACTS NOT IN EVIDENCE

The defendant argues that the prosecutor on three separate occasions in his rebuttal argument referred to facts that were not in 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.” (Internal quotation marks omitted.) State v. Stevenson, supra, 70 Conn. App. 42. “Statements as to facts which have not been proven amount to unsworn testimony that is not the subject of proper closing argument. ... It does not follow from this, however, that every remark not confined to the record is improper.” (Internal quotation marks omitted.) State v. Rolli, 53 Conn. App. 269, 281, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999). “[T]he privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered . . . .” (Internal quotation marks omitted.) State v. Stevenson, supra, 42. Consequently, “[t]he state may . . . properly respond to inferences raised by the defendant’s closing argument.” Id.

Additionally, “[j]urors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. . . . Therefore, it is entirely proper for counsel to appeal to a jury’s common sense in closing remarks.” (Internal quotation marks omitted.) State v. Rolli, supra, 53 Conn. App. 281.

A

The first statement that the defendant argues was not based on the record was part of the prosecutor’s response to the defendant’s statement in his closing argument that Dara Wickes had lied in testifying that she did not remember a message she left on the defendant’s answering machine. The prosecutor, in his rebuttal argument, countered by offering the alternative explanation that rather than lying about not remembering, she actually did not remember the specific conversation because there had been numerous heated conversations during the pendency of the couple’s divorce proceedings. The prosecutor stated, “I’m sure that there probably have been conversations of a less than civil nature over a long period of time.”

The prosecutor’s argument with respect to the nature of the relationship between Dara Wickes and the defendant and the “less than civil” conversations they may have had was amply supported by the facts in evidence and the reasonable inferences to be drawn therefrom. Dara Wickes testified that she had filed for divorce on three occasions and had obtained accompanying restraining orders in each case. She further testified that she and the defendant had had a stormy relationship and that she had at times during the relationship said some things that were not “pleasant and cheerful,” but, in fact, were “angiy.” Additionally, Stacie Moore testified that the two were going through a “bitter divorce.” Finally, William Lee, a defense witness, testified that the defendant and Dara Wickes did not have a good relationship and did not talk much, but that when they did, it was “bickering back and forth.”

That evidence and the reasonable inferences that could be drawn therefrom clearly support the prosecutor’s statement, “I’m sure that there probably have been conversations of a less than civil nature over a long period of time.” Additionally, that statement appealed to the common sense of the jury. There was no question that the defendant and Dara Wickes were going through a bitter divorce, and common sense would lead one to believe that in such a case, the divorcing parties did not always speak civilly to each other. Further, in arguing that Dara Wickes had lied about not remembering the telephone call, the defendant invited an explanation from the prosecutor. The prosecutor’s comment relating to the nature and number of previous conversations between the defendant and Dara Wickes, therefore, was not improper.

B

The second statement that the defendant claims was not based on the facts in evidence was in response to the defendant’s argument that he did not have a motive and that the state had not proven motive. In explaining the defendant’s motive, the prosecutor stated in his rebuttal argument that the defendant was paying a 22.4 percent interest rate on a credit card debt. The prosecutor then stated: “That’s pretty high.” The defendant objects to that statement on the ground that it lacked any supporting evidence.

That remark appeals to the jury’s common sense and everyday experience. In addition, the defendant himself testified that he was planning on using the insurance proceeds to pay off his credit card debt and to purchase a new car on a separate loan that would have been at a “much lower rate.” The prosecutor’s statement regarding the defendant’s credit card interest rate properly appealed to the common sense of the jury, was amply based in the evidence and was, therefore, proper argument.

C

The third statement, which the defendant argues was improper because it was based on facts that were not in evidence, related to the defendant’s claim that the minivan actually had been stolen. The prosecutor stated in his rebuttal argument: “Now, who steals a minivan? There aren’t a whole lot of them. I would submit it’s not your big target for car thieves . . . .” The defendant argues that there was no evidence as to the rate at which minivans are stolen and, therefore, the statement was improper because it related to facts that were not in evidence.

The state argues that the comment was rhetorical in nature and appealed to the common sense of the jury. “[Wjhen a prosecutor suggests a fact not in evidence, [however] there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury.” State v. Singh, supra, 259 Conn. 718. Although the statement may have been rhetorical in nature, rather than appealing to the common sense of the jurors, it asked them to speculate as to things that are not part of one’s everyday experiences. Thus, because there was no evidence as to the rate at which minivans are stolen, the number of people who steal minivans or the number of minivans available for people to steal, the prosecutor’s comment was improper.

IV

PERSONAL EVALUATION OF THE EVIDENCE

The next statement the defendant argues is improper also occurred in the prosecution’s rebuttal argument. The prosecutor stated, “I think there is plenty of motive here.” Regarding that statement, the defendant fails to articulate specifically any reason as to why the statement was improper. To the extent that the defendant argues that the statement was a personal evaluation of the evidence, in context, it was not, and therefore, it was not improper.

The prosecutor’s single statement of personal evaluation was in direct response to the defendant’s closing argument, in which the defendant argued that there absolutely was no motive for him to commit the crimes charged, and, further, incorrectly, that the state had to prove motive beyond a reasonable doubt. The prosecutor responded first by commenting properly on the evidence and how it showed motive. He went on to state, “I think there’s plenty of motive here.” When viewed in the context of rebutting the defendant’s statements, the prosecutor’s comment was not improper, given the latitude afforded counsel in argument. See State v. Payne, 260 Conn. 446, 452, 797 A.2d 1088 (2002).

V

DUE PROCESS FACTORS

Having concluded that two of the prosecutor’s statements were improper, it is next necessary to consider whether, viewed in context of the entire trial, they caused substantial prejudice to the defendant.

“[W]e must view the prosecutor’s comments in the context of the entire trial. ... In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 298, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct, 670, 151 L. Ed. 2d 584 (2001). “In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court . . . has focused on several factors. . . . 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.” (Citation omitted; internal quotation marks omitted.) State v. Stevenson, supra, 70 Conn. App. 34.

A

In the first improper statement during the prosecutor’s rebuttal argument, the prosecutor directly and personally commented on the lack of credibility of a key defense witness. Considering each of the relevant six factors, and in view of the defendant’s closing argument and the surrounding circumstances of the entire trial, we conclude that the prosecutor’s statement was not so prejudicial as to deny the defendant a fair trial.

First, the prosecutor was responding to the argument of defense counsel, which incorrectly suggested that the prosecutor had to (1) prove motive beyond a reasonable doubt, (2) show that defense witnesses were lying beyond a reasonable doubt, (3) show that prosecution witnesses were truthful beyond a reasonable doubt and (4) explain all of the physical evidence beyond a reasonable doubt. Defense counsel further and extensively argued that Dara Wickes, a key prosecution witness, was lying. Defense counsel also vouched for the credibility of Giesing when he stated that “[h]e has devoted his life to law enforcement. He’s probably still in law enforcement, too. Do you think he is going to come in willy-nilly and perjure himself? That is a — is a stretch. People don’t just do that. You have to be a special type of person to be able to come into court and just he like that.” Therefore, the prosecutor’s comments were invited by defense counsel’s argument. See State v. Dillard, supra, 66 Conn. App. 256.

Further, although the prosecutor’s comment was improper, its severity was lessened by its context. Before and after accusing Giesing of lying, the prosecutor explained his basis in the evidence for the accusation. See State v. Spyke, supra, 68 Conn. App. 113 (“even though it is unprofessional, a prosecutor can argue that a defendant is a ‘liar’ if such an argument is supported by the evidence”). Additionally, the defendant’s failure to object is some indication that the comment was not so prejudicial so as to deny him his right to a fair trial. See State v. Dillard, supra, 66 Conn. App. 249 (“ ‘failure to object to certain arguments at trial often is an indication that counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized’ ”).

Moreover, the prosecutor’s improper statement occurred only once in the course of his rebuttal argument and, therefore, was not part of a pattern of misconduct. Although prosecutorial misconduct can occur in the course of closing argument alone, that single improper comment, which was “made only during closing argument demonstrates that such [comment was] not a pervasive quality of the entire proceeding.” (Internal quotation marks omitted.) State v. Smith, 65 Conn. App. 126, 140 782 A.2d 175, cert. granted on other grounds, 258 Conn. 930, 783 A.2d 1032 (2001).

Another factor to consider is the strength of the court’s curative instruction. The court gave the jury a lengthy instruction on how to evaluate the credibility of witnesses. The court also reminded the jury that statements and arguments by counsel were not evidence. The prosecutor’s single comment about a witness’ lack of credibility was not egregious enough such that the court’s instruction could not have cured the impropriety.

Another factor weighing against ordering a new trial is the strength of the state’s case. The verdict demonstrates that the jury found the state’s case particularly strong. There never was any dispute that the defendant called the insurance company and tried to collect on his “stolen” minivan. The only issue in the case was whether the defendant had put the minivan into the river. To demonstrate that the defendant indeed had put the minivan into the river and that it had not been stolen, the state presented two key witnesses. First, the state presented eyewitness testimony from Dara Wickes that the defendant broke a key off in the ignition and pushed the minivan into the water. Although testimony by the defendant and Giesing contradicted that of Dara Wickes, the jury found the defendant guilty, which demonstrates that it found Dara Wickes’ testimony credible. Second, the state presented testimony from Officer Comstock that he was acting as the desk officer at the police station and had not seen the defendant during the time that the defendant claimed to have been there on November 30, 1997. That testimony was supported by audiotapes and transcripts evidencing that Com-stock had answered all of the calls to the desk when the defendant claimed to be there. The state also offered motive evidence from the defendant himself, indicating that he was going to use the insurance proceeds to pay off his high interest credit card debt and to finance the purchase of a new car at a lower rate. Therefore, the state’s case was particularly strong because it was based on credible eyewitness testimony, a discemable motive and evidence discrediting the defendant’s theory of the case.

The final factor in our analysis, the centrality of the prosecutor’s comment to the critical issue in the case, weighs in favor of granting a new trial. Credibility was a central issue. Specifically, the credibility of the defendant, Dara Wickes and Giesing. Thus, the defendant argued that Dara Wickes, a state’s witness, was lying and that the prosecutor improperly had accused Gies-ing, a defense witness, of lying. Having evaluated and balanced each of the factors, however, that factor alone cannot be a basis for finding that the defendant was substantially prejudiced.

B

The second improper statement related to the number of minivans available to be stolen or to the number of people who steal minivans. Presumably, the statement was offered to rebut the defendant’s theoiy of the case, which was that the minivan had been stolen.

Although the prosecutor’s comment indeed was improper, we cannot conclude that it was part of a pattern of misconduct or so egregious such that it substantially prejudiced the defendant’s right to a fair trial. It related only minimally to the critical issue of the case, credibility, it merely was an attempt to appeal to the jury’s common sense in the form of a rhetorical question and, therefore, it was not intentional. But see State v. Payne, supra, 260 Conn. 458 (“ ‘remarks deliberately intended to undermine the rulings of the trial court to the prejudice of the defendant . . . [are] so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal’ ”). Consequently, even though the comment was improper because it was based on facts outside the evidence, we cannot conclude that it denied the defendant his right to a fair trial.

Therefore, although the prosecutor made two improper comments in the course of his rebuttal argument, those comments alone were not such to affect the entire proceeding, and the defendant was not denied his right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       There are three police departments within Groton: The Groton city police department, where the defendant was employed, the Groton town police department, which conducted the investigation in this case, and Groton Long Point, which is not involved in this case.

       The minivan was a 1995 Chrysler Town and Country model. In 1997, the time of the offenses, it was insured under a policy with the Liberty Mutual Insurance Company and was wholly owned by the defendant. Its retail value at that time was $19,300.

       Groton city police officers each have in their police vehicles a mobile dala terminal, which is a laptop computer that is networked to the police station and 1o other law enforcement vehicles.

       The defendant did not object to the comments of the prosecutor at trial and did not seek a curative instruction from the court.

       Unlike State v. Thompson, supra, 69 Conn. App. 299, and the present case, a recent case involving a claim of prosecutorial misconduct, State v. Payne, 260 Conn. 446, 450, 797 A.2d 1088 (2002), was decided pursuant to the reviewing court’s supervisory powers, rather than under due process analysis. Payne focused on the culpability of the particular prosecutor on the basis of a pattern of conduct in other cases as well as in the case being reviewed.

       Dara Wickes testified that the credit card debt was from the defendant’s previous marriage.

       In the message, she stated, “I may have been arrested for shoplifting, but it wasn’t my van. My charges have been dismissed. I’m going to bury you on the [witness] stand. Can’t wait for trial.”

       It is unclear whether the prosecutor’s use of the word “them” refers to the people who steal minivans or to the number of minivans available to be stolen.

       See footnote 9.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    LEROY ADDISON v. DANIEL VELEZ ET AL.
    (AC 22128)
    Lavery, C. X, and Spear and Dranginis, Js.

    Submitted on briefs April 3
    officially released September 17, 2002

      Leonard M. Crone filed a brief for the appellant (plaintiff).

      Christopher E. Carrington filed a brief for the appel-lee (named defendant).

       This appeal was submitted on briefs before a panel comprised of Chief Judge Lavery, and Judges Spear and Dranginis. Although Judge Spear agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that rather than rearguing the appeal to this court with a panel consisting of the original two judges and an additional judge, they would permit the remaining two judges alone to render a written decision.

   Opinion

LAVERY, C. J.

The plaintiff, Leroy Addison, appeals from the judgment of the trial court rendered in favor of the defendant Daniel Velez after it granted the defendant’s motion for summary judgment. The plaintiff argues that the court improperly granted the motion when a question of material fact existed regarding the intent of the parties at the time that they entered into a general release. We agree with the plaintiff, and, accordingly, reverse the judgment of the trial court.

The following facts are relevant to our resolution of the plaintiffs appeal. The plaintiff brought this action alleging that on November 11,1998, while operating his motor vehicle, he was involved in an accident with a vehicle owned by Alan Velez and operated by the defendant. The plaintiff alleged that the defendant’s negligence caused the accident, and that he suffered personal injuries and losses as a result. The defendant filed a motion for summary judgment, arguing that the plaintiff previously had released him from all liability arising from the subject motor vehicle accident. Specifically, the defendant attached to the motion as an exhibit a general release dated September 5, 2000, in which the plaintiff released “Alan & Laura Velez and Nationwide Insurance Company and Daniel Velez . . . from all debts, obligations . . . causes of actions . . . judgments . . . damages, claims or demands . . . regarding a motor vehicle accident on November 11,1998 and the injuries sustained.” The plaintiff objected to the motion for summary judgment and asserted that the defendant had been named on the release as part of an attempt or offer to settle the case with the defendant’s insurer, which did not occur. The court granted the defendant’s motion for summary judgment for the sole reason that the plaintiff had issued a general release. The plaintiff then filed the present appeal.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides in relevant part that summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’

“ ‘In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.’ ” Soares v. George A. Tomasso Construction Corp., 66 Conn. App. 466, 468-69, 784 A.2d 1041 (2001).

In Sims v. Honda Motor Co., 225 Conn. 401, 623 A.2d 995 (1993), our Supreme Court considered “whether, pursuant to General Statutes § 52-572e, an alleged tort-feasor is, as a matter of law, discharged from liability to an injured party by virtue of a general release agreement executed by the injured party that purports to release not only a specifically named tortfeasor, but also all other potentially liable patties, for consideration paid by the named tortfeasor.” Sims v. Honda Motor Co., supra, 402. In answering that question, our Supreme Court held that a general release like that signed by the plaintiff in Sims discharges only those joint tortfeasors whom the contracting patties actually intended to be released. Id., 406. The court further adopted the “intent rule” with regard to the construction of general releases. Id., 419. Pursuant to the intent rule, “[t]he trial court may consider extrinsic evidence of the parties’ intent regarding the scope of the release regardless of whether the court determines that the language of the release is ambiguous.” Id. We recognize that in the present case, the release specifically named the defendant, whereas in Sims, the release purported to release not only the named tortfeasors but all other potentially liable parties. We nonetheless find Sims to be instructive with regard to the consideration of extrinsic evidence in the construction of general releases.

With the foregoing principles in mind, we consider the plaintiffs claim that the court improperly rendered summary judgment for the defendant. The plaintiff claims that an issue of material fact exists and was presented to the court regarding whether the release at issue had been obtained fraudulently. Specifically, the plaintiff argues that the defendant’s name was placed on the release only in furtherance of a settlement that he had reached with both Nationwide Insurance Company, Alan Velez’ insurer, and Progressive Insurance Company, the defendant’s insurer. As he did in his opposition to the motion for summary judgment, the plaintiff argues that on September 5, 2000, he simultaneously sent duly executed releases to those insur-anee companies with the intention of settling the claims against each company. According to the plaintiff, Progressive Insurance Company then reneged on its agreement to settle the case and subsequently used the release as a shield against liability.

The plaintiff attached the affidavit of his attorney, Leonard M. Crone, in support of the opposition to the motion for summary judgment. Crone avers in the affidavit that he sent the releases to the insurance companies and that the name of “Daniel Velez was placed on both releases because there was a promise made by both insurance adjusters to pay out the insurance policy limits to [tiie plaintiff].” Crone avers that “[o]ne week after a release was sent to Progressive Insurance, adjuster Heather Turner denied offering to settle the matter on behalf of [the defendant].” Also attached to the opposition to the motion for summary judgment was a copy of a letter from Turner, a casualty representative for Progressive Insurance Company, indicating her belief that no settlement had occurred.

On the basis of the record before us, we conclude that the plaintiff has met his burden of showing that the court’s decision to grant the defendant’s motion for summary judgment was clearly erroneous. The plaintiff provided documentation in opposition to the motion that demonstrated the existence of a question of material fact with regard to the intent of the parties at the time the release at issue was executed. Specifically, the plaintiff raised issues regarding whether he had executed the release with the belief that the claim with Progressive Insurance Company was settled and with the intent that in consideration for the release, Progressive Insurance Company would pay to him the limits of its policy insuring the defendant. The court, therefore, improperly granted the defendant’s motion for summary judgment.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Although the original complaint named Daniel Velez, Nelson Velez and Alan Velez as defendants, Nelson Velez filed a motion to strike the complaint as to him because the complaint did not state a cause of action against him. The court granted the motion to strike, and that decision is not challenged on appeal. In addition, it appears that Alan Velez never was actually made a party to the action. Although the plaintiff filed an amended complaint naming Progressive Insurance Company as a defendant, the plaintiff failed to obtain the court’s permission to amend the complaint or to have Progressive Insurance Company made a party to the action. Accordingly, Progressive Insurance Company is not a party to the appeal. For the purposes of this opinion, we refer to Daniel Velez as the defendant.

       General Statutes § 52-572e provides: “(a) For the purposes of this section the term ‘joint tori feasors’ means two or more persons jointly or severally liable in tort for the same injury to person or property whether or not a judgment has been recovered against all or any of them.
      “(b) A release by the injured person, or his legal representative, of one joint tortfeasor does not discharge the other tortfeasors unless, and only to the extent, the release so provides.”

       Following the submission of this case, we ordered the parties to file supplemental briefs addressing, inter alia, whether, in light of Alvarez v. New Haven Register, Inc., 249 Conn. 709, 735 A.2d 306 (1999), and Cunha v. Colon, 260 Conn. 15, 792 A.2d 832 (2002), the intent rule that was enunciated in Sims is applicable to the circumstances of the present case. After considering the parties’ arguments in that regard, we are persuaded that Alvarez and Cunha are distinguishable from this case.
      In Alvarez v. New Haven Register, Inc., supra, 249 Conn. 710-11, our Supreme Court considered “whether, notwithstanding General Statutes § 52-572e, a release executed in favor of an employee operates as a matter of law to release the employer whose sole liability is premised on the doctrine of respondeat superior.” The court held that the employer and employee are not joint tortfeasors pursuant to § 52-572e and, therefore, the employer is released from any derivative liability. Alvarez v. New Haven Register, Inc., supra, 711.
      In Cunha, our Supreme Court similarly held that the lessor and lessee of an automobile were not joint tortfeasors within the meaning of § 52-572e and, consequently, that a release executed in favor of a lessee also operates to release the lessor. Cunha v. Colon, supra, 260 Conn. 17. The court stated that “§ 52-572e was intended to apply only to joint tortfeasors who are independently at fault on the basis of their own tortious conduct, and not to individuals or entities whose sole liability is derivative or vicarious in nature.” Id., 20. In the present case, unlike the situations in Alvarez and Cunha, the tortfeasor with direct and independent liability, as opposed to vicarious liability, claims the benefit of the release because he is named expressly in the release.

       Turner’s letter states in relevant part: “In review of your letter, I am somewhat confused as the letter confirms settlement of this matter for $20,000 and included a signed release. As you know, I have not even reviewed the file yet and was waiting on all the medical information from your office. Your office just sent me the material in a letter dated September 5, 2000.1 have not yet reviewed this and in no way made any type of offer on this file.”


author: BISHOP, J.

text:
    ALICE RENEE SABLOSKY v. MICHAEL SABLOSKY
    (AC 19261)
    Spear, Pellegrino and Bishop, Js.

      Argued March 25
    officially released September 17, 2002

      Henry B. Hurvitz, for the appellant (defendant).

      William R. Moller, with whom was Michael Ruben Peck, for the appellee (plaintiff).

       This appeal was argued before a panel comprised of Judges Spear, Pellegrino and Bishop. Although Judge Spear agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render a written decision.

   Opinion

BISHOP, J.

This case returns to this court on remand from our Supreme Court pursuant to its decision in Sablosky v. Sablosky, 258 Conn. 713, 784 A.2d 890 (2001). In reversing the prior decision of this court, our Supreme Court held that (1) an ambiguity in the terms of a judgment does not, as a matter of law, preclude a finding of contempt for wilfully failing to comply with certain provisions of the dissolution judgment and (2) a court, when concluding that a finding of contempt is unwarranted on the basis of an ambiguity in the judgment, may nonetheless enter an appropriate order of payment on the basis of its interpretation of the judgment. Id. Before turning to the claims raised by Michael Sablosky, the defendant in this contempt action, we set forth the facts and procedural history relevant to his appeal.

On July 12, 1993, the trial court rendered judgment dissolving the parties’ marriage. The judgment of dissolution incorporated a written provision providing post-majority support for the parties’ two children, Shannon and Michael. Both parties, i.e., the plaintiff, Alice Renee Sablosky, and Michael Sablosky, previously had agreed to the postmajority support provision, which was titled, “Child Support/Education/Transportation, ” and stated: “The defendant husband shall be responsible for payment of college tuition and books for Shannon and Michael Jr., at a cost equivalent to the University of Connecticut at Storrs. . . . The defendant husband and plaintiff wife shall divide equally the cost of college room and board for Shannon and Michael Jr., at an expense not to exceed the cost of the University of Connecticut at Storrs. . . . The defendant husband shall provide Shannon with transportation, or reimbursement for the cost thereof, while she is an undergraduate college student. . . . The defendant husband and plaintiff wife shall divide equally the cost of automobile insurance for both Shannon and Michael Jr., while they are undergraduate college students.”

On June 15, 1998, the plaintiff filed a motion for contempt, in which she alleged that the defendant had failed to make some of the postmajoiity support payments. The court conducted a hearing on the motion, during which the parties offered conflicting interpretations of the scope and duration of the postmajority support provision. The plaintiff argued that the defendant was required to contribute to the children’s post-secondary education, without limitation, as long as the children remained in college. The defendant urged the court to limit his obligation to “when the children are attending a four year institution of higher learning, pursuing a full-time course of study leading to a bachelor’s degree.” Alternatively, the defendant argued, his obligation should be limited to “an amount directly proportional to the course load successfully undertaken by the children during those semesters when they are enrolled in school.”

The court concluded that the phrase “undergraduate college student,” as used in the judgment of dissolution, was ambiguous. Aided by the evidence presented at the hearing relating to the intent of the parties, the court construed that phrase and concluded that the defendant was obligated to pay for “college tuition, one half of living expenses, car insurance and Shannon’s transportation so long as each was enrolled in school.” The court found, however that “the intention of the parties did not extend to enrollment beyond eight semesters, whether those were full-time or part-time semesters.” The court also held the defendant in contempt “for his wilful failure to comply with the orders contained in the [dissolution] judgment,” and ordered him to pay arrearages, attorney’s fees and costs. Finally, the court found that neither Shannon nor Michael had graduated from college and concluded, on the basis of the defendant’s failure to comply fully with the postmajority support provision and the ensuing harm to the children, that Shannon is entitled to benefits under that provision for one more semester and that Michael is entitled to those benefits for four more semesters.

The defendant appealed to this court, which reversed the judgment of contempt. Sablosky v. Sablosky, 61 Conn. App. 66, 72, 762 A.2d 922 (2000), rev’d, 258 Conn. 713, 784 A.2d 890 (2001). Holding that an ambiguity in an order precludes a finding that the order was wilfully violated, this court concluded that the defendant could not have wilfully violated the postmajority support order and, therefore, the trial court improperly held him in contempt. Id. This court also vacated the order requiring the defendant to pay arrearages, attorney’s fees and costs. Id. Thereafter, the plaintiff appealed to our Supreme Court, which (1) reversed this court’s decision on the basis of the conclusions summarized in the first paragraph of this opinion and (2) remanded the case to us with direction to consider the defendant’s four remaining claims. Sablosky v. Sablosky, supra, 258 Conn. 717 n.2, 724. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims the court acted improperly in concluding that he had failed to prove that the plaintiffs motion for contempt was barred by at least one of the following three defenses: Laches, waiver and equitable estoppel. We disagree.

The following additional procedural history is relevant to our resolution of the defendant’s claim. On September 8,1995, the plaintiff filed a motion for contempt in which she alleged that the defendant had failed to pay child support for Michael in the amount of $150 per week and had failed to pay for Shannon’s transportation. By agreement of the parties, the court found that the defendant owed the plaintiff $6700. As stated previously, the plaintiff, on June 15, 1998, filed another motion for contempt. The second motion solely concerned expenses relating to the children’s college education that were incurred between 1993 and 1998.

The defendant argued that the plaintiff should have raised her claims much earlier concerning his alleged failure to meet his obligations regarding college tuition, room and board and automobile insurance. He also contended that the court, in light of the plaintiffs foregoing testimony and her unexplained failure to raise those claims in her 1995 motion for contempt, was barred from bringing the second motion for contempt under the doctrine of laches, waiver or equitable estoppel.

On the basis of its assessment of the evidence, the court concluded that the defendant had not satisfied his burden of proving any of those three defenses. We agree.

A

We turn first to the defendant’s claim of laches. “Laches consists of an inexcusable delay which prejudices the defendant. . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.” (Citation omitted; internal quotation marks omitted.) Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350, 579 A.2d 1054 (1990). Even if we assume arguendo that the plaintiff delayed in filing her second motion for contempt and that the delay was inexcusable, the record still does not contain any evidence that the defendant would have been in a more advantageous position had the plaintiff filed her motion earlier. Absent a showing of prejudice, we conclude that the evidence is sufficient to support the court’s conclusion that the defendant failed to prove laches.

B

The defendant also claims that the plaintiff impliedly waived her right to bring the second motion for contempt. “Waiver is the intentional relinquishment of a known right. . . . Waiver need not be express, but may consist of acts or conduct from which a waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Citations omitted; internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251-52, 618 A.2d 506 (1992). In the present case, little if any evidence of waiver was presented at the contempt hearing. On that basis, we conclude that it would not have been reasonable to infer waiver from the circumstances. Accordingly, the evidence is sufficient to support the court’s conclusion that the defendant failed to prove waiver.

C

Third, the defendant claims that the plaintiff was equitably estopped from bringing her second motion for contempt.

“Under our well-established law, any claim of estop-pel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. ... It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge.” (Citations omitted; internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 366-67, 659 A.2d 172 (1995).

In the present case, neither party presented evidence at the contempt hearing indicating the plaintiff had done or said something with the intent of inducing the defendant to believe that he was complying with the postma-jority support provision. Accordingly, we conclude that the court correctly determined that the defendant failed to prove equitable estoppel.

II

Next, the defendant claims that the court acted improperly in finding that his total arrearage was $44,063.58. Specifically, he claims that the court miscalculated his arrearage for (1) both Shannon and Michael’s room and board, (2) Shannon’s tuition, (3) Shannon’s transportation and (4) Shannon’s automobile insurance.

In the present case, the court incorporated the agreement of the parties into its judgment of dissolution. A judgment rendered in accordance with such a stipulation is regarded and construed as a contract. See Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999); Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990). Consequently, “[a]n agreement between divorced parties regarding the postsecondary education of their children that is incorporated into a dissolution decree should be regarded as a contract.” (Internal quotation marks omitted.) Bonhotel v. Bonhotel, 64 Conn. App. 561, 566, 781 A.2d 318, cert. denied, 258 Conn. 918, 782 A.2d 1241 (2001).

“There are no unbending rules as to the evidence by which [damages for breach of contract] are to be determined. . . . The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. ... In making its assessment of damages for breach of [any] contract the trier must determine the existence and extent of any deficiency and then calculate its loss to the injured party. The determination of both of these issues involves a question of fact which will not be overturned unless the determination is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 41, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Wren v. MacPherson Interiors, Inc., 69 Conn. App. 349, 354, 794 A.2d 1043 (2002). With those legal principles in mind, we now address the four specific claims raised by the defendant.

A

First, the defendant argues that the court miscalculated his arrearage for both Shannon and Michael’s room and board. Specifically, he claims that (1) the arrearage as found by the court exceeds the cap set forth in the postmajority support provision for room and board payments, and (2) in determining the cost of the lodging and food provided to Shannon and Michael by the plaintiff when they lived in her home while attending college, the court improperly included unrelated expenses listed in the plaintiffs financial affidavit.

The following additional facts and procedural history are relevant to the defendant’s claim insofar as it concerns Shannon. Shannon graduated from high school in spring, 1992, and enrolled in Central Connecticut State University (Central) the following fall. Following the parties’ divorce in July, 1993, Shannon attended Central in the fall of 1993, the spring of 1994, the spring of 1995, the fall of 1995, the spring of 1996 and the fall of 1996, a total of three academic years. The court found that the defendant had failed to pay Shannon’s room and board for all six of those semesters. The court also found that the academic year consisted of approximately nine months or about 38.7 weeks. It further found that Shannon lived in an off campus apartment during the 1993-94 academic year and that the monthly rent for that apartment was $300. For the remaining four semesters, Shannon lived in and ate meals at the plaintiffs house, in West Hartford, free of charge.

In approximating the cost of the room and board provided to Shannon by the plaintiff, the court consulted the plaintiffs financial affidavit, which indicated $542.42 in weekly expenses. Because the plaintiff, on average, shared her house with two others, i.e., her children, Shannon and Michael, the court determined that the value of the room and board for the duration of an academic year was one-third of $542 per week multiplied by 38.7 weeks or about $6991. Thus, the total value of room and board for both of the academic years that Shannon lived in the plaintiffs house was $13,982. The postmajority support provision required the plaintiff and the defendant to divide the cost of room and board equally. Consequently, the court found that the defendant owed half of $13,982, or about $6991, for those four semesters, which equals $1747.75 per semester.

Regarding the remaining academic year (two semesters), during which Shannon lived in an off campus apartment, the court multiplied the monthly rent ($300) by nine months, yielding $2700, and added it to $6991, yielding a total cost of $9691.

We conclude that the award of $9691 is clearly erroneous because $1747.75 per semester exceeds the cap specified in the postmajority support provision, which, per party, equals half of the cost of room and board at the University of Connecticut at Storrs (UConn). The parties had agreed that for the relevant time period at UConn, a room costs $1430 per semester and board costs $1383 per semester, totaling $2813. Accordingly, the defendant was obligated to pay only up to $1406.50 each semester for room and board. Thus, his room and board arrearage relating to the four semesters that Shannon lived in the plaintiffs house is $5626 not $6991.

Additionally, the arrearage relating to the academic year that Shannon lived off campus is clearly erroneous because the defendant was obligated to pay only half of Shannon’s rent, not all of it. Consequently, the defendant owes one half of $300 per month for half the rent, i.e., nine months or $1350, for that academic year. In sum, the defendant’s arrearage relating to Shannon’s room and board is $5626 plus $1350, or $6976, which represents a reduction of $2715.

The following additional facts and procedural history are relevant to the defendant’s claim insofar as it concerns Michael. Michael graduated from high school in 1995 and enrolled in a small Pennsylvania college the following fall. After a few weeks there, he returned to the plaintiffs house. He later attended Central part time in the spring of 1996, the fall of 1996, the spring of 1997 and the spring of 1998, a total of two academic years. While he attended Central, Michael lived in and ate meals at the plaintiffs house free of charge. The court found that the defendant had failed to pay Michael’s room and board for all four of those semesters. Using the formula based on a 38.7 week academic year and the plaintiffs financial affidavit, the court found that the defendant owed the plaintiff $6991, which equals $1747.75 per semester.

We conclude that the award of $6991 is clearly erroneous because $1747.75 per semester exceeds the cap specified in the postmajority support provision. The defendant is obligated to pay only up to $1406.50 each semester for room and board. Thus, his room and board arrearage relating to the four semesters that Michael lived in the plaintiffs house is $5626, not $6991. That represents a reduction of $1365.

Finally, regarding both Shannon and Michael’s room and board, the defendant claims that the court, in determining the cost of the lodging and food provided to them by the plaintiff when they lived in her home, improperly included unrelated expenses listed in the plaintiffs financial affidavit.

The plaintiff’s financial affidavit states that she had weekly expenses of $542.42 and, as explained previously, the court relied on that figure in calculating the room and board expenses that she incurred. The defendant argues that that figure should have been reduced by $143 because weekly expenses unrelated to lodging and meals were counted, including cable television ($2.50), clothing ($20), transportation ($30), automobile insurance ($25), life insurance ($8.50), medical and dental insurance ($5), newspaper ($4), entertainment ($20) and retirement and investment plan ($6). Although we find the court’s approach reasonable, we agree with the defendant that the court did, in fact, improperly include expenses that are unrelated to lodging and meals. Nevertheless, even if we assume arguendo that those unrelated weekly expenses totaled $143, a figure of almost $400 should have been used instead of $542.42, yielding a room and board cost of one-third of 38.7 weeks per semester multiplied by $400 per week, which equals $5160 per semester per child. Because that amount, on a semester basis, substantially exceeds the UConn charges for room and board ($2813), the defendant’s obligation to Shannon and Michael is measured by the lesser amounts established previously in this opinion.

B

Next, the defendant claims that the court’s finding that he had an arrearage of $10,500 relating to Shannon’s tuition expenses is clearly erroneous. We disagree.

The following additional procedural history is relevant to the defendant’s claim. During the contempt hearing, the plaintiff testified that the defendant owed $10,500 in tuition expenses for Shannon and that Shannon’s tuition bills had been paid mostly through student loans. The plaintiff further testified that Shannon has three outstanding student loans that are coming due because she no longer is attending college. Finally, the plaintiff testified that Shannon still has one year of college to complete before earning an undergraduate degree. Shannon testified that the defendant had stopped paying her tuition bill in full in 1994. Furthermore, she indicated that the defendant did not provide her with any tuition assistance when she transferred briefly to the University of Arizona in the fall of 1994. Last, she testified that she paid her tuition for the spring, 1996, semester at Central.

The court found that “Shannon’s failure to complete her four year college course by the end of the 1996 spring semester is attributable to the defendant’s failure to contribute to the fall semester of 1994 or to contribute to full-time tuition for the spring of 1996.” Moreover, the court, in an articulation, stated: “The factual basis of the calculation that Shannon’s tuition was $10,500 was the uncontroverted and credible testimony of the plaintiff. The defendant acknowledged not paying Shannon’s tuition as required, but did not testify as to the amount he did not pay.”

We acknowledge that “[although damages often are not susceptible of exact pecuniary compensation and must be left largely to the sound judgment of the trier . . . this situation does not invalidate a damage award as long as the evidence afforded a basis for a reasonable estimate by the [trier] of that amount.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 862, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). On the basis of that reasoning, we decline to conclude that the court’s finding concerning Shannon’s tuition is clearly erroneous.

C

The defendant claims also that the court’s finding that he had an arrearage of $10,000 relating to Shannon’s transportation expenses is clearly erroneous. We agree.

The following additional procedural history is relevant to the defendant’s claim. During the contempt hearing, the following occurred. The plaintiff testified that she had to provide Shannon with transportation to attend college because the defendant had failed to provide it for her. The plaintiff explained that Shannon leased a new 1996 Volkswagen Jetta automobile and that the defendant “had originally agreed to cosign the lease and on the day of picking up the car, he changed his mind and told her he just wasn’t going to do it. [Shannon] was stranded. She had already traded in her car and had no one else to cosign, so I did.” The plaintiff testified that she “would like to relinquish cosignorship of the car.” The plaintiff testified that the monthly payment was approximately $200 and that the duration of the lease was three or four years.

The court awarded $10,000 to the plaintiff for transportation costs. Thereafter, in an articulation, the court stated that it had “found credible the testimony of the plaintiff that Shannon incurred the sum of $10,000 to lease an automobile after the car she previously owned became inoperable and excessively expensive to repair.”

Under the postmajority support provision, the defendant is obligated to provide transportation to Shannon only when she is attending college. Therefore, the period of time for which the defendant was obligated to provide transportation was of limited duration. The record discloses, however, that Shannon last attended college in the fall of 1996 and that she had entered into the lease agreement during the spring or summer of that same year. The record discloses also that at the time of the hearing, $10,000 was the amount necessary to pay off the remainder of the three or four year lease, not the sum of any transportation expenses Shannon had incurred while attending college. Under those circumstances, the payoff figure for the lease is not an accurate measure of the expenses incurred as a result of the defendant’s failure to provide Shannon transportation after her automobile became inoperable and excessively expensive to repair. On that basis, we conclude that the court mistakenly awarded the plaintiff the sum of $10,000 without evidentiary support for that amount.

The record discloses that the plaintiff presented evidence sufficient to establish only that Shannon had entered into the lease agreement in 1996 before she attended college that fall and that the monthly lease payment was $200. Because the court, in determining the cost of room and board, did find that the length of an academic year (two semesters) is approximately nine months, we conclude that the length of a semester is 4.5 months. Accordingly, the court instead should have awarded the plaintiff $900 on the basis of the $200 monthly lease payment multiplied by 4.5 months. We therefore conclude that the court’s finding that the defendant’s arrearage concerning Shannon’s transportation was $10,000 is clearly erroneous and order that the court, on remand, reduce that arrearage by $9100.

D

The defendant claims that the court's finding that he had an arrearage of $3200 relating to the cost of Shannon’s automobile insurance is clearly erroneous. We agree.

The defendant argues that since the parties’ divorce, Shannon has attended college only for six semesters, which is less than four years, yet the court found that he owed half the cost of four years of insurance, which is half of four years at $1600 per year, or $3200. The record discloses that Shannon attended Central in the fall of 1993, the spring of 1994, the spring of 1995, the fall of 1995, the spring of 1996 and the fall of 1996, a total of six semesters or three academic years. Although we conclude that the amount awarded by the court is clearly erroneous, the formula it used is reasonable. Thus, the court should have awarded half of three years at $1600 per year, or $2400. We therefore reduce the defendant’s arrearage concerning Shannon’s insurance by $800.

Ill

The defendant claims that the court improperly held him in contempt. We disagree.

“In order to constitute contempt, a party’s conduct must be wilful. . . . The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court. . . . One cannot be placed in contempt for failure to read the court’s mind. ... A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor’s nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court’s discretion. [Also, it] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order.” (Citations omitted; internal quotation marks omitted.) Sablosky v. Sablosky, supra, 258 Conn. 718.

“Judicial discretion, however, is always a legal discretion, exercised according to the recognized principles of equity. . . . Such discretion . . . imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice. . . . [R]eversal is required where the abuse is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Burton v. Browd, 258 Conn. 566, 569-70, 783 A.2d 457 (2001).

In the present case, the defendant contended that he could not wilfully have failed to make the required payments because (1) the plaintiff never made him aware of the amount allegedly due and (2) he did not have the financial means to obey the order of the court.

The court nonetheless concluded that “[s]ince [the defendant was the obligor, it was [his] responsibility to ascertain the amounts he was required to pay, without placing the children in the position of having to solicit the funds. This finding is reinforced by the fact that the defendant was not responsive to requests by Shannon for funds when she did ask for them.” The court also reviewed the defendant’s tax returns for the years 1995, 1996 and 1997 and concluded that “he had the ability based upon his income alone to make the payments required under the judgment.”

The record discloses that during the contempt hearing, the plaintiff testified that the defendant ceased communicating with her in 1995, and never asked her about expenses relating to the children’s room and board, tuition, transportation and automobile insurance. Additionally, Shannon testified that three months after the defendant remarried, he told her that he no longer was going to pay for her education when she reached twenty-one years of age. Furthermore, the defendant’s tax returns, which were admitted into evidence, reveal that he earns a middle-class living from the profits generated by his small, long-distance trucking corporation.

The evidence in the record reasonably supports the conclusions reached by the court. On the basis of that evidence, we therefore conclude that the court did not abuse' its discretion in finding the defendant in contempt.

IV

Fourth, the defendant claims that the court improperly granted the plaintiffs motion for attorney’s fees. We disagree.

“The authority of the trial court to award attorney’s fees following a contempt proceeding is well settled. Once a contempt has been found, [General Statutes] § 46b-87 establishes a trial court’s power to sanction a noncomplying party through the award of attorney’s fees. . . . Pursuant to § 46b-87, that sanction may be imposed without balancing the parties’ respective financial abilities. . . . The award of attorney’s fees in contempt proceedings is within the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). Given the circumstances of the present case, the award of attorney’s fees in the amount of $5174.78 does not constitute an abuse of discretion.

The judgment is reversed as to the court’s calculation of the arrearage owed by the defendant concerning room and board expenses and transportation expenses and the case is remanded with direction to reduce the defendant’s total arrearage by $13,980. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The prior decision of this court is Sablosky v. Sablosky, 61 Conn. App. 66, 762 A.2d 922 (2000), rev’d, 258 Conn. 713, 784 A.2d 890 (2001).

       Our decision does not address or disturb the court’s conclusion that the defendant is obligated to provide benefits for a total of five more semesters. In analyzing claims relating to the defendant’s arrearage, we concerned ourselves solely with postmajority support payments that the defendant failed to make in the past, as an arrearage is, by definition, retrospective in nature.

       For clarity, we note that this amount does not include attorney’s fees and costs.

       Neither party presented evidence concerning the expenses Shannon incurred for board during that academic year.