author: FLYNN, J.

text:
    ALFRED C. BRIGGS, JR., ET AL. v. GEORGE P. BRIGGS
    (AC 21890)
    Dranginis, Flynn and West, Js.
    Argued October 29, 2002
    officially released March 11, 2003

      Allan F. Friedman, for the appellant-appellee (defendant).

      Michael J. Leventhal, for the appellees-appellants (plaintiffs).
   Opinion

FLYNN, J.

The defendant, George P. Briggs, appeals from the judgment of the trial court awarding the plaintiffs, Alfred C. Briggs, Jr., Nancy Briggs Debolt and Elizabeth D. Briggs, trustee, damages in the amount of $17,286.94. The plaintiffs have filed a cross appeal. On appeal, the defendant claims that the court improperly defined the term “net revenue” contained in the stipulated judgment, disallowing his deductions of mortgage principal and out-of-pocket construction expenses from his gross revenue figures. The plaintiffs, on cross appeal, claim that the court improperly calculated the defendant’s net revenue by (1) permitting loss carry overs from one calendar year to another and (2) allowing the defendant, under the judgment, to deduct his obligatory expense payments from his gross revenue figures. We agree with the plaintiffs that the court improperly calculated their damages when it permitted loss offsets for the entire period of tenancy rather than limiting those offsets against profits to each individual yearly reporting period. Accordingly, we reverse the judgment of the trial court in part on the plaintiffs’ cross appeal but affirm the judgment in all other respects.

The following facts and procedural history are relevant to the appeal and cross appeal. Alfred C. Briggs, Sr., now deceased, entered into a ninety-nine year lease agreement with the defendant, his son, on July 18,1974. The effect of the initial lease was to encumber the premises for ninety-nine years by a term for years at a very modest annual rental. The lease allowed for the use and occupancy of 401 Greenwich Avenue, Greenwich, at a base annual rental of $2400, payable in monthly installments. The lease stated that the defendant was responsible for all expenses associated with the property, including “taxes, utilities, insurance, maintenance, etc.” In March, 1977, the lease was modified to include an increase in the rental payment to $3600 per annum effective over eighteen years later. Alfred C. Briggs, Sr., also had given the defendant long-term leases on three additional pieces of Greenwich commercial property, not the subject of these appeals. In April 1975, Alfred C. Briggs, Sr., executed his last will and testament. Paragraph III of the will directed that his estate be divided equally among his five children, Alfred C. Briggs, Roger T. Briggs, Nancy Briggs DeBolt, Douglas M. Briggs and the defendant, George P. Briggs. In March, 1982, Alfred C. Briggs, Sr., made a first codicil to his last will and testament. Paragraph three of the codicil provided: “It has come to my attention that the real estate which I own in the State of Connecticut is subject to certain long term leases which I have not previously read in detail and which I granted to one of my sons, George P. Briggs. Particularly in view of the remaining duration of such leases, the rental payable thereunder and the value of such real estate in relation to the total value of my anticipated estate, such leases if permitted to continue will serve to frustrate the intentions expressed in my Will of April 11,1975 to divide my estate equally among my five (5) children, per stirpes.

“Accordingly, in the event of my death, I request that my son, George P. Briggs, agree to the cancellation of such leases as promptly as practicable and, in the event he does not do so, I direct my Executor, in the course of disposing of my estate, to employ all legal and reasonable means to seek to have such leases declared invalid with the objective that the fee simple title to [said] real estate in the State of Connecticut be considered a part of my estate, not subject to such leases, for distribution in accordance with the provisions of my Will. In the event that such leases are not canceled or declared invalid, any distribution made pursuant to Paragraph III of my Will shall be made allocating the value of such leases to the lessee thereunder as a part of the share distributed to my son, George P. Briggs.” The codicil also named Roger T. Briggs as executor of the estate of Alfred C. Briggs, Sr.

Following the death of Alfred C. Briggs, Sr., various lawsuits were filed by the executor and the defendant. The parties eventually entered into a stipulated agreement (stipulation) on June 14, 1984, thus ending those lawsuits. Under the stipulation, the parties agreed that a commercial building could be constructed by the defendant, George P. Briggs. Roger T. Briggs, as executor, consented “to the construction of the proposed commercial building by [the defendant] George P. Briggs at and upon the 401 Greenwich Avenue real estate . . . .” The stipulation also provided that the defendant, George P. Briggs, waived, released and relinquished “any and all of his right, title and interest in and to any distributive share, or any interest, of the estate of his late father, Alfred C. Briggs, Sr. . . .” Roger T. Briggs, as executor and landlord, and the defendant, as tenant, agreed to a reduction in the term of the lease at 401 Greenwich Avenue from “99 years to 75 years, thereby terminating on August 1, 2048 rather than August 1, 2073.” The stipulation anticipated that the defendant, George P. Briggs, would construct a commercial building at 401 Greenwich Avenue, provided that “these premises will either be leased, used by George P. Briggs in the operation of an ice-cream store or some other lawful purpose, or some combination of the foregoing.” The defendant, George P. Briggs, as tenant, and Roger T. Briggs, as executor and landlord, also agreed to modify the lease further in a manner that is at the heart of this dispute.

The stipulation states: “In addition to the rental payable under said lease for the remainder of the term thereof, as shortened hereunder, George P. Briggs shall pay to the landlord, on a quarterly basis, 25% of any and all net revenues generated in his favor by, and/or, at the building to be constructed at 401 Greenwich Avenue, irrespective of whether said income is the result of sub-leasing the same, or any portion thereof, or business operations conducted by George P. Briggs himself, his agents, servants or employees, or any corporation or business entity in which he has any interest whatsoever, at the subject premises. The landlord, upon sixty (60) days written request, shall have a right to independent verification and review of income and expense figures submitted by George P. Briggs, his agents, servants or employees, in the event of any dispute with respect to same.”

Another key portion of the stipulation, which is also the subject of this dispute, states: “The parties hereto agree that the rights and benefits of the landlord (to receive 25% of any and all net revenues generated in favor of George P. Briggs by, and/or, at the building to be constructed at 401 Greenwich Avenue) under and pursuant to paragraph 10 hereof are intended to be in favor of Roger T. Briggs, as executor, and Roger T. Briggs, Douglas J. Briggs, Alfred C. Briggs, Jr., and Nancy Briggs DeBolt individually and personally

On June 8, 1988, the defendant and Roger T. Briggs, executor, signed a twenty-year adjustable rate note in the amount of $850,000, with the Putnam Trust Company. The property located at 401 Greenwich Avenue was mortgaged to secure the note, and the defendant constructed a three story building on the site. The defendant leased the property to several residential and commercial tenants and has derived rental income from the property since 1988. Thereafter, the defendant, claiming that he had made no profit on the property, made no payments to the plaintiffs other than the base rent payments. In March, 1994, the plaintiffs filed an action in the Superior Court seeking to collect their portion of the defendant’s alleged net revenue, as specified in the stipulation. However, the stipulation did not define the term “net revenues.” During the trial, both the defendant and the plaintiffs provided varying definitions of the term “net revenues.”

The trial court found that the term “net revenues” was synonymous with “net income” and, taking the annual rental income for the years 1988 through 1999 and, subtracting the annual rental expense for the same period, determined that the defendant owed the plaintiffs $17,286.94.

I

The defendant claims that the court improperly defined the term “net revenues” contained in the stipulation and thereby disallowed deductions that should have been allowable when calculating his net revenue. At the outset, we observe that although the defendant repeatedly argues that the court improperly defined the term “net revenues,” he also states in his brief that he agrees with the court’s definition “100 percent.” We conclude that it is not necessarily the court’s definition to which the defendant objects; it appears to be, rather, the court’s method of calculating his “net revenues/net income” to which he objects. The defendant also argues that although finding the term “net revenues” to be synonymous with the term “net profits,” the “court went on to apply its own application of the term to the facts of this case [and its] calculation of damages does not follow ordinary and accepted definitions of ‘net revenues’ and ‘net profits.’ ”

As a preliminary matter, we observe that as to this claim the defendant misstates the court’s finding. He asserts in his principal brief that “[t]he trial court’s decision stated that ‘[t]he court, therefore, determines that, for purposes of this case, the terms “net revenues” and “net profits” are synonymous.’ ” The court, however, never found “net revenues” to be synonymous with “net profits.” Rather, the court specifically found, for purposes of the parties’ stipulation, that the term “net revenues” was synonymous with the term “net income.”

On the other hand, the plaintiffs, on cross appeal, concede that the court properly defined the term “net revenues” but claim that it improperly deducted some of the defendant’s obligatory expenses under the lease as modified by the stipulation when calculating his net revenue. We disagree with both parties’ claims.

We first determine the appropriate standard of review before analyzing the parties’ claims. Paragraph ten of the stipulation states that “George P. Briggs shall pay to the landlord, on a quarterly basis, 25% of any and all net revenues generated in his favor . . . .” The term “net revenues” is undefined in the stipulation, and the court found that, although “[t]he parties and their witnesses offered a number of definitions of the term . . . no one was able to testify definitively about the intentions of the parties when the stipulation was originally prepared.” The defendant argues that the term is unambiguous and is defined in both Black’s Law Dictionary and Ballentine’s Law Dictionary. Accordingly, the defendant argues, its construction is a question of law. The plaintiffs argue that the term is obviously ambiguous, and is, therefore, a question of fact. We agree with the plaintiffs.

“At the outset, we note the well settled principles of contract interpretation. ‘Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . When only one interpretation of a contract is possible, the court need not look outside the four comers of the contract.’ . . . Bentz v. Halsey, 54 Conn. App. 609, 616, 736 A.2d 931 (1999). On the other hand, ‘[w]hen an ambiguous term is at issue, the trial court can examine the extrinsic evidence to resolve the question of the parties’ intent.’ . . . Larson v. Jacobson, 38 Conn. App. 186, 190, 659 A.2d 753 (1995).

“ ‘Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion.’ Paul Revere Life Ins. Co. v. Pastena, 52 Conn. App. 318, 322, 725 A.2d 996, cert. denied, 248 Conn. 917, 734 A.2d 567 (1999), citing Levine v. Advest, Inc., 244 Conn. 732, 746, 714 A.2d 649 (1998). ‘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.’ . . . John M. Glover Agency v. RDB Building, LLC, 60 Conn. App. 640, 645, 760 A.2d 980 (2000).” Rund v. Melillo, 63 Conn. App. 216, 220, 772 A.2d 774 (2001).

Our review of the stipulation supports the plaintiffs’ argument that the term “net revenues” is ambiguous. The stipulation, itself, contains no definition of the term, and there is a reasonable basis for differences of opinion as to its exact definition. For example, on the one hand, the defendant argues that “net revenues” encompass such deductions as mortgage principal payments, loans that he made to the business operation and depreciation. On the other hand, the plaintiffs argue that “net revenues” do not include any of those proposed deductions of the defendant, nor does it include the obligatory expenses mandated by the lease. The parties cite no legal authority as to what expenses, as a matter of law, were allowable in calculating net revenues in this case. Discovering no clear interpretation of the term within our body of law or within the stipulation itself, we conclude that the term “net revenues” is ambiguous, as is its proper method of calculation. Accordingly, our review of a court’s construction of the stipulation is well settled.

“A judgment rendered in accordance with the stipulation of the parties is to be construed and regarded as a binding contract. . . . Construction of [a term in] such an agreement is an issue of fact to be resolved by the trial court as the trier of fact, and subject to our review under the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Albrecht v. Albrecht, 19 Conn. App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); see also Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 328, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 11-12, 807 A.2d 991 (2002).

We next determine, in light of the foregoing, whether the court’s findings were clearly erroneous. The court considered the words of the stipulation and found significant that the stipulation used the term “net revenues” interchangeably with the term “income.” This, the court noted, is demonstrated in paragraph ten of the stipulation, which states that the defendant is to pay his siblings “25% of any and all net revenues generated in his favor . . . irrespective of whether said income is the result of sub-leasing the same ...” (Emphasis added.) The court then found, for purposes of the stipulation, that the term “net revenues” was synonymous with the term “net income.” The court also found that “[depreciation expense [should be] disallowed [as a deduction] because, while permissible for [Internal Revenue Service] purposes, it does not reflect actual out-of-pocket payments made by the defendant.”

The court went on to calculate the defendant’s net revenues on the property for the years 1989 through and including 1999 by looking to the defendant’s federal tax returns. To calculate the defendant’s net revenues, the court took the defendant’s stated rental income for the property, as found on his annual tax returns, and then subtracted his itemized rental expenses, including those obligatory expenses referred to in the lease as incorporated into the stipulation, but excluding depreciation. This method of calculating revenues allowed the defendant to deduct all of the out-of-pocket rental expenses listed on his federal tax returns, with the exception of depreciation, which the court explained was not allowed because it did “not reflect actual out-of-pocket payments made by the defendant.” We also note that although the defendant took a deduction each year for depreciation expense on his federal tax returns, he has not established that he owns the building. The defendant, in his second motion for articulation, inter alia, asked the trial court to articulate who would own the building and fixtures at 401 Greenwich Avenue at the end of the lease term; the court, however, declined to so rule because the issue was not raised by any of the parties in their pleadings.

The plaintiffs, on cross appeal, argue that the court should not have permitted the defendant to deduct the obligatory expenses of the building, such as taxes, utilities, insurance, maintenance, etc., because the lease, as incorporated in the stipulation, specifically stated that it was the defendant’s sole obligation to pay these expenses. The plaintiffs argue that it is fundamentally unfair to allow the defendant to deduct expenses for which he agreed to be obligated.

In this case, the court specifically found that the itemized out-of-pocket expenses listed on the defendant’s federal tax returns, including those obligatory expenses mandated by the lease, were allowable deductions in calculating “net revenues.” In its memorandum of decision, the court reviewed the evidence before it and stated that Bassett, a certified public accountant, testified that “mortgage interest, taxes, insurance [and] utilities” were included in the calculation of “net revenues.” Additionally, we note that the stipulation, itself, specifically provided that “[t]he landlord, upon sixty (60) days written request, shall have a right to independent verification and review of income and expense figures submitted by George P. Briggs . . . .” (Emphasis added.)

Reviewing the evidence and the record provided to us in this case, without the aid of the trial transcript, we conclude that the parties have not established that the court’s definition or method of calculating net revenues was clearly erroneous. It is clear from the record that Alfred C. Briggs, Sr., wanted his property to be equally divided among his five children and, after realizing that he had given his son, the defendant, a sweetheart lease that encumbered a large portion of his estate for ninety-nine years, he sought to amend his will to require the executor to use legal means to break the lease with the defendant in an attempt to distribute more evenly the benefits of his estate upon his death.

After reviewing the record, the court’s memorandum of decision and its articulations, we are not left with the definite and firm conviction that a mistake has been made. We, therefore, conclude that the court’s definition of “net revenues” and its method of calculation in this particular case were not clearly erroneous.

II

We turn now to the plaintiffs’ second claim on cross appeal. The plaintiffs claim that the court improperly calculated their damages by totaling the defendant’s rental income for the entire period and then subtracting his itemized rental expenses, thereby arriving at a total for the entire period rather than for each individual yearly period. This method of calculation, they argue, improperly allowed the defendant to carry over or offset losses each year. They argue that because the defendant was to pay the landlords 25 percent of net revenues each quarter, the court should have determined damages on a yearly basis and not allowed the defendant to continue to carry over or offset losses. Because the defendant’s tax returns show income and expenses only on a yearly basis, the plaintiffs concede that the court could not have made a quarterly determination of net revenues, but argue that it should have made yearly determinations and not allowed the defendant to carry over or offset his losses from one year to the next. We agree with the plaintiffs.

“The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. ... In making its assessment of damages for breach of [any] contract the trier must determine the existence and extent of any deficiency and then calculate its loss to the injured party. The determination of both of these issues involves a question of fact which will not be overturned unless the determination is clearly erroneous.” (Internal quotation marks omitted.) Sablosky v. Sablosky, 72 Conn. App. 408, 416, 805 A.2d 745 (2002); see also Ridgefield v. Eppoliti Realty Co., supra, 71 Conn. App. 328.

“[W]here 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, those facts are clearly erroneous.” (Internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 609, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000).

In this case, although the stipulation stated that the defendant “shall pay to the landlord, on a quarterly basis, 25% of any and all net revenues,” the defendant’s tax returns provided the court with the necessary information to determine the defendant’s net revenues only on a yearly basis. In terms of the defendant’s annual rental income and rental expense, the court found the following for each period:

Year Annual Rental Income Annual Rental Expense

1988 $64,523 $81,114

1989 $108,632 $104,142

1990 $93,845 $142,116

1991 $52,994 $112,310

1992 $80,113 $98,205

1993 $116,765 $126,573

1994 $123,133 $96,234

1995 $127,212 $85,587

1996 $124,198 $97,275

1997 $137,036 $95,108

1998 $136,996 $90,873

1999 $155,983 $99,696

Despite making these specific findings, the court, rather than calculating the net revenues for each period, then proceeded to total each column and subtract the total annual rental expense in column two, $1,229,233, from the total annual rental income in column one, $1,321,430, thus arriving at the total net revenue, $92,197, for the entire period. The court then multiplied this total by the plaintiffs’ share of 0.1875 to arrive at a damages figure of $17,286.94. This method, however, improperly allowed the defendant to carry over or offset any losses sustained in any individual period.

The stipulation mandated that the defendant pay “on a quarterly basis, 25% of any and all net revenues . . . .” We see nothing in the language of the stipulation to suggest that had the defendant calculated his net revenues each and every quarter, as directed by the stipulation, he would have had the ability to carry over losses from one quarter to the next or to offset net revenues in one quarter with losses from another quarter. Rather, our reading of the stipulation suggests that in a quarter in which net revenues were generated, the defendant had the obligation to pay 25 percent of those net revenues to the landlords. In a quarter in which no net revenues were generated, the defendant had no obligation to make any net revenues payment. The court, by totaling the net revenues for the entire period, allowed the defendant to carry over or offset his losses by deducting the losses of one period from the net revenues generated in another period. The defendant points us to no evidence in the record, and our reading of the stipulation does not suggest, that the parties contemplated these offsets. Therefore, we conclude that it was clearly erroneous for the court to go beyond the terms of the stipulation and to award the plaintiffs less in damages than those to which they would have been entitled had the defendant not breached the stipulation. See Sablosky v. Sablosky, supra, 72 Conn. App. 416 (purpose of damages is to place parties in same position as if contract not breached); Ridgefield v. Eppoliti Realty Co., supra, 71 Conn. App. 328 (same).

When asked by the plaintiffs to articulate why the court chose not to calculate their damages per annum, the court responded, inter alia, that it was unable to calculate the defendant’s net revenues on a quarterly basis because his income tax returns showed annual income and expenses and that, “contrary to the plaintiffs’ assertion that the court should have taken into consideration only the years showing net profit, there is no guarantee, and there was no evidence presented, that those years did not include quarters showing a net loss.” We do not agree with the court that a loss in any given quarter would have made a difference in the determination of the net revenues for that annual period such as would be a detriment to the defendant. For example, if the defendant were to have losses in the first three quarters of a year, followed by net revenues in the fourth quarter, and if the court could have computed these figures on a quarterly basis as the stipulation requires, the defendant would have owed no additional rental payment to the plaintiffs for quarters one through three, but would have owed them payment for quarter four, even if the defendant showed a loss when considered for the entire annual period. Using the court’s method of calculation, not only does the defendant not have to pay the plaintiffs for the net revenues earned in a particular quarter, he does not have to pay them for the net revenues earned in a particular annum if he can offset the annual net revenues with a loss from another year.

Although, in this case, the court was unable to calculate the defendant’s net revenues on a quarterly basis as directed by the stipulation, the court should have followed the terms of the stipulation as closely as reasonably possible. Here, the court had the defendant’s tax returns for each year, and it calculated the gross rental income and the gross rental expense for each year. We conclude that the court, then, acted improperly when it did not calculate the net revenues for each individual year and when it failed to award damages for each year in which net revenues were achieved.

The judgment is reversed on the cross appeal only as to the award of damages, and the case is remanded with instructions to recalculate the damages for each year, without allowing the defendant to offset net revenues in one year with losses from another year. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       One of the original named plaintiffs in this action was Roger T. Briggs. Upon his death, his wife, Elizabeth Briggs, as trustee, was substituted as a party plaintiff. Following her death, but after judgment in this case, on February 5, 2002, Roger Briggs, as trustee, Patricia Briggs, as trustee, and Theresa Bridgman, as trustee, then were substituted as party plaintiffs by the Appellate Court.

       It is noted that the defendant’s recitation of the facts cites and relies on the transcript of the trial, which was never filed as part of the appellate record before us. The defendant, however, filed a certificate stating that a transcript was not deemed necessary for this appeal. See Practice Book § 63-4 (a) (3). The plaintiffs filed a similar certificate, but properly rely on the record rather than the transcript for their recitation of the relevant facts. Nevertheless, we do find the record adequate for review. See Practice Book §§ 61-10; 63-4 (a) (3).

       Douglas M. Briggs was not a party to this action.

       Black’s Law Dictionary (6th Ed. 1990) defines net revenues as “See Net Income; Net Profits.”

       Ballentine’s Law Dictionary (3d Ed. 1969) defines “net revenues” as “For most purposes, the same as net income.”

       The comí, in its memorandum of decision, also explained differences in testimony concerning the proper method of calculating net revenues: “The first named plaintiff, Alfred C. Briggs, Jr., testified that, to him, ‘net revenue’ equals gross revenue less commissions paid to real estate brokers only .... [The] [plaintiffs’ witness, Clifford Mallo, a licensed [certified public accountant], defined ‘net revenue’ similarly, but would allow a further deduction for rebated or discounted rent: ‘gross revenue less any return to the customer or allowances or in a case of rent it would be the gross rent received less any partial months refunded, or in cases of having agents rent the place it’s the net amount of revenue you receive from the real estate broker’ .... An additional witness for the plaintiffs, attorney John Meerbergen, who represented the estate of Alfred Briggs, Sr., in a summary process action concerning the subject property, testified that income less business expenses would be allowable if the defendant were operating an ice cream store on the property . . . otherwise, ‘mortgage payments would be paid, plus taxes, and then there would be a 25/75 . . . percent split’ .... [The] [defendant's witness, James Bassett, a licensed [certified public accountant], believed that the term ‘net revenues’ refers to ‘gross revenue, sometimes referred to as receipts, minus all operating expenses that are attributable to a properly. This would include mortgage interest, taxes, insurance, utilities. The IRS allows us to deduct something called depreciation also, and that usually results in a net profit or loss which is distributed to partners or shareholders’ . . . .”

       Although the defendant argues that the court improperly disallowed him a deduction for depreciation and principal payments, he points to nothing in the record to support his contention that these are expenses normally deductible in the calculation of net revenues, and we are unable to find support in the record upon our own review.

       The “landlord” entitled to 25 percent of the defendant’s net revenues include the three plaintiffs and Douglas Briggs. Because Douglas Briggs was not a party to this case, the percentage of net revenue to which he was entitled was not part of the court’s judgment. Therefore, rather than multiply the total net revenue by 0.25, which would represent the net revenues due to all of the landlords, the court multiplied it by 0.1875, which represented only the plaintiffs’ portion of the net revenues.


source: Caselaw Access Project

license: Public Domain

text:
    DARRYL JOHNSON ET AL. v. THANONGCHIT SOURIGNAMATH ET AL.
    (AC 22102)
    Mihalakos, Flynn and Hennessy, Js.
    Argued October 24, 2002
    officially released March 11, 2003

      Jeremiah Donovan, with whom was Terry Donovan, for the appellants-appellees (defendants).

      Howard M. Gould, for the appellees-appellants (plaintiffs).
   Opinion

FLYNN, J.

This case involves a right-of-way claimed to exist by the plaintiffs, Darryl Johnson, Denise Myers, Darlene Graves, Lori Johnson Jerome and the estate of Walter Rochette (Joan Rochette and Dawn O’Dell, trustees) over the lands of the defendants, Thanongchit Sourignamath, Bounthavy Sourignamath, D. Scott Ward and Kathleen A. Ward. The plaintiffs claimed that they had a right-of-way to Bokum Road in Old Saybrook either by deed or by prescription benefiting their approximately ten acre parcel of land. The defendants appeal from the judgment of the trial court finding that a deeded right-of-way exists in favor of the land of the plaintiffs over that of the defendants. The plaintiffs cross appeal, claiming that the trial court should not have dismissed their prescriptive easement claim prior to the resolution of the defendant’s appeal.

One of the issues raised by the defendants is whether any deeded right-of-way that the plaintiffs may have received from the title instruments in their chain over the defendants’ lands would have been extinguished by the Marketable Title Act. General Statutes §§ 47-33b through 47-331. Both parties raise arguments as to the significance of the act as it applies to their respective chains of title. The provisions of the act may be controlling, but we do not have a sufficient factual record to apply the act to this case, particularly as to the application of General Statutes §§ 47-33c and 47-33d, which provide, respectively, for marketable title where at least a forty year unbroken chain of title exists in land and the interests to which that marketable title may be subject.

The court, over the defendants’ objection, allowed the plaintiffs’ expert witness to testify as to some of the contents of the deeds in the plaintiffs’ chain of title without requiring that the deeds themselves be entered into evidence. Our Supreme Court in Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10-11, 513 A.2d 1218 (1986), quoted C. McCormick, Evidence (3d Ed. 1984) § 231, when it observed that “presenting to a court the exact words of a writing is of more than average importance, particularly in the case of operative or dispositive instruments such as deeds . . . where a slight variation of words may mean a great difference in rights.” (Internal quotation marks omitted.) See also New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 639-40, 136 A.2d 742 (1957). The instrument by which the plaintiffs claim ownership of the property is a certificate of devise from the Probate Court of Old Saybrook that transferred a piece of property from Elizabeth M. Rochette to four persons who are not named as plaintiffs. There is nothing in the evidentiary record or the pleadings that explains how the plaintiffs acquired title to this property from the persons named on the certificate of devise. Evidence needs to be taken on this issue. Finally, we need the trial court to determine the parties’ respective roots of title; see General Statutes § 47-33b (e); because these facts relate both to the existence of a marketable title and to whether any claimed appurtenant right-of-way or easement has been extinguished or still is an encumbrance over the estates claimed to be servient.

Pursuant to Practice Book § 60-2 (1), we have the authority to “order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .” Given the unique circumstances of this case where land titles are at issue, we conclude that the proper course of action is to remand the case for the submission of additional evidence, namely, the deeds or other title transactions in the plaintiffs’ claimed chain of marketable title by which they claim ownership of their land and the disputed easement. We remand the matter for further factual findings concerning the derivation of the plaintiffs’ ownership and for further findings as to the dates of the respective roots of title of each of the plaintiffs and the defendants. See generally Board of Education v. Freedom of Information Commission, 210 Conn. 590, 596-97, 556 A.2d 592 (1989) (remanded for further findings and any further evidence parties might submit), overruled in part on other grounds, Chairman v. Freedom of Information Commission, 217 Conn. 193, 201, 585 A.2d 96 (1991); Holland v. Holland, 188 Conn. 354, 363-64, 449 A.2d 1010 (1982) (remanded for further evidence and fully articulated memorandum of decision due to insufficient evidentiary record before reviewing court). This will allow us to exercise plenary review of the issues presented by this appeal. See Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 511, 757 A.2d 1103 (2000); Mizla v. Depalo, 183 Conn. 59, 63 n.8, 438 A.2d 820 (1981).

Our Supreme Court has observed that “[i]n the interests of justice, we have the power to remand a case for further proceedings even in the absence of reversible error by the trial court. See, e.g., Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 490-91, 460 A.2d 1297 (1983); Holland v. Holland, [supra, 188 Conn. 364]; State v. Gonzales, 186 Conn. 426, 436, 441 A.2d 852 (1982).” In re Final Grand Jury Report Concerning the Torrington Police Dept., 197 Conn. 698, 717, 501 A.2d 377 (1985). “We have not found that the trial court’s judgment was erroneous; instead we are ordering further proceedings to determine whether error has occurred.” Holland v. Holland, supra, 364 n.6.

The plaintiffs’ cross appeal relates to the trial court’s dismissal of count two of their complaint, alleging a prescriptive easement, on the basis of the court’s decision that the plaintiffs had proven the existence of a deeded easement in accordance with count one. The plaintiffs argue that the dismissal was premature in light of the defendants’ pending appeal as to count one. The defendants, in their reply to the cross appeal, agree that the trial court would be required to conduct further proceedings as to count two if the defendants’ appeal results in a reversal of count one. Because there was no motion to dismiss made by any of the parties, nor any claim by any of them that the court lacked either jurisdiction or authority to hear the plaintiffs’ claim as to prescriptive easement, we agree with the positions taken by the plaintiffs and defendants that the outright dismissal of count two was premature and not prudential. We conclude that the dismissal of count two must be reversed in light of our remand to the trial court for the receipt of additional evidence. Should the court after taking that evidence decide that its judgment as to count one should stand, however, the court should reserve decision as to count two pending the final resolution of the defendants’ appeal. Should the court after taking that evidence determine that the plaintiffs have not proved their right of access by deed, then the court should determine the plaintiffs’ claim as to prescriptive easement.

The trial court’s judgment is reversed as to the dismissal of count two, and the case is remanded with direction to order the submission of the deeds, maps or other pertinent records evidencing the plaintiffs’ ownership of the claimed dominant parcel and the claimed appurtenant easement, to allow any further evidence the parties might submit and to make additional factual findings. After a hearing, the trial court will have to determine whether the judgment previously rendered should be set aside in whole or in part or allowed to stand.

In this opinion the other judges concurred.

       When the plaintiffs asked their expert witness to testify as to the name Rochette appearing in the deeds in their chain of title, the defendant objected as follows: “[Ojbjection, this is hearsay. I don’t mind the deeds being introduced. But to have him testify to what the deeds say is hearsay.” The court overruled the objection and the deeds were never entered into evidence. Although experts may rely on hearsay in reaching their opinions; see George v. Ericson, 250 Conn. 312, 321, 736 A.2d 889 (1999); in this instance the expert was not conveying an opinion, but rather was being asked to recite the very language contained in the documents.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. BRYAN LINDO
    (AC 22833)
    Foti, Dranginis and West, Js.
    Argued December 6, 2002
    officially released March 11, 2003

      Glenn W. Falk, special public defender, with whom, on the brief, was Michael T. Morley, law student intern, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Gail P. Hardy and Robin Lipsky, assistant state’s attorneys, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Bryan Lindo, 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 he was deprived of his rights to due process and a fair trial pursuant to the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut because of prosecutorial misconduct during closing argument and cross-examination of him that precluded the jury from giving fair consideration to his affirmative defense of extreme emotional disturbance. He also claims that the court improperly instructed the jury on the affirmative defense of extreme emotional disturbance. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Nadine Davis, had known each other for a number of years and had two children together. In 1997, they moved into an apartment on Mahan Street in Waterbury. In 1998, the defendant discovered that the victim had gone on a trip with a man, Charles “Terry” Douglas, whom the defendant had suspected for years of having an affair with the victim. He also learned of a second trip taken by the two that same year. On one occasion, during an argument concerning Douglas, the defendant grabbed the victim and shook her. Around that time, the defendant moved out of the apartment, but continued to visit by using the children to gain access. On June 9, 1998, while on one of these visits, he played the victim’s answering machine tape and heard Douglas say, “I love you.” At 1 a.m. the following day, he returned to the victim’s apartment, awakened her and confronted her with his allegations. He head butted her and left. The victim, on the following day, obtained an ex parte restraining order, which was served on the defendant.

On July 15, 1998, the defendant, who had obtained a key from one of his daughters, went to the apartment with a knife wrapped in a towel; nevertheless, he left the apartment without incident. He returned to the apartment, however, on July 18, 1998, at 9:30 a.m. and confronted the victim about someone he thought he saw leaving out the back door. He chased the victim from her apartment and killed her in the parking lot with a knife. The defendant stabbed the victim numerous times and slashed her throat. There were two witnesses to the killing. The defendant ran from the scene, taking the murder weapon with him. Before dying, the victim named the defendant as her assailant. The defendant thereafter admitted that he killed the victim. Where necessary, additional facts will be supplied.

I

The defendant first claims that the prosecutor’s closing argument precluded the jury from giving his affirmative defense of extreme emotional disturbance fair consideration, thus depriving him of due process and a fair trial. The defendant preserved some of the claimed remarks for review by objecting at trial. His claim, however, also includes statements that were not properly preserved. He seeks review of those statements pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

“Prosecutorial misconduct may . . . occur in the course of closing argument. . . . Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . .

“[T]o determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. ... To make this determination, we must focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” (Internal quotation marks omitted.) State v. Morgan, 70 Conn. App. 255, 284-85, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

“When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial. ’ ’ (Internal quotation marks omitted.) State v. Williams, 65 Conn. App. 449, 466, 783 A.2d 53, cert. denied, 258 Conn. 927, 783 A.2d 1032 (2001).

“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Citation omitted; internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 306, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001). Furthermore, our Supreme Court in Brown reaffirmed that a defendant’s Golding claim will not be successful if the alleged misconduct “merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial.” (Internal quotation marks omitted.) Id.

Accordingly, we analyze the defendant’s claims under a two step process. First, we determine whether the challenged statements were improper and, second, if so, we determine whether they caused the defendant substantial prejudice. See State v. Garrett, 42 Conn. App. 507, 515-16, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996).

The prosecutor commented to the jury in her rebuttal argument: “So, what [the defendant is] really saying to you for most of his defense is [that] this [is] extreme emotional disturbance, and I sat here and I listened just like you sat here and listened, and you say to yourself, where is it? Where is it? Is he really trying to say to you, the jury, that he had a right because that is what you need to find? What it is, it’s a justification for the conduct. It’s saying, okay, I did it, but because of the circumstances, I was justified in doing — understand why I did it. So, is he really standing up here and saying to you that because — he felt that Nadine Davis might have been involved with this man [Douglas], that created circumstances that were so emotional for him that it allowed him to stab her seventeen times? Think to yourself if that makes any sense.”

Thereafter, in conclusion, the prosecutor argued regarding extreme emotional disturbance that “to say, yes, it’s okay that he did that because he was under such emotion is to justify every form of domestic violence and almost every form of murder.” The defendant argues that “[t]hese comments grossly perverted the true nature of the affirmative defense and essentially stigmatized jurors considering it.” The defendant failed to object at trial to those statements and concedes that, in part, his claim is unpreserved.

The defendant also asserts that there were additional comments by the prosecutor that were “legally incorrect arguments and analogies that were substantially likely to mislead the average juror in weighing [the defendant’s] claims.” In both instances, the court overruled the defendant’s objection.

The prosecutor argued: “This is not a case — you know, sometimes you have these cases of extreme emotion and you have an issue of — something that you may have heard, an idea of overkill. Somebody is standing over a body and just shooting, shooting, shooting an empty gun even at that point into the body, stabbing, stabbing, stabbing, having no concept. We’re not seeing that here . . . .”

The prosecutor also argued: “Last night, I was reading over the testimony of the defendant .... [The defense attorney] says to him, well, why did you stab her, and [the defendant] says, maybe out of frustration, anxiety. I can’t say. I don’t know. He doesn’t say he lost it. He doesn’t say it’s an extreme reaction .... He’s saying to you, I don’t even know, I can’t even say. If he can’t even say, how can you, the jury, assume it by a preponderance of the evidence?”

We first . address the unpreserved statements. Because the record is adequate for review and the defendant has alleged a claim of constitutional magnitude by asserting that the statements deprived him of his right to a fair trial, we proceed by considering whether under Golding's third prong he can show a clear constitutional violation that deprived him of a fair trial.

The defendant never claimed justification as a defense. See General Statutes § 53a-16. The defenses of justification and extreme emotional disturbance are separate and distinct. When the prosecutor stated that “what he’s really saying to you for most of his defense is [that] this [is] emotional disturbance” and then, “[w]hat it is, is justification for the conduct,” she improperly attempted to introduce an extraneous factor into the affirmative defense of extreme emotional disturbance. We cannot accept that the use of “justification” is being misinterpreted, as the state claims in its brief, because it was used only to “convey the legal requirement that the defendant must prove [extreme emotional disturbance] ‘for which there was a reasonable explanation or excuse.’ ” The state did not characterize extreme emotional disturbance as a justification defense, but came very close to implying to the jury that if the jury accepted the defendant’s extreme emotional disturbance defense, that would be the same as finding that he was justified in the killing of the victim. As such, the statements were improper. Taken as a whole, however, the prosecutor’s remarks did not undermine the defendant’s extreme emotional disturbance defense or make a difference in the outcome.

Our review of the record shows that the court expressly stated in its charge to the jury that the arguments and statements by the attorneys were not evidence in the case and that the jury was to accept the law as given by the court. The court instructed the jury on the affirmative defense of extreme emotional disturbance. Without any indication to the contrary, we presume that the jury followed the court’s instructions. See State v. Velasco, 253 Conn. 210, 246, 751 A.2d 800 (2000); State v. Rivera, 61 Conn. App. 763, 773, 765 A.2d 1240, cert. denied, 256 Conn. 901, 772 A.2d 599 (2001). The record does not disclose any indication that the jury disregarded those instructions. Although we find that portions of the prosecutor’s statements were improper, we conclude that the defendant’s claim fails to satisfy the third prong of Golding because, as a whole, the statements did not substantially prejudice him so as to deprive him of a fair trial.

As to the statements that were objected to at trial, we do not find them to be improper. Remarks that are nothing more than a permissible appeal to the jurors’ common sense do not constitute prosecutorial misconduct. See State v. Downing, 68 Conn. App. 388, 399, 791 A.2d 649, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002). The state also is entitled to comment on the weaknesses in the defendant’s case and on the strength of its case. State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985). The state is free to remark on the defendant’s failure to support his factual theories; State v. Kluttz, 9 Conn. App. 686, 708, 521 A.2d 178 (1987); as was the situation in this case, in which the defendant could not articulate his state of mind at the time of the killing.

We cannot conclude that the prosecutor’s statements precluded the jury from giving his affirmative defense of extreme emotional disturbance fair consideration or otherwise deprived him of due process and a fair trial. The defendant has failed to meet his burden of proving that the remarks were substantially prejudicial in light of the whole trial.

II

The defendant next claims that on two occasions during her cross-examination of him, the prosecutor engaged in “severely prejudicial misconduct” that deprived him of his right to have the jury duly consider his testimony, which was the basis of his extreme emotional disturbance defense. Specifically, the defendant claims that “the prosecutor repeatedly took the opportunity to testify herself, ask impermissible questions designed to inflame the passions of the jury, misdirect the jury’s attention to irrelevant issues, introduce facts not in evidence and wrongly attack [the defendant’s] credibility.”

Without the necessity of repeating each and every question, objection and court action, it suffices to say that our review of the record discloses that the court admonished the prosecutor on numerous occasions to ask the question and give the defendant the opportunity to answer. The court intervened many times during the cross-examination, after which the defendant filed a motion for a mistrial. He claimed that he was deprived of a fair trial and that the prosecutor’s comments had caused substantial and irreparable prejudice to his case. The court denied the motion.

“The principles that govern our review of a trial court’s ruling on a motion for a mistrial are well established. Appellate review of a trial court’s decision granting or denying a motion for a [mistrial] must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In [its] review of the denial of a motion for mistrial, [our Supreme Court has] recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 257, 780 A.2d 53 (2001). We further reiterate that “[t]he standard that we follow in analyzing constitutional due process claims that allege prosecutorial misconduct is the fairness of the trial rather than the culpability of the prosecutor’s conduct.” Id., 262.

In denying the motion for a mistrial, the court, along with making other findings, concluded that any improprieties were cured by its instructions and admonishments, and had no bearing on the critical issue of the defendant’s intent, and, therefore, did not have an adverse effect on his defense of extreme emotional disturbance.

Although we are disturbed by some of the prosecutor’s remarks and actions, on the basis of our review of the record, we agree with the well reasoned analysis of the court and conclude that the conduct complained of was not substantially prejudicial in the context of the entire trial as to deny the defendant due process and a fair trial. Accordingly, we further conclude that the court did not abuse its discretion and properly denied the defendant’s motion for a mistrial.

Ill

The defendant next claims that the prosecutor impermissibly injected irrelevant and highly prejudicial considerations into the jury deliberations by cross-examining him about his status as an illegal immigrant.

During the cross-examination, the following colloquy took place:

“[Prosecutor]: And isn’t it, in fact, true that you’re not legally here?

“[Defendant]: Yes.

“[Prosecutor]: You’re a citizen?

“[Defendant]: I’m not a citizen.

“[Prosecutor]: So, what is your status?

“[Defendant]: My status is one that my mom has filed for me.

“[Prosecutor]: No, what is your permanent status with [the United States Immigration and Naturalization Service (INS)]?

“[Defendant]: It’s one which my mom has filed for permanent residence with me.

“[Prosecutor]: Are you, in fact, aware that INS . . . lists you as being illegally here?

“[Defendant]: No, I’m not aware of that.”

The defendant did not preserve his claim at trial and now argues that it warrants Golding review. We do not agree and decline to review his unpreserved evidentiary claim, which masquerades as a constitutional claim of prosecutorial misconduct. See State v. Barber, 64 Conn. App. 659, 671, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001). We do not afford review of an unpreserved evidentiary claim. State v. Teel, 42 Conn. App. 500, 504-505 n.5, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996).

IV

The defendant’s final claim posits that the court improperly instructed the jury as to his affirmative defense of extreme emotional disturbance. Specifically, he argues that the court incorrectly used the phrase “extremely unusual or overwhelming state” to define and to explain extreme emotional disturbance. The defendant claims that the jury instructions were “constitutionally deficient,” thereby requiring reversal of the judgment under plain error review or Golding review.

“Extreme emotional disturbance operates as a partial affirmative defense to murder. One who kills while under the influence of an extreme emotional disturbance cannot be convicted of murder but can be found guilty of manslaughter.” State v. Fair, 197 Conn. 106, 108, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986).

To prevail, a defendant must persuade the trier of fact, by a preponderance of the evidence, that “(1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (3) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions.” (Internal quotation marks omitted.) State v. Patterson, 229 Conn. 328, 341, 641 A.2d 123 (1994); see also State v. Melendez, 74 Conn. App. 215, 225-26, 811 A.2d 261 (2002).

The defendant filed a request to charge, asking the court to instruct the jury that he “was exposed to an extremely unusual and overwhelming stress that [was] more than mere annoyance or unhappiness” and that he “had an extreme emotional reaction to that state, as a result of which there was a loss of self-control . . . .” (Emphasis added.)

Golding review is not warranted, as an improper jury instruction concerning the affirmative defense of extreme emotional disturbance is not of constitutional dimension. State v. Austin, 244 Conn. 226, 244, 710 A.2d 732 (1998); State v. Foreshaw, 214 Conn. 540, 546, 572 A.2d 1006 (1990). As a general rule, a party cannot be heard to complain about an instruction when he himself has requested it and the claimed error is not of a constitutional dimension. State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985).

Additionally, the defendant’s claim does not warrant review under the plain error doctrine, which provides in relevant part that we “may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” Practice Book § 60-5. To prevail under that doctrine, the defendant must show that the claimed error is so clear and harmful that manifest injustice would result in failing to reverse the judgment. Review is not undertaken unless the error is so obvious that “it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Lindstrom, 46 Conn. App. 810, 817, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997).

Our review of the jury instruction on extreme emotional disturbance leads us to conclude that there is no reasonable possibility that it misled the jury; it was given substantially as requested and was sufficient to guide the jury to a correct verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . 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 . . .

       Although the defendant claims his due process rights were violated under both the United States constitution and the constitution of Connecticut, he has not provided a separate analysis for his state constitutional claim. Accordingly, we deem it abandoned and will not afford it review. See State v. Hill, 58 Conn. App. 797, 799-800 n.4, 755 A.2d 919, cert. denied, 254 Conn. 936, 761 A.2d 763 (2000); see also State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992) (providing tools of analysis to be used to construe contours of state constitution).

       Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The court reasoned: “I think that it’s rather clear, and it was certainly clear on Friday, that the court did not feel that the manner in which the cross-examination was being conducted was appropriate. There is no question that rhetorical questions were asked and that statements were made, and that those, in many instances, were inappropriate. The question, however, for the court is not whether appropriate questions were posed or inappropriate statements were made, but rather, whether or not those statements were so prejudicial as to deny the defendant his constitutional right to due process.
      “Essentially, the statements and rhetorical questions fall into two categories. Category of statements which were reiterative of testimony previously given. And while that is inappropriate, on balance, looking at all the testimony in the case, the court concludes that those statements in and of themselves, taken in their totality, are not sufficient basis to grant the defense’s motion for a mistrial. Because . . . those were facts already in evidence. And they weren’t repeated time and time again. [They] were stated and, in some instances, stated in response to answers given by the defendant that were oblique or less than candid or carefully crafted to create an impression that was inconsistent with other testimony in evidence. The court notes that the defendant in providing those kinds of responses may have, in fact, invited some of those statements.
      “As far as the severity is concerned, given the fact that most of those statements again were statements of fact already in evidence, minimize, to a great extent the severity of those statements and questions. ... So, in that sense, they are truisms which certainly could have been stated by counsel during their closing argument, and so the timing of the statement by the state certainly would not deny the defendant his constitutional rights to due process. Were these statements and rhetorical questions pertinent to the central issue in the case? The central issue in this case is really the defendant’s mental state at the time, and the defendant indicated on the [witness] stand that he didn’t know what his mental state was, and none of these rhetorical questions and none or these statements dealt with the defendant’s mental state at the time and, therefore, none of them deal with the central issue in this case. . . .
      “[I]f the court is to balance to determine whether or not due process has been denied, then the court would be remiss in ignoring the strength of the state’s case and, in this instance, the state’s case is extremely strong. Two eyewitnesses testified at some length as to what they saw, two eyewitnesses to the entire episode and yet another eyewitness to aportion of that episode. There is no medical testimony . . . whatsoever, and while that is not in and of itself a reason for that defense to be affected to fail, certainly that minimizes the strength of the defense case and, in light of the incredible strength of the state’s case, that is the significant factor which the court has got to consider in that balancing.
      “The court did admonish the jury three times during the course of the cross-examination, which cast [the prosecutor] in a very poor light while at the same time the defendant maintained his composure, maintained his focus and, quite frankly, I believe made the better impression of the two, and so I do not believe that the cross-examination of the defendant harmed him in any way. If anything, it made him look magnanimous by comparison. The other category of statements, well, say, i.e., that Nadine Davis is not here, that she is dead, those statements clearly were made, in my mind, to inflame the jury’s passions. Question is, did they inflame the jury’s passions? Question is, if they did, to what extent did they inflame the jury’s passions? The mere statement that Nadine Davis is dead pales by comparison to the numerous autopsy photographs of her body and the various seventeen individual wounds to her body; pales by comparison to the eyewitness testimony, to eyewitness testimony, to the effect that the defendant grabbed her by her hair, yanked her head back and sliced her neck with the most— the deepest penetrating cut of all seventeen.
      “Nothing could begin to be more prejudicial to the defendant than that testimony and those pictures. Statements made by [the prosecutor] were mild by comparison. On balance, the court concludes that the defendant was not so unduly prejudiced by the impropriety of statements made during cross-examination as to deny him a fair trial; that, on balance, the cross-examination was harmful to the state and, in fact, beneficial to the defendant, whose composure and adherence to his position made him look like he was being victimized and created sympathy on the part of the jury for the defendant, not for the victim. For those reasons, the defense motion is denied.”
      The court instructed the jury on that issue as follows: “During cross-examination, the state made repeated statements and asked repeated rhetorical questions, and I remind you that statements of counsel are not evidence and cannot be considered by you. Also, many of those statements and questions could have the effect of evoking sympathy for the victim, Nadine Davis. Ladies and gentlemen of the jury, sympathy has no place in this case; sympathy has no place in your deliberations. Your job is to dispassionately and objectively apply the law as I have described it to the facts as you find them to be based upon the evidence in this case and not on the statements of counsel which do not, I remind you, constitute evidence. As I admonished you during cross-examination, you are, therefore, ordered to disregard the statements and rhetorical questions of [the prosecutor].”

       In one instance, the prosecutor remarked about the victim being unavailable to refute the defendant’s testimony on a point. The jury was ordered to disregard that remark. The prosecutor, however, again later began to remark before the jury about the victim’s unavailability, and the defendant objected. The court again instructed the jury to disregard the question. The prosecutor then commented, “correct,” when the defendant, in answer to a question, responded that the victim did not need his permission to go on a trip without him.

       See footnote 3.

       See footnote 3.


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. WILLIAM PAGAN
    (AC 22048)
    West, Landau and McDonald, Js.
    Argued September 25, 2002
    officially released March 11, 2003

      William Pagan, pro se, the appellant (defendant), filed a brief.

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Kevin Doyle, assistant state’s attorney, for the appellee (state).

       The defendant did not appear for oral argument. Consequently, only the state presented oral argument.

   Opinion

LANDAU, J.

This appeal arises from the judgment rendered when the trial court denied the motion to correct an illegal sentence filed by the pro se defendant, William Pagan. The basis of the defendant’s motion to correct is the representation made by the prosecutor at sentencing as to the amount of heroin in the defendant’s possession, which the defendant claims was inaccurate. On appeal, the defendant claims that (1) the court violated his state and federal constitutional rights to due process by denying his motion to correct an illegal sentence and (2) the prosecutor was guilty of misconduct by misinforming the court of the amount of heroin in the defendant’s possession. Because the prosecutor’s representation regarding the amount of heroin in the defendant’s possession was irrelevant to the charge to which the defendant pleaded guilty, we affirm the judgment of conviction.

The following facts are relevant to the defendant’s appeal. In November, 1999, the defendant was arrested subsequent to the execution of a search warrant for his residence at 125 Second Avenue in West Haven. The police seized drug paraphernalia, more than $12,000 in cash and a large quantity of heroin, cocaine and phencyclidine (PCP). In his statement to the police, the defendant admitted that the narcotics belonged to him and that the cash was from the sale of narcotics. The defendant initially was charged with three counts of possession of narcotics in violation of General Statutes § 21a-279 (a), three counts of sale of illegal drugs in violation of General Statutes § 2 la-278 (a) and one count of use of drug paraphernalia in violation of General Statutes § 21a-267 (a).

On March 15, 2000, the defendant pleaded guilty, pursuant to the Alford doctrine, to a substituted information charging him with possession with intent to sell more than one ounce of heroin in violation of § 21a-278 (b). During the course of the defendant’s plea proceeding, the prosecutor articulated the factual basis for the charges against the defendant, specifically stating that the officers who executed the search warrant found approximately two pounds of heroin in small cylinders in the premises.

The court canvassed the defendant and found that he was making his plea willingly, voluntarily and knowingly, and that he was represented by counsel. The court’s canvass of the defendant included the following inquiry:

“The Court: And are you also pleading under the Alford doctrine because you recognize that the sentence you are about to receive, eighteen with the nonsuspendable five, the minimum mandatory, is a lesser sentence than you could receive because the maximum sentence is twenty years? Do you understand that, sir, as well?

“Defendant: Yes.”

The court also found the defendant guilty of having violated § 2 la-278 (b) and ordered a presentencing investigation. The court sentenced the defendant to eighteen years in prison, five years of the sentence were mandatory. The defendant filed a motion to correct his sentence pursuant to Practice Book § 43-22. The court denied the defendant’s motion to correct and his motion for reconsideration. The defendant appealed.

I

The defendant’s first claim is that the court improperly denied his motion to correct an illegal sentence and, in doing so, violated his right to due process pursuant to article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the United States constitution. We disagree.

In his motion and on appeal, the defendant claims that the court relied on inaccurate information at sentencing, specifically the amount of heroin in his possession at the time the search warrant was executed. At sentencing, the prosecutor represented to the court that with the defendant’s arrest, $3 million worth of pure heroin was removed from the streets. The defendant’s counsel took issue with the amount of narcotics involved, stating to the court: “To my understanding, the amount of narcotics in this particular case was only about 200 grams, not that I am trying to say that that quantity of narcotic is not a considerable amount of narcotics, but it certainly is not anywhere near $3 million worth of narcotics. ... I am not saying that it is not a serious matter because it was 200 grams, not $3 million. I think the record should be clear for whatever future position [the defendant] has with parole, but that is what the case was.”

The court responded to defense counsel as follows: “And in the presentencing investigation, it is recited that, ‘Located during the search was $12,310 in United States dollars, 988 grams of a white powdery substance, field tested positive for heroin, thirty-eight grams white powder tested positive [for] cocaine and fourteen grams of white powdery substance, PCP.’ ” Defense counsel responded that the presentencing report the defendant received indicated that only 200 grams of heroin were found. The court sentenced the defendant to eighteen years in prison, five of which were mandatory.

The court denied the defendant’s motion to correct an illegal sentence and subsequent motion for reconsideration. When articulating its reasoning, the court cited the language of the statute the defendant was charged with violating, i.e., § 21a-278 (b), which provides in relevant part that “[a]ny person who . . . possesses with the intent to sell or dispense . . . any narcotic substance . . . .” The court noted that the quantity of narcotics is not an issue in the statute. Furthermore, the court found that the substituted information alleged, at the time of the defendant’s guilty plea, that the defendant was accused of possession with intent to distribute greater than one ounce of heroin. Also, the toxicology report of February 9, 2000, concluded that the weight of the heroin was 47.49 grams, equaling 1.67 ounces. The court concluded that no evidentiary hearing was required.

We review claims that the court improperly denied the defendant’s motion to correct an illegal sentence under an abuse of discretion standard. See State v. Henderson, 8 Conn. App. 342, 344-45, 512 A.2d 974, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986), cert. denied, 479 U.S. 1092, 107 S. Ct. 1304, 94 L. Ed. 2d 159 (1987). “The jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act.” State v. Tuszynski, 23 Conn. App. 201, 206, 579 A.2d 1100 (1990). “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” Practice Book § 43-22. “An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Internal quotation marks omitted.) State v. Constantopolous, 68 Conn. App. 879, 882, 793 A.2d 278, cert. denied, 260 Conn. 927, 798 A.2d 971 (2002).

“We recognize the principle that a sentence imposed within statutory limits is generally not subject to review. ... A judgment of conviction must conform to the crime with which the defendant was charged, and the sentence imposed must conform to that crime.” (Citation omitted; internal quotation marks omitted.) State v. Mollo, 63 Conn. App. 487, 490, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001). “Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates [the] defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises .... 8A J. Moore, [Federal Practice (2d Ed. 1984) para. 35.03 [2], pp. 35-36 through 35-37].” (Emphasis added; internal quotation marks omitted.) State v. McNellis, 15 Conn. App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).

On the basis of our review of the record, we conclude that the defendant was not illegally sentenced. There was no trial, the defendant pleaded guilty to possession with intent to sell more than one ounce of heroin under the Alford doctrine. The prosecutor’s comments were not evidence, and the state was not required to prove anything in view of the defendant’s guilty plea.

The amount of heroin in the defendant’s possession was irrelevant and immaterial to his sentence. Defense counsel conceded that the defendant was in possession of more than 200 grams heroin. The defendant was charged under § 21a-278 (b), which provides in relevant part that “[a]ny person who . . . possesses with the intent to sell . . . any narcotic substance . . . for a first offense shall be imprisoned not less than five years nor more than twenty years . . . .” General Statutes § 21a-278 (b). “Only the essential elements of the crime charged need be proved by the state. Therefore, any allegations in the information [that are] not essential to prove the elements of the crime charged need not be proved. Only the essential elements need be proved, and any allegations, any information that is not essential to that does not have to be proved.” (Internal quotation marks omitted.) State v. Torres, 24 Conn. App. 316, 321, 588 A.2d 232, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991). There is no dispute that the defendant was in possession of heroin with intent to sell. He was sentenced to eighteen years in prison, which is a sentence within the parameters of the statute. The court, therefore, did not abuse its discretion in denying the defendant’s motion to correct an illegal sentence.

II

The defendant’s second claim is that the prosecutor was guilty of misconduct by misrepresenting the amount of heroin in the defendant’s possession. We disagree.

The defendant claims that the prosecutor misrepresented to the court that at the time of the arrest, the defendant was in possession of two pounds of heroin valued at approximately $3 million. As we concluded in part I, the amount of heroin and its value were not relevant to the sentence imposed by the court.

It is well known that appellate courts do not make findings of fact. See State v. Webb, 238 Conn. 389, 535, 680 A.2d 147 (1996). Appellate courts, however, review the whole record and do not overlook material contained in the trial court’s file or the appendix to the defendant’s brief. We may take judicial notice of the contents of the court’s file. See State v. Gaines, 257 Conn. 695, 705 n.7, 778 A.2d 919 (2001). Here, the court file contains page nine of the final report from the scientific services toxicology division, which also is in the appendix to the defendant’s brief. See footnote 7.

The judgment is affirmed.

In this opinion the other judges concurred.

       William Pagan is an apparent alias, as the defendant’s legal name is Jose Rosario.

       In resolving the defendant’s claims in this manner, we do not imply that the prosecutor’s representation to the court was incorrect.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” (Internal quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.1, 772 A.2d 690 (2001).
      The defendant elected to plead under the Alford doctrine in return for a recommended sentence of eighteen years in prison, with a mandatory term of five years, rather than the maximum twenty years in prison that he faced if convicted of the crimes alleged in the initial information. The state also agreed to nolle certain other charges that were pending against him in return for the plea. The sentences to be imposed on the defendant for his prior arrests were to be served concurrently with the sentence imposed in this case. The defendant also had pending criminal matters in New York that, of course, were not part his plea bargain.

      The substituted information alleged in relevant part: “Assisiant State’s Attorney . . . accuses [the defendant] of possession wi1h intent to distribute greater than one ounce of Heroin and charges that at the Town or City of West Haven on or about the 6th day of November 1999, in the early morning hours at 125 Second Avenue, the said [defendant] did possess, with intent to sell to another person, approximately 2 pounds of Heroin in violation of Connecticut General Statutes [section] 21a-278 (b).”

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended . . . .”

       In addressing the court, defense counsel also made the following observations. “The defendant had two prior felony convictions in New York State. He was on parole in New York State. He has an open A1 felony in New York State and he had a case in New Haven. He had this particular case, and they indicted him on a false representation case; also, that is before the court. I think we also negotiated that. Under the circumstances, I also have been able to work out a plea on the New York case; that he will receive concurrent time on the New York, Bronx, matter with the Connecticut sentence. I have not been able to work out anything with regard to the parole violation because that will be taken up with parole when he gets to the division of parole, since it is impossible at this time to do it. Under those circumstances, those are a very long sentence. To my thinking, and I don’t want to put myself in the position of the prosecutor, it was my analysis that it was the best that we can do. It is a sentence that gives him latitude to try to get out in time of maybe eight years or maybe half of whatever time parole here decides. He has approximately that much time in a — looking at that much time in New York to run concurrent with this time. So, under those circumstances, I recommend that [the defendant] take this particular sentence. I saw no real vital defense on the search warrant. There were bail-jumping charges that could have been placed in this particular case. There were bail jumping charges that were potentially open in the Bronx. What happened was that [the defendant] hit the end of the line and it ended here. It is a harsh sentence, but that is just the way it is.”

       The presentencing investigation report includes the final report from the scientific services toxicology division of the department of public safety. Page nine of the final report, which is included in the appendix to the defendant’s brief, contains the following summary: “Total weight of powder containing heroin . . . 902.331 grams = 1 lb., 15.82 ounces. . . . Total weight of Heroin as Free base in items . . . 47.49 grams = 1.67 ounces.”

       During oral argument, the assistant state’s attorney brought to this panel’s attention, the case of State v. Francis, 69 Conn. App. 378, 793 A.2d 1224, cert. denied, 260 Conn. 935, 802 A.2d 88, cert. denied, 537 U.S. 1056, 123 S. Ct. 630, 154 L. Ed. 2d 536 (2002). In Francis, the panel held that the trial court lacked jurisdiction to consider the defendant’s claim under Practice Book § 43-22 where the motion to correct the illegal sentence did not attack the validity of the sentence as exceeding the maximum statutory limits, did not violate a mandatory minimum sentence, did not violate double jeopardy rights and was neither ambiguous nor internally contradictory. Id., 384. The holding in Francis is not consistent with State v. McNellis, supra, 15 Conn. 444. McNellis has not been overruled by an en banc panel of this court or by our Supreme Court.

       In his reply brief, the defendant claims that he was illegally sentenced because he is drug-dependent. That claim was not raised in the trial court and, therefore, we will not afford it review. See Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995). Even if the defendant had requested review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which he did not, his claim would fail because the record is inadequate for our review. See State v. Feliciano, 74 Conn. App. 391, 401-402, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d 110 (2003).