author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. ANGEL T.

    (AC 27168)
    DiPentima, McLachlan, and McDonald, Js.
    Argued March 13, 2007
    officially released February 5, 2008

      Gary A. Mastronardi, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Stephen J. Sedensky III, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

   Opinion

MCDONALD, J.

The defendant, Angel T., appeals from the judgment of conviction, rendered after a juiy trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1) and (2). The defendant claims that the prosecutor violated his constitutional rights against self-incrimination and to counsel and, therefore, deprived him of his right to a fair trial. He argues that the prosecutor improperly asked the jury to infer guilt by introducing and commenting on evidence that the defendant had obtained a lawyer and refused to be interviewed by the police. We agree with the defendant and find prejudice calling for a new trial. The judgment is therefore reversed.

The following evidence was introduced at the defendant’s trial. The victim, then age ten, was the defendant’s niece, and the defendant lived at the victim’s family residence. In July or August, 1999, the defendant, on three occasions, entered the victim’s bedroom while she was asleep. During the first two occasions, the defendant touched the victim’s legs and tried to pull down her pajama pants. Each time the victim kicked the defendant, and he left the room before he succeeded in removing her pants. On the third occasion, the defendant entered the victim’s bedroom while she was asleep, pulled down her pajama pants, held her legs tightly and licked and bit her in the vaginal area. After the victim hit and kicked the defendant and called out for her father, the defendant left the room.

Two days after the third incident, the victim told her parents about the defendant’s actions. Her parents confronted the defendant, and, shortly thereafter, he moved out of the residence to New Jersey. No report was made to police at that time. In May, 2004, the victim’s mother told a family counselor about the defendant’s conduct, and the counselor reported those allegations to the police, who initiated a criminal investigation.

During the investigation, Bryan Bishop, a police detective, attempted to interview the defendant. Bishop left a telephone message to that effect for the defendant in New Jersey. The following day, Bishop received a telephone call from Ron Sanchez, who identified himself as the defendant’s attorney. Sanchez and Bishop scheduled an interview of the defendant by the police, which was to take place at Sanchez’ office in New Jersey on July 7, 2004. When Bishop contacted Sanchez on July 6, 2004, to confirm the interview, Sanchez told Bishop that he could no longer make contact with the defendant. As a result of that conversation, Bishop did not travel to New Jersey to interview the defendant but later repeatedly called the defendant’s telephone number in New Jersey without successfully contacting him.

At trial, in the state’s case, the prosecutor solicited testimony on direct examination from the victim, the victim’s mother and the counselor indicating that each individual had given written statements to the police. The prosecutor solicited testimony from Bishop in the state’s case that Bishop had taken written statements from the victim, the victim’s mother and others. The prosecutor also presented testimony that Bishop had sought a statement from the defendant, whom he had located in New Jersey, but that when Bishop later spoke with Sanchez, Sanchez claimed that he could not contact the defendant.

When the defendant testified in his case on direct examination, he denied sexually assaulting the victim. During his direct examination, the defendant did not testify about giving the police a statement. The prosecutor, however, on cross-examination, asked the defendant about his failure to submit to the police interview in July, 2004. In so doing, the prosecutor asked the defendant why he did not speak with the police. In response, the defendant testified that his attorney’s advice was not to speak to anyone about the matter. The defendant testified that his attorney instructed him that he could not talk to anybody and that his attorney would represent him in all matters. In response to the prosecutor’s question about whether the lawyer would not let him talk to the police even with the lawyer present, the defendant replied in the affirmative but added that he never talked to the police.

During opening summation, the prosecutor argued that Bishop’s failure to meet with the defendant was through no fault of the detective himself. The prosecutor commented that the detective had gathered information from the victim and her family and also had attempted without success to get information from the defendant. Defense counsel, during summation, did not touch on the police attempts to interview the defendant.

The prosecutor then argued in closing summation that Bishop had wanted to interview the defendant and that there were three versions as to why the interview had not taken place, the defendant’s, Sanchez’ and Bishop’s. The prosecutor argued that Bishop was an impartial investigator reaching out to see what everybody had to say and that Bishop would have benefited from the defendant’s interview in evaluating the case. Once contacted by the defendant’s attorney, the prosecutor stated that Bishop “playjed] it straight up” and tried “to go through that attorney” but was told that the attorney could not contact the defendant. The prosecutor also stated that Bishop testified that he had received no response when he attempted later to contact the defendant directly.

Later in closing summation, in discussing the defendant’s credibility, the prosecutor pointed out that the defendant was provided with an opportunity to help with the investigation and asked the jury if he elected to do so. The prosecutor remarked that on the witness stand, the defendant gave the impression that it was always someone else’s fault because the defendant wanted the interview but that Bishop changed the appointment.

The defendant argues that the introduction of that evidence and comments on it violated his due process right to a fair trial.

“A defendant has the right to the assistance of counsel for his defense; that right is secured by the sixth and fourteenth amendments to the United States constitution. Generally, while a prosecutor may invite the jury to draw reasonable inferences from the facts in evidence, he or she may not invite the jury to draw adverse inferences from the fact that a defendant, at any time, retained counsel. A prosecutor may not imply that an accused’s decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment, implies guilt. Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir. 1990); see also United States v. Santiago, 46 F.3d 885, 892 (9th Cir.) (under the Sixth Amendment right to counsel, prosecutors may not imply that the fact that a defendant hired a lawyer is a sign of guilt), cert. denied, 515 U.S. 1162, 115 S. Ct. 2617, 132 L. Ed. 2d 860 (1995); United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980) ([i]t is impermissible to attempt to prove a defendant’s guilt by pointing ominously to the fact that he has sought the assistance of counsel), on appeal after remand, 672 F.2d 864 (11th Cir. 1982) .... In United States v. Liddy, 509 F.2d 428, 444-45 (D.C. Cir. 1974), cert. denied, 420 U.S. 911, 95 S. Ct. 833, 42 L. Ed. 2d 842 (1975), the United States Court of Appeals for the District of Columbia Circuit relied on the principle that it is always improper to invite the jury to draw an inference of guilt from the fact that a defendant retained counsel.” (Internal quotation marks omitted.) State v. Santiago, 100 Conn. App. 236, 244-45, 917 A.2d 1051, cert. denied, 284 Conn. 933, 935 A.2d 152, 153 (2007).

In State v. Santiago, supra, 100 Conn. App. 245, we quoted United States ex rel. Macon v. Yeager, 476 F.2d 613, 615 (3d Cir.), cert. denied, 414 U.S. 855, 94 S. Ct. 154, 38 L. Ed. 2d 104 (1973), that “a prosecutor’s comment seeking to raise in the jurors’ minds an inference of guilt from the defendant’s constitutionally protected conduct constitutes a penalty on the free exercise of a constitutional right . . . .” (Internal quotation marks omitted.)

We recognize that references concerning defense counsel may be made by the state during trial. Such references, however, must be focused and pertinent to a proper issue rather than part of an invitation to infer guilt. See State v. Santiago, supra, 100 Conn. App. 247. In the present case, the evidence and comments exceeded a focus on any proper issues other than guilt. Before any arrest, the defendant, who was a suspect in a criminal investigation, was asked by the police to submit to a police interview. We believe that the defendant, facing such a request, has the right, without penalty, to seek and to have the assistance of counsel when interacting with police officers who are seeking an interview. See Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.), cert. denied, 493 U.S. 969, 110 S. Ct. 418, 107 L. Ed. 2d 383 (1989); United States v. Caro, 637 F.2d 869, 876 (2d Cir. 1981); United States ex rel. Macon v. Yeager, supra, 476 F.2d 615.

To determine whether the prosecutor’s questions and comments were improper, we must examine their purpose and what inferences were likely to be drawn by the average juror. See State v. Santiago, supra, 100 Conn. App. 246; see also United States v. McDonald, supra, 620 F.2d 564. The state solicited evidence from numerous witnesses in its case about the defendant’s and his attorney’s reluctance to interact with the police in contrast to the willingness of other witnesses. The prosecutor elicited testimony about the defendant’s attorney and argued that a police interview with the defendant never took place through no fault of the police, who successfully had interviewed other witnesses. Thereafter, the prosecutor suggested that the fact that the defendant had hired an attorney and refused to submit to a police interview showed a lack of helpfulness with the impartial police investigation. He portrayed the defendant and the defendant’s use of an attorney as unhelpful to the investigation. The prosecutor portrayed Bishop as an “impartial investigator” who simply wanted to hear all sides of the story. In this way, the prosecutor referred negatively to the defendant’s decision to retain an attorney.

We find the language of the United States Court of Appeals for the District of Columbia in United States v. Liddy, supra, 509 F.2d 444, persuasive. In that case, the court noted that the right to counsel of an accused person facing police interrogation and the privilege against self-incrimination are intimately bound together. Id. We recognize that there may be many concerns prompting an attorney to advise his client not to be interviewed by the police. Moreover, the United States Court of Appeals for the Second Circuit has remarked that it found no cases where the prearrest refusal to grant a police interview could be, as was the case here, presented in the state’s case. See United States v. Caro, supra, 637 F.2d 876. The state’s introduction of evidence of the defendant’s silence in response to police questioning, on advice of counsel, violated his right against compulsory self-incrimination. See Combs v. Coyle, 205 F.3d 269, 280-83 (6th Cir.), cert. denied sub nom. Bagley v. Combs, 531 U.S. 1035, 121 S. Ct. 623, 148 L. Ed. 2d 533 (2000); Coppola v. Powell, supra, 878 F.2d 1567-68; United States v. Caro, supra, 876.

We conclude that the state’s introduction of such evidence and the adverse comments at trial on that evidence by the prosecutor were improper. Such argument would compel agreement to undertake a police interview. This has been condemned by the United States Supreme Court in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). The prosecutor’s suggestion that the defendant did not help the police investigation also gave rise to the inference that the defendant did so because he was guilty. By commenting on the defendant’s consultation with counsel and subsequent failure to submit to a police requested and initiated interview, the prosecutor, in the words of the United States Court of Appeals for the First Circuit, improperly implied that the defendant “had something to hide.” Coppola v. Powell, supra, 878 F.2d 1566.

On appeal, the state argues that the evidence was admitted to challenge the defendant’s testimony that he intended to speak with the police but that they, not he, cancelled the meeting. This argument must fail because the record reveals that all testimony concerning the defendant’s attorney and the police interview was initiated by the state in its presentation of the state’s case or during cross-examination of the defendant.

Accordingly, having concluded that the prosecutor’s conduct was improper, we must consider if the evidence and argument deprived the defendant of a fair trial. See State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). “In determining whether prosecutorial [conduct] . . . amounted] to a denial of due process, [our Supreme Court], in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) Id.

As to the harmfulness of the state’s introduction of the evidence and its comments in summation, we have examined the case against the defendant to determine whether it was overwhelming. Because of the five year delay in reporting the offense, the principal evidence against the defendant was the testimony of the victim. The case against the defendant was not overwhelming. See State v. Ritrovato, 280 Conn. 36, 57, 905 A.2d 1079 (2006) (noting that in sexual assault cases, evidence not strong when there is no conclusive physical evidence and victim is minor). We also note that the jury twice reported to the court that it was deadlocked.

The record also shows that the prosecution’s introduction of evidence concerning the defendant’s attorney was not invited by the defense either by questioning witnesses or during final argument. We note that the prosecutor’s remarks were not in response to evidence presented by the defendant and were based entirely on evidence presented as part of the state’s case or raised by the prosecutor during cross-examination of the defendant and his brother. See State v. Williams, supra, 204 Conn. 540. The state’s questioning, in combination with comments made during closing argument, made the defendant’s refusal to be interviewed by the police a prominent part of the state’s case. Because defense counsel failed to object or to seek curative measures, none were taken by the court. In applying the Williams factors, we have considered counsel’s failure to object; however, because of the nature of the prosecutor’s conduct, we conclude that the defendant was deprived of a fair trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In closing argument, the prosecutor stated: “You have [the victim’s] mom, people that you would normally expect her to deal with; her mother, her father, the investigating detective, Bryan Bishop, who sought to get information from everyone that was involved and was only able, not through [any] fault of the detective himself, but was only able to get it from [the victim] and her family, but he made that attempt to get it from the defendant. . . .
      “You have Detective Bryan Bishop . . . now he’s an investigator that talked to a number of witnesses in this case, sought to interview the defendant. Now, you have three versions in this area You have what the defendant told you about when he was contacted or received knowledge of the contact by the . . . police department. You have the information that Detective Bishop provided you about what the attorney—the defendant’s own attorney said. And, you have the information about what Detective Bishop did. Here, you have an impartial investigator reaching out, wants to see what everybody has to say. All right. Is the defendant mistaken? Is Detective Bishop mistaken? Is the attorney mistaken? What [does] your own common sense and everyday life experience tell you? Wouldn’t it certainly be to Detective Bishop’s benefit to have that interview so he can evaluate his case? He went through the attorney. Once he was contacted by the attorney. He kept trying to go through that attorney, playing it straight up. The attorney says he can’t get a hold of [the defendant]. Tries to make other contact, no reply.”

       The prosecutor stated during rebuttal: “Then you had the defendant himself; listen to the court’s charge about the interest in—that he has in the case. What was his demeanor in court when you saw him? He had an opportunity to help the investigation, ladies and gentlemen. Did he choose to do that? You can believe some, all and or none of any testimony that’s given.
      “Did you get the impression, when you saw him on the witness stand, that made it always be somebody else’s fault? You know, I was there, I wanted to talk to—I would have talked to—talked to the police officer, but the appointment was changed. All right. That’s putting the blame. And here’s the situation that’s not concerned with this case, except that he wants to be interviewed about it, but the third party that’s involved is Detective Bishop, and they’re putting the blame on someone else. Is that consistent with trying to shift blame in a more serious case, in a more serious example?”

       Although the defendant’s claim of prosecutorial impropriety was not preserved at trial, it may be reviewed utilizing the two-pronged analysis that we have applied in the past. See State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004) (unpreserved claims of prosecutorial impropriety reviewable without seeking Golding review'). Furthermore, the state does not contest the reviewability of this claim.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    MARK J. CHRISTENSEN v. LINDA L. REED ET AL.
    (AC 27327)
    McLachlan, Gruendel and Lavine, Js.

      Argued September 17, 2007
    officially released February 5, 2008

      Lloyd L. Langhammer, with whom, on the brief, was Meredith E. Russell, for the appellant (plaintiff).

      B. Paul Kaplan, for the appellees (named defendant et al.).

      Kathleen M. Cerrone, with whom, on the brief, was William H. St. Onge, for the appellee (defendant S & P Ventures, LLC).
   Opinion

McLACHLAN, J.

The plaintiff, Mark J. Christensen, appeals from the judgment of the trial court finding in favor of the defendants, Linda L. Reed, Scott R. Reed and S & P Ventures, LLC (S & P). The plaintiff commenced a two count action against the defendants, seeking to quiet title to a certain right-of-way and seeking a declaratory judgment of an easement by necessity over the defendants’ properties. On appeal, the plaintiff claims that the court improperly (1) concluded that he was not entitled to an easement by necessity and (2) required him to have searched the titles of all of the abutting properties. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the issues on appeal. The plaintiff owns a twenty-five acre parcel of land in Canterbury. The Reeds own property that abuts the plaintiffs parcel of land to the west, and S & P owns property that was carved out of the Reeds’ parcel, which, as a result, borders the Reeds’ property to the west. The defendants’ properties have direct access to North Society Road, a highway in Canterbury. The root of the plaintiffs title to the property can be traced back to a deed dated January 15, 1880, from Francis B. Pellet to Thomas Shea. The deed contained a right-of-way, or easement, to access a wood lot retained by the plaintiffs predecessor in title. The right-of-way was subject to a seasonal limitation from October 1 to April 1 of each year. This right-of-way appears only once in the chain of title of the parties between 1880 and 1984. The plaintiff acquired title to the property in 1984 by way of five quitclaim deeds and a sixth document, which contained an “ ‘assignment of interest’ . . . .” None of the conveyances to the plaintiff contained a habendum clause or other language purporting to convey the right-of-way across the defendants’ properties, despite the fact that without the right-of-way the parcel is landlocked.

On May 19, 2003, the plaintiff served his complaint, seeking (1) to quiet title to the right-of-way across the defendants’ properties and (2) a declaratory judgment of an easement by necessity over the defendants’ properties. On January 6, 2006, the court found in favor of the defendants on both counts. The court rejected count one of the plaintiffs claim on two grounds. First, the court concluded that the right-of-way had been abandoned because there was clear evidence of physical nonuse of the right-of-way, and it was absent from both the plaintiffs and the defendants’ chains of title in subsequent recorded deeds. Second, the court held that the plaintiffs claim for the right-of-way was barred by the Marketable Record Title Act (act) because the plaintiffs predecessors in title failed to include the easement in the deeds in the defendants’ chains of title. As to count two of the complaint, the court concluded that the plaintiffs property is landlocked but not entitled to the claimed right-of-way because the plaintiff failed to meet his burden of proof in establishing an easement by necessity. Specifically, the court stated that “it is not abundantly clear . . . that the plaintiff has any reasonable necessity for the claimed easement over the defendants’ property. The defendants’ property abuts the plaintiffs property to the west, but not to the north, south or east. The evidence does not establish that the plaintiffs property is inaccessible save over the defendants’ lands; therefore, the court cannot find an easement by necessity.” (Emphasis in original.) This appeal followed.

I

The plaintiff first claims that the court improperly concluded that he was not entitled to an easement by necessity over the defendants’ properties. This contention is twofold. First, the plaintiff asserts that the court improperly found facts and improperly applied the law as to easements by necessity. Second, the plaintiff contends that the court failed to distinguish between a license and an interest in real estate. We will consider each claim in turn.

A

The plaintiff claims that the court misapplied the law relating to easements by necessity when it concluded that his parcel was landlocked but held that he did not prove that reasonable enjoyment of the land required an easement by necessity. Particularly, the plaintiff argues that the court improperly found that there was no evidence that his parcel was inaccessible by an alternate means. In opposition, the defendants assert that the court properly found that there was no need for an easement by necessity because the plaintiff failed to satisfy his burden of proof.

The plaintiffs claim raises a question of law, and, therefore, our review is plenary. See Kelley v. Tomas, 66 Conn. App. 146, 153, 783 A.2d 1226 (2001). “The court’s factual findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole .... We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Pender v. Matranga, 58 Conn. App. 19, 23, 752 A.2d 77 (2000).

“The requirements for an easement by necessity are rooted in our common law. . . . [A]n easement by necessity -will be imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor, or where the grantor retains an adjoining parcel which he can reach only through the lands conveyed to the grantee. . . . [T]o fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of way. The necessity element need only be a reasonable one.” (Citation omitted; internal quotation marks omitted.) First Union National Bank v. Eppoliti Realty Co., 99 Conn. App. 603, 608, 915 A.2d 338 (2007). “Although the requirements for an easement by necessity once included a showing of unity of ownership; Hollywyle Assn., Inc. v. Hollister, [164 Conn. 389, 399, 324 A.2d 247 (1973)]; our Supreme Court has eliminated that requirement.” First Union National Bank v. Eppoliti Realty Co., supra, 608 n.6. Moreover, although it is true that “[a]n easement of necessity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right-of-way is necessary for the enjoyment of the parcel . . . [t]he inverse also is true; that is, a common-law right-of-way based on necessity expires when the owner of a dominant estate acquires access to a public or private road through another means.” (Citations omitted.) Pender v. Matranga, supra, 58 Conn. App. 26.

In his complaint, the plaintiff alleged that he was entitled to the claimed right-of-way because it “is the exclusive manner of access between [his] [property and the public highway known as North Society Road, and represents the only access to [his] [property from any highway.” (Emphasis added.) At trial, the court concluded that the plaintiff had not satisfied his burden of proof as to the right-of-way being the “ ‘exclusive manner of access’ . . . .” Particularly, the court found that the “evidence presented to the court demonstrate[d] that the plaintiff and/or his guests had accessed his property on several occasions by alternate access routes. Additionally, the plaintiffs title searcher never completed a full title search on any of the abut-ters’ properties to the north, south or east of the plaintiffs parcel. . . . [I]t is not abundantly clear to the court that the plaintiff has any reasonable necessity for the claimed easement over the defendants’ property.” (Emphasis in original.)

The plaintiff challenges this decision claiming that under Myers v. Dunn, 49 Conn. 71 (1881), and its progeny the “law presumes the intent of the common grantor (Francis B. Pellet) was to permit [the] easement to be for all purposes to ensure the ‘most profitable use, the most beneficial enjoyment’ of [the] easement . . . .” (Citation omitted.) The plaintiff further contends that because the court found the parcel was landlocked, it should have then concluded that he was entitled to an easement by necessity. Thus, the plaintiff argues that the court misapplied the law in finding that there was no easement by necessity.

Conversely, the defendants argue that because the plaintiff alleged in his complaint that the right-of-way was the “exclusive manner of access” to his property, he had the burden of proving that the claimed right-of-way was the exclusive manner of access and that he failed to do so. In his reply brief, the plaintiff takes issue with the defendants’ argument concerning exclusivity, claiming that the term exclusive is merely an adjective and has no evidentiary value. The plaintiff asserts that under Connecticut case law there is no authority that requires proof of “exclusivity” for access in an easement by necessity claim. Although this contention may be an accurate characterization of the law, the plaintiff specifically chose to plead exclusivity. Moreover, the court noted that although the plaintiff had not satisfied his burden of establishing exclusivity of access, he also did not adduce sufficient evidence to demonstrate that he had a reasonable necessity. The court stated that “it is not abundantly clear to the court that the plaintiff has any reasonable necessity for the claimed easement over the defendants’ property.” (Emphasis in original.)

In reaching its conclusion, the court took into account the evidence that on five separate occasions people gained access to the plaintiffs parcel of land by means other than through the defendants’ land. The court also found that “the plaintiffs title searcher never completed a full title search on any of the abutters’ properties to the north, south or east of the plaintiffs parcel.” The Reeds argue that this was the correct result because “the plaintiff did not offer any evidence of a title search of the Shea chain of title to the north even though Shea was an abutter to the plaintiffs property and the same name had owned the abutting property for seventy consecutive years. . . . The . . . ‘surrounding circumstances’ considered by the trial court include [d] the plaintiffs failure to present evidence concerning any rights-of-way over the Shea parcel to the northeast of the plaintiffs land. It is likely that the 1880 right-of-way was limited to the winter months to drag wood across the frozen ground and wetlands to the west because the same person (Shea) probably owned the abutting property to the east and did not need an easement for any other purpose.” (Citation omitted.) In reply, the plaintiff claims that the Reeds’ argument is “pure speculation.” Pure speculation or not, the principal elements of an easement by necessity remain the same, which are whether a common grantor left a parcel landlocked and whether there is a reasonable necessity for ingress and egress over the burdened land. See Pender v. Matranga, supra, 58 Conn. App. 26. If there were other modes of ingress and egress, the plaintiff had the burden to prove, at the least, that the claimed right-of-way was reasonable and that the alternative modes did not exist. Here, even though the plaintiff claimed exclusivity of access, he did not meet even the minimum burden of reasonableness, nor did he demonstrate that there were no alternate reasonable modes of access. Thus, the court correctly concluded that because the plaintiffs title searcher never completed a full search, it was not convinced that the plaintiffs property is “inaccessible save over the defendants’ lands . . . .”

B

The plaintiff next claims that the court failed to distinguish between a license and an interest in real property. The plaintiff asserts that the court’s finding that the “evidence does not establish that the plaintiffs property is inaccessible save over the defendants’ lands” indicates that the court misunderstood the law concerning licenses because a license does not convey an interest in land. “[A] license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property . . . .” (Internal quotation marks omitted.) Mulle v. McCauley, 102 Conn. App. 803, 814 n.2, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007). “Generally, a license to enter [a] premises is revocable at any time by the licensor.” (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 163, 612 A.2d 1153 (1992). “[A] license must be exercised only in the manner and for the special purpose for which consent was given.” (Internal quotation marks omitted.) Miller v. Grossman Shoes, Inc., 186 Conn. 229, 237, 440 A.2d 302 (1982).

The plaintiff argues that because the court considered the permissive entries onto his land, it misapplied the law concerning easements and licenses. Specifically, the plaintiff points to the evidence that on five different occasions his parcel was accessed by means other than the claimed right-of-way because he sought permission from his neighbors. The plaintiff claims that because he was given permission by his neighbors, which would create a revocable license, this fact does not mean that he had alternate modes of access to his parcel. S & P argues that “[r]egardless of whether the plaintiffs property could be accessed through [a] license or through an interest in real estate, the plaintiff had to prove exclusivity of access to prove the allegations of his complaint.” We agree with S & P. Although the plaintiff might have had a license on those five separate occasions, this does not change the fact that he failed to meet his burden of proof to establish the claimed easement by necessity.

n

The plaintiff next claims that the court improperly required him to have searched the titles to all of the abutting properties. The plaintiff argues that because the court found one common grantor for the defendants’ and plaintiff’s properties, requiring a full search of the titles of the owners of abutting property was irrelevant to ascertaining the intent of the common grantor. Furthermore, he claims that the word “exclusive” does not require such a search of the abutting property. S & P disagrees, asserting that the court did not misapply the law because a title search was just “one way that the plaintiff could have met his burden to show that the one easement he sought over the defendants’ property was the only means of access.” S & P correctly asserts that a full title search of all of the abutting properties would have shown whether there were other easements that were not in the plaintiffs chain of title but may have been in one of the abutting owners’ chains of title. The plaintiff had the burden to prove that there were no reasonable alternate modes of access, and he failed to satisfy this burden. Thus, the court correctly concluded that he did not satisfy his burden of proof and that the evidence concerning the abutting property would not have satisfied his burden, particularly where one of the abutting properties was owned by a Shea, which was the name of one of the plaintiffs predecessors in title. We agree with the court that such a search would have disclosed the existence or absence of another means of access.

The judgment is affirmed.

In this opinion the other judges concurred.

APPENDIX

       The plaintiff is appealing from only the portion of the judgment concerning count two of his complaint, asserting that he is entitled to an easement by necessity.

       The court found that the property now owned by the Reeds and S & P was once one parcel of land. Moreover, the plaintiff and the defendants share a common grantor, Francis B. Pellet. “The language regarding a right-of-way is contained solely in the plaintiff’s chain of title from Pellet to [Thomas] Shea. The defendants’ chains of title, from Francis B. Pellet to Mary S. Chase, dated March 14,1889, at Volume 29, Page 416 of the Canterbury land records, contains no habendum clause or reservation of a right-of-way in the name of the grantor of the servient estate.”

       See General Statutes §§ 47-33b through 47-331. General Statutes § 47-33c provides in relevant part that “[a]ny person . . . who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest . . .

       We do not conclude that the court’s use of the phrase “abundantly clear” indicates that the court employed a higher standard of proof.

       On appeal, S & P also asserts alternate grounds for affirmance, claiming that the plaintiff abandoned the easement and that the easement is barred by the act. Because we conclude that the plaintiff failed to satisfy his burden of proof that he was entitled to an easement by necessity, we need not address these arguments.

       At trial, the plaintiff testified that he and several individuals had accessed his property on five different visits by means other than the claimed right-of-way:
      “Q. [W]hen the historical society went to your property, did they access it through the cart path or through an alternate access?
      “A. Alternate route.
      “Q. When [surveyor Fred Finn] went to your property twice ... he accessed it through alternate accesses, according to his testimony. Once from the east, I believe, and once from the west.
      “A. That’s true. And he also walked the cart path and measured that out. So, that’s an access, is it not?
      “Q. And when the loggers took the logs off your property the two times it was logged, that was through alternate access and ....

        “A. Correct.”
      The plaintiff further testified: “I always had to obtain permission to access my lot 6.1 could never go over it freely. ... I could not have accessed lot 6, other than my cart path, had they [his neighbors] refused [access].”

       The plaintiffs contentions rest on his analysis of Connecticut case law concerning easements by necessity starting with Myers v. Dunn, supra, 49 Conn. 71. The plaintiff argues that under the Myers definition of an easement by necessity, all he had to establish was that the “owner of land has a right to the most profitable use, the most beneficial enjoyment thereof . . . .” Moreover, under later decisions, the plaintiff argues citing Hollywyle Assn., Inc. v. Hollister, supra, 164 Conn. 398-99, that this definition was expanded to include a broader definition of necessity, which can be fulfilled by a less than absolute need of the party claiming the right-of-way. Thus, the plaintiff claims that he satisfied his burden of showing that he was entitled to an easement by necessity. The plaintiff, however, did not rely on this case law as the theory under which he commenced the action. Instead, the plaintiff asserted that the claimed right-of-way was the exclusive means of access to his property. Parties cannot raise claims on appeal that are not raised at trial.

       Even though S & P stated in its brief that “ [i]f the plaintiff had not alleged exclusivity in his complaint, it is not clear whether he could have stated a cause of action for an easement by necessity,” we agree with the court’s conclusion that there was also no evidence to support the plaintiffs claim that he has a reasonable necessity for the claimed easement.

       “The plaintiff is permitted to prove at trial a theory of liability not specifically pleaded if the pleadings give notice of the transactions or occurrences intended to be proved, and the defendant does not demonstrate any prejudice . . . .” 61A Am. Jur. 2d, Pleading § 139 (1999), citing Cole v. O’Tooles of Utica, Inc., 222 App. Div. 2d 88, 643 N.Y.S.2d 283 (1996).

       Moreover, in this appeal, the defendants assert that the plaintiff is incorrectly attempting to expand the easement to a year-round easement even though at trial he claimed only a six month right-of-way. The following colloquy occurred during the plaintiffs testimony:
      “[The Court]: . . . Are you looking to expand your right-of-way to twelve months?
      “[The Plaintiff]: Well, through negotiations if it gets settled, then ....
      “[The Court]: Well, we’re not talking about settlement; we’re on trial.
      “[The Plaintiff]: Right.
      “[The Court]: You’re not asking this judge to expand . . .
      “[The Plaintiff]: No.”
      Because this court finds no such right-of-way, this issue is moot.

       “One seeking an easement by necessity has the burden to prove the existence of such easement, and that the easement is reasonably necessary for the epjoyment of the land, by clear and convincing evidence. The burden of proving that an alternative mode of access is not available is also on the person claiming the easement by necessity.” 25 Am. Jur. 2d, Easements and Licenses § 116 (2004).


author: GRUENDEL, J.

text:
    ELIZABETH IAZZETTA v. LEO NEVAS ET AL.
    (AC 26993)
    DiPentima, Graendel and Lavine, Js.
    Argued November 28, 2007
    officially released February 5, 2008

      Thomas M. Cassone, with whom, on the brief, was Elizabeth Iazzetta, pro se, for the appellant (named plaintiff).

      Joseph A. La Bella, with whom was Melissa M. Rich, for the appellees (defendants).
   Opinion

GRUENDEL, J.

In this slip and fall case, the plaintiff, Elizabeth Iazzetta, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, Leo Nevas and Marc Nevas Real Estate, Inc. She alleges instructional error. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the spring of 2001, the plaintiff was employed by Fairfield County Magazine. On May 30, 2001, she arrived at its office, located at 49 Richmondville Avenue in Westport. After exiting her vehicle, the plaintiff stepped on a crack in the pavement of the parking lot and fell to the ground. At that point, the plaintiff left the premises and returned to her home.

A personal injury action against the defendants followed, at the conclusion of which the jury found in favor of the defendants. The jury interrogatories indicate that although the plaintiff had established that the defendants were negligent in some respect as she alleged, she failed to prove that their negligence was the proximate cause of her injuries. The plaintiff thereafter moved to set aside the verdict, claiming, inter alia, that the court improperly failed to provide the jury with an “eggshell plaintiff’ charge. The court denied that motion and rendered judgment in accordance with the verdict of the jury. From that judgment, the plaintiff appeals.

The plaintiff claims that the court improperly failed to provide an eggshell plaintiff charge to the jury. We disagree.

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and ... are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict .... The trial court must adapt its instructions to the issues raised in order to give the jury reasonable guidance in reaching a verdict and not mislead them.” (Internal quotation marks omitted.) Mojica v. Benjamin, 64 Conn. App. 359, 368, 780 A.2d 201 (2001). “Claims of error addressed to the [jury] charge are tested by the pleadings and by the evidence .... The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. . . . The court should, however, submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence.” (Citation omitted; internal quotation marks omitted.) Olkowski v. Dew, 48 Conn. App. 864, 868, 713 A.2d 264, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998).

The plaintiff did not plead in her complaint that the defendants’ alleged negligence aggravated any preexisting condition or prior injury. See Mojica v. Benjamin, supra, 64 Conn. App. 369; Olkowski v. Dew, supra, 48 Conn. App. 868. Moreover, the plaintiff did not file an amendment of her pleading to conform to the proof that she claims was offered by the defendants regarding the aggravation of a preexisting condition or prior injury. Although the defendants raised the special defense of contributory negligence in their answer to the plaintiffs complaint, they did not allege that the plaintiff had any preexisting condition or prior injury. Moreover, the defendants did not submit evidence as part of their case demonstrating that the plaintiff had any preexisting condition or prior injury. Contra Rubano v. Koenen, 152 Conn. 134, 136-37, 204 A.2d 407 (1964) (preexisting injury charge appropriate where claim of aggravation of preexisting injury not raised by plaintiff, but defendant presented expert testimony that plaintiff had sustained back injury in accident “with probable aggravation of a preexisting disc pathology at the lumbosacral level”).

The only evidence that the plaintiff discusses in her brief concerns the testimony of Silvia Knoploch, aphysi-atrist, who testified without objection as an expert witness on her behalf. Knoploch testified that she first treated the plaintiff in 2002, the year after her parking lot fall. During cross-examination, Knoploch testified that she diagnosed the plaintiff as suffering from chronic pain syndrome, a behavioral syndrome marked by symptom exaggeration, and anxiety syndrome. Knoploch was not questioned as to whether those conditions existed prior to the May 30, 2001 fall. When asked by the defendants’ counsel whether she believed that the plaintiff suffered “pain from the bulges in her lumbar spine,” Knoploch testified: “No, I don’t.” At no time in her testimony did Knoploch opine that the plaintiff suffered from a preexisting condition or injury. To the contrary, she testified: “I didn’t see her until several months after [the May 30, 2001 fall]. So, I don’t have firsthand knowledge of her initial physical examination and conditions . . . .”

After the jury announced its verdict, the plaintiff moved to set it aside, claiming, inter alia, that the court improperly failed to provide an eggshell plaintiff charge. At the August 31, 2005 hearing on that motion, the court explained its decision not to include the requested charge as follows: “[I]f there was evidence that she was more susceptible to injury because she was suffering from osteoporosis or arthritis or degenerative bone disease of some sort or another or some other condition, then I think that instruction would have been entirely appropriate because, even though the injury might have had a lesser impact upon a healthy individual, she’s entitled to an instruction saying that the juiy is free to consider the severity of it based upon her subjective condition at the time of the injuiy, but I don’t think you established anything with respect to that condition at the time of the fall, that she was a fragile, eggshell type person. So, therefore, that was the reason I declined to give that instruction . . . .’’On our review of the record, we agree with the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff stated on her October 7, 2005 appeal form that she was proceeding pro se in lieu of Bello, Lapine & Cassone, LLP. On her appellate brief, the plaintiff likewise indicated that she was proceeding pro se. Prior to oral argument, attorney Thomas M. Cassone of Bello, Lapine & Cassone, LLP, entered an appearance on the plaintiffs behalf.

       Although the statement of issues in the plaintiffs appellate brief includes a claim that the court abused its discretion in denying her motion to set aside the verdict, that claim is neither addressed nor analyzed therein. Insofar as it differs from her principal claim, we deem it abandoned. See State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007).

       To the extent that counsel for the plaintiff at oral argument took issue with the substance of the interrogatories submitted to the jury, we note that the issue was not briefed by the plaintiff. Accordingly, we do not afford it consideration. See Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005) (“[i]t is well settled that claims on appeal must be adequately briefed, and cannot be raised for the first time at oral argument before the reviewing court”), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).

       “The eggshell plaintiff doctrine states that [w]here a tort is committed, and injury may reasonably be anticipated, the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health. . . . The eggshell plaintiff doctrine is not a mechanism to shift the burden of proof to the defendant; rather, it makes the defendant responsible for all damages that the defendant legally caused even if the plaintiff was more susceptible to injury because of a preexisting condition or injury. Under this doctrine, the eggshell plaintiff still has to prove the nature and probable duration of the injuries sustained.” (Citation omitted; internal quotation marks omitted.) Rowe v. Munye, 702 N.W.2d 729, 741 (Minn. 2005); see also W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 43, p. 292.

       Specifically, the defendants alleged that “(a) [the plaintiff] was inattentive and failed to keep a proper lookout, to be watchful of her surroundings and where she was walking; (b) she was inattentive to her surroundings; (c) she failed to make a reasonable and proper use of her senses and faculties to avoid injury to herself at the time and place described; (d) she failed to properly safeguard herself in relation to any conditions then and there existing; (e) she failed to observe the conditions then and there existing; (f) she failed to make an adequate and proper inspection of the premises; (g) although she was aware, or should have been aware, of the conditions then and there existing, she failed to take the necessary and proper precautions and to use reasonable care for her own safety commensurate with the existing circumstances and conditions.”

       Although counsel for the plaintiff conducted a redirect examination of Knoploch, he did not inquire as to whether the plaintiff suffered from any conditions or injuries prior to the May 30, 2001 fall.