text:
    STATE OF CONNECTICUT v. JOHN RAYMOND PECZYNSKI
    (AC 16641)
    Spear, Sullivan and Kulawiz, Js.
    Argued May 27
    officially released August 25, 1998

      JohnE. Doran, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Antonia Carabillo, assistant state’s attorney, for the appellee (state).
   Opinion

KULAWIZ, J.

The defendant, John Raymond Peczyn-ski, appeals from the judgment of conviction, rendered after a jury trial, of reckless endangerment in the second degree in violation of General Statutes § 53a-64. The defendant was acquitted of one count of interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant claims that the trial court improperly (1) excluded a videotape and (2) denied him access to police personnel files. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 30,1995, between 11 a.m. and 11:30 a.m., Officer Leonard Rulas of the Rocky Hill police department was traveling north on Old Main Street in Rocky Hill. As Rulas approached the intersection of Old Main and Washington Streets, the defendant, traveling south on Old Main, suddenly turned left onto Washington, cutting in front of him. Rulas followed the defendant onto Washington Street and pulled him over.

Rulas exited his car and approached the defendant. The defendant immediately exclaimed to Rulas that he was “sick and tired every time I look in my rearview mirror, seeing one of you guys behind me.” Rulas then told the defendant that he had cut him off and asked him to produce his license and registration. The defendant told Kulas that he was going to speak with Phillip Dunn, the Rocky Hill police chief. The defendant then handed his license and registration to Kulas. While walking back to his car, Kulas noticed exhaust fumes spewing from the defendant’s car and ordered the defendant to shut off his engine, which he did.

Kulas issued the defendant a citation for making an improper left turn and a written warning for a defective exhaust system. The defendant told Kulas that he would “see [him] in court on this one. I got you this time.”

The defendant then grabbed the ticket and warning from Kulas’ hand and drove away quickly, running over Kulas’ foot. Kulas was not injured. The defendant pulled into a nearby driveway and backed out. Kulas ran over to him and ordered him out of his car, but he refused. Again, Kulas ordered the defendant out of the car, and again the defendant refused. Then Kulas opened the defendant’s car door, forcibly removed him from the car and arrested him.

I

The defendant first claims that the trial court improperly restricted the cross-examination of Kulas, the sole prosecution witness. Specifically, the defendant contends that the trial court violated his right to confront his accusers as guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut by excluding a videotape that the defendant claims shows Kulas’ hostility and bias toward the defendant. The defendant contends that the videotape should have been admitted to allow the defendant fully to impeach Kulas’ testimony. We disagree.

Additional facts are necessary for our resolution of this claim. On cross-examination, the defendant asked Kulas whether he ever had any hostility toward the defendant, to which Kulas responded that he did not. The defendant then inquired whether Kulas was aware that another police officer pretended to hurt the defendant during his booking. Kulas testified that he was not aware of that incident. Finally, the defendant asked Kulas if he would find it amusing if anyone threatened to hurt the defendant. After the state objected, arguing that the question was speculative, the trial court sustained the objection.

The court excused the jury and ordered Kulas to leave the courtroom. At this point, the defendant proffered to the court that he had a videotape of Kulas’ amusement at Detective Joseph Corbin’s pretending to hurt the defendant. According to the defendant, this videotape would have impeached Kulas’ testimony (1) by contradicting Kulas’ earlier statement that he was unaware that Corbin pretended to hurt the defendant and (2) by showing Kulas’ hostility toward the defendant.

The defendant made an offer of proof and played a six second portion of the videotape to the court. The state objected on the ground of relevancy. The court sustained the state’s objection because (1) any connection to a claim of hostility was purely speculative and (2) the videotape had little impeachment value.

It is axiomatic “that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. U.S. Const., amends. VI, XIV; Conn. Const., art. I § 8; Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) . . . State v. Jones, 167 Conn. 228, 232, 355 A.2d 95 (1974) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Hackett, 182 Conn. 511, 517, 438 A.2d 726 (1980). “The primary interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); and an important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985).

“The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.” State v. Johnson, 21 Conn. App. 291, 293, 573 A.2d 1218 (1990). Only relevant evidence may be elicited through cross-examination. See State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). “The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . . The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995); Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 569, 657 A.2d 212 (1995). “Although it is within the trial court’s discretion to determine the extent of cross-examination and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment.” State v. Colton, 227 Conn. 231, 249, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). The relevant inquiry, therefore, is whether the trial court’s ruling excluding the videotape resulted in the exclusion of extrinsic evidence that so significantly bore on the motive, bias and interest of Kulas that the exclusion infringed on the defendant’s confrontation rights.

The defendant argues that the trial court’s exclusion of the videotape unduly limited the defendant’s cross-examination of the state’s only witness and, therefore, denied the jury the opportunity to weigh fully and fairly Kulas’ credibility. Because the state’s entire case rested on Kulas’ credibility, the defendant argues, the videotape was highly relevant to determine whether Kulas fabricated his claim that the defendant ran over his foot.

Our review of the record in this case leads us to conclude that the trial court did not abuse its discretion by excluding the videotape. After screening the videotape, the trial court concluded that the defendant’s contention that Kulas manifested hostility toward him was “purely speculative” and that the defendant was “reading a lot” into the officers’ actions. Consequently, the court ruled that the videotape was irrelevant. This ruling was well within the trial court’s discretionary power to exclude irrelevant evidence.

Moreover, the trial court permitted the defendant a more than ample opportunity to cross-examine Kulas for hostility and bias. “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992). The jury heard evidence of two prior encounters between Kulas and the defendant. First, the defendant testified that when he was stopped at a gas station several years earlier, Kulas pulled his car alongside the defendant’s car and “got out of the car, came over to me, stood ... on my feet with his feet, grabbed the roof rack, front and rear, and pulled himself up so his head was level with mine. He stuck his nose in my face and started yelling and screaming at the top of his lungs.” Second, the defendant testified that, as he was “running his dog” while riding a bicycle near his house, Kulas drove by the defendant and almost knocked him off his bicycle. In addition, the jury saw a portion of the videotape in question that the defendant claimed showed Kulas angrily throwing a wet towel at the defendant. The trial court properly allowed the defendant “to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) Id. The trial court did not abuse its discretion in excluding the videotape.

II

The defendant’s second issue on appeal is whether the trial court improperly denied him full access to Kulas’ personnel file. The trial court, after conducting an in camera inspection, granted the defendant access to only some of the records. The defendant argues that the trial court abused its discretion by denying him access to all of Kulas’ records. This claim is without merit.

“The trial court must make available to the defendant only that material that it concludes ‘is clearly material and relevant to the issue involved.’ ” Id., 337. “[T]he trial court has discretion to determine the relevancy of evidence and to limit the scope of cross-examination. . . . This includes limiting discovery where material is sought for impeachment proposes.” (Citation omitted.) Id., 336; State v. Januszewski, 182 Conn. 142, 171, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). The court must balance the witness’ interest in maintaining the confidentiality of his personnel file against the right of a criminal defendant to cross-examine fully all witnesses against him. State v. Harris, 227 Conn. 751, 766, 631 A.2d 309 (1993). The trial court’s decision will not be overturned unless the court has abused its discretion. State v. Lindstrom, 46 Conn. App. 810, 820, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997).

In this case, the trial court diligently weighed Kulas’ interest in maintaining the confidentiality of his personnel file and the defendant’s interest in cross-examining fully all witnesses, and concluded that Kulas’ personnel file contained several items relevant to his veracity as a witness; the court ordered that these items be disclosed to the defendant. The trial court found that the remainder of the file contained nothing relevant to impeach Kulas. Having reviewed the personnel file, we come to the same conclusion. Therefore, the trial court did not abuse its discretion in denying the defendant access to Kulas’ entire file.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-64 (a) provides: “A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a risk of physical injury to another person.”


source: Caselaw Access Project

author: LANDAU, J. DALY, J.,

license: Public Domain

text:
    SUSAN ISSLER v. JAMES ISSLER
    (AC 16463)
    Foti, Landau and Daly, Js.

      Argued December 8, 1997
    officially released August 25, 1998

      Steven D. Ecker, with whom, on the brief, were Howard A. Jacobs, Shirley V. Hoogstra, and Alinor C. Sterling, for the appellant (defendant).

      Kathleen A. Hogan, with whom, on the brief, was Arnold H. Rutkin, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, James Issler, appeals from the trial court’s judgment of contempt for failure to comply with the terms of a marriage dissolution agreement and from the court’s award of attorney’s fees to the plaintiff, Susan Issler, for the appeal. As to the judgment of contempt, the defendant claims that the trial court improperly (1) construed the dissolution agreement to require calculation of alimony based on his total income rather than on only income received as salary, (2) found that the defendant’s actions were in wilful contempt of the dissolution agreement, (3) arrived at its conclusions using a preponderance of the evidence standard and (4) awarded $10,000 in attorney’s fees to the plaintiff. As to the $12,000 award of attorney’s fees for the appeal, the defendant claims that the award was improper because the trial court (1) failed to consider factors mandated by General Statutes § 46b-62, (2) applied an improper legal standard and (3) abused its discretion. We affirm the judgment of the trial court.

The trial court dissolved the marriage of the parties in July, 1995. Subsequently, a dispute arose as to whether the defendant was to make alimony payments to the plaintiff based on income that he earned in his business as salary as opposed to additional income he received from yearly profits as the president of his company (profit income). The plaintiff filed a motion for contempt alleging alimony arrearage based on the profit income and for attorney’s fees, which was granted by the trial court. The trial court determined that the defendant owed the plaintiff an alimony arrearage of $90,000 based on the profit income and that he owed her $10,000 in attorney’s fees. This appeal followed.

Following the trial court’s granting of the plaintiffs motion for attorney’s fees for the appeal, the defendant amended his appeal to challenge that award.

I

The defendant first challenges the trial court’s judgment of contempt. The following additional facts are necessary to our resolution of this claim. The dissolution agreement provided, in relevant part, the following alimony schedule:

“a. The husband shall pay to the wife alimony in an amount equal to 33 1/3% of his gross earnings up to $750,000.00 gross in any calendar year in which he has an obligation to pay alimony.
“b. The next $100,000.00 of gross earnings of the husband’s shall not be subject to increase his alimony.
“c. The husband shall pay to the wife as additional alimony 22% of the husband’s gross earnings between $850,001 and $1,250,000.
“d. The husband shall pay to the wife as additional alimony 15% of the husband’s gross earnings between $1,250,001.00 and $1,500,000.00.
“e. The husband shall pay to the wife as additional alimony 15% of the husband’s gross earnings above $1,500,000.00.
“Gross earnings shall be defined as all income earned by the husband, wherever he may be employed andI or self-employed, after usual and customary business expenses and deductions if self-employed, in the form of salary, incentive payments, bonus, deferred compensation, present value of stock options, stock dividends, issued as compensation, or any other form of compensation direct or deferred including severance pay upon termination. . . .
“2.5 While the husband is employed by H.H. Brown Shoe Company, the Husband’s gross earnings will be determined by H.H. Brown’s independent certified public accountant’s letter, which computes the compensation of James Issler.
“The Husband’s present compensation agreement is annexed hereto as Exhibit A. In the event that his compensation agreement changes, he shall within thirty (30) days provide said new agreements) to the Wife.
“The alimony shall be based only on the Husband’s gross earnings from H.H. Brown or his gross earnings wherever employed or self/employed reduced by customary business expenses and deductions and shall not include any passive income, unless the Husband is unemployed or earning less than $600,000.00 per year.”

Exhibit A provided, inter alia, that “[James Issler’s] compensation, effective January 1,1995, will consist of an annual salary of $350,000.00, paid weekly, plus an incentive plan based on 5% of the combined annual adjusted consolidated profits, before income taxes, of the H.H. Brown Shoe Group.”

“Although . . . plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment.” (Internal quotation marks omitted.) Wilson v. Wilson, 38 Conn. App. 263, 272, 661 A.2d 621 (1995). Appellate review of a finding of civil contempt “is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . We have found a civil contempt to be improper or erroneous because . . . the findings on which it was based were ambiguous and irreconcilable . . . the penalties imposed were criminal rather than civil in nature . . . and the contemnor, through no fault of his own, was unable to obey the court’s order.” (Internal quotation marks omitted.) Id., 271.

A

The defendant claims that the trial court misconstrued the dissolution agreement to require calculation of alimony based on both salary and profit income rather than on salary alone. We disagree.

The trial court found the language of the dissolution agreement to be clear and unambiguous, stating, “The definition of gross earnings does not lack clarity or lend itself to more than one interpretation. The gross earnings for the year include the incentive payments for that year.” Given the plain language of the dissolution agreement, we conclude that gross earnings were clearly defined to include profits received by the defendant through his compensation package. “Where the language of the [dissolution agreement] is clear and unambiguous, the [agreement] 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 and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) Legg v. Legg, 44 Conn. App. 303, 306, 688 A.2d 1354 (1997). The trial court properly construed the term gross earnings as defined in the parties’ voluntary dissolution agreement.

B

The defendant claims that the trial court improperly found him in “wilful contempt of court for failure to pay the alimony as ordered by the judgment.” He correctly asserts that a finding of noncompliance, alone, will not support a judgment of contempt. See, e.g., Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). He claims that his interpretation of the alimony agreement was reasonable, and that the trial court’s order was not clear and unequivocal. As a result, he argues that the court was not justified in finding him in wilful contempt. We are unpersuaded.

In support of this argument, the defendant asserts that the definition of adjusted gross income was ambiguous and, therefore, could not support a finding of wilful contempt. He argues that the facts in this case are sufficiently similar to Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982), and Baldwin v. Miles, 58 Conn. 496, 501-502, 20 A. 618 (1890). We disagree.

The defendant fails to recognize facts that distinguish the present case from Baldwin and Blaydes. In Baldwin v. Miles, supra, 58 Conn. 500-502, the defendants were subject to an injunction that stated that they could not operate a phosphate manure business between July 1 and September 15, nor could they operate said business so as to produce noxious and offensive odors when the wind was blowing from east to west. The defendants operated a nonphosphate manure business during that period, which produced noxious and offensive odors, and they were subsequently found in contempt for violating the court order. On appeal, our Supreme Court held that the court order applied to the phosphate business only and, therefore, while the defendants’ business may have produced noxious and offensive odors while the wind was blowing east to west, they did not violate the injunction. In the alternative, the court held that if the order did not apply only to the phosphate business, it was vague and indefinite and could not support a judgment of contempt. The court reasoned that an order “should be clear and certain ... so that the party upon whom it is served may readily know what he can or cannot do thereunder . . . .” Id., 502.

In Blaydes v. Blaydes, supra, 187 Conn. 464, the defendant was found in contempt for failure to comply with an alimony order. The alimony order provided that the term “adjusted gross income” would have the same meaning as it had for federal income tax purposes. The applicable federal tax provisions, however, were modified one year following the judgment of the court. The premodification provision defined the term “adjusted gross income” as a taxpayer’s income prior to deducting alimony payments while the revised provision defined the term as income after deducting alimony payments. When the defendant used the revised provision to calculate his alimony payments, the plaintiff filed a motion for contempt, arguing that the defendant should have used the original provision instead of the revised provision. The trial court agreed and found the defendant in contempt. On appeal, our Supreme Court declined to enlarge the order beyond its express terms. The order did not restrict the definition of “adjusted gross income” to tax provisions for a specific year and, therefore, the defendant complied with the order by applying the revised definition of “adjusted gross income.” Id., 468-69.

In the present case, the defendant was not found in contempt for actions outside the scope of the court order, the definition of gross earnings was not subject to change and the order was clear and certain. While an equivocal court order will not support a finding of contempt, that is not the case here. We first note that this is the second contempt hearing in which the defendant has claimed a misunderstanding of the court order. At the first hearing, the trial court found that the defendant violated the court order, but did not make a finding of contempt. The definition of gross earnings is not subject to multiple interpretations, as the defendant suggests. We agree with the reasoning of the trial court that there is “no ambiguity in the language of the agreement which could have resulted in an innocent mistake based upon misinterpretation of the judgment by the defendant.” It is clear that the act or acts for which the penalty was imposed justified a finding of wilful contempt.

C

The defendant claims that the trial court used an inappropriate standard of proof when it found him in contempt by a preponderance of the evidence instead of by clear and convincing evidence.

As a threshold issue, we must first examine, under the circumstances of this case, whether this court can review the defendant’s claim that an improper standard of proof was used by the trial court in deciding whether to hold him in contempt. This issue arises because this court’s ability to review a finding of contempt is limited. See, e.g., Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731-32, 444 A.2d 196 (1982). There exists, however, a “mechanism for the eventual review of errors which allegedly infringe on [a contemnor’s fundamental] rights.” (Emphasis added.) Eldridge v. Eldridge, supra, 244 Conn. 528. Our Supreme Court has found a civil contempt to be improper because the “contemnor’s constitutional rights were not properly safeguarded . . . .” (Internal quotation marks omitted.) Id. As a result, this court has the power to review alleged constitutional error.

The next issue turns on whether the defendant has alleged constitutional error. The defendant briefed the issue of whether the trial court improperly employed the preponderance of the evidence standard of proof, rather than the clear and convincing standard of proof. As a result, that general issue is before this court. As presented, however, the issue raised does not allege constitutional error, which is required for this court to be able to review the issue due to this court’s limited review of contempt findings.

Therefore, the question becomes whether this court can, sua sponte, decide the standard of proof issue on grounds not claimed by the parties, i.e., due process. If this court can decide the issue on due process grounds even though not claimed by the parties, then the question becomes whether a constitutional fundamental right has been violated. The effect is that the defendant’s otherwise unreviewable “generic” claim of impropriety would be transformed into a reviewable constitutional claim.

“In the interest of expediting decision, or for other good cause shown, the court in which the appeal is pending may suspend the requirements or provisions of any of these rules in a particular case on motion of a party or on its own motion and may order proceedings in accordance with its direction.” Practice Book § 60-3. In addition, this court “may in the interests of justice notice plain error not brought to the attention of the trial court . . . .” Practice Book § 60-5. Our Supreme Court has liberally interpreted the rules of practice in certain cases by holding that neither it nor this court is “limited in [our] disposition of a case to claims raised by the parties and [we have] frequently acted sua sponte upon grounds of which the parties were not previously apprised.” (Internal quotation marks omitted.) State v. Gilnite, 202 Conn. 369, 373, 521 A.2d 547 (1987) (within discretion of Appellate Court to address, sua sponte, defendant’s waiver of right to appeal by pleading nolo contendere, even though neither party briefed nor argued that issue).

In State v. Smith, 207 Conn. 152, 162, 540 A.2d 679 (1988), our Supreme Court exercised its “inherent supervisory authority over the administration of justice to review the defendant’s claim,” even though the defendant normally would have waived his right to appeal by having accepted the benefit of his plea bargain. The defendant had served his term of probation, and the issue became whether the appeal was moot. The Smith court asserted that the defendant’s “position throughout has been that the special condition [of probation] had been illegally imposed and that any criminal consequences that flowed from it had continued to violate his rights. Implicit in this position is the contention that the revocation of his probation involved the fruit of the poisonous tree doctrine . . . and that raises a fundamental constitutional question which we may review although it was not explicitly articulated below or on the briefs.” (Citation omitted.) Id., 163. In Smith, both parties addressed the issue of mootness, but not on the grounds of the “fruit of the poisonous tree doctrine.” Id. and n.ll. The Smith court nevertheless utilized the doctrine as a ground for its decision to reach the merits of the defendant’s claim by citing to State v. Gilnite, supra, 202 Conn. 373. After analyzing the merits of the defendant’s claims, the Smith court concluded that the appeal was moot because none of the defendant’s rights was violated as claimed.

In Greenwood v. Greenwood, 191 Conn. 309, 315, 464 A.2d 771 (1983), our Supreme Court conditionally dismissed the plaintiffs appeal even though the defendant did not file a motion to dismiss and did not even raise such an argument. The Greenwood court stated that it is not limited to claims raised by the parties in its disposition of a case and that it has “frequently acted sua sponte upon grounds of which the parties were not previously apprised.” Id.

While it appears that we are vested with discretion as to whether to review the defendant’s claim, we decline to review the claim because review of a contempt order is intended to occur only in limited circumstances, none of which apply here due to the defendant’s failure to raise “due process” as a ground for review. While one could reason, as did our Supreme Court in Smith, that “implicit” in the defendant’s claim that an improper standard of proof was applied by the trial court is a due process argument because the proper standard of proof is a concept embodied in the due process clause; see Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996); we decline to rule, sua sponte, on the issue. The question is one of great importance and carries grave consequences; to rule in such circumstances is inappropriate. We decline to exercise our discretion to review the defendant’s claim.

D

The defendant finally claims, with respect to the judgment of contempt, that the trial court improperly awarded the plaintiff $10,000 in attorney’s fees. The defendant argues that the award of attorney’s fees “must be reversed with the reversal of the finding of contempt upon which it was based.” The defendant cites to Emerick v. Emerick, 28 Conn. App. 794, 805, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992), for the proposition that reversal of financial orders, including attorney’s fees, is required when this court reverses the trial court’s finding of contempt. Because we affirm the trial court’s finding of contempt, the defendant’s argument must fail.

n

The defendant next claims that the trial court improperly awarded the plaintiff $12,000 in attorney’s fees for the appeal. He claims that the trial court failed to consider the statutory factors required in an award of attorney’s fees as set forth in General Statutes § 46b-62. In addition, the defendant claims that the trial court applied an incorrect legal standard and, even under the proper standard, abused its discretion. We disagree.

Certain additional facts are necessary to our resolution of this claim. The plaintiff filed a motion for attorney’s fees for the appeal. A hearing was held before the trial court, at which time the plaintiff did not present any further evidence in support of the motion. At an adjourned hearing, the plaintiffs attorney submitted an affidavit of fees. The trial court awarded the plaintiff $12,000 in attorney’s fees for the appeal.

Pursuant to General Statutes § 46b-62, the trial court “may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .” General Statutes § 46b-82 provides that “[i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

“Whether to allow counsel fees, and if so in what amount, calls for the exercise of judicial discretion. . . . Holley v. Holley, [194 Conn. 25, 33-34, 478 A.2d 1000 (1984)]. Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of a lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees, they should be permitted to do so. . . . Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980). If, however, the failure [to make an award] would substantially undermine the other financial awards, an award of attorney’s fees is justified. Eslami v. Eslami, 218 Conn. 801, 820, 591 A.2d 411 (1991). An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did. Cook v. Bieluch, 32 Conn. App. 537, 544, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993). In making an award of attorney’s fees, [t]he court is not obligated to make express findings on each of these statutory criteria. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982).” (Internal quotation marks omitted.) Unkelbach v. McNary, 244 Conn. 350, 373-74, 710 A.2d 717 (1998).

The defendant’s claims that the trial court failed to consider the statutory criteria and that no evidence was presented to support the award of attorney’s fees for the appeal are without merit. The trial court stated that it considered the statutory criteria and case law relevant to an award of attorney’s fees. The court was aware of the financial circumstances of the parties from the underlying contempt action. Additional financial affidavits were filed by the parties, which provided a more current financial status for each of them. The court found that “if attorney’s fees are not ordered on behalf of Mrs. Issler ... it would disturb the mosaic that was formulated by the uncontested dissolution separation agreement of the parties.”

“If . . . the trial court concludes, based on the total financial resources of the parties, that denying an award of counsel fees would undermine its prior financial orders, then it may award counsel fees to the requesting party.” (Internal quotation marks omitted.) Turgeon v. Turgeon, 190 Conn. 269, 281, 460 A.2d 1260 (1983). The trial court found that a denial of the plaintiffs attorney’s fees would impair or undermine the other financial orders entered. We conclude that the trial court did not abuse its discretion and properly awarded the plaintiff counsel fees for the appeal.

The judgment is affirmed.

In this opinion FOTI, J., concurred.

DALY, J.,

dissenting. While I agree with the majority that we have discretion to review the defendant’s challenge to the standard of proof applied to a judgment of contempt, I believe that the facts in this case warrant the exercise of our discretion. I would review this claim and, therefore, must respectfully dissent in part from the majority’s resolution of the defendant’s first claim.

In Eldridge v. Eldridge, 244 Conn. 523, 710 A.2d 757 (1998), our Supreme Court reaffirmed the standard of appellate review of a trial court’s finding of civil contempt. “[0]ur review [of a finding of civil contempt] is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . We have found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . the findings on which it was based were ambiguous and irreconcilable . . . the contemnor’s constitutional rights were not properly safeguarded . . . the penalties imposed were criminal rather than civil in nature . . . and the contemnor, through no fault of his own, was unable to obey the court’s order. . . . Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731-32, 444 A.2d 196 (1982); see also Dunham v. Dunham, 217 Conn. 24, 29, 584 A.2d 445 (1991).

“Although . . . plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment. Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 666, 594 A.2d 958 (1991), quoting Dunham v. Dunham, supra, 217 Conn. 29-30; see Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 658-59, 646 A.2d 133 (1994).” (Emphasis added; internal quotation marks omitted.) Eldridge v. Eldridge, supra, 244 Conn. 527-28.

In Eldridge, our Supreme Court stated that the limited standard of review “originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights . . . .” Id. Review has been granted when “the contem-nor’s constitutional rights were not properly safeguarded . . . .” Id., 528. When the claim involves a possible violation of a fundamental right, the balance between fundamental rights and the court’s contempt power shifts in favor of the contemnor’s fundamental rights. In an appeal from a finding of civil contempt, therefore, this court has jurisdiction to review constitutional error.

“Where no standard of proof is provided in a statute, due process requires that the court apply a standard which is appropriate to the issues involved.” In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983). A challenge to the standard of proof applied by the trial court is implicitly a question of what proof is required either by the applicable statute or the due process clause.

This court has jurisdiction to consider the issue under the due process clause even though that ground was not distinctly raised by the parties. The defendant raised and the parties briefed the issue of whether the trial court applied an incorrect standard of proof; neither party relied, however, on the due process clause.

This court is not bound to dispose of a claim by the limited grounds that are raised by the parties. “ ‘[Our Supreme Court] is not limited in its disposition of a case to claims raised by the parties and has frequently acted sua sponte upon grounds of which the parties were not previously apprised.’ Greenwood v. Greenwood, 191 Conn. 309, 315, 464 A.2d 771 (1983). Likewise, the Appellate Court has similar discretion in addressing claims not raised by the parties. See Practice Book §§ 2000, 4187 [now § 60-3].” State v. Gilnite, 202 Conn. 369, 373, 521 A.2d 547 (1987); see also State v. Smith, 207 Conn. 152, 163, 540 A.2d 679 (1988).

Because the defendant’s due process rights are implicated by the imposition of an incorrect standard of proof, I would exercise my discretion and address the defendant’s challenge to the standard of proof in a finding of civil contempt under the due process clause.

The defendant claims that the trial court improperly found him in contempt by a preponderance of the evidence instead of by clear and convincing evidence. I agree with the defendant and would adopt the heightened standard of proof in civil contempt proceedings.

The issue of whether a finding of civil contempt must be supported by proof of clear and convincing evidence is one of first impression for this court. Therefore, we look to the federal courts and, more specifically, to the United States Court of Appeals for the Second Circuit for guidance. I find the reasoning of the federal courts to be persuasive.

“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. In re Winship, 397 U.S. 358, 370 [90 S. Ct. 1068, 25 L. Ed. 2d 368] (1970) (Harlan, J., concurring).” (Internal quotation marks omitted.) Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

“A standard of proof allocates the risk of error between the litigants and indicates the relative importance of the ultimate decision. Addington v. Texas, [supra, 441 U.S. 423], For example, the proof beyond a reasonable doubt standard implies that the party on whom that burden is imposed should bear almost the entire risk of error. Id. at 423-24, 99 S. Ct. at 1808. In contrast, the preponderance of the evidence standard indicates that the litigants should share equally the risk of error, id. at 423, 99 S. Ct. at 1808, because the interests at stake have roughly equal societal importance. Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1411-12, 71 L. Ed. 2d 599 (1982) (Rehnquist, J., dissenting). Proof by clear and convincing evidence is an intermediate standard generally used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing, or when particularly important individual rights are involved. Addington, 441 U.S. at 424, 99 S. Ct. at 1808. United States v. Schell, 692 F.2d 672, 676 (10th Cir. 1982) . . . .” (Internal quotation marks omitted.) Cookson v. Cookson, 201 Conn. 229, 234, 514 A.2d 323 (1986).

In Stringfellow v. Haines, 309 F.2d 910, 912 (2d Cir. 1962), the Second Circuit Court of Appeals relied on the reasoning of Judge Hutcheson in Coca-Cola Co. v. Feulner, 7 F. Sup. 364, 365 (S.D. Tex. 1934), to hold that a finding of civil contempt must be proven by clear and convincing evidence. “[Civil contempt] is for the benefit of the complainant; the punishment meted out in it is remedial. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 [1911] A proceeding for criminal contempt, on the other hand, is to vindicate the authority of the court and the sentence is punitive. [Id.] In proceedings for criminal contempt, the defendant is presumed to be innocent and must be found guilty, and no contempt order will issue unless the defendant is proven guilty beyond a reasonable doubt. Id. In those for civil contempt, there is no presumption, and proof of the contempt need not be beyond a reasonable doubt. Oriel v. Russell, 278 U.S. 358, 49 S. Ct. 173, 73 L. Ed. 419 [1929]. While this is so, a bare preponderance of the evidence will not suffice to hold one even in civil contempt. Proof of violation must be clear and convincing.” Coca-Cola Co. v. Feulner, supra, 365. That principle has been repeatedly affirmed by the Court of Appeal for the Second Circuit.

In Cologne v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476 (1985), our Supreme Court stated that “we are compelled to affirm the established principle of law that a finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the tidal court in accordance with the rules of procedure as in ordinary cases. Potter v. Board of Selectmen, [174 Conn. 195, 197, 384 A.2d 369 (1978)], quoting Huntington v. McMahon, [48 Conn. 174, 196 (1880)]. This rule must be given full effect especially when, as in this case, the defendants are subject to substantial fines and to a possible loss of liberty. We cannot uphold an adjudication of contempt in the total absence of evidence upon which such a finding could be based. Commonwealth v. Kreplick, 379 Mass. 494, 497, 399 N.E.2d 9 (1980).” (Internal quotation marks omitted.) Cologne v. Westfarms Associates, supra, 197 Conn. 155-56.

I believe that this reasoning applies not only to the type of evidence but also to the quantity of evidence. On the basis of the possibility of substantial fines and loss of liberty, I would conclude that a finding of civil contempt must be proven by clear and convincing evidence. I would reverse the judgment and remand the matter for further proceedings at which a clear and convincing standard of proof would apply.

      As a result of this decision, the plaintiff receives $10,000 alimony per month in addition to her undisputed monthly alimony payment of $28,166.67.

       The defendant has not challenged the jurisdiction of the court to impose the punishment inflicted. Our review, therefore, is limited to whether the defendant’s actions could constitute a contempt.

       It is well established that alimony agreements are construed as a contract between the parties. Legg v. Legg, supra, 44 Conn. App. 306. “In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Id.

       The plaintiff filed a financial affidavit in reference to this hearing.

       The defendant’s claim that the trial court applied the wrong legal standard in awarding attorney’s fees because the court did not use the exact phrase “substantially undermine” is without merit. See Unkelbach v. McNary, supra, 244 Conn. 377 (holding express finding that court’s earlier financial orders would be undermined unnecessary).

       See Equal Employment Opportunity Commission v. Local 638, 81 F.3d 1162 (2d Cir.), cert. denied, 519 U.S. 945, 117 S. Ct. 333, 136 L. Ed. 2d 246 (1996); King v. Allied Vision, Ltd., 65 F.3d 1051 (2d Cir. 1995); Huber v. Marine Midland Bank, 51 F.3d 5 (2d Cir. 1995); Dunn v. New York State Dept. of Labor, 47 F.3d 485 (2d Cir. 1995); United States v. Local 1804-1, International Longshoremen’s Assn., AFL-CIO, 44 F.3d 1091 (2d Cir. 1995); United States v. O’Rourke, 943 F.2d 180 (2d Cir. 1991); Equal Employment Opportunity Commission v. Local 580, 925 F.2d 588 (2d Cir. 1991); United States v. International Brotherhood of Teamsters, 899 F.2d 143 (2d Cir. 1990); United States v. Ayer, 866 F.2d 571 (2d Cir. 1989).


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. CRAIG HOTH
    (AC 17615)
    O’Connell, C. J., and Lavery and Dupont, Js.

      Argued May 26
    officially released August 25, 1998

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      PaulFerencek, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Pepper, former assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Craig Hoth, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress evidence derived from a warrantless entry into the home he shared with the victim pursuant to the emergency exception to the warrant requirements of both the federal and state constitutions and (2) admitted hearsay evidence concerning a statement the victim made to a witness. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. For a number of months prior to the murder, the victim and the defendant were roommates at the victim’s condominium in Meriden. On Tuesday, December 20,1994, at approximately 8:10 p.m., the Meriden police department was notified by Andrew Lucibello, 49, the victim’s cousin, and Roger Turner, 27, the victim’s former roommate, that the victim, Louis Perrotti, was missing. The complainants reported that the victim had not been seen or heard from by friends and relatives for the previous three days. The victim did not return telephone messages left on his answering machine or answer the door at his condominium. Such behavior on the part of the victim was highly unusual, as he was known for his regular habits. The victim, a successful and well respected businessman, did not appear at work on Monday and Tuesday. Although he had recently sold his dry cleaning business in Wallingford, the victim continued to work at the business to help the new owner learn the trade.

In addition, Lucibello reported that the Wallingford police had attempted to reach the victim at his place of employment because a van registered in his name had been used in connection with a credit card scam in New Haven that day. Lucibello was concerned because the victim had no criminal record and would not have lent his van to anyone or permitted it to be used for criminal purposes. Also, the victim’s van was not at his condominium. Sergeant Jeffrey Cossette of the Meriden police department confirmed the suspicious use of the van with the New Haven police.

Lucibello and Tinner also informed Cossette that the defendant had an extensive criminal record. Cossette conducted a record check of the defendant and confirmed that the defendant had a criminal record consisting of multiple convictions. Lucibello persisted in his concern for the victim’s welfare because his failure to go to work was completely out of character. He feared that the victim was disabled in his condominium. On the basis of that information, Cossette, Detective Patrick Hettrick and another officer went to the condominium. Turner had a key to the condominium and met the police there. When the police arrived at the condominium, they knocked on the door but received no answer. There were no signs of forced entry, and nothing unusual was apparent. Turner gave the police his key, which they used to enter the premises. While Turner and Lucibello remained outside, the police searched the top two floors of the three-story condominium. Cossette noticed a stain on the living room carpet and went to the lower-level garage, where the police found blood-like stains and footprints in the center of the floor. One of the officers noticed a blood-soaked sheet behind some boxes and found the victim’s body there. The body had multiple stab wounds, including defensive wounds.

Lucibello identified the victim, and shortly thereafter the state’s medical examiner arrived at the scene and pronounced the victim dead. The police secured the crime scene and sought a search warrant for the condominium. The police later obtained additional search warrants for the victim’s van and the defendant’s person. The defendant was arrested and charged with murder in May, 1995.

I

The defendant first claims that the trial court improperly denied his motion to suppress evidence derived from the warrantless entry into the home he shared with the victim pursuant to the emergency exception to the warrant requirement in violation of the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the constitution of Connecticut. We disagree.

The same standard of review applies to emergency doctrine claims under both the state and federal constitutions. State v. Blades, 225 Conn. 609, 624, 626 A.2d 273 (1993). “Warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect an arrest without a warrant. Steagald v. United States, 451 U.S. 204 [101 S. Ct. 1642, 68 L. Ed. 2d 38] (1981); Payton v. New York, [supra, 586]; Johnson v. United States, 333 U.S. 10 [68 S. Ct. 367, 92 L. Ed. 436] (1948). Donovan v. Dewey, 452 U.S. 594, 598 n.6, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981). State v. Reagan, [209 Conn. 1, 8, 546 A.2d 839 (1988)]. The burden is on the state to show that an exception exists. State v. Harris, [10 Conn. App. 217, 224, 522 A.2d 323 (1987)].” (Internal quotation marks omitted.) State v. Enright, 17 Conn. App. 142, 147, 550 A.2d 1095 (1988).

“The terms exigent circumstances and emergency doctrine are often used interchangeably when discussing warrantless entries into a home. The term exigent circumstances, however, generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978). Statev. Guertin, 190 Conn. 440, 447, 461 A.2d 963 (1983); State v. Reagan, 18 Conn. App. 32, 556 A.2d 183 [cert. denied, 211 Conn. 805, 559 A.2d 1139] (1989); State v. Harris, [supra, 10 Conn. App. 227.] The emergency exception refers to another type of warrantless entry that evolves outside the context of a criminal investigation and does not involve probable cause as a prerequisite for the making of an arrest or the search for and seizure of evidence. The present case is of the latter type.

“This second type of warrantless entry was recognized by the United States Supreme Court in Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), and adopted by the Connecticut Supreme Court in State v. Magnano, 204 Conn. 259, 528 A.2d 760 (1987). In Mincey v. Arizona, [supra, 385], the United States Supreme Court recognized the exigency or emergency exception to the warrant requirement. The court held that the fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid. Id., 392-93. State v. Magnano, supra, 266.

“Our Supreme Court has defined the standard for determining what constitutes exigent. circumstances allowing warrantless entries for arrests, searches and seizures based on probable cause of criminal activity. In State v. Guertin, supra, [190 Conn.] 453, the court adopted the so-called Canby rule which requires that, under the totality of the given circumstances, a police officer has reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or other wise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. The test is an objective one. [I]ts preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe. . . . Id., quoting State v. Canby, [162 W. Va. 666, 669, 252 S.E.2d 164 (1979)]; State v. Enright, supra, [17 Conn. App.] 148.

“The present case raises the question of what test is to be employed in determining the reasonableness of the police officer’s belief that a person within the home is in need of immediate aid—the situation in which that officer is faced with an emergency not involving a need for an immediate arrest or a search for evidence. We conclude that this test should be no less stringent than that adopted in Guertin.

“In reaching this conclusion, we note that there is a significant difference between a police entry for the puipose of making an arrest, or searching for evidence incident to a criminal investigation and an entry for the purpose of rendering aid or saving a human life. Although probable cause is the standard by which we judge the former situation, reasonable belief determines the latter. Mincey v. Arizona, supra, [437 U.S.] 392; State v. Magnano, supra [204 Conn. 266].” (Emphasis in original; internal quotation marks omitted.) State v. Klauss, 19 Conn. App. 296, 300-302, 562 A.2d 558 (1989).

“[G]iven the rationale for this veiy limited exception, the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat. Good v. Dauphin County Social Services, 891 F.2d 1087, 1094 (3d Cir. 1989). The police, in order to avail themselves of this exception, must have valid reasons for the belief that an emergency exists, a belief that must be grounded in empirical facts rather than subjective feelings .... People v. Mitchell, 39 N.Y.2d 173, 178, 347 N.E.2d 607, 383 N.Y.S.2d 246, cert. denied, 426 U.S. 953, 96 S. Ct. 3178, 49 L. Ed. 2d 1191 (1976). It is an objective and not a subjective test. The test is not whether the officers actually believed that an emergency existed, but whether a reasonable officer would have believed that such an emergency existed. State v. Klauss, [supra, 19 Conn. App. 302]; see State v. Guertin, [supra, 190 Conn. 453] (adopting objective test for warrantless felony arrest exigency analysis); see also United States v. Zabare, 871 F.2d 282, 291 [(2d Cir.), cert. denied, 493 U.S. 856, 110 S. Ct. 161, 107 L. Ed. 2d 119 (1989)] (test for determining whether a warrantless entry was justified by exigent circumstances is an objective one. . . . State v. Geisler, [222 Conn. 672, 691-92, 610 A.2d 1225 (1992)].” (Internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 75-76, 646 A.2d 835 (1994) (Berdon, J., dissenting), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995).

“[I]n reviewing atrial court’s ruling on the emergency doctrine, subordinate factual findings will not be disturbed unless clearly erroneous and the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo. State v. Geisler, [supra, 222 Conn. 694]. Conclusions drawn from the underlying facts must be legal and logical. Id., 693. We must determine, therefore, whether, on the facts found by the trial court, the court properly concluded that it was objectively reasonable for the police to believe that an emergency situation existed.” (Internal quotation marks omitted.) Stale v. Blades, supra, 225 Conn. 617.

“As a prefatory matter, we note that the emergency doctrine is rooted in the community caretaking function of the police rather than its criminal investigatory function. We acknowledge that the community caretaking function of the police is a necessary one in our society. [I]t must be recognized that the emergency doctrine serves an exceedingly useful purpose. Without it, the police would be helpless to save life and property, and could lose valuable time especially during the initial phase of a criminal investigation. E. Mascólo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buff. L. Rev. 419, 428 (1973). Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life .... People v. Mitchell, [supra, 39 M.Y.2d 180].” (Internal quotation marks omitted.) State v. Blades, supra, 225 Conn. 619.

Our de novo review of the record reveals that the facts of this case typify those that call on police departments to exercise their community caretaking function. The fact pattern bears some resemblance to Blades in that the victim’s relatives sought police assistance when she failed to appear’ at her place of employment and failed to respond to the telephone calls of friends and relatives. Cossette was told by Lucibello and Turner that the victim, a man of regular habits and routine, had failed to appear at work for two days, had not been returning telephone messages left on his answering machine, and that two police departments were looking for him for questioning about the use of his van in criminal activity.

At oral argument, the defendant claimed that it was not objectively reasonable for Cossette to believe that entry into the condominium was necessary to protect or preserve the victim’s life and postulated several scenarios as to why the victim may not have appeared at work for two days, e.g., the victim went away for the weekend and decided to extend his stay. Although this argument may be valid if the victim’s absence from work were the only information Cossette had, it fails here because it does not consider the fact that the police were looking for the victim. The subordinate facts are that Lucibello and Turner went to the Meriden police department on Tuesday, the second day the victim had failed to appear at work, after the Wallingford police, in conjunction with a New Haven police investigation, came to the victim’s place of employment to inquire about the victim’s van. Cossette confirmed that the New Haven police were looking for the victim and he also confirmed that the victim’s roommate had a criminal record. Furthermore, Cossette was told that the victim, who had recently sold his business, was a well respected businessman, and Lucibello emphasized the victim’s reputation and habits for hard work and punctuality.

On the basis of our de novo review, we conclude that Cossette’s belief that there was something physically wrong with the victim was reasonable and was predicated on the subordinate facts. When the Meriden police entered the condominium, they did so in their community caretaking function to protect or preserve the victim’s life. The fact that they discovered the defendant’s horrendous crime does not affect the reasonableness of Cossette’s belief that the entry was necessary. We therefore conclude that the defendant’s motion to suppress the evidence was properly denied.

II

The defendant’s second claim is that the trial court improperly admitted hearsay evidence of an out-of-court statement to a third party. The defendant’s claim lacks merit.

The following facts are necessary for our analysis of the defendant’s claim. On Saturday, December 17,1994, the victim had dinner with Anthony DiGennaro in Waterbury. After their meal, the two went to DiGen-naro’s apartment. DiGennaro knew that the defendant was the victim’s roommate. During the course of the evening, DiGennaro asked the victim whether the defendant was still living in his condominium. The defendant objected to DiGennaro’s testifying about the substance of the defendant’s answer to DiGennaro’s question as hearsay. The state made an offer of proof outside the presence of the jury. According to DiGennaro, the victim responded, “Yes, but he is moving out, as a matter of fact, he should be moving out right about now.” The state explained the purpose of the offer was to demonstrate the states of mind of the defendant and the victim. The trial court permitted DiGennaro to testify as to the victim’s response pursuant to State v. Alvarez, 216 Conn. 301, 579 A.2d 515 (1990). The trial court instructed the jury that the answer was “not being offered for the truth of the content.”

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . . State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993), appeal withdrawn January 7, 1994. . . . State v. Rogers, 38 Conn. App. 777, 796, 664 A.2d 291 [cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996)].” (Internal quotation marks omitted.) State v. McClendon, 45 Conn. App. 658, 671, 697 A.2d 1143, cert. granted on other grounds, 243 Conn. 943, 704 A.2d 799 (1997).

“A statement made [out of court] that is offered to establish the truth of the matter contained in the statement is hearsay, and as such is inadmissible. State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981). An out-of-court statement is not hearsay, however, if it is offered to illustrate circumstantially the declarant's then present state of mind, rather than to prove the truth of the matter asserted. State v. Rollinson, 203 Conn. 641, 660, 526 A.2d 1283 (1987); State v. Hoeplinger, 27 Conn. App. 643, 649, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992); C. Tait & J. LaPlante, [Connecticut Evidence (2d Ed. 1988)] § 11.3.2 [pp. 322-24].” State v. Blades, supra, 225 Conn. 632.

We disagree with the defendant’s claim that the victim’s statement to DiGennaro was hearsay. The state did not offer the statement for the truth of the matter contained in it, but rather to illustrate the states of mind of the victim and the defendant. “A statement that is offered to show its effect upon the hearer, however, is not hearsay. State v. Hull, 210 Conn. 481, 499, 556 A.2d 154 (1989); State v. Silveira, [198 Conn. 454, 473, 503 A.2d 599 (1986)]; State v. Zdanis, 173 Conn. 189, 192 n.1, 377 A.2d 275 (1977); State v. John, 210 Conn. 652, 680, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).” (Internal quotation marks omitted.) State v. Alvarez, supra, 216 Conn. 310-11. The victim’s out-of-court statement to DiGennaro is evidence of disagreement or tension between the victim and the defendant.

To admit an out-of-court statement on this ground, the declarant’s state of mind must be relevant. State v. Blades, supra, 225 Conn. 633. Evidence is relevant “ ‘when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.’ ” State v. Fritz, 204 Conn. 156, 168, 527 A.2d 1157 (1987). There was evidence that Turner was to move back into the condominium when the defendant moved out. The defendant had told an employee at the victim’s place of business that Turner was moving back into the condominium and that the victim did not want the defendant to object. The victim’s statement, thus, supported the state’s theory of motive because it constituted evidence from which the jury could infer that the parties were at odds at the time of the murder.

Furthermore, the admission of the victim’s out-of-court statement was not prejudicial to the defendant in light of the other evidence of the defendant’s guilt. The jury could reasonably have found that neighbors heard a commotion in the condominium at the approximate time of the victim’s death. Shortly after the murder, the defendant was observed driving the victim’s van in New Haven. The defendant returned to the condominium with Darrin Stanley to use drugs. Prior to entering the condominium, the defendant told Stanley he had killed a deer that day and brought it into the condominium where it came back to life. The defendant explained that he had to “rekill” the deer, which bled on the carpet. The defendant did not permit Stanley to enter the garage of the condominium. During the time the police were searching the condominium, the defendant was drinking in a bar with Kevin Guckin and told Guckin that his roommate had been stabbed to death. The victim’s death had not been made public at the time of the defendant’s statement to Guckin, and the cause of death was not released until after the autopsy was performed.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       An autopsy later revealed that the victim had died of a stab wound to the chest.

       The fourth amendment to (he United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       The fourth amendment to the United States constitution was made applicable to the states through the fourteenth amendment’s due process clause. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

       The constitution of Connecticut, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       We note that the suspicious behavior of the Blades defendant, the victim’s husband in that case, is absent in this fact pattern. That element of suspicion, however, is satisfied by the criminal activity involving the victim’s motor vehicle.

       Because we hold that the search was reasonable, we need not reach the defendant’s subordinate claim that the evidence derived from the search was tainted.


text:
    WARNER ASSOCIATES v. MARILYN LOGAN ET AL.
    (AC 17215)
    Laveiy, Schaller and Spear, Js.
    Argued May 5
    officially released August 25, 1998

      David J. Ordway, for the appellant (plaintiff).

      Lawrence P. Weisman, with whom, on the brief, was Debra B. Marino, for the appellees (defendants).
   Opinion

LAVERY, J.

The plaintiff, Warner Associates, appeals from the judgment in favor of the defendants Mariylyn Logan and John Logan after trial before the court. The dispositive issue in this appeal is whether the trial court properly found that the parties did not enter into an additional five year lease term. We affirm the judgment of the trial court.

The trial court found the following facts. The defendants entered into a written commercial lease with the predecessor in title to the plaintiff covering a detached garage on the premises at 34 Franklin Street in West-port. The defendants used the garage to operate a commercial kitchen and catering business.

The term of the five year lease ran from May 1, 1988, through April 30, 1993. Paragraph twenty of the lease states: “In the event that the Tenant shall remain in the demised premises after the expiration of the term of this lease without having executed a new written lease with the Landlord, such holding over shall not constitute a renewal or extension of this lease. The Landlord may, at its option, elect to treat the Tenant as one who has not removed at the end of his term, and thereupon be entitled to all the remedies against the Tenant provided by law in that situation, or the Landlord may elect, at its option, to construe such holding over as a tenancy from month to month, subject to all the terms and conditions of this lease, except as to duration thereof, and in that event the Tenant shall pay monthly rent in advance at the rate provided herein as effective during the last month of the demised term.”

Paragraph twenty-nine of the lease states: “The Landlord hereby grants to the Tenant the right to renew this lease for an additional five year period beginning May 1,1993 and ending April 30,1998, under the same terms and conditions set forth herein except that there will be a negotiated adjustment in the rent to be in effect during the additional five year option period. The rent adjustment shall not exceed 10 percent of the rent in effect during the last year of this lease.”

In September, 1992, the property was purchased by the plaintiff, which assumed the existing written lease with the defendants. Harry Monies was a general partner of the plaintiff. Monies attempted to increase the rent and to require a security deposit, neither of which was provided for in the lease or agreed to by the defendants.

Around March 20, 1993, the defendants, by certified mail, attempted to exercise the option to extend the lease. The defendants voluntarily paid the increased rent as provided in paragraph twenty-nine of the lease. On March 26,1993, the plaintiff insisted on the security deposit, refused to accept the extension and forwarded to the defendants a proposed five year lease, the terms of which they did not accept.

In May, 1994, there was an interruption in the electrical service to the garage, which the defendants claimed arose from the installation of a fence by the plaintiff in 1992. The defendants hired an electrician to provide a temporary hookup for electrical service. On May 6, 1994, the defendants sent a letter by certified mail to the plaintiff referring to the electrical problem and the need for repair. On May 9, 1994, the plaintiff sent to the defendants a notice of eviction stating that they were to vacate within thirty days because they failed (1) to sign the proposed lease, thereby making them month-to-month tenants, (2) to comply with the request for two months security, (3) to clean up the mess surrounding the building, (4) to remove a sign, and (5) to remove plants and tables from in front of the garage and to reduce the number of garbage cans from six to two. On May 10, 1994, the defendants responded by letter, denying any wrongdoing. On May 20, 1994, the plaintiff responded to the May 10 letter indicating that the notice of eviction was withdrawn, and declaring that the defendants were not month-to-month tenants.

On August 18, 1994, representatives of the Westport building department instructed the power company that the temporary electrical hookup was improperly attached. The defendants agreed to remove it. On August 31, 1994, a representative of the plaintiff sent a letter to the defendants, asserting that the defendants had an obligation to pay rent through April, 1998. The defendants vacated the premises in September, 1994.

At trial, two actions between the parties were consolidated. The trial court ruled in favor of the defendants in the plaintiffs action for breach of a lease contract, conversion, fraudulent misrepresentation and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The court ruled in favor of Warner Associates, which was the defendant in the second action. The plaintiff appeals challenging only the judgment against it in the first action.

The plaintiff claims that the trial court improperly concluded that the parties had not entered into a valid five year extension of the lease. Specifically, the plaintiff argues that under the terms of the lease, a new 'written agreement was not required for the defendants to exercise their right to renew the lease for an additional five year term. Further, the plaintiff argues that because all of the terms of the lease were identified except the amount of rent, which was acceded to by the defendants, there was a lease by implication.

The trial court interpreted paragraphs twenty and twenty-nine as follows: “Paragraph twenty provides that if the tenant remains after the expiration of the term of this lease without having executed a new written lease, such holdover shall not constitute a renewal or extension of the lease.”

The trial court determined that the defendants attempted to renew the lease for the additional five year term, but that their efforts were unsuccessful. After the defendants expressed their desire to renew the lease, the plaintiff sent the defendants a new proposed lease that required two months security deposit. The original lease did not require a security deposit. In addition, the plaintiff sent the defendants a notice of eviction. The trial court stated that “[t]he result of the landlord’s action in sending the notice of eviction was the rejection of the tenants’ effort to renew the lease. Once rejected, the tenants made no additional effort to renew the lease after the landlord withdrew the notice of eviction. Since the tenants did not exercise a renewal option they were, in fact, month-to-month tenants.” In addition, the trial court concluded that “there is no meeting of the minds, that there was no renewal of the lease, that the tenants were month-to-month tenants. That when the tenants vacated in September, 1994, they were no longer liable to pay rent for any months thereafter.”

“A lease is a contract. In its construction, three elementary principles must be kept constantly in mind: (1) the intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.” Hatcho Corp. v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985). “In determining the meaning and effect of the controverted language in the lease, the inquiry must focus on the intention expressed in the lease and not on what intention existed in the minds of the parties. Lampson Lumber Co. v. Caporale, 140 Conn. 679, 682, 102 A.2d 875 (1954). The construction and legal effect of the expressed terms will not be varied by reason of inconvenience to the parties or unreasonableness of the terms. Id.” Hatcho Corp. v. Della Pietra, supra, 21.

“We are reluctant to conclude that a contractual provision constitutes a meaningless gesture by the parties.

. . . The rules of construction dictate giving effect to all the provisions of a contract, construing it as a whole and reconciling its clauses. . . . Where two clauses which are apparently inconsistent may be reconciled by a reasonable construction, that construction must be given, because it cannot be assumed that the parties intended to insert inconsistent and repugnant provisions.” (Citation omitted; internal quotation marks omitted.) Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn. App. 530, 534, 630 A.2d 115 (1993).

“Although ordinarily the question of contractual intent presents a question of fact for the ultimate fact finder, where the language is clear and unambiguous it becomes a question of law for the court. . . . When the plain meaning and intent of the language is clear, a clause in a written lease cannot be enlarged by construction. There is no room for construction where the terms of a writing are plain and unambiguous, and it is to be given effect according to its language.” (Citations omitted; internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 232, 654 A.2d 342 (1995).

Upon our review of the lease, we conclude that the language is clear and unambiguous. In following the rules of construction by construing the lease as a whole and giving effect to all of its provisions, we conclude that paragraphs twenty and twenty-nine can be reconciled.

The intent expressed in the plain language of the lease between the plaintiff and the defendants created an option to renew the lease for an additional five year period under the same terms and conditions as the original lease, except that the amount of rent during the renewal period would be subject to a negotiated adjustment not to exceed 10 percent of the rent in effect during the last year of the lease. Further, the negotiated renewal lease was to be in writing, and if the defendants remained in the premises after the expiration of the term of the lease without having executed a new written lease, such holdover would not constitute a renewal or extension of the lease, but in fact create a month-to-month tenancy. Thus, to renew the lease effectively, the parties were required to negotiate the rental amount and create a new written document. In this case, that never happened. Although the defendants paid an increased amount of rent equal to the maximum amount permitted by the lease, the plaintiff refused to accept the extension, attempted to add additional terms and sent the defendants a different lease to which they did not agree.

We conclude that the parties failed to renew the lease for an additional five year term in a proper manner. When a lease term has expired and, thereafter, the lessee remains in possession and pays increased rent in accordance with a renewal option, such payment does not demonstrate that the lessee has exercised its option to renew the lease. David A. Altschuler Trust v. Blanchette, 33 Conn. App. 570, 573, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). The actions of the parties demonstrate that they failed to execute a new written lease as required by the clear and unambiguous language of the lease and that no meeting of the minds occurred evidencing an agreement to renew the lease.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also raised the following two issues on appeal: (1) “Whether, in light of the resolution of the previous issue, the trial court should have ruled in favor of [the plaintiff] as to the remaining counts of its amended complaint, since the remaining counts all flowed logically from a binding and valid five year additional term to the parties lease,” and (2) whether the trial court improperly applied the reasoning of Boulevard Associates v. Sovereign Hotels, Inc., 72 F.3d 1029 (2d Cir. 1995). Because we affirm the judgment of the trial court, there is no need to address these issues.

       In the second action, the Logans claimed that Warner Associates had intentionally interfered with their peaceful possession of the leased property in a number of ways. In addition, the Logans claimed that the interference led to a constructive eviction. The court ruled against the Logans, and no appeal was filed.