author: BORDEN, J.

text:
    IN RE PROBATE APPEAL OF CADLE COMPANY IN RE PROBATE APPEAL OF DAVID D’ADDARIO, EXECUTOR (ESTATE OF F. FRANCIS D’ADDARIO), ET AL.

    (AC 31673)
    DiPentima, C. J., and Robinson and Borden, Js.

      Argued November 17, 2010
    officially released July 5, 2011

      C. Donald Neville, for the appellant (Cadle Company).

      David W. Rubin, with whom, on the brief, was Andrew J. Soltes, Jr., for the appellees (David D’Addario, executor of the estate of F. Francis D’Addario, et al.).

       The consolidated appeals in this case were originally filed with the following captions: Cadle Company v. Appeal from Probate of the Town of Trumbull and David D'Addario et al. v. Appeal from Probate of the Town of Trumbull. The captions have been changed to reflect that the Probate Appeal is not a party. It should be noted that the microfiche version of the Appellate Court Record and Briefs in this case will be found under the original captions.

   Opinion

BORDEN, J.

The sole question we confront in these two consolidated appeals is whether the Probate Court has jurisdiction in connection with an accounting in a decedent’s estate to permit a creditor of the estate to conduct discovery into the complex management and business operations of the estate’s assets, including the business judgments of its executors. We answer that question in the affirmative.

The Probate Court for the district of Trumbull, in connection with an interim accounting filed by the executors of the estate of F. Francis D’Addario (estate), David D’Addario and Lawrence D’Addario (executors), issued a discovery order permitting broad discovery by Cadle Company (Cadle), an unsecured creditor of the estate. Specifically, the Probate Court permitted Cadle to conduct discovery, subject to the following traditional limitations: the power of the court to quash a subpoena “if it is unreasonable and oppressive or if it seeks production of materials [that are] not . . . both material and within the possession of the person to be examined”; any subpoena may not be used “for the purpose of conducting a fishing expedition into the papers of aparty or a stranger to the proceedings,” must be “sufficiently particularized so that the documents sought may be readily identified,” and may not be “on its face . . . too broad and sweeping”; and any examination may not be “proposed in bad faith or so as to annoy, embarrass or oppress the party who is subject to the inquiry” and may not “search for the irrelevant.”

The executors and Cadle filed separate appeals to the Superior Court from the discovery order. The appeals were consolidated. The trial court ruled that Cadle could conduct discovery into financial matters contained in the accounting in question and, therefore, affirmed the order of the Probate Court to the extent that the order permitted discovery. The trial court also ruled, however, that the breadth of the discovery order was beyond the jurisdiction of the Probate Court and, therefore, remanded the matters to the Probate Court for further proceedings. Cadle appealed to this court.

Cadle claims that, in rendering its judgments, the trial court improperly considered our Supreme Court’s decision in Carten v. Carten, 153 Conn. 603, 219 A.2d 711 (1966), to be controlling on this issue. We agree with Cadle and, accordingly, reverse the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. Cadle is an unsecured creditor of the estate. The decedent died in 1986, and the executors of the estate were appointed. In July, 2001, at the request of the Probate Court, the executors submitted an interim accounting of the estate for the period covering December 1, 1992, to November 30, 1993. Cadle filed an objection to the Probate Court’s acceptance of the interim accounting and a motion for permission to conduct discovery with respect to concerns it had regarding the accuracy of the accounting. The executors objected to Cadle’s motion for discovery and, in response, the Probate Court directed the parties to brief, inter alia, the following issues: (1) whether Cadle had a right to discovery in the Probate Court, and (2) if there were such a right, whether it was strictly limited in scope? The Probate Court determined that Cadle had the right to conduct discovery with respect to the financial representations in the accounting and, of particular relevance to this appeal, that the scope of the discovery was limited only by the rules of practice applicable to ordinary civil proceedings.

As noted previously, both parties appealed from the Probate Court’s order to the trial court, and their appeals were consolidated. In the trial court, the executors claimed that any right to discovery was severely limited under Connecticut law, as the jurisdiction of probate courts does not extend to the review of complex management and business operations of an estate. The trial court disagreed, however, with the Probate Court’s ruling that discovery in probate proceedings was only limited to the extent of our ordinary civil practice rules. Relying on Carten v. Carten, supra, 153 Conn. 615-16, the trial court concluded that the “jurisdiction of the Probate Court in matters of accounting does not extend to the adjudication and review of complex management and business operations of estate assets and the business judgments of its fiduciaries.” The trial court concluded, therefore, that Cadle’s discovery requests, insofar as they pertained to the complex financial matters of management and business operations of the estate, or the business judgments of the executors, “should have been denied on jurisdictional grounds.” Because the trial court lacked specific information regarding the subject matter of the discovery sought, it remanded the case to the Probate Court with direction to determine which of Cadle’s discovery requests, in accordance with its decision, were permissible. This appeal by Cadle followed.

On appeal, Cadle claims that the trial court improperly concluded that it was not entitled, on jurisdictional grounds, to discovery into the complex financial management of the estate’s assets and the business judgments of the executors. Cadle argues that, in reaching its decision, the court improperly concluded that our Supreme Court’s holding in Carten is dispositive on this issue. We agree.

We begin our analysis by setting forth the applicable law regarding the jurisdiction of our probate courts. “The Probate Court is a court of limited jurisdiction prescribed by statute, and it may exercise only such powers as are necessary to the performance of its duties. ... As a court of limited jurisdiction, it may act only when the facts and circumstances exist upon which the legislature has conditioned its exercise of power. . . . Such a court ‘is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.’ Marcus’ Appeal from Probate, 199 Conn. 524, 528-29, 509 A.2d 1 (1986).” (Citations omitted.) Heussner v. Hayes, 289 Conn. 795, 802-803, 961 A.2d 365 (2008). Additionally, the trial court’s conclusion that the Probate Court lacked jurisdiction over the adjudication and review of the management of the estate’s assets and the business judgments of the executors involves a question of law, which we review under the plenary standard of review. See id., 802.

The next step of our analysis requires a discussion of the Supreme Court’s decision in 1966 in Carten. In that case, the decedent had established a testamentary trust, the coipus of which consisted of almost all of the shares of stocks, held by the decedent upon his death of a closely held corporation, which was engaged in the concrete and sand and gravel businesses. Carten v. Carten, supra, 153 Conn. 605-607. The trustees were two of the testator’s children, who also served as officers and directors of the corporation. Id., 607. The Probate Court approved the trustees’ final account, from which the plaintiffs, who were two other children of the testator, appealed to the Superior Court, alleging that the accounting was incomplete, that it did not disclose whether the net income was fully accounted for, that it did not disclose how the net income was computed, that the trustees failed to manage the corporation for the best interests of the beneficiaries of the trust, and that they had failed to disclose the records of the management of the corporation. Id., 607-608.

While that appeal was pending, the plaintiffs brought a separate action in the Superior Court for discovery, in the form of “an action in equity ancillary to the [pending appeal from the Probate Court].” Id., 611. That was the action before the Supreme Court, which characterized it as “a pure bill of discovery as distinguished from a bill of discovery and relief.” Id. The trial court granted relief to the plaintiffs to the extent “of directing that the plaintiffs be permitted to examine the corporation’s annual balance sheets, annual profit and loss statements and the general ledger, covering only the period since the date of the last preceding trust account, which had been accepted and allowed by the Probate Court and from which no appeal [had been] taken.” Id., 609. Both parties appealed to the Supreme Court, the defendants claiming that the plaintiffs were not entitled to any discovery, and the plaintiffs claiming entitlement to much broader discovery than the court had allowed. Id., 609-10.

“The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought.” (Internal quotation marks omitted.) H & L Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn. App. 428, 433, 955 A.2d 565 (2008). Because this action was merely ancillary to the pending appeal from the Probate Court’s approval of the trustees’ account, the jurisdiction of the Superior Court was coincidental with that of the Probate Court—neither more nor less. Carten v. Carten, supra, 153 Conn. 614.

Faced with this procedural posture, and with the well established principle that the Probate Court is a court of limited jurisdiction, based solely on statute; id., 614-15; our Supreme Court held that the jurisdiction of the Probate Court “has not . . . been extended to the adjudication of complex legal questions which pertain to the management and operations of a business corporation. Problems of internal administration, proper corporate reserves for working capital and replacement of wasting assets, dividend policy, exercise of business judgment and assumption of business risks may, in a proper case, be the subject of the broad jurisdiction of a general court of equity. . . . They are not within the limited jurisdiction of the Probate Court in allowing the account of a testamentary trustee. Parenthetically, it is pertinent to note that the allowance by a probate court of the account of a testamentary trustee does not constitute an adjudication of any matter not apparent on the face of the account nor bar a beneficiary from a subsequent action in the Superior Court to recover damages for a breach of trust by a trustee.” (Citation omitted.) Id., 615. “In view of the limited jurisdiction of the court in the original action, the discovery in this ancillary proceeding must be limited to matters pertinent only to the trust account, such as the allegations that the account is incomplete and that it fails to show whether all of the income of the trust is accounted for, how the net income of the trust was computed and what receipts and what disbursements were allocated to principal and what to income. For this limited purpose, an examination of the annual balance sheets and annual profit and loss statements of the corporation will suffice to disclose what the corporation records show was distributed to the trustees and therefore subject to account by them. Under the circumstances, it was within the court’s discretion to order a disclosure of this information. On the other hand, an examination of the general ledger of the corporation is not pertinent to such a properly limited discovery, and the trial court should not have ordered its disclosure.” Id., 616.

Caríen, then, stands for the general proposition that, in a probate account proceeding, the jurisdiction of the Probate Court, insofar as discovery is concerned, is much more limited than would be the jurisdiction of a general court of equity such as the Superior Court. Whereas in a proper case before the Superior Court complex legal questions pertaining to the management and operations of a business corporation may “be the subject of the broad jurisdiction of a general court of equity”; id., 615; such matters “are not within the limited jurisdiction of the Probate Court in allowing the account of a testamentary trustee.” Id.

On the basis of this general proposition derived from Caríen, the trial court in the present case limited the extent of the discovery available to Cadle, as indicated previously. We conclude, however, that because of subsequent legislative action, Caríen is no longer good law.

General Statutes § 45a-175 is entitled “Jurisdiction of accounts of fiduciaries. Appointment of auditor to examine accounts, when.” It lodges in the Probate Court the jurisdiction over the interim and final accounts of all fiduciaries in that court. More specifically, § 45a-175 (a) provides as follows: “Courts of probate shall have jurisdiction of the interim and final accounts of testamentary trustees, trustees appointed by the courts of probate, conservators, guardians, persons appointed by probate courts to sell the land of minors, executors, administrators and trustees in insolvency, and, to the extent provided for in this section, shall have jurisdiction of accounts of the actions of trustees of inter vivos trusts and attomeys-in-fact acting under powers of attorney.” If that were all that we had before us as a statutory matter, we would be inclined to affirm the trial court’s limitation on discovery on the basis of Carten. That is not all that we have before us, however.

In 1997, more than thirty years after Carten was decided, the legislature enacted No. 97-90, § 3 of the 1997 Public Acts, codified at subsection (g) of § 45a-175, which provides as follows: “In any action under this section, the Probate Court shall have, in addition to powers pursuant to this section, all the powers available to a judge of the Superior Court at law and in equity pertaining to matters under this section.” In our view, the interpretation and application of this provision controls the present case. Moreover, the plain meaning and application of that provision leads us to conclude that it legislatively overruled Carten.

“Because issues of statutory construction are questions of law, we review the trial corut’s conclusions as to these issues de novo, under well settled principles. Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650, 931 A.2d 142 (2007). When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) C. R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 260-61, 932 A.2d 1053 (2007). A statute is ambiguous if its language, read in context, is susceptible of more than one plausible interpretation. State v. Orr, 291 Conn. 642, 654, 969 A.2d 750 (2009).

We agree with Cadle that the text of § 45a-175 (g), as applied to the facts of the present case, is plain and unambiguous. The only plausible meaning of § 45a-175 (g) is that the powers of a Probate Court, when adjudicating the matters referred to in subsection (a) of the statute, are coincidental with the powers of the Superior Court “at law and in equity pertaining to” those matters. As applied to the facts of the present case, its meaning is that the power of the Probate Court to order discovery in a proceeding on the interim account of executors is coincidental to the powers that a Superior Court judge would have in a plenary case involving a challenge to such an account.

The first clause of subsection (g), namely, “[i]n any action under this section,” necessarily refers to the entire § 45a-175. Subsection (a) of § 45a-175 specifically confers jurisdiction of the Probate Court over “the interim and final accounts of . . . executors . . . .” Furthermore, subsection (f) of § 45a-175 provides that, in a proceeding on an account, “the [probate] court shall determine the rights of the fiduciaries . . . rendering the account and of the parties interested in the account . . . .” Thus, the first clause of subsection (g), read together with subsections (a) and (f), clearly and unambiguously applies to Probate Court actions in adjudicating interim and final accounts of executors of estates.

The remainder of subsection (g) of § 45a-175 makes clear that, in performing such an adjudication, the Probate Court “shall have, in addition to powers pursuant to this section, all the powers available to a judge of the Superior Court at law and in equity pertaining to matters under this section.” Thus, this language makes clear that, in adjudicating an executor’s account, including, of course, ruling on any objections to the account, the Probate Court has all of the powers that a Superior Court judge would have “at law and in equity”; General Statutes § 45a-175 (g); in doing so. We know from Carten itself, as well as from common sense, that the approval of an account by the Probate Court applies only to matters “apparent on the face of the account”; Carten v. Carten, supra, 153 Conn. 615; that “[problems of internal administration, proper corporate reserves for working capital and replacement of wasting assets, dividend policy, exercise of business judgment and assumption of business risks may, in a proper case, be the subject of the broad jurisdiction of a general court of equity”; id.; such as the Superior Court, and that the approval of the account would not “bar a beneficiary from a subsequent action in the Superior Court to recover damages for a breach of trust by a [fiduciary]”; id.; based on the conduct of the executors reflected in such an account. Thus, subsection (g) makes clear that a Probate Court, in ruling on an interim or final account that is challenged by someone with standing—such as a beneficiary or, as in the present case, a creditor of the estate—has the same powers to order discovery as the Superior Court would have in a case in which that same person brought a plenary action in the Superior Court challenging the account based on the conduct of the fiduciaries. That is precisely what the Probate Court’s discovery order was in the present case.

Section l-2z directs us to consider, in determining whether a statute is plain and unambiguous, in addition to the text of the statute under consideration, “its relationship to other statutes. . . .” See footnote 7 of this opinion. Our consideration of such other statute confirms the plain meaning of § 45a-175 (g) garnered from its text. General Statutes § 52-148a (a) provides: “Any party in a civil action or probate proceeding may, after the commencement of such action or proceeding, take the testimony of any person by deposition.” (Emphasis added.) This statutory linkage between the power to take a deposition in an ordinary civil action, which would be in the Superior Court, and in a probate proceeding, strongly supports the textual plain meaning of § 45a-175 (g) making the discovery powers of the Probate Court in account proceedings equivalent to those of the Superior Court in a civil action regarding such an account.

The executors agree that § 45a-175 (g) is plain and unambiguous. They contend, however, that its plain and unambiguous meaning is different from that urged by Cadle. Specifically, focusing on the first clause of subsection (g) of § 45a-175, namely, “[i]n any action under this section,” they contend that the clause refers only to the four procedures specified in subsections (b), (c) (1), (e) and (f) of § 45a-175. Subsection (b) involves the application to the Probate Court by certain parties interested in an inter vivos trust for approval of an account of the trust; subsection (c) (1) involves the application by a beneficiary of an inter vivos trust for an accounting by the trustee; subsection (e) involves the appointment by the Probate Court, sua sponte, of an auditor for an audit of any account over which the court has jurisdiction; and subsection (f) involves the determination of the rights of the parties upon the allowance of an account. The executors concede, moreover, that absent the first clause of subsection (g) of § 45a-175, namely, “[i]n any action under this section,” the text of subsection (g) of § 45a-175 would give the Probate Court the same powers as the Superior Court with respect to an executor’s account.

Although we concede that the contention of the executors offers another meaning for § 45a-175 (g), we do not agree that it offers another plausible meaning. First, it ignores the ordinary meaning of any action under this section, which points the reader, not to some of the actions taken by the Probate Court under the section but to any of them. It would certainly be an odd drafting convention to use the general, all inclusive phrase “any action” to refer to only certain of the potential actions that the court could take under the section. Second, we can conceive of no reason why the legislature would vest the full power of the Superior Court in the Probate Court with regard to only those four specified actions, to the exclusion of the accounting of fiduciaries under subsection (a), particularly when, even under the executors’ interpretation, it would have such full power under subsection (f) of § 45a-175, which refers to “any account” over which the Probate Court has jurisdiction. In sum, although the executors have offered an alternative meaning for subsection (g), that meaning is not plausible and does not render its text ambiguous.

Having concluded that § 45a-175 (g) requires reversal of the trial court’s judgments and reinstatement of the Probate Court’s discovery order, that ordinarily would end the discussion of this appeal. One final matter warrants comment, however.

Because of the conclusion that the text of § 45a-175 (g), and its relationship to other statutes, renders its meaning plain and unambiguous, § l-2z prohibits us from examining the legislative history of that statutory language in determining its meaning. We are constrained to note, however, that consideration of that legislative history would, if thoughtfully considered in interpreting its meaning, strongly suggest a different meaning, namely, that any jurisdictional limitations on the power of the Probate Court in reviewing fiduciaries’ accounts, which the court had recognized in Carten, remained undisturbed by the enactment of § 45a-175 GO-

What eventually became § 45a-175 (g) had its genesis in 1997 in what was termed Raised Bill No. 1275 in the Joint Committee on the Judiciary. In written testimony before the committee, the Probate Court Administrator, Judge F. Paul Kurmay, testified in favor of what was then section 4 of that raised bill. Judge Kurmay stated: “This proposal amends ... § 45a-175 to make it clear that the parties in an accounting before the probate court have the same remedies available to them as are available in the Superior Court. This proposal does not increase the jurisdiction of the probate courts, but rather makes its powers more explicit. The existing statutes are not explicit as to whether the courts of probate can provide the same remedies as the Superior Court in an account proceeding, although it is my opinion that our courts do enjoy those powers implicitly. Pursuant to ... § 45a-175, the court clearly has jurisdiction over the accounts of testamentary trustees, certain inter vivos trustees, guardians, conservators and executors and administrators.” (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, 1997 Sess., Pt. 8, pp. 2636-37. The rest of the legislative history was consistent with this testimony of Judge Kurmay.

This legislative history, particularly the testimony of Judge Kurmay and the explanation of Representative John Wayne Fox, strongly suggests that, although the bill was clearly aimed at making explicit the powers of the probate courts in accounting proceedings so as to match those of the Superior Court, it was not intended to enlarge the jurisdiction of those courts. This, in turn, would mean that, despite its clear language to the contrary, it was not intended to overrule the jurisdictional limitations on the probate courts, insofar as discovery is concerned, identified by the Supreme Court in Carten, as we have explained previously. Put another way, because the Supreme Court in Carten clearly described the limitations on discovery of the probate courts in jurisdictional terms, the legislative history of § 45a-175 (g) strongly suggests that, despite the breadth of its text, it was not intended to enlarge any preexisting limitations on the jurisdiction of the probate courts, such as those recognized in Carten.

Thus, this could well have been that rare case in which the application of the plain meaning rule, as mandated by § l-2z, conflicted with the purpose and meaning of the legislation, as evidenced by a consideration of its legislative history, and in which the operation of § l-2z would have made a difference in the outcome of the case. Accordingly, this could well have been a case in which it would have been appropriate for the court to consider the question of whether § 1-2z is unconstitutional under the doctrine of the separation of powers. See, e.g., Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 414-19, 891 A.2d 959 (2006) (Borden, J., concurring).

Having recognized this apparent conflict between the text of § 45a-175 (g) and its legislative history, and the potential questions that this conflict raised, after oral argument in this case we ordered the parties to file supplemental briefs on certain questions. Despite this direction, however, none of the parties addressed the question of the constitutionality of § l-2z. Both sides considered § 45a-175 (g) as unambiguously favoring their interpretations of the statute, and both sides considered the legislative history to be consistent with those interpretations. They both, therefore, declined to address the question of constitutionality that we had directed them to address.

In light of this procedural posture of the appeal, we decline to do so as well. It would be imprudent of us to address such a question in the absence of any briefing of the question.

The judgments are reversed, and the cases are remanded to the trial court with direction to reinstate the discovery order issued by the Probate Court.

In this opinion DiPENTIMA, C. J., concurred.

ROBINSON, J., concurring. I agree that the judgment of the trial court should be reversed.

       In September, 1994, Cadle was assigned a $1 million promissory note from a creditor of the decedent. See Cadle Co. v. D’Addario, 111 Conn. App. 80, 81, 957 A.2d 536 (2008). As a holder of the note, Cadle is a creditor of the estate and has standing to participate in the estate. See Cadle Co. v. D’Addario, 268 Conn. 441, 443-49, 844 A.2d 836 (2004).

       Initially, the record of this case did not contain a copy of the inventory of the estate or of the accounting in question. Subsequently, we ordered the parties to file, in lieu of the inventory, which we were advised consisted of 699 pages, a copy of the Form 706 Federal Tax Return. That filing discloses that the gross taxable estate for federal estate tax purposes was $92,009,459 as of the date of death of the decedent. A minor portion of the estate consisted of survivorship property, however, which, of course, would not be subject to the jurisdiction of the Probate Court. The estate includes eighty-four parcels of real property and the stock of fifty-one closely held corporations. We also ordered the parties to file a copy of the accounting in question, which consists of ninety-five pages and hundreds of transactions and entries.

       More specifically, Cadle’s objection to the accounting, a copy of which the executors supplied to us as an appendix to their brief in this court, notes that Cadle had retained the services of a certified public accountant to evaluate the accounting, the form 706 and a certain personal financial statement of the decedent prepared five months before his death. The accountant concluded that there were significant questions regarding the documents, such as: the executors’ accounting processes; the completeness of the documents; the valuations used by the executors, including a $70,000,000 discrepancy between the decedent’s predeath financial statement and the form 706; the propriety of some transactions, including possible insider transactions; and the reporting or nonreporting of income. In addition, the accountant indicated that, because the accounting consisted of line items of many transactions, it did not contain sufficient information to ferret out any wrongdoing; thus, additional information was necessary.

       The issues raised by Cadle were not addressed by the trial court and are not relevant to this appeal.

       The executors also reasserted their claim that there was no discovery into the financial matters contained in the accounting available in the Probate Court. The trial court rejected that claim, and they have not reasserted it in this court.

       General Statutes § 45a-175 provides: “(a) Courts of probate shall have jurisdiction of the interim and final accounts of testamentary trustees, trustees appointed by the courts of probate, conservators, guardians, persons appointed by probate courts to sell the land of minors, executors, administrators and trustees in insolvency, and, to the extent provided for in this section, shall have jurisdiction of accounts of the actions of trustees of inter vivos trusts and attomeys-in-fact acting under powers of attorney.
      “(b) A trustee or settlor of an inter vivos trust or an attomey-in-fact or the successor of the trustee, settlor or attomey-in-fact or the grantor of such power of attorney or his legal representative may make application to the court of probate for the district where the trustee, or any one of them, or the attomey-in-fact has any place of business or to the court of probate for the district where the trustee or any one of them or the settlor or the attomey-in-fact or the grantor of the power resides or, in the case of a deceased settlor or grantor, to the court of probate having jurisdiction over the estate of the settlor or grantor or for the district in which the settlor or grantor resided immediately prior to death for submission to the jurisdiction of the court of an account for allowance of the trustee’s or attorney’s actions under such trust or power.
      “(c) (1) Any beneficiary of an inter vivos trust may petition a court of probate having jurisdiction under this section for an accounting by the trustee or trustees. The court may, after hearing with notice to all interested parties, grant the petition and require an accounting for such periods of time as it determines are reasonable and necessary on finding that: (A) The beneficiary has an interest in the trust sufficient to entitle him to an accounting, (B) cause has been shown that an accounting is necessary, and (C) the petition is not for the purpose of harassment.
      “(2) A court of probate shall have jurisdiction to require an accounting under subdivision (1) of subsection (c) of this section if (A) a trustee of the trust resides in its district, (B) in the case of a corporate trustee, the trustee has any place of business in the district, (C) any of the trust assets are maintained or evidences of intangible property of the trust are situated in the district, or (D) the settlor resides in the district or, in the case of a deceased settlor, resided in the district immediately prior to death.
      “(3) As used in subdivision (1) of subsection (c) of this section, ‘beneficiary’ means any person currently receiving payments of income or principal from the trust, or who may be entitled to receive income or principal or both from the trust at some future date, or the legal representative of such person.
      “(d) The action to submit an accounting to the court, whether by an inter vivos trustee or attorney acting under a power of attorney or whether pursuant to petition of another party, shall not subject the trust or the power of attorney to the continuing jurisdiction of the Probate Court.
      “(e) If the court finds such appointment to be necessary and in the best interests of the estate, the court upon its own motion may appoint an auditor to be selected from a list provided by the Probate Court Administrator, to examine accounts over which the court has jurisdiction under this section, except those accounts on matters in which the fiduciary or cofiduciary is a corporation having trust powers. The Probate Court Administrator shall promulgate regulations in accordance with section 45a-77 concerning the compilation of a list of qualified auditors. Costs of the audit may be charged to the fiduciary, any party in interest and the estate, in such proportion as the court shall direct if the court finds such charge to be equitable. Any such share may be paid from the fund established under section 45a-82, subject to the approval of the Probate Court Administrator, if it is determined that the person obligated to pay such share is unable to pay or to charge such amount to the estate would cause undue hardship.
      “(f) Upon the allowance of any such account, the court shall determine the rights of the fiduciaries or the attorney-in-fact rendering the account and of the parties interested in the account, subject to appeal as in other cases. The court shall cause notice of the hearing on the account to be given in such manner and to such parties as it directs.
      “(g) In any action under this section, the Probate Court shall have, in addition to powers pursuant to this section, all the powers available to a judge of the Superior Court at law and in equity pertaining to matters under this section.”

       General Statutes § l-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”

       It appears that the Probate Court administrator was the nonlegislative sponsor of the bill.

       Judge Kurmay testified further as follows: “The issue becomes one of the powers of the court once an account has been filed with the court. If an accounting has been rendered in which there has been obvious wrongdoing, it should be made clear that the courts of probate may remove the fiduciary and surcharge and reduce fees when necessary in any proceeding under its jurisdiction. There are some who presently argue that the probate courts only have the authority to approve or disapprove the account, and may not order the trustee to take action to correct the account. Although I strongly disagree with that overly narrow interpretation of the law, rather than become involved in a lengthy appellate review of our powers, it is more expeditious to spell out what the legislature’s intent is.” Conn. Joint Standing Committee Hearings, supra, p. 2637.

       In the Senate, Senator Donald E. Williams, Jr., explained the bill as follows: “Further, the bill grants probate courts the powers available to superior courts in terms of law and equity in actions that the courts may take concerning financial accounts regarding certain fiduciaries and in that respect, it allows courts to remove or impose a surcharge on fiduciaries who fail to submit an accounting or act inappropriately with respect to the funds that are under the fiduciary’s control.
      “In addition, the probate court would be able to enjoin the fiduciary from engaging in certain conduct with respect to the funds under their care.” 40 S. Proc., Pt. 5, 1997 Sess., pp. 1721-22.
      In the House of Representatives, Representative John Wayne Fox briefly explained as follows: “It . . . grants powers in Superior Court judges to probate courts acting within their jurisdiction." (Emphasis added.) 40 H.R. Proc, Pt. 9, 1997 Sess., p. 3230.

       Our courts have long recognized the doctrinal difference between the powers of a court to act pursuant to a statute and its jurisdiction. See Amodio v. Amodio, 247 Conn. 724, 728-29, 724 A.2d 1084 (1999).

       The specific questions were: “[1] Is [§] 45a-175 (g) plain and unambiguous within the meaning of . . . [§] l-2z, as applied to the facts of this case, so as to bar consideration of its legislative history or any other extratextual material?; [2] If the answer to Question 1. is YES, does [§] 45a-175 (g) mandate reinstatement of the order of the Probate Court in this case?; [3] If the answers to Questions 1. and 2. are YES, does the legislative history of [§] 45a-175 (g), or any other extratextual material, nonetheless suggest or require a different interpretation of the statute?; [4] If the answer to Question 3. is YES, is . . . [§] l-2z unconstitutional as a violation of the separation of powers between the legislative and judicial powers?”


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES L. BUTLER
    (AC 31965)
    Lavine, Beach and Robinson, Js.

      Argued March 21
    officially released July 5, 2011

      Thomas P. Mullaney III, special public defender, for the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, supervisory assistant state’s attorney (state).
   Opinion

ROBINSON, J.

The petitioner, James L. Butler, appeals following the denial of his petition for DNA (deoxyribonucleic acid) testing of certain evidence that had been introduced by the state in his criminal trial, pursuant to General Statutes § 54-102kk. On appeal, the petitioner claims that the trial court improperly concluded that he failed to establish that a reasonable probability existed that he would not have been prosecuted or convicted if exculpatory results obtained through DNA testing had been available at his criminal trial. We affirm the decision of the trial court.

The record, including our opinion in the petitioner’s appeal from his underlying judgment of conviction, reveals the following facts that the jury reasonably could have found, as well as the pertinent procedural history. “On October 16, 2000, the [petitioner] and his accomplice, Charles Spells, entered the Mobil gasoline station on Watertown Avenue in Waterbury. Both men wore masks to conceal their identity, and the [petitioner] also carried a shotgun. The men took $160 in cash, lottery tickets and the store clerk’s watch. The [petitioner] aimed the shotgun at a customer and dragged him into an aisle before he took the man’s wallet. The [petitioner] aimed the shotgun at another customer and forced her to the floor and demanded her money.

“On October 20, 2000, the [petitioner] and Spells entered the Cumberland Farms convenience store on Watertown Avenue in Waterbury. Both men were dressed in black, wore masks and the [petitioner] carried a shotgun. The men took $400 from the cash register. Spells struck one customer with a blunt metal object and took the man’s wallet. Another customer surrendered her car keys to the [petitioner] and informed him that there was more than $300 in the vehicle. The two men took the keys and left in the vehicle.

“Neither the customers nor the clerks could identify the perpetrators of the crime because the men were wearing masks. They, however, provided general descriptions of the men: Both were African-American, one was approximately six feet tall and the other was approximately five feet, seven inches tall. Those descriptions fit the [petitioner] and Spells, respectively. The police found the customer’s vehicle abandoned in a nearby parking lot and her purse on a nearby street. More than $300 in cash and a laptop computer were missing from the vehicle. The police also found a black mask that contained several strands of head hair in the vehicle.

“On October 30, 2000, the [petitioner] turned himself in to the Waterbury police department on an outstanding warrant. The [petitioner] was interrogated, confessed to the crimes and implicated Spells as his accomplice. In giving his statement to the police, the [petitioner] provided details of the two crimes of which only a participant would have been aware. He knew where the customer’s vehicle had been abandoned and told the police where the keys could be located. Utilizing the [petitioner’s] confession, the police found the keys. The [petitioner] also stated that the car used in the Mobil gasoline station robbery belonged to Chiquita Diggs, the girlfriend of Spells. The [petitioner] further confessed that after the robbery, Spells gave him $50, took the black mask and they went their separate ways. The police subsequently interviewed Diggs. Diggs informed the police of the location of the shotgun, which was recovered in Lakewood Lake. The [petitioner] recanted his confession at trial. . . .

“Diggs testified outside the presence of the jurors that she was staying at the home of Spells at the time of the October 16, 2000 robbery. Spells was armed with a shotgun when he entered the home. She testified that James Gardner and Levelle Kelly accompanied him. Spells was in possession of a laptop computer, a watch and a checkbook. Diggs also stated that after Spells was arrested, Gardner threatened her with a shotgun to keep [her] quiet and drove her to Lakewood Lake where he disposed of the shotgun. The court did not allow the [petitioner] to present Diggs’ testimony regarding the issue of third party guilt because her testimony did not establish a direct link to the robberies.” State v. Butler, 81 Conn. App. 100, 102-104, 837 A.2d 896, cert. denied, 268 Conn. 902, 845 A.2d 405 (2004).

On March 20, 2002, after a jury trial, the petitioner was convicted of five counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and two counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4). On June 4,2002, the court sentenced the petitioner to a total effective term of twenty years incarceration followed by ten years of special parole. The petitioner directly appealed to this court, and we affirmed his conviction. See id., 101-102.

On September 18,2009, the petitioner filed a postconviction petition for DNA testing pursuant to § 54-102kk to have strands of hair recovered from the mask tested to determine whether the hair belonged either to Gardner or to Kelly, in order to demonstrate his innocence. In support of his petition, the petitioner alleged that a mask containing strands of hair was recovered from the crime scene, that the strands of hair were tested and found to be dissimilar to the petitioner’s hair, that Gardner’s and Kelly’s DNA is located in the Connecticut DNA database (DNA database), that DNA testing of the strands of hair and a match of the DNA results against the information in the DNA database could show that the hair in the mask belonged either to Gardner or to Kelly, and that evidence of third party guilt proffered by Diggs, but not admitted into evidence, revealed that Gardner had demonstrated inculpatory knowledge of the robberies. On November 4, 2009, the court denied the petition on the basis that the petitioner failed to satisfy the criteria set forth in § 54-102kk (b) (1), which required that the petitioner establish that a reasonable probability existed that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing of the hairs in the mask. Subsequently, the petitioner appealed.

On appeal, the petitioner claims that the court improperly concluded that he failed to establish that a reasonable probability existed that he would not have been prosecuted or convicted if exculpatory results obtained through DNA testing of the hairs in the mask had been available at his criminal trial. Specifically, the petitioner claims that, if the results from a DNA test of the hairs in the mask confirm the presence of either Gardner’s or Kelly’s DNA, there exists a reasonable probability that he would not have been convicted. We disagree.

We begin by setting forth our standard of review and the relevant legal framework. “[T]he determination of whether a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing pursuant to § 54-102kk (b) (1) is a question of law subject to plenary review, while any underlying historical facts found by the trial court are subject to review for clear error.” (Internal quotation marks omitted.) State v. Dupigney, 295 Conn. 50, 68, 988 A.2d 851 (2010).

“[Reasonable probability within the context of § 54-102kk (b) (1) means a probability sufficient to undermine confidence in the outcome. . . . Under this standard, a showing of reasonable probability does not require demonstration by a preponderance that disclosure of the [unavailable] evidence would have resulted ultimately in the defendant’s acquittal. . . . The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. . . . The United States Supreme Court also emphasized that the [relevant inquiry] ... is not a sufficiency of the evidence test. ... A defendant need not demonstrate that after discounting the inculpatory evidence in light of the [unavailable] evidence, there would not have been enough left to convict. . . . Accordingly, the focus is not whether, based upon a threshold standard, the result of the trial would have been different if the evidence had been admitted. We instead concentrate on the overall fairness of the trial and whether [the unavailability] of the [exculpatory] evidence was so unfair as to undermine our confidence in the jury’s verdict.” (Citation omitted; internal quotation marks omitted.) State v. Marra, 295 Conn. 74, 88, 988 A.2d 865 (2010).

In analyzing the effect of DNA evidence, § 54-102kk (b) (1) directs us to consider the effect of potential “exculpatory results” obtained through DNA testing. At this point, it is evident that the petitioner will not know with certainty what DNA testing will show. Thus, § 54-102kk (b) (1) requires the court to consider “the effect of the most favorable result possible from DNA testing of the evidence . . . .” State v. Dupigney, supra, 295 Conn. 73. Accordingly, in the present case, we assume that DNA testing of the hairs in the mask would reveal the presence of Gardner’s or Kelly’s DNA. As an initial matter, we note that this DNA evidence at best is tenuous. The presence of Gardner’s or Kelly’s DNA in the mask merely would establish that either had worn the mask at some unknown point in time, not that either was involved in the robberies as Spells’ accomplice. Moreover, such evidence would not establish that the petitioner either had never worn the mask or had not committed the robberies.

Furthermore, even assuming that the DNA evidence tends to demonstrate that either Gardner or Kelly, and not the petitioner, was Spells’ accomplice in the robberies, we must consider this evidence within the context of the entire trial. See State v. Marra, supra, 295 Conn. 90 (reasonable probability analysis requires that court take into account totality of evidence adduced at original trial in order to determine whether absence of exculpatory DNA evidence undermines confidence in verdict). Here, the record reveals that the petitioner confessed to committing the robberies and that his confession was admitted into evidence. As we noted in our opinion addressing the petitioner’s direct appeal, the confession contained details of the robberies of which only a participant would have been aware. State v. Butler, supra, 81 Conn. App. 103. Although the petitioner recanted his confession at trial, and proffered the testimony of Diggs in order to link Gardner to the robberies; id., 103-104; such evidence is of no moment where, as here, his depiction of the robberies was corroborated by the testimony of numerous eyewitnesses and video surveillance footage from the Cumberland Farms robbery. In addition to the evidence that corroborated the petitioner’s confession, Spells implicated the petitioner as an accomplice to the robberies, and the petitioner also fit the general description of one of the robbers, as provided by eyewitness testimony. Finally, the record reveals that the jury was aware that the hairs in the mask were dissimilar to the petitioner’s hair. Because the evidence, derived from eyewitnesses and corroborated through both testimony and physical evidence, amply supported the conclusion that the petitioner, in fact, had committed the robberies in question, we agree with the trial court that there was not a reasonable probability that the petitioner would not have been prosecuted or convicted had exculpatory evidence derived from DNA testing of the biological material been available at trial.

The decision is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-102kk provides: “(a) Notwithstanding any other provision of law governing postconviction relief, any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court. The petitioner shall state under penalties of perjury that the requested testing is related to the investigation or prosecution that resulted in the petitioner’s conviction and that the evidence sought to be tested contains biological evidence.
      “(b) After notice to the prosecutorial official and a hearing, the court shall order DNA testing if it finds that:
      “(1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing;
      “(2) The evidence is still in existence and is capable of being subjected to DNA testing;
      “(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and
      “(4) The petition before the Superior Court was filed in order to demonstrate the petitioner’s innocence and not to delay the administration of justice.
      “(c) After notice to the prosecutorial official and a hearing, the court may order DNA testing if it finds that:
      “(1) A reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner’s sentence if the results had been available at the prior proceedings leading to the judgment of conviction;
      “(2) The evidence is still in existence and is capable of being subjected to DNA testing;
      “(3) The evidence, or á specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and
      “(4) The petition before the Superior Court was filed in order to demonstrate the petitioner’s innocence and not to delay the administration of justice.
      “(d) The costs of DNA testing ordered pursuant to this section shall be borne by the state or the petitioner, as the court may order in the interests of justice, except that DNA testing shall not be denied because of the inability of the petitioner to pay the costs of such testing.
      “(e) In a proceeding under this section, the petitioner shall have the right to be represented by counsel and, if the petitioner is indigent, the court shall appoint counsel for the petitioner in accordance with section 51-296.”

       The record also reveals that Spells earlier had confessed to the crime and implicated the petitioner as his accomplice. State v. Butler, 81 Conn. App. 100, 103 n.1, 837 A.2d 896, cert. denied, 268 Conn. 902, 845 A.2d 405 (2004).

       We note that neither party made the full criminal trial transcript part of the record in this appeal. Our review, therefore, is based on the limited portions of the trial transcript that the parties cite in their briefs. We note that, in a closer case, the presence or absence of a more complete record could have significant bearing on the determination of reasonable probability.


text:
    STATE OF CONNECTICUT v. ROGER P. COTE
    (AC 31865)
    Beach, Robinson and Alvord, Js.

      Argued March 18
    officially released July 5, 2011

      Heather M. Wood, assistant public defender, with whom, on the brief, was Kent Drager, senior assistant public defender, for the appellant (petitioner).

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Bonnie R. Bentley, senior assistant state’s attorney, for the appellee (state).
   (Opinion

ROBINSON, J.

The petitioner, Roger P. Cote, appeals following the denial of his petition for DNA (deoxyribonucleic acid) testing of certain evidence that had been introduced by the state in his criminal trial, pursuant to General Statutes § 54-102kk. On appeal, the petitioner claims that the trial court improperly concluded that he failed to establish that a reasonable probability existed that he would not have been convicted if exculpatory results obtained through DNA testing had been available at his criminal trial. We affirm the decision of the trial court.

The record reveals the following facts, which are largely undisputed, as well as the pertinent procedural history. The petitioner and the victim met and began to have a romantic relationship in November, 2001. By the end of that month, the petitioner had moved into the victim’s apartment where the victim resided with her four children. The relationship quickly deteriorated. Beginning as early as December, 2001, the petitioner and the victim had verbal disputes that escalated into physical abuse. Although the relationship ended in October, 2002, the petitioner continued to reside in the apartment and slept on the couch.

At around 5 a.m. on the morning of December 23, 2002, the victim was asleep in her bedroom when she heard the petitioner enter the bedroom and lock the door. When the petitioner entered the room, he accused the victim of infidelity and asked her to have sex with him. The victim told the petitioner that she had to get up to go to work, and then she attempted to get out of her bed. The petitioner, however, pushed her down and pinned her to the bed with his body weight so that she could not get up. While on top of her, the petitioner pulled out a folding knife that the victim had never seen before and held it to her throat. The petitioner began to rub the blade up and down the victim’s neck and behind her ear, scraping her skin and causing cuts on her neck. At some point during the incident, the victim attempted to push the knife away and cut her finger. The victim did not scream or call out for any help during the incident because she feared for her life and the safety of her children who were sleeping nearby.

The petitioner eventually grew tired and released the pressure on the knife against the victim’s neck. Shortly thereafter, the petitioner and the victim talked and cried together until the petitioner fell asleep. While the petitioner was asleep, the victim picked up the knife and left the room. The victim then drove herself and her children to her parents’ house. After the victim’s father arrived home and she had told him what had happened, she drove to the resident state police trooper’s office in Killingly where Trooper Leonard Blanchette took a written statement, photographed the fresh injuries to her neck and finger, and seized the knife that she had brought with her. At around noon on that same day, the police located the petitioner at the victim’s home and arrested him.

Subsequently, the petitioner was charged with assault in the second degree in violation of General Statutes § 53a-60 (a) (2), threatening in the second degree in violation of General Statutes § 53a-62 (a) (l) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). On July 25, 2003, additional charges stemming from the December, 2002 incident were filed against the petitioner, namely, attempt to commit sexual assault in the first degree and sexual assault in the third degree.

On September 22, 2004, following the petitioner’s criminal trial, a jury found him guilty of assault in the second degree in violation of § 53a-60 (a) (2), threatening in the second degree in violation of § 53a-62 (a) (1) and unlawful restraint in the first degree in violation of § 53a-95 (a). Thereafter, the trial court, Dannehy, J., imposed a total effective sentence of twelve years incarceration, followed by six years of special parole, to run consecutively to a sentence that the petitioner was then serving. The petitioner directly appealed to this court, which affirmed his conviction. State v. Cote, 101 Conn. App. 527, 922 A.2d 322, cert. denied, 284 Conn. 901, 931 A.2d 266 (2007).

On May 21, 2009, the petitioner filed a postconviction petition for DNA testing pursuant to § 54-102kk, to have the knife tested to determine whether any of the victim’s DNA was on it, in order to demonstrate his innocence with regard to his conviction of assault in the second degree. In support of his petition, the petitioner alleged that a reasonable probability existed that the requested testing of the knife would produce DNA results which would have altered the verdict, that the knife was still in existence and was capable of being subject to DNA testing, that the knife never was subjected to DNA testing and that his petition was filed in order to demonstrate his innocence. On September 8, 2009, the trial court, Robaina, J., held a hearing on the petition and, on December 4, 2009, denied the motion. In its memorandum of decision, the court concluded: “[T]here is no evidence upon which [this court] can find that testing of the knife for DNA evidence would have altered the verdict .... There is no reasonable probability that the petitioner would not have been prosecuted or convicted had the results of the DNA testing been somehow ‘exculpatory.’ ” In its analysis, the court emphasized the mountain of inculpatory evidence adduced at the criminal trial, noting that such evidence lessened the probability that the DNA evidence would have altered the verdict. Subsequently, the petitioner appealed.

On appeal, the petitioner claims that the court improperly concluded that he failed to establish that a reasonable probability existed that he would not have been convicted if exculpatory results obtained through DNA testing of the knife had been available at his criminal trial. Specifically, the petitioner claims that, if the results from a DNA test of the knife confirm the absence of the victim’s DNA, then there is a reasonable probability that he would not have been convicted of assault in the second degree. We disagree.

We begin by setting forth our standard of review and the relevant legal framework. “[T]he determination of whether a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing pursuant to § 54-102kk (b) (1) is a question of law subject to plenary review, while any underlying historical facts found by the trial court are subject to review for clear error. . . .

“[Reasonable probability within the context of § 54-102kk (b) (1) means a probability sufficient to undermine confidence in the outcome. . . . Under this standard, a showing of reasonable probability does not require demonstration by a preponderance that disclosure of the [unavailable] evidence would have resulted ultimately in the defendant’s acquittal. . . . The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. . . . The United States Supreme Court also emphasized that the [relevant inquiry] ... is not a sufficiency of the evidence test. ... A defendant need not demonstrate that after discounting the inculpatory evidence in light of the [unavailable] evidence, there would not have been enough left to convict. . . . Accordingly, the focus is not whether, based upon a threshold standard, the result of the trial would have been different if the evidence had been admitted. We instead concentrate on the overall fairness of the trial and whether [the unavailability] of the [exculpatory] evidence was so unfair as to undermine our confidence in the jury’s verdict. . . .

“In analyzing the effect of DNA evidence, § 54-102kk (b) (1) directs us to consider the effect of potential exculpatory results obtained through DNA testing. At this point, it is evident that the petitioner will not know with certainty what DNA testing will show. Thus, § 54-102kk (b) (1) requires the court to consider the effect of the most favorable result possible from DNA testing of the evidence . . . .” (Citation omitted; internal quotation marks omitted.) State v. Butler, 129 Conn. App. 833, 839-10, 21 A.3d 583 (2011). In the present case, therefore, we assume that DNA testing would reveal the absence of the victim’s DNA on the knife. The petitioner contends that, had this DNA evidence been available at the original trial, it would have been less likely that the jury would have found that the state proved beyond a reasonable doubt the “dangerous instrument” element of assault in the second degree because the absence of the victim’s DNA on the knife tends to show that the knife did not penetrate the victim’s neck. Accordingly, the petitioner contends that this DNA evidence creates a reasonable probability that he would not have been convicted of assault in the second degree.

As an initial matter, we note that standing alone, this DNA evidence does little to exculpate the petitioner. From this DNA evidence, a jury might infer at best either that: (1) the petitioner used the knife to injure the victim, causing the victim’s DNA to be deposited on the knife, but for reasons unknown, the DNA no longer is detectable through DNA testing, or (2) the petitioner did not use that particular knife to injure the victim. Accordingly, this DNA evidence does not establish that the petitioner did not use a “dangerous instrument” to injure the victim.

Furthermore, even assuming that the DNA testing determines that the victim’s DNA is not present on the knife in evidence, we must consider this evidence within the context of the entire trial. Id., 841; see also State v. Marra, 295 Conn. 74, 90, 988 A.2d 865 (2010) (reasonable probability analysis requires that court take into account totality of evidence adduced at original trial in order to determine whether absence of exculpatory DNA evidence undermines confidence in verdict). The record reveals that there was overwhelming evidence adduced at trial demonstrating that the petitioner had used the knife to cut the victim’s neck. The victim testified that she observed the knife as the petitioner held it and described in detail the physical characteristics of the knife. The knife was admitted as a full exhibit without objection by the petitioner. The victim also testified that the petitioner pressed the knife on her neck and rubbed it up and down and that she could feel the blade of the knife rolling underneath her skin. The victim’s son and father both testified, under the spontaneous utterance hearsay exception; see Conn. Code Evid. § 8-3 (2); that the victim had told them that the petitioner had held a knife to her neck in a threatening manner. Moreover, the lacerations on the victim’s neck were observed directly by the victim, her son, her father and Blanchette. Additionally, Blanchette testified that, on the day of the incident, he observed lacerations on the victim’s neck that appeared to have been made by a sharp object and that he photographed the victim’s injuries. Those photographs were admitted into evidence. Although the petitioner denied having used the knife to cut the petitioner’s neck, he testified that he recognized the knife, that it was “razor blade sharp” and that it always was attached to the belt loop of his pants, which were in the bedroom when the incident occurred. Because the evidence, derived from eyewitnesses and corroborated through both testimony and physical evidence, amply supported the conclusion that the petitioner had, in fact, used the knife to injure the victim, we agree with the trial court that there was not a reasonable probability that the petitioner would not have been convicted had exculpatory evidence derived from DNA testing of the biological material been available at trial.

The decision is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-102kk provides: “(a) Notwithstanding any other provision of law governing postconviction relief, any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court. The petitioner shall state under penalties of perjury that the requested testing is related to the investigation or prosecution that resulted in the petitioner’s conviction and that the evidence sought to be tested contains biological evidence.
      “(b) After notice to the prosecutorial official and a hearing, the court shall order DNA testing if it finds that:
      “(1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing;

        “(2) The evidence is still in existence and is capable of being subjected to DNA testing;
      “(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and
      “(4) The petition before the Superior Court was filed in order to demonstrate the petitioner’s innocence and not to delay the administration of justice.
      “(c) After notice to the prosecutorial official and a hearing, the court may order DNA testing if it finds that:
      “(1) A reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner’s sentence if the results had been available at the prior proceedings leading to the judgment of conviction;
      “(2) The evidence is still in existence and is capable of being subjected to DNA testing;
      “(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and
      “(4) The petition before the Superior Court was filed in order to demonstrate the petitioner’s innocence and not to delay the administration of justice.
      “(d) The costs of DNA testing ordered pursuant to this section shall be borne by the state or the petitioner, as the court may order in the interests of justice, except that DNA testing shall not be denied because of the inability of the petitioner to pay the costs of such testing.
      “(e) In a proceeding under this section, the petitioner shall have the right to be represented by counsel and, if the petitioner is indigent, the court shall appoint counsel for the petitioner in accordance with section 51-296.”

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical iujury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . .”

       General Statutes § 53a-62 (a) provides in relevant part: “A person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       The petitioner also was convicted of violation of a protective order and was acquitted of both sexual assault charges. In addition, the petitioner entered a written plea of nolo contendere to a part B information charging him as a persistent serious felony offender.

       On the basis of our review of the record, it appears that the trial court conflated § 54-102kk (b) (1) and (c) (1) in its analysis and concluded that a reasonable probability did not exist under either section. The petitioner’s only claim on appeal, however, is that the court made an improper reasonable probability determination under § 54-102kk (b) (1). The petitioner does not claim that the court improperly applied § 54-102kk (c) (1), nor does he analyze independently in his brief whether the court properly applied that section. In fact, in his brief, the petitioner concedes that the present case can be decided solely under § 54-102kk (b) (1). Nevertheless, in light of our determination resolving the petitioner’s claim under § 54-102kk (b), we conclude that the trial court properly denied the petition under § 54-102kk (c).


author: ALVORD, J.

text:
    JOHN McDONOUGH v. SHAWN FORREST ET AL.
    (AC 32047)
    Gruendel, Robinson and Alvord, Js.

      Argued April 26
    officially released July 5, 2011

      Ralph J. Monaco, with whom, on the brief, were Thomas J. Londregan and Jonathan T. Lane, for the appellant (plaintiff).

      Kelley Franco Throop, for the appellee (defendant United Services Automobile Association).
   Opinion

ALVORD, J.

The plaintiff, John McDonough, appeals from the summary judgment rendered by the trial court in favor of the defendant United Services Automobile Association. On appeal, the plaintiff claims that the court improperly concluded that he was not entitled to coverage under the uninsured/underinsured motorist section of his insurance policy issued by the defendant. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff commenced this action on October 15, 2008, alleging in his complaint that on April 21, 2007, he was operating his motorcycle around a curve on Route 14A in Sterling and was unable to see a truck stopped on the roadway. Further, the plaintiff alleged that he was forced to take evasive action that resulted in his striking the guardrail and suffering injuries.

In the second count of the complaint, the plaintiff alleged that he was entitled to underinsured motorist coverage from the defendant because the insurance coverage on the truck was insufficient to compensate him for his injuries. At the time of the accident, the plaintiff had insurance coverage issued by the defendant on two cars (car policy) that he owned and claimed that he was entitled to benefits arising from the uninsured/underinsured motorist coverage on that car policy. The motorcycle that the plaintiff owned and was operating was uninsured.

The defendant moved for summary judgment, claiming that, as a matter of law, the plaintiff was not entitled to the uninsured/underinsured motorist coverage under the car policy because the plaintiff owned the motorcycle but it was not insured. The defendant referenced an exclusion in the car policy limiting such coverage. Part C of the car policy, titled “Uninsured Motorists/ Underinsured Motorists Coverage (UM/UIM),” provides in relevant part: “Exclusions . . . [The defendant does] not provide [uninsured motorists/underinsured motorists] [c] overage ... for [bodily injury] sustained by: 1. You . . . when occupying ... an uninsured motor vehicle ... or a motorcycle that is owned by you. . . .”

Further, the defendant noted that General Statutes § 38a-336 permits this coverage exclusion. Section 38a-336 (a) (1) provides in relevant part that “[n]o insurer shall be required to provide uninsured and underinsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.”

The plaintiff objected to the motion, contending that the defendant “confuse [d] the plaintiffs motorcycle with the tortfeasor’s underinsured motor vehicle. . . . [The] [plaintiffs vehicle is not the underinsured vehicle. Therefore, the exception upon which [the defendant] relies does not apply in this case.” The plaintiff argued that the purpose of underinsured motorist coverage is to provide coverage to a victim struck by a tortfeasor who lacks sufficient coverage, and thus the “focus of the analysis to determine coverage is on the ownership of the tortfeasorf’s] vehicle . . . .” The defendant replied, arguing, inter alia, that the car policy did not cover this accident because the language in the car policy expressly limited coverage of this type, irrespective of whether the other vehicle in the accident was underinsured.

On August 10, 2009, the parties argued the motion for summary judgment. The court ruled in favor of the defendant, and granted summary judgment on the second count of the complaint. The court denied the plaintiffs motion for articulation. This appeal followed.

On appeal, the plaintiff contends that in granting the defendant’s motion for summary judgment, the court improperly concluded that (1) the plaintiffs vehicle was the uninsured/underinsured vehicle at issue and (2) the uninsured/underinsured motorist coverage insures the vehicle not the person. The defendant argues, inter alia, that the exclusions in the car policy, which are permissible exclusions pursuant to statute, remove the plaintiff from uninsured/underinsured coverage because such exclusions are not dependent on which vehicle was at fault. We agree with the defendant.

We begin by setting forth the applicable standard of review of a trial court’s ruling on a motion for summary judgment. Practice Book § 17-49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any 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.” See also Craig v. Stafford Construction, Inc., 271 Conn. 78, 83, 856 A.2d 372 (2004). “Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

“An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. . . . The determinative question is the intent of the parties, that is, what coverage the . . . [plaintiff] expected to receive and what the defendant was to provide, as disclosed by the provisions of the policy. ... If the words in the policy are plain and unambiguous the established rules for the construction of contracts apply, the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning, and courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties.” (Citations omitted; internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 583, 573 A.2d 699 (1990). An insurer may reduce the limits of its uninsured motorist coverage only as permitted by § 38a-334-6 (c) of the Regulations of Connecticut State Agencies. See Lane v. Metropolitan Property & Casualty Ins. Co., 125 Conn. App. 424, 439-41, 7 A.3d 950 (2010).

The plaintiff claims that the exclusion in the car policy does not apply because, for the purposes of that exclusion, the underinsured vehicle was the truck, the alleged tortfeasor’s vehicle. We are not persuaded. The relevant language in the car policy is plain and unambiguous and, therefore, must be given its natural and ordinary meaning. See Savoie v. Prudential Property & Casualty Ins. Co., 84 Conn. App. 594, 601, 854 A.2d 786 (insurance policy provisions afforded their natural and ordinary meaning), cert. denied, 271 Conn. 932, 859 A.2d 930 (2004). It bears repeating that, in the present case, the policy states that “[the defendant does] not provide [uninsured motorists/underinsured motorists] [coverage ... for [bodily injury] sustained by: 1. You . . . when occupying ... an uninsured motor vehicle . . . or a motorcycle that is owned by you. ” Thus, by the plain terms of this exclusion, the plaintiff cannot recover because he was operating an uninsured motorcycle that he owned, and he was the named insured on the car policy. There is no issue of material fact that the plaintiff owned the motorcycle or that it was an uninsured vehicle, as admitted by the plaintiff, because no insurance policy was covering it at the time of the accident. As a result, we conclude that the court properly granted the motion for summary judgment because the provision of the car policy provided an exclusion from uninsuredAmderinsured motorist coverage for any uninsured motor vehicle owned by the named insured.

This exclusion is expressly permitted by statute and the regulations promulgated under that statute. The statutoiy language is almost identical to the car policy exclusion. Likewise, the applicable regulation, § 38a-334-6 (c) of the Regulations of Connecticut State Agencies, provides in relevant part: “(c) Exclusions. The insurer’s obligations to pay [uninsured or underinsured coverage] may be made inapplicable ... (2) if the uninsured or underinsured motor vehicle is owned by (A) the named insured . . . .” Nothing in the statutory or regulatory language suggests that fault for the accident must be considered under this exclusion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also named Shawn Forrest and Janice Arbella as defendants, but they were not parties to the motion for summary judgment that is the subject of this appeal. Accordingly, we refer in this opinion only to United Services Automobile Association as the defendant.

       The truck was operated by Shawn Forrest and owned by Janice Arbella.

       The plaintiff also argues that uninsured/underinsured coverage is person oriented rather than vehicle oriented. While a correct statement of the law; Travelers Ins. Co. v. Kulla, 216 Conn. 390, 399-400, 579 A.2d 525 (1990); this assertion is inapposite where the individual failed to secure insurance coverage on a vehicle he owned, and where the policy, statute and regulations explicitly provide for excluding such individual’s coverage.
      Further, in his reply brief, the plaintiff argues that under the provisions of the policy, the plaintiff’s vehicle could not be defined as an uninsured motor vehicle. “It is well established . . . that [cjlaims ... are unreviewable when raised for the first time in a reply brief.” (Internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 302, 977 A.2d 189 (2009). One rationale for that maxim is the fact that “[ajrguments first presented in a reply brief impair the opposing party’s opportunity to reply in writing.” State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). Such is the case here, and, accordingly, we do not consider this argument.

       The policy provides in relevant part that “[y]ou and your refer to the ‘named insured

       In Harvey v. Travelers Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982), an insurance policy provided in relevant part: “This policy does not apply ... to bodily injury to an insured while occupying a highway vehicle (other than an insured automobile) owned by the named insured or a relative . . . .” (Internal quotation marks omitted.) Id., 246. In that case, the plaintiff was injured by an uninsured motorist while riding an uninsured motorcycle belonging to his father. Id., 245-46. The plaintiff sought benefits under the uninsured motorist provisions of an automobile liability insurance policy his mother had purchased for a car that she owned. Id., 246. Travelers disclaimed liability but the trial court rendered judgment in the plaintiffs favor. Id. The Supreme Court affirmed, concluding that the exclusion was void as against public policy, stating, “[i]t may be, as the defendant suggests, that such a public policy discourages persons from obtaining liability insurance coverage and increases the risk of injury by uninsured motorists. But that plea should be directed to the legislature.” Id., 252-53.
      Thus, in direct response to the Harvey ruling, the legislature amended § 38a-336. See Gormbard v. Zurich Ins. Co., 279 Conn. 808, 820 n.8, 904 A.2d 198 (2006) (in direct response to Harvey, legislature amended § 38a-336 [a] to provide exclusion where named insured occupies uninsured car owned by named insured); Lowrey v. Valley Forge Ins. Co., 224 Conn. 152, 160-61, 617 A.2d 454 (1992) (same).
      In Gormbard, our Supreme Court indicated that “[djuring the legislative debate on the amendment, Senator Wayne A. Baker explained that the amendment was intended to overrule this court’s holding in Harvey that public policy requires an insurer to provide uninsured motorist coverage for injuries that an insured sustains while occupying an uninsured vehicle that the insured, or a family member of the insured, owns. Specifically, Senator Baker stated: ‘[Harvey] requires insurjers] to provide coverage to people who choose to break this state’s compulsory insurance law. If a person does drive without insurance and exposes others to injury without the protection of liability coverage, then that person should not be entitled to uninsured motorist coverage. This bill then would deny uninsured motorist coverage to such people.’ ” Gormbard v. Zurich Ins. Co., supra, 279 Conn. 820 n.8.