text:
    Robert Summerville v. Warden, State Prison
    (10114)
    Dupont, C. J., Foti and Freedman, Js.
    Argued May 7
    decision released September 15, 1992

      Paula Mangini Montonye, deputy assistant public defender, for the appellant (petitioner).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and David I. Cohen, assistant state’s attorney, for the appellee (respondent).
   Dupont, C. J.

The petitioner was convicted, after a jury trial, of the crime of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The conviction was upheld by this court. State v. Summerville, 13 Conn. App. 175, 535 A.2d 818 (1988). The petitioner subsequently filed a petition for a writ of habeas corpus alleging (1) that his trial counsel rendered ineffective assistance and (2) that his conviction was based on unreliable medical evidence. After a hearing, the habeas court denied his petition and certified its decision for review by this court. We affirm the judgment of the habeas court regarding the ineffective assistance of counsel claim and reverse its judgment regarding the unreliable evidence claim.

The following facts from the petitioner’s trial are relevant to the issues in the present appeal. On October 12, 1985, the petitioner and the victim, who had been friends for several years, met in a bar in Bridgeport. The victim invited the petitioner to attend a party in Stamford later that evening. Instead of attending the party, the two checked into a hotel room in Stamford at approximately 11:30 p.m. that evening. Both the victim and the petitioner remained in the room for several hours drinking, socializing, and ingesting cocaine.

At approximately 5:30 a.m. the following morning, the petitioner summoned a security guard to the room claiming that the victim had suffered a stroke. When the security guard entered the room, he observed the victim on the floor partially covered by a bed sheet. He checked for a pulse but found none. The security guard called the police for assistance. An emergency medical technician responded to the scene shortly thereafter. Upon finding no pulse, he began efforts to resuscitate the victim. Resuscitation efforts continued until the victim arrived at Stamford Hospital, but the victim never responded and was pronounced dead.

At trial, the state produced Arkady Katsnelson, an associate chief medical examiner, who testified that the victim died as a result of manual strangulation. Katsnelson based his conclusion on the following observations made during the autopsy process: (1) a semi-lunar abrasion on the victim’s neck below the left ear that seemed to have been caused by a fingernail; (2) multiple petechial, or pinpoint, hemorrhages in the left eye and on the heart and lungs; (3) hemorrhages in the muscles on the left side of the neck; and (4) separation of the victim’s hyoid bone, a U-shaped bone deep inside the neck, with evidence of hemorrhage at the place of separation. Katsnelson observed further injuries to the vocal chords and laryngeal area that he concluded could have been caused by intubation during resuscitation efforts. Katsnelson also testified that cocaine was present in the victim’s blood and nose. Although the victim had a potentially fatal level of cocaine in her blood at the time of death, Katsnelson ruled out death by cocaine intoxication in light of the evidence pointing to manual strangulation.

The petitioner relied on the testimony of Elliot Gross, then the chief medical examiner for the city of New York and formerly the chief medical examiner in Connecticut, to support his theory that the victim died of cocaine intoxication. Gross indicated that after reading Katsnelson’s autopsy report, he had questions about its findings in part because of the lack of external injuries to the victim’s face and neck. After reviewing the various records and examining the larynx, tongue and hyoid bone, which were made available to him through the chief medical examiner’s office, Gross testified as follows regarding Katsnelson’s findings and conclusion: (1) the single abrasion on the left side of the victim’s neck, which he agreed was semi-lunar in shape, although consistent with manual strangulation, was also consistent with resuscitation efforts and therefore was an insufficient basis for a conclusion of manual strangulation; (2) he was unable to conclude that the hemorrhage in the left eye was petechial, and he explained that, although petechial hemorrhages to the eyes, lungs, and heart are consistent with death by manual strangulation, they are indicators of an asphyxial death, that is, any death caused by the lack of oxygen to the brain, including seizure or convulsion, which can be caused by excessive cocaine ingestion; (3) the hemorrhages found in the neck muscles were near a puncture wound caused by the insertion of an intravenous line on the victim’s left side and could have been an extension of the hemorrhage that resulted from that trauma as opposed to any injury to the neck muscles caused by strangulation; (4) although separation of the hyoid bone can occur as a result of manual strangulation or intubation during resuscitation or removal during the autopsy, he concluded that the separation of the hyoid bone in this case occurred during the autopsy, that is, it was an artifact of the dissection process, because he did not see extensive hemorrhages in the area of the separation and because another portion of the hyoid bone had been cut off by Katsnelson during the removal process. Gross, as did Katsnelson, testified that the hemorrhages in the laryngeal area were not petechial and were likely caused by intubation, the insertion of a tube into the breathing passages during resuscitation efforts. Gross also testified that the victim had a fatal level of cocaine in her blood at the time of death and that excessive levels of cocaine can cause convulsions and anoxia. Although Gross admitted that he could not exclude the possibility of manual strangulation based on each piece of evidence relied on by the state, he maintained the opinion that taken together the evidence was not sufficient to enable him to conclude that the victim died by strangulation. In light of the evidence of cocaine intoxication and, in his view, the inconclusive evidence of manual strangulation, Gross concluded that the cause of death was cocaine intoxication.

On cross-examination, Gross conceded that microscopic slides of the areas of the hemorrhaging could help determine if the injuries had occurred before death, but that he did not order such slides. While hemorrhaging will most often occur only in injuries inflicted before death, Gross noted that hemorrhaging can also appear in injuries caused within a short time after breathing has stopped.

The state then called William Q. Sturner, chief medical examiner for the state of Rhode Island, as a rebuttal witness. Sturner testified that the injuries in the laryngeal area were not caused by intubation and therefore were inconsistent with resuscitation. He based this testimony in part on his examination of microscopic slides made from the area of hemorrhaging, the same type of slides that Gross did not order. By examining the slides, Stumer claimed to be able to determine that the hemorrhages occurred before the victim stopped breathing and, therefore, in his opinion, were not the result of resuscitation efforts. Sturner examined slides of the tissue at the separation in the hyoid bone but was unable to render any opinion as to whether the separation was caused before the death of the victim. Sturner also testified that the hemorrhaging in the neck muscles was not caused by intubation or the insertion of the central intravenous line which was placed on the other side of the victim’s neck by hospital personnel. In this regard, Sturner noted that hospital records showed that a “practice” line was put into the left side of the victim’s neck by hospital staff very soon after she was pronounced dead. Sturner further testified that the semi-lunar abrasion on the victim’s neck was caused by a fingernail before the victim died and not during resuscitation efforts. On the basis of the factors observed by him, including information gathered from his review of the slides, Sturner concluded the cause of death was not cocaine intoxication.

At trial, defense counsel objected to Sturner’s testimony on the grounds that it was not appropriate rebuttal testimony and that the use of the slides by the state constituted unfair surprise. The state offered defense counsel a continuance in order to examine the slides. The petitioner’s trial counsel, however, rejected the offer of a continuance.

On direct appeal, the petitioner challenged, inter alia, the trial court’s decision to allow the rebuttal testimony of Sturner. This court concluded that Sturner’s testimony was appropriate as rebuttal testimony and that it was not improperly admitted even though the slides used by Sturner were not made available to the petitioner prior to the day Sturner testified. State v. Summerville, supra, 181-84. We rejected the petitioner’s argument that he was unfairly surprised by the state’s use of the slides in part because the petitioner rejected the state’s offer of a continuance; id., 183-84; and we did not agree with the petitioner’s claim that the evidence was insufficient to support the conviction. Id., 184-85.

The petitioner subsequently challenged his conviction in this habeas corpus proceeding. In his petition for a writ of habeas corpus, the petitioner claimed that the evidence on which his conviction rested was unreliable and that he was denied the effective assistance of counsel at his trial. The petitioner introduced evidence before the habeas court to support both claims.

The petitioner’s claim of ineffective assistance of counsel focuses on the failure of his trial counsel, Stephen F. Donahue, to accept the state’s offer of a continuance in order to prepare to meet Sturner’s testimony regarding the slides. Richard Brown, an attorney who testified on behalf of the petitioner, stated that in his opinion Donahue’s failure to have the slides examined constituted ineffective assistance of counsel. Donahue testified regarding his reasons for neither accepting the state’s offer of a continuance nor requesting a continuance. Although he believed that the trial court would have agreed to a short continuance, Donahue explained that his decision to forego a continuance was based on the following factors: (1) he believed that the testimony by Sturner was improper and would be a successful ground for appeal; (2) he believed that Gross had become unavailable to him because Gross was then testifying in a lengthy and highly publicized case in New York; (3) he did not know what Gross would conclude upon review of the slides; (4) he felt that the case had already been fraught with continuances requested by the defense due to limitations on Gross’ availability and that another continuance could possibly agitate or alienate the jury; and (5) he believed that he had already established reasonable doubt based on Gross’ testimony.

At the hearing before the habeas court, the petitioner also presented the testimony of Mark Taff, a forensic pathologist. Taff’s testimony was intended to support the petitioner’s claim regarding the unreliability of the medical evidence used to convict him.

Taff reviewed the same evidence examined by the experts who testified at the petitioner’s trial but Taff examined photographs of the neck organs because the actual neck organs were no longer available. Taff made the following findings and conclusions: (1) the abrasion that the other experts identified as a semi-lunar abrasion on the victim’s neck was actually a T-shaped abrasion located at the junction of the left jaw and the neck and was a superficial scratch that did not correspond to any significant findings beneath the skin; (2) petechial hemorrhages resulting from strangulation would not be localized to one eye but would be visible on both sides of the face; there were no petechial hemorrhages present in the victim’s face but instead a larger hemorrhage was visible in the lower left eyelid along with swelling that could have been caused by a fall or collapse; the numerous petechial hemorrhages on the back wall of the heart, while consistent with manual strangulation, could also have been caused by resuscitation efforts; (3) the “hemorrhage” in the neck area appeared to be related to seepage of blood from the jugular vein due to the cutting of the vein by a scalpel during the autopsy, and, along with additional blood from the venipuncture, was therefore artifactual; there was no visible injury to the neck muscles, which is consistent with lack of injury to the surface of skin; there were hemorrhages only in the laryngeal area, which is consistent with intubation during resuscitation; while it is possible for these areas to hemorrhage due to manual strangulation without evidence of trauma to the skin and the tissue below the skin and the muscles on the outside of the laryngeal area, he has never seen it and regards the lack of such trauma as inconsistent with manual strangulation; (4) the slides of the hyoid bone showed no hemorrhage in the separation of the hyoid bone, which indicates that the separation did not occur before death and was caused by the autopsy. Taff concluded that, in the absence of consistent indicators of manual strangulation and in light of the victim’s toxic level of cocaine, death was caused by cocaine intoxication.

After the habeas court rejected both claims advanced by the petitioner, this appeal followed.

I

The petitioner claims that he was denied his constitutional right to the effective assistance of counsel. He argues that his trial counsel rendered ineffective assistance by not availing himself of an offered continuance in order to have an expert examine the slides relied on by Sturner and to permit his expert to offer surrebuttal testimony. We disagree.

“Our Supreme Court has made clear that to succeed in his claim of ineffective assistance of counsel, the petitioner must show that his attorney’s performance was not ‘ “reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law” ’; State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975); and that this ‘ “lack of competency contributed to the conviction.” ’ State v. Clark, supra; Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). Furthermore, our Supreme Court has adopted the two-pronged test for ineffectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). That test requires a conclusive showing that (1) the attorney’s performance was so deficient and the errors made by counsel were so egregious that the attorney was not functioning as counsel; id., 687; and (2) there exists ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Id., 694.” Ostalaza v. Warden, 26 Conn. App. 758, 761, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

The petitioner’s claim of ineffective assistance of counsel for failure to seek or to accept a continuance is, at its core, a claim of ineffective assistance based on a failure to investigate facts adequately in order to prepare a proper defense. Our cases recognize that the effective assistance of counsel includes counsel’s obligation to investigate the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case. Siemon v. Stoughton, 184 Conn. 547, 556 n.3, 440 A.2d 210 (1981); Ostaloza v. Warden, supra, 765. This obligation also includes a duty to seek out expert opinion and to secure the attendance of expert witnesses when the facts of the case require such investigation and evidence to support a theory of defense. See, e.g., Rogers v. Israel, 746 F.2d 1288, 1294 (7th Cir. 1984) (counsel acted unreasonably in failing to ask a qualified expert about effect of bullet wound to heart and lungs on victim’s ability to engage in struggle thereafter); Loe v. United States, 545 F. Sup. 662 (E.D. Va. 1982) (failure to obtain psychiatric examination of criminal defendant to support insanity defense); People v. Danley, 758 P.2d 686 (Colo. App. 1988) (counsel ineffective in failing to investigate the availability of expert testimony regarding operability of furnaces where defendant charged with attempting to sell unneeded heating equipment after telling alleged vietims that their furnaces were defective and dangerous); Commonwealth v. Haggerty, 400 Mass. 437, 509 N.E.2d 1163 (1987) (defense counsel’s failure to investigate and pursue expert opinion regarding the issue of causation of victim’s death was ineffective assistance of counsel).

Here, Donahue failed to investigate certain evidence brought out by the state during its presentation of rebuttal evidence. Donahue justified his decision to forego investigation and surrebuttal testimony on a combination of tactical considerations. Although our Supreme Court has stated that the “failure to conduct an adequate investigation is not a matter of trial tactics”; Siemon v. Stoughton, supra, 557; an evaluation of counsel’s investigation cannot take place in a vacuum. While we will not diminish the force of the mandate that “[cjounsel must make his decisions on an informed basis”; id.; all investigations necessarily take place against the backdrop of the eventual trial setting or, in this case, in the context of the ongoing trial. We have recently recognized that an evaluation of counsel’s pretrial investigation necessarily involves some consideration of the relationship between the need for further investigation and eventual trial strategy. Ostolaza v. Warden, supra, 764-67. Here, where the claimed deficiency in counsel’s performance arose not from inadequacies in his pretrial investigation but from counsel’s failure to investigate facts revealed during the presentation of rebuttal evidence by the state, we are guided by the standard enunciated by the United States Supreme Court in Strickland v. Washington, supra, 690-91: “[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”

We now turn to an evaluation of the strategic concerns considered by defense counsel in choosing not to accept a continuance to investigate Sturner’s findings with respect to the slides. When undertaking this analysis, we will not second guess the reasonable judgment of counsel through the distorting lens of hindsight. See Ostolaza v. Warden, supra, 765.

The first three reasons articulated by Donahue for not investigating the basis of the rebuttal testimony do not represent a reasonable basis for concluding that the continuance for purposes of investigation was unnecessary. Counsel’s belief that the trial court has improperly allowed adverse testimony into a case does not justify counsel’s failure to respond to that evidence. Counsel does not function as counsel when abandoning the role of advocate because he believes the trial court has committed reversible error. Cf. Commonwealth v. McCaskill, 321 Pa. Super. 266, 278-79, 468 A.2d 472 (1983) (counsel may not decide not to investigate a possible defense, in the expectation that the case will not go to trial because a favorable ruling will be made on a pretrial motion, unless that decision has some reasonable basis of serving his client’s interests; effective counsel will never forego investigation of all possible defenses simply because he thinks he has made a winning pretrial motion); Smith v. State, 547 N.E.2d 817, 821-22 (Ind. 1989) (counsel’s failure to prepare for penalty phase of trial on the basis of his belief that verdict would be different was not a matter of strategy but constituted constitutionally deficient performance). Likewise, the fact that Gross may not have been available to testify within the time constraints likely to have been imposed by the trial court in granting a continuanee was not a relevant concern under the circumstances of this case. To be sure, Gross was familiar to defense counsel and the jury. Gross, however, was certainly not the only qualified expert who was able to examine the slides to determine if they contained relevant information bearing on the question of whether the injuries occurred before death. The duty to investigate cannot be made to depend on the availability of a particular expert witness not under the control of the defendant, at least where that person’s field of expertise is not so unique that it is likely that there are others who could examine the disputed evidence and allow counsel to make an informed decision whether and how to counter that evidence. Finally, that Donahue did not know what his expert would conclude upon review of the evidence cannot justify a failure to seek expert opinion. To give weight to this factor in assessing the reasonableness of defense counsel’s representation of the petitioner would seriously undermine counsel’s duty to “make his decisions on an informed basis.” Siemon v. Stoughton, supra, 557; see Loe v. United States, supra, 672 (defense counsel’s “speculation as to the outcome of an expert examination should be given little credence”).

It is the other factors considered by Donahue, namely, that additional delay could possibly agitate or alienate the jury and that he believed he had already established a strong case through Gross’ testimony, that convince us that Donahue exercised reasonable judgment in not accepting a continuance to investigate the evidence relied on by the state in the rebuttal portion of its case. The trial proceedings were lengthy. There had already been delays caused by Gross’ unavailability as a defense witness due to his involvement in a trial in New York. The state presented its case on September 24 and 26 and October 2,1985. The defendant presented his case on October 3 and 10, and on October 18 when Gross was able to testify. The jurors reported to the courthouse on a daily basis during the defendant’s portion of the case only to be excused because of the problem with scheduling Gross’ testimony. The very real concern that the jurors might become agitated by further delay in the proceedings was therefore an appropriate consideration by defense counsel when evaluating the matter of a continuance.

This is especially true where counsel reasonably believed that he had already put forth a strong case that had raised a reasonable doubt regarding the defendant’s guilt. We are mindful that “[i]t is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland v. Washington, supra, 689. In his testimony, Gross carefully explained how the evidence relied on by the state did not support the conclusion of death by manual strangulation. In determining whether to offer surrebuttal testimony, defense counsel appropriately considered the strength of Gross’ testimony in light of Stumer’s rebuttal testimony. A comparison of the testimony of Gross and Sturner shows that their divergent conclusions were not based so much on the conclusions Sturner drew from the slides but on the different interpretations each attached to the evidence of hemorrhages in the victim’s neck area. Although Sturner explained that the hemorrhages he saw in the slides of the laryngeal area suggested antemortem injury, Gross opined that evidence of hemorrhaging would look the same whether caused before or shortly after death. This is not a case where the testimony that defense counsel failed to rebut directly remained in the case unchallenged. Cf. Commonwealth v. Stonehouse, 521 Pa. 41, 65, 555 A.2d 772 (1989) (“[t]here was no reasonable basis for trial counsel not to call an expert witness to counter the erroneous battered woman myths upon which the Commonwealth built its case”).

A belief that counsel already possesses evidence supporting a strong defense will not immunize counsel from an ineffective assistance claim based on a pretrial failure to investigate potentially exculpatory evidence. See Siemon v. Stoughton, supra. The investigatory duty of counsel to obtain potential surrebuttal evidence, however, is necessarily examined differently because it arises in the context of the ongoing trial proceedings. Strickland v. Washington, supra. Under the circumstances of this case, where the rebuttal evidence certainly did not completely undermine the basis of the defense expert’s testimony and in light of the legitimate strategic considerations regarding the potentially adverse effect of a continuance on the jury’s consideration of the case, we conclude that Donahue's failure to accept the state’s offer of a continuance to investigate the slides and possibly to offer surrebuttal testimony, was an exercise of reasonable professional judgment arrived at after weighing the pros and cons. Counsel’s decision therefore fell within “the amorphus zone known as ‘trial strategy’ or ‘judgment calls’ Jones v. Estelle, 632 F.2d 490, 492 (5th Cir. 1980), cert. denied, 451 U.S. 916, 101 S. Ct. 1992, 68 L. Ed. 2d 307 (1981); which will not be second guessed by this court.

II

The petitioner also claims that, in light of Taff’s testimony, he is entitled to habeas corpus relief on the ground that the medical evidence presented at his trial regarding the cause of death was unreliable and, as a result, denied him a fair trial. Specifically, the petitioner claims that the additional evidence not presented at his trial undermined the reliability of the jury’s determination that he caused the victim’s death by manual strangulation.

The habeas court did not evaluate Taff’s testimony. Instead, the court concluded that it lacked the authority to inquire into the sufficiency of the evidence or the resolution of the facts that supported the petitioner’s conviction. In reaching this conclusion, the trial court relied primarily on Perell v. Warden, 113 Conn. 339, 155 A. 221 (1931), Vena v. Warden, 154 Conn. 363, 225 A.2d 802 (1966), and McClain v. Manson, 183 Conn. 418, 439 A.2d 430 (1981).

In Perell v. Warden, supra, the court concluded that a habeas corpus petitioner cannot challenge the sufficiency of the evidence supporting his conviction when he did not pursue the denial of his motion for a new trial by way of direct appeal. Recognizing that a petition for habeas corpus cannot be a substitute for a direct appeal, the conclusion of the Perell court represents an early application of what became the “deliberate bypass” doctrine in habeas corpus proceedings. See McClain v. Manson, supra, 433; Vena v. Warden, supra, 365. In the present case, however, the habeas court found that the petitioner did not deliberately bypass the orderly process of direct appeal inasmuch as his claims lie outside the trial record. This finding is not challenged on appeal, and, consequently, the McClain and Vena cases are inapplicable to this case. Additionally, the Perell holding regarding the unreviewability of sufficiency claims in habeas corpus proceedings is equally inapplicable because the petitioner is not claiming that the evidence presented at his trial, if believed by the jury, was insufficient to convict him. It is beyond dispute that the petitioner’s conviction was supported by sufficient evidence. State v. Summerville, supra, 184-85.

Instead, the petitioner asserts that the additional evidence, which was not presented to the jury at his trial, sufficiently undermines the conclusiveness of the fact-finding process that led to the jury’s determination of his guilt so that a new trial is mandated. If this claim, that the medical evidence presented against him at trial was unreliable and therefore violated his right to a fair trial, is properly raised in a petition for a writ of habeas corpus, then we must remand the case to the habeas court for further consideration.

Our habeas corpus statute requires the habeas court to “dispose of the case as law and justice require.” General Statutes § 52-470 (a). The petitioner is claiming that no crime was committed. Such a claim goes to the very essence of the constitutional guarantee of due process. “The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness. ... To mount a successful collateral attack on his conviction a prisoner must demonstrate a miscarriage of justice or other prejudice .... In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction.” (Citations omitted; internal quotation marks omitted.) Bunkley v. Commissioner of Correction, 222 Conn. 444, 460-61, 610 A.2d 598 (1992). Where new evidence undermines judicial confidence in the result reached such that it can be said that an injustice was likely done and that it is probable that a new trial would produce a different result, relief must be available through the writ of habeas corpus. Cf. Taborsky v. State, 142 Conn. 619, 116 A.2d 433 (1955); Reilly v. State, 32 Conn. Sup. 349, 355 A.2d 324 (1976).

Our Supreme Court recently recognized that “[o]ne cogent reason for overturning the verdict of a jury is that the verdict is based on conclusions that are physically impossible.” State v. Hammond, 221 Conn. 264, 268, 604 A.2d 793 (1992). The evidence presented by the petitioner at the hearing before the habeas court was intended to show that the victim’s death was not the result of manual strangulation, that is, that no crime was committed. The additional evidence brought forth by the petitioner, if found to be such that a jury might reasonably credit, indicates that the petitioner’s conviction was based on a scientific improbability, if not an impossibility. Under the circumstances, the petitioner’s claim implicates the constitutional right to a presumption of innocence and his right to a fair trial; see id., 288-89; and is therefore cognizable in a habeas corpus proceeding. “The very nature of the writ demands that it be administered with the initiative and flexibility to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291, 89 S. Ct. 1082, 22 L. Ed. 2d 281 (1969); Valeriano v. Bronson, 209 Conn. 75, 97, 546 A.2d 1380 (1988) (Shea, J., concurring). To conclude otherwise would negate the obligation of the habeas court to “dispose of the case as law and justice requires.” General Statutes § 52-470 (a).

The exculpatory evidence proffered at the habeas hearing raises a serious question of whether a jury could reasonably have concluded that the petitioner was guilty beyond a reasonable doubt had the new evidence been before it, along with the evidence already considered at trial. State v. Hammond, supra, 286-87. Because that is so, and because our jurisprudence mandates that we give effect to the presumption of innocence even in a postconviction proceeding, a remand is necessary so that Taff’s testimony and the facts established and the inferences reasonably drawn therefrom can be evaluated by the habeas court. Id., 286-89. The habeas court did not examine the merits of this claim of the petitioner and might have ruled differently had these merits been explored. Id., 288-89. We must therefore remand the case to the habeas court for further consideration of the merits of the petitioner’s claim that his conviction was based on unreliable medical evidence. See Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Lozada v. Warden, 24 Conn. App. 723, 591 A.2d 1272 (1991), aff’d, 223 Conn. 834, 613 A.2d 818 (1992); Sutton v. Robinson, 6 Conn. App. 518, 506 A.2d 566 (1986).

On remand, the habeas court should carefully examine the new medical evidence bearing on the issue of the cause of the victim’s death in order to determine the effect the new evidence would have on a jury in rendering its verdict. This will require that the court consider Taff s testimony in relation to the trial testimony considered by the jury, an inquiry that we do not need to undertake at this stage in the proceedings. If, after analyzing this evidence, the habeas court concludes that an injustice was done and that it is probable that a different result would be reached in a new trial, then the court must grant the writ.

The judgment is affirmed on the ineffective assistance of counsel claim; the judgment is reversed on the unreliable evidence claim and the case is remanded for further proceedings on that claim.

In this opinion the other judges concurred.

       The defendant was also convicted of the crime of possession of cocaine. He does not challenge that conviction in this habeas corpus proceeding.

       Donahue did not articulate these factors to the habeas court in the order in which we have listed them. They have been reordered to facilitate our discussion of them.

       Under the circumstances of this case, we need not decide whether the “deliberate bypass” standard of Vena v. Warden, 154 Conn. 363, 225 A.2d 802 (1966), or the “cause and prejudice” standard recently adopted by our Supreme Court in Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), or neither, is applicable in this case. Even where a procedural barrier is applicable, our Supreme Court has noted that “[t]his restrictive rule is somewhat ameliorated by a general exception that ‘where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of showing of cause for the procedural default.’ ” Valeriano v. Bronson, 209 Conn. 75, 80, 546 A.2d 1380 (1988), quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). The petitioner’s claim of unreliable evidence would fall within this exception.

       While we need not determine whether the Perell v. Warden, 113 Conn. 339, 155 A. 221 (1931), holding is good law, we note that in Wojculewicz v. Cummings, 143 Conn. 624, 124 A.2d 886 (1956), our Supreme Court noted that while habeas corpus cannot be utilized as a substitute for an appeal, it can be used when the judgment of conviction and sentence is the culmination of a proceeding that fails to meet the constitutional requirement of a fair trial. The right not to be convicted except upon proof beyond a reasonable doubt is one of constitutional magnitude; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); and has been applied in federal habeas proceedings. See Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). We see no reason why the same should not apply in a state habeas proceeding. See Valeriano v. Bronson, 209 Conn. 75, 96-98, 546 A.2d 1380 (1988) (Shea, J., concurring).


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    David Naughton v. Alan Hager
    (10551)
    O’Connell, Heiman and Aronson, Js.

      Argued June 3
    decision released September 15, 1992

      Steven W. Varney, with whom, on the brief, was Edward N. Lerner, for the appellant (defendant).

      Michael P. Foley, Jr., for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals from the $80,000 judgment rendered against him after a jury trial. He claims that the trial court improperly (1) failed to set aside the verdict on the breach of contract, fraudulent misrepresentation and negligent misrepresentation counts, (2) failed to find that the jury verdict was excessive, (3) denied the defendant’s motion for mistrial at the conclusion of the opening statements, and (4) charged the jury concerning evidence of prior complaints against him. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The plaintiff is the owner of a typographic and graphic arts business. The defendant is a coin dealer, author and expert on the value and grading of coins. On March 9, 1984, the parties entered into a written agreement whereby the plaintiff agreed to provide typographic services for a book the defendant was writing on the grading of coins, in exchange for credits in Barter Systems International (BSI) and a large number of valuable coins.

On March 27,1984, the defendant delivered nineteen silver dollars to the plaintiff. The defendant represented that, based on their grade, their value was $10,030. On October 16,1984, the parties entered into another written agreement whereby they agreed that the defendant owed a balance of $51,783.75 for the typographic services. Of that amount, $42,803 was to be paid in rare coins and $9000 in barter credits with BSI. Prior to the execution of this agreement, the defendant represented that he was an expert on the valuation of coins, including those involved in the transaction.

On the day the contract was executed, the defendant transferred the specified rare coins and barter credits to the plaintiff. The plaintiff had no prior experience with rare coins and testified that he relied solely on the expertise of the defendant in accepting the coins in exchange for his typographic services. Subsequently, in the course of attempting to obtain the barter credits, the plaintiff discovered that the defendant’s account actually contained several hundred dollars fewer credits than reflected in the contract. While the parties attempted to resolve the discrepancy, BSI went out of business.

In 1985, the plaintiff put twelve of the coins up for auction with a New York coin dealer, Harmer Rooke Numismatists. Only four of the twelve were sold and three of those were sold at prices substantially less than the value as represented by the defendant. The plaintiff became suspicious that the coins were not as represented by the defendant and submitted them to another expert for grading and valuation. This expert confirmed that the defendant had grossly misrepresented the grading and values of the coins resulting in a substantial loss of appreciation.

The plaintiff brought this action alleging breach of contract, fraud, negligent misrepresentation and unjust enrichment. The case proceeded to trial in October, 1990, and resulted in a plaintiffs verdict, including exemplary damages, in the amount of $80,000. The defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict were denied. This appeal followed. We affirm the judgment of the trial court.

Additional facts pertaining to individual issues are included in the following discussion.

I

The defendant first claims that the verdict was contrary to the evidence as to the second, third and fourth counts and, therefore, the trial court improperly failed to set aside the verdict on these counts. We disagree.

The second count alleges that the defendant breached the contract by grossly overgrading the coins which were worth considerably less than represented by the defendant. The third count alleges that the defendant falsely represented the grading of the coins. The fourth count alleges that the defendant negligently misrepresented the grading of the coins.

Our role in reviewing an appeal based on the sufficiency of the evidence is well defined. “Where the claim is that the evidence produced did not satisfy the burden of proof factually, the duty of an appellate court is well established. An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law. ... It is, however, not our function to retry the case or to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Kelman v. McDonald, 24 Conn. App. 398, 400-401, 588 A.2d 667 (1991).

Conflicting evidence was introduced by each side, including the testimony of experts on the grading and valuation of coins. The plaintiffs expert testified that none of the coins that he examined was of the grade represented by the defendant. The defendant’s expert testified that the coins that were given to the plaintiff by the defendant were in the top 10 percent of what one could expect to receive in the grade represented by the defendant.

It is axiomatic that, “the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” (Internal quotation marks omitted.) Lafayette Bank & Trust Co. v. Szentkuti, 27 Conn. App. 15, 18, 603 A.2d 1215, cert. denied, 222 Conn. 901, 606 A.2d 1327 (1992). Stated simply, the jury believed the plaintiff’s evidence, including the plaintiffs expert, and not the defendant’s evidence and expert. Interrogatories submitted to the jury disclosed that it found facts consistent with its verdict.

Accordingly, we conclude that the trial court properly refused to set aside the verdict on the second, third and fourth counts of the complaint.

II

The defendant next complains that the $80,000 verdict was excessive. The plaintiff, however, introduced evidence that reasonably could have supported a verdict as large as $135,561.

It is a well settled principle that the “[assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake or corruption. . . . Evidence offered at trial relevant to damages must be reviewed in the light most favorable to sustaining the verdict. ...” (Citations omitted; internal quotation marks omitted.) Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990).

In the present case, the trial court denied the defendant’s motion to set aside the verdict as excessive. “The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness. . . .’’(Internal quotation marks omitted.) Todd v. Glines, 217 Conn. 1, 5, 583 A.2d 1287 (1991). Thus, the court’s refusal to set the verdict aside is a significant factor in determining whether the verdict was excessive. Wood v. Bridgeport, supra.

The plaintiff submitted evidence that supported his claimed damages in the amount of $55,807.75 on the breach of contract claim. The plaintiff claimed a loss of appreciation. This was supported by the plaintiff’s expert’s testimony that the value of the coins, at the grade represented by the defendant, would have been $114,395 at the time of trial. The plaintiff then testified that the appreciated value of the coins minus the actual value, as graded by his expert, equaled a total loss of appreciation of $66,160. Further, the plaintiff sought punitive damages, supported by a bill for attorney’s fees and costs, in the amount of $13,953.57. This brought the total claim for damages to approximately $135,561.

In addition to the testimony of the plaintiff and his expert, the plaintiff also submitted the results of the Harmer Rooke auction, coin industry pricing guides, and reports on the value and grading of the coins. Consequently, when viewed in the light most favorable to supporting the verdict, the size of the jury verdict does not “so [shock] the conscience as to compel a reviewing court’s conclusion that it was due to partiality, prejudice or mistake.” Martin v. Samulis, 24 Conn. App. 85, 89, 585 A.2d 1255 (1991). Accordingly, we conclude that the trial court did not abuse its discretion in refusing to set aside the verdict.

Ill

The defendant next urges us to hold that the trial court improperly denied his motion for mistrial at the conclusion of the opening statements. The defendant’s motion was based on comments made by the plaintiff’s counsel during his opening remarks. In particular, the defendant claimed that two remarks were especially prejudicial. First, the plaintiff’s counsel stated that the defendant had been dismissed from the American Numismatic Association for “failing to respond to a complaint.” Second, the plaintiff’s counsel referred to the American Numismatic Association as “an organization that apparently oversees coin dealers and people who invest in coins and people who buy coins.”

The trial court is vested with broad discretion over the latitude of the statements of counsel during argument. Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 205, 470 A.2d 705 (1984); see Practice Book § 296. The “action of the trial court is entitled to weight because of the vantage point from which it can observe and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful.” State v. Glenn, 194 Conn. 483, 493, 481 A.2d 741 (1984). When reviewing a trial court’s refusal to grant a motion for mistrial, the question before us is “whether the action of the trial court ... so far exceeded or abused the discretion committed to it . . . as to warrant us in granting a new trial. . . . Our inquiry ... is to determine whether the defendant was deprived, by the remarks of [opposing counsel], of his constitutional right to a fair trial.” (Citations omitted; internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 760-61, 574 A.2d 182 (1990).

We reject the defendant’s argument for two reasons. First, whatever validity the defendant’s claim might otherwise have had was lost when the defendant’s counsel made the tactical decision to introduce evidence concerning the prior complaints during direct examination. See State v. Anderson, 209 Conn. 622, 633, 533 A.2d 509 (1989). Furthermore, this trial tactic resulted in allowing the plaintiff to probe this issue further on cross-examination.

Second, there was abundant evidence to support the jury’s verdict. An article from Barron’s, a national financial weekly publication, was put before the jury, wherein it stated, “Hager openly admits that he ‘gouged people’ in coins.” Further, the defendant, on both direct and on cross-examination, admitted to having several complaints lodged against him. There was also evidence before the jury from which it could logically be inferred by the jury that such other complaints involved allegations of overgrading and overvaluing coins.

Considering the totality of the circumstances concerning this claim, we conclude that the defendant was afforded a fair trial and, accordingly, we will not disturb the trial court’s denial of his motion for a mistrial.

IY

The defendant next claims that the jury charge pertaining to prior complaints against the defendant was incorrect and rendered the charge unfairly prejudicial to him. The trial court charged that “[tjhere has been evidence of alleged prior complaints of overgrading of coins against Mr. Hager. If you credit that evidence, you should consider it in light of all of the other evidence only insofar as you may find it to be evidence of intent in connection with the fraud count ... or evidence of improper conduct or malice. . . .You should not infer from it that the defendant possessed the propensity for dishonesty generally.”

“When reviewing the propriety of a trial court’s charge to the jury, we must determine whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions do not have to be exhaustive, perfect or technically accurate but they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Citations omitted; internal quotation marks omitted.) Olshefski v. Stenner, 26 Conn. App. 220, 223-24, 599 A.2d 749 (1991). Moreover, “[t]o determine whether an error in the charge to the jury exists, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict.” (Internal quotation marks omitted.) State v. Hopkins, 222 Conn. 117, 130, 609 A.2d 236 (1992).

The defendant took exception to the court’s “characterization of evidence being adduced by the plaintiff that showed overgrading by the defendant in other circumstances.” The defendant argued that there simply was no evidence presented on that point. The record does not support the defendant’s contention.

The record is replete with evidence from which a jury could reasonably have concluded that there had been prior complaints of overgrading against the defendant. Indeed, much of the evidence on this point was introduced by the defendant’s own counsel or on cross-examination by the plaintiff’s counsel without objection. The trial court’s charge properly limited the use of that evidence and, also, properly instructed the jurors that they were the sole finders of fact. In the absence of a clear indication to the contrary, juries are presumed to follow the court’s instructions. State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992).

Accordingly, the court’s charge in its entirety presented the case fairly to the jury such that no injustice was done.

The judgment is affirmed.

In this opinion the other judges concurred.

       The interrogatories to the jury and their answers are as follows:
      “Interrogatory No. 1.
      Do you find that the plaintiff substantially performed all the work called for by the contract of October 16,1984 including alterations and additions specified by the defendant?
      Answer: Yes.
      Interrogatory No. 2.
      Do you find the defendant Alan Hager failed to transfer certain barter credits in the amount of $9,000 to the plaintiff pursuant to the terms of their agreement dated October 16, 1984?
      Answer: Yes.
      Interrogatory No. 3.
      If your answer to Interrogatory No. 2 is yes, do you find that the defendant Alan Hager, offered to transfer $8,000 in barter credits to the plaintiff in lieu of the $9,000 in such credits specified in the contract?
      Answer: No.
      Interrogatory No. 4.
      If your answer to Interrogatory No. 3 is yes, do you find that Naughton was under no duty to accept the $8,000 because it would have unreasonably required the plaintiff Naughton to disregard his own interests or place those of the defendant over his own or sacrifice a substantial right he had?
      Interrogatory No. 5.
      If your answer to Interrogatory No. 4 is no, do you find that the plaintiff had an opportunity to use $8,000 (Bight Thousand and 00/100) Dollars in barter credits but failed to use them or was prevented from using them because the barter agency went out of business?
      Interrogatory No. 6.
      Do you find that defendant Alan Hager breached the contract between the parties by transferring overgraded coins whose verifiable wholesale value was less than 20 percent of retail value?
      Answer: Yes.
      Interrogatory No. 7.
      Do you find that the defendant Alan Hager knowingly falsely represented the grading and wholesale value of coins he transferred to David Naughton as higher than 19 percent of retail value, when that was untrue, and that he did so to induce Naughton to act on it and that he did so to his financial loss?
      Answer: Yes.
      Interrogatory No. 8.
      Do you find that defendant Hager in the course of his coin dealer business supplied false grading and valuation information regarding the coins delivered to Naughton for Naughton’s guidance and that he failed to exercise reasonable care or competence in obtaining or supplying the information to Naughton for the purpose of inducing action on it, and that plaintiff Naughton did so act to his financial loss?
      Answer: Yes.
      Interrogatory No. 9.
      If you answered yes to No. 7 and find that defendant respectively committed fraud as to the plaintiff, do you find that plaintiff is entitled to an award for punitive damages, which includes attorney’s fees and costs of suit?
      Answer: Yes.”

       We note that there were mathematical errors which the plaintiff addresses in his brief. In an effort to reduce the confusion, the amounts referred to in this opinion have been taken from the trial transcript.

       The defendant does not elaborate as to how this comment was prejudicial to his case.


author: Heiman, J.

text:
    Kenneth Polverari et al. v. William T. Peatt, Jr., et al.
    (10626)
    Dupont, C. J., Heiman and Freedman, Js.

      Argued June 3
    decision released September 15, 1992

      Alan R. Spirer, for the appellants-appellees (defendants).

      Louis Ciccarello, with whom was Walter G. Ryba, for the appellees-appellants (plaintiffs).
   Heiman, J.

The defendants in this commercial real estate dispute appeal from the trial court’s judgment awarding the plaintiffs damages for unjust enrichment. They claim that the trial court (1) improperly awarded damages for unjust enrichment even though it found that an express contract that had not been breached existed among the parties, (2) incorrectly determined that the plaintiffs had satisfied their burden of proof regarding unjust enrichment, (3) incorrectly found that the clean hands doctrine did not preclude the plaintiffs from obtaining equitable relief, (4) incorrectly calculated the amount of damages, (5) incorrectly found that the plaintiffs had not acted to the defendants’ detriment by renegotiating a lease on certain commercial property owned by the defendants, and (6) improperly denied their request for an injunction directing the plaintiffs to release certain agreements that had been recorded on the Danbury land records.

The plaintiffs cross appeal, claiming that the trial court improperly calculated their damages by (1) reducing the damages award by $14,096.47, an amount equal to certain mortgage payments on the subject parcel, (2) reducing the damages award by $54,826.08, an amount equal to real estate taxes paid on the parcel, and (3) failing to include $60,000, an amount equal to funds that the partners spent to comply with an environmental permit. We affirm the trial court’s judgment in all respects.

The trial court reasonably found the following facts, which are necessary to resolve both the appeal and the cross appeal. The individual defendant, William T. Peatt, Jr., was at all times pertinent to this case the president and sole stockholder of the corporate defendant, Sugar Hollow Park, Incorporated (Sugar Hollow Park). In the mid 1960s, Sugar Hollow Park acquired a 14.8 acre parcel of land with eight vacant buildings on Sugar Hollow Road in Danbury. On July 11, 1984, Sugar Hollow Park received permission from both the Danbury planning and zoning commission and the Dan-bury environmental impact commission to construct a 15,000 square foot building on the parcel. The environmental impact commission permit was granted subject to certain conditions regarding Sugar Hollow Park’s grading and filling a pond on the parcel. On June 10, 1985, however, the expiration date of the environmental impact commission permit, the work on the pond had not yet commenced. Peatt, tired of operating and managing the parcel, listed the parcel for sale for $1,800,000.

The plaintiffs Kenneth Polverari, Vincent C. Pannozzo and Anthony Tucciarone, experienced real estate investors, wanted to purchase the parcel. Although they lacked the $1,800,000 that Peatt was asking, they knew of a prospective tenant, Linde Homecare Medical Systems (Linde), that was interested in relocating its offices. On August 1, 1985, after some preliminary negotiations, Polverari, Pannozzo, Tucciarone and Peatt entered into a written “agreement in principle” (preliminary agreement), under which they declared their intention, “subject to their being able to agree on the terms and conditions of final agreements governing [the] transaction, to enter into a joint venture” to purchase, develop and either rent or sell the property. The preliminary agreement also contained the following provisions. The signatories would form a partnership at some unspecified time in the future for the purpose of carrying out the aforementioned activities. Sugar Hollow Park would convey the parcel to the partnership for $1,350,000, to be paid by the signatories’ assuming $550,000 in mortgages on the property and signing a five year $800,000 promissory note, at 9 percent interest, in favor of Sugar Hollow Park. Principal on the note was to be paid periodically, in amounts and under conditions to be agreed on in the final agreement. Finally, Polverari, Pannozzo and Tucciarone were to pay Sugar Hollow Park $70,000 for an option to purchase the parcel.

Prior to executing any additional agreements, the four signatories, with Peatt acting as a consultant, began managing the parcel. Each borrowed $15,000 from the Union Trust Company to improve the pond area in accordance with the environmental impact commission permit.

On November 13, 1985, the signatories to the preliminary agreement entered into a written partnership agreement (partnership agreement), thereby creating the plaintiff Sugar Hollow Park Partnership (partnership). The agreement provided that Polverari, Pannozzo, Tucciarone and Peatt were equal partners in the partnership and that the business of the partnership would be to own, develop, invest in, operate, lease, manage and/or sell the parcel. Sugar Hollow Park, however, never conveyed the parcel to the partnership. Although both the mortgage deed and the note were prepared, neither was executed. Nonetheless, the plaintiffs commenced paying interest on the $800,000 note on September 4, 1985.

On March 1,1984, the DownUnder Restaurant, a tenant of a building located on the parcel, entered into a ten year lease with Sugar Hollow Park. Pannozzo and Polverari purchased the restaurant in the fall of 1985 and sold it to Akre’s, Incorporated (Akre’s), in April, 1987. Sugar Hollow Park and Akre’s then executed a seven year lease, which was negotiated by Polverari and Pannozzo. Although the new lease required rental payments that were lower than those paid by the DownUnder Restaurant, it, unlike the prior lease, granted Akre’s an option to extend the lease term for an additional three years.

In 1985, Linde decided not to relocate to the parcel. Despite this setback, the partnership continued to manage the parcel and seek mortgage financing and buyers. Peatt refused to sign a proposed sales contract with one potential buyer because the buyer’s offer was below the $2,900,000 listing price for the property and the offer was made contingent on zoning approval for the construction of a trailer park, a condition that Peatt felt could not be satisfied because of the parcel’s insufficient septic system capacity.

On October 14,1987, Polverari, Tucciarone and Peatt obtained a $675,000 mortgage commitment from the Village Bank. The plaintiffs claimed that this mortgage was needed to pay the existing mortgages on the property, as well as the loans made to the partnership by the individual partners, a $15,000 debt to the Union Trust Company, and development and engineering expenses. Pannozzo’s name was not on the mortgage commitment because he expressed a desire to leave the partnership. Peatt refused to sign the commitment because (1) it did not involve a construction mortgage, (2) he feared that because the mortgage would be used to purchase the property, the partnership would have to obtain yet another mortgage to develop the parcel, and (3) he felt that a bank would insist that the development mortgage be subordinated to his prior $800,000 mortgage.

In April, 1988, the plaintiffs recorded both the preliminary agreement and the partnership agreement on the Danbury land records. In June, 1988, Polverari, Pannozzo and Tucciarone, with Peatt abstaining, voted to dissolve the partnership. At that time, the parcel had been neither developed nor transferred to the partnership as contemplated by the signatories to the partnership agreement.

Between August 1,1985, and June 10,1988, the partnership had cash receipts totaling $552,315.23 and disbursements of $551,551.52, resulting in a cash balance of $763.71. As part of these cash receipts, Polverari, Pannozzo and Tucciarone loaned the partnership $134,200, with Pannozzo contributing $20,000, Polverari contributing $57,700 and Tucciarone contributing $56,500. At the time that the trial court rendered its judgment, the partnership still had unpaid bills totaling $24,027.

From September 4,1985, through December 7,1987, when the payments on the $800,000 note ceased, the partnership paid $165,000 in interest payments to Peatt on the note. Between August 8, 1985, and June 10, 1988, the partnership paid $216,213.19 toward the three mortgages on the property, reducing the principal on the three mortgages by $15,000. The partnership, however, failed to pay $14,096.47 in mortgage payments due during May and June, 1988. Peatt paid $54,826.08 in real estate taxes on the parcel and $3041.06 for attorney’s fees incurred by the partners between August, 1985, and June 10, 1988.

In 1988, the plaintiffs commenced suit against the defendants, who responded by filing an answer and a counterclaim. On August 27,1991, the trial court rendered judgment for the plaintiffs on the third count of their revised complaint, in which the plaintiffs sought damages for unjust enrichment. The trial court ordered the defendants to pay $243,000.10 into an account, to be disbursed as follows: $24,027 to satisfy miscellaneous partnership debts, $41,193.28 to Pannozzo, $77,693.27 to Tucciarone, $78,893.27 to Polverari and $21,193.27 to Peatt.

The trial court arrived at these figures as follows. The court began by finding that the defendants should pay back the $165,000 in interest payments received relative to the $800,000 note. To this sum, the court added $15,000, representing the reduction of principal on the three existing mortgages during the period between August 1,1985, to June 10,1988, and $763.71, the balance remaining in the partnership. From this subtotal of $180,763.71, the trial court subtracted $71,963.61, which consisted of $14,096.47 in mortgage payments due on the three existing mortgages that were not paid by the partnership from May to June, 1988, $3041.06 paid by Peatt as attorney’s fees for matters concerning the parcel and $54,826.08 paid by Peatt to the city of Danbury for real estate taxes on the parcel, leaving a balance of $108,800.10. From this amount, the court ordered the payment of $24,027 to satisfy miscellaneous partnership debts and $21,193.28 to Peatt, the amount he loaned to the partnership. The court divided the remaining $63,579.82 equally among Pannozzo, Tucciarone and Polverari. In addition to his $21,193.28 share of this figure, Pannozzo received $20,000, the amount he loaned to the partnership, for a total award to Pannozzo of $41,193.28. In addition to his $21,193.27 share of the $63,579.82 subtotal referred to above, Tucciarone received $56,500, the amount he loaned to the partnership, for a total award of $77,693.27. In addition to his $21,193.27 share of the $63,579.82 subtotal, Polverari received $57,700, the amount he loaned to the partnership, for a total award of $78,893.27.

The trial court also ordered the plaintiffs, upon receiving these disbursements, to file on the Danbury land records whatever releases were necessary to remove any encumbrances attributable to their recording of the preliminary and partnership agreements.

This appeal and cross appeal followed.

I

The defendants argue first that the trial court incorrectly granted the plaintiffs equitable relief despite finding that the parties had entered into an express contract that had not been breached. We disagree.

“ ‘[P]arties who have entered into controlling express contracts are bound by such contracts to the exclusion of inconsistent implied contract obligations.’ H. B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 346-47, 446 A.2d 1 (1982); see also 42 C.J.S., Implied Contracts § 34. Proof of a contract enforceable at law precludes the equitable remedy of unjust enrichment; United States Fidelity & Guaranty Co. v. Metropolitan Property & Liability Ins. Co., 10 Conn. App. 125, 127, 521 A.2d 1048, cert. denied, 203 Conn. 806, 525 A.2d 521 (1987); 12 S. Williston, Contracts (3d Ed. Jaeger) § 1478; at least in the absence of a breach of the contract by the defendant; Rabinovitz v. Marcus, 100 Conn. 86, 95-96, 123 A. 21 (1923); 3 Restatement (Second), Contracts § 373, comment a; J. Calamari & J. Perillo, Contracts (2d Ed.) § 15-3; a nonwillful breach by the plaintiff; Vines v. Orchard Hills, Inc., 181 Conn. 501, 505-10, 435 A.2d 1022 (1980); Stahenmi v. Cairelli, 22 Conn. App. 578, 581, 577 A.2d 1130 (1990); or a mutual rescission of the contract. Pierce v. Staub, 78 Conn. 459, 466, 61 A. 760 (1906).” Feng v. Dart Hill Realty, Inc., 26 Conn. App. 380, 383, 601 A.2d 547, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).

The trial court expressly found that the parties entered into two contracts — the preliminary agreement and the partnership agreement. The existence of neither of these contracts, however, precluded the trial court from granting the plaintiffs equitable relief because the equitable relief granted was not inconsistent with either of the two contracts. Indeed, neither agreement obligated any of the parties to do anything at all. The preliminary agreement specifically stated that it was “not intended to obligate any party to proceed should such party at any time decide, for any reason, prior to the signing of a definitive agreement, that to so proceed would not be in his best interests.”

The partnership agreement also did not give rise to any obligations on the part of the parties. Although the agreement was signed by the parties and was binding, the trial court reasonably could have concluded that the parties intended that the transfer of title to the partnership be a condition precedent to the parties’ obligations under the partnership agreement. See Pullman, Comley, Bradley & Reeves v. Tuck-it-away Bridgeport, Inc., 28 Conn. App. 460, 468, 611 A.2d 435 (1992); Bauman & Garrity of Lakeville, Inc. v. George E. Emerson, Inc., 14 Conn. App. 261, 265, 540 A.2d 710 (1988). Thus, the trial court reasonably could have concluded that the parties’ obligations under the contract did not come into existence because the passing of title to the partnership, a condition precedent to the parties’ obligations under the partnership agreement, did not occur.

Because the trial court’s award of damages for unjust enrichment was not inconsistent with the preliminary agreement or the partnership agreement, the defendants cannot prevail on this claim.

II

The defendants next assert that the trial court incorrectly found that the plaintiffs had proven the elements of their unjust enrichment claim. We do not agree.

“The right of recovery for unjust enrichment is equitable, ‘its basis being that in a given situation it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.’ Schleichler v. Schleichler, 120 Conn. 528, 534, 182 A.2d 162 (1935).” National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564, 244 A.2d 404 (1968). Plaintiffs seeking recovery for unjust enrichment must prove “(1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” Bolmer v. Kocet, 6 Conn. App. 595, 612-13, 507 A.2d 129 (1986).

The defendants claim that the plaintiffs failed to prove that the defendants’ retention of $165,000 in monthly interest payments made by the plaintiffs was unjust. Whether the payments were unjust is an issue of fact. Stabenau v. Cairelli, supra, 581. “[Wjhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). On appeal, we must give the evidence the most favorable construction in support of the judgment to which it is entitled. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 160, 510 A.2d 440 (1986).

The trial court’s findings of fact and the conclusions that it drew from those findings are supported by the evidence and are not clearly erroneous. The purpose of the $800,000 note, which generated the disputed interest payments, was to secure the transfer of the parcel from Sugar Hollow Park to the new partnership. The trial court could reasonably have concluded that because the defendants allowed themselves to become enriched by accepting the interest payments on the note but refused to allow the parcel to be transferred to the partnership in accordance with the parties’ expectations, the defendants’ retention of the interest payments on the note was unjust.

The defendants cannot prevail on this claim.

III

The defendants next assert that the trial court incorrectly found that the clean hands doctrine did not preclude the plaintiffs from obtaining equitable relief. We do not agree.

“One who seeks to prove that he is entitled to the benefit of equity must first come before the court with clean hands. Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980).” Sachs v. Sachs, 22 Conn. App. 410, 416, 578 A.2d 649 (1990). The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation. DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543 (1977). The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts’ integrity dictate that the clean hands doctrine be invoked. Id.

The defendants claim that the plaintiffs come into equity with unclean hands in two respects. First, they claim that the fact that the rental income from the property declined during the period that the plaintiffs managed the premises indicates that the plaintiffs mismanaged the property. Second, they claim that the plaintiffs acted in bad faith and abdicated their duty to manage the parcel when they voted in June, 1988, to terminate the partnership.

The trial court specifically found that the decline in rental income from the property was not due to bad faith on the part of the plaintiffs and that the plaintiffs used their best efforts to develop the parcel. Our review of the record indicates that these findings were not clearly erroneous. See Stabenau v. Cairelli, supra. Further, nothing in the record supports the defendants’ argument that the termination of the partnership was improper. Indeed, the partnership agreement explicitly provides that the partnership may be terminated upon a written request of partners owning 75 percent of the equity interests in the partnership.

The defendants’ claims are without merit.

IV

The defendants next argue that the trial court incorrectly included $134,000, the value of loans that the plaintiffs made to the partnership, in its calculation of damages for unjust enrichment. We are not persuaded.

The right of recovery for unjust enrichment is rooted in the equitable principle that it is contrary to “ ‘equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.’ ” National CSS, Inc. v. Stamford, supra, 597; Schleicher v. Schleicher, supra; Garwood & Sons Construction Co. v. Centos Associates Limited Partnership, 8 Conn. App. 185, 187, 511 A.2d 377 (1986). “ ‘This doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated. . . . The question is: Did he [the party liable], to the detriment of someone else, obtain something of value to which he was not entitled?’ (Citations omitted.) Franks v. Lockwood, [146 Conn. 273, 278, 150 A.2d 215 (1959).]” Burns v. Koellmer, 11 Conn. App. 375, 384, 527 A.2d 1210 (1987). In calculating restitution damages, the trial court balances the equities of the parties to determine where the loss should fall. Cecio Bros., Inc. v. Greenwich, supra, 564-65. This balancing of equities is a matter within the trial court’s broad discretion. Kimbrell v. Rossitto, 6 Conn. App. 638, 655, 507 A.2d 120 (1986).

The defendants argue that the trial court’s order directing them to repay the plaintiffs the money that the plaintiffs loaned the partnership compensates the plaintiffs not only for the benefit received by the defendants but also for the losses sustained by the plaintiffs. Our review of the record indicates that the trial court acted within its discretion when it determined that the defendants were benefitted by the $134,200 loaned to the partnership by Pannozzo, Polverari and Tucciarone. The record reasonably supports a conclusion that the loans were made in order to maintain and service the long term debt on the parcel, which continued to be owned by the defendants. Thus, the trial court could reasonably have concluded that the money was obtained by the defendants, to the detriment of Pannozzo, Polverari and Tucciarone.

The defendants cannot prevail on this argument.

V

The defendants next claim that the trial court incorrectly found that the plaintiffs had not acted to the defendants’ detriment by renegotiating the lease for the premises occupied by the DownUnder Restaurant. We do not agree.

The defendants argue that the trial court should have deducted $73,391.74, an amount equal to the reduced rental income under the renegotiated lease, from its award of damages. They do not contest either the trial court’s finding that Peatt signed the new lease on behalf of Sugar Hollow Park or its finding that the plaintiffs did not renegotiate the lease to the defendants’ detriment. Rather, they argue that because they were ordered to repay funds received by the partnership, less the losses that they sustained, the reduction in rental income should have been considered a loss that was deducted from the trial court’s unjust enrichment award. It should be noted that the rental payments made before the partnership was dissolved were included in the cash receipts of the partnership, which the court distributed equally between the four partners.

As we noted earlier, the trial court is vested with broad discretion in balancing the equities of the parties for the purpose of calculating restitution damages. Cecio Bros., Inc. v. Greenwich, supra; Kimbrell v. Rossitto, supra. In light of the trial court’s undisputed finding that Peatt signed the renegotiated lease on behalf of Sugar Hollow Park, the trial court acted within its discretion when it determined that the equities of this case dictated that the partnership absorb any losses attributable to the lease before the partnership was dissolved, and that Sugar Hollow Park alone be responsible for any losses attributable to the lease after the partnership was dissolved.

The defendants’ claim is without merit.

VI

The defendants’ final claim is that the trial court improperly denied their request for an injunction directing the plaintiffs to release both the preliminary and partnership agreements from the Danbury land records. We disagree.

The trial court, in its judgment, ordered the plaintiffs to release the agreements upon receiving the payments specified in the judgment. Thus, the defendants appear to contest the trial court’s deferring the releases until they have satisfied their financial obligations under the judgment. As we have repeatedly noted, the trial court is afforded broad discretion in fashioning an equitable remedy. See, e.g. Cecio Bros., Inc. v. Greenwich, supra; Kimbrell v. Rossitto, supra. The trial court’s orders, which served to provide an incentive to the defendants to satisfy their obligations under the judgment forthwith, did not constitute an abuse of this considerable discretion.

The defendants’ claim is without merit.

VII

In their cross appeal, the plaintiffs argue that the trial court incorrectly computed the amount of damages to which they were entitled. Specifically, they argue that the trial court (1) should not have reduced the damages award by $14,096.47, an amount equal to mortgage payments that became due on the three mortgages on the parcel between February, 1988, and June, 1988, (2) should not have reduced the damages award by $54,826.08, an amount equal to real estate taxes paid on the property, and (8) should have included in its damages award $60,000, an amount equal to funds that the partners spent to comply with the environmental impact commissions permit. We disagree with each of the plaintiffs’ claims.

As we have previously stated, the amount of damages for unjust enrichment rests within the trial court’s sound discretion. National CSS, Inc. v. Stamford, supra. Unjust enrichment is, consistent with its equitable nature, a broad, flexible remedy that allows the trial court to award that sum of money that the court deems just under the particular circumstances of the case. Cecio Bros., Inc. v. Greenwich, supra. The amount of damages to be awarded depends on the degree to which one party wrongfully has retained a benefit to the detriment of another.

The plaintiffs bear the burden of establishing, on their cross appeal, that the trial court abused its discretion in calculating damages. Our review of the record convinces us that the trial court did not abuse its discretion in calculating damages. The trial court reasonably could have concluded that the mortgage and tax payments were paid by the defendants for the benefit of all of the partners, and therefore, that equity demanded that all partners share in these expenses. Similarly, the trial court reasonably could have concluded that the defendants neither uniquely benefited from nor retained the funds that the partners spent in order to keep the environmental impact commission permit in effect during the period of the partnership.

Accordingly, the cross appeal is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs in this action are Kenneth Polverari, Vincent C. Pannozzo, Anthony Tucciarone and the Sugar Hollow Park Partnership. The defendants are William T. Peatt, Jr., and Sugar Hollow Park, Inc.