author: LANDAU, J.

text:
    1525 HIGHLAND ASSOCIATES, LLC v. GEORGE FOHL ET AL.
    (AC 19990)
    Landau, Spear and Daly, Js.
    Argued October 31, 2000
    officially released April 10, 2001

      John J. Resnik, with whom were Michael C. Forte, and, on the brief, Emily Resnik Conn, for the appellant (plaintiff).

      Kevin J. Hecht, with whom, on the brief, was Jeffrey J. Holley, for the appellee (named defendant).
   Opinion

LANDAU, J.

The plaintiff, 1525 Highland Associates, LLC, appeals from a judgment rendered by the trial court, following the jury’s consideration of interrogatories, in favor of the defendant George Fohl. In this action, the plaintiff sought equitable relief enjoining the defendant from occupying the subject land, an affirmative injunction requiring the defendant to remove certain structures from the land and a judgment of possession. In its appeal, the plaintiff claims that the court improperly (1) exercised its discretion by (a) permitting the defendant to amend his first special defense of ouster and (b) denying the plaintiffs motion to cite in additional parties, (2) charged the jury on the issue of ouster, (3) submitted inappropriate interrogatories to the jury and (4) failed to grant the plaintiff’s posttrial motions. We affirm the trial court’s judgment.

In its well reasoned memorandum of decision, the court set forth the following facts and procedural posture, which are at the center of the controversy. In the operative complaint, the plaintiff alleged that it was the owner of a parcel of land located in the town of Cheshire, described as parcel A on a certain map, having received title to the land by virtue of a quitclaim deed from Fairfield Clearing Company (Fairfield) dated December 31, 1993. The plaintiff further alleged that the defendant, the owner of adjoining premises, had encroached on a portion of the plaintiffs land. In his special defense, the defendant alleged that the deed conveying the land to the plaintiff was void as to the subject portion of parcel A because the defendant had entered on and possessed the land in such a fashion as to constitute an ouster of the plaintiffs predecessors in title pursuant to General Statutes § 47-21.

Following the presentation of evidence, the jury found by means of interrogatories that the plaintiffs predecessors in title had been ousted of possession of the portion of parcel A on which the defendant had constructed, in part, a building, a driveway, a parking area, dry wells and underground utilities, and had run overhead utility lines, and that the deed to the plaintiff was void pursuant to § 47-21. The court rendered judgment in favor of the defendant. Following the denial of its posttrial motions, the plaintiff appealed.

I

The plaintiffs first claim is that the court improperly exercised its discretion by (1) permitting the defendant to amend his special defense of ouster on the morning trial commenced and (2) denying the plaintiffs motion to cite in additional parties that was filed in response to the amended special defense. We disagree with the plaintiff.

The following additional facts are necessary for our resolution of this claim. In his initial responsive pleading to the plaintiffs complaint, the defendant alleged the following special defense: “All claims of the plaintiff . . . are without any right whatever and were and are extinguished and barred pursuant to [General Statutes §] 47-21.” Pursuant to the plaintiffs request to revise, the defendant amended the special defense by a pleading dated November 7, 1995, alleging that “[a]ll claims of the plaintiff . . . are without any right whatever and were and are extinguished and barred pursuant to . . . § 47-21, in that the plaintiffs immediate predecessor in title was ousted of possession by the plaintiffs further predecessor in title, Rodney R. Reinhard, by virtue of a contract for sale and subsequent conveyance between . . . Reinhard and the defendant herein, all of which occurred on and prior to February 1, 1985, and as such the conveyance to the plaintiff subsequent thereto was void.”

On July 16,1999, as the trial was beginning, but before jury selection had begun, the defendant filed a request for leave to file a second revised answer, special defenses and counterclaim. The defendant’s amended special defense alleged in pertinent part that “[a]ll claims of the plaintiff . . . are without any right whatever and were and are extinguished and barred pursuant to ... § 47-21, in that the plaintiffs immediate predecessor in title Fairfield Clearing Company, and the plaintiffs further predecessors in title Rodney R. Reinhard and Marion F. Reinhard, had been ousted of possession of a portion of the premises in question by the possession thereof by the defendant from April, 1985, through December 31, 1993, and continuing, and as such the purported conveyance to the plaintiff as to the portion of the premises occupied by the defendant was void.”

A

The plaintiff claims that the court improperly permitted the defendant to amend his special defense. The plaintiff had objected to the request to amend the special defense on the ground that it would be prejudiced because the amendment interjected new facts into the case, and, therefore, additional parties would have to be cited in if the amendment were allowed. The court overruled the objection and permitted the amendment, concluding that the issue of ouster had been in the case from the beginning and did not come as a surprise to the plaintiff. We agree with the trial court.

“Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. . . . But unless there is some sound reason for denying permission to amend in order to remedy mispleading, [a request to do so] should be granted.” (Internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 369, 659 A.2d 172 (1995).

In this case, the court reviewed the proposed amendment, heard argument and was knowledgeable about the standard applicable to the granting of requests to amend. Although the request contained additional factual information, allowing the amendment did not prejudice the plaintiff. See Goodrich v. Diodato, 48 Conn. App. 436, 443, 710 A.2d 818 (1998) (defendant sufficiently apprised court of special defense of ouster even though statute not alleged). The court also was aware that during the four years that the litigation had been pending, the plaintiff had deposed the defendant and Reinhard, their common grantor. In ruling to allow the amendment, the court properly noted that although the defense of ouster need not be specially pleaded; see Stevens v. Smoker, 84 Conn. 569, 573, 80 A. 788 (1911); evidence of ouster may be admitted to defeat the plaintiffs claim. We therefore conclude that the court properly exercised its discretion in granting the defendant’s request to amend.

B

The plaintiff next claims that the court abused its discretion by denying its motion to cite in additional parties following the court’s granting of the defendant’s request to amend the special defense. The plaintiff sought to cite in Reinhard, Marion Reinhard, Fairfield Clearing Company and the successor to Union Trust Company (Union Trust) as “necessary or indispensable parties.”

“Parties axe considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be . . . inconsistent with equity and good conscience. . . . Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action], . . . Necessary parties, in contrast, are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties.” (Internal quotation marks omitted.) Raph v. Vogeler, 45 Conn. App. 56, 59, 695 A.2d 1066, cert, denied, 241 Conn. 920, 696 A.2d 342 (1997).

On appeal, the plaintiff does not contend that the parties it sought to cite in were indispensable parties. The plaintiff argues, however, that they are necessary parties under Morehouse v. Wood, 93 Conn. 113, 105 A. 349 (1918), because they were the ousted grantors and still had a possessory interest in the land. The plaintiff misapprehends Morehouse. In Morehouse, our Supreme Court stated: “In this State, and elsewhere, it is a recognized principle of law that the grantee under such a void deed may, in the name of his grantor, sue for and recover possession of land from one who unlawfully ousted his grantor, or such grantor may sue and recover possession upon his own motion.” Id., 115-16. The plaintiff here, as the grantee of the deed in question, was fully empowered under the law to recover possession of the portion of the land in question as if it stood in the shoes of all the parties it claimed were necessary. Thus, there was no need 1'or the trial court to cite in the Reinhards, Union Trust or Fairfield Clearing Company to assert possessory rights that the plaintiff was legally empowered to assert.

“The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court. Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980); see also Horton v. Meskill, [187 Conn. 187, 192, 445 A.2d 579 (1982)].” (Internal quotation marks omitted.) Washington Trust Co. v. Smith, 241 Conn. 734, 747, 699 A.2d 73 (1997). Because the plaintiff was legally entitled to bring an action to recover possession of the land in question, the court did not abuse its discretion in denying the plaintiffs motion to cite in additional parties.

II

In its second claim, the plaintiff asserts that the court improperly instructed the jury with respect to the element of exclusive possession. The plaintiff took exception to the following portion of the court’s instruction: “The defendant must also prove that his use of the land was exclusive. This means that the possession by the defendant was not shared with the plaintiffs predecessors in title or anyone else for that matter.” The plaintiff argued that adverse possession and ouster are similar but not identical. The plaintiff noted that possession necessary to constitute an ouster under § 47-21 is possession of a character such that it would, if continued for fifteen years, ripen into a title by adverse possession. See Loewenberg v. Wallace, 147 Conn. 689, 694, 166 A.2d 150 (1960). The plaintiff further argued that circumstances may change before the statutory period expires, and, therefore, the court must consider the nature of the use. The plaintiff claimed that if a grantor could step in under the statute at any time, the use cannot be exclusive. We are not persuaded that the court’s charge with respect to exclusive possession was improper.

We begin with our standard of review. “A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. Wagner v. Clark Equipment, Co., Inc., 243 Conn. 168, 187, 700 A.2d 38 (1997). When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the juiy is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rales of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. ” (Internal quotation marks omitted.) Ormsby v. Frankel, 54 Conn. App. 98, 113-14, 734 A.2d 575, cert, granted on other grounds, 250 Conn. 926, 738 A.2d 658 (1999).

In his special defense, the defendant alleged that as a result of his entering the land in question in April, 1985, and possessing it up to and including December 31, 1993, he ousted the plaintiffs predecessors in title. The defendant never asserted that he had title to the disputed area. He alleged only that the deeds by which the plaintiffs predecessors in title attempted to convey title to the land were void.

Section 47-21 provides that “ ‘[a]ny conveyance or lease, for any term, of any building, land or tenement, of which the grantor or lessor is ousted by the entry and possession of another, unless made to the person in actual possession, shall be void.’ ‘The possession necessary to constitute an ouster under § 47-21 is not some fleeting or ephemeral technical invasion of the property .... Rather, it is possession of a character such that it would, if continued for the requisite period, ripen into a title by adverse possession.’ Loewenberg v. Wallace, [supra, 147 Conn. 694].” Wadsworth Realty Co. v. Sundberg, 165 Conn. 457,465,338 A.2d 470 (1973).

“Ouster which will render a grantor’s deed void under this statute is the same which is required to establish adverse possession. Palmer v. Uhl, 112 Conn. 125, 127, 151 A. 355 [1930].” Robinson v. Meyer, 135 Conn. 691, 693, 68 A.2d 142 (1949). “[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner. Whitney v. Tunnel, 180 Conn. 147,148,429 A.2d 826 (1980); Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976); Arcari v. Dellaripa, 164 Conn. 532, 536, 325 A.2d 280 (1973); Clark v. Drska, [1 Conn. App. 481, 485, 473 A.2d 325 (1984)].” Ruggiero v. East Hartford, 2 Conn. App. 89, 96, 477 A.2d 668, (1984); see also Stevens v. Smoker, supra, 84 Conn. 574 (approving instructions given to jury on essential elements of adverse possession).

The plaintiffs claim is limited to the court’s instructions with respect to the exclusive possession element of ouster. We have reviewed the court’s charge on exclusive possession in the context of the entire charge, keeping in mind the allegations of the defendant’s special defense and the law. On the basis of our review, we conclude that the court’s instruction on exclusive possession did not mislead the jury.

Ill

The plaintiffs third claim is that the court improperly submitted inappropriate interrogatories to the jury. Specifically, the plaintiff claims that the interrogatories did not permit the jury to consider the evidence and to decide which portions of the disputed land the defendant occupied in such a manner as to oust the plaintiffs predecessors in title. The plaintiff argued that the interrogatories required the jury to take an “all or nothing” position with respect to the entire parcel of land and to ignore the evidence concerning the various ways in which the defendant possessed and used some but not all of the land.

“We recognize that the trial court has broad discretion to regulate the manner in which interrogatories are presented to the jury, as well as their form and content. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979). We require only that the interrogatories provide a ‘means by which the jury may record the findings of fact which form the basis for [the] verdict.’ Id., 127. In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. State v. Weidenhof, 205 Conn. 262, 278, 533 A.2d 545 (1987).” Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999).

This claim must fail because there is an inadequate basis upon which to review the plaintiffs claim of abuse of discretion. We have limited information before us by which to analyze the factual context in which the trial court decided to submit the interrogatories. The appellant is responsible for providing an adequate record for review. Practice Book § 61-10; seeRosenblit v. Williams, 57 Conn. App. 788, 796, 750 A.2d 1131, cert, denied, 254 Conn. 906, 755 A.2d 882 (2000). The plaintiff failed to provide transcripts of the relevant testimony or to include relevant portions of the transcript in the appendix to its brief in violation of Practice Book § 67-l. See Summerbrook West, L.C. v. Foston, 56 Conn. App. 339, 346, 742 A.2d 831 (2000). We therefore decline to review this claim.

IV

The plaintiffs final claim is that the court improperly failed to grant its posttrial motions for judgment notwithstanding the verdict, to set aside the verdict and in arrest of judgment. Both parties briefed and argued this claim as one concerning the sufficiency of the evidence. The defendant argued that we should not consider this claim because the plaintiff failed to provide an adequate record of testimony at trial as discussed in part III of this opinion. We agree that the plaintiffs failure to provide an adequate record precludes our review of this claim. We also note that the plaintiff was not entitled to file a motion for judgment notwithstanding the verdict.

The trial court stated: “The major issue in this case was whether the defendant’s conduct with respect to a certain portion of parcel A, was such as to constitute an ‘ouster’ of the plaintiffs predecessors in title. This question was resolved by the jury in favor of the defendant. The plaintiff did not move for a directed verdict at any time during the trial raising the factual or legal sufficiency of this issue and thus is foreclosed from filing a motion for judgment notwithstanding the verdict. Salaman v. Waterbury, 246 Conn. 298, 311, 717 A.2d 161 (1998) (Katz, J., concurring); Willow Springs Condominium Assn., Inc. v. Seventh BRTDevelopment Corp., 245 Conn. 1, 49, 717 A.2d 77 (1998); Frankovitch v. Burton, 185 Conn. 14, 15 n.2, 440 A.2d 254 (1981); Cruzv. Drezek, 175 Conn. 230,232,397 A.2d 1335 (1978); Practice Book § 16-37.”

The judgment is affirmed.

In this opinion the other judges concurred.

       Due t,o the equitable nature of the relief sought, the parties agreed to submit interrogatories to the jury. The jury’s answers to the interrogatories furnished the factual basis for the trial court’s decision.

       Paul J. Emond and Florence A. Emond were also defendants in the trial court, as the plaintiff alleged that they may have an interest in the subject real property by virtue of a mortgage from Fohl to Rodney R. Reinhard. The Emonds were defaulted in the trial court and are not parties to this appeal. In this opinion, we refer to Fohl as the defendant.

       The defendant pleaded a number of special defenses, but only the first one alleging ouster is at issue in this appeal. Hereafter, we simply refer to it as the special defense.

       General Statutes § 47-21 provides: “Any conveyance or lease, for any term, of any building, land or tenement, of which the grantor or lessor is ousted by the entry and possession of another, unless made to the person in actual possession, shall be void.”

       The appellation second revised special defense is somewhat misleading, as the pleading was not offered in response to a request to revise from the plaintiff. The defendant more correctly sought to amend his special defense. We, therefore, shall refer to it as the amended special defense.

       In ruling to allow the amended special defense, the court stated: “And the reason that I’m [allowing this amendment] is that . . . the cases are replete with decisions that the policy of the court with respect to granting amendments should be liberally exercised, it’s a discretionary matter. I’ve reviewed all of the pleadings filed by the defense in this case insofar as they relate to the claim that the deed to the plaintiff was void because of this possession concept. And . . . there’s no question in my mind that this has been an issue in the case from the outset, and therefore, I don’t see how it can come as any insurmountable surprise to the [plaintiff] that this theory was one that would be asserted in the case.”

        Morehouse was not overruled implicitly by Palmer v. Uhl, 112 Conn. 125, 151 A. 355 (1930).

       The plaintiffs reliance on Twichell v. Guite, 53 Conn. App. 42, 728 A.2d 1121 (1999), and Raph v. Vogeler, supra, 45 Conn. App. 56, is misplaced. Twichell did not involve an ouster and did not hold that the grantor of a voided deed is a necessary party. In Raph, this court held that the mortgagee of the defendant, who was being sued for an ejectment, as is the defendant in the present case, was not a necessary party and its nonjoinder did not affect the jurisdiction of the court. Raph v. Vogeler, supra, 61. Here, none of the proposed parties or entities had a present interest in the land that would be affected by the cpurt’s judgment.

       The plaintiff cites Kramer v. Petisi, 53 Conn. App. 62, 728 A2d 1097, cert, denied, 249 Conn. 919, 733 A.2d 229 (1999), Sanford v. Dimes, 3 Conn. App. 639, 491 A.2d 398 (1985), and Francis v. Hollauer, 1 Conn. App. 693, 696, 475 A.2d 326 (1984), in support of its position that it is not enough for the defendant to have used a portion of the land; the defendant must use the land in such a way that no one else could use it. The case law cited does not support the plaintiffs position.
      In Kramer, the plaintiffs sought to quiet title in land that they had claimed by virtuq of adverse possession. The court granted the defendants’ motion for summary judgment because there was no genuine issue of material fact that the defendants’ predecessor in title had permitted the plaintiffs’ predecessor in title to construct a fence on his property. The use, therefore, was not adverse. Kramer v. Petisi, supra, 53 Conn. App. 64-65.
      In Sanford, this court reversed the trial court’s judgment awarding the plaintiff a prescriptive easement over the defendants’ land because the plaintiff had pleaded adverse possession alone. “A judgment granting a prescriptive easement where none was sought and where no pleading raised any issue other than whether the plaintiff had acquired title by adverse possession cannot survive appeal. Francis v. Hollauer, [supra, 1 Conn. App. 693].” Sanford v. Dimes, supra, 3 Conn. App. 640.
      The Francis case is on all fours with Sanford, but in addition it states the elements of a cause of action for a prescriptive easement and for adverse possession. Francis v. Hollauer, supra, 1 Conn. App. 695-96 (exclusion factor distinguishes adverse possession from prescriptive easement).

       The plaintiff also relied on Ahem v. Travelers Ins. Co., 108 Conn. 1, 142 A. 400 (1928), Goodwin v. Bragaw, 87 Conn. 31, 86 A. 668 (1913), and
        Norwalk Heating & Lighting Co. v. Vernam, 75 Conn. 662, 55 A. 168 (1903). These cases do not help the plaintiff. Goodwin and Norwalk Heating & Lighting Co. concern easements, not the possession of land.

        Ahem describes the manner in which an owner must reassert his right of possession. “Merely going upon the land is not enough. The owner must assert his claim, or do some act that would reinstate him in possession, before he can regain what he has lost. . . .
      “Entry must not be of a casual or secret character but must be either known to the occupant or be made under such circumstances as to enable the party in possession, by the use of reasonable diligence, to ascertain the right and claim of the party making the entry, and thus enable him to resort to legal remedies for its protection. . . .
      “When a party is once dispossessed it is not every entry upon the premises without permission that would disturb the adverse possession. He may tread upon his own soil and still be as much out of possession of it there as elsewhere. He must assert his claim to the land, perform some act that would reinstate him in possession, before he can regain what he has lost. It is evident therefore that an entry by stealth, under circumstances that go to show that the party claimed no right to enter, or an entry for other purposes than those connected with a right to enter, would not be sufficient to break the continuity of exclusive possession in another.” (Citations omitted; internal quotation marks omitted.) Ahem, v. Travelers Ins. Co., supra, 108 Conn. 6-7.

       The plaintiff argued that the defendant’s claim was based on paving, dry wells, overhead wires and underground pipes on, over and in the land, and that such uses did not constitute ouster. The plaintiff provided no law in support of this argument.

       Practice Book § 61-10 provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review. . . . For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”

       Practice Book § 67-1 provides in relevant part: “The evidence referred to in the brief, and in the appendix if one is filed, will be deemed to embrace all testimony produced at the trial material to the issues on the appeal, although the court may, if sufficient cause appears, consult the transcript of evidence on file or the trial court case file to supplement or explain the evidence. . . .”


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RUPERTO VICENTE
    (AC 19471)
    Lavery, C. J., and Spear and Mihalakos, Js.

      Argued December 4, 2000
    officially released April 10, 2001

      John E. Doran, special public defender, with whom, on the brief, was Neal Cone, assistant public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Corinne Klatt, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Ruperto Vicente, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant claims that the trial court improperly instructed the jury on reasonable doubt and the presumption of innocence, and that even if the individual instructions were proper, the overall “drumbeat repetition” of what is not a reasonable doubt diluted the state’s burden of proof in violation of his due process rights under article first, §§ 8 and 9, of the constitution of Connecticut and the fourteenth amendment to the United States constitution. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts.

In 1993, the defendant, while attempting to join a gang, spent time with gang member Felix Betancourt. On May 25, 1993, the defendant and Betancourt went to visit a woman who was a friend of a rival gang member, Jose Velez. Upon approaching the woman’s house, the defendant and Betancourt saw Velez, Victor Santiago and the victim, David Algarin, leaving the house. Betancourt gave the defendant a gun and instructed him to shoot at the three men. The defendant then shot and killed Algarin. Thereafter, the defendant was convicted of manslaughter in the first degree and this appeal followed.

All three of the defendant’s claims involve the court’s jury instructions, and none was properly preserved at trial. He, therefore, seeks appellate review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Williams, 60 Conn. App. 575, 578, 760 A.2d 948, cert, denied, 255 Conn. 922, 763 A.2d 1043 (2000).

Here, the record is adequate for review, and all three claims are of constitutional magnitude. The claims nonetheless fail under the third prong of Golding because no constitutional violation clearly exists.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but 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. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Cramer, 57 Conn. App. 452, 460, 749 A.2d 60, cert, denied, 253 Conn. 924, 754 A.2d 797 (2000).

“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. ... It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction. . . . A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and . . . afford[s] proper guidance for their determination of whether those elements were present. . . . Furthermore, it is well established that [a]n instruction that dilutes the state’s burden, or places a burden on the defendant to prove his innocence, is unconstitutional.” (Citations omitted; internal quotation marks omitted.) State v. Valinski, 254 Conn. 107, 120, 756 A.2d 1250 (2000). With these standards in mind, we now turn to the defendant’s claims.

I

The defendant first claims that the court improperly instructed the jury on reasonable doubt by stating that “if there’s something in that evidence or lack of evidence which leaves in the minds of the jury as reasonable men and women a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.” Specifically, the defendant argues that “the benefit of the doubt” language diluted the state’s burden of proof because it suggested that a reasonable doubt can arise only in close cases “where the scales are evenly balanced.” This claim is completely without merit.

The defendant’s argument is constructed around the meaning of the well known phrase “benefit of the doubt.” The claim is problematic, however, because the defendant misrepresents the court’s jury instructions. In referring to the instructions, he has changed the actual words “benefit of that doubt” to “benefit of the doubt.” (Emphasis added.) The significance of this change is apparent when we consider the context of the instruction.

The court said: “What the law does require, however, is that after hearing all the evidence, if there is something in that evidence or lack of evidence which leaves in the minds of the jury as reasonable men and women a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.” (Emphasis added.) It is clear that the phrase “benefit of that doubt” refers back to the words “reasonable doubt.” The instruction in no way suggests that the jury could acquit the defendant only in a close case where the jury could give the defendant “the benefit of the doubt.” Accordingly, we conclude that no injustice could have resulted from this portion of the instruction and the claim must fail under the third prong of Golding.

II

The defendant next claims that the court improperly instructed the jury on the presumption of innocence by stating that “[a]ny conclusion reasonably to be drawn from the evidence which is consistent with the innocence of the accused must prevail.” Specifically, the defendant asserts that this was a “two hypothesis” instruction which suggested that a preponderance of the evidence standard should be used.

We decline to review this inadequately briefed claim. The defendant’s argument consists of six sentences that do not explain why this is a “two hypothesis” instruction or how it could result in the jury applying a preponderance standard to the evidence. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) In re Shane P., 58 Conn. App. 234, 243-44, 753 A.2d 409 (2000); State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert, denied, 244 Conn. 908, 713 A.2d 829 (1998); see also In re Bruce R., 234 Conn. 194, 216, 662 A.2d 107 (1995).

Ill

The defendant finally claims that, even if the individual statements were constitutional, the “drumbeat repetition” in the instructions as to what did not constitute a reasonable doubt unconstitutionally diluted the state’s burden of proof. We are not persuaded.

The defendant provides little support for this claim. He refers only to a sister state’s Supreme Court decision that recommended that courts refrain from giving lengthy juiy instructions regarding reasonable doubt. See Winegearl v. State, 665 N.E.2d 893, 898 (Ind. 1996). In that decision, the court warned against a “drumbeat repetition” of what is not a reasonable doubt but found no error in the instructions. The court recommended that Indiana trial courts thereafter follow an instruction on reasonable doubt crafted by the Federal Judicial Center.

Here, the court emphasized repeatedly that the burden of proof was on the state. Moreover, the court’s instructions on reasonable doubt were no lengthier than those previously approved by our Supreme Court in other cases. See, e.g., State v. Montgomery, 254 Conn. 694, 729-30 n.39, 759 A.2d 995 (2000); State v. Valinski, supra, 254 Conn. 117-18n. 13; States. Griffin, 253 Conn. 195, 203-204 n.12, 749 A.2d 1192 (2000). We, therefore, conclude that the court’s instructions to the jury did not satisfy the third prong of Golding because they were correct in law, sufficient to guide the jury without being misleading and in no way resulted in manifest injustice.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his brief, the defendant also challenged as unconstitutional the following portions of the instruction: (1) “[Reasonable doubt is] something more than a guess or a surmise. It’s not a conjecture or a fanciful doubt.” (2) “It is a doubt for which you can in your own mind conscientiously give a reason.” (3) “A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or the lack of evidence.” (4) “It’s the kind of doubt which in the serious affairs which concern you in everyday life you would pay heed and attention to. It is the kind of doubt which would make a reasonable person hesitate to act.”
      At oral argument, the defendant conceded that our Supreme Court has recently rejected constitutional challenges to instructional language identical in all material respects to the challenged statements. In the case of each challenge, the court concluded that the instructions as a whole did not dilute the state’s burden of proof. See State v. Montgomery, 254 Conn. 694, 729, 759 A.2d 995 (2000) (rejecting constitutional challenge to instruction on meaning of reasonable doubt that included “reasonable doubt is not a doubt . . . suggested by the ingenuity of counsel . . . reasonable doubt is a doubt based on reason, not on the mere possibility of innocence . . . reasonable doubt ... is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or the lack of evidence; and . . . [reasonable doubt is] a doubt for which you can, in your own mind, conscientiously give a reason” [internal quotation marks omitted]); State v. Griffin, 253 Conn. 195,206-207, 749 A.2d 1192 (2000) (rejecting constitutional challenge to instructions that reasonable doubt is “not a surmise, a guess or mere conjecture; [it is] a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence ... a doubt [that] would cause a reasonably prudent person to hesitate to act in matters of importance” [internal quotation marks omitted]). Although the Griffin court approved the language challenged by the defendant that reasonable doubt would make a reasonable person hesitate to act, that instruction was not included in the court’s instructions in this case. See footnote 2.
      “[I]t is not . . . within our province to overrule or discard the decisions of our Supreme Court.” (Internal quotation marks omitted.) State v. Nunes,
        58 Conn. App. 296, 308, 752 A.2d 93, cert, denied, 254 Conn. 944, 762 A.2d 906 (2000). Accordingly, we reject these claims.

       The court instructed the jury on the state’s burden of proof as follows: “Now, in this case, as in all criminal prosecutions, the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. This presumption of innocence was with the defendant when he was first presented for trial in this case. It continues with him throughout the trial. As far as you are concerned, the defendant is innocent and he continues to be innocent unless and until such time as all evidence produced here in the orderly conduct of the case, considered in the light of these instructions of law and deliberated upon by you in the jury room, satisfies you beyond a reasonable doubt that he’s guilty.
      “Thus, the presumption of innocence alone is sufficient to acquit the defendant. The presumption remains with the defendant throughout the trial unless you are satisfied beyond a reasonable doubt of the defendant’s guilt from all the evidence in the case.
      “Now, the burden to prove the defendant guilty of the crime with which he is charged is upon the state. The defendant does not have to prove his innocence. This means the state must prove beyond a reasonable doubt each and every element necessary to constitute the crime charged.
      “Whether the burden resting upon the state is sustained depends not on the number of witnesses nor the quantity of the testimony, but on the nature and quality of the testimony. Please bear in mind that one witness’ testimony, however, is sufficient to convict if you believe it beyond a reasonable doubt and if it establishes, either standing alone or together with any other testimony, all the elements of the crime beyond a reasonable doubt.
      “Now, the phrase ‘beyond a reasonable doubt’ has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word ‘reasonable.’ A reasonable doubt is a doubt for which a valid reason can be assigned. It’s a doubt which is something more than a guess or a surmise. It’s not a coqjecture or a fanciful doubt. It’s a reasonable doubt. It’s not a doubt which is raised by somebody simply for the sake of raising doubts, nor is it a doubt suggested by the ingenuity of counsel or any of the jurors which is not justified by the evidence or lack of the evidence. A reasonable doubt is a doubt based on reason and not on the mere possibility of innocence. It is a doubt for which you can in your own mind conscientiously give a reason.
      “A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or the lack of evidence. It’s the kind of doubt which in the serious affairs which concern you in everyday life you would pay heed and attention to.
      “Now, of course, absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty on the part of the jury before you return a verdict of guilty. The state does have to prove guilt beyond a reasonable doubt — I’m sorry — the state does not have to prove guilt beyond all doubt or to a mathematical or absolute certainty. What the law does require, however, is that after hearing all the evidence, if there’s something in that evidence or lack of evidence which leaves in the minds of the jury as reasonable men and women a reasonable doubt about the fault of the accused, then the accused must be given the benefit of that doubt and acquitted. Any conclusion reasonably to be drawn from the evidence which is consistent with the innocence of the accused must prevail. If there’s no reasonable doubt, then the accused must be found guilty. The test is one of reasonable doubt, a doubt based on reason and common sense.”

       See footnote 2.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. KHALID IBRAHIM
    (AC 19707)
    Lavery, C. J., and Spear and Daly, Js.
    Argued December 14, 2000
    officially released April 10, 2001

      Neal Cone, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The defendant, Khalid Ibrahim, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). The defendant’s claims are virtually identical to the claims raised in State v. Vicente, 62 Conn. App. 625, 772 A.2d 643 (2001). We, therefore, dispose of the claims here in the same fashion and for the same reasons as in State v. Vicente, supra, 625.

The judgment is affirmed.

       The briefs of the defendants in both cases are also virtually identical.


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. ANGEL TORO
    (AC 20726)
    Foti, Spear and Dranginis, Js.
    Argued January 8
    officially released April 10, 2001

      William B. Westcott, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Robin S. Schwartz, special deputy assistant state’s attorney, and Herman Woodard, Jr., former deputy assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Angel Toro, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the second degree in violation of General Statutes § 53a-135, robbery by carjacking in violation of General Statutes § 53a-136a and larceny in the second degree in violation of General Statutes § 53a-123. On appeal, the defendant claims that his conviction was not supported by sufficient evidence of a taking as required under each of the counts charged and, therefore, violates his state and federal constitutional rights to due process. We affirm the judgment of the trial court.

The following facts underlie the defendant’s arrest and conviction. On December 31, 1995, Bacillio Cortes rented a white Ford Escort to chauffeur friends and family on New Year’s Eve. At approximately 10 p.m., Cortes was driving two passengers from a location at Kensington Street in Hartford to a location at Hudson Street when Cortes noticed a red Pontiac Fiero pull up next to him at a red traffic light. The driver of the Fiero spun the car’s tires. When the light turned green, Cortes drove slightly ahead of the Fiero and, at the next light, turned right. Shortly before Cortes reached his destination at Hudson Street, the Fiero rear-ended the Escort. At that time, Cortes and the driver of the Fiero, later identified as the defendant, exited their cars to inspect the damage. Cortes’ two passengers also exited the vehicle and retreated to their nearby apartment. The defendant’s passenger remained seated in the Fiero.

According to Cortes, the defendant then approached with his hand in his pocket as if he were holding a gun. Cortes, in fear, told the defendant that there was no damage and that he could leave. The defendant, however, punched Cortes in the face, and Cortes returned the punch in self-defense. Cortes testified that the defendant then “backed up and told his friend that I don’t respect him, for him to go in the car and get the gun.” From that statement, Cortes inferred that the defendant did not have a gun on his person and that he could run safely into the apartment. Cortes further testified that the defendant’s passenger got into the Escort while the defendant got back into the Fiero, and they both drove away. Cortes then called the police.

Officer Patrick Farrell of the Hartford police department responded to the call and saw an Escort traveling on Babcock Street. He testified that the vehicle only had one occupant. When the Escort started speeding away, a car chase ensued. Farrell followed the vehicle to Putnam Street, where it went into the backyard of 142 Putnam Street. He testified that approximately fifteen to twenty minutes had passed since he first heard the report of the carjacking and when he saw the Escort and followed it to the Putnam Street location.

At the Putnam Street location, Farrell found the Escort unoccupied with its engine running and the driver’s side door open. Farrell testified that he heard a chain-link fence rattle, looked around the comer and saw no one. He then ran to the front of the house, where an unidentified citizen indicated to him that the person the police were after went in the direction of a nearby school yard. The defendant was then spotted in the school yard about 100 feet from the Escort and was caught after a foot chase. Meanwhile, the red Fiero was located on Putnam Street, approximately thirty feet from the white Escort. The defendant’s passenger was never apprehended or charged.

At trial, the defendant testified that he was driving the red Fiero when he accidentally rear-ended Cortes’ vehicle on Hudson Street. He admitted that he and Cortes had exited their cars to assess the damage, but denied that they got into a fistfight. He testified that his passenger, his cousin, drove away in the Escort, but that he did not know that his cousin would do so. He claimed that he got back into his vehicle and drove to his aunt’s house, where he stopped the Fiero. He further testified that he felt ill, vomited and remained near his car until his cousin pulled up in the Escort and yelled to him to run. The defendant then ran and was caught.

On appeal, the defendant claims that the evidence was insufficient to establish a taking. Specifically, he claims that each charge requires that the state prove beyond a reasonable doubt that he took the white Escort. He claims that the jury could not reasonably conclude that he took the victim’s vehicle. The defendant concedes that under the relevant statutes, a taking may occur even though there is not a carrying away of the property, i.e., even though he did not drive the vehicle away. He does not claim, therefore, that the evidence was insufficient merely because it showed that the defendant’s passenger (his cousin), rather than the defendant, drove the white Escort. Rather, he maintains that the evidence, at most, shows that he was an accessory to larceny, a crime with which he was not charged.

We must first consider whether the defendant’s claim is reviewable. At trial, the defendant did not make a motion for a judgment of acquittal on the basis of insufficient evidence of a taking. He seeks review, therefore, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). It is well settled that claims of insufficiency of the evidence are reviewable under Golding because any defendant found guilty on the basis of insufficient evidence has been deprived of his constitutional rights not to be convicted except on evidence that convinces the jury beyond a reasonable doubt of the existence of every element of the offenses at issue. State v. Hicks, 56 Conn. App. 384, 386-87, 743 A.2d 640 (2000); see State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993). The state contends that the defendant’s claim is not actually an insufficiency of the evidence claim, but is one of instructional error and is, therefore, not properly preserved or briefed for appeal. We conclude, however, that the defendant’s claim is essentially a challenge to the sufficiency of the evidence and therefore warrants review.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong[ed] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of

circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . .

“Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [t]his court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . .

“It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. . . .

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Bradley, 60 Conn. App. 534, 540-41, 760 A.2d 520, cert, denied, 255 Conn. 921, 763 A.2d 1042 (2000).

In the present case, each charge requires that the state prove that the defendant committed a larceny. Pursuant to General Statutes § 53a-119, “[a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” The elements of larceny are “(1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of it permanently; and (3) the lack of consent of the owner.” (Internal quotation marks omitted.) State v. Kimber, 48 Conn. App. 234, 240, 709 A.2d 570, cert, denied, 245 Conn. 902, 719 A.2d 1164 (1998). Because “taking” is not defined in the Penal Code, we consider the ordinary usage of that term. State v. Garcia, 37 Conn. App. 619, 627, 657 A.2d 691, cert, denied, 234 Conn. 917, 661 A.2d 97 (1995); see also General Statutes § 1-1 (a) (“[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly”).

A criminal taking is “[t]he act of seizing an article, with or without removing it, but with an implicit transfer of possession or control.” Black’s Law Dictionary (7th Ed. 1999). Thus, to prove that the defendant took the victim’s vehicle, the state needed to establish that the defendant seized the vehicle from the victim’s power and control. See Webster’s Third New International Dictionary (defining “take” as “1: to get into one’s hands or into one’s possession, power, or control by force or stratagem: as a: to seize or capture physically ... 6: to transfer into one’s own keeping: enter into or arrange for possession, ownership, or use of’).

Construed in the light most favorable to sustaining the verdict, the evidence established that the defendant took the victim’s vehicle. On the basis of the evidence presented, the jury reasonably could have concluded that the defendant purposefully rear-ended the victim’s vehicle so that the victim would exit the vehicle. The evidence further showed that when the victim did so to assess the damage and exchange information, the defendant started an altercation with the victim and represented, by his conduct and body language, that he was armed. He yelled at and punched the victim, and, when the victim punched him back, the defendant called to his passenger to bring him a gun. From those facts and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative effect of the evidence established beyond a reasonable doubt that the defendant compelled the victim to relinquish possession and control of his vehicle, and to deliver it to the defendant. The evidence, therefore, was sufficient to sustain the conviction of robbery in the second degree, larceny in the second degree and robbery by carjacking.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant does not argue on appeal that the evidence was insufficient to support a finding by the jury that he intended to deprive the victim of his vehicle.

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239^0.

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty oflarceny in the second degree when he commits larceny, as defined by section 53a-119, and: (1) The property consists of a motor vehicle, the value of which exceeds five thousand dollars . . .
      General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and ... (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”
      General Statutes § 53a-136a provides: “Any person who commits robbery by taking a motor vehicle from the person of another knowing that such motor vehicle is occupied by such other person shall be imprisoned for a term of three years which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for such offense.”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. FRANCIS R. DIXON
    (AC 20410)
    Schaller, Dranginis and Stoughton, Js.

      Argued December 11, 2000
    officially released April 10, 2001

      Cameron R. Dorman, special public defender, for the appellant (defendant).

      Peter A. McShane, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Francis R. Dixon, appeals from the judgment of conviction, rendered after a jury trial, of sale of a controlled substance in violation General Statutes § 21a-278 (b) and sale of a controlled substance within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the trial court improperly (1) marshaled the evidence in favor of the state in its jury instruction, thereby violating his due process right to a fair trial, and (2) failed to give a curative instruction regarding the hearsay statements of a confidential informant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of March 16, 1999, Detective William Bundy of the Connecticut state police met with Detective John A. John of the Norwich police department to investigate the sale of narcotics within the city of Norwich. To execute an undercover sting operation, the detectives met with a confidential informant. Bundy and the informant went in the informant’s vehicle to the area of Sunshine Farms, a convenience store on Central Avenue that is located approximately 1145 feet from the Greenville Elementary School. Meanwhile, John proceeded in a separate undercover vehicle to a nearby location to observe the sale.

Upon reaching Sunshine Farms, the informant placed a telephone call to a beeper number to arrange for the delivery of crack cocaine behind Sunshine Farms. A few moments later, the defendant, wearing a yellow and black jacket, descended from the stairs in the rear of the building. Bundy, who was waiting in the passenger seat of the informant’s vehicle, motioned for the defendant to approach the vehicle. In an arms length transaction, the defendant sold Bundy two pieces of crack cocaine. Bundy later identified the defendant as the individual wearing the yellow and black jacket who had sold him the crack cocaine.

John also provided identifying information against the defendant. From a distant location, John observed the defendant’s approach to the vehicle and the ensuing transaction. Although John could not identify the defendant’s face because of the distance, he provided detailed information about the defendant’s clothing, in particular, the yellow and black jacket. The detectives later arrested the defendant on the basis of that information.

At trial, the detectives testified about the transaction and identified the defendant as the perpetrator. Several hearsay statements of the informant also were admitted into evidence, without the defendant’s objection, through the testimony of Bundy. In an attempt to refute the state’s case, the defendant presented two separate alibi defenses. Scott Jones, the defendant’s cousin, testified that he was at the defendant’s apartment the entire day of the incident and that the defendant never left the apartment. The state, however, contradicted Jones’ testimony by proving that he was incarcerated when the incident occurred. Despite that setback, the defendant presented a different alibi through the testimony of his sister, girlfriend and mother, each of whom testified that the defendant was in New Jersey on the day in question.

After the court instructed the jury, the defendant took exception and requested that the court give a curative instruction regarding the hearsay statements of the informant, which request was denied. The jury found the defendant guilty as charged, and this appeal followed.

I

The defendant first claims that the court improperly marshaled the evidence in favor of the state in its jury instruction, thereby violating his due process right to a fair trial. Specifically, the defendant claims that the court emphasized the evidence in favor of the state while unfairly minimizing the evidence supporting the defendant’s alibi defenses. Although the defendant did not properly preserve his claim at trial, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant cannot prevail on his claim, as it fails to satisfy the third prong of Golding.

“A trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence. . . . The purpose of marshaling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. ... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” (Citations omitted; internal quotation marks omitted.) State v. Gibson, 56 Conn. App. 154, 159, 742 A.2d 397 (1999).

On review, we do not evaluate the court’s marshaling of the evidence in isolation. Rather, “[t]o determine whether the court’s instructions were improper, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. . . . The pertinent test is whether the charge, read in its entirety, 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. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citations omitted; internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 170-71, 665 A.2d 63 (1995).

After reviewing the entire charge to the jury, we note that the court repeatedly reminded the jury that it was the sole finder of fact. The court also informed the jury that it should rely on its own recollection of the evidence to determine the facts. In addition, the court instructed the jury that it should disregard any opinion suggested by the court regarding the facts. We con-

elude that the charge, read in its entirety, did not mislead the jury and, accordingly, the court’s marshaling of the evidence did not deprive the defendant of his right to due process. Therefore, the defendant’s claim fails under the third prong of Golding.

II

The defendant also claims that the court improperly failed to give a curative instruction to the juiy regarding the hearsay statements of the confidential informant. As with his first claim, the defendant did not preserve this claim at trial and now seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. We conclude that this claim is not reviewable under Golding.

Although the record before us is adequate for review, the defendant has failed to allege a claim of constitutional magnitude, as required under the second prong of Golding. “Unpreserved hearsay claims do not automatically invoke constitutional rights to confrontation.” State v. Grenier, 55 Conn. App. 630, 646, 739 A.2d 751 (1999), cert, granted on other grounds, 252 Conn. 931, 746 A.2d 794 (2000). It is well settled that “admission of statements that are either irrelevant or impermissible hearsay is not a constitutional error.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 662, 737 A.2d 404 (1999), cert, denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000); State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997); see State v. Jones, 44 Conn. App. 476, 487, 691 A.2d 14 (evidentiary claim not of constitutional magnitude and therefore not subject to Golding review), cert, denied, 241 Conn. 901, 693 A.2d 304 (1997). The defendant, therefore, attempts to place “a constitutional tag on a nonconstitutional evidentiary ruling.” (Internal quotation marks omitted.) State v. Grenier, supra, 647. Because the defendant has failed to allege a claim of constitutional magnitude, as required under the second prong of Golding, we decline to review his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . .

       Bundy testified in relevant part as follows: “At that particular point, the informant had told me that the informant would need to go to a pay phone, page a person known to the informant as Reggie and that upon paging from the pay phone, that Reggie would descend in a stairwell to the rear of the Sunshine Farms and we would be able to purchase two rocks of crack cocaine.”

       The court’s comment to the jury with respect to the alibi defenses in relevant part was: “Here, the defendant has presented what is commonly known as an alibi. . . . The alibi evidence that the defendant has placed before you seeks to convince you that the defendant was elsewhere at the time and therefore could not have committed the crimes charged.”

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 23SMD. “The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. ... We may . . . dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” (Internal quotation marks omitted.) State v. Bums, 60 Conn. App. 369, 375, 759 A.2d 149 (2000), cert, denied, 255 Conn. 936, 767 A.2d 1214 (2001).

       The court instructed the jury in relevant part as follows: “You are the sole judges of the facts. It is your duty to find the facts. You are to recollect and weigh the evidence, and form your own conclusions as to what the ultimate facts are. . . .

        “My actions during the trial ... or in setting forth these instructions of law, are not to be taken by you as any indication of my opinion as to how you should determine issues of fact. If I have expressed or intimated any opinion as to the facts, you are not bound by that opinion.”

       See footnote 5.


author: DALY, J.

text:
    STEPHEN CESLIK v. LAUREN WINER
    (AC 14367)
    Lavery, C. J., and Foti and Daly, Js.
    Argued January 22
    officially released April 10, 2001

      Stephen Ceslik, pro se, the appellant (plaintiff).

      H. Jeffrey Beck, for the appellee (defendant).
   Opinion

DALY, J.

The plaintiff, Stephen Ceslik, appeals from the denial of his motion for a new trial based on newly discovered evidence. On appeal, the plaintiff claims that the trial court improperly (1) ruled on his substituted motion for new trial without holding a hearing and (2) denied his motion for a new trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff brought an action to recover on a promissory note, which was heard by an attorney trial referee. The attorney trial referee recommended that the court render judgment in favor of the defendant. The court rendered judgment in accordance with the referee’s recommendation, and the plaintiff filed both a motion for a new trial based on newly discovered evidence and an appeal of the trial court’s decision. This court disposed of the direct appeal on April 18, 1995. Ceslik v. Winer, 37 Conn. App. 919, 655 A.2d 1176, cert, denied, 234 Conn. 909, 659 A.2d 1207 (1995). The trial court denied the plaintiffs motion for a new trial without conducting a hearing or setting forth findings of fact, conclusions of law or an explanation of its decision. The plaintiff then filed the present appeal, challenging the denial of his motion for a new trial.

We must first address the threshold question of whether the appeal is reviewable. The court denied the plaintiff’s motion for a new trial without issuing a written memorandum of decision or making any findings of fact on the record. As a result, the record on appeal does not contain a written memorandum of decision. This court has consistently adhered to the rule of Practice Book § 61-10 which provides that it is the responsibility of the appellant to provide an adequate record for review. Hartford v. Pan Pacific Development (Connecticut), Inc., 61 Conn. App. 481, 488, 764 A.2d 1273 (2001); Summerbrook West, L.C. v. Foston, 56 Conn. App. 339, 345, 742 A.2d 831 (2000); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60i, p. 387. It was, therefore, incumbent on the plaintiff to move for an articulation of the court’s ruling pursuant to Practice Book § 66-5.

Further, this court has held that the responsibility that arises out of Practice Book § 61-10 “includes moving for articulation when the trial court has failed to state the basis of a decision; Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539,543,651 A.2d 1302 (1995); [or when] the legal basis of a ruling is unclear; Leverty & Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, 379, 471 A.2d 958 (1984) . . . .” State v. Louise-Julie, 60 Conn. App. 837, 841-42, 762 A.2d 913 (2000), cert, denied, 255 Conn. 929, 930, 767 A.2d 102, 103 (2001).

The plaintiffs failure to request an articulation of the court’s decision pursuant to Practice Book § 66-5 has resulted in an inadequate record for this court to review the court’s factual findings that formed the basis of its decision. Thus, “[w]e are . . . left to surmise or speculate as to the existence of a factual predicate for the trial court’s [ruling]. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claims] would be entirely speculative.” (Internal quotation marks omitted.) Summerbrook West, L.C. v. Foston, supra, 56 Conn. App. 346-47.

Moreover, “[t]his court has repeatedly emphasized the importance of compliance with Practice Book § 64-l and has frequently declined to review claims when the appellant fails to provide the court with an adequate record for review.” (Internal quotation marks omitted.) Id., 345. Because the plaintiff failed to request an articulation of the court’s decision pursuant to Practice Book § 66-5, we have an inadequate record before us and, therefore, do not make any further inquiry.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 61-10 provides: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”

       Practice Book § 66-5 provides in relevant part: “A motion seeking corrections in the transcript or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called a motion for rectification or a motion for articulation, whichever is applicable. Any motion filed pursuant to this section shall state with particularity the relief sought. . . .”

       Practice Book § 64-1 (a) provides in relevant part: “The court shall state its decision either orally or in writing, in all of the following: (1) in rendering judgments in trials to the court in civil and criminal matters, including rulings regarding motions for stay of executions, (2) in ruling on aggravating and mitigating factors in capital penalty hearings conducted to the court, (3) in ruling on motions to dismiss under Section 41-8, (4) in ruling on motions to suppress under Section 41-12, (5) in granting a motion to set aside a verdict under Section 16-35, and (6) in making any other rulings that constitute a final judgment for purposes of appeal under Section 61-1, including those that do not terminate the proceedings. The court’s decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court, clerk’s office. . . .”


author: DUPONT, J.

text:
    ANDREW HECHTMAN, ADMINISTRATOR (ESTATE OF ARLENE SAVITSKY) v. ALLAN SAVITSKY
    (AC 20072)
    Landau, Dranginis and Dupont, Js.
    Argued January 18
    officially released April 10, 2001

      Steven D. Jacobs, for the appellant (plaintiff).

      Edward Maum Sheehy, with whom, on the brief, was Michael R. Brandt, for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff, Andrew Hechtman, is the executor of his mother’s estate and appeals from that portion of the trial court’s judgment that found that the defendant, Allan Savitsky, had not committed waste or negligence as a life tenant. The plaintiff claims that the court improperly (1) determined that the defendant was not obligated to pay the interest due on a home equity loan that encumbered the property and (2) considered matters extrinsic to the will and outside the record. We affirm the judgment of the trial court.

The following facts are necessary to our resolution of this appeal. The defendant married the testatrix, Arlene Savitsky, on August 11,1985. They executed an antenuptial agreement (agreement) on August 5, 1985. The agreement specifically provided: “[T]he Parties to this Agreement desire that neither of them shall be responsible for the debts of the other which might have accumulated to the time of signing of this Agreement, nor for any debts contracted hereafter unless both Parties have agreed to assume the same . . . .” The agreement also provided that each party would have the “full right to own, control and dispose of his or her separate property” and “each of the Parties is to have the full right to dispose of and sell any and all real or personal property now or hereafter owned by each of them . . . .”

During the marriage, the defendant moved into the testatrix’s residence at 130 Sunburst Road in Bridgeport. Before and during the marriage, the residence at 130 Sunburst Road remained the sole property of the testatrix. After the testatrix’s death, the defendant paid the taxes, insurance, utilities and maintenance expenses for the property.

On May 25,1995, the testatrix signed an equity credit line note with People’s Bank in the amount of $50,000. She borrowed $31,000 against that credit line. She secured the note with a mortgage on the premises at 130 Sunburst Road. The note and the mortgage deed to the bank contain only the testatrix’s signature as obligor, and the testatrix paid any and all interest payments on that obligation until her death.

On April 28, 1997, the testatrix executed a will that revoked and extinguished any prior will or codicil. The will made the following devise of the real estate, improvements and furnishings at 130 Sunburst Road: “I give and devise my house and real estate located at 130 Sunburst Road, Bridgeport, Connecticut, together with all of the furniture and furnishings located therein, to my son, ANDREW PAUL HECHTMAN, of Cheshire, Connecticut, subject to the right of my husband, ALLAN SAVITSKY, to live, alone, in the house for the rest of his life, and so long as he remains unmarried. My husband’s right to live in the home shall terminate if he should remarry or if he should take in a live-in companion. I further direct that so long as my husband occupies said home, he shall be responsible for and pay all expenses relating to the use and maintenance of said house, which will include, but [are] not limited to, taxes, insurance, utilities and repairs.”

Paragraph eight of the will devised the “rest, residue and remainder of [the] estate to [her] son, ANDREW PAUL HECHTMAN, of Cheshire, Connecticut, to be his absolutely.” Paragraph nine specifically incorporated by reference the agreement that the parties entered into in August, 1985. The testatrix died on June 19, 1997.

On November 17, 1997, the plaintiff instituted an action against the defendant for conversion, negligence and waste. On July 21, 1999, the court rendered judgment in favor of the defendant. This appeal followed. We will provide additional facts as necessary.

I

We first must address the issue of mootness, which arose at oral argument and concerns a foreclosure action of the mortgage. The question is whether the withdrawal of the foreclosure action rendered the present case moot. Mootness implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties. See Fiddelman v. Redmon, 59 Conn. App. 481, 483, 757 A.2d 671 (2000). The following facts relate to whether we have jurisdiction to hear the present case.

In an independent cause of action dated March 4, 2000, PNC Bank, N.A. (bank), the assignee of People’s Bank, sought strict foreclosure of the mortgage that the testatrix had executed to secure the home equity loan, claiming that the installments of principal and interest on the loan had not been paid. We take judicial notice of the pleadings in that action. See Lowe v. Lowe, 47 Conn. App. 354, 360, 704 A.2d 236 (1997).

The bank named other lienors and the present parties as defendants. The bank sued the defendant in the present case, Savitsky, as a life tenant. There was no allegation, however, as there is in the present case filed by the plaintiff, Hechtman, that Savitsky had failed to make payments on the loan. On April 6, 2000, the plaintiff in the present case individually and as executor of the estate filed an answer and special defenses. The special defenses did not allege that Savitsky was liable for the payments.

On May 17, 2000, the court defaulted Savitsky for failure to disclose a defense. On July 13, 2000, the bank moved for summary judgment against Hechtman, individually and as executor of the estate, as to liability only. Hechtman, individually and as executor, filed a memorandum in opposition to the bank’s motion for summary judgment and in support of his own motion for summary judgment against the bank. That memorandum alleged that he was not individually liable, nor was the estate liable, for payment of the loan’s finance charges. According to the opposition memorandum, Savitsky, as life tenant, was hable.

On October 13, 2000, Savitsky filed a four count cross claim against Hechtman in the foreclosure action, alleging that Hechtman, as an individual, had committed waste by failing to make payments of principal and interest on the loan. The cross claim references the trial court’s judgment in the present case, which held that Savitsky was not obligated to pay interest or principal on the loan. The cross claim also alleged that Hechtman, as administrator of the estate, had breached a fiduciary duty by failing to make payments on the loan; that Hechtman, as an individual, had violated the Connecticut Unfair Trade Practices Act; General Statutes § 42-110a et seq.; and that Hechtman, both individually and as administrator of the estate, had intentionally inflicted emotional distress.

On October 20, 2000, the court granted the bank’s motion for summary judgment as to liability because no party disputed that the mortgage was in default and because the issue of liability for payment of the underlying promissory note was irrelevant to the foreclosure action. On January 3, 2001, the bank withdrew its action as to all defendants. On January 8, 2001, Savitsky objected to the bank’s withdrawal of the action because of his pending cross claim against Hechtman. The court never ruled on the objection or the cross claim.

Counsel for the plaintiff in the present case disclosed at oral argument to this court that the plaintiff agreed to satisfy the outstanding debt and to bring the loan current to avoid foreclosure. The plaintiff has continued to make those payments to stave off foreclosure.

The plaintiffs agreement to make the payments raises the question of whether his actions have negated the existence of a controversy and have rendered the appeal seeking to discern the party responsible for the debts purely an academic exercise. In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way. See Housing Authority v. Lamothe, 225 Conn. 757, 765, 627 A.2d 367 (1993); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452-53, 352 A.2d 291 (1974).

The record from the foreclosure case does not contain any information concerning the plaintiffs agreement to make the loan payments in the future. There is no indication that the plaintiff stipulated that he was liable for the debt or entered into an otherwise legally enforceable agreement that established his liability for the loan. Indeed, he disputed his liability in the foreclosure action. Reversal of the trial court’s judgment in this case might relieve the plaintiff of any future liability as to the loan payments, thereby raising the possibility of collateral legal consequences. If we determine that the plaintiff had no legal obligation to pay either principal or interest on the loan during the defendant’s life tenancy, the plaintiff might have a separate cause of action against the defendant for reimbursement. Moreover, affirmance by this court of the trial court’s judgment might have the collateral consequence of affecting the defendant’s outstanding cross claim in the foreclosure case. We conclude that practical relief can follow from a determination of this appeal, and that we, therefore, have jurisdiction. See Sgarellino v. Hightower, 13 Conn. App. 591, 594, 538 A.2d 1065 (1988). We turn now to the issues on appeal.

II

The plaintiff first claims that the court improperly concluded that the defendant was not obligated to pay the interest due on the home equity loan that encumbered the property in which the defendant has a life estate interest. The plaintiff maintains that the testatrix’s will evinces her intention to have the defendant assume all obligations of the life estate, as well as its benefits. Moreover, the plaintiff claims that the general intent of the will must prevail over the residuary language in the will. The plaintiff also argues that the court’s judgment contravenes public policy.

The defendant responds that the court properly concluded that the testatrix did not intend to obligate the defendant to pay the interest due on the home equity loan during his life tenancy. The defendant argues that the incorporation by reference of the antenuptial agreement in the will demonstrates the testatrix’s intention to negate the general rule that a life tenant is responsible for interest on encumbrances on the estate. We agree with the defendant.

A

Our standard of review is well settled. The construction of a will presents a question of law, a question that we determine in light of the facts found by the trial court or from those facts that are undisputed or indisputable. Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 266, 585 A.2d 1189 (1991). The issue presented concerns the intent of the testatrix as expressed in the language of the will, and we, therefore, invoke a plenary review of whether that language supports the court’s conclusion. See id., 266-67.

In its memorandum of decision, the court correctly noted that the law generally obligates a life tenant to pay interest on a mortgage secured by the subject property of the life estate. See Hayward v. Plant, 98 Conn. 374, 387, 119 A. 341 (1923). A specific will provision can override or supersede, however, the general rule. “In the absence of provision in statute, will, or other instrument, [the authorities] are in agreement in holding it to be the duty of the life tenant to pay interest upon encumbrances upon the estate from the decease of the testator.” (Emphasis added.) Id., 388.

A basic tenet of will construction requires a court to examine the entirety of the will in divining the testatrix’s intent. Hartford National Bank & Trusl Co. v. Devilt, 145 Conn. 384, 388, 143 A.2d 441 (1958). The resolution of this case, therefore, hinges on the interpretation of the testatrix’s intent concerning the life estate in light of the entire will, specifically, in light of the incorporation by reference of the antenuptial agreement. We believe that the plaintiffs argument contravenes the principle that requires us to read the will as a whole “to discover whether it discloses an underlying intent which should be considered in finding the meaning to be accorded to the particular language under consideration.” Id.

Bound by this principle, we read the conveyance of the life estate in conjunction with the language of the agreement, which agreement the testatrix specifically incorporated by reference. As previously noted, the will states that the defendant “shall be responsible for and pay all expenses relating to the use and maintenance of said house, which will include, but [are] not limited to, taxes, insurance, utilities and repairs.” We must not ignore, however, the language of the antenuptial agreement in discerning the testatrix’s intent. The agreement, which the testatrix executed prior to the will, explicitly provided that each party to the marriage would be responsible for his or her own individual debts acquired both before and during the marriage, unless both parties agreed otherwise. The agreement also provided that each party to the marriage would have the “full right to own, control and dispose of his or her own separate property . . . .”

The testatrix alone signed the credit note for the home equity loan and the mortgage deed. The testatrix alone made the payments on the loan until her death. The testatrix already had entered into the antenuptial agreement with her husband when she executed the will, and she incorporated that agreement into her will. She could have expressly provided in the language conveying the life estate that the defendant would be responsible for the payments on the loan, but most likely did not because of the provisions of the antenuptial agreement. Although the will enumerates, albeit nonexhaustively, the obligations of the life tenant, there is no reference to the home equity loan payments.

The agreement demonstrates the testatrix’s intention not to obligate the defendant to pay any debt that the testatrix contracted for after the date of the agreement’s execution, and the will incorporates by reference the intention of that agreement. We, therefore, conclude that the will, when read in toto, relieves the defendant of any obligation the law might have imposed on him otherwise to pay the interest on a home equity loan secured by a mortgage on the subject property in which he has a life estate interest.

B

The plaintiffs argument that the “general intent” of the will must prevail over the “residuary language” does not properly characterize the will’s provisions. The agreement, which was incorporated by reference, is not residuary language. Residuary language expresses an intention to dispose of a testatrix’s entire estate and to avoid intestacy. DiSesa v. Hickey, 160 Conn. 250, 259, 278 A.2d 785 (1971). The general intent of the testatrix in this case, derived from the will as a whole and thus inclusive of the agreement, as we concluded previously, was to convey a life estate to the defendant without obligating him to pay any debts that the testatrix acquired before or during the marriage. We, therefore, affirm the court’s decision that the defendant is not responsible for the payments on the home equity loan.

C

The plaintiff also argues that public policy reasons should obligate the defendant to pay the interest on the loan and that the court’s judgment contravenes public policy. The alleged public policy reasons are that courts should avoid sowing family discord, should render logical decisions and should not construe a will so as to destroy a vested remainder interest in property. The trial court in this case did not discuss these issues, nor do we. We fail to understand how the opinion fosters family discord, why the decision is illogical or why the judgment destroys the plaintiffs remainder interest in the property.

III

The plaintiff also claims that the court improperly considered matters extrinsic to the will and outside the record and, therefore, abused its discretion. We disagree.

The plaintiff specifically cites that portion of the memorandum of decision where the court draws a distinction between a mortgage where the mortgagor uses the proceeds to acquire the subject property and the type of mortgage in the present case. He claims that the court speculated as to what the testatrix did with the proceeds of the loan. The plaintiff appears to argue that the court abused its discretion when, in its memorandum of decision, it commented on the fact that “people borrow money on home equity lines secured by a mortgage so that the interest payments are deductible for income tax purposes.” Immediately after the comment, the court stated that a home equity line of credit loan is no different than any unsecured loan that the testatrix could have obtained during the marriage and that, therefore, the court should treat it in accordance with the antenuptial agreement.

We find the plaintiffs argument unavailing for two reasons. First, the court did not abuse its discretion in recognizing the difference between the two types of mortgages. The distinction it drew does not rise to the forbidden level of information obtained individually or unofficially through personal knowledge or observations of the judge. See State v. Tomanelli, 153 Conn. 365, 369,216 A.2d 625 (1966). Second, we do not discern any effect that that fact had on the outcome of the case. The court was merely opining as to the reasons the testatrix may have secured the loan, which opining did not affect the court’s ultimate decision. The court did not abuse its discretion in recognizing that a distinction exists between a home equity loan and a loan provided for the initial purpose of purchasing a home. See Gray Line Bus Co. v. Greater Bridgeport Transit District, 188 Conn. 417, 424, 449 A.2d 1036 (1982).

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint describes the plaintiff as administrator rather than as executor, as does the case caption. The plaintiff was, in fact, named executor under his mother’s last will and testament.

       The plaintiff has not appealed from the court’s judgment in favor of the defendant on the conversion count.

       The mortgage foreclosure case is titled PNC Bank, N.A. v. Hechtman, Superior Court, judicial district of Fairfield, Docket No. 0372829S (March 4, 2000).

       In light of our conclusion, we do not reach the issue of whether a home equity loan constitutes the type of encumbrance on an estate for which a life tenant might be responsible.

       Paragraph eight of the will in the present case constitutes the residuary language.