author: BEACH, J. BORDEN, J.,

text:
    STATE OF CONNECTICUT v. RICHARD SANTOS, JR.
    (AC 31071)
    Gruendel, Beach and Borden, Js.

      Argued February 20
    officially released November 5, 2013

      Heather M. Wood, assistant public defender, for the appellant (defendant).

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Stacey M. Miranda, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Richard Santos, Jr., appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1); unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a); and carrying a dangerous instrument in violation of General Statutes § 53-206 (a). On appeal, the defendant claims that (1) his right to confront an adverse witness was compromised by the trial court’s limitations on the disclosure and use of that witness’ psychiatric records, and (2) the court erred by denying his motion to dismiss or, in the alternative, his request for an adverse inference instruction, because purportedly material evidence was unavailable. We disagree with both claims, and, accordingly, affirm the judgment of the court.

The record reveals the following relevant facts and procedural history. In the early morning hours of February 3, 2007, a stabbing occurred at 79 Foster Street, a red brick crack house in Meriden. The house was being rented to E.P., the so-called “landlord” of the premises, who had resided there for seven years. The defendant had been staying in a room on the second floor for about six weeks. Drug addicts and dealers were frequent visitors to 79 Foster Street. The dealers would give E.P. crack cocaine in exchange for access to his chemically dependent houseguests. As the defendant described the scene: it was “[a] house where you can go get high and stay over the night; if you had drugs, the door was going to open.”

During the winter of2007, E.P. was “extremely dependent” on crack. On the day the stabbing occurred, he had been getting high for about twenty-four hours straight, taking breaks only to sleep. The defendant, likewise, had been smoking crack for several days straight and, consequently, was “[t]ired, exhausted, paranoid, [and] cracked out.”

Kewon Potts had been hanging out at 79 Foster Street on the afternoon of February 2, 2007, and had had an argument with the defendant over what the defendant perceived to be a low offer by Potts to buy a large crack rock. The defendant apparently also had taken issue with Potts’ poor treatment of Potts’ girlfriend, who spent time at 79 Foster Street. After the argument, Potts left. Later that day, the defendant said of Potts that, if he returned, “there might be trouble.”

At about 1 a.m., Potts was walking home from a friend’s house on the comer of Foster and Lincoln Streets when he passed 79 Foster Street. E.P. and the defendant, who were on the porch, called out to Potts to come inside. Potts was led into the house; E.P. immediately barricaded the door. The defendant pulled a folding knife that he frequently carried and began attacking Potts, ultimately stabbing him in the head, left arm and chest. The struggle moved from the living room into the kitchen. Once there, E.P. blocked the back door, wielding a large rock as a weapon. The two men then attempted to force Potts into the basement. At this point, Potts’ girlfriend burst into the kitchen and pleaded with E.P. and the defendant to stop.

The other persons present at 79 Foster Street became aware of the violent altercation and panicked; many fled the scene. In the midst of this chaos, E.P. and the defendant were distracted, and Potts was able to escape out the back door. He made his way to the driveway and then collapsed.

The defendant and E.P. left quickly thereafter. E.P. went to his mother’s home in New Haven. The defendant went to Alberta Borelh’s house, where his girlfriend, Mala Meekins, was staying. While there, the defendant made several telephone calls in which he stated that he had stabbed someone. E.P. and the defendant spoke by telephone from their respective locations after seeing local news reports of Potts’ stabbing. The defendant was nervous because he thought he may have killed Potts. E.P. informed the defendant that Potts was alive, but in critical condition. The defendant later traveled to Michigan, where he discarded the knife.

The defendant was arrested and charged, by way of substitute information, with three counts: assault in the first degree, unlawful restraint in the first degree and possession of a dangerous instrument.

E.P. was a witness for the state. Before trial commenced, the defendant filed a motion seeking in camera review of E.P.’s psychiatric records, which were in the possession of the Department of Correction. The court granted the defendant’s motion and reviewed the records after E.P.’s direct testimony had concluded. Four pages from the records were disclosed to the defendant. Defense counsel requested a continuance to research the mental disorders that the disclosed records indicated E.P. had been diagnosed with. To accommodate this request, the state agreed to take two of its witnesses out of order so that the majority of E.P.’s cross-examination could be postponed until the next day, giving defense counsel the evening to prepare.

In advance of defense counsel’s cross-examination regarding E.P.’s mental health issues, the court defined the parameters of permissible use of the records. The court’s position was, essentially, that such issues did not afford defense counsel the “opportunity to [conduct] a full scale assault on that condition.” Accordingly, the court prohibited defense counsel from sharing the records with a social worker or any other mental health expert. The court did state that if there was a need to reconsider that decision in light of the testimony, it would do so.

The following morning, after defense counsel had had the opportunity to review the disclosed records, she noted that she had had difficulty deciphering certain abbreviations and notations in the records. She was able to discern from the records that E.P. had a history of experiencing auditory hallucinations. Defense counsel reiterated her request for permission to review the records with a mental health expert, asserting that, without such assistance, the records were “meaningless . . . .” The court denied that request, and further stated that it was considering vacating its earlier order disclosing the records. Defense counsel argued that the court’s ruling would deny her client the right to effective assistance of counsel, his right to present a defense and his right to confront adverse witnesses. She therefore asked the court to strike E.P.’s testimony. That motion also was denied by the court.

The defendant then made an offer of proof, in which E.P. answered questions from defense counsel related to the disclosed records. Following the offer of proof, the court finalized the scope of questioning it would allow related to the mental health disclosure. The court agreed to permit testimony with respect to the medications E.P. was taking at the time of the incident and on the day of his testimony; any mental illnesses with which E.P. had been diagnosed, and whether he was affected by them on February 3, 2007, or during his testimony; and whether he was experiencing auditory or visual hallucinations on the day that Potts was stabbed. The court declined to permit cross-examination on whether E.P.’s mental illnesses had affected his thought processes at any other time.

Accordingly, E.P. testified that he had been diagnosed with schizoaffective disorder and bipolar disorder. He further stated that he was presently taking Lithium, Ativan, Ability and Trazodone to treat these disorders. E.P. testified that he took these medications every day. The medication did not, according to E.P., affect his ability to perceive or remember. With respect to the time of the Foster Street stabbing, E.P. asserted that, although he had not been taking medication, he had not experienced symptoms from either of the disorders and did not suffer from hallucinations at that time.

After concluding her questioning related to E.P.’s mental health issues, defense counsel impeached his earlier testimony by raising other credibility issues. E.P. conceded that he had been “mis-telling” the police what occurred on February 3, 2007, when he was initially interviewed, about six weeks after the incident. At that time, he gave a statement that he had not witnessed the stabbing of Potts. E.P. additionally admitted that he hoped his testimony would result in a favorable modification of his sentence.

Thereafter, the defendant testified in his own defense. He admitted that he had fought with Potts, and that he had hit him in the face, kicked him in the groin and “stomped him.” “When I fight,” the defendant explained, “I try, at all odds, to win . . . .’’He admitted that he always carried a knife, but stated that he could not remember if he was carrying it that day. He also conceded that Potts started bleeding at some point, which caused the defendant to panic and flee from the house because, in the defendant’s words, “wherever there’s blood, there’s trouble.”

In her closing argument, the defendant’s attorney characterized her client’s version of events as follows: “[H]e’s taking responsibility for what he did, for his actions, for what he remembers.” Defense counsel did not deny that the defendant had stabbed Potts; instead, she summarized the crux of his testimony as: “I don’t know whether I stabbed Mr. Potts.”

The jury found the defendant guilty on all charges. The court imposed a total effective sentence of fifteen years incarceration, suspended after twelve years, followed by three years probation. This appeal followed.

I

The defendant first claims that his sixth amendment right to confrontation of adverse witnesses was infringed by the extent of the court’s limited disclosure of E.P.’s psychiatric records, certain limitations the court imposed on the scope of E.P.’s cross-examination and its denial of the defendant’s request to enlist the assistance of an expert in interpreting the disclosed records. The defendant relatedly claims that the court erred by precluding his trial counsel from sharing the disclosed records with a mental health professional to prepare for cross-examination. We conclude that any error was harmless.

“A criminal defendant has a constitutional right to cross-examine the state’s witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. . . . Thus, in some instances, otherwise privileged records . . . must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility.” (Citations omitted.) State v. Slimskey, 257 Conn. 842, 853-54, 779 A.2d 723 (2001).

Any error in the limited disclosure of E.P.’s psychiatric records was harmless. When a claim regarding an evidentiary ruling is of constitutional magnitude, the state has the burden of proving that the constitutional error was harmless beyond a reasonable doubt. State v. Dehaney, 261 Conn. 336, 355 n. 12, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003). “Whether a constitutional violation is harmless in a particular case depends upon the totality of the evidence presented at trial. ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless. . . . Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.” (Citation omitted; internal quotation marks omitted.) State v. Madigosky, 291 Conn. 28, 45, 966 A.2d 730 (2009).

The state argues that any error was harmless because it “presented a strong case involving multiple independent eyewitnesses who corroborated E.P.’s testimony that the defendant stabbed Potts . . . We conclude that the state has met its burden in proving that any error was harmless.

Several eyewitnesses testified that the defendant stabbed Potts. Frederick Elbert testified that on the morning in question, while he was upstairs he heard a commotion downstairs. He ran downstairs to the kitchen and saw the defendant stabbing Potts. Jolie Shelton testified that she saw the defendant and Potts wrestling in the kitchen and, afterward, saw blood where the encounter had occurred. Potts testified that the defendant stabbed him seven times, and he showed the jury his scars. Additionally, Meekins testified that she allowed the defendant to come to the house where she was staying on February 3, 2007, because he “had did something bad” and “needed some place to go . . . .” While the defendant was there, Meekins overheard him call “five or six people” to tell them that he had stabbed someone. She also noticed specks of blood on the defendant’s white sneakers. The following day, Meekins saw the defendant with a folding knife. See State v. Madigosky, supra, 291 Conn. 45 (harmlessness analysis should consider “whether the testimony was cumulative, [and] the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points” [internal quotation marks omitted]).

The defendant’s testimony was damaging to his case. In his testimony, the defendant admitted to participating in a serious assault of Potts. The defendant admitted to stomping and kicking Potts, and stated that he was fighting “to win . . . .” He further testified that he always carried a knife, but that he could not recall whether it was in his possession that day. When the defendant noticed that Potts was bleeding, he sensed trouble and fled. As defense counsel put it in closing argument, the defendant was willing to take responsibility for what he remembered doing to Potts. As to whether he stabbed Potts, the defendant did not deny stabbing him, nor did he accuse E.P.; he simply claimed not to remember stabbing Potts.

The defendant was able to cross-examine E.P. about his mental illness to some extent. As noted previously, the jury heard evidence regarding his history of schizo-affective disorder and bipolar disorder, as well as his having experienced hallucinations in the past. As argued by the dissent, the jury did not hear details of diagnosis and treatment, nor did it receive an explanation of the disorders. Even the limited disclosure, however, provided a general sense of E.P.’s mental health history. Furthermore, E.P.’s credibility was effectively impeached many times over, not only with respect to his mental health and substance abuse issues, but also because of his conviction for his own role in the stabbing, his inconsistent statements, his significant criminal history, and his admitted desire for a sentence modification. It is exceedingly unlikely that the jury relied uncritically on E.P.’s testimony. See State v. Madigosky, supra, 291 Conn. 45 (extent of cross-examination otherwise permitted relevant to determination of whether error was harmless).

In light of the defendant’s rather devastating testimony, in conjunction with testimony from multiple eyewitnesses, the state has met its burden of proving that any error was harmless beyond a reasonable doubt.

II

The defendant next claims that the court erred by rejecting his motion to dismiss, or alternatively, denying his request for an adverse inference instruction, based on the unavailability of two kitchen knives seized from 79 Foster Street, which were destroyed pursuant to a court order following the disposition of the state’s case against E.P. The following additional facts are relevant to the resolution of this issue.

Before trial, the defendant filed a motion to dismiss, pursuant to State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995), aff'd after remand, 39 Conn. App. 617, 667 A.2d 68, cert. denied, 235 Conn. 938, 668 A.2d 376 (1995), or, alternatively, requested an instruction that the jury could draw an adverse inference based on the state’s failure to preserve certain evidence. The motion was based on the destruction of, among other items, two knives that were seized from a “utensil basket” next to the kitchen sink at 79 Foster Street.

During a pretrial hearing on November 25, 2008, the court heard arguments on the defendant’s motion. It was undisputed that the knives were destroyed pursuant to a court order some time after E.P.’s sentencing in June, 2008. Although the prosecutor explained that the court clerk’s office automatically dockets a motion for the return or destruction of seized property once a criminal case has been disposed of, the defendant argued that the failure to preserve this evidence constituted “extreme negligence” or recklessness on the part of the state. Defense counsel argued that the destroyed knives, if tested for DNA evidence, might have supported the theory that E.P., and not the defendant, had perpetrated the stabbing. The court first denied the motion to dismiss, stating that the defendant had proffered “merely ... a suggestion that, had the evidence been there, it would have been exculpatory.”

Before ruling on the defendant’s request for an adverse inference instruction to the jury, the court heard testimony regarding the two knives from E.P. and a detective from the Meriden Police Department, who had executed the search warrant and seized them. E.P. testified that he owned very few utensils, probably just “a spoon, fork, and butter knife, and a steak knife.” He also identified a rack that was located next to the kitchen sink at 79 Foster Street that he used for storing dishes. He could not recall whether there were any knives in the rack on the day of Potts’ stabbing.

Detectives William Grodzki and Robert Pocobello of the Meriden Police Department described the circumstances of the execution of two search warrants at 79 Foster Street. Pocobello was part of the group of officers that executed the warrants. He recalled that two knives were seized from a “utility basket” in the kitchen. Pocobello further testified that he did not “see anything visible,” such as blood, on the knives. Grodzki testified that most of the evidence seized from 79 Foster Street had been “ordered destroyed.”

The court denied the request for an adverse inference instruction. The court specifically noted that the knives were destroyed pursuant to a court order and had “nothing to do . . . with police intervention . . . .”

In determining whether the unavailability of evidence has deprived the defendant of due process of law, “the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.” (Internal quotation marks omitted.) State v. Morales, supra, 232 Conn. 727.

We note, first, that the court did not err in rejecting the motion to dismiss. The trial court has the discretion to “fashion [a] remedy that appropriately ameliorates or offsets the prejudice that the defendant has suffered as a result of the unavailability of the evidence.” Id., 729. The remedy of dismissal, “because it is the most drastic remedy available . . . ought to be reserved for those cases in which no lesser remedy can plausibly vindicate the defendant’s right to a fair trial.” Id., 739-40 (Borden, J., concurring).

The totality of the circumstances surrounding the unavailability of the kitchen knives similarly militated against the need for an adverse inference instruction. First, the knives were not material evidence. The mere fact that evidence was deemed interesting enough, at one time, to be seized by the police does not make it material. “The measure of materiality is whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (Internal quotation marks omitted.) State v. Joyce, 243 Conn. 282, 301, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

The superficially innocuous placement of the knives in a drying rack next to the sink, coupled with testimony that there were no visible bloodstains on them, supports the trial court’s rulings. The lack of apparent bloodstains also undermines, to a degree, the defendant’s contention that DNA testing could have been performed fruitfully on the knives. See State v. Morales, 39 Conn. App. 617, 623-24, 667 A.2d 68 (viability of scientific testing “purely speculative”), cert. denied, 235 Conn. 938, 668 A.2d 376 (1995). Last, the defendant did not request testing of the evidence until September 2, 2008, although counsel had been appointed in May, 2007. “The fact that a defendant failed to request the evidence goes to the issue of materiality and whether the defendant deemed it significant.” State v. Morales, supra, 232 Conn. 712 n. 7; see also State v. Joyce, supra, 243 Conn. 302 (“defendant’s argument that the [unavailable evidence] was highly relevant [was] undermined by the fact that there was no evidence that the defendant ever requested a test” [internal quotation marks omitted]).

The second factor we must consider is the likelihood of mistaken inteipretation of the missing evidence by witnesses or the jury. “[T]he likelihood of such a mistake [by the jury and witnesses] can be minimized at the trial by permitting testimony on the issue . . . .” (Internal quotation marks omitted.) State v. Polanco, 126 Conn. App. 323, 334, 11 A.3d 188 (2011), rev’d in part on other grounds, 308 Conn. 242, 61 A.3d 1084 (2013). The unavailability of the knives was explained by the detectives; it was “ordered destroyed.” The failure to preserve the evidence was rational given that the knives were being stored in such a manner that suggested to the authorities that they were being used as utensils and not as dangerous instruments. See State v. Morales, supra, 232 Conn. 723 (police not required to “preserve every shred of physical evidence, every object it seizes from a crime scene, no matter how remote or tangential to the case the item seems to be”).

The third factor addresses the reasons for the unavailability of the evidence and requires an examination of the motive underlying the loss of the evidence. Id., 722-23. “In examining the motives . . . our courts have considered such factors as whether the destruction was deliberate and intentional rather than negligent ... or done in bad faith or with malice ... or with reckless disregard ... or calculated to hinder the defendant’s defense, out of other animus or improper motive, or in reckless disregard of the defendant’s rights.” (Internal quotation marks omitted.) State v. Polanco, supra, 126 Conn. App. 334-35. The evidence in this case was destroyed pursuant to a court order and, therefore, was not likely done in bad faith or in an effort to undermine the defendant’s case.

Finally, we must consider whether the unavailability of the knives caused prejudice to the defendant. As we have already observed, we can only speculate as to whether the knives would have been beneficial to the defense. Moreover, the defendant’s theory that E.P. was the stabber was contrary to the weight of the evidence. “In measuring the degree of prejudice to an accused caused by the unavailability of evidence, the trial court properly may evaluate the strength or weakness of the state’s case, as well as the corresponding strength or weakness of the defendant’s case.” State v. Morales, supra, 232 Conn. 727 n.22. Potts, as well other witnesses, identified the defendant as the stabber. There was also testimony that the defendant had admitted stabbing Potts in several telephone calls he made in the aftermath of the assault. Significantly, the defendant did not deny that he had been involved in a serious altercation with Potts, or that he regularly carried a knife for protection; he merely stated that he could not remember whether he had stabbed him.

The judgment is affirmed.

In this opinion GRUENDEL, J., concurred.

BORDEN, J.,

dissenting. The defendant’s first, and principal, claim is that the trial court abused its discretion in limiting his access to the mental health records of the state’s witness, E.P., and in precluding the defendant’s counsel from even showing those records to an expert, thereby violating his constitutional right to confront the witnesses against him. The majority bypasses the substance of this claim and concludes, without deciding it or analyzing its merits, that “[a]ny error in the limited disclosure of E.P.’s psychiatric records was harmless,” because “the state has met its [constitutional] burden in proving that any error was harmless.” I disagree. My independent review of the witness’ mental health records leads me to a contrary conclusion. I conclude that: (1) the trial court violated the defendant’s constitutional right to confront the witnesses against him in precluding the defendant’s access to most of the witness’ mental health records and in precluding the defendant’s counsel from even showing those records to an expert; and (2) those rulings were not harmless beyond a reasonable doubt.

I first note that it is necessary to discuss the records that are in dispute in some detail because, contrary to the majority’s mode of analysis, which moves directly to the question of harm without first addressing the propriety of the trial court’s rulings, the records are directly relevant to the question of harm. And indeed, the question of harm cannot be considered in their absence. That is because, as the majority notes but does not apply, where the defendant’s confrontation rights have been violated, the question of harm depends on the totality of the evidence at trial. State v. Madigosky, 291 Conn. 28, 45, 966 A.2d 730 (2009). “If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Internal quotation marks omitted.) Id. The question of harm depends on a number of factors, such as the importance of the witness’ testimony, whether it was cumulative, the degree of corroboration or contradiction on material points, the extent of cross-examination permitted, and the strength of the state’s case. Id. “Most importantly, [this court] must examine the impact of the evidence on the trier of fact and the result of the trial." (Emphasis added; internal quotation marks omitted.) Id. Thus, we cannot properly assess the question of harm in this case without also assessing the potential impact on the jury of the failure to disclose the witness’ psychiatric records to the defendant’s attorney. That obviously requires a detailed examination of the material in question.

Because the majority does not address the propriety of the trial court’s ruling, however, it is necessary that I do so. “A criminal defendant has a constitutional right to cross-examine the state’s witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. Delaware v. Fensterer, 474 U.S. 15, 19, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985) .... Thus, in some instances, otherwise privileged records, like the ones in this case, must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility.

“The need to balance a witness’ statutory privilege to keep psychiatric records confidential against a defendant’s rights under the confrontation clause is well recognized. . . . The test and the associated burdens imposed on a defendant are equally well chronicled. If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury’s presence, attempt to make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness. ... If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken. . . .

“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. ... If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the ■witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. . . . Once the trial court has made its inspection, the court’s determination of a defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb unless abused. . . .

“Access to confidential records should be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records. . . . [T]he linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth . . . so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Slimskey, 257 Conn. 842, 853-57, 779 A.2d 723 (2001).

On the basis of the disclosure of the four pages of the defendant’s psychiatric records that the court did allow defense counsel to examine, defense counsel was able to elicit from the witness that he had been diagnosed with schizoaffective disorder and bipolar disorder, and that he was presently taking certain medications daily, namely, Lithium, Ativan and Traza-done, but that those medications did not affect his ability to perceive or remember. Of course, the jurors were not told, because there was no expert to tell them, what specifically “schizoaffective disorder” or “bipolar disorder” are, including the symptoms they may display, or what symptoms Lithium, Ativan and Trazadone may carry with them.

I next address, as a preliminary matter, the state’s contention that the defendant set forth “a hollow complaint” in asserting that certain medications, dosages and codes provided in the disclosed records were too complicated for counsel to decipher and, therefore, that she needed to show them to and discuss them with an expert. The state argues that “the need for expert consultation is undermined by appellate counsel’s demonstrated ability to discover the uses and side effects of the various listed medications by reference to readily available Internet sources . . . [referring to various Internet websites cited in the defendant’s brief].” “Likewise,” the state asserts, “the ‘codes’ set forth in the disclosed documents relating to the frequency of medication, for example, ‘BID,’ and ‘QID,’ are easily decoded . . . [citing to various other Internet websites].”

It should go without saying that, simply because a search on the Internet (or in a medical dictionary, for that matter) would disclose to defense counsel what a particular medical term may mean, does not mean that counsel would be in a position to use that meaning in a trial without presenting an expert witness to explain it. Counsel, having learned from the disclosed records that the witness had been diagnosed with schizoaffec-tive disorder, and having consulted the Internet to learn what that means, cannot simply stand up and ask something like, “Isn’t it true, E.P., that your diagnosis of schizoaffective disorder bipolar type means that you may experience hallucinations, which means seeing, hearing or sensing things that are not there?” If challenged on the grounds that he is basing his question on matters not in evidence, what is he supposed to say? “It’s on the Internet”? And even if he could ask such a question, how could the witness answer credibly?

My point here is simply that, although the Internet is a very useful tool for many purposes, its usefulness as an aid to effective—and admissible—cross-examination in a case such as this is quite limited. The Internet can serve only as a starting point for counsel to learn enough to take the necessary next steps in order to conduct an admissible cross-examination or to present expert testimony regarding an adverse witness’ credibility. Thus, simply because medical records may contain material that, if explained properly, would affect a witness’ credibility, does not mean that defense counsel has been given everything he or she needs to use that material. Having learned something from the Internet does not enable defense counsel to use that,information in cross-examination, if she wishes to do so, and does not enable her to bring that information to the ken of the jury. That would require an expert witness’ testimony. Consequently, my use of Internet sites in this opinion is limited to its proper purpose: simply to indicate that, had the sealed materials been disclosed to the defendant’s counsel, she could have consulted similar sites to learn of their potential side effects bearing on the witness’ credibility and then, using that information, consulted with and retained an appropriate expert for purposes of testifying to those side effects. Thus, the court also abused its discretion in precluding the defendant’s counsel from even showing the disclosed records to an expert for the purposes of aiding in the cross-examination of the witness.

I now return to the witness’ medical records that the court deemed unnecessary to disclose to the defendant. As I indicated previously, “[t]he linchpin of the determination of the defendant’s access to [such] records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality . . . .” (Internal quotation marks omitted.) State v. Slimskey, supra, 257 Conn. 856-57. The witness’ records easily meet that standard.

The trial court examined in camera the entire set of the witness’ medical records, including his mental health records that had been subpoenaed from the Department of Correction. After that examination, the court ordered disclosure of four pages of the witness’ mental health records to the defendant, which the majority has discussed, and ordered that the rest remain sealed. That sealed portion of the witness’ entire set of medical records constitutes 344 pages. In my view, of those 344 pages, no less than seventy-eight, or almost one in four, contain notations that, if shown to the jury and explained by an appropriate expert witness familiar with the terms used therein, could have had a devastating effect on the jury’s assessment of the witness’ credibility. Thus, at the least, the defendant should have had access to them and been permitted to show them to an appropriate professional. This would have thereby enabled an effective cross-examination of the witness and presentation to the jury of expert testimony impugning the witness’ credibility.

The undisclosed records reveal an undeniable correlation between the witness’ diminished mental health and the timing of the underlying crimes and his trial testimony. The crimes in the present case occurred on February 3, 2007, and the witness testified as an eyewitness to those crimes on December 4 and 5, 2008. His medical records begin on April 28, 2006, approximately nine months before the crime, and end on November 17, 2008, only about six weeks before the trial. Thus, they span both the time of the crimes and essentially the time of his testimony.

I first address in detail the witness’ course of medications. The records indicate that, during that time span, the witness was on a regular and repeated course of three medications for serious mental illness: Ativan; Lithium; and Trazodone—often all three at the same time. By my count, these were prescribed for and administered to him approximately fifty times, for periods ranging from thirty to ninety days at a time. Ativan has as potential side effects “amnesia, memory impairment, confusion,” and “hallucinations . . . .” Lithium has as potential side effects “confusion” and “hallucinations (seeing things or hearing voices that do not exist).” Trazodone has as potential side effects “decreased ability to concentrate or remember things” and “confusion . . . .”

In addition, numerous other entries in the witness’ medical records corroborate the notion that defense counsel should have had access to them in order to build a case against his credibility on the basis of his significantly impaired mental state. He was diagnosed with “schizoaffective disorder” and “schizoaffective disorder bipolar type” in several entries, the most telling one on January 24, 2007, less than two weeks before the date of the crimes. The Internet—again—tells us that “[w]hen people with schizoaffective disorder experience psychotic symptoms, they can include: Seeing, hearing, or sensing things that are not there (hallucinations) . . . [and] [b]eing less able to speak or think clearly . . . .” In addition, there are numerous entries in E.P.’s medical records along the following lines: “serious mental illness”; “hallucinations”; “exacerbation of serious mental illness”; “alteration of thought process”; “auditory (particularly command) /visual hallucinations or delusions”; “altered thought process”; “acute, negative, psychotic symptoms”; “history of chronic mental illness resulting in multiple psychiatric hospitalizations”; “claims to hear voices in the past to hurt his cell[mate]”; “alteration in thought process [resulting from] mental illness”; and “need for false belief-delusions—irrational thoughts.” Finally, the records indicate that the witness was often actively suicidal, attempting to take his own life on at least five occasions, from 1986 to March, 2007, one month after the crimes to which he testified; and he often voiced suicidal ideation, wanting to cut his wrists, hang himself, and throw himself from his cell block tier.

In sum, here we have medical records of a witness disclosing that, at times directly relevant to both his witnessing of the crimes charged and his testimony, he was taking psychotropic drugs that may have caused him to be hallucinatory, delusional, with amnesia, memory impairment, and confusion. He suffered from schizoaffective disorder, which may bring with it hallucinations and an inability to think clearly. The same records indicate, as a clinical matter, that he suffered from serious mental illness, hallucinations, delusions, altered thought processes, acute psychotic symptoms, and irrational thoughts. And he was actively suicidal and suffered from suicidal ideation. These are the paradigmatic indicators of a potential lack of credibility that a jury needs to have, because they clearly “disclose material especially probative of [the witness’] ability to comprehend, know and correctly relate the truth . . . .” (Internal quotation marks omitted.) State v. Slimskey, supra, 257 Conn. 856.

The four pages disclosed to defense counsel were insufficient to build such a fortified challenge to the witness’ credibility. The pervasiveness of the entries documenting the witness’ mental impairments is damaging evidence, in and of itself, not to mention the correlation between these entries and the timing of the underlying crimes and the witness’ trial testimony. At some point, I contend, a difference in number becomes a difference in kind, and this is clearly such a case.

The fact, apparently relied upon by the trial court, that the witness denied having any hallucinations or delusions at the time of the crimes and of his testimony, is far from conclusive—any more than a witness who denies he is lying when he describes a crime that he claims to have witnessed, but whose records indicate a pattern of pathological lying. That is the function of cross-examination—to expose the lack of credibility in both the denial of lying and in the underlying lack of truth of the direct testimony—and to permit the jury, not the presiding judge, to decide the credibility of the witness. Similarly, the fact that the trial court listened to the witness and determined that his credibility was not impaired, as the state urges upon us, does not suffice to save its rulings.

First, the trial court itself is not an expert in psychiatry; thus, even though it examined the records in camera, it cannot be deemed to understand the meaning of all of the terms contained therein or the symptoms they implicate. Second, those records are not evidence; thus, the trial court was, presumably, gauging the witness’ credibility in their absence. Third, this was a jury trial; the credibility of the witness was for the jury, not the trial court, to determine. Such a determination could not adequately be done with the witness’ psychiatric records sealed in a black box, as it were. The defendant should have had access to these records in order to have had the opportunity to bring to the jury’s attention the gross potential defects in the witness’ credibility. I conclude that the defendant’s right of confrontation was violated by the court’s denial of access to the undisclosed records, including the court’s ban on showing them to, and discussing them with, an expert.

Having concluded that the defendant’s constitutional right of confrontation was violated, I turn next to the question of harm. It is axiomatic that, when a criminal defendant’s constitutional rights have been violated, the state bears the burden of establishing lack of harm beyond a reasonable doubt. State v. Galarza, 97 Conn. App. 444, 450, 906 A.2d 685, cert. denied, 280 Conn. 936, 909 A.2d 962 (2006). In my view, the state has not met that burden in the present case.

I first note that the precise issues for the jury to decide, in light of the defendant’s testimony, were whether he stabbed the victim and, if so, whether he did so with the requisite intent, namely, “[with] intent to cause serious physical injury” to the victim. General Statutes § 53a-59 (a). The defendant testified, in essence, that although he intended to fight the victim with his fists and did so, and although he did carry a knife, because he was high on drugs at the time of the fight, he could not recall stabbing the victim and had no intent to do so.

The question of harm depends on the totality of the evidence at trial. State v. Madigosky, supra, 291 Conn. 45. “If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Internal quotation marks omitted.) Id. In the present case, we must consider both the witness’ testimony and the potential effect of the excluded records on that testimony. The question of harm depends on a number of factors, such as the importance of the witness’ testimony, whether it was cumulative, the degree of corroboration or contradiction on material points, the extent of cross-examination permitted, and the strength of the state’s case. Id. “Most importantly, [this court] must examine the impact of the evidence on the trier of fact and the result of the trial.” (Internal quotation marks omitted.) Id.

Contrary to the state’s argument, apparently endorsed by the majority, that it presented “a strong case” on both issues—who did the stabbing, and the defendant’s state of mind—the record does not bear that out. The crimes took place at a crack house. All of the state’s critical witnesses, including the victim, were either convicted felons or crack addicts who were high on crack at the time and who gave one or more conflicting statements to the police.

The victim, who ultimately testified that it was the defendant who stabbed him, also testified that, when he gave his detailed tape-recorded statement to the police at the hospital, he was heavily medicated and did not remember giving the statement. He also testified that he left out of the statement the names of his assailants, and he initially identified E.P. in a photographic lineup as the one who had assaulted him—not the defendant. He later identified the defendant.

Jolie Shelton, one of the state’s witnesses, had multiple felony and larceny convictions and was doing drags the day of the stabbing. She initially told the police that she did not want to give a statement because she had not seen anything at the time of the crimes. She then testified that she was present, and saw the victim, the defendant, and E.P. scuffling. She also testified that she did not see the stabbing, and did not see a knife during the scuffle.

Frederick Elbert, another of the state’s witnesses, also had multiple felony convictions and lied to the police multiple times during the investigation. He initially told the police that he had not seen anything, and that he was in the process of leaving the crack house when the victim entered. Months later, he again told the police that he had not been present when the stabbing took place. In his testimony at trial, he testified for the first time that the defendant was the stabber.

Mala Meekins, another state’s witness, was not at the scene when the stabbing took place. She testified that the defendant visited her at a friend’s house after the stabbing where she overheard him telling someone on his cell phone that he had stabbed someone. He had red specks on his sneakers, and later she saw him carrying a folding knife.

Finally, the witness, E.P., testified as an eyewitness to the stabbing. He was originally charged with the assault because the victim had named him, not the defendant, as the stabber. He ultimately pleaded guilty to being an accessory to the stabbing, as well as to another, unrelated felony charge, and received a much reduced sentence, as well as the dismissal of eight other charges, as a result of his testimony.

He testified that he had been doing drags for twenty-four hours straight before the stabbing, and was high when the stabbing took place. He denied the version of events, testified to by the other persons present, that he had been involved in the attack on the victim. He gave the most detailed testimony that the defendant was the stabber.

He was the first person arrested because the victim had named him as the stabber. He initially told the police that he had not even been at the crack house at the time of the stabbing; later he told them he was there but did not see the stabbing. It was not until he was charged with the crime, on the basis of the victim’s statement that he was the stabber, that he implicated the defendant as the stabber. He admitted that he had lied to the police when he had given them a false reason as to why the victim had falsely accused him. He also testified that, while he and the defendant were in a cell awaiting a court appearance, the defendant told him that he, the witness, should not have given the police a statement. There was also evidence, through a correction officer, that the two then fought and had to be separated by officers.

Given the importance of the witness’ ultimate testimony to the state’s case, as the most detailed account of the stabbing, and containing evidence of a purported guilty admission made by the defendant to the witness, I conclude that the state has not met its burden of establishing the lack of harm beyond a reasonable doubt by the improper sealing of the witness’ psychiatric records and the prohibition on showing those records to and discussing them with an expert. The witness’ testimony cannot be considered as merely cumulative of other evidence in the case because of his central role in the stabbing, and, although corroborated in some respects, his testimony was also contradicted by his prior statements; the state’s case, dependent as it was largely on the testimony of witnesses with significant credibility flaws, was not strong; and the extent of the permitted cross-examination of E.P. cannot come close to what it should have been had the sealed material been made available to the defendant and to an expert of his choice. Considering the likely “impact of the [excluded] evidence on the trier of fact and the result of the trial,” the improper denial of access to the witness’ psychiatric records “may have had a tendency to influence the judgment of the jury”; therefore, it cannot be considered harmless beyond a reasonable doubt. (Internal quotation marks omitted.) State v. Madigosky, supra, 291 Conn. 45.

I recognize that there was evidence of the defendant’s flight and statements of the defendant as to consciousness of guilt, as the state points out. And I recognize, of course, that, although the state’s case was not strong, it was certainly strong enough to have convinced the jury. I cannot escape the conclusion, however, that the refusal of the court to give the defendant access to the witness’ devastating psychiatric records “may have had a tendency to influence” its verdict; (internal quotation marks omitted); id.; and therefore cannot be considered harmless beyond a reasonable doubt.

I therefore dissent, and would reverse the judgment of conviction and remand the case for a new trial.

       Because we discuss this witness’ privileged psychiatric records, we refer to him by his initials.

       On June 13, 2008, E.P. pleaded guilty to aiding and abetting assault in the first degree.

       Defense counsel had become aware of the potential that E.P. had mental health issues when a private investigator interviewed E.P. at the Gamer Correctional Institution. The private investigator believed that Gamer housed inmates with mental health issues. His suspicion that E.P. was laboring under a mental illness was reinforced by E.P.’s behavior during the interview; the private investigator testified that E.P. seemed to move slowly, “his speech was very slow and labored” and “[h]e appeared to be medicated.” The defendant also introduced as an exhibit the transcript from E.P.’s sentencing, in which the court referred to E.P.’s history of psychological problems and his need for mental health treatment.

       There was limited cross-examination of E.P. at the end of the day on December 4,2008. Defense counsel elicited testimony regarding E.P.’s significant criminal history, his drug use and the general atmosphere at 79 Foster Street. Cross-examination was suspended when defense counsel was ready to delve into issues raised by the disclosures from E.P.’s mental health records.

       The court characterized the defendant’s motion as a “request of the court. . . [as] a motion to dismiss, or, in the alternative, the adverse instruction regarding the destruction of the seized property.”

       If one of these knives had been used in the stabbing, the theory goes, then the defendant’s discarded knife would not have been used in the crime.

       In this dissenting opinion, I refer to E.P. alternatively as “the -witness.”

       I agree with the majority’s treatment of the defendant’s other claims.

       In the present case, the court obtained this consent from the witness and examined his records in camera.

       The state argues that the trial court’s ruling did not prevent the defendant from calling an expert to answer hypothetical questions that could be based on defense counsel’s examination of the four pages of the witness’ records and, therefore, the trial court’s ruling precluding her from even showing the records to an expert was a proper balancing of the witness’ privacy rights and the defendant’s sixth amendment confrontation rights. Although it is certainly true that defense counsel could have done so, it is difficult to consider seriously such a procedure as an adequate surrogate for an effective sixth amendment challenge to the credibility of the witness. Without the ability to examine the records themselves or even to discuss them with the defendant’s counsel, the expert would be testifying virtually in a factual vacuum, and would not be able to answer effectively even a hypothetical question about the symptoms that such a witness was likely to display. That, of course, assumes that counsel could glean enough information from her independent review so as to formulate such probative questions. In any event, as I will demonstrate, the impropriety of the trial court’s ruling precluding the defense counsel from examining the rest of the records and discussing them with an expert went far beyond the meager four pages that it permitted defense counsel to examine.

       See my discussion of this diagnosis, contained in the sealed materials, in the text and footnotes of this opinion.

       Rather than cite to and quote from all seventy-eight such entries, I summarize them in the text of this opinion.

       National Institutes of Health, U.S. National Library of Medicine, “ATIVAN (lorazepam) tablet” (last modified July, 2010), available at http://dailymed.nl-m.nih.gov/dailymed/lookup.cfm?setid=07cae057-a593-4e4d-a478-2d7fc9f06857 (last visited September 30, 2013) (copy contained in the file of this case in the Supreme and Appellate Court clerk’s office).

       National Institutes of Health, U.S. National Library of Medicine, Lithium, “What side effects can this medication cause?” (last modified September 25, 2013), available at http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a681039.html (last visited September 30, 2013) (copy contained in the file of this case in the Supreme and Appellate Court clerk’s office).

       National Institutes of Health, U.S. National Library of Medicine, Trazo-done, “What side effects can this medication cause?” (last modified September 25, 2013), available at http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a681038.html (last visited September 30, 2013) (copy contained in the file of this case in the Supreme and Appellate Court clerk’s office). I acknowledge that I have not done an Internet search to find out whether being administered these three medications, all at the same time, regularly over a lengthy period of time, would increase the risk of the side effects of hallucinations and other mental disabilities that these medications carry with them. Indeed, that is precisely the type of information that should not be left to the puny efforts of a layperson (in the medical sense) like me, or the defendant’s counsel; instead, it should be presented to a medical expert for his or her opinion—which, of course, the defendant’s counsel was prohibited from doing by the trial court’s unnecessary restriction on even disclosing the records to such an expert.

       INVEGA, INVEGA For Schizoaffective Disorder, “What are the psychotic symptoms of schizoaffective disorder?” (last modified August 8,2013), available at http://www.invega.com/schizoaffective-disorder-psychotic-symp-toms (last visited September 30, 2013) (copy contained in the file of this case in the Supreme and Appellate Court clerk’s office).

       The defendant’s principal conviction, and the one on which the court imposed the most lengthy sentence, was for assault in the first degree in violation of § 53a-59 (a), which provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical ipjury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    TOWN OF WALLINGFORD v. ZONING BOARD OF APPEALS OF THE CITY OF MERIDEN ET AL.
    (AC 34108)
    Lavine, Sheldon and Pellegrino, Js.

      Argued May 16
    officially released November 5, 2013

      Janis M. Small, corporation counsel, for the appellant (plaintiff.

      Thomas J. Londregan, with whom, on the brief, was Patrick J. Day, for the appellee (named defendant).
   Opinion

LAVINE, J.

The plaintiff, the town of Wallingford, appeals from the judgment of the trial court dismissing its zoning appeal from the decision of the defendant Zoning Board of Appeals of the city of Meriden (board) for lack of subject matter jurisdiction. The plaintiff contends that the trial court, by declining to find that the plaintiff was aggrieved, erred in granting the motion to dismiss. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In 2008, the defendant Mark Development, LLC (developer), applied for a use variance from the board for a 48.8 acre parcel of land located at 850 Murdock Avenue in Meriden (property). The property is bounded on the south by Wallingford. The property is zoned as a regional development district, wherein permissible uses are limited to conference center hotels, executive offices, research and development facilities, and distribution centers associated with executive offices. The developer, seeking the use variance in order to construct a used car lot on the property, submitted its application for the variance on August 14, 2008. The application included a conceptual site plan that made reference to a traffic plan that would ultimately make Northup Road in Wallingford the primary access point to the property. A hearing before the board occurred on September 2, 2008, at which point Linda Bush, the Wallingford town planner, raised the plaintiffs concern that the conceptual site plan directs too much traffic into Wallingford. Following the hearing, the board voted 4-1 to grant the use variance on September 2, 2008.

Thereafter, the city of Meriden, the Meriden Planning Commission and its director of planning, Dominick Caruso (Caruso plaintiffs), appealed to the trial court. In that action, the Caruso plaintiffs alleged (1) that the use variance was illegal, arbitrary, an abuse of discretion, and ultra vires because a member of the board had a conflict of interest requiring his recusal, and (2) that the decision of the board was not supported by the record. See Caruso v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV-08-4033705 (August 9, 2012) (54 Conn L. Rptr. 505). The plaintiff also appealed, claiming that the use variance was not supported by the record. The appeals to the trial court were eventually consolidated.

The board filed a motion to dismiss, asserting that neither the Caruso plaintiffs nor the plaintiff in the present case were aggrieved by its decision. The court denied the motion to dismiss as to the Caruso plaintiffs, but granted the motion as to the plaintiff in the present case. The court found that the plaintiff in the present case was neither classically nor statutorily aggrieved by the board’s decision.

The Caruso case proceeded to a judgment on the merits. In its memorandum of decision, the trial court opined first on the merits of the board’s decision, finding that the decision was supported by the record and that the board had not exceeded its authority in granting the application. Next, the court addressed the issue of whether a conflict should have disqualified a board member from voting on the developer’s application. The court found that the conflicted board member should have disqualified himself. Accordingly, the court sustained the Caruso plaintiffs’ appeal and remanded the matter to the board for “further proceedings.” See Caruso v. Zoning Board of Appeals, supra, 54 Conn. L. Rptr. 508.

The board filed a motion to reargue, requesting that the court “further clarify what it meant by ‘for further proceedings.’ ” The board also requested that, because the court had already determined the merits of the board’s decision on the application and two alternate members of the board could read the transcripts of the record, “further proceedings” be limited to a new vote on the existing record by a reconstituted board instead of an entirely new hearing. The court granted the motion on September 10, 2012, ordering that no new evidence be introduced and that the board render a new decision pursuant to a review of the existing record by alternate members of the board.

Subsequently, the developer filed a petition for certification to appeal the trial court’s decision in Caruso on August 30, 2012, seeking review of the trial court’s decision only on the issue of conflict. The Caruso plaintiffs also filed a cross petition on September 20, 2012, seeking review of (1) the trial court’s ruling on the merits, and (2) its decision to address the merits while concurrently finding that the vote by a conflicted board member required that the application be remanded to the board.

The plaintiff filed its own certified appeal, in the present case, claiming that the trial court erred when it granted the board’s motion to dismiss. Argument before this court in the present appeal was first heard on January 3, 2013, while the petitions for the Caruso appeal were pending. At that time, this panel questioned whether the present appeal was properly before us. Following oral argument, we ordered the parties to brief the issue as to whether the present appeal was justiciable given the trial court’s decision in Caruso and the pendency of the petitions to appeal in that case. The petitions for certification in the Caruso appeal were granted on January 16, 2013.

I

Before we can address the merits of the plaintiffs claims, we must determine whether we have subject matter jurisdiction to hear this appeal. Accordingly, at the threshold of this appeal, we are presented with a question of justiciability, specifically, whether the trial court’s decision in Caruso has rendered the present matter moot. The board takes the position that this appeal is moot because, in Caruso, all the underlying zoning issues were decided against the plaintiff, and, as a consequence, the plaintiff cannot obtain any practical relief from this court. The plaintiff takes the opposing position, asserting that Caruso did not render its appeal moot because, if the trial court’s decision on the motion to dismiss is overturned, it would be allowed to present its own arguments challenging the use variance. We agree with the plaintiff that this appeal is not moot.

“The doctrine of mootness is rooted in the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue.” State v. McElveen, 261 Conn. 198, 204, 802 A.2d 74 (2002). Our Supreme Court has enunciated a four part test in order to determine whether a matter is justiciable. “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Internal quotation marks omitted.) Board of Education v. Naugatuck, 257 Conn. 409, 416, 778 A.2d 862 (2001). Furthermore, “[a]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . [Thus] [w]hen, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 492-93, 778 A.2d 33 (2001).

In the present matter, the board argues that this court cannot grant practical relief. The board contends that even if this court were to decide that the plaintiff was aggrieved by the board’s decision, because the merits of the use variance were already adjudicated by the trial court, this court cannot grant practical relief. This argument is not persuasive. As one of the issues in the Caruso appeal relates to the merits of the use variance, the plaintiff would be able to obtain relief if this court were to find the plaintiff aggrieved. Under that scenario, the plaintiff would be entitled to join in the Caruso appeal as to the merits of the use variance. In short, if the plaintiffs claim on appeal were dismissed as moot, it would lose its opportunity to potentially litigate the merits of the use variance that is currently at issue in Caruso. See, e.g., State v. T.D., 286 Conn. 353, 366-67, 944 A.2d 288 (2008) (controversy kept alive because of contemporaneous appeals). Accordingly, the plaintiffs appeal is not moot.

II

We now turn to the primary issue in this appeal, that is, whether the trial court erred in dismissing the plaintiffs appeal. On appeal, the plaintiff argues that the court improperly determined that it was not aggrieved by the board’s decision granting the use variance because (1) the plaintiff was classically aggrieved by the possibility of increased traffic on its roads, and (2) it was statutorily aggrieved as a “municipality concerned.” We are not persuaded by the plaintiffs arguments, and therefore, affirm the judgment of the trial corut.

We begin by setting forth the standard of review and principles of law that govern our analysis. “Because a determination regarding the trial court’s subject matter jurisdiction raises a question of law, our review is plenary.” (Internal quotation marks omitted.) Abel v. Planning & Zoning Commission, 297 Conn. 414, 437, 998 A.2d 1149 (2010). “It is well settled that [p]leading and proof of aggrievement are prerequisites to atrial court’s jurisdiction over the subject matter of an administrative appeal. ... It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved. . . . Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it. . . . We do not disturb the trial court’s conclusions on appeal unless those conclusions are unsupported by the subordinate facts or otherwise violate law, logic or reason.” (Citations omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-39, 833 A.2d 883 (2003).

“Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). Second, the party must also show that the agency’s decision has specially and injuriously affected that specific personal or legal interest. . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. ” (Citations omitted.) Lewis v. Planning & Zoning Commission, 62 Conn. App. 284, 288, 771 A.2d 167 (2001).

“Finally, as to the quality and quantum of evidence required to establish aggrievement, an appellant need not establish his or her interest and harm with certainty, but rather, may satisfy the requirement of aggrievement by credible proof that the subject activity has resulted in the possibility of harm to his or her specific personal and legal interest. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. ... A fair reading of relevant deci-sional law makes it clear, nevertheless, that proof of a possibility of specific harm is not the same as mere speculation regarding harm. . . . Although one may establish aggrievement by establishing the possibility of harm, mere speculation that harm may ensue is not an adequate basis for finding aggrievement.” (Citations omitted; internal quotation marks omitted.) Goldfisher v. Connecticut Siting Council, 95 Conn. App. 193, 197-98, 895 A.2d 286 (2006).

On appeal, the plaintiff maintains that it was aggrieved by the board’s action both classically and statutorily. We first consider classical aggrievement.

The plaintiffs principal argument is that the granting of the use variance will cause it harm by increasing traffic on its roadways. This increased traffic is anticipated on the basis of the conceptual site plan that was presented by the developer to the board. The conceptual plan featured a traffic plan that ultimately funneled the bulk of truck traffic through the plaintiffs streets and away from Meriden. We disagree with the plaintiff that, at this juncture, it is aggrieved by the use variance.

The trial court considered the two part classical aggrievement inquiry. First, it found that “traffic hazards and traffic congestions may constitute valid legal grounds for aggrievement.” Turning to the second prong, however, the court noted that “the plaintiff has failed to establish that it has been specifically, personally, and legally affected by the [board’s] approval of the use.” The trial court based this conclusion on the fact that the site plan giving rise to traffic concerns had not been approved by the board and that “therefore, the developer is not allowed, yet, to begin developing or building upon the land.” The court concluded that the plaintiff was not yet injured.

Upon our examination of the record, we cannot conclude that the court’s conclusions were unsupported by the facts of this case or otherwise violate law. Rather, its judgment appears to be well supported and manifestly correct. Put simply, the plaintiffs concerns as to traffic are, at present, premature. As the origin of the plaintiffs claimed aggrievement is the proposed site plan, and given that the board lacked the authority to approve a site plan in the application for a use variance, the issue of where the traffic would be directed was not formally decided upon. In other words, the plaintiffs failure to show how it is injured by the use variance itself is what precludes a finding of aggrievement in this case. Instead, the plaintiff claims aggrievement based on a mere proposal, which at this moment in time has not been approved, and is of no force or effect.

Any injury premised on an unapproved site plan at this juncture remains speculative. Our Supreme Court, in addressing similar land use regulation, has required more than mere speculation, requiring that, “a party seeking to invalidate a regulation is required to present sufficient facts to the court that demonstrate the regulation’s adverse impact on some protected interest of its own, in its own particular case, and not merely under some hypothetical set of facts as yet unproven.” (Emphasis added.) Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 190, 779 A.2d 134 (2001); see also Goldfisher v. Connecticut Siting Council, supra, 95 Conn. App. 198 (“[although one may establish aggrievement by establishing the possibility of harm, mere speculation that harm may ensue is not an adequate basis for finding aggrievement”).

The plaintiff argues that because the use variance was granted on the basis of the board’s consideration of the conceptual site plan and the “public safety factors” pursuant to General Statutes § 8-6, that somehow the board made a determination as to a particular traffic pattern. This misunderstands the task with which the board is charged under § 8-6. All the board did was find that the use proposed by the developer’s application could be accommodated without creating a hazard; the board made no particular determinations as to a specific traffic pattern. Put in other terms, finding aggrievement based on the traffic impact of an unapproved site plan would be tilting at windmills at this point. The plaintiff will be free to make traffic-related arguments at the site plan stage. Accordingly, the trial court’s finding that the plaintiff was not classically aggrieved was legally and factually justified.

The plaintiff next claims that the trial court erred by finding it was not statutorily aggrieved under General Statutes § 8-8 pursuant to the “municipality concerned” doctrine. Notwithstanding the fact that § 8-8 does not expressly include “municipalities” within its definition of “aggrieved parties,” our Supreme Court has held that the “municipality concerned is always entitled to represent [the public interest] by participating as a party to an appeal.” Tyler v. Board of Zoning Appeals, 145 Conn. 655, 658, 145 A.2d 832 (1958). On this point, the trial court correctly noted that the “municipality concerned” refers to the municipality of a board that has rendered a decision. See DeRito v. Zoning Board of Appeals, 18 Conn. App. 99, 103, 556 A.2d 632 (1989). As the plaintiff has cited no authority for the extension of the “municipality concerned” doctrine to include adjoining municipalities, this argument must be rejected. Because the plaintiff was neither classically nor statutorily aggrieved by the board’s approval of the use variance, the court properly dismissed its appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       Mark Development, LLC, was also a defendant before the trial court, but is not a party to the present appeal.

       The plaintiffs concern with respect to the traffic plan was generalized. At the board’s hearing on the variance application, Bush testified that because the conceptual site plan envisioned access to the property from Northup Road in Wallingford, “we will be impacted if you grant this variance, because all of the traffic will use our roads.”

       The plaintiff alleged, specifically, that “the [board] failed to provide any reason for its approval of the variance [and that] . . . the decision of the [board] was illegal, arbitrary and capricious and in an abuse of discretion

       The plaintiff did not expressly indicate whether it believed it was statutorily aggrieved or classically aggrieved, but alleged facts grounded in both theories. For instance, the plaintiff alleged it was aggrieved “by the [board’s] decision in that the property of the [developer] borders the Town of Wall-ingford . . . the [developer’s] property abuts the Town of Wallingford property, Northrop Road; the [developer] proposes to design its entrance to its property in such a way as to require large trucks to only use Wallingford roads.”

       “The record supports the conclusion that the property, which has been vacant and unused for close to thirty years, cannot be practically used in any of the ways permitted by the regulations. Additionally, the record supports the finding that allowing the use of the property for a used car dealership will not thwart the purposes of the zoning regulations. Finally, there is evidence in the record that the other required considerations were met. . . . Therefore, this court concludes that the insufficiency of support in the Record is not a proper basis to sustain the appeal. Nor is the claim that the board exceeded its authority in granting the application for a use variance to use the property as a Used Car Dealership.” (Citations omitted.)

       The hearing on the motion to dismiss focused heavily on the fact the traffic impact was dependent upon the site plan. This was evident in Bush’s testimony:
      “Q. So, Ms. Bush, until a site plan is approved we really won’t know the number of trips that will be generated will we?
      “A. No.”

       General Statutes § 8-6 (a) provides in relevant part: “The zoning board of appeals shall have the following powers and duties ... (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, [and] welfare . . . .”

       For instance, the developer submitted a traffic engineering report that noted “the proposed use is likely to have no significant impact on the roadway network in the vicinity of the area.” These submissions were presented to the board to guide their consideration of the use variance application but were not formally adopted. Therefore, any claims of aggrievement predicated on a proposed traffic plan are not yet injurious.

       At oral argument before this court, counsel for the board specifically represented to the panel, in response to a question, that if the judgment of the trial court is affirmed, the plaintiff will be free to make arguments concerning traffic congestion at the site plan stage and that the board will not claim the plaintiff is foreclosed from doing so.

       General Statutes § 8-8 (1) provides that an “aggrieved person” means “a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, ‘aggrieved person’ includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board. ”

       The plaintiff acknowledges the lack of authority for this proposition in its brief. For instance, the plaintiff argues “[w]hile the trial court is correct that there is no case law supporting the [plaintiff’s] argument in this regard, the facts of this case support the conclusion that the [plaintiff] is a ‘municipality concerned’ establishing aggrievement.”


text:
    FARMINGTON VALLEY RECREATIONAL PARK, INC., ET AL. v. FARMINGTON SHOW GROUNDS, LLC, ET AL.
    (AC 34262)
    Lavine, Beach and Keller, Js.
    Argued September 20
    officially released November 5, 2013

      Claude M. Brouillard, with whom was Mei-wa Cheng, for the appellants (named defendant et al.).

      Patrick E. Scully, with whom was Edward F. Scully, for the appellees (named plaintiff et al.).

      Kevin J. McEleney, for the appellee (plaintiff Michael A. Ziebka, conservator of the estate of Hugh P. Kerrigan).
   Opinion

LAVINE, J.

In this mortgage foreclosure action, the defendants, Claude M. Brouillard, Farmington Equestrian Center, LLC, and Farmington Show Grounds, LLC, appeal from the judgment of strict foreclosure claiming that the court improperly (1) concluded that the plaintiffs had standing to commence the action and (2) that the plaintiffs had proven and established the debt. We affirm the judgment of the trial court.

The record discloses the following procedural history. The plaintiffs commenced this action on August 11, 2009, to foreclose a mortgage on property located at 152 Town Farm Road in Farmington (property), commonly known as the polo grounds, and for money damages. The property consists of approximately sixty acres adjacent to the Farmington River. The defendants filed an answer in which they alleged that they lacked sufficient knowledge to admit or deny the material allegations of the complaint. They also alleged five special defenses and a four count counterclaim against the plaintiffs. The plaintiffs denied the special defenses and the material allegations of the counterclaim and pleaded four special defenses to the counterclaim. The defendants denied the counterclaim special defenses. The case was tried to the court, Robaina, J., over several days in May, 2011. The court issued a memorandum of decision on January 6, 2012.

In its memorandum of decision, the court found the following facts. On or about May 7, 2004, Farmington Valley Recreational Park, Inc. (Park), conveyed the property by warranty deed (deed) to the defendant Farmington Show Grounds, LLC (Show Grounds), in consideration of $2,250,000. The deed reserved a life estate for the benefit of the plaintiff Hugh P. Kerrigan. That same day, Show Grounds executed a promissory note in favor of Park, the plaintiff Farmington Polo Grounds, LLC (Polo Grounds), and Kerrigan doing business as Farmington Polo Club (Polo Club) in the principal amount of $1,000,000. The note was secured by a document entitled “Open End Mortgage Deed and Security Agreement,” which mortgaged the property conveyed that day. Show Grounds also executed a conditional assignment of leases and rents in favor of the plaintiffs.

At the time the property was conveyed to Show Grounds, it was subject to two prior mortgages in favor of Farmington Savings Bank (bank): one in the amount of $100,000, and another in the amount of $1,100,000. Both of the prior mortgages were dated May 5, 2004. The court found that by means of an “inter-creditor agreement” dated May 7, 2004, executed by Show Grounds, the bank, Kerrigan, Polo Grounds, and Park, the note payable to Kerrigan, Polo Club, Polo Grounds, and Park, was subordinated to the loan from the bank to Show Grounds.

Brouillard acquired title to the property from Show Grounds by warranty deed dated June 11, 2007. The property was conveyed subject to the May 6,2004 mortgages. Brouillard also executed an instrument in favor of the bank entitled “Debt Assumption and Loan Modification Agreement” (modification agreement), which is dated August 10, 2007. In addition to the assumption of debt, the modification agreement increased the amount of the first mortgage to the bank by $300,000.

Pursuant to its analysis, the court found that the plaintiffs had proven that they were the holders of the note dated May 7, 2004, in the principal amount of $1,000,000, which is secured by a mortgage signed by Show Grounds. The defendants had defaulted on that note for nonpayment, and the plaintiffs had made demand for the balance due in accordance with the terms of that note.

The court found the amount due under the terms of the note to be $1,052,624 as of May 7, 2009, and that the plaintiffs have waived interest and fees subsequent to that date. The court also found that the fair market value of the property to be $1,330,000. The court concluded that the defendants had failed to prove their special defenses or their counterclaim against the plaintiffs. The court rendered judgment in favor of the plaintiffs on the complaint and counterclaim and ordered the plaintiffs to claim the matter for a hearing with respect to a judgment of foreclosure.

I

The defendants first claim that the court erred as a matter of law in finding that the plaintiffs had proven ownership of the May 7, 2004 note and had standing to bring the action against them. The plaintiffs argue that the defendants failed to raise this claim at trial and therefore the claim is not reviewable. See Practice Book § 60-5. We agree that the record does not demonstrate that the defendants raised the claim at trial, and, ordinarily, we would not review a claim that was not raised in the trial court. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 33, 717 A.2d 77 (1998). The defendants’ claim, however, implicates the trial court’s subject matter jurisdiction. On the basis of our review of the record, we conclude that the defendants’ claim fails.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subj ect matter of the controversy. . . . [Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time.” (Citation omitted; internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). Standing is a question of law and our review of such questions is plenary. See Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 155, 953 A.2d 1 (2008).

Our Supreme Court has held that “[the] holder of a note is presumed to be the owner of the debt . . . .” RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231, 32 A.3d 307 (2011). “The possession by the bearer of a note indorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity. The production of the note establishes his case prima facie against the makers and he may rest there. . . . It [is] for the defendant to set up and prove the facts which limit or change the plaintiffs rights.” (Citations omitted; internal quotation marks omitted.) Garris v. Calechman, 118 Conn. 112, 115, 170 A. 789 (1934).

The record discloses that the plaintiffs placed into evidence without objection the signed note and the signed mortgage deed and security agreement. The defendants have failed to direct our attention to an objection or challenge to the prima facie evidence that the plaintiffs owned that note. Moreover, the court found that the plaintiffs had proved that they were the holders of the note. This court does not reverse the factual findings of a trial court unless the appellant demonstrates that the court’s finding is clearly erroneous. See National Grange Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 90, 961 A.2d 387 (2009). In view of the record before us, the defendants have not demonstrated that the court’s finding was clearly erroneous. We conclude, therefore, that the plaintiffs had standing to commence the present action to foreclose the mortgage on the property.

II

The defendants claim that the court improperly determined the amount of the debt. We disagree.

The following additional facts are necessary to our resolution of the defendants’ claim. At trial, the defendants claimed that the amount of the debt had been reduced by the modification agreement of August 10, 2007. Judge Robaina found that the modification agreement was executed by Brouillard, Farmington Equestrian Center, and the bank and that none of the plaintiffs was a party to the modification agreement. The modification agreement, therefore, did not reduce the amount owed by the defendants to the plaintiffs.

The defendants claimed, however, that the issue of whether the amount of the note had been modified had been litigated in the case of Farmington Savings Bank v. Brouillard, Superior Court, judicial district of Hartford, Docket No. CV-08-5025089-S (January 26, 2011) (bank’s case). In its memorandum of decision in the bank’s case, the court, Hon. Robert Satter, judge trial referee, stated “[t]he original Kerrigan purchase mortgage note of $1,000,000 was reduced to $700,000 and amortized over thirty years rather than the original ten years.”

In his memorandum of decision, Judge Robaina stated that he had searched the documents and exhibits submitted in the bank’s case and found no evidence to support the defendants’ claim that the amount of the debt the defendants owed the plaintiffs had been reduced. The court concluded that the subject statement in Judge Satter’s memorandum of decision was dicta and not necessary to the resolution and judgment in the bank’s case. We agree with Judge Robaina that the statement was not necessary to the judgment in the bank’s case where the bank was seeking to foreclose the mortgage it held on the property, not the mortgage the plaintiffs held.

The essence of the defendants’ claim is that the amount of the debt was decided by Judge Satter in the bank’s case and therefore the issue is res judicata. “[T]he applicability of res judicata and collateral estop-pel presents a question of law over which [the court] employ[s] plenary review.” Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010).

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim.” (Internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 685, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998). The doctrine of res judicata applies if the following elements are satisfied: the identity of the parties to the actions are the same; the same claim, demand or cause of action is at issue; the judgment in the first action was rendered on the merits; and the parties had an opportunity to litigate the issues fully. Id., 686-87. Res judicata does not apply in the present case because the claim in the bank’s case is not the claim asserted by the plaintiffs in this case. The issue to be determined in the bank’s case was the amount of the debt the defendants owed the bank, not the debt owed the plaintiffs in this case.

“The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Citations omitted; emphasis altered; internal quotation marks omitted.) Lafayette v. General Dynamics Corp., 255 Conn. 762, 772, 770 A.2d 1 (2001).

“An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. ... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta.” (Citation omitted; emphasis altered.) Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 714-15, 627 A.2d 374 (1993). Although Judge Satter may have concluded, or at least stated, that the debt the defendants owed the plaintiffs had been reduced by $300,000, that was not an issue that needed to be determined in the bank’s case. We therefore conclude that the court properly determined that Judge Satter’s statement regarding the amount of the debt the defendants owed the plaintiffs is mere dicta.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       At trial Stephen M. Jenkins, Jon Jenkins, Jason Jenkins, and Jenkins Management, Inc., and the Town of Farmington also were defendants, but they are not parties to this appeal. Equine Homes Real Estate, LLC, CWPM, LLC, and Saddle River Partners I, LLC, were named as defendants in the complaint but failed to appear at trial. In this opinion, we refer to Brouillard, Farmington Equestrian Center, LLC, and Farmington Show Grounds, LLC, as the defendants.

       The plaintiffs are Farmington Valley Recreational Park, Inc., Farmington Polo Grounds, LLC, Hugh P. Kerrigan doing business as Farmington Polo Club, and Michael A. Ziebka, conservator of the estate of Hugh P. Kerrigan. On August 26, 2011, a Suggestion of Death was filed indicating that Kerrigan had died on August 22, 2011. A motion to substitute the executor of his estate, Ziebka, as a party plaintiff was granted by the court.

       The defendants Jon Jenkins, Jason Jenkins, Stephen M. Jenkins, and Jenkins Management, Inc., executed guarantees as security for Show Grounds’ debt. Because they are not parties to this appeal, we have omitted any discussion of the court’s findings and legal conclusions as to the Jenkins parties.

       On January 26,2012, the defendants filed the present appeal, challenging the court’s conclusions with respect to the allegations of the complaint and the counterclaim. On February 2,2012, the plaintiffs filed a motion to dismiss the appeal for lack of a final judgment, arguing that there was no final judgment as to the complaint at the time the appeal was filed because the trial court had not yet set law days for a judgment of strict foreclosure. See General Statutes § 52-263 (appeal may be taken from final judgment). This court granted the motion to dismiss that portion of the defendants’ appeal concerning the foreclosure complaint, but denied the motion to dismiss as to that portion of the appeal concerning the defendants’ counterclaim. The defendants have not briefed any issue related to the judgment rendered on their counterclaim, and we therefore consider it abandoned. See Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999).
      After the defendants filed their appeal, on February 1, 2012, the plaintiffs filed a motion to set law days. The trial court granted the motion and set the law day for March 26, 2012. On February 14, 2012, the plaintiffs filed an amended motion to set the law days, which the trial court granted and set a new law day of April 9, 2012. On March 7, 2012, the defendants filed an amended appeal seeking to challenge the court’s decision dated January 6, 2012, and its subsequent setting of a law day. On March 21, 2012, the defendants filed a second amended appeal challenging the court’s January 6, 2012 decision and the setting of law days.
      “[A] judgment of foreclosure is not a final judgment until the trial court determines the method of foreclosure and the amount of the debt.” Capp Industries, Inc. v. Schoenberg, 104 Conn. App. 101, 109 n.5, 932 A.2d 453, cert. denied, 284 Conn. 941, 937 A.2d 696 (2007). In its memorandum of decision issued on January 6,2012, the court found the debt by stating “[t]he court finds that the amount due under the terms of the note is $1,052,624 as of May 7, 2009. The plaintiffs have waived interest and fees subsequent to that date.” Under the particular facts and circumstances of this case, although the court did not render a formal judgment of foreclosure, we conclude that in setting the law days, the court implicitly rendered a judgment of strict foreclosure. See Connecticut National Bank v. L & R Realty, 40 Conn. App. 492, 493, 671 A.2d 1315 (1996) (setting of law days necessary for final judgment in strict foreclosure).
      Our law provides, however, that “[i]f the original appeal is dismissed for lack of jurisdiction, the amended appeal shall remain pending if it was filed from a judgment or order from which an original appeal properly could have been filed.” Practice Book § 61-9; see also Midland Funding, LLC v. Tripp, 134 Conn. App. 195, 196 n.1, 38 A.3d 221 (2012). We therefore conclude that the defendants’ appeal is properly before us.

       The defendants also claim that the court improperly failed to apply the “one transaction rule” in finding that the parties had not agreed to reduce the debt. The defendants failed to brief that claim and we therefore consider it abandoned. See Roby v. Connecticut General Life Ins. Co., 166 Conn. 396, 398 n.1, 349 A.2d 838 (1974).

       Judge Robaina also stated that although the defendants offered evidence of negotiations between the parties to reduce the principal amount of the note, no agreement was reached. Specifically he found that “[t]here is no written agreement which provides that the mortgage to the plaintiffs was modified.”

       Our search of the record discloses no evidence of an agreement between the parties in this action that the amount of the debt due the plaintiffs had been reduced and the defendants have directed us to no written agreement in the record.