text:
    Robert L. Patron et al. v. Simon Konover et al.
    (12076)
    Foti, Freedman and Spear, Js.

      Argued January 14
    decision released August 16, 1994

      Richard C. Robinson, for the appellants (defendants).

      Richard P. Weinstein, for the appellees (plaintiffs).
   Spear, J.

This case resulted from the plaintiffs’ sale of their business interests to the defendants. After a trial of the many issues arising out of the parties’ complex business termination agreement, the trial court rendered judgment for the plaintiffs in the amount of $2,874,334.27 plus costs. The defendants’ appeal presents the following questions for our review: (1) are the plaintiffs entitled to prejudgment interest of $27,568.49 on the cash portion of the purchase price because the defendants delayed the closing of the transaction for a period of seven days; (2) should the plaintiffs receive a credit of $182,963.67 as their pro rata share of joint funds used to construct an addition and improvements to property known as the “Andrews Annex,” which was ultimately transferred to the defendants; and (3) are the plaintiffs entitled to $569,720.48 in prejudgment interest on the postclosing adjustments found in their favor by the trial court.

The defendants assert that these awards are improper because (1) the contract allowed for a closing delay of up to thirty days without penalty, (2) the language of the contract prohibits a credit for the Andrews Annex project, and (3) the plaintiffs are entitled to prejudgment interest on the closing adjustments only from the date of notice of default under the contract provisions, not from the date the payments were due. We agree and reverse the judgment of the trial court.

The defendants aptly describe what transpired between the parties as “a largely successful business divorce.” For a period of more than thirty years, the plaintiffs and the defendants acquired business interests in more than fifty properties or entities comprised of shopping centers, apartment buildings and other developments in twelve states. Of the properties in which the parties had interests, some were managed by the plaintiffs, some by the defendants and some by other parties. In some ventures, they were equal partners and in others they held unequal interests.

On September 1, 1988, the parties executed a contract providing for the termination of their business relationships. The contract provided that one party would purchase the interests of the other, the buyer to be determined by a sealed bid process. Each party submitted a sealed purchase bid on November 1,1988, pursuant to the terms of the contract. The defendants submitted the higher bid and, thus, became the buyers under the contract at a bid price of $28,749,998.

The contract set a closing date of February 1,1989, with provisions for postclosing adjustments of cash accounts and “major obligations.” Further facts will be discussed as the context requires in considering each of the disputed awards.

I

The defendants first claim that the trial court improperly found that the plaintiffs were entitled to prejudgment interest of $27,568.49 on the cash portion of the purchase price because the defendants delayed the closing of the transaction for a period of seven days.

The trial court found the following facts with respect to the delay in the closing of the transaction. On February 1, 1989, the parties met and began the closing activities. Pursuant to the contract, the defendants were obligated to pay one half of the purchase price in cash and to execute a secured promissory note for the balance. At the defendants’ request, the closing was continued until February 8, 1989, for payment of the cash portion of the purchase price and completion of the closing activities. The defendants paid the plaintiffs $14,374,999 on February 8, 1989. The parties adjusted all accounts as of February 1,1989, and concluded the closing except for the adjustments of the cash accounts and major obligations accounts. The trial court found that the defendants’ failure to pay the cash portion of the purchase price on February 1,1989, was a breach of the parties’ contract. Accordingly, the court awarded the plaintiffs $27,568.49 as interest, pursuant to General Statutes § 37-3a, for the seven day delay in closing caused by the defendants.

“On appeal, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous or whether the decision is otherwise erroneous in law.” Public Works Supply Co. v. Eveready Machinery Co., 11 Conn. App. 79, 525 A.2d 988 (1987). Determining whether a trial court’s decision is clearly erroneous “ ‘involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.’ ” Cookson v. Cookson, 201 Conn. 229, 243, 514 A.2d 323 (1986); Berlin v. Commissioner of Revenue Services, 207 Conn. 289, 292-93, 540 A.2d 1051 (1988); Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987).

The trial court’s conclusion that the defendants breached the contract by delaying the closing was legally incorrect. Article 22 (b) of the contract, concerning default, provides: “Time is of the essence with respect to this [article], with the following exception: In the event that the High Bidder fails to pay the cash portion of the purchase price at closing (which would otherwise be considered a monetary default subject to a three-day notice and cure period), the High Bidder shall have thirty (SO) days after receipt of notice to cure its default, and, with respect to said thirty-day period, time shall be of the essence.” (Emphasis added.)

Although neither the trial court’s decision nor the plaintiffs’ brief discusses this provision of the contract, we deem it dispositive of this issue. “Every provision of the contract must be given effect if it can reasonably be done, because parties ordinarily do not insert meaningless provisions in their agreements.” Connect icut Co. v. Division 425, 147 Conn. 608, 617, 164 A.2d 413 (1960); see also Ceci v. National Indemnity Co., 225 Conn. 165, 175-76, 622 A.2d 545 (1993); Hatcho Corp. v. Della Pietra, 195 Conn. 18, 23, 485 A.2d 1285 (1985); A. M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 621-22, 220 A.2d 32 (1966); Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn. App. 530, 534, 630 A.2d 115 (1993).

The parties specifically excepted payment of the cash portion of the purchase price from the operation of the “time of the essence” default clause of the contract. They agreed that the buyer would have up to thirty days from receipt of a notice of default to make the cash payment and that time would be of the essence only as to that thirty day period.

The contractual scheme is clear. The defendants, as the buyers, had the right to delay payment at least thirty days from the original closing date, if we assume that a notice of default was received on the original closing date, without being in default. If the defendants had needed a longer period of time, a delay of up to ninety days from the original closing date could have been arranged without penalty under article 7 of the contract by making an additional one million dollar deposit.

In view of this contract language, there is no basis for the trial court’s legal conclusion that the seven day delay was a breach of the contract. The fact that the defendants received the benefit of seven days worth of rents because of the delay in closing is irrelevant in light of the express contract provision allowing such a delay.

II

The defendants next claim that the trial court improperly concluded that the Andrews Annex construction project was a “major obligation” under article 10 of the contract.

On March 24,1988, an authorized representative of the plaintiffs executed an instrument labeled “agreement to lease” with the United States Postal Service. That agreement was signed by a Postal Service official on May 10,1988. The agreement provided that the plaintiffs would erect a one story masonry building at 3400 N. Andrews Avenue, Oakland Park, Florida to be known as the Andrews Annex. Construction was to be completed no sooner than sixty days nor more than 180 days after the Postal Service executed the agreement to lease. The building was to contain 19,531 square feet and the plaintiffs were to install the electrical, lighting, heating, air-conditioning, ventilating and plumbing systems. The construction of the building and installation of the systems was to be done at the plaintiffs’ expense. Interior renovations were to be constructed by the plaintiffs and paid for by the Postal Service. The design and cost of such renovations were subject to Postal Service review and approval. A rental payment schedule for the first year and five annual renewals was also set out in the agreement.

If the Andrews Annex project was a major obligation as that phrase is defined in the parties’ agreement, the entire cost of the construction of the building and the required systems would be borne by the defendants as the buyers. This would result in a refund or credit to the plaintiffs of $182,963.67, their pro rata share of the joint funds used to pay for the Andrews Annex project. The purpose of the major obligations clause of the parties’ contract was to ensure that the buyer (the high bidder), who ultimately would benefit from the improvements, paid for them if the obligation to improve was incurred after May 15,1988. All obligations incurred prior to May 15, 1988, would be borne pro rata by the parties in accordance with their respective percentages of ownership in the particular property.

It is important to understand the sequence of events and the business context of the termination contract with respect to this issue. The agreement to lease and the construction contract were signed before the business termination contract was executed. At the time the agreement to lease was signed in May, 1988, business was being conducted as usual, with repairs, maintenance and improvements being paid for out of the parties’ joint property accounts for the respective properties. On September 1, 1988, the parties signed the termination contract. Until November 1,1988, no one knew whether the plaintiffs or the defendants would be the high bidders, and, thus, the buyers under the contract. During the interval between the signing of the termination contract and the bid date, the parties needed to continue to carry on their businesses and to take advantage of opportunities such as the Andrews Annex project.

The trial court found that on July 5,1988, the plaintiffs entered into a contract with Duro Construction Company (Duro) for the construction of the Andrews Annex building and all interior work for a lump sum of $438,758. That contract did not mention the agreement to lease between the plaintiffs and the United States Postal Service in its recitation of contract documents. The trial court then made the following finding: “Until the execution of that contract on July 5, 1988, the court infers that the ‘total costs of the modifications’ had not yet been ‘submitted to the Postal Service for review and approval.’ Thus, the creation of the obligation occurred after May 15,1988, and [the plaintiffs] are due $181,963.67 for that major obligation.”

The trial court’s conclusion that the plaintiffs incurred no obligation to construct the Postal Service Annex until the construction contract with Duro was signed was legally incorrect. Although it is true that the plaintiffs incurred no obligation to Duro until the July 5,1988 contract was executed, they had certainly obligated themselves under the May 10, 1988 agreement to lease with the Postal Service to construct the Andrews Annex. An examination of the agreement to lease reveals that it satisfies all of the requirements for a valid contract. The plaintiffs signed the agreement as an offer on March 24, 1988. One of the terms of the offer was that it was irrevocable for 120 days from that date. The Postal Service accepted that offer on May 10, 1988, thereby obligating the plaintiffs to construct the building.

Had the plaintiffs failed to erect the building, they surely would have been in breach of that contract. A contract requiring that the lessor erect a building pursuant to plans and specifications approved by the lessee is valid and binding. See KMart Corp. v. First Hartford Realty Corp., 810 F. Sup. 1316, 1325 (D. Conn. 1993).

On appeal, the plaintiffs argue that the trial court properly focused on the intent of the parties as to what was a major obligation. They claim that the trial court’s finding was really that no obligation was incurred by the plaintiffs until July 5, 1988, in the sense intended by the parties in their agreement. This claim is without merit as there is nothing in the trial court’s decision that states or implies that it found that the parties intended that the Andrews Annex project would be a major obligation. In its decision, the trial court analyzed only the agreement to lease and the July 5,1988, construction contract. From those documents, the court concluded that the defendants incurred no obligation until July 5, 1988. There was no finding that the parties intended that the Andrews Annex project would be a major obligation under their business termination contract.

The trial court concluded that the major obligation did not arise until the signing of the construction contract on July 5,1988, because the Postal Service review and approval was a condition precedent to the plaintiffs’ becoming bound under the agreement to lease. “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. . . . Whether the performance of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in the contract . . . .” (Citations omitted; internal quotation marks omitted.) Ruscito v. F-Dyne Electronics Co., 177 Conn. 149, 171-72, 411 A.2d 1371 (1979); see also Christophersen v. Blount, 216 Conn. 509, 512, 582 A.2d 460 (1990). There is nothing in the agreement to lease, the record, transcripts or exhibits, however, to support a finding of an intent to create a condition precedent to the plaintiffs’ obligation to construct the building.

The plaintiffs make two more claims in support of the trial court’s finding that the Andrews Annex project was a major obligation. First, they assert that the Andrews Annex project was a major obligation, even if incurred before May 15, 1988, because “most of the major obligations arose from instruments dated before May 15,1988, because all of them were repairs or improvements to properties pursuant to existing leases.” This claim, however, flies in the face of the express contract language that only those obligations in excess of $10,000 incurred after May 15,1988 could ever be major obligations.

Lastly, the plaintiffs claim that the parties could have excluded the “Andrews Annex” project as a major obligation in their September 1,1988 termination contract if they had intended that it not be a major obligation. Again, the plaintiffs’ reasoning is flawed. The parties’ contract did not specifically mention any of the major obligations. Rather, the parties intended to rely on the contractual language defining such obligations. Otherwise, there would have been no need for the May 15, 1988 date. The parties would have simply listed the major obligations as of the execution of their contract on September 1,1988, and provided for the allocation of such expenses incurred after September 1.

The trial court’s conclusion with respect to the Andrews Annex obligation has no basis in the evidence or law; therefore, it cannot stand.

Ill

The defendants’ final claim is that the trial court improperly awarded the plaintiffs statutory prejudgment interest on the postclosing adjustments pursuant to General Statutes § 37-3a.

The termination contract called for several adjustments to be made after the closing. Article 18 (b) of the contract provided that “adjustments shall be made with respect to cash balances as they exist as of closing and shall be accomplished within 30 days of closing.” With respect to major obligations, article 10 provided that “when the cash accounts are substantially adjusted . . . there shall be an adjustment in favor of the low bidder equal to the low bidder’s pro rata share of the cost of such major obligation.” The trial court found that the defendants failed to discharge their payment obligations to the plaintiffs in a timely manner, and, therefore, awarded the plaintiffs prejudgment interest pursuant to § 37-3a on the cash adjustments from April 1, 1989, and on the major obligations account from January 1, 1991.

In making these awards, the trial court stated that “justice demands this result” because, inter alia, (1) the business termination contract required payment of cash adjustments and major obligations within thirty days of the closing, (2) the defendants failed to utilize article 20 of the agreement that provided each party with a method to protect against such an interest award by depositing funds in escrow when there was a bona fide dispute, (3) the plaintiffs fully performed under the contract and did not delay the computation of the post-closing adjustments, (4) the defendants did not supply the necessary information to the accountants for them to complete their major obligations analysis, and (5) the defendants have had the benefit of the money owed to the plaintiffs for the postclosing adjustments.

The allowance of prejudgment interest under § 37-3a is a matter within the discretion of the trial court. Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989); Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 136, 146-47, 619 A.2d 866 (1993); Alderman v. RPM of New Haven, Inc., 20 Conn. App. 566, 569-70, 568 A.2d 1068 (1990). This allowance turns on “whether the detention of the money is or is not wrongful under the circumstances.” (Internal quotation marks omitted.) Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 498, 616 A.2d 806, cert. denied, 224 Conn. 923, 618 A.2d 528 (1992); Solomon v. Hall-Brooke Foundation, Inc., supra, 146. If the trial court determines that one party has wrongfully detained funds, it must next determine the date the wrongful detention began. Where the claim rests on a breach of contract, statutory interest accrues from the date the contract was breached. See West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 322-23, 541 A.2d 858 (1988); Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 566, 559 A.2d 241 (1989).

The defendants rely on article 22 (a) of the termination contract in support of their claim that there was no default under the terms of the contract until May 12,1991, at the earliest and, therefore, there could have been no wrongful withholding of money prior to that date. Article 22 (a) describes an event of default as “the failure of either party to make any monetary payment due under the terms of this agreement within three business days after the defaulting parties receipt of notice thereof from the nondefaulting party.” May 12, 1991, is three days after the plaintiffs’ May 9, 1991 written notice of default. The defendants, therefore, assert that they are chargeable with prejudgment interest, if at all, only from May 12, 1991. We agree with the defendants that a default, and thus a “wrongful” withholding, could occur only pursuant to article 22 (a). There are several reasons why that is so.

It is axiomatic that there must be mutual assent to have a valid contractual relationship. The parties are free to contract as they wish unless their contract violates the law, and every provision of their contract must be given effect. Connecticut Co. v. Division 425, supra, 147 Conn. 617. Our Supreme Court has frowned on interpreting a contract in a way that renders a clause in the contract mere surplusage and inoperative. A. M. Larson Co. v. Lawlor Ins. Agency, Inc., supra, 153 Conn. 621; see also Weil v. Beresth, 154 Conn. 12, 19, 220 A.2d 456 (1966). In the present case, the trial court’s award of prejudgment interest rendered the clause defining a monetary default completely inoperative and mere surplusage.

The duty to pay the postclosing adjustments arises out of the contract of the parties. “It is fundamental that interest is allowed on the ground of some contract express or implied to pay it, or as damage for the breach of some contract . . . . ” (Citations omitted; emphasis added.) Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc., 31 Conn. App. 455, 469, 626 A.2d 307 (1993). A party could not legally or logically be in breach of a contract where no default has occurred under the terms of the contract.

In deciding whether interest is due under General Statutes § 37-3a, a trial court must determine not only whether the money is payable but also whether the detention of the money is wrongful. White Oak Corp. v. Dept. of Transportation, 217 Conn. 281, 297, 585 A.2d 1199 (1991); Solomon v. Hall-Brooke Foundation, Inc., supra, 30 Conn. App. 146; Lawrence v. New Hampshire Ins. Co., supra, 29 Conn. App. 498. The default clause of the termination contract, by definition, makes the detention of money that is due wrongful only after a default notice.

The trial court reasoned that the defendants should pay interest, in part, because of their failure to take advantage of the escrow provisions of the contract. A contract must be construed as a whole and all relevant provisions construed together. Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); Fiddelman v. Redmon, 31 Conn. App. 201, 204, 623 A.2d 1064, cert. denied, 226 Conn. 915, 628 A.2d 986 (1993); Milhalyak v. Milhalyak, 30 Conn. App. 516, 522, 620 A.2d 1327 (1993). Here, the parties anticipated possible postclosing disputes and delays in the adjustment process and therefore inserted provisions in their termination contract to address these issues. Article 22 (a) provides that there would be no default unless the party claiming the default sent the necessary notice under the contract and article 20 provides a mechanism for the parties to protect themselves from statutory prejudgment interest by placing money in escrow where the sum due was in dispute. Only after receipt of a default notice would a party need to take advantage of the escrow provisions of article 20 in order to prevent a later award of interest for the wrongful detention of money.

Finally, the conduct of the parties in carrying out the contract sheds light on their intentions. See Ruscito v. F-Dyne Electronics Co., supra, 177 Conn. 170. Here, the conduct of the plaintiffs in sending the notice of default dated May 9, 1991, indicates that the parties intended that there would be no default for failure to pay money when due unless the provisions of article 22 (a) were followed.

There is no basis for the trial court’s award of prejudgment interest from April 1, 1989, on the cash adjustments. The trial court also awarded interest on the Andrews Annex project from January 1,1991, to the date of judgment. As the Andrews Annex project was not a major obligation subject to adjustment under article 10 of the termination contract, this interest award is also without basis.

The judgment is reversed in part and the case is remanded for further proceedings to recompute the award of damages after eliminating the award of prejudgment interest for the seven day delay in closing, eliminating the Andrews Annex project credit of $182,963.67 and related interest, and eliminating all prejudgment interest prior to the plaintiffs’ sending the defendants notice of default pursuant to the default provisions of their termination contract.

In this opinion the other judges concurred.

       The plaintiffs, Robert L. Patron, Irving Patron and Kenneth S. Patron assert claims on their own behalf. Robert L. Patron and Irving Patron also assert claims on behalf of the Kenneth Patron irrevocable trust in their capacity as cotrustees of said trust, and they also assert claims on behalf of the estate of Marvin M. Patron, having been appointed representatives of that estate. This group is referred to collectively as the plaintiffs.

       The defendants are Simon Konover, Doris Konover, Michael Konover, Anna G. Konover, the David Konover trust, Daniel I. Konover, trustee of the David Konover trust, Henry Konover, Theodore Konover, and the Konover family limited partnership. This group is referred to collectively as the defendants.

       The defendants listed as an issue in their brief whether the trial court improperly awarded offer of judgment interest under Practice Book § 345 et seq. on prejudgment interest awarded pursuant to General Statutes § 37-3a. The defendants did not brief that issue, however, because they conceded that our decision in Gillis v. Gillis, 21 Conn. App. 549, 575 A.2d 230, cert. denied, 215 Conn. 815, 576 A.2d 544 (1980), controls. In Gillis, we decided that interest pursuant to General Statutes § 52-192a must be computed on any prejudgment interest award made by the trier pursuant to § 37-3a. Id., 556.

       Article 10 of the parties’ termination contract provides: “Repairs, maintenance and leasing. From the execution date until the bid date, the entity then managing any property (the ‘managing entity’) will have the right, for the account of the ownership entity of such property, to undertake obligations with respect to the properties it manages, provided no such obligation is a major obligation, as hereinafter defined. From the execution date until the bid date, any managing entity shall have the right to undertake major obligations for the account of the ownership entities of the properties it manages, provided that, if either Konover or Patron owns or controls such managing entity, the party which does not own or control such managing entity shall be afforded the opportunity to approve or disapprove (not unreasonably in either case) any proposed major obligation; however, the cost of authorized major obligations shall be reimbursed as set forth in the second paragraph of this [article] 10. If a party which does not own or control the managing entity of a property does not disapprove of a proposed major obligation within two (2) business days after its receipt of notification thereof, consent with respect thereto shall conclusively be deemed to be given. In the event that the party from whom approval is sought determines that it must inspect the property, in question, reasonable travel expenses related thereto shall be paid from the K & P Associates account.
      “The high bidder will be responsible for the cost of any repairs, replacement, additions, improvements or other obligations incurred from and after May 15,1988, with respect to each property(s) which repairs, replacements, additions, improvements or other obligations either alone or in a series of related transactions creates an obligation which, after deducting that portion thereof reimbursable by tenants, exceeds $10,000 to the entity, owning a property (herein referred to as a ‘Major obligation’). For example, it is intended by the parties that the property accounts will be used to pay for major obligations incurred after May 15, 1988, and when the cash accounts are substantially adjusted between the parties, there shall be an adjustment in favor of the low bidder equal to the low bidder’s pro rata share of the cost of such major obligation.” (Emphasis added.)

       General Statutes § 37-3a provides in pertinent part: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable. ...”

       Evidence that the February 1,1989 closing date was not of the essence is also found in the amended article 7 of the agreement which provides: “The date of closing (‘closing’) shall be February 1, 1989 subject to extension as elsewhere provided in this agreement.” (Emphasis added.) Article 7 further provides: “At the election of the High Bidder, the closing may be extended for one period of not more than ninety (90) days. . . . [T]he High Bidder shall on the date of closing pay to the low bidder the additional sum of $1,000,000.00 and the High Bidder’s deposit shall simultaneously be paid by the escrow agent to the Low Bidder, both of which sums shall be credited against the purchase price.”

       See footnote 4.

       See footnote 4.

       The quote is taken from the trial court’s articulation. The trial court’s memorandum of decision, however, allocated the sum of $182,963.67 as a credit due the plaintiffs for the Andrews Annex major obligation.

       See footnote 5.

       Article 20 of the termination contract provides in pertinent part: “In the event of a bona fide dispute, either Party may pay the disputed sums of money or perform alleged obligations‘under protest’. . . . Any sums of money disputed in good faith . . . shall be paid to the Escrow Agent and shall be deposited by the Escrow Agent into a separate interest-bearing account . . . pending resolution of the dispute.”

       See footnote 11.

       Although the defendants concede that the May 9, 1991 letter was a notice of default, it is for the trial court to determine whether that or some earlier document constitutes the requisite notice.


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    State of Connecticut v. Pasquale Villano
    (11515)
    Foti, Schaller and Cretella, Js.
    Remanded May 12
    decision released August 23, 1994

      Deborah DelPrete Sullivan, assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, assistant state’s attorney, for the appellee (state).
   Schaller, J.

This case is before us on remand from our Supreme Court. We previously considered the matter in State v. Villano, 33 Conn. App. 162, 634 A.2d 907 (1993), remanded for reconsideration, 229 Conn. 916, 642 A.2d 1212 (1994), in which we affirmed the judgment of the trial court revoking the defendant’s probation. The Supreme Court granted certification and remanded the case for reconsideration in light of its decision in State v. Davis, 229 Conn. 285, 303, 641 A.2d 370,(1994).

The defendant claims that the trial court (1) improperly found that the defendant had violated the special condition of his probation pursuant to General Statutes § 53a-32, and (2) abused its discretion in revoking the defendant’s probation. We reverse the judgment of the trial court on the defendant’s first claim and remand the case to the trial court for a new probation revocation hearing.

The following facts are relevant to the appeal and were set forth in State v. Villano, supra, 33 Conn. App. 162. “On May 28, 1987, the defendant pleaded guilty under the Alford doctrine to the charge of risk of injury to a child, and, on May 29, 1987, the court sentenced the defendant to ten years in prison, suspended after five and one-half years, with five years probation. The defendant began his probationary period on May 29, 1991. On that date, the defendant and his probation officer signed a form titled ‘Conditions of Probation.’ This document outlined the standard conditions of the defendant’s probation, and also listed as a special condition the defendant’s participation in a sex offender treatment program.

“His probation officer then referred the defendant on May 31,1991, to special services at The Connection Agency, Inc. (Connections), an organization in Middle-town that offers treatment for sexual behavior problems. Lisa Heitmann, a treatment specialist at Connections, completed an evaluation of the defendant in July, 1991, which resulted in Heitmann’s recommendation that the defendant initially take part in the ‘cognitive lab,’ a twelve week psycho-educational program that would prepare the defendant for group therapy.

“In February, 1992, the probation officer caused a warrant to be issued for the defendant’s arrest pursuant to General Statutes § 53a-32, alleging that the defendant had violated the condition of his probation that he receive sex offender treatment. The warrant detailed the defendant’s probation history and alleged specifically that the defendant failed to report to Connections on January 16,1992, and failed to meet with Heitmann on January 29,1992, in order to discuss his treatment plan and to sign the papers necessary for him to take part in the treatment program. The warrant also stated that Connections discharged the defendant from its treatment program due to ‘noncompliance and avoidance of treatment.’

“At the probation revocation hearing, the probation officer, Heitmann and the defendant testified. The following evidence was presented. Connections scheduled the defendant to begin the cognitive lab in August, 1991, but the defendant then asked his probation officer to allow him to seek a second evaluation through Catholic Family Services. The defendant testified on cross-examination that he sought the second opinion because he and Heitmann ‘were [not] clicking too well.’ The probation officer agreed to the second opinion, despite her awareness that, although Catholic Family Services had the capacity to evaluate the defendant, it did not have a program for the treatment of sex offenders. The defendant participated in the evaluation at Catholic Family Services from August until December, 1991.

“Since Catholic Family Services could not treat the defendant as a sex offender, he was referred again to Connections. In order for the defendant to begin actual treatment at Connections, he had to sign a contract with that agency. Connections originally scheduled the defendant for an appointment at the New Haven probation office on January 15,1992, in order to sign the contract. The defendant did not appear for this appointment. Connections then scheduled the defendant to sign the contract and to begin the cognitive lab treatment at Connections on January 16,1992. The defendant twice called Heitmann on January 16 and told her that he was unable to obtain transportation from his home in New Haven to Connections in Middletown. The defendant did not sign the contract or attend the cognitive lab on that date.

“A pair of appointments to sign the contract and to begin treatment at Connections was set for January 23, 1992. On that date, the defendant was scheduled to arrive at approximately 3:45 p.m. to meet with Heitmann to sign the contract, and to begin the cognitive lab at 4:30 p.m. The defendant did not arrive at Connections until approximately 4:10 p.m., and claimed that he was late because he had been lost. Since the defendant missed his 3:45 appointment with Heitmann, he could not sign the contract. He was permitted, however, to take part in the cognitive lab on that date.

“On January 23, 1992, Heitmann made an appointment for the defendant to sign the contract at the probation office in New Haven at 1 p.m. on January 29, 1992. She informed the defendant that if he did not sign the contract at that time, he would not be allowed into treatment. On January 29, 1992, the defendant met with his probation officer at 10 a.m. for his regular probation meeting. Heitmann was at the probation office at that time and spoke briefly with the defendant. The defendant informed Heitmann that he had to be at work at 1 p.m., and requested that he be allowed to sign the contract at that time. Heitmann told the defendant that she had other appointments, that he could not then sign the contract, and that he would have to return at 1 p.m. The defendant failed to return to the probation office at 1 p.m., and never signed the contract.

“On January 30, 1992, the defendant went to Connections to take part in the cognitive lab. Since the defendant had not signed the contract at the previously scheduled appointments, he was informed that he had been terminated from further treatment at Connections. Heitmann sent a letter to the probation department on February 7,1992, informing the department of the defendant’s status. At that time, the defendant had been on probation for over eight months.

“On the basis of this evidence, the trial court found that the defendant had violated the special condition of his probation that he receive sex offender treatment, and ordered the defendant to serve four and one-half years.” State v. Villano, supra, 33 Conn. App. 164-67. The trial court did not state the standard of proof under which it found that the defendant had violated his probation. The trial court stated at various points that it had “plenty of facts,” that the defendant is “in direct violation of a Judge’s order that he be in treatment,” that its “analysis leads . . . to the conclusion that this is an intentional, willful course of conduct, designed to avoid entry into treatment” and that “the defendant is found to be in violation of his probation.”

We must first review whether the trial court applied the proper standard of proof to the evidence presented at the probation revocation hearing in finding that the defendant had violated the special condition of his probation. At the time of our previous opinion, the standard of proof for revocation of probation had been set forth as that of reasonable satisfaction. State v. Davis, 29 Conn. App. 801, 809, 618 A.2d 557, rev’d, 229 Conn. 285, 641 A.2d 370 (1994). In the present case, we originally held that “[u]nder the evidence presented in this case, we conclude that the trial court could reasonably have found, by the standard of ‘reasonable satisfaction,’ that the defendant was in violation of the special condition of his probation that he receive sex offender treatment.” State v. Villano, supra, 33 Conn. App. 169.

In State v. Davis, supra, 229 Conn. 302, our Supreme Court concluded that the proper standard of proof in a revocation of probation proceeding is that of a fair preponderance of the evidence. After noting that a probation revocation proceeding is civil in nature, the court stated that “[o]rdinarily, in a civil case, we assume that a trial court has applied the fair preponderance of the evidence standard when it has failed to indicate the standard applied. In re Juvenile Appeal (83-AB), 189 Conn. 58, 59, 454 A.2d 271 (1983). Nevertheless, because the trial court articulated a standard of ‘appropriate evidence/ we are uncertain as to the standard of proof applied by that court. This is particularly so because of the dicta in our prior decisions referring to the ‘reasonable satisfaction’ standard.” State v. Davis, supra, 229 Conn. 302-303; see State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988); State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973); see also State v. Johnson, 11 Conn. App. 251, 258, 527 A.2d 250 (1987); Payne v. Robinson, 10 Conn. App. 395, 403, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).

Here, although the court stated that it had “plenty of facts” from which it could determine that the defendant had violated his probation, we remain uncertain as to the actual standard of proof, applied by the trial court in making its determination. In accord with our Supreme Court in Davis, we must remand this case to the trial court “for a determination of whether the state can prove by a fair preponderance of the evidence that the defendant violated a condition of his probation.” Id., 303.

The judgment is reversed and the case is remanded for a new probation revocation hearing.

In this opinion the other judges concurred.

       The trial court imposed the four and one-half years suspended portion of a sentence that the defendant had received for his 1987 conviction of risk of injury to a child in violation of General Statutes § 53-21. General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-32 provides in pertinent part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge .... Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. . . .
      “(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       The defendant also requests that we reconsider our decision in State v. Baxter, 19 Conn. App. 304, 563 A.2d 721 (1989). In that case, we determined that there is no constitutional requirement that the trial court must find that a violation of probation was willful, except in the limited circumstances set forth in Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983) (where indigent defendant fails to pay fine or restitution, willful disobeyance of condition of probation must be shown). We maintain our position set forth in Villano to decline to reconsider our decision in Baxter.

       Because we reverse the trial court’s judgment on the defendant’s first claim, we need not reach the defendant’s second claim, as it is unlikely to recur upon retrial.

        North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       “During this period, the defendant did not attend any programs at Connections. The probation officer testified that she did not expect the defendant to attend any programs at Connections until the defendant completed the Catholic Family Services evaluation. Personnel at Connections apparently believed that the defendant would continue treatment at Connections, and when the defendant did not appear, Connections terminated the defendant from its program. At the request of the probation officer, however, the defendant was reinstated.” State v. Villano, supra, 33 Conn. App. 165 n.5.

       “This date was not included in the warrant for the defendant’s arrest pursuant to General Statutes § 53a-32.” State v. Villano, supra, 33 Conn. App. 166 n.6.

       “This date, also, was not listed in the arrest warrant.” State v. Villano, supra, 33 Conn. App. 166 n.7.


author: Spear, J.

text:
    Andres Rodriquez v. Commissioner of Correction
    (12237)
    Lavery, Freedman and Spear, Js.

      Argued February 22
    decision released August 23, 1994

      Deborah Del Prete Sullivan, assistant public defender, for the appellant (petitioner).

      Jacqueline J. Footman, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Spear, J.

The petitioner appeals from the denial of his petition for a writ of habeas corpus claiming ineffective assistance of counsel. We affirm the judgment of the habeas court.

The petitioner was convicted after a jury trial of arson in the first degree in violation of General Statutes §§ 53a-lll and 53a-8, and sentenced to a term of imprisonment of thirteen years. He appealed, claiming, inter alia, that there was insufficient evidence to sustain a conviction and that the trial court improperly failed to conduct an inquiry into trial counsel’s alleged conflict of interest arising from dual representation of the petitioner and his wife, who had been a defense witness at the criminal trial. The Supreme Court affirmed the conviction in State v. Rodriquez, 200 Conn. 685, 513 A.2d 71 (1986).

The petitioner then filed a petition for a writ of habeas corpus, alleging ineffective assistance of counsel and violation of due process under the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution in that his trial counsel had not adequately informed him of his right to testify at trial. The habeas court granted the petition and ordered a new trial. The state’s petition for certification to appeal was denied by the habeas court. The state then filed a writ of error. In Commissioner of Correction v. Rodriquez, 222 Conn. 469, 610 A.2d 631 (1992), the Supreme Court, after determining that the petitioner’s claim of violation of due process should not be considered separately from his claim of ineffective assistance of counsel, reversed the habeas court’s judgment granting the petition because that court had failed to conduct an appropriate inquiry as to whether trial counsel’s assistance was both deficient and prejudicial. Such an inquiry is required pursuant to Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The case was remanded for a new hearing with a directive that the habeas court conduct a proper Strickland analysis.

The habeas court held a second hearing, at which it considered the following facts. The underlying criminal conviction was for the firebombing of a grocery store owned and operated by the petitioner in his wife’s name. The fire was started by a Molotov cocktail that was thrown against the front window of the grocery store. The bottle did not fully penetrate the window and landed beneath it between a wire fence and the building. The outside of the building was scorched and there was damage inside the store caused by smoldering boxes. No insurance claim was filed. There was testimony by a neighbor that she saw a Hispanic male with an Afro throw the Molotov cocktail, and that it was definitely not the petitioner.

Evidence against the petitioner included the existence of a gallon container of gasoline located inside the store where the Molotov cocktail would have hit if it had fully penetrated the store window. The container could have been placed there only after the store was closed, which could have been done only by someone who had keys to the store. The only two persons who possessed keys were the petitioner and his employee, who was not suspected. The employee testified that at the time he closed the store, the gasoline container was definitely not there. The building in which the grocery store was located was owned by Mario LaPrieta, who lived with his wife directly above the store. LaPrieta was asleep in a bedroom directly over the store the morning of the firebombing. The LaPrietas had no keys to the store and had no access to the store after it was closed.

The landlord-tenant relationship between LaPrieta and the petitioner was less than harmonious. The petitioner had taken over the store from a previous tenant without LaPrieta’s consent. LaPrieta had commenced summary process proceedings against the petitioner, which were scheduled for trial on March 22,1982, the day after the fire. Defense counsel implied at trial that someone such as LaPrieta could have entered the store through a backdoor without setting off the burglar alarm.

There was also evidence that the petitioner wanted a beer permit for another grocery store he owned. The lease for the store that was firebombed, however, contained a provision that the permit for that address could not be transferred. Further, due to the close proximity of the two grocery stores, local zoning regulations prevented the petitioner from obtaining a beer permit for his second store.

Police officials testified that the petitioner, who arrived at the scene of the fire shortly after the incident, was fully dressed, unusually calm, and was able to identify the smoking Molotov cocktail as a Coca-Cola bottle from a distance of fifty feet. No one had told the petitioner what kind of bottle had been used, and he was standing too far away to identify it visually.

The petitioner claims that he was denied effective assistance of counsel because his trial counsel did not fully inform him that he had a right to testify if he so chose, and that he would have testified had he known of such a right. The petitioner further claims that if he had testified at his criminal trial, he would have explained the suspicious circumstances surrounding his identification of the Coca-Cola bottle. The evidence at trial included the petitioner’s sworn written statement in which he twice indicated that he had identified the bottle as a Coca-Cola bottle from a distance of fifty feet. At the second habeas hearing, the petitioner testified that he actually made the identification from a distance of five to ten feet with the aid of a streetlight and would have so testified at the prior trial if he had been apprised of his right to testify. The petitioner claims that, at the time the investigator took his statement, he did not regard the distance as important and that the investigator never gave him an opportunity to explain how close he was initially. He made no mention of this proposed testimony at his first habeas proceeding, however, and admitted that he never specifically brought it to the attention of trial counsel during his criminal trial. The petitioner claims he did not know he had the right to give testimony until after he had spent one to two years in prison.

The trial attorney testified at both habeas proceedings that although he could not recall specifically explaining to the petitioner that he could testify if he so desired, he did tell the petitioner that he did not want him to testify. He had several strategic reasons for not wanting the petitioner to take the stand: (1) the state was aware that there had been fires and subsequent insurance claims at other properties owned by the petitioner and counsel was concerned that the state may have been prepared to cross-examine the petitioner as to those matters; (2) counsel believed the jury would give great weight to the testimony of the neighbor who had seen someone other than the petitioner throw the Molotov cocktail; (3) counsel believed that the petitioner had a strong case and that the state should be required to carry its heavy burden; and (4) counsel did not want to be surprised by anything that might be elicited from the petitioner should he take the stand.

The trial attorney also testified that although he could not recall specifically advising the petitioner that he could testify if he so desired, it was his firm opinion, based on their discussions and his prior representation of the petitioner that the petitioner knew he had that right. The petitioner never questioned his counsel’s advice on the matter and never asked to take the stand.

The second habeas court subsequently issued a memorandum of decision dismissing the petition. The petitioner’s petition for certification to this court was granted and this appeal followed. The petitioner claims on appeal that (1) the habeas court improperly concluded that counsel’s performance was not deficient and failed to answer the Supreme Court mandate that it conduct an appropriate analysis under Strickland, (2) the habeas court’s conclusions were not supported by the evidence, and (3) the habeas court incorrectly concluded that counsel’s assistance was not ineffective. Our analysis of the second habeas court’s compliance with Strickland is dispositive of all three of the petitioner’s claims, and the issues therefore need not be addressed separately.

Strickland v. Washington, supra, 466 U.S. 687, provides a two-prong analysis for claims of ineffective assistance of counsel. First, the petitioner must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as the counsel guaranteed to the criminal defendant under the sixth amendment, which in turn requires a showing that counsel’s representation fell below an objective standard of reasonableness. Id., 687-88. Second, the petitioner must show that counsel’s errors were so serious as to render the result of the trial unreliable. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings.” Id., 693. Rather, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. In this context, a reasonable probability does not require a showing that counsel’s deficient conduct more likely than not altered the outcome in the case, but rather requires that the petitioner establish a probability sufficient to undermine confidence in the outcome. Id., 694. The petitioner must satisfy both prongs of the analysis to prevail on his ineffectiveness of counsel claim.

We first consider the proper scope of our review. The facts found by the habeas court may not be disturbed unless such findings are clearly erroneous. When, as in this case, those facts are essential to a determination of whether the petitioner’s sixth amendment rights have been violated, we are presented with a mixed question of law and fact requiring plenary review. Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 877 (1991); McIver v. Warden, 28 Conn. App. 195, 203, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992). The petitioner’s claims that the habeas court (1) made an improper legal conclusion as to counsel’s performance, (2) failed to answer the Supreme Court’s mandate, (3) made findings that were unsupported by the evidence, and (4) improperly found that trial counsel was not ineffective, are simply not supported by the facts set out in the trial court’s memorandum of decision or the record as a whole.

In a properly conducted Strickland analysis, the court must first determine whether the performance of trial counsel was deficient. As the second habeas court notes in its memorandum of decision, the petitioner does not allege that the quality of his trial counsel’s representation, the conduct of the trial, the attorney’s appreciation of the state’s case, or the attorney’s advice was deficient. Rather, the petitioner’s sole complaint is counsel’s alleged failure to advise him adequately of his right to testify. In order for that alleged failure to be considered deficient under Strickland, the petitioner must first establish such failure and then show that such a failure is not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in criminal law. Summerville v. Warden, 29 Conn. App. 162, 170, 614 A.2d 842 (1992), rev’d on other grounds, 229 Conn. 397, 641 A.2d 1356 (1994). “[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland v. Washington, supra, 466 U.S. 690.

The sixth amendment does not entitle criminal defendants to error free representation. Commissioner of Correction v. Rodriquez, supra, 222 Conn. 478. “Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland v. Washington, supra, 466 U.S. 689. A fair assessment of attorney performance at trial requires that the reviewing court make every effort to avoid the distorting effect of hindsight. Id., 689. In fact, the reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of professional assistance. Id.

With that presumption in mind, we turn to the case at hand. The record as a whole shows that the petitioner did not present any evidence to establish that trial counsel had never told him that he had a right to testify. Counsel testified that he had no specific recollection of informing the petitioner that he had a right to testify, not that he never told him of his right to testify. Moreover, counsel did testify that it was his opinion, based on his recollection of conversations with the petitioner during the trial, that the petitioner was aware of that right. There would have been no need for any discussion between the petitioner and his trial counsel about the pros and cons of the petitioner’s testifying unless it was implicitly understood that the petitioner had the right to testify. Furthermore, the transcript of the petitioner’s testimony at the second habeas proceeding gives the impression that, although he never specifically requested to testify, he was aware that he could. The petitioner has merely shown that his attorney, testifying without benefit of his trial records, cannot recall specifically informing him of his right to testify.

Criminal defendants are required to take some affirmative action regarding their right to testify before they can claim that they have been deprived of that right. Ostolaza v. Warden, 26 Conn. App. 758, 763, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). The habeas court properly found as a fact that the petitioner never expressed his desire to testify at trial, and that trial counsel’s advice to the petitioner regarding the pros and cons of the decision to testify was sound. The petitioner cannot prevail on his claim that counsel’s performance was deficient. Id., 764. “ ‘[T]he appropriate vehicle for claims that the defendant’s right to testify was violated by defense counsel is [through] a claim of ineffective assistance of counsel [pursuant to] Strickland v. Washington, [supra, 466 U.S. 668].’ ” Commissioner of Correction v. Rodriquez, supra, 222 Conn. 476, citing United States v. Teague, 953 F. 2d 1525, 1534 (11th Cir.), cert. denied, U.S. , 113 S. Ct. 127, 121 L. Ed. 2d 82 (1992). As is the case in any such claim, the burden was on the petitioner to show that he was not aware of his right to testify, not on the state to show that he was. See Commissioner of Correction v. Rodriquez, supra, 477. The petitioner here has not shown that his trial counsel’s conduct was deficient under Strickland.

Having made the finding that trial counsel’s performance was not deficient, the second habeas court was not required to conduct an analysis under the second prong of Strickland. Nonetheless, the habeas court conducted an analysis in accordance with our Supreme Court’s mandate as to whether, if it had found trial counsel’s performance to be deficient, it would have had a prejudicial effect on the petitioner’s trial.

Our Supreme Court’s mandate directed the second habeas court to consider several factors in making this analysis under the second prong of Strickland: first, whether the petitioner actually knew of his right to testify on his own behalf; second, whether, if he had been apprised of that right, he actually would have taken the stand, in light of his reliance on his attorney’s judgment; and, third, whether there was a reasonable probability that the strength of this testimony would have been enough to “undermine confidence in the outcome.” In making this third determination, the habeas court was further instructed to weigh the petitioner’s credibility and the impact of his proposed testimony against several factors, including the possibility of cross-examination with respect to the fires at his other properties, his prior fire insurance claims, his attempt to increase his fire insurance at the store, the pending eviction proceedings, his awareness of the type of bottle used in the incident, and his efforts to obtain a beer permit for his other grocery store.

The trial court’s memorandum of decision demonstrates a meticulous compliance with the above mandate. First, the court clearly and carefully considered whether the petitioner knew he had a right to testify. In making its finding that the petitioner was aware of the right, the court noted that the petitioner’s testimony gave the impression that while trial counsel may not have specifically apprised him of his right to testify, the petitioner was aware of the right and offered no credible testimony to indicate that he was at any time unaware of that right throughout the trial. While testifying, the petitioner “was hazy on the circumstances under which trial counsel advised him not to testify” and “could not recall how or why the discussion arose, or what was said or discussed.” As the habeas court noted, counsel is not required to follow a script, and the record as a whole supports the conclusion that the petitioner was aware of his right to testify.

Second, the court considered whether the petitioner actually would have taken the stand, in light of his reliance on his attorney’s judgment. The court found that the petitioner would not have overruled counsel’s advice. This conclusion is bolstered by the fact that the petitioner and trial counsel had maintained a professional relationship for several years. The finding is also supported by several statements made by the petitioner during the course of both habeas proceedings, such as that he was “waiting on” his attorney’s advice prior to deciding whether to testify.

Third, the court considered whether there was a reasonable probability that the petitioner’s proposed testimony would have been enough to “undermine the outcome” of the proceeding, thereby constituting prejudice under Strickland. The only exculpatory evidence in the petitioner’s proposed testimony that was not already before the jury was his explanation that he knew the bottle was a Coca-Cola bottle because he initially saw it from a distance of five to ten feet, not fifty. As instructed by our Supreme Court, the habeas court weighed the petitioner’s credibility and the impact of this proposed testimony against the factors listed previously.

In so doing, the habeas court found the petitioner not to be credible, and consequently determined that his proposed testimony would not have been enough to undermine confidence in the outcome of his criminal trial. While acknowledging that it had no way of knowing what the petitioner’s demeanor would have been ten years earlier at his criminal trial, the court noted that the petitioner’s demeanor at this proceeding was extremely poor. The court found that the petitioner’s testimony was “inconsistent and unresponsive,” and that the petitioner often seemed unwilling or unable to give a direct or credible answer, even to “seemingly significant and uncomplicated questions, including some posed by his own counsel.”

The court, as instructed, also considered the possible effect of cross-examination of the petitioner on the issues of concern to trial counsel, such as the prior fires and insurance claims. While the court found it unlikely that such cross-examination would be admitted or attempted, the court determined that given the petitioner’s vagueness and inconsistencies, the jury would have been unlikely to attach much credence to his testimony, and that counsel’s stated concern about possible surprise was well-founded. The habeas court concluded that the petitioner was not credible and that therefore the omission of his proposed testimony in no way undermined confidence in the outcome of the criminal trial.

We are in accord with the habeas court’s legal conclusions and findings of fact, as they are supported by the record as a whole and by the court’s memorandum of decision. The habeas court complied with our Supreme Court’s mandate and went further than required in finding no prejudice even though the petitioner failed to establish that counsel’s performance was constitutionally deficient.

The judgment is affirmed.

In this opinion the other judges concurred.

       Two recent decisions released by our Supreme Court indicate that in the future such writs will be considered procedurally improper and will not be entertained. In Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), the court held that General Statutes § 52-273 deprives the court of subject matter jurisdiction over a writ of error brought to review a habeas court’s denial of certification to appeal, notwithstanding the provision of Practice Book § 4143 to the contrary. In a companion case, Carpenter v. Meachum, 229 Conn. 193, 640 A.2d 591 (1994), the court upheld the constitutionality of § 52-273. See also Simms v. Warden, 230 Conn. 608, 646 A.2d 126 (1994).
      Subsequent to the release of those decisions, the defendant in this case filed a motion to vacate Commissimer of Correction v. Rodriquez, 222 Conn. 469, 610 A.2d 631 (1992), with the Supreme Court. That motion was denied and therefore the decision stands.

       The first habeas court found that trial counsel failed to inform the petitioner adequately of his right to testify, but did not conduct an inquiry as to whether that failure was prejudicial to the outcome of the proceedings.

       The only issue before the second habeas court was the claim of ineffectiveness of trial counsel. By stipulation, the trial transcripts and esdiibits of the prior habeas hearing and underlying criminal trial were admitted into evidence at the second habeas hearing.

       The petitioner’s insurance agent testified that a few months before the fire, the petitioner had attempted to increase the amount of his fire insurance on the store from $40,000 to $45,000.

       There was evidence that before the fire, the petitioner was in contact with a Hispanic male with a large Afro, although that person was never located or identified.

       As the second habeas court noted, LaPrieta and his wife were asleep in the apartment above the grocery store and would have been in severe jeopardy had the bottle penetrated the window.

       At the second habeas proceeding, the petitioner produced as an expert on the deficiency of performance issue Todd D. Fernow, director of the University of Connecticut School of Law Criminal Clinic, who testified that jurys tend to draw adverse inferences when criminal defendants do not testify.

       The petitioner’s statement to the police shows that he was asked: “Mr. Rodriquez, when you saw the Coke bottle with the fire about how far away were you?” The petitioner responded: “Well, I was across the street at the time, and that is approximately fifty feet.”
      The petitioner was later asked: “Mr. Rodriquez, how did you know that it was a Coke bottle that was on fire on the sidewalk between the fence and the store?” The petitioner responded: “I saw the bottle from outside and you could see it from about fifty feet because it was on fire.”

       At his first habeas hearing, the petitioner testified that if he had known that he had a right to testify at his criminal trial, he would have merely asserted his innocence. He made no mention of explaining how he knew the brand name of the bottle.

       The petitioner claims to have learned of his right to testify from books in the library at the correction facility in Somers. The petitioner claims that other inmates helped him locate books about arson and translated them for him. The petitioner was unable to identify the books that he had used.

       Apparently neither of these fires was of a suspicious nature, one having been caused by a fan in a tenant’s apartment and the other by a child playing with matches. The subject of the state’s cross-examination of the petitioner would have depended on the petitioner’s direct testimony.

       Trial counsel had maintained a professional relationship with the petitioner for several years and had represented him in some civil matters.

       The habeas court also noted that in the petitioner’s direct appeal, he unsuccessfully asserted an ineffectiveness of counsel claim based on counsel’s alleged conflict of interest in permitting the petitioner’s wife to comply with certain pretrial discovery requests concerning the business records of the firebombed grocery store.

       For example, when asked why he did not ask to take the stand, the petitioner replied “I was waiting on my attorney,” which indicates that the petitioner was aware of his right but was deferring to his attorney’s judgment. The court also noted that although the petitioner’s native language is Spanish, his command of the English language was sufficient for him to conduct his businesses and to communicate with his attorney.

       The habeas court was also instructed to assess the extent to which the petitioner’s testimony might have been duplicative of his statement to the police that was admitted into evidence at the first habeas proceeding.

       For example, during cross-examination, the petitioner was asked when he had told trial counsel that he wanted to testify:
      “Q. How many times during the trial did you tell Mr. Williams that you wanted to testify?
      “A. It could have been more than one, but I remember one.
      “Q. And when was that?
      “A. I don’t remember, you know, while it was in court, while I was in trial, while the trial was going on, when the trial was going on, excuse me.
      “Q. Well, what was going on at the trial at that time?
      “A. She was telling me that everything was okay.
      “Q. At what point during the trial did you tell Mr. Williams that you wanted to testify?
      “A. Around the middle of the trial.
      “Q. During the state’s case or your case?
      “A. Yes.
      “Q. Which one?
      “A. When the jury — when they were talking with the jury.
      “Q. When who was talking to the jury?
      “A. The lawyer.
      “Q. Which lawyer?
      “A. Williams.
      “Q. Williams was talking to the lawyer — Mr. Williams was talking to the jury, that’s when you told him you wanted to testify?
      “A. When we were in the little room, when we were in the break, during the break.
      “Q. I’ll ask it one more time. At what point during the trial when you were on this break, did you tell Mr. Williams you wanted to testify?
      “A. Yes, yes.”

       For example, near the end of the proceedings, the petitioner suddenly announced that he had retained his trial counsel by mistake, thinking he was retaining another New Haven lawyer also named Williams. Given that counsel had already represented the petitioner in several civil proceedings, such a mistake seems highly implausible, and supports the habeas court’s finding as to the petitioner’s credibility.