author: Dupont, C. J.

text:
    Eugene C. Giorgio v. Nukem, Inc.
    (11378)
    Dupont, C. J., O’Connell and Schaller, Js.

      Argued February 10
    decision released May 4, 1993

      William M. Laviano, for the appellant (plaintiff).

      Richard L. Newman, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the trial court’s granting of the defendant’s motion for summary judgment. The plaintiff brought suit against the defendant, his former employer, alleging breach of a written employment agreement. In his complaint, the plaintiff alleged that the defendant had orally represented to him that the employment termination clause of the parties’ written employment agreement could be invoked by the defendant only if just cause existed for termination. The trial court, on the basis of the pleadings, an affidavit of the defendant’s president and chief executive officer, and excerpts from a transcript of the plaintiff’s deposition, determined that any representations that may have been made concerning termination of employment only for just cause were made prior to the execution of the contract. The court concluded that the written employment contract was an integrated agreement, and, thus, parol evidence of the alleged prior oral representations was barred. The court further determined that the written employment contract constituted an at-will employment agreement. The court, therefore, granted the defendant’s motion for summary judgment because it concluded that there was no genuine issue of material fact and the defendant was entitled to judgment as a matter of law. We affirm the decision of the trial court.

On February 9, 1987, the parties executed a written contract of employment. At that time, the plaintiff was a resident of Connecticut and the defendant had its principal place of business in White Plains, New York. The contract was the culmination of discussions between the parties that had taken place at the defendant’s offices in New York, and by telephone between New York and the plaintiff’s home in Connecticut. The contract was prepared and executed by the defendant in New York, but was signed by the plaintiff in Connecticut. The contract contemplated the plaintiff’s employment as a manager of market development in the defendant’s New York office. The contract contained an express provision stipulating that the agreement could be terminated by either party on two weeks prior written notice.

The plaintiff began his employment with the defendant in New York, but when the defendant subsequently moved its offices to Stamford, Connecticut, he worked there until his employment was terminated in October, 1989.

The plaintiff contends that on numerous occasions during the interviewing process he was assured by members of the defendant’s management team that his employment would not be terminated if he satisfactorily performed his job. The affidavit of the defendant’s president and chief executive officer, however, asserts that no employee or representative of the defendant ever made any specific promises to the plaintiff, either before or after the execution of the employment contract, that his employment would be terminated only for just cause. Furthermore, the affidavit states: “Nukem terminated Mr. Giorgio’s employment because he was ineffective and did not adequately fulfill his responsibility as an employee of Nukem, Inc.” The plaintiff failed to submit any counteraffidavit rebutting these allegations. Because the trial court concluded that the contract was integrated, the court impliedly determined that any factual dispute indicated in the affidavit did not concern material facts.

The trial court determined that Connecticut choice of law rules dictated that New York law should apply in this case. The court further determined that under New York law, a written employment agreement is integrated as a matter of law, and thus all prior or contemporaneous statements that vary the terms of the agreement are barred under the parol evidence rule. Additionally, the court found that, on its face, the written agreement was an integrated at-will employment contract, and that under New York law, at-will employees may be discharged at any time for any reason except a reason prohibited by law. The court also determined that the result would be the same under Connecticut law.

Summary judgment is properly granted “if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384; Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 592 (1991). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Connell v. Coldwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). There is no dispute as to the underlying dispositive fact in this case, namely, that any representations made to the plaintiff concerning job security and the conditions under which his employment might be terminated were made prior to the execution of the written employment contract. The issue to be decided is whether the parol evidence rule prohibits the introduction of these prior oral representations to vary the terms of the written contract. The plaintiff claims that the trial court improperly (1) determined that New York law controls, (2) found that the written agreement was fully integrated, and (3) applied the parol evidence rule to the facts of this case.

The plaintiff advocates the application of Connecticut substantive law. A review of the case law from both Connecticut and New York confirms the trial court’s determination that regardless of which state’s substantive law is applied, the result in this case is the same because both jurisdictions would have applied the parol evidence rule. The parol evidence rule “prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract.” TIE Communications, Inc. v. Kopp, 218 Conn. 281, 287-88, 589 A.2d 329 (1991); Lester v. Resort Camplands International, Inc., 27 Conn. App. 59, 65, 605 A.2d 550 (1992); Mastrangelo v. Kidder, Peabody & Co., 722 F. Sup. 1126, 1131 (S.D.N.Y. 1989) (applying New York law); 2 Restatement (Second), Contracts § 213. More specifically, “when parties have merged all prior negotiations and agreements in a writing, intending to make that the repository of their final understanding, evidence of such prior negotiations and agreements will not be received to vary or add to the writing.” Harris v. Clinton, 142 Conn. 204, 210, 112 A.2d 885 (1955); Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 740, 557 A.2d 525 (1989); Shelton Yacht & Cabana Club, Inc. v. Suto, 150 Conn. 251, 254-55, 188 A.2d 493 (1963); Marine Midland Bank-Southern v. Thurlow, 53 N.Y.2d 381, 387, 425 N.E.2d 805, 442 N.Y.S.2d 417 (1981).

“An integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement.” 2 Restatement (Second), Contracts § 209 (1); Adler & Shaykin v. Wachner, 721 F. Sup. 472, 476 (S.D.N.Y. 1988) (under New York law, an agreement is integrated if “the writing completely and accurately embodies all of the mutual rights and obligations of the parties”); Associated Catalog Merchandisers, Inc. v. Chagnon, supra, 739-40. In order to determine whether a written agreement is integrated, a court must look to the intention of the parties. Associated Catalog Merchandisers, Inc. v. Chagnon, supra. Evidence concerning the intention of the parties may be found in the conduct and language of the parties and the surrounding circumstances. Id. “Ordinarily, the intent of the parties to a contract is a question of fact to be determined by the trier of fact.” Jacob v. Seaboard, Inc., 28 Conn. App. 270, 273, 610 A.2d 189, cert. denied, 223 Conn. 923, 614 A.2d 822 (1992); First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980). If, however, “ ‘[t]he trial court’s conclusions as to intent were based not on such factors as the credibility of witnesses, or on the testimony of live witnesses as to the meaning of documents or as to circumstances surrounding the execution of those documents’ ”; Jacob v. Seaboard, Inc., supra, 273-74; but were instead based on the intent expressed in the contract itself and the affidavits submitted with the motion for summary judgment “considered in the light of their surrounding circumstances. . . . [Then] the legal inferences to be drawn from the documents raise questions of law rather than of fact.” (Citations omitted; internal quotation marks omitted.) Id., 274; Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53-54, 607 A.2d 424 (1992).

The agreement here contained several provisions relating to termination of employment. Thus, we can infer that the parties intended the agreement to be integrated on the issue of termination. Associated Catalog Merchandisers, Inc. v. Chagnon, supra, 740. Intent to integrate, therefore, could be determined from the contract itself and the supporting documents submitted with the defendant’s motion for summary judgment.

Here, the first numbered paragraph of the written employment agreement unambiguously addresses the issue of termination, and states that “this Agreement shall be terminated by either party by not less than two weeks’ prior written notice to the other.” Two of the other six numbered provisions of the contract place restrictions on the plaintiff’s activities after his termination. The fourth provision prohibits the plaintiff from divulging information obtained during the course of his employment to the defendant’s competitors, while the fifth is a one year noncompetition clause. Nowhere in the agreement is it specifically stated, or even implied, that termination shall occur only for just cause. We agree with the trial court that the written employment agreement is integrated with respect to the issue of termination, and the trial court thus properly refused to admit prior extrinsic evidence of the parties’ alleged discussions regarding termination of employment only for cause.

Additionally, as parol evidence could not be properly introduced because the agreement was fully integrated on the issue of termination of employment, judgment for the defendant was proper. Under Connecticut law, “[traditionally, an employment contract of indefinite duration is terminable at the will of either party.” Battista v. United Illuminating Co., 10 Conn. App. 486, 495, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987). In Fisher v. Jackson, 142 Conn. 734, 736, 118 A.2d 316 (1955), our Supreme Court set aside a jury verdict in favor of the plaintiff employee in an action to recover damages for breach of an oral agreement of employment. The plaintiff claimed that he was induced to give up a higher paying job in order to accept the defendant’s alleged offer of lifetime employment. The court held that the plaintiff’s action did not lie because “[i]n the absence of a consideration in addition to the rendering of services incident to employment, an agreement for permanent employment is no more than an indefinite general hiring, terminable at the will of either party without liability to the other.” Id.

The case law in New York is in accord with that of Connecticut. “It is still well settled law in New York that, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party.” Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333, 506 N.E.2d 919, 514 N.Y.S.2d 209 (1987). Additionally, any limitation on the employer’s right to terminate must be expressly stated. Mastrangelo v. Kidder, Peabody & Co., supra, 1130; Sabetay v. Sterling Drug, Inc., supra. Because there is no genuine issue as to any material fact and the defendant is entitled to judgment as a matter of law, the trial court properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint contained two counts. The first count alleged a breach of a covenant by the defendant to pay the plaintiff three months severance and health insurance upon termination of employment. Judgment for the plaintiff on the first count was rendered by the court on agreement of the parties on April 4, 1992. The grant of summary judgment challenged in this appeal pertains only to the second count.

       The first numbered paragraph of the written employment agreement states in its entirety: “Commencing on the date hereof Employer shall employ Employee in the [capacity of manager market development] until this Agreement shall be terminated by either party by not less than two weeks’ prior written notice to the other.”

       In its memorandum of decision, the trial court properly stated the Connecticut choice of law rule. “The general rule is that the validity and construction of a contract are determined by the law of the place where the contract was made. But if the contract is to have its operative effect or place of performance in a jurisdiction other than the place where it was entered into, our rule is that the law of the place of operative effect or performance governs its validity and construction.” Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 253, 205 A.2d 780 (1964); Levy v. Daniels’ U-Drive Auto Renting Co., 108 Conn. 333, 338, 143 A. 163 (1928).
      We note, however, that our Supreme Court has recently begun to move away from the strict application of traditional choice of law rules in favor of the more flexible approach advocated in the Restatement (Second) of Conflict of Laws. See, e.g., O’Connor v. O’Connor, 201 Conn. 632, 519 A.2d 13 (1986) (adopting the Restatement [Second] approach to determine the substantive rights and obligations arising out of a tort controversy); see also Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 588 A.2d 194 (1991) (choosing the Restatement [Second] approach for choice of law issues in workers’ compensation cases); Simaitis v. Flood, 182 Conn. 24, 437 A.2d 828 (1980) (same). Moreover, in O’Connor v. O’Connor, supra, 658, our Supreme Court acknowledged that “we are not wholeheartedly committed to application of lex loci as the sole approach to choice of law in all torts cases . . . .” “We are, therefore, persuaded that the time has come for the law in this state to abandon categorical allegiance to the doctrine of lex loci delicti in tort actions.” Id., 648. It is unclear, however, whether the time has also come similarly to abandon categorical allegiance to the doctrine of lex loci contractus in contract actions, especially “for those cases in which application of the doctrine of lex loci would produce an arbitrary, irrational result.” Id., 650. In our opinion, the time has come to abandon the doctrine as stated in cases such as Jenkins v. Indemnity Ins. Co., supra, and Levy v. Daniels’ U-Drive Auto Renting Co., supra. As an intermediate appellate court, we must follow existing case law. In the present case, however, it makes no difference whether we follow existing case law because New York was not only the place where the contract was made and the place where it was to be performed, but also the place with the most significant relationship to the circumstances. 2 Restatement (Second), Conflicts of Laws §188.

       We note that the parol evidence rule “renders inoperative prior written agreements as well as prior oral agreements.” 2 Restatement (Second), Contracts § 213, comment a.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. James Leonard
    (10653)
    Dupont, C. J., Heiman and Schallek, Js.

      Argued February 18
    decision released May 4, 1993

      Susan M. Hankins, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Carl Taylor, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of possession of a narcotic substance in violation of General Statutes § 21a-279 (a), one count of assault on a police officer in violation of General Statutes § 53a-167c (a) (l), and three counts of interfering with an officer in violation of General Statutes § 53a-167a. The defendant was acquitted by the jury of three counts of assault on a police officer and one count of interfering with a police officer. Subsequently, the defendant entered a plea of nolo contendere to a charge of being a persistent serious felony offender in violation of General Statutes § 53a-40 (b). On appeal, the defendant asserts that the trial court improperly (1) denied his motion to suppress evidence seized in violation of his state and federal constitutional rights and precluded him from cross-examining a police officer concerning the reliability of the confidential informant and the basis of the informant’s information, (2) denied his motion for a new trial on the basis of juror misconduct and the jury’s exposure to extrinsic evidence, (3) denied him access to police personnel files to show bias, lack of credibility, and prior history of the use of excessive force on the part of certain witnesses, thereby also denying him his constitutional right to confrontation and to present a defense, and (4) charged the jury on the issues of reasonable doubt and the presumption of innocence. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the afternoon and early evening hours of July 28, 1990, Detective Daniel Phillips, an eleven year member of the New Britain police department and another New Britain police officer, Alcides Morales, were assigned to a special squad involved in combating narcotics and drug use. Both officers were in full police uniform, including caps, badges and shoulder patches.

During the course of their afternoon patrol, a confidential informant told Phillips that two black males, one of whom was the defendant, James Leonard, were coming back to New Britain from Hartford to a six-family dwelling on Silver Street with a large quantity of heroin, and that the defendant would be driving a black Ford Taurus. Phillips testified that the informant was reliable. The officers informed their supervisor, Captain Robert Remillard, of the information they had received.

Remillard and his partner, William Chute, both in full uniform, went to the Silver Street location where they observed two black males, one of whom was the defendant, approach and enter a parked, black Ford Taurus. The defendant had a set of keys with which he unlocked the car. Upon entering the car, he rolled down a window and started the motor.

As soon as the motor caught, Remillard and Chute approached the vehicle on foot. Before the officers reached the car, the defendant shut off the motor and he and the other individual exited the vehicle. Chute approached the driver’s side, where the defendant was standing, and Remillard approached the passenger side of the car. Chute asked the defendant if he owned the car and the defendant responded that he did not. Chute asked the defendant if he knew who did own the car and the defendant responded that he did not. Chute then asked the defendant if he had a driver’s license and the defendant responded that he did not. Chute then asked why he had the keys to the car if he did not have a license or know who owned the car. The defendant threw the keys into the car and stated, “I don’t know what you’re talking about. I don’t have any keys.” When Chute looked into the car to see where the keys had landed, he noticed a brown paper bag sticking halfway out from under the driver’s seat.

Phillips and Morales then arrived at the scene. As Chute asked the defendant about the bag, the defendant became very nervous, his hands began to shake, and he started yelling that if the officer wanted to see what was in the bag, he would show him. The defendant reached into the vehicle, removed the bag from beneath the driver’s seat, and brought it to the front of the car, placing it on the hood. Appearing to be about to open the bag, he suddenly grabbed it and fled. Morales and Chute pursued the defendant and ordered him to stop. Approximately seventy-five feet from the vehicle, the officers tackled the defendant. The defendant resisted and struck Phillips numerous times in the head and chest. The defendant broke free and his shirt was torn by Phillips who tried to hold on to him. He ran behind a building and attempted to climb a fence. Phillips grabbed his left leg and groin. The defendant kicked Phillips’ head and shoulder. The defendant threw the bag onto a roof near the fence. Phillips and the other officers sprayed the defendant with capstun, a form of mace, and pulled him from the fence. Morales kept watch over the bag until a fire ladder could be brought to the scene to enable the officers to retrieve it. Remillard retrieved the bag and examined its contents.

After the police arrested the defendant and advised him of his rights, the defendant volunteered that he did not know why he was being arrested and that the drugs and money were not his. Phillips examined the contents of the bag at the police station. In the bag, the police found money and a plastic bag containing white powder and forty-five bags labeled “miracle” containing white powder. A test conducted at the state toxicology laboratory disclosed that the white powder in the plastic bag was cocaine and that the forty-five bags contained heroin.

The jury found the defendant guilty of one count of possession of a narcotic substance, one count of assault of a police officer, and three counts of interfering with an officer. The defendant pleaded nolo contendere to being a persistent felony offender. The trial court sentenced the defendant to ten years. This appeal ensued.

I

The defendant asserts that the trial court improperly denied his motion to suppress evidence seized in violation of his state and federal constitutional rights. He also asserts that the court improperly precluded him from cross-examining one of the peace officers concerning the confidential informant’s reliability and the basis of the informant’s information. We disagree.

A

Additional information is necessary to resolve the defendant’s claims related to the motion to suppress. At the suppression hearing, the parties agreed that the only evidence necessary to a decision on the motion consisted of three police reports and the testimony of Phillips. In reaching its decision to deny the motion, the court noted, “I do not think that it’s a close question in this particular case. The informant’s information, coupled with the presence of the defendant and the other individual at the car at the time indicated by the informant, constituted a reasonable basis for further investigation.” When describing the encounter between the police and the defendant outside of the defendant’s car, the court found that “[tjhere is no evidence of any arrest. . . . There was no gun used . . . and he was not put in the police car. He was free to roam the car and instead reaches in and grabs the bag and eventually runs. This is certainly arguable, in any event, for investigative purposes. Of course, that does not necessarily constitute an arrest. There was a short intervention with the police, and, thereafter, the defendant was up and running with the drugs.” In response to the defendant’s claim that the evidence in the bag should be suppressed because it was unlawfully seized, the court responded: “Anyone, including the police could have seized [the bag that contained the drugs]. There is no expectation of privacy at that point.” The defendant took an exception to the court’s refusal to suppress the evidence.

Our citizens may be afforded greater protections and rights under our state constitution than under the federal constitution in matters involving searches and seizures. State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992); State v. Miller, 29 Conn. App. 207, 614 A.2d 1229, cert. granted, 224 Conn. 914, 915, 617 A.2d 170 (1992). Under our state constitution, a person is seized when “by means of physical force or a show of authority, his freedom of movement is restrained.” (Internal quotation marks omitted.) State v. Oquendo, supra, 647. Our Supreme Court has adopted this standard from United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 487 (1980), rejecting the federal standard set forth in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). State v. Oquendo, supra, 652. Our Supreme Court has stated that in determining whether a seizure has occurred, so as to invoke the protections of our state constitution, a court is to consider whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Internal quotation marks omitted.) State v. Oquendo, supra, 647.

The defendant claims that at the moment the police approached the defendant standing outside the car, he was seized. He asserts that the mere approach of the uniformed officers was such a show of authority that his freedom of movement was restrained. The defendant thus asserts that he was seized when he was detained for an investigatory stop without proper justification.

While we note that not all exchanges between the police and private citizens on the street implicate the fourth amendment; see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); an investigatory stop, however, is a seizure that implicates a party’s fourth amendment rights. Id. We will assume, as did our Supreme Court in State v. Cofield, 220 Conn. 38, 46, 595 A.2d 1349 (1991), that as a threshold matter the defendant was seized for the purpose of an investigative detention at some point before he discarded the contraband, and that his rights under the fourth and fourteenth amendments were thus implicated. The only remaining question is whether the police officers had sufficient justification to warrant the detention.

To justify an investigative stop, the police must be able to point to specific and articulable facts and the inferences that can be drawn therefrom to establish that the intrusion was reasonably warranted. Terry v. Ohio, supra, 21; State v. Cofield, supra, 45. “In evaluating the validity of [an investigative] stop, courts consider whether, in light of ‘the totality of the circumstances — the whole picture,’ the police officer had ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Cofield, supra, quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). “When ... an officer’s decision to detain a suspect briefly is based on information received from an informant, the task of the reviewing court is akin to a probable cause determination.” State v. Cofield, supra. To determine the existence of such probable cause, our Supreme Court has adopted the totality of the circumstances approach of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527. State v. Cofield, supra. The informant’s veracity, reliability and basis of knowledge remain highly relevant in this determination. Id., 46. “Thesefactors are also relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard." (Emphasis added.) Alabama v. White, 496 U.S. 325, 328-29, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990); State v. Cofield, supra. “[A] deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability” such as corroboration by the police. Illinois v. Gates, supra, 233. The police, however, are not required to corroborate all of the information provided by a confidential informant. See id., 246; State v. Cofield, supra, 47. Partial corroboration may suffice. State v. Cofield, supra, 47-48.

On the basis of the totality of the circumstances, the trial court properly concluded that the police had a reasonable and articulable suspicion to detain the defendant for an investigative stop. The trial court found that the police had received reliable information from a confidential informant. This informant had provided the officer with information six previous times that eventually resulted in six convictions. The confidential informant told the police that they would find two black men in a black Taurus that would be parked at a certain location. The police corroborated this information. “Although ‘[a]ny one of these factors is not by itself proof of illegal conduct,’ taken together ‘they amount to reasonable suspicion.’ ” Id., 47, quoting United States v. Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). Viewing the totality of the circumstances in this case, we conclude that the informant supplied the officers with information that had sufficient indicia of reliability and corresponded adequately with their observations in the parking lot to provide them with a reasonable and articulable suspicion sufficient to justify approaching the defendant’s car for further investigation. State v. Cofield, supra. We hold that the trial court properly concluded that the information provided by the informant, as corroborated by the officers’ observations, was sufficient to raise a reasonable and articulable suspicion to justify an investigative detention. See id., 49. The contents of the bag were not the fruit of an unlawful seizure of the defendant. See id., 42.

B

In a related claim the defendant, while conceding that he never made a claim at the suppression hearing that the police were required to obtain a warrant to inspect the contents of the bag once it had been seized, now seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

To prevail on appeal on a claim of constitutional error that has not been adequately preserved at trial, the defendant must meet all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40. “We are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993).

On the basis of our analysis, the defendant has failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial, and thus, we decline to afford review of the unpreserved claim. Id.

C

Additional information is necessary to resolve the defendant’s remaining claim concerning the motion to suppress, that he was improperly precluded from cross-examining the police officer concerning the confidential informant’s reliability and the basis of the informant’s information. During the suppression hearing, Phillips testified on direct examination that he received information from a reliable confidential informant. This informant had provided the officer with information six times in the past that resulted in convictions in all six instances. He also testified that a period of fifteen to twenty minutes elapsed between the time he received the information and the time he encountered the defendant.

On cross-examination, the defendant asked the officer the confidential informant’s name. The state objected to this question and the court sustained the objection. The defendant was then permitted to ask whether the informant had a criminal record, whether he faced any criminal charges at the time that Phillips received the information, and whether there was any type of bargain or agreement made with the informant. Despite the defendant’s claim that the information would be relevant as to the informant’s reliability, the trial court sustained objections to questions about whether the informant had a drug habit or had gone through a drug treatment program. The defendant was permitted, however, to ask if at the time Phillips received the information, the informant was under the influence of drugs. On the basis of relevance, the defendant was also not permitted to ask why the informant gave Phillips the information, but was permitted to ask if Phillips knew of the informant’s motive. Phillips testified that the informant knew the defendant’s identity and that the informant did not mention whether he had ever seen the defendant involved in a drug transaction. Rejecting the defendant’s claim that the question related to the informant’s credibility, the court refused to permit the defendant to ask Phillips how the informant knew that a drug transaction was about to take place. The court stated that no evidence had been offered about a drug transaction, but rather the evidence disclosed only that the informant said that the defendant was transporting drugs.

We disagree with the defendant that the trial court deprived him of the right to delve into “highly relevant” areas that would help him dispute the informant’s credibility and reliability. Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only “ ‘where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.’ ” State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990); State v. Maxwell, 29 Conn. App. 704, 716, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993). In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985); State v. Anderson, 28 Conn. App. 833, 847, 614 A.2d 438, cert. granted, 224 Conn. 908, 615 A.2d 1048 (1992). We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. When a constitutional violation is not at issue, the defendant bears the burden of demonstrating the harmfulness of the court’s ruling by proving that it is more probable than not that it affected the result of the hearing. See State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991).

The defendant has not demonstrated that the trial court abused its discretion in making evidentiary rulings preventing him from asking certain questions. While the defendant claims that these questions relate to credibility and reliability, we conclude that the trial court could have properly determined that they were not relevant to the hearing before it. For example, the defendant’s questions dealing with how the informant knew of drug transactions are irrelevant to the information that the informant revealed. The informant mentioned to the officer only that drugs were to be transported and not that a transaction was going to take place. “[W]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Lee, 30 Conn. App. 470, 486, 620 A.2d 1303 (1993). The defendant was allowed to question the officer sufficiently about the informant’s criminal record and motives for relaying the information. The court afforded him an adequate opportunity to cross-examine the officer concerning the informant’s reliability and credibility.

The trial court properly denied the defendant’s motion to suppress.

II

The defendant also asserts that the trial court improperly denied his motion for a new trial on the basis of juror misconduct and exposure to extrinsic evidence. The defendant asserts that the alleged juror misconduct occurred in two different ways: (1) the jurors engaged in unauthorized and premature deliberations on the evidence and its relationship to extrinsic matters and (2) their impartiality was impaired by their exposure to extrinsic evidence. The defendant further posits that the trial court’s inquiry into the juror misconduct was inadequate and its finding that the alleged misconduct did not taint the jury was erroneous. As a result of the alleged misconduct, the defendant claims that he was deprived of his constitutional rights to due process and a fair trial before an impartial jury. We disagree.

Additional facts are necessary to resolve this issue. Following the verdict, the foreperson approached the trial judge and presented him with a newspaper article that she had clipped from the New York Times. She stated to him that she and another juror thought the case described in the newspaper was interesting and similar to this case. They thought that the judge might be interested in reading the article. The court reported the incident to counsel, placed the disclosure on the record, and continued the matter to permit the defendant to review the article. The defendant moved for a new trial and requested an evidentiary hearing.

At the evidentiary hearing, the foreperson was the only witness to testify. The court acknowledged and the defendant agreed that under State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), inquiry could not be made into the mental processes of the jurors, but could explore the use of the article and whether it played any part in the jury’s decision.

During the trial, the court did not prohibit the jurors from reading newspaper articles not related to the case before them. The foreperson testified that prior to jury deliberations, she read the New York Times article and showed it to another juror. The other juror suggested that the foreperson clip the article and give it to the judge after the trial. The foreperson also testified that other jurors had the opportunity to read the article, but that she was unsure whether the others had read it or had any interest in it. She also stated that one of the jurors may have remarked that the United States Supreme Court and a “small” Connecticut court were dealing with cases that had some things in common. After the article appeared, the only other time it was mentioned was by another juror who stated that the Hartford Courant had a similar article that was easier to understand.

No newspapers were in the jury room during deliberations. The foreperson did not bring the Times article with her during the first day of deliberations. Although she did have the article in her purse the second day, the foreperson did not remove it or discuss it during the deliberations. The foreperson also testified that the jurors took seriously the trial court’s instructions made repeatedly throughout the trial that they were to consider only evidence that was introduced before them in court.

After the hearing, the trial court in its memorandum of decision found that no evidence existed that the newspaper article influenced the jury in any way. The court also stated that it carefully examined the content of the article, and that the actual substance of the article dealt primarily with the United States Supreme Court’s conclusion that a police chase and an order to stop does not constitute a seizure requiring the application of the fourth amendment standards as a predicate to the utilization of discarded evidence in a subsequent criminal prosecution. The court also stated that the article discussed the legal and constitutional issues involved in that case. It then noted that those issues were not involved in the jury charge. In the court’s view, the article in no way conflicted with the jury charge. On the basis of the foreperson’s testimony and the content of the article, the court found no evidence that the jury disregarded its instructions, discussed the article during deliberations, or premised its verdict on the analysis set forth in the article. The court then found beyond a reasonable doubt that the defendant was not prejudiced and that his due process rights to a fair trial were not abridged.

It is well established that a defendant’s right to a jury trial guarantees him that it will be conducted fairly by a panel of impartial jurors; State v. Ziel, 197 Conn. 60, 64, 495 A.2d 1050 (1985); State v. Migliaro, 28 Conn. App. 388, 395, 611 A.2d 422 (1992); and that the jury will decide the case solely on the basis of the evidence and arguments presented before it after proper instructions on the law by the court. State v. Rodriguez, 210 Conn. 315, 325, 554 A.2d 1080 (1989). Where it appears during the course of a trial that the jury panel may have been exposed to prejudicial extrinsic evidence, the trial court must conduct, as the court did here, an investigation to determine whether jury misconduct occurred. See State v. Migliaro, supra, 396. “There is no magic formula that the trial court must follow in conducting this inquiry. Rather, it must use whatever inquisitorial tools are necessary and appropriate to determine whether there was a ‘reasonable possibility’ of prejudice.” (Internal quotation marks omitted.) Id.

The trial court assesses the credibility of witnesses and the weight to be accorded their testimony in resolving matters of potential jury misconduct. Speed v. DeLibero, 215 Conn. 308, 314, 575 A.2d 1021 (1990); State v. Rodriguez, supra, 330; McNamee v. Woodbury Congregation of Jehovah’s Witnesses, 194 Conn. 645, 648, 484 A.2d 940 (1984). The trial judge is in the best position and is “uniquely qualified to appraise the probable effect of information on the jury, the materiality of the extraneous material, and its prejudicial nature.” (Internal quotation marks omitted.) State v. Rodriguez, supra, 331; Speed v. DeLibero, supra. Where the trial court had the opportunity to observe jurors and to examine them at a posttrial hearing, we will not question that court’s findings absent a showing of clear error. Klingeman v. MacKay, 25 Conn. App. 217, 221, 594 A.2d 18, cert. denied, 220 Conn. 910, 597 A.2d 333 (1991).

The trial court enjoys broad discretion in determining whether jury misconduct occurred and if that misconduct prejudiced the defendant. Speed v. DeLibero, supra, 315; State v. McCall, 187 Conn. 73, 77, 444 A.2d 896 (1982); State v. Migliaro, supra. The trial court’s decision as to the fairness of the trial must be afforded great weight. State v. McCall, supra. The court must, however, have some factual basis on which to exercise that discretion. State v. Migliaro, supra.

Contrary to the defendant’s claims, the trial court conducted an adequate hearing to determine whether the defendant’s rights were jeopardized. The trial court had broad discretion to decide the scope and extent of inquiry. State v. Rodriguez, supra, 326. On appeal, the defendant asserts that the trial court’s inquiry was inadequate. Yet, at the hearing, the defendant agreed that only the foreperson needed to be examined. After the testimony, the defendant did not request that other jurors testify, but, rather, rested his case. The defendant has not demonstrated that the trial court abused its discretion in the scope of its inquiry. The defendant also has not demonstrated that the trial court abused its discretion by finding that there was no jury misconduct. On the basis of the foreperson’s testimony and the content of the article, the trial court properly could have found that the article was not extrinsic evidence utilized by the jury. The article offered no new information concerning the defendant’s case. The court also could have properly found that the jurors did not prematurely deliberate after reading the article. The court cautioned the jury on numerous occasions that the only evidence that they were to consider was that introduced during the trial. The foreperson testified that the jurors heeded that instruction. In the absence of evidence to the contrary, jurors are presumed to follow the court’s instructions. State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987). We will not, on appeal, “speculate on what the jurors may have discussed and then speculate that the discussion probably prejudiced the [defendant].” Speed v. DeLibero, supra.

The trial court properly denied the defendant’s motion for a new trial.

Ill

The defendant claims that the trial court improperly declined to allow him access to police personnel files. By not having access to the files, the defendant asserts that he was denied his constitutional right to confront witnesses against him as guaranteed to him by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

Additional facts are necessary to resolve this issue. The defendant subpoenaed the personnel files of the four police officers who testified and requested that the trial court conduct an in camera inspection to determine if any of the files revealed either a history of excessive force or anything relating to credibility or racial bias. The court conducted an in camera inspection and found nothing in Morales’, Phillips’ or Chute’s files relevant to their credibility, or any complaints or actions taken against them regarding the use of excessive force, brutality or racial bias. The court found something in Remillard’s file that might remotely bear on his credibility. The court, however, held that the information was not exculpatory and did not have sufficient probative value to outweigh the policy of confidentiality. In response, the defendant took an exception. The court sealed the files.

The court then provided the defendant with the opportunity to conduct further cross-examination of the officers or a voir dire. The defendant responded that he believed that Chute had been sued and wanted to know the name of the plaintiff in that action. The court reexamined Chute’s file and found no evidence of the alleged action. The defendant later recalled Chute during the presentation of his case. Outside of the jury’s presence, the defendant asked Chute if he had been sued. Chute testified that within the last five years he had been sued a number of times by people whom he had arrested, but that he had no judgments against him. He did state, however, that eight or nine years earlier, he had been sued and that case had resulted in a judgment against him. He provided the defendant with the plaintiffs’ names. After the voir dire, the defendant stated that he would wait until the next morning to decide whether to rest his case. Without presenting any further evidence, the defendant rested his case the following day.

Confidential information in police personnel files that may be potentially relevant to a witness’ credibility is protected by General Statutes § 1-19 (b) (2). State v. Januszewski, 182 Conn. 142, 171, 172-73, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); State v. Moore, 23 Conn. App. 479, 485-86, 581 A.2d 1071 (1990), cert. denied, 217 Conn. 802, 583 A.2d 132 (1991). That information can be disclosed only after the court has conducted an in camera inspection to determine if the defendant’s need to examine the confidential information outweighs the public policy in favor of confidentiality. State v. Januszewski, supra; State v. Moore, supra, 486. The trial court should provide access to information in the personnel file only if it finds that that information is clearly material and relevant to the issue involved. State v. Januszewski, supra, 173. “The disclosure of such information must be carefully tailored to a legitimate and demonstrated need for such information in any given case.” Id., 172. On the basis of a case-by-case determination and judicial experience, the trial court exercises discretion in deciding the temporal relevancy and remoteness of material sought. Id. “No criminal defendant has the right to conduct a general ‘fishing expedition’ into the personnel records of a police officer.” Id.

We review claims that a court improperly denied access to police personnel files under an abuse of discretion standard. Id., 172-73; State v. Moore, supra. To determine whether the trial court abused its discretion, this court must make every reasonable presumption in favor of the trial court’s action. Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992). The trial court’s exercise of its discretion will be reversed only where the abuse of discretion is manifest or where injustice appears to have been done.

The defendant has failed to demonstrate that the trial court abused its discretion. While not permitting the defendant to examine the files, the court did in fact allow him to question the witness directly during voir dire to gain the information he sought concerning actions brought against the officers. The court found that no information was contained in three of the officers’ files relevant to any of the areas that the defendant sought to probe during cross-examination. While finding some evidence remotely relevant in the fourth officer’s file, the court found that the information was not exculpatory and lacked sufficient probative value to outweigh the policy of confidentiality. The defendant chose not to present additional evidence before the jury concerning actions brought against the officers. The trial court did not abuse its discretion in curtailing the defendant’s access to the police personnel files and therefore did not violate the defendant’s federal and state constitutional rights to confront witnesses against him.

IV

The defendant further asserts that the trial court improperly charged the jury as to the meaning of reasonable doubt and the presumption of innocence, depriving him of his rights guaranteed by both the state and federal constitutions. We do not agree.

The defendant concedes that this issue was not properly preserved before the trial court and seeks this court’s review pursuant to the doctrine of State v. Evans, supra, and State v. Golding, supra.

The defendant cannot satisfy the third prong of Golding, that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. The court’s instructions concerning reasonable doubt and the presumption of innocence are the same or similar to jury instructions that have been consistently approved by this court and by our Supreme Court. See, e.g., State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992); State v. Thomas, 214 Conn. 118, 119-20, 570 A.2d 1123 (1990); State v. Ray, 30 Conn. App. 95, 105-106, 619 A.2d 469 (1993); State v. Andrews, supra, 537-38; but see State v. Johnson, 29 Conn. App. 584, 590, 617 A.2d 174 (1992), cert. granted, 224 Conn. 927, 619 A.2d 851 (1993) (certification granted as to whether the trial court’s definition of a reasonable doubt as “a doubt for which a valid reason may be assigned,” was not reviewable, or if it was reviewable on its merits, was the instruction erroneous.) When viewed in the context of the entire charge, the instructions challenged for the first time on appeal did not lessen the state’s burden to prove the defendant guilty beyond a reasonable doubt and did not dilute the defendant’s presumption of innocence. State v. Thomas, supra, 119; State v. Andrews, supra, 538. Because the defendant was not deprived of a fundamental constitutional right, we decline to review the defendant’s claims concerning the allegedly improper language used by the court in its instructions to the jury. State v. Thomas, supra, 120; State v. Andrews, supra, 539; but see State v. Johnson, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-279 provides in pertinent part: “(a) Any person who possesses or has under his control any quantity of any narcotic substance . . . may be imprisoned ... or be fined ... or be both fined and imprisoned . . . .”

       General Statutes § 53a-167c provides in pertinent part: “(a) A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in performance of his duties, (1) he causes physical injury to such peace officer . . . .”

       General Statutes § 53a-167a (a) provides: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       Outside of the jury’s presence the court asked whether the confidential informant relayed the information in Detective Phillips’ presence. Phillips responded that the informant was in his presence when he relayed the information.

       Additional facts will be set forth where they are relevant to each issue.

       The defendant essentially argues that the police officers conducted an investigatory Terry stop when they approached him in the car. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). He asserts that the trial court improperly found that the confidential informant’s tip provided the officers with reasonable and articulable suspicion sufficient to stop the defendant. The defendant asserts that without such justification for the stop, the warrantless search and seizure of the bag was the fruit of the poisonous tree.

       In State v. Lamme, 216 Conn. 172, 579 A.2d 484 (1990), our Supreme Court held that Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is the law governing prearrest detentions under the Connecticut constitution. See State v. Cofield, 220 Conn. 38, 45 n.6, 595 A.2d 1349 (1991).

       The fourth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment in Wolf v. Colorado, 338 U.S. 25, 28, 69 S. Ct. 1359, 93 L. Ed. 2d 1782 (1949), provides in pertinent part: “ ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .’ ” State v. Cofield, 220 Conn. 38, 46 n.7, 595 A.2d 1349 (1991).

       The state asserts that no seizure occurred until the police ordered the defendant to stop as he fled from the car.

       In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the Supreme Court held that a partially corroborated anonymous tip provided the police with probable cause to obtain a search warrant.

       Moreover, the defendant’s suspicious answers concerning ownership of the car and his lack of a license to drive, even though he had started the motor, his action of throwing the keys into the car, his nervousness, his boisterous behavior, and the presence of a bag sticking out from under the driver’s seat, taken together, all provided the police with additional reasonable and articulable facts by which the police could conduct a Terry stop.

       We note that not all lawful seizures give the police license to conduct warrantless searches. This case is unlike State v. Miller, 29 Conn. App. 207, 614 A.2d 1229, cert. granted, 224 Conn. 914, 915, 617 A.2d 170 (1992), in which we held that a lawful seizure of an automobile does not permit the warrantless search of the trunk. In Miller, the defendant had an expectation of privacy, albeit diminished, in his automobile. Here, the defendant had no expectation of privacy in the bag and its contents when he threw it on the roof of a building, out of his reach. See State v. Mooney, 218 Conn. 85, 108-109, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

       The New York Times article was entitled “Fleeing Suspect’s Discards Can Convict Court Says.” The subheadline read “Justices hold a chase is not a seizure, as the Constitution goes.” A photograph of Justice Scalia of the United States Supreme Court accompanied the article. The article discussed the Supreme Court’s decision in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).

       The defendant indicated that the foreperson was the only juror who needed to testify. The court left open the possibility that other jurors might be questioned.

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”
      Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right . . . to be confronted by the witnesses against him . . . .”

       General Statutes § 1-19 provides in pertinent part: “(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. . . .
      “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

         The defendant asserts that the following two statements made by the trial court in its charge about reasonable doubt misled the jury and violated his constitutional rights: (1) “A reasonable doubt is a doubt for which a valid reason can be assigned.” (2) “If all of the evidence . . . produces in your minds a settled and abiding belief that you would be willing to act upon in matters of the highest importance relating to your own affairs, then in that event, you would be free from reasonable doubt; and you would declare the defendant to be guilty.”
      The defendant also claims that the following two statements made by the trial court in its charge about the presumption of innocence misled the jury and violated his constitutional rights: (1) “The presumption of innocence also requires that when you consider all of the evidence or the entire evidence and it is capable of two reasonable interpretations, one of which is consistent with innocence, you must adopt the interpretation consistent with innocence.” (2) “But you must keep in mind that those rules of law are made to protect the innocent and not the guilty.”

       While we note that our Supreme Court has granted certification concerning a similar instruction about reasonable doubt, our role is to apply the law as it currently exists.

       See footnote 18, supra.


author: Schaller, J.

text:
    Donald Fiddelman v. Popcorn Redmon
    (10798)
    Daly, Lavery and Schaller, Js.

      Argued February 22
    decision released May 4, 1993

      Arnold H. Ruthin, with whom, on the brief, was Kathleen A. Hogan, for the appellant-appellee (plaintiff).

      Richard L. Albrecht, for the appellee-appellant (defendant).

      Elizabeth T. Sharpe, for the minor children.
   Schaller, J.

In this dissolution of marriage action, the plaintiff appeals and the defendant cross appeals from various orders of the trial court. The plaintiff claims that the trial court improperly entered orders regarding (1) the disposition of the marital home and (2) an allegedly indefinite custody arrangement. The defendant claims that the trial court improperly denied her motion to open and set aside the judgment as it pertains to custody and visitation. We affirm the judgment of the trial court.

The parties to this appeal were married on July 2, 1984. They have two children, born in 1986 and 1987. In 1989, the plaintiff brought this action for dissolution of the marriage. The case proceeded to trial as a fully contested matter in the spring of 1991. Following a fifteen day trial, the trial court issued its memorandum of decision on June 13, 1991, and rendered judgment accordingly. The plaintiff appealed.

On November 22,1991, the defendant filed a motion to open and set aside the judgment claiming that a conflict of interest involving a prior attorney-client relationship had tainted the court’s judgment. After a hearing, the court denied the defendant’s motion. The defendant brought a cross appeal challenging the court’s denial of the motion.

I

The Plaintiff’s Appeal

A

The plaintiff first contends that the trial court’s order regarding the disposition of the marital home did not reflect a valid stipulation between the parties. In the course of trial, the parties entered into a stipulation describing a process by which they would sell their marital home. Pursuant to the stipulation, the parties agreed to list the house for sale immediately at a price of $1.9 million, and “if they both agree, it could be at a price higher than $1,900,000.” The stipulation also stated that “the court would maintain continuing jurisdiction to solve any disputes with respect to the listing or selling price.” The court accepted the stipulation, and the parties opted not to adduce testimony concerning the value of the property.

In its memorandum of decision, the trial court ordered the parties to list the house for immediate sale with a mutually acceptable listing broker at an initial price of $1.9 million. The order did not, however, include a term allowing the parties to agree on a price exceeding $1.9 million. The judgment further provided that “in the event the property shall be listed for more than ninety days at a specific listing price and there shall be no acceptable offer made, the parties shall endeavor to agree upon a lesser listing price, and in the event the parties cannot so agree, this court shall retain continuing jurisdiction to order a diminished listing price.”

“A judgment rendered in accordance with ... a stipulation of the parties is to be regarded and construed as a contract.” Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); Zivic v. Zivic, 26 Conn. App. 5, 7, 596 A.2d 475 (1991). We review a trial court’s construction of such an agreement as an issue of fact subject to the clearly erroneous standard. Barnard v. Barnard, supra; Zivic v. Zivic, supra, 7-8. “ ‘A contract is to be construed as a whole and all relevant provisions will be considered together.’ ” Barnard v. Barnard, supra, quoting Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976). “In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties.” (Internal quotation marks omitted.) Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983).

In this case, the plaintiff maintains that the trial court improperly deviated from the stipulation by omitting a provision allowing for an increased listing price. Although the defendant argues that this matter is moot, she consents “to a correction in the Judgment in this regard.” Because the issue is not moot and because the parties consent to a correction in the judgment, we remand this matter to the trial court. Ultimately, the amended order must reflect the terms of the stipulation and allow for a listing price that exceeds $1.9 million.

The plaintiff also challenges the court’s order that the parties return to the court every ninety days in the event that they cannot agree on a reduced price. The plaintiff posits that, contrary to the stipulation, the order requires a reduced price every ninety days. We disagree.

The plaintiff ignores the language in the stipulation that grants the “court continuing jurisdiction to solve disputes with respect to the listing or selling price.” (Emphasis added.) Under this term, the parties authorized the court further to refine the agreement as it pertained to the setting of a listing or selling price. The order does not, as the plaintiff suggests, require a reduced price every ninety days. Rather, if the parties cannot agree on a reduced price after ninety days, then the court will conduct a hearing on the matter to determine the value of the property for purposes of listing and sale. We do not read the order as requiring a reduced price if, after a hearing on the matter, evidence conclusively establishes a market value of the property at or above the existing price. We conclude that this aspect of the court’s order is not clearly erroneous but rather reflects a proper interpretation of the parties’ stipulation.

B

The plaintiff next asserts that the trial court improperly ordered the parties to continue a so called bird-nesting arrangement. Under this birdnesting plan, “each party shall have the exclusive use and occupancy of [the marital home] during such period of time that the children are residing with that party.” The order expressly stated that the arrangement would last “[u]ntil the sale and closing on the . . . property, or until the defendant wife elects to vacate said premises, whichever event shall first occur . . . .”

We note initially that a trial court is accorded wide discretion in domestic relations cases. “In order to conclude that a trial court abused its discretion in a domestic relations case we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Watson v. Watson, 221 Conn. 698, 712, 607 A.2d 383 (1992). A reviewing court must indulge every reasonable presumption in favor of the correctness of the trial court’s action to determine ultimately whether the court could reasonably conclude as it did. Gallo v. Gallo, 184 Conn. 36, 44-45, 440 A.2d 782 (1981). This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position “ ‘to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.’ ” Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982).

In this case, the trial court did not abuse its discretion in ordering the temporary continuation of the bird-nesting arrangement. The plaintiff attacks this aspect of the court’s order as (1) indefinite in its duration and (2) inconsistent with public policy. Both challenges, however, are unavailing. First, the plaintiff’s indefiniteness argument ignores the fact that the sale of the property necessarily will terminate the birdnesting plan. We are satisfied that, by its order, the court has endeavored to play an active role in expediting the disposition of the property. While we cannot conclude that the bird-nesting arrangement is certain to expire on any specific day, it is clear that it will be shortlived.

Moreover, the public policy concerns offered by the plaintiff are inapplicable in this case. Particularly, the plaintiff points to the stated policy behind dissolution orders that the state “only permits a divorce to be granted when . . . conditions are found to exist, in respect to one or the other of the named parties, which seem to the legislature to make it probable that the interests of society will be better served and that parties will be happier, and so better citizens, separate, than if compelled to remain together.” (Emphasis added.) Casale v. Casale, 138 Conn. 490, 492, 86 A.2d 568 (1952). According to the plaintiff, the trial court’s order of dissolution cannot be squared with its order requiring the parties temporarily to share the same residence. This argument is specious.

The plaintiff fails to note that under the terms of the order the parties will not be residing in the same residence together. Rather, the order expressly states that each party “shall have exclusive use and occupancy of said premises.” This exclusive use and occupancy coincides with the period of time that each party will reside with the children according to the custody orders. The bottom line is that the court has not ordered the parties to live together. We therefore conclude that the temporary birdnesting arrangement is not the product of an abuse of discretion.

II

The Defendant’s Cross Appeal

A

Turning to the defendant’s cross appeal, we address the issue whether the trial court improperly denied the defendant’s motion to open and set aside the judgment. The defendant’s cross appeal is predicated on an alleged conflict of interest that purportedly tainted the trial court’s custody and visitation orders. The following facts are pertinent to the defendant’s cross appeal.

For several months in 1987, Attorney Gaetano Ferro, counsel for the minor children, represented Suzanne Sumner, the family relations officer, in a dissolution action. Subsequent to this brief period of representation, neither Ferro nor Sumner took any steps to revive their attorney-client relationship. In 1990, after the plaintiff filed the pending dissolution action, the court appointed Ferro, by agreement of the parties, to serve as independent counsel for the minor children. That same day, the court referred this case to the family relations office to conduct a custody study. The family relations office in turn assigned the matter to Sumner.

In the spring of 1991, when the court heard evidence on the pending dissolution action, Sumner testified and recommended that the parties have joint custody of the children and that the plaintiff have the final authority to make major decisions concerning the welfare of the children. Ferro extensively examined Sumner as a witness and, in his closing argument, substantially adopted her recommendation. After attorneys for the plaintiff and the defendant vociferously cross-examined Sumner, they argued that the court should fashion a custody order that differed from that recommended by Sumner. Specifically, each sought an award of sole custody of the minor children.

In its memorandum of decision, the court ordered that the plaintiff have sole legal custody subject to several significant conditions. Among these conditions, each party was authorized to make “day-to-day decisions” for the children while they resided with that party. The court further vested the plaintiff with the ultimate authority to make major decisions affecting the welfare of the children.

In October, 1991, the defendant learned of the former attorney-client relationship of Ferro and Sumner. She then filed a motion to open and set aside the court’s judgment. The defendant argued that the judgment was improper because the prior attorney-client relationship of Ferro and Sumner thwarted the defendant’s efforts to obtain a custody order that reflected her position at trial. The court conducted a hearing to explore the defendant’s concerns. In the course of testimony, counsel for the plaintiff asked Ferro, “Can you tell me whether or not in your opinion your former representation of Ms. Sumner entered in any way to your role as attorney for the minor children in the Fiddelman, Redmon case?” Ferro responded, “Absolutely not.” At the conclusion of the hearing, the court orally rendered its decision to deny the defendant’s motion. This cross appeal ensued.

The defendant asserts that the former attorney-client relationship between Ferro and Sumner created an appearance of impropriety and compromised the integrity of the court’s action in this case. We disagree.

“The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court.” State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980), overruled in part, State v. Powell, 186 Conn. 547, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982). We accord wide discretion to a trial court’s ruling on a motion for disqualification of counsel for conflict of interest. State v. Jennings, 216 Conn. 647, 654-55, 583 A.2d 915 (1990). In determining whether the trial court abused its discretion, we indulge every reasonable presumption in favor of the correctness of the court’s decision. Id., 655; State v. Jones, supra.

Unlike the previously cited disqualification cases, here the conflict of interest claim was presented to the trial court after the conclusion of the trial. The defendant could not raise this issue earlier because she did not learn of the Ferro-Sumner relationship until after the court had rendered judgment. We therefore see no reason to diverge from our standard of review in disqualification cases simply because the trial court was presented with the issue at a different stage in the proceedings. Ultimately, the issue is the same, namely, whether the trial court abused its discretion in rejecting the defendant’s claim that a conflict of interest existed owing to a prior attorney-client relationship.

A conflict of interest based on a prior attorney-client relationship exists only if the moving party establishes that the attorney has since accepted employment that is “ ‘adverse to the interests of a former client on a matter substantially related to the prior litigation.’ ” State v. Bunkley, 202 Conn. 629, 652, 522 A.2d 795 (1987). A substantial relationship is found to exist upon a showing that “the relationship between the issues in the prior and present cases is ‘patently clear’ or where the issues are ‘essentially the same.’ ” Id.

In this case, the trial court acted well within its discretion in rejecting the defendant’s claim that a conflict of interest undermined the custody and visitation orders. Ferro’s attorney-client relationship with the minor children was in no way adverse to his prior representation of Sumner. In fact, the court appointed both Ferro and Sumner to serve largely a similar function in this litigation, namely to serve independently the best interests of the minor children.

Further, whether Ferro chose to contradict or adopt Sumner’s testimony was a decision that had nothing to do with the adequacy of Ferro’s previous representation of Sumner. Sumner’s case had long since been resolved, and her legal representation by Ferro had ceased three years before the present case. Sumner never once indicated any concern that Ferro’s involvement in this case jeopardized her former attorney-client relationship. Significantly, there is no indication that confidential communications arising from the former relationship were of any relevance to the pending dispute.

With respect to his representation of the minor children, the record reveals that Ferro strenuously advocated their best interests. We note, moreover, that the children, now represented by new counsel, have chosen not to join in the defendant’s cross appeal. Without their involvement in this appeal, we presume that the children are fully satisfied with the court’s disposition of the case. Moreover, when asked whether Sumner’s role as a witness compromised his independent judgment, Ferro stated emphatically that it did not do so. The trial court in its discretion was entitled to credit this testimony in support of its decision to reject the defendant’s motion to open and set aside the judgment.

Finally, the issues involved in the trial of this case were not related to those involved in Sumner’s case. The only similarity is that both cases were dissolution actions. There is no basis on which we can conclude that this case is substantially related to that involved in Ferro’s former representation of Sumner. Precisely because the two matters are wholly unrelated, no situation ever arose in which the confidential communications between Ferro and Sumner were pertinent to Ferro’s representation of the minor children. In short, we are not persuaded that Ferro’s prior representation of a witness created a conflict of interest in this case. We thus reject the defendant’s claims that the Ferro-Sumner relationship tainted the proceedings and obliged Ferro to disclose this relationship to the court.

B

The defendant also claims that Ferro’s prior relationship with the plaintiff’s trial attorney, Arthur Balbirer, created an appearance of impropriety. Specifically, the defendant points to the fact that Ferro and Balbirer had been law partners from 1978 to 1985 and had coauthored legal articles. This fact was known to the defendant at all critical phases of the dissolution proceeding. The defendant, however, did not raise this issue until October, 1991, well after the court had rendered judgment on the matter. The defendant raised this claim in support of her motion to open and set aside the judgment. In the course of a hearing on the motion, the parties adduced extensive testimony concerning this particular relationship.

Our Supreme Court has criticized the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial, waits until after an unfavorable judgment to raise the issue. “We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985); see also Bielen v. Bielen, 12 Conn. App. 513, 515, 531 A.2d 941 (1987) (when counsel has full knowledge of improper conduct before judgment, failure to object at time of knowledge precludes review of objection made after unfavorable ruling).

The decision in Timm v. Timm, supra, is particularly analogous to the case before us. There, a trial referee participated in settlement conferences and thereafter presided at a trial involving the same case. The defendant claimed that the referee’s involvement at both phases of the litigation tainted the referee’s disposition of the case. The Supreme Court disagreed. Specifically, the court held that “[t]he conduct of the defendant in this case, in failing to raise the issue of the referee’s disqualification either before or during the trial, can be construed as the functional equivalent of ‘consent in open court’ to [the judge’s] presiding over the trial.” Id.

The analysis in Timm applies with equal force in the present case. Unlike, the Ferro-Sumner relationship, discussed previously, the Ferro-Balbirer relationship was known to all parties prior to the commencement of the trial. Notwithstanding this knowledge, the defendant chose not to “cry foul” until after the court rendered judgment. Having known of the Ferro-Balbirer relationship throughout the proceedings, the defendant was required to raise this issue at an earlier point if she wanted to preserve it. Her failure to do so precludes our review of this challenge.

The judgment is affirmed, and the case is remanded with direction to modify the judgment to reflect the agreement of the parties regarding the listing price of the marital home.

In this opinion the other judges concurred.

       The plaintiff specifically challenges a custody order that the parties have styled a “birdnesting arrangement.” Hereinafter, we will refer to this order as a birdnesting arrangement.

       At oral argument, the plaintiff expressly abandoned his third claim that the trial court improperly entered orders regarding the payment of alimony and child support. We accept the defendant’s withdrawal of this claim and will not consider it further. State v. Barlow, 30 Conn. App. 36, 37 n.2, 618 A.2d 579 (1993).

       Additional facts will be set forth where pertinent.

       The defendant argues that the issue is moot because the initial listing price at $1.9 million has expired and because the plaintiff will not list the house for sale until this appeal has been resolved. Although the house is no longer on the market, this does not render the issue moot. Rather, the issue raised by the plaintiff regarding the sale of the house is capable of repetition yet evading review. The house is certain to be listed for sale in the immediate future. Further, if we refuse to address the court’s judgment at this time, it is conceivable that the listing will again expire and again prevent our review. Under such circumstances, the mootness doctrine does not deprive this court of jurisdiction. See, e.g., Perry v. Perry, 222 Conn. 799, 803, 611 A.2d 400 (1992); Schallenkamp v. DelPonte, 29 Conn. App. 576, 580, 616 A.2d 1157 (1992), cert. granted, 224 Conn. 928, 619 A.2d 851 (1993).

       Sumner did not testify at the hearing on the motion to open and set aside the judgment. Apparently, Sumner is no longer in this jurisdiction.

       We note that the trial court orally rendered its decision after hearing evidence on the matter. The trial court neither issued a written memorandum nor transcribed and signed its oral decision. Although not fully complying with Practice Book § 4059, the court did issue a detailed statement of its findings and conclusions in connection with its decision. Because the court.’s decision is sufficiently detailed and concise we will review the defendant’s claim so as not to “exalt form over substance.” State v. Rios, 30 Conn. App. 712, 714, 622 A.2d 618 (1993); State v. Rivera, 30 Conn. App. 224, 225 n.1, 619 A.2d 1146 (1993).

       It is, of course, preferable to err on the side of disclosure. Because the trial court, however, conducted a thorough postjudgment hearing on the matter and properly rejected the defendant’s claim that a conflict of interest existed, there is no basis from which we can conclude that Ferro’s nondisclosure undermined the custody and visitation orders.

       At the hearing on the defendant’s motion to open and set aside the judgment, counsel for the defendant agreed with the court that everyone at trial was aware of the prior relationship between Ferro and Balbirer.

       If we were to reach the merits of this claim, we would conclude that the trial court properly denied the motion to open and set aside the judgment. The court considered extensive evidence on the matter, including testimony indicating that the partnership relationship had long since terminated. It is apparent from the record that the trial court acted within its discretion in rejecting the defendant’s motion.