author: Stoughton, J.

text:
    Donald Galland v. George D. Bronson, Warden
    (6588)
    Daly, O’Connell and Stoughton, Js.
    Argued June 15
    decision released September 6, 1988

      Donald Galland, pro se, the appellant (petitioner).

      James A. Kitten, deputy assistant state’s attorney, with whom, on the brief, were Roland Fasano and Steven M. Sellers, assistant state’s attorneys, for the appellee (respondent).
   Stoughton, J.

The petitioner, after he had sought and received proper certification, appealed from the judgment denying the relief sought in his petition for a writ of habeas corpus. The appeal was subsequently withdrawn by the petitioner. A motion to have his appeal reinstated was denied by this court. Thereafter, a petition to the trial court for recertification to appeal was granted, and the trial court purported to reinstate the appeal. We are constrained, sua sponte, to vacate the order of the trial court, remand this case and order that the petition for recertification be dismissed.

The relevant facts are as follows. After a trial to a jury, the petitioner was convicted of two counts of robbery in the first degree. The petitioner was sentenced on each count to the custody of the commissioner of correction for a period of nine to eighteen years to be served concurrently. After exhausting his right to an appeal, the petitioner applied for a writ of habeas corpus in which he challenged the robbery convictions because of alleged underrepresentation of various groups within the jury array and ineffective assistance of counsel. The trial court found that the petitioner had not proved his claim that the jury array was racially biased and did not represent a fair cross section of the community, and that the actions of the petitioner’s trial attorney were well within the range of professionally competent assistance. The petitioner appealed from the judgment denying his petition, and certification was granted.

Approximately one month later, the petitioner filed . and was granted a withdrawal of his appeal. Two months thereafter, the petitioner filed a motion in this court seeking reinstatement of his appeal, stating that he had filed the withdrawal by accident. The petitioner’s motion was denied. Thereafter, the petitioner filed a motion in the Superior Court entitled: “Petition to the Trial Court for the Certification to Appeal” wherein the petitioner set forth his claim that he had withdrawn his appeal and stated that he had filed a motion in this court seeking reinstatement of his appeal because he had filed the withdrawal form by accident. It also stated that this court had denied his motion. The trial court granted the petitioner’s motion and purported to reinstate the petitioner’s right to appeal. The appeal had already been certified and, therefore, recertification by itself would have been meaningless.

By necessity, this court must have exclusive power over the control of its own docket. State v. Robinson, 10 Conn. App. 520, 524, 523 A.2d 1365, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987). The trial court was without authority to order that the appeal be reinstated and to attempt, thereby to overrule the order of this court. We do not question the power of the trial court, on a petition for writ of habeas corpus and after a hearing, to fashion any appropriate order. The trial court did not have a petition for habeas corpus before it. A motion to reinstate the appeal was properly made to this court and ruled upon by us. The trial court'may not interfere with the supervisory powers of this court.

Practice Book § 4183 provides that this court may, on its own motion, vacate any order made by the trial court in relation to the prosecution of an appeal. Accordingly, we vacate the order of the trial court.

There is error, the order reinstating the petitioner’s appeal is vacated and the case is remanded with direction to dismiss the petition for certification.

In this opinion the other judges concurred.

       The petitioner, who was named in the substitute information as David Gethers a/k/a Don Galland, is now known as Donald Galland.

       The petitioner appealed from the judgment of conviction and our Supreme Court found no error in the trial. State v. Gethers, 193 Conn. 526, 480 A.2d 435 (1984). The sentences for the robbery convictions were ordered to be served consecutively to another sentence which had been imposed after a conviction for tampering with a witness. The judgment of conviction in that case was also appealed from, and our Supreme Court found no error in that trial. State v. Gethers, 197 Conn. 369, 497 A.2d 408 (1985).

       By an amended petition, the petitioner claimed that his convictions were illegal because (1) he was denied effective assistance of counsel because of counsel’s failure to challenge the jury array, and (2) he was denied his constitutional right to an impartial jury and thus a fair trial in violation of the sixth and fourteenth amendments to the United States constitution. The latter claim arises out of an alleged exclusion or underrepresentation of various groups in the jury array. The amended petition was filed by an assistant public defender who represented the petitioner at the evidentiary hearing. Subsequently, a different public defender filed a motion for articulation in which she represented that the only claim raised at the evidentiary hearing was the claim of ineffective assistance of counsel due to the failure to challenge the jury array, and that the question of whether there had been a violation of the petitioner’s rights to a fair trial and an impartial jury had not been presented and would be consolidated with other such claims in another proceeding. The trial court was asked to make such corrections as were necessary to confine its ruling to whether the petitioner had been denied ineffective assistance of counsel. The trial court responded that “the court’s findings of fact and legal conclusions in regard to the fourteenth and sixth amendments to the United States constitution are made solely as a predicate for the court’s decision in regard to petitioner’s claim of ineffective assistance of counsel.”


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Kevin B. Kenny v. Carolyn S. Dwyer
    (5943)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 9
    decision released September 6, 1988

      Thomas J. Shortell, with whom on the brief, was Elizabeth K. McLaughlin, for the appellant (defendant).

      William J. Melley III, for the appellee (plaintiff).
   Dupont, C. J.

The defendant is appealing from the judgment of the trial court ordering the defendant to allow the plaintiff unimpeded access to a well located on property owned by the defendant and issuing a permanent injunction restraining the defendant from interfering with the plaintiffs use of that well. We find error.

The following facts are pertinent to this appeal. The parties own adjoining properties located at Oak Grove Beach in East Lyme. Prior to December, 1970, municipal water service was not provided in that area. A fresh water well is located on the defendant’s property.

In 1962, the defendant’s predecessors in title to lot 313, Leslie and Ethel Sanders, entered into a “well agreement” with five adjoining property owners. That agreement granted these adjoining “[l]ot owners, their successors, heirs and assigns, an easement to use the well on said lot 313 and the installation leading therefrom to the various properties and to enter said lot 313 for the purpose of maintaining and repairing said Well and installations.” The well agreement provided that the easement was granted “with binding effect on any subsequent owner of lot 313.” The agreement further provided that the lot owners, excepting the grantor, would assume the cost of maintenance of the well and of the water pipes leading to the various properties. The well agreement was dated July 28, 1962, and was recorded on October 29, 1962.

The plaintiff’s predecessors in title to lot 316, F. L. and Dorothy McWilliams, were signatories to the well agreement. Prior to their signing of the agreement on July 28, 1962, however, the McWilliamses conveyed lot 316 to Raymond and Alice Sergent on July 12, 1962. The deed transferring lot 316 from the McWilliamses to the Sergents expressly included “the right to take water from a well situated on Lot Number 313 . . . and owned by Leslie W. Sanders and Ethel G. Sanders, and subject to the obligations specifically set out in a ‘Well Agreement’ recorded on the Land Records . . . . ” On November 1, 1968, the Sergents conveyed by warranty deed lot 316 to John R. King, which deed expressly granted the right to take water from lot 313 pursuant to the well agreement. From 1962 to December, 1970, both the Sergents and John R. King took water from the well located on lot 313.

In December, 1970, a municipal water line was installed providing service to Oak Grove Beach. Thereafter, neither the Sanderses, the owners of lot 313, nor King, nor any other signatories to the well agreement used or drew any water from the well. Early in 1971, the tank and pumping equipment was dismantled and sold, and the well was covered with a wooden box.

On August 31, 1972, King conveyed title to lot 316 to the plaintiff. The deed conveying the property did not expressly mention the well easement but did, however, convey title “with the appurtances thereof” pursuant to the habendum clause of the deed. The plaintiff testified that he was aware of the well prior to his purchase of the property and that he considered the option to draw water from the well, rather than from the municipal water line, a distinct advantage and an added value to the property.

On October 10, 1973, a release of the well agreement was signed by the Sanderses, the owners of lot 313; John R. King, the plaintiff’s predecessor in title to lot 316; and the other signatories to the well agreement. The release contains neither witnesses nor an acknowledgment of King’s signature. There was testimony that the plaintiff was invited but declined to sign the release at the time of his purchase of lot 316. The plaintiff denied that he was requested to sign the release at the time he purchased lot 316. There was no dispute, however, that the plaintiff declined to sign the release when so requested in June, 1978. The release was recorded on July 10, 1978.

Following the plaintiffs purchase of lot 316 in 1972, he has not used, maintained or drawn water from the well. On June 28, 1978, the Sanderses conveyed lot 313 to the defendant “subject to a certain agreement concerning well rights and obligations . . . .” On May 15, 1984, the defendant removed the box covering the well and filled the well with sand. One week later, the plaintiff commenced this action. Although the well has not been used since December, 1970, soundings of the well indicate that the original water level remains intact.

The plaintiff alleged in his complaint that his predecessor and the defendant’s predecessor in title entered into a well agreement granting well rights in favor of lot 316, that the well agreement was in effect at the time he purchased lot 316, and that such agreement was binding on any subsequent owner of lot 313. Accordingly, the plaintiff alleged that the defendant’s filling in of the well prevented the exercise of his rights under the well agreement and caused him irreparable harm. The plaintiff farther alleged that the defendant’s actions constituted a trespass and that the defendant, by proceeding “under the guise that the well agreement is terminated,” was acting in bad faith. The plaintiff requested a permanent injunction requiring the defendant to restore the well and restraining the defendant from ever filling in the well or interfering with the plaintiff’s right to use the well.

The defendant in her answer denied that the easement was in effect at the time the plaintiff purchased lot 316 and denied that she had breached the easement agreement. The defendant also denied the plaintiffs allegations regarding trespass and bad faith. The defendant raised two special defenses, claiming that the easement was extinguished due to abandonment or, in the alternative, estoppel. In addition, the defendant, by way of a counterclaim, made an allegation of adverse possession.

The trial court concluded that the language contained in the habendum clause of the deed conveying the plaintiff title to lot 316 was sufficient to include the well rights under the well agreement, and that the plaintiffs nonuse of the well was insufficient to establish abandonment by the plaintiff of his rights under the agreement. The trial court further concluded that the release of the easement was invalid in that King signed it subsequent to his conveyance of lot 316 to the plaintiff, and due to the lack of witnesses or an acknowledgment of King’s signature. The court also concluded that the defendant had presented insufficient evidence to support her special defense of estoppel and her counterclaim alleging adverse possession. Accordingly, the trial court rendered judgment for the plaintiff on both his complaint and on the defendant’s counterclaim. The court ordered the defendant to restore the well by removing the sand placed therein and to allow the plaintiff unimpeded access to the well, and issued a permanent injunction restraining the defendant from interfering with the plaintiff’s right to use the well. The court also ordered that maintenance of the well was to be in accordance with the terms and conditions of the well agreement.

The defendant claims that the trial court erred (1) in concluding that an easement appurtenant existed in favor of lot 316 at the time the plaintiff purchased that property, (2) in concluding that well rights passed to the plaintiff under the habendum clause in his deed, (3) in concluding that the easement was not abandoned, and (4) in ordering the defendant to restore and maintain the well.

The defendant’s first claim is that the well agreement failed to create an easement in favor of lot 316. The defendant avers that the McWilliamses, the plaintiff’s predecessors in title to lot 316, conveyed that lot to the Sergents on July 12, 1962. Since the McWilliamses signed the well agreement on July 28, 1962, the defendant argues that the McWilliamses could not enter into an agreement purporting to affect property they did not own and, therefore, that the easement in favor of lot 316 never attached. The defendant further points out that the Sergents did not sign the well agreement after they purchased lot 316.

When the McWilliamses conveyed lot 316 to the Sergents, they did not possess an easement in favor of lot 316 to use the well located on lot 313 and, in fact, the well agreement had not yet been established. Under these circumstances, the McWilliamses could not convey an easement that did not yet exist in favor of lot 316 which they did not possess, and subsequent grantees of lot 316, including the plaintiff, could not acquire such rights. See Schroder v. Battistoni, 151 Conn. 458, 460, 199 A.2d 10 (1964). “It is fundamental that a grantor cannot effectively convey a greater title than he possesses.” Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 170, 464 A.2d 26 (1983); Martin v. Sterling, 1 Root 210, 211 (1790). Nor could the McWilliamses enter into an agreement purporting to affect property they no longer owned. We conclude, therefore, that the express easement granting well rights failed as to lot 316, and that the trial court’s finding that the 1962 well agreement was valid regarding lot 316 is clearly erroneous. Practice Book § 4061.

In light of the failure of the express easement, we turn to the question of whether an implied easement to use the well was created in favor of lot 316. An implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property. See, e.g., D’Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954); Rischall v. Bauchmann, 132 Conn. 637, 642-43, 46 A.2d 898 (1946). In the absence of common ownership, as in this case, however, an easement by implication may arise based on the actions of adjoining property owners. 2 R. Thompson, Real Property § 352, p. 304.

There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate. Gager v. Carlson, 146 Conn. 288, 292-93, 150 A.2d 302 (1959); Schroder v. Battistoni, supra, 460; D ’Amato v. Weiss, supra, 717-18. It is clear from the evidence presented at trial, namely, that the plaintiff has never drawn water from the well, that the use of the well is not in any sense necessary for the use and normal enjoyment of lot 316. Schroder v. Battistoni, supra, 460. In the absence of the requisite degree of necessity, we cannot conclude that an easement by implication is present in favor of lot 316 regarding the use of the well on lot 313, whether or not such an easement by implication may have existed at one time. We note in this regard that implied easements are disfavored in Connecticut and “are allowed to a very much more limited extent than in many other states.” Gager v. Carlson, supra, 293.

In the absence of an express or implied easement, the plaintiff, as the owner of lot 316, possesses no right to use the well located on the property owned by the defendant. Since we reach this conclusion, we need not reach the defendant’s other claims of error.

There is error, the judgment of the trial court is set aside and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       The property owned by the plaintiff is referred to as lot 316 in the well agreement at issue in this appeal; the property owned by the defendant is referred to as lot 313. Each property will be hereinafter so termed.

       In response to the defendant’s motion for articulation, the court stated that the 1962 well agreement was valid, that the well rights pursuant to that agreement were passed to the plaintiff and his predecessors in title, that the agreement created an easement appurtenant in favor of lot 316 which passed to the plaintiff under the habendum clause of his deed, and that the court’s order required that the well be restored, maintained and kept in a condition contemplated and required by the well agreement so as to meet the water requirements, when necessary, of the plaintiffs lot.

       The plaintiff contends that the validity of the 1962 well agreement was never disputed at trial by the defendant and, therefore, it cannot be raised as an issue on appeal. The defendant, however, clearly raised the issue of the easement’s validity in her motion for articulation. The plaintiff also argues that the defendant admitted in her pleadings that the agreement was valid, and thus cannot on appeal challenge the validity of the agreement. Although the defendant admitted in her answer that her predecessor in title and the plaintiff’s predecessor in title entered into the well agreement, the defendant did not admit that the easement was valid and denied that the easement was in effect at the time the plaintiff purchased lot 316. The defendant’s claim of error is properly raised on appeal to this court.

       The trial court erroneously stated in its memorandum of decision that the Sergents were signatories to the well agreement.


author: Spallone, J.

text:
    Richard Lucarelli v. State of Connecticut
    (6077)
    Borden, Spallone and Foti, Js.

      Argued April 6
    decision released September 6, 1988

      Carl J. Schuman, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Michael J. Belzer, assistant attorney general, for the appellant (defendant).

      Gerald F. Stevens, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the decision of the workers’ compensation review division awarding the plaintiff benefits pursuant to General Statutes § 5-142 (a). The sole issue is whether the review division erred in concluding that the injury sustained by the plaintiff was compensable under that provision. We find no error.

The following relevant facts are not in dispute. The plaintiff was an officer employed by the department of correction and assigned to the Bridgeport correctional facility. On November 27, 1982, the plaintiff was assigned as a relief officer to the hospital located at the facility. As such, his duties were to check on the inmates and maintain log entries after each inmate check. At approximately 11:30 p.m., upon completion of his second inmate check, the plaintiff returned to his desk to make his log entry. When he seated himself in the chair at the desk, the chair collapsed, causing him to sustain a disabling back injury.

The plaintiff applied to the workers’ compensation commission for benefits under General Statutes § 5-142 (a). After a formal hearing, the commissioner found that, although the plaintiff was injured while in the performance of guard duties, his injuries were not compensable under § 5-142 (a) because those duties were not hazardous. The plaintiff appealed from the decision of the commissioner to the compensation review division.

The review division sustained the plaintiff’s appeal, concluding that the commissioner had utilized an incorrect standard for review of the plaintiff’s application by requiring a showing that the injury was sustained while engaging in hazardous duties. The review division’s interpretation of § 5-142 (a) was that the provision required only that the claimant be “in the actual performance of such police or guard duties,” not proof that the duties were themselves hazardous. The plaintiff was thereby awarded full pay benefits under § 5-142 (a) during the period of his disability. From this award, the defendant has appealed.

Simply stated, § 5-142 (a) provides special, enhanced benefits to special, enumerated groups of state employees. Contrary to the arguments proffered by the defendant, there is no need to look any further than the words of the statute to divine its intent and purpose. By its own terms, the statute defines who is entitled to its benefits, and a fair reading discloses under what circumstances these benefits will be dispensed. “ Tf the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction. Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981) . . . .’ Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986).” O’Donnell v. Rindfleish, 13 Conn. App. 194, 202, 535 A.2d 824 (1988).

We do not agree with the defendant that the word “hazardous” must be inferred in a fair reading of the statute to render a reasonable and logical result. The classifications of state employees enumerated in the provision share a common characteristic: these employees, in the daily course of performing their duties, work in an atmosphere sometimes charged with emotion and stress, and face the possibility of confrontations with inmates, patients or arrestees, which confrontations often result in violence. It is not illogical that the legislature recognized this heightened risk factor in their employment and sought to provide these employees with a special benefit.

Given our conclusion that the statute can be read fairly as yielding a rational result without resort to an analysis of the provision’s lengthy history, we will go no further. See, e.g., Orticelli v. Powers, 197 Conn. 9, 13-14, 495 A. 2d 1023 (1985); Carruthers v. Vumbacco, 4 Conn. App. 168, 171, 493 A.2d 259 (1985); University of Hartford v. Hartford, 2 Conn. App. 152, 158, 477 A.2d 1023 (1984). If the legislature had wished to limit the special benefits of § 5-142 to only those situations fraught with hazard, it easily could have done so. The absence of the terms “hazardous” or “special” in the statute indicates that the legislature meant to omit them. To interpret the statute as including these expressions would undeniably alter its meaning. Courts must interpret statutes as they are written; Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); and cannot, by judicial construction, read into them provisions which are not clearly stated. Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230, 439 A.2d 946 (1981); Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975).

The defendant’s alternative argument also fails. The defendant contends that the only sensible explanation for inclusion of the word “such” in § 5-142 (a), is that it refers to the duty of “making an arrest” and, by implication, modifies “police duties or guard duties” to mean duties of a similar, dangerous nature. We disagree with such a strained interpretation. The word “such” indeed modifies the types of duties which follow in the provisions, but in the context of the category of employee which performs that duty, not the duty itself. Furthermore, the defendant ignores the fact that very few of the employees covered by § 5-142 (a) regularly engage in activities as hazardous as making arrests. The defendant’s suggested interpretation of the statute would render the inclusion of many of those other employees inexplicable.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 5-142 (a) provides in pertinent part: “If any member of the division of state police within the department of public safety or of any correctional institution, or any institution or facility of the department of mental health giving care and treatment to persons afflicted with a mental disorder or disease, or any institution for the care and treatment of persons afflicted with any mental defect, or any full time enforcement officer of the department of environmental protection, the department of motor vehicles, the department of liquor control, the office of adult probation, the department of administrative services or the board of parole, any probation officer for juveniles or any employee of any juvenile detention home, any member of the police or fire security force of The University of Connecticut, any member of the police or fire security force of Bradley International Airport, any member of the office of state capítol security or any person appointed under section 29-18 as a special policeman for the state capítol building and grounds, the chief state’s attorney, the chief public defender, the deputy chief state’s attorney, the deputy chief public defender, any state’s attorney, any assistant state’s attorney or deputy assistant state’s attorney, any public defender, assistant public defender or deputy assistant public defender, any chief inspector or inspector appointed under section 51-286 or any staff member or employee of the division of criminal justice or of the division of public defender services, or any judicial department employee sustains any injury while making an arrest or in the actual performance of such police duties or guard duties or fire duties or inspection duties, or prosecution or public defender or courthouse duties, or while attending or restraining an inmate of any institution or as a result of being assaulted in the performance of his duty, the state shall pay all necessary medical and hospital expenses resulting from injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity . . . .”

       The defendant conceded that the plaintiff had suffered a compensable injury, and has made payments pursuant to the state Workers’ Compensation Act, General Statutes §§ 31-275 et seq.

       The relevant portion of the commissioner’s finding and award provided:
      “9. The claimant’s injury was sustained while in the performance of his guard duties.
      “10. The claimant’s guard duties at the time of the fall were not hazardous and did not involve any special duties required of a guard by virtue of the nature of his work. The claimant was not in actual performance of the duties which entitle him to the extra compensation he claims.”

       General Statutes $ 5-142 provides that an eligible claimant shall receive his full salary and all salary benefits for the first two hundred and sixty weeks, or five years, of incapacity, and one half of his salary for any continuing incapacity thereafter.

       We do not agree with the defendant that the mere fact that the statute confers a special benefit on a select group of employees renders it invalid. See Grover v. Manchester, 168 Conn. 84, 89, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975).

       Although we have stated that we will not delve into a protracted legislative history of this particular provision, it could not escape our attention that, at an earlier point in time, the statute did delineate specific “hazardous” activities which would invoke its benefits, and provided that any injury sustained in other circumstances would be addressed by workers’ compensation benefits. Public Acts 1939, c. 211. Although the defendant argues that this exemplifies the legislative intent and purpose inherent in the current statute, it could also be argued that the deletion of these specifics evinces an intent to broaden the application of the provision.

       The portion of § 5-142 (a) critical to this claim provides that benefits will be received by an eligible employee when he or she “sustains any injury while making an arrest or in the actual performance of such police duties or guard duties or fire duties or inspection duties, or prosecution or public defender or courthouse duties, or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty . . . . ” (Emphasis added.)


author: O’Connell, J.

text:
    Pero Building Company, Inc. v. Donald Horton Smith et al.
    (6116)
    Daly, O’Connell and Stoughton, Js.
    Argued June 15
    decision released September 6, 1988

      Philip Matthew Hart, for the appellants (named defendant et al.).

      Frank J. Kolb, Jr., with whom, on the brief, was Noah Eisenhandler, for the appellee (plaintiff).

      Joseph Glass, for the appellee (defendant Gerrity Company, Inc.).
   O’Connell, J.

The named defendant et al. appeal from a judgment in favor of the plaintiff contractor, in an action arising from the defendants’ failure to pay the balance due for the construction of a two-family home. The defendants claim that the court erred (1) in finding that the plaintiff is entitled to recover interest in the amount of $6327.34, (2) in employing the contract price of $70,200 as a starting point for its computation of damages, (3) in not awarding the defendants a per diem penalty for the plaintiff’s failure to complete the dwelling by the contract deadline, (4) in excluding evidence concerning the defendants’ claim for loss of rental income arising from the plaintiff’s failure to complete the subject dwelling on schedule, (5) in excluding the defendants’ evidence concerning their claim for damages resulting from a defective roof and defective windows, and (6) in excluding the defendants’ evidence concerning attorney’s fees. We find no error.

The defendants’ first claim of error concerns the court’s award of interest. It is rudimentary that an award of interest is within the discretion of the trial court. Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 478, 531 A.2d 177 (1987). An examination of the record in the present case does not disclose an abuse of this discretion.

The second and third claims of error relate to factual findings of the trial court. “Our review of the trial court’s factual findings is limited solely to the determination of whether they are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, they are clearly erroneous .... The function of an appellate court is to review, and not retry the proceedings of the trial court.” (Citations omitted.) Petti v. Balance Rock Associates, 12 Conn. App. 353, 357, 530 A.2d 1083 (1987). We conclude that the trial court’s findings are adequately supported by the record.

Claims of error four and five arise from a counterclaim filed by the defendants. The counterclaim did not, however, make a claim for loss of rental income (claim four), or for damage sustained as a result of a defective roof and windows (claim five). Accordingly, the court was correct in excluding evidence concerning those matters. A defendant on a counterclaim “must be restricted in his offer of proof to evidential facts within the range of the case which his [counterclaim] fairly discloses. The [counterclaim] must be definite enough to mark out these limitations with reasonable certainty.” B. Holden & J. Daly, Connecticut Evidence § 68a, and cases cited therein.

The defendants seek relief from their failure to include these matters in their counterclaim on the ground that the plaintiff had annexed the original contract to its complaint and thus made it an exhibit in the case. See Practice Book § 141. This rule of practice, however, does not excuse a party from pleading his case as clearly and precisely as possible. The rules of pleading “are designed to clarify and fix the issues and to confine the judicial inquiry necessary to decide the issues within reasonable and relevant limits.” Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961); see Practice Book § 108. It is clear that many contracts that are the subject of litigation are lengthy and complex documents. Precision in issue framing, the goal of effective pleading, however, would be rent asunder if this court held that any and all parts of an annexed contract could be attacked merely by general reference, despite the failure of the pleadings to refer to the particular contract provision in question. Such a theory would allow a party to circumvent the winnowing process inherent in the ordinary pleadings system, which normally enables the parties to contest the sufficiency of the complaint and revise its content, before being required to respond thereto. We decline to expose litigants and trial courts to such an open arena of judicial confusion. The trial court properly excluded the evidence addressed in the defendants’ third and fifth claims of error.

The defendants’ final claim of error pertains to their claim for counsel fees. The record indicates that no claim for attorney’s fees was contained in the counterclaim. In fact, the counterclaim made no claim for relief whatsoever, as it failed to contain an ad damnum clause. Moreover, the defendants failed to pursue their claim for attorney’s fees at trial by means of an offer of proof, an attempt to introduce evidence through another attorney, or any other means. The trial court succinctly stated that “[t]he question of attorney’s fees [was] not ‘denied’ by the undersigned; [it was] just not considered for the reason that no claim or proof [of] attorney’s fees [was] presented at the trial before me.” We conclude the trial court’s ruling concerning attorney’s fees was correct.

There is no error.

In this opinion the other judges concurred.

       The Smiths are referred to as the defendants in this opinion because other defendants named in the writ are not involved in the issues raised in this appeal.

       Practice Book § 141 provides in pertinent part: “Where the plaintiff desires to make a copy of any document a part of his complaint, he may, without reciting it or annexing it, refer to it as Exhibit A, B, C, and etc., as fully as if he had set it out at length; but in such case he shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or a copy of such exhibit or exhibits in court with proof of service on each appearing party.”

       Practice Book § 108 provides in pertinent part: “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . . .” (Emphasis added.)

       The lack of an ad damnum clause in the counterclaim furnishes an additional ground for finding no error on claims four and five.


author: Bieluch, J.

text:
    State of Connecticut v. Barrington Williams
    (5661)
    Bieluch, Stoughton and Norcott, Js.
    Argued April 19
    decision released September 6, 1988

      Mark A. Milano, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, was Arthur Hadden, assistant state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant has appealed from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70. He claims that the evidence presented by the state was insufficient to establish his guilt beyond a reasonable doubt and that the trial court erred by admitting statements he had made while being held in police custody without a showing that he had waived his right against self-incrimination voluntarily, knowingly and intelligently. We find no error.

The jury reasonably could have found the following facts. In the early morning hours of August 17, 1985, the victim, who is speech and hearing impaired, was walking toward a friend’s home after attending a late night party in New Haven. During her walk, the defendant, a taxi driver, pulled up alongside and offered her a ride. After entering the taxi, the victim told the defendant that she wanted to go to her friend’s house which she thought to be in East Haven. She gave him directions by pointing the way, and he drove her there. In reality, the friend’s home was located in New Haven, and not East Haven. Finding no one awake or at home there, the victim asked the defendant to take her back to the party. The defendant instead drove randomly through various streets in the neighborhood, and, while driving, took the victim’s hand, placed it on his penis, and indicated that he wanted her to have oral sex with him. The victim refused. Coming to a dead end street, the defendant stopped the cab and made unsuccessful efforts to remove the victim’s pants. He then asked the victim to remove her own pants. She did so, fearing physical harm if she did not comply. Although the victim tried to push the defendant away, he sexually assaulted her in the taxi. After the assault, the defendant drove the victim to a gas station, gave her $5, and left.

The defendant was arrested following an investigation by the New Haven police, and was interrogated by the arresting officer, Detective Joseph Howard. Before questioning, the defendant was read his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After he affirmed that he could read, the defendant was given the form card enumerating these rights, and was asked to place his initials on a line before each sentence when he had read and understood the right expressed therein. He then read and initialed each segment, and also signed the bottom of the form to indicate that he understood his constitutional rights, that he waived them, and that he would answer questions without an attorney present.

When questioned thereafter, the defendant admitted that he had taken a speech and hearing impaired woman as a passenger around the date of the rape, but denied having had sexual contact with her. When Howard suggested that it would be unwise for the defendant to lie because forensic tests had been performed on the taxi and evidence of sexual activity would likely be found if such activity had occurred, the defendant admitted that he had had sex that night, but claimed that it was not with the victim. When asked who this other person was, the defendant stopped talking and refused to answer any further questions. The defendant did not request counsel at this time.

The following day, another police officer, Detective Mel Cartocetti, questioned the defendant for fifteen minutes after the defendant was again advised of his Miranda rights and had executed a Miranda form similar to the one he had read, initialed and signed before the first interrogation. The defendant admitted to the same information he had disclosed in the previous interview, but the questioning ceased when the defendant requested the assistance of counsel after he was asked to make his statements on a tape recording. After consulting with his attorney by telephone, the defendant was instructed to give no further statements and the interview ended.

I

The defendant first challenges the jury’s verdict because, he claims, the evidence presented at trial was insufficient to allow the jury to conclude that he was guilty beyond a reasonable doubt. Specifically, he argues that no substantive evidence was offered which established that he had used physical force to compel the victim to engage in sexual intercourse or that he threatened to use force which reasonably caused the victim to fear physical injury, as required by General Statutes § 53a-70. We disagree.

It is well established that when a jury verdict is challenged as being supported by insufficient evidence, the standard the defendant must meet to establish error is a rigorous one. “ ‘We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.’ ” State v. Monk, 198 Conn. 430,433, 503 A.2d 591 (1986), quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Robinson, 14 Conn. App. 40, 42, 539 A.2d 606 (1988). The standard is whether the jury “could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). While the jury may not speculate to reach a conclusion of guilt, they may draw reasonable, logical inferences from the facts proven to reach a verdict. State v. Robinson, supra; State v. Baskins, 12 Conn. App. 313, 316, 530 A.2d 663 (1987).

Against this standard, the defendant’s initial claim must fail. Establishing the issue of “use of force” is a question of fact reserved for the jury. State v. Monk, supra; State v. Kish, 186 Conn. 757, 766-67, 443 A.2d 1274 (1982); State v. Robinson, supra, 43. According to General Statutes § 53a-65 (7), “use of force,” as relevant here, means “use of actual physical force or violence or superior physical strength against the victim.” The defendant, citing State v. Gionfriddo, 154 Conn. 90, 96-97, 221 A.2d 851 (1966), argues that since he did not physically injure the victim and her clothing was not torn, such lack of evidence of the use of physical force “raises serious questions as to whether an offense had been committed.” Based on the testimony presented at trial, it would not have been unreasonable for the jury to conclude that the defendant used “actual physical force” or “superior physical strength” in order to compel the victim to engage in sexual intercourse. Against her wishes, the defendant took the victim’s hand and placed it on his penis; when she tried to pull her hand back, he held it there; when he got on top of her, she attempted to push him off, but “he wouldn’t get off.” The jury heard this evidence and chose to believe it was true. Their determination based on this testimony was reasonable. It cannot be disturbed on appeal.

Since we conclude that the evidence presented at trial • was sufficient for the jury reasonably to have found that the defendant used actual physical force or superior physical strength to compel the victim to have sexual intercourse,, it is unnecessary for us to decide whether the evidence was also sufficient to establish that the defendant threatened the use of force which reasonably caused the victim to fear physical injury.

II

The defendant’s final claim of error is that the prosecution did not sufficiently establish that he had voluntarily, knowingly, and intelligently waived his Miranda rights before he was questioned by the police detectives, and therefore his two oral statements were inadmissible. We do not agree.

The first argument the defendant advances to support his claim is that, as a native of Jamaica who had been living in the United States for only three years when he was arrested, he had a language problem with “American English” and had a “very heavy accent.” He asserts that he did not understand his rights, and in fact testified that he assumed the Miranda forms concerned his bail, and not his privilege against self-incrimination.

A review of the transcript reveals that the state more than met its burden to establish by a preponderance of the evidence that the defendant waived his Miranda rights knowingly, intelligently, and voluntarily. State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987). Cartocetti testified that the defendant appeared to have no problem understanding the written statements on the Miranda warning form. There is no evidence that the police pressured the defendant to waive his Miranda rights. Before questioning began, the defendant indicated that he was willing to waive his rights, initialed each segment of the Miranda forms, and signed them in the presence of the detectives. The Miranda forms contained no language regarding bail. Testimony by the detectives who questioned the defendant indicated that the defendant had no problem understanding and communicating with them. The defendant had attended high school in Jamaica, where English is the native language, before dropping out after the tenth grade. While it is true that a defendant must understand his rights in order to waive them knowingly, intelligently, and voluntarily; State v. Hendrickson, 12 Conn. App. 662, 666, 533 A.2d 894 (1987); State v. Wilson, 183 Conn. 280, 285, 439 A.2d 330 (1981); whether the defendant actually understood them is a question of fact for the jury to determine. State v. Hendrickson, supra, 666-67. We have carefully reviewed the evidence in the transcript and record and find that the jury had substantial evidence from which it could find that the defendant understood that he was waiving his right to remain silent. State v. Hernandez, supra, 395-96; State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); State v. Hendrickson, supra.

The defendant also argues that in his first interview the detective tricked him into admitting that he had had sexual intercourse in the taxi on the night he had taken the victim as a passenger by telling the defendant it would be unwise for him to lie, since the cab had undergone forensic tests and would likely produce evidence of sexual activity if the defendant had engaged in any that night. The defendant asserts that as a result of these questioning tactics, his waiver of his Miranda rights was not voluntary. This argument has no merit.

Although the interviewing detective was not aware of the results of the forensic tests, his interrogation did not involve the use of lies and did not rise to a level of proscribed conduct. The defendant’s will was not overborne and his capacity for self-determination was not critically impaired by this statement of the detective. See Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986). The defendant’s incriminating statements were “the product of [his] essentially free and unconstrained choice.” State v. Stankowski, 184 Conn. 121, 132, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); Culombe v. Connecticut, supra. The record contains substantial evidence that the defendant knowingly, voluntarily, and intelligently waived his Miranda rights. See State v. Hernandez, supra.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-70 proyides: “(a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       The defendant, in his brief, claims that there was “no evidence of earnest resistance and no evidence that the defendant used force in any way to restrain the victim or otherwise compel sexual intercourse.” We call attention to our decision in State v. Mackor, 11 Conn. App. 316, 321-22, 527 A.2d 710 (1987), in which we held that General Statutes § 53a-70, as revised by Public Acts 1975, No. 75-619, no longer requires that the state prove that physical force overcame earnest resistance. “[T]he state is now required to prove that it was the use of force or its threat which caused the victim to engage in sexual intercourse, and [General Statutes § 53a-70 (a)] does not by its express language require that resistance be proven.” Id., 322.


text:
    Delight A. Hagist et al. v. Phillip F. Washburn et al.
    (5905)
    Borden, Stoughton and Foti, Js.
    Argued May 18
    decision released September 6, 1988

      Kimberly A. Knox, with whom was Susan M. Cormier, for the appellants (defendants).

      John C. Dunham, for the appellee (named plaintiff).
   Stoughton, J.

This is an appeal by the defendants from a judgment ordering the defendants, their successors and assigns, to refrain from interfering with or obstructing the plaintiff’s use and enjoyment of a right-of-way over the defendants’ property. The defendants claim that the court erred (1) in holding that the plaintiff has a right to park vehicles on the easement and enjoining the defendants from doing the same, and (2) in refusing to define the exact boundaries of the easement. We find no error.

The complaint alleged that the plaintiff has owned and possessed certain property in Southington since June 6, 1956, that she had a right-of-way over land owned by the defendants which is described in their deed and in the deeds of the defendants’ predecessors in title, and that the defendants have interfered with the use and enjoyment by the plaintiff of her right-of-way and thereby caused her irreparable injury.

The trial court had before it as exhibits the deeds which established the claim to title in the parties. The court found that the defendants’ property is at 51 Oak Street and that the plaintiff’s property is at 53 Oak Street. The plaintiff’s property is to the east and to the rear of 51 Oak Street and does not border any street. Furthermore, it was found that both properties were owned by Bruce C. and Judith B. Bennison in 1969. The plaintiff’s property, 53 Oak Street, was conveyed by the Bennisons together with the right-of-way as it is described in her deed. The defendants’ property, 51 Oak Street, was conveyed by the Bennisons subject to the right of passway for persons and residents of 53 Oak Street. This right-of-way is described in the deeds conveying the dominant estate, which is the property owned by the plaintiff, and the description shows that it runs 52.35 feet along its northerly side from Oak Street to the plaintiff’s property and that it is 9.2 feet in width.

The following facts were also found by the trial court and are not in dispute. The plaintiff and Maureen H. Flynn acquired the property at 53 Oak Street, Southington, on June 15, 1976, by warranty deed. The deed contained a right-of-way as follows: “Together with a right of way by foot and vehicle, over, upon and across a certain strip of land located westerly of the westerly line of the hereinabove described property, and being bounded and described as follows: . . . Said right-of-way crossing property conveyed on November 14, 1969, by Bruce C. and Judith B. Bennison to Felice C. Palazzo and Grazia C. Palazzo.” On June 29, 1978, the defendants acquired their adjoining property by warranty deed from Michael Feola. The deed contained no mention of the right-of-way, although it was discernible in their chain of title. The plaintiff used the right-of-way for parking overnight from the time she bought the property in 1976 until April, 1983, when the defendants interfered with her use by blocking it.

The trial court concluded that the defendants were impairing the use by the plaintiff of the right-of-way by parking vehicles on the entrance end of the westerly or street side of the right-of-way, thus preventing access to it and forcing the plaintiff to park in the street. The court concluded that the rights of the plaintiff include the right to park in the right-of-way. It ordered the defendants to desist and refrain from parking any vehicles in the area of the right-of-way located on the northerly side of their premises at 51 Oak Street, and from interfering with the right of the plaintiff to park her vehicle on the easterly most point of the right-of-way, and from otherwise obstructing or interfering with the plaintiffs use or enjoyment of ingress or egress over the right-of-way.

I

The Right to Park Vehicles on the Easement

The defendants maintain that the trial court erred in that it incorrectly expanded the plaintiffs right-of-way when it determined that the plaintiff has a right to park her vehicle thereon. They argue that this case involves a proposed use different from and in addition to the right of ingress and egress, and that nothing in the language of the deed granting the right-of-way justifies the expansion. We disagree.

It is well established that a right-of-way granted in general terms may be used for any purpose reasonably necessary for the party entitled to use it. Mackin v. Mackin, 186 Conn. 185, 189, 439 A.2d 1086 (1982); Peck v. Mackowsky, 85 Conn. 190, 194, 82 A. 199 (1912). Moreover, the issue of what constitutes reasonable use “is a question of fact to be determined on a case by case basis, considering all the relevant circumstances, including such factors as the amount of harm caused, its foreseeability, the purpose or motive with which the act was done, and the consideration of whether the utility of the use of the land outweighed the gravity of the harm resulting.” Peterson v. Oxford, 189 Conn. 740, 745, 459 A.2d 100 (1983); Litchteig v. Churinetz, 9 Conn. App. 406, 409-10, 519 A.2d 299 (1986).

The right-of-way granted to the plaintiff is a right-of-way “by foot or vehicle, over, upon and across” (emphasis added) the defendants’ property. These words contemplate the regular use of a vehicle by the plaintiff. It is beyond dispute that if the defendants utilize the driveway to park their car, the plaintiff could not cross over the driveway by vehicle and this would constitute an interference with the plaintiffs right-of-way. Even in the most unlikely event that the defendants proved themselves willing to cooperate instantly and move their car or cars upon the plaintiff’s arrival, it would still be tremendously burdensome for the plaintiff to sit in her car while this was accomplished.

Since it is clear that the defendants may not use the easement as a driveway in a manner consistent with the plaintiff’s easement, the question to be resolved is whether the plaintiff may park on part of the driveway without overburdening the easement and interfering with the defendants’ legitimate use thereof. We find that she may.

In Russo v. Stepp, 2 Conn. App. 4, 5-6, 475 A.2d 331 (1984), we addressed the question of whether the owners of a dominant estate could park their vehicles in whole or in part upon a driveway over which they had the right “to pass and repass in, over and upon for purposes of ingress and egress and to use for general driveway purposes that portion of . . . other land of grantors immediately adjacent to the westerly boundaries of the premises herein conveyed over which a driveway now runs.” We reiterated in that case that the language used in the deed is not the only criterion in the analysis and it “must be considered with reference to the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties.” (Emphasis added.) Id., 6. We concluded that from the terms of the deed and the surrounding circumstances it was clear that the defendant, the owner of the adjoining dominant estate, did not acquire a right to obstruct the driveway which was situated between both parties’ houses. Nor did it permit them to allow the motor vehicles to be parked in the driveway so as to interfere with its use by the owners of the servient estate. Of critical importance there was the fact that the width and steep grade of the easement rendered its use by the plaintiffs dangerous if vehicles were parked within it by the defendant.

We apply a similar analysis to the situation before us, but reach a different result. Unlike the facts of Russo v. Stepp, supra, the plaintiff’s property is to the rear of the driveway in question, which is approximately nine feet wide. There are no physical characteristics which would render the use of the easement dangerous if the plaintiff were to park her vehicle within it. Moreover, it would be impossible for the plaintiff to exercise her right-of-way by vehicle if the defendants parked there regardless of whether the plaintiff is allowed to park or not. Furthermore, the defendants have another driveway on the opposite side of their house which is not and has never been subject to any easement. These factors, taken with the language of deed which expressly contemplates the plaintiffs use of a vehicle in the right-of-way, lead us to conclude that the trial court was correct when it determined that the plaintiff has the right to park over a portion of the defendants’ property under the grant in the deed. To hold otherwise would mean that the driveway could not be used to park any cars and exists only for the use of vehicles making deliveries to the plaintiff’s house.

We note that several courts have considered the question of whether “driveway easements” or “right-of-way for ingress and egress” allow for parking on the burdened land by the owner of the dominant estate. See annot., 37 A.L.R.2d 944. Courts generally have construed such easements to allow this provided that the vehicles are not parked in such a manner as to interfere with the use of the property by the owner of the servient estate. Id., 946-47; State v. Larason, 75 Ohio L. Abs. 211, 213, 143 N.E.2d 502 (1956).

It cannot be argued seriously that the encroachment upon several feet of the defendants’ land by the plaintiffs vehicle interferes with the defendants’ use of their property. As we have found earlier, the defendants may not park there as it would interfere with the plaintiffs right-of-way. They are free, however, to utilize the land in any other manner which does not interfere with the plaintiff’s right-of-way. Since such activities would necessarily be'temporary, so they could cease upon the plaintiffs desire to drive up to her home, the encroachment of a portion of the plaintiff’s car upon the driveway would not overburden the servient estate.

II

The Boundaries of the Easement

The defendants’ second claim is that the court erred by not defining the exact boundaries of the easement in that it is impossible for them to comply with the trial court’s orders in the absence of a clear understanding of the dimensions of the right-of-way. They point to the fact that in addition to the description of the boundaries of the easement contained in the deed through which the defendants acquired title to their property from Ann Stanton, there was also a recorded map produced by the plaintiff that also purports to illustrate the right-of-way over the defendants’ property. The defendants contend that there exists a discrepancy as to the right-of-way between the deed and the map.

After carefully reviewing the record, we conclude that the court clearly referred to the right-of-way as described in the deed, and made no mention of the right-of-way as delineated by the map. The map was introduced solely to give the trial court an indication of how the parties’ lots are situated with respect to one another, and not for the purpose of defining the boundaries of the right-of-way. There is no ambiguity in the trial court’s order.

There is no error.

In this opinion the other judges concurred.

       There were initially two plaintiffs, Delight A. Hagist and Maureen H. Flynn. The action was subsequently withdrawn as to Maureen H. Flynn. As used in this opinion, the term plaintiff refers to the named plaintiff.


text:
    State of Connecticut v. Wilfredo Maisonet
    (5465)
    Bieluch, Stoughton and Norcott, Js.

      Argued April 19
    decision released September 6, 1988

      John R. Williams, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant appeals from the judgment of conviction, after a jury trial, of selling a narcotic substance in violation of General Statutes §§ 53a-8 and 21a-277 (a), and of conspiracy to sell a narcotic substance in violation of General Statutes §§ 53a-48 (a) and 21a-277 (a). The defendant claims that the trial court erred (1) in limiting his cross-examination of a prosecution witness, an accomplice, on the questions of whether the witness had been offered a particular sentence in exchange for his testimony and of the witness’ expectation regarding the extent of a reduced sentence, (2) in limiting his cross-examination of an undercover police officer concerning a previous misidentification the officer had made of a suspect in an unrelated proceeding, and (3) in denying his attempt to show that his prior record consisted solely of a misdemeanor conviction. We find no error.

The jury could reasonably have found the following facts. On February 1, 1985, Trooper Julio Fernandez, on undercover assignment from the Connecticut state police statewide narcotics task force, entered the Crown Street Market in Meriden, owned by the defendant, and purchased one half gram of cocaine from Luiz Colon and the defendant. Both the defendant and his accomplice, Colon, were arrested and charged with crimes connected to the sale of the cocaine.

At trial, Colon testified for the state regarding the drug transaction and also identified the defendant. During his cross-examination, it was established that Colon was awaiting sentencing on a number of charges and was facing a maximum of thirty-five years in prison. The court thereafter sustained the prosecution’s objections to the question whether “there ever [was] a time when you were offered any particular specific sentence,” and to the question asking the witness what he thought the “best” for him would be regarding a reduced sentence.

Fernandez testified as to the drug purchase and explained how he had identified the defendant, after the sale, from an array of photographs presented to him by the police. On cross-examination, the defendant attempted to ask Fernandez about a misidentification he alleged Fernandez had made in a previous case involving the use of photographs to identify the suspect. The court also prohibited this witness, upon the state’s objection, from answering whether he was aware that, in a previous unrelated case, he had claimed to have purchased narcotics from an individual who was actually serving time in prison at the time of that alleged sale.

At another point in the trial, the state introduced a display of eight photographs as an exhibit and asked Fernandez to indicate whether he recognized them. He acknowledged that the photographs were the ones he had examined for the police after the narcotics purchase, and identified the defendant’s photograph as the one he had previously selected as being the individual from whom he had purchased the cocaine. On direct examination of the defendant later in the trial, the defendant was asked the nature of his prior conviction. The state objected on the ground of immateriality. The court sustained the objection, to which the defendant excepted, after claiming that the jury should know that he had been convicted only of a misdemeanor because “the jurors, whether they are told to or not, often speculate about the origin of that photograph.”

I

The defendant first claims that the trial court erred when it would not allow Colon to testify as to whether the state had promised him a “particular specific sentence” for his testimony against the defendant, or as to the reduction in sentence he expected to receive. The defendant argues that such testimony should have been allowed because it would “demonstrate the bias of the witness by showing that he expected an extremely favorable sentence in exchange for his testimony” against the defendant. By limiting the witness’ testimony, the defendant argues that “the prosecution was permitted to leave with the jury the false impression that its star witness had no more expectation of a payoff for his damning testimony than a mere vague hope for ‘consideration,’ ” and that the defendant’s right to confront witnesses against him had thereby been abridged. We do not agree.

“The right of an accused effectively to cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment. State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980); see also Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). Cross-examination regarding motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Milum, 197 Conn. 602, 609, 500 A.2d 559 (1985); State v. Privitera, 1 Conn. App. 709, 711-12, 476 A.2d 605 (1984).” State v. Cox, 7 Conn. App. 377, 383-84, 509 A.2d 36 (1986). “ ‘ “The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.” ’ (Citations omitted.) State v. Castro, 196 Conn. 421, 424, 493 A.2d 223 (1985); State v. Gaynor, [supra].” State v. Jones, 205 Conn. 638, 670, 534 A.2d 1199 (1987). Our courts, therefore, undertake a bipartite analysis when reviewing claims of undue restriction on the scope of cross-examination, ascertaining first whether the constitutional standard has been met, and if so, then whether the trial court abused its discretion by restricting the scope of the cross-examination thereafter. State v. Milum, supra; State v. Gaynor, supra, 508; State v. Cox, supra, 384; State v. Heinz, 3 Conn. App. 80, 85-86, 485 A.2d 1321 (1984).

From such an analysis of the record before us, we conclude that the defendant has not been denied his right to confront the witnesses against him. First, the constitutional standard has been met. “The confrontation clause of the sixth amendment requires that the defendant be accorded some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the state’s witnesses.” State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985). “The defendant’s right to confrontation is preserved, if, through cross-examination, defense counsel is ‘permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ ” State v. Jones, supra, 669, quoting Davis v. Alaska, supra, 318; see State v. Weidenhof, 205 Conn. 262, 270, 533 A.2d 545 (1987). The defendant here had a sufficient opportunity to cross-examine the witness and thereby attempt to convey to the jury the basis for any bias or prejudice the witness may have had while testifying on behalf of the state.

Second, the trial court did not abuse its discretion when it limited the cross-examination of Colon concerning his expectation of a reduced sentence, and whether he had been promised a certain sentence by the state. The defendant argues that, since Colon’s testimony was “devastating” to him, the jury was entitled to hear all evidence which might have suggested bias or prejudice on the part of the witness. We find this claim unavailing.

The defendant has cited Hoover v. Maryland, 714 F.2d 301 (4th Cir. 1983), to support his argument that Colon should have been allowed to testify as to what he believed he was entitled to receive in the way of a reduced sentence. While it is true that cases in which the defendant is denied sufficient opportunity to impeach a “key” government witness deserve a more rigorous review than cases not involving such witnesses; State v. Gaynor, supra, 509 n.7; a fair reading of that case leads us to agree with the dissenting opinion of Circuit Judge Hall, who concluded that the majority’s reliance on Davis v. Alaska, supra, was misplaced, that the jury had “abundant evidence of [the witness’] possible bias and motive” for testifying against the defendant, and that “the only question in [that] case [was] whether the trial court cut off cross-examination too quickly, a matter in which the judge has wide discretion.” Hoover v. Maryland, supra, 308 (Hall, J., dissenting).

In order to establish an abuse of discretion, the defendant must show that the restrictions imposed upon the cross-examination were clearly prejudicial. State v. Castro, supra, 426. “Once it is established that the trial court’s ruling on the scope of cross-examination is not constitutionally defective, this court will apply ‘[e]very reasonable presumption ... in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.’ State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).” State v. Castro, supra. Where it is clear, as in this case, that the jury had been presented with testimony indicating that the defendant had a strong expectation that the state would offer him a reduced sentence in exchange for his testimony, this court will not hold that the trial judge abused his discretion by disallowing questions asking how much of a reduction the witness expected for testifying. The jurors were left with adequate information from which they could assess the reliability of the witness’ testimony. The additional questions going to the extent of sentence reduction would have served merely as cumulative evidence on that point.

II

The defendant next claims that the trial court erred when it denied cross-examination of Fernandez concerning his allegedly mistaken identification, through a photographic display, of another person in a drug sale entirely unrelated to this case. We find that this claim is not reviewable because the defendant failed to preserve it as grounds for appeal by taking an exception to the judge’s evidentiary ruling. Practice Book § 288. In fact, the defendant agreed with the ruling. See Crowder v. Zion Baptist Church, Inc., 143 Conn. 90, 97-98, 119 A.2d 736 (1956). In addition, the defendant does not seek review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); see State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986); State v. Miller, 186 Conn. 654, 672, 443 A.2d 906 (1982). Nor does he claim that the ruling constituted plain error. Practice Book § 4185. We, therefore, decline to address the merits of this claim.

Ill

The final issue raised in this appeal concerns the admissibility, on direct examination of the defendant, of his prior criminal record. The defendant argues that he should have been allowed to testify that his record consisted only of a misdemeanor conviction in order to rebut the “bad man” evidence against him, and the prosecution’s use of his police “mug shots” for identification. We disagree.

At trial, the defendant claimed the testimony of his misdemeanor conviction was admissible because the “mug shots” placed in evidence by the prosecution earlier in the case, depicting front and side views of the defendant with similar photographs of seven other male persons in an array, might cause the jury to speculate about the origin of the photographs, and that it was “asking too much of the jury not to draw . . . conclusions that in fact he does have some kind of clandestine past he is hiding.” The court sustained the state’s objection that the testimony was immaterial, since the defendant’s record did not “bear on whether or not he is guilty of the offense charged.” Showing the jury that the defendant “only” had a prior misdemeanor conviction, which the defendant attempted to do, is not “good character” evidence which a defendant has the right to introduce when he takes the stand. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 8.3.4, p. 238. Such evidence “must pertain to the character trait involved in the crime charged, not general good character.” Id.; State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976).

Although mug shots for identification of the defendant may not be used indiscriminately; see State v. Marshall, 3 Conn. App. 126, 131-32, 485 A.2d 930 (1985); a careful reading of the transcript in this case convinces us that the prosecution minimized any suggestiveness of the photographs when they were offered in evidence. During a motion to suppress the mug shots before trial began, the prosecutor alerted the defense counsel that he intended to offer the photographs in evidence and described, in detail, those procedures he would use to mask any prejudicial information contained on the photographs, which he subsequently followed. The defendant did not object to these procedures during trial. The trial judge cautioned the jurors not to remove the coverings from the face of the photographs when they were offered as full exhibits. The mug shots were offered to show the jury the procedure Fernandez used to identify the defendant as the person from whom he purchased the cocaine; they had a clear probative value and it cannot be claimed the trial court abused its discretion by allowing the photographs into evidence.

The defendant’s concern, however, is not with the admissibility of the mug shots, but with any possible spillover effect that might have prejudiced the jury if they became aware that the photographs were mug shots taken by police when the defendant was arrested for his past crime. The defendant incorrectly attempts to characterize such possible spillover effect as bad character evidence that the state introduced against him. “The State may not, in its case-in-chief, offer evidence of the accused’s character as to a certain trait to prove that he acted in accordance therewith, viz., that he had a propensity to so act and that he therefore committed the crime charged.” C. Tait & J. LaPlante, Connecticut Evidence § 8.3.1, p. 232. The photo array including the defendant’s pictures was introduced solely for the purpose of establishing the identity of the defendant as the seller of the cocaine. Furthermore, the precautions taken at trial here minimized any prejudice which might have arisen out of the introduction into evidence of the photographs and establishes that the state did not intend to indicate to the jury that the defendant had a criminal character which tended to implicate him in this offense.

There is no error.

In this opinion the other judges concurred.

       Colon pleaded guilty to selling narcotics in connection with the transaction involved in this case, as well as to a charge involving another narcotics transaction, and to a violation of probation. At the time of this trial, Colon had not yet been sentenced on these charges.

       The transcript indicates the following exchange occurred:
      “Q. So you have a total possible pending sentence against you right now of 35 years?
      “A. Yes, sir.
      “Q. Now, you made a deal with them or no deal, is that what you are saying?
      “A. No deals.
      “Q. You are just sitting there hoping somebody will cut you a break?
      “A. Yes, sir.
      “Q. Was there ever a time when you were offered any particular specific sentence?

        “A. No, sir.
      “Mr. Hadden: I will object to that.
      “The Court: Sustained.
      “Mr. Van Kirk: Well, the grounds for the objection weren’t stated.
      “Mr. Hadden: Clearly not relevant, your Honor, to anything he has testified to as to what he has pled guilty to and what the arrangement is with the court and anything that was discussed prior to that time is totally irrelevant.
      “Mr. Van Kirk: Well, perhaps maybe I could do it in a little different way that would make it seem more relevant. I will rephrase the question.
      “Q. What do you expect from this?
      “A. The best for me.
      “Q. The best for you. What do you think the best for you is?
      “Mr. Hadden: I object. What he perceives the best he can get, I don’t know whether that has any relevance to this man’s testimony.
      “The Court: Well, I will sustain the objection.
      “Mr. Van Kirk: May I have an exception, your Honor?
      “The Court: It may be noted.
      “Q. But you expected this testimony here to help you out?
      “A. Yes, sir.
      “Q. You expect consideration?
      “A. Yes, sir.”

       Although the defendant has cited, as the bases for his claim, both the sixth amendment to the constitution of the United States and article first, § 8, of the constitution of Connecticut, he offers no separate analysis of the Connecticut constitution as a basis for disparate treatment between them. We see no reason to undertake such an analysis. See State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985); State v. Cosby, 6 Conn. App. 164, 166 n.1, 504 A.2d 1071 (1986).

       The defendant’s cross-examination of the witness evoked details concerning the witness’ prior record and included numerous questions regarding the particular sale of cocaine before the jury. Additionally, the jury had been informed that the witness had pleaded guilty to a charge involving the narcotics transaction for which the defendant was being tried, as well as to a charge for another sale of narcotics, and to violation of probation, and that he expected the state to treat him favorably, when he was later sentenced, for his testimony. From this evidence, the jury could infer that at least one of the witness’ motives for testifying against the defendant was to receive a reduced sentence. It was the function of the jury to weigh the witness’ credibility and the reliability of his testimony once it was established that he expected some consideration for his testimony on behalf of the prosecution. See State v. Hart, 198 Conn. 424, 427, 503 A.2d 588 (1986). The witness actually testified that the state had not offered him “any particular specific sentence,” and that he had not made any deal with the state for his testimony.

       We note that this case is significantly unlike State v. Ortiz, 198 Conn. 220, 502 A.2d 400 (1985), where the defendant was entirely prohibited from cross-examining a key prosecution witness concerning pending criminal charges against him. In that case it was held that the defendant’s constitutional right of confrontation was abridged even though the Supreme Court was “convinced that the state’s evidence, even without the testimony of [the key witness], would have been sufficient to sustain a finding of guilt beyond a reasonable doubt . . . .” Id., 225.

       In his brief, the defendant has referenced several instances where, he alleges, the prosecution presented testimonial evidence that he now claims was “to the general effect that the defendant was of poor character, was dangerous, had criminal propensities, and was known to the police as a criminal.” Since such testimony was not objected to; Practice Book § 288; we will not review this claim.

       This state has long allowed the use of mug shots to prove the identity of the defendant during trial if it is relevant and material and if its probative value outweighs its prejudicial tendency. State v. Peary, 176 Conn. 170, 175, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979); State v. Crowe, 174 Conn. 129, 131, 384 A.2d 340 (1977).


text:
    Robert T. DiLieto et al. v. Better Homes Insulation Company, Inc.
    (5326)
    Bieluch, O’Connell and Stoughton, Js.
    Argued March 15
    decision released September 6, 1988

      Ivan M. Katz, for the appellant (defendant).

      Barbara E. Crowley, for the appellees (plaintiffs).
   Bieluch, J.

The defendant appeals from the judgment rendered in favor of the plaintiffs in this breach of contract action. The defendant claims that the trial court erred (1) in failing to give effect to the damage limitation provision of the contract between the parties, (2) in assessing damages to the plaintiffs in the amount of $15,000, (3) in improperly limiting the scope of defense counsel’s examination in relation to the defendant’s counterclaim, and (4) in belittling defense counsel and making comments which cast aspersions on the defendant’s counterclaim. We find no error.

The facts relevant to this appeal are as follows. On December 26, 1984, the plaintiffs, Robert T. DiLieto and Michelle DiLieto, entered into a written contract with the defendant, Better Homes Insulation Company, Inc., wherein the defendant agreed to remodel, in a workmanlike manner, the kitchen and porch of the plaintiffs’ residence in New Haven. The contract price of $5748.80 was paid by the plaintiffs to the defendant prior to the commencement of the work.

The plaintiffs discovered serious problems with the manner in which the work was being done, as well as with the quality of the work itself, soon after the remodeling began in early January, 1985. A series of meetings was held between the plaintiffs and the defendant’s representatives in an attempt to resolve these problems. When the defendant’s representatives finally refused to acknowledge the validity of the plaintiffs’ complaints and terminated the meetings, this breach of contract action was commenced. The plaintiffs claimed that the defendant had performed the work in such an unworkmanlike manner as to cause the finished work to be substandard and totally unacceptable, requiring total reconstruction. In its answer, the defendant denied the plaintiffs’ claims and, by way of counterclaim, sought money damages for extra work it had allegedly completed.

After a trial, the court found that the “credible evidence clearly sustained the plaintiffs’ claim[s],” and that the defendant “totally failed to sustain its burden of proof” on the counterclaim. The court further found that the plaintiffs had “introduced ample and credible evidence as to the cost of correcting the substandard work,” and accordingly awarded the plaintiffs damages in the amount of $15,000. This appeal followed.

The defendant’s first claim is that the trial court erred in failing to give effect to the damage limitation provision of the contract between the parties. The defendant states that the plaintiffs introduced into evidence the entire contract, and maintains that although there may be a range of interpretation of the damage limitation provision, the court was not free to ignore it entirely.

The defendant’s argument with regard to this issue is predicated on its initial assumption that the court entirely ignored the contract’s damage limitation provision. The fatal flaw in the defendant’s claim is that no such assumption necessarily flows from the court’s failure to specify its finding on this issue in its memorandum of decision. Furthermore, it was the defendant’s burden to seek an articulation of the court’s finding with regard to the provision in question where the court’s memorandum was silent on that point. See Practice Book § 4051; Spera v. Audiotape Corporation, 1 Conn. App. 629, 632, 474 A.2d 481 (1984).

“ ‘Where the factual basis of the court’s decision is unclear, “proper utilization of the motion for articulation serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. ‘It remains the appellant’s responsibility to secure an adequate appellate record, and under normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.’ ” Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). “Since the [defendant] has failed to supply a record presenting the trial court’s rationale, as is [its] burden, we are disinclined to view as clearly erroneous the trial court’s determination .... Nor under these circumstances will we remand the decision for articulation.” Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 714, 462 A.2d 1037 (1983).’ Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984).” Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 295-96, 533 A.2d 208 (1987).

An articulation of the trial court’s decision is particularly important in an appeal involving the construetion of a contract. Our review of the trial court’s conclusions in such a case is limited under Practice Book § 4061 to determining whether those conclusions are clearly erroneous. Roban Realty, Inc. v. Faile, 13 Conn. App. 584, 588, 538 A.2d 242 (1988); Lavigne v. Lavigne, 3 Conn. App. 423, 427-28, 488 A.2d 1290 (1985). A trial court’s construction of a written agreement is an issue of fact subject to this limited standard of appellate review. Roban Realty, Inc. v. Faile, supra; Sweeny v. Sweeny, 9 Conn. App. 498, 501, 519 A.2d 1237 (1987); Lavigne v. Lavigne, supra.

Because the defendant failed to meet its burden of providing this court with an adequate record to review its claim that the trial court did not consider the damage limitation provision in construing the contract between the parties, we cannot say that the court’s decision was clearly erroneous. We further decline to remand the court’s decision for articulation where the defendant should have remedied this deficiency. Barnes v. Barnes, supra; Carpenter v. Carpenter, 188 Conn. 736, 739 n.2, 453 A.2d 1151 (1982).

The defendant next claims that the trial court erred in assessing the plaintiffs’ damages in the amount of $15,000. Specifically, the defendant maintains that the court erroneously found for the plaintiffs on certain elements of damage which had not been pleaded and which were therefore not issues before the court. The defendant argues that the consideration by the court, in reaching its judgment, of evidence pertaining to the kitchen-dining room ceiling, a back door, soffits, kitchen countertop height, and trim and tile work constituted error in that such evidence materially varied from the pleadings.

This issue is not properly before this court. The record reveals, and the defendant concedes, that evidence as to the elements of damages now contested on appeal was admitted at trial without objection. In fact, the record shows that the defendant cross-examined several witnesses on the issues relating to this evidence. The defendant’s failure to object below constituted a waiver of any variance between the pleadings and the proof. Practice Book § 288. Sansone v. Bechtel, 180 Conn. 96, 99-100, 429 A.2d 820 (1980). The defendant maintains that because this was a trial to the court, and not to a jury, it had a right to rely on the pleadings without objecting to the inclusion of irrelevant evidence. This argument is without merit.

“If the variance was material, the question should have been raised when the evidence was presented. This was not done, and so no opportunity was given to the plaintiffs] to make [their] pleading[s], if insufficient, conform to the proof. The entire evidence was received without any objection on the ground of variance between allegation and proof. No motion was made to strike out any evidence on the ground that it was not within the issues. It is now too late to raise such a point on appeal.” Winsor v. Hawkins, 130 Conn. 669, 670, 37 A.2d 222 (1944); see also Sansone v. Bechtel, supra; Keheley v. Uhl, 129 Conn. 30, 32, 26 A.2d 357 (1942); Weiner v. Loew’s Enterprises, Inc., 120 Conn. 581, 584, 181 A. 921 (1935); cf. Bronson & Townsend Co. v. Battistoni, 167 Conn. 321, 326, 355 A.2d 299 (1974) (where there was no opportunity to object to the variance before the end of the trial, it could not be said that the party waived his right to object to the court’s judgment which was limited to the pleadings and to the proceedings at the trial).

In any event, if a variance is immaterial, it “shall be wholly disregarded.” Practice Book § 178. “An immaterial variance is one in which the difference between the allegations and the proof is so slight and unimportant that the adverse party is not misled as to the charge he is required to meet or prejudiced in maintaining his defense on the merits of the case. Strimiska v. Yates, 158 Conn. 179, 184, 257 A.2d 814 (1969).” LaFaive v. DiLoreto, 2 Conn. App. 58, 62, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). Therefore, an otherwise valid judgment will not be invalidated if a variance does not change the theory of the cause of action and if the party complaining of the variance was, at all times, in a position to know the true state of the facts. Strimiska v. Yates, supra; LaFaive v. DiLoreto, supra.

In this case, the theory of the cause of action, that the defendant had failed to perform the contracted work in a good workmanlike manner, was not altered in any way by the introduction of the evidence now in issue. Moreover, as it was the defendant which performed the work, and no changes had been made to the work, except those caused by normal wear and tear, it can be said that the defendant was in a position to know or discover the true state of the facts pertaining to the work performed by it under the contract. The defendant had access to full discovery rights, including an inspection of the premises. Therefore, any variance between the pleadings and the proof could not be of a material nature affecting the validity of the court’s judgment.

The defendant next claims that the court improperly limited the scope of its examination of witnesses on its counterclaim, and became overly involved with its questioning of the plaintiff Michelle DiLieto. The defendant argues that the court limited its questioning of a certain witness, failed to allow the defendant to question Michelle DiLieto as an adverse witness, and “intruded itself into counsel’s questioning of [Michelle DiLieto] to an extraordinary degree.” To the limited extent that we review these claims, we find the defendant’s contentions unavailing.

We note initially that the record does not reveal that the defendant took exception to the court’s various evidentiary rulings which allegedly limited the scope of its examination on the counterclaim. It is a basic precept of appellate review that “[t]his court, generally, will not review any rulings on evidence where no exception was taken by counsel. Practice Book § 288; State v. Baker, 182 Conn. 52, 56, 437 A.2d 843 (1980). Only the most exceptional circumstances will save a claim from the fatal consequences of counsel’s failure to make a timely exception. State v. Baker, supra.” Filosi v. Hawkins, 1 Conn. App. 634, 640, 474 A.2d 1261 (1984). Exceptional circumstances necessary to save such a claim are not present here. Therefore, we will not afford any appellate review to this claim of error.

The defendant also argues that the court improperly “intruded itself into counsel’s questioning of the witness [Michelle DiLieto] to an extraordinary degree.” We observe that counsel did not object or take exception to the court’s action, and, in addition, the defendant has not proven that it was probably harmed by the court’s interrogation. The burden of proving harmful error rests on the party asserting it; State v. Dolphin, 178 Conn. 564, 572, 424 A.2d 266 (1979); and the ultimate question is whether the erroneous action would likely have affected the result. Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982). The trial court is vested with wide discretion over matters occurring in the conduct of the trial. This exercise will not be interfered with unless it has been clearly abused to the manifest injury of a litigant. Pisel v. Stamford Hospital, 180 Conn. 314, 322, 430 A.2d 1 (1980).

The defendant finally claims that certain comments by the court belittled defense counsel and cast aspersions on the nature of the defendant’s counterclaim, thereby depriving the defendant of a fair trial. Once again, this claim is procedurally deficient in that no exceptions were taken with regard to the rulings cited in the defendant’s brief. Practice Book § 288. In any event, even if we were to disregard the procedural defects apparent on the record and to review this claim in the interest of justice; Practice Book § 4185; the court’s actions did not constitute plain error. It is the responsibility of the trial judge to have the trial conducted in a manner that approaches an atmosphere of perfect impartiality. Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982). Since the court’s statements claimed to be objectionable by the defendant indicate no opinion as to the untruthfulness of the defendant or any prejudice or predisposition in the consideration of the evidence, we find this claim of error to be unsupported. Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 444-45, 509 A.2d 51 (1986).

There is no error.

In this opinion the other judges concurred.

       The court found that “the credible evidence clearly sustained the plaintiffs’ claim that the subfloor was not properly installed; that the floor is uneven and buckling; that the ceiling is coming down; the back door is out of square and dropping; the soffits do not match the cabinets; the cabinets are chipped and improperly hung; the kitchen countertop is two inches higher than standard; the trim is uneven and defective; the tile work is uneven; the drains were clogged; and the appliances scratched and dented.”

       The relevant portion of the contract clause upon which .the defendant rests its argument reads: “Contractor will do all of said work in a good workmanlike manner. Upon written notification from the owner of a defect in workmanship or material, the contractor will repair/the same if such a defect exists but in no event shall the contractor be liable beyond the cost to it of labor and materials.”

       “[Practice Book] Sec. 288. OBJECTIONS to evidence
      “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”