author: Stoughton, J.

text:
    State of Connecticut v. Franklin Briggs
    (6446)
    Spallone, Stoughton and Norcott, Js.

      Argued December 6, 1988
    decision released March 14, 1989

      John T. Walkley, special public defender, for the appellant (defendant).

      Rita M. Shair, deputy assistant state’s attorney, with whom, on the brief, were Roland Fasano, assistant state’s attorney, and Pamela Weidman, law student intern, for the appellee (state).
   Stoughton, J.

The defendant appeals from a judgment of conviction rendered after a jury verdict of guilty on both counts of a substitute information. The first count charged the defendant with robbery in the first degree, a violation of General Statutes § 53a-134 (a) (2). The second count charged conspiracy to commit robbery in the first degree, in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2).

The defendant claims that the trial court erred (1) in failing to give the jury an adverse inference charge on the state’s failure to call a key witness, (2) in denying his motion for a mistrial that he based on the state’s failure to call a key witness, (3) in allowing into evidence hearsay statements of a coconspirator who was not produced at trial, (4) in admitting evidence as to the time and place of the defendant’s arrest, (5) in its instructions to the jury, and (6) in denying his motions for acquittal and to set aside the verdict. We find no error.

Upon the trial of this case, the jury reasonably might have found the following facts. On January 8,1986, at about 5:30 p.m., Richard Morris was alone in his gasoline station and convenience store in New Haven when the defendant and another man entered, armed with a shotgun and a handgun. One of the men took money from the cash register and from the pockets of the victim, a total of $213, and the two men fled to a waiting car driven by Arnold Colwell. A nearby resident had noticed the car and had taken part of the registration number earlier in the day. He saw the two men run from the store to the waiting car. When the police arrived, he gave a description of the car and the partial registration number, and these were broadcast on the police radio.

The car was a shiny black Camaro with “Z28” emblazoned on it. About one hour after the robbery, the police spotted the car. There were three people in it. After a chase, the police succeeded in stopping the car and arresting the driver, but the two passengers fled. Before escaping, the shorter passenger, later identified as the defendant, turned and for several seconds looked directly at Arthur Griffith, a policeman in a patrol car. The driver was identified as Colwell. The police searched the car and seized a blue denim coat, a brown shoulder bag that contained a sawed-off shotgun, and live ammunition. The defendant’s fingerprints also were found in the car.

Griffith testified that at the time of the robbery he did not know the defendant’s name, but that several weeks later he observed the defendant’s picture on a wanted poster that gave his name as Franklin Briggs. Detective Everett C. Nichols, who had been involved in Colwell’s arrest, testified that on the night of the robbery Griffith had given him a description of the two fleeing men. Nichols also testified that Griffith never had informed him that he had gotten a face to face look at the defendant. The defendant was not apprehended until almost a year later, when he was arrested at a motel in Berlin.

After Colwell was arrested, he agreed to cooperate with the state at the defendant’s trial. At that trial, Colwell was subpoenaed by the state. He appeared in court on the designated day, but he was not called as a witness that day. Colwell failed to return to court thereafter. When the state realized that Colwell had not returned, it sent an inspector to search for him. The state’s attempts to locate Colwell were fruitless. At trial, Colwell’s wife testified that immediately before the robbery she had been in her husband’s car with Col-well, Silas Harris, and the defendant. She also testified that she did not know the current whereabouts of her husband. The trial court offered the defendant a continuance in order to allow the state more time to locate Colwell. The defendant declined and stated, “I don’t want a continuance; I want a mistrial.”

The defendant’s first claim is that the trial court erred in failing to charge the jury that it could draw an adverse inference from the failure of the state to produce Colwell at trial. See Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). In order to establish that he was entitled to such an instruction, a party must show (1) that the witness was availhble, and (2) that the witness was one whom the opposing party would naturally have produced. Secondino v. New Haven Gas Co., supra, 674-75; McGloin v. Southington, 15 Conn. App. 668, 672, 546 A.2d 908 (1988). To satisfy the availability prong of Secondino, “ ‘it must be shown that the party was able to procure the witness’ physical presence in court.’ (Emphasis added.) Shelnitz v. Greenberg, 200 Conn. 58, 74-75, 509 A.2d 1023 (1986).” State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, U.S. , 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); McGloin v. Southington, supra, 673.

The defendant has not satisfied the availability prong of Secondino because he failed to produce any evidence that the state was able to procure Colwell’s physical presence at trial. The record reveals that Colwell was under subpoena to appear as a witness and that the state clearly was surprised by Colwell’s failure to appear. There was no evidence to show that the state had the ability to procure the witness. It was the defendant’s burden to show this availability; State v. Amarillo, 198 Conn. 285, 307, 503 A.2d 146 (1986); and he has failed to do this. There is no merit to this claim.

In his second claim, the defendant contends that the trial court erred in denying his motion for a mistrial after the state rested its case without calling Colwell to the stand. The defendant predicated his request for a mistrial on the fact that hearsay statements from Col-well had been allowed into evidence and used by the state against the defendant. While acknowledging that he did not object to these statements at the time they were made, the defendant asserts that at the time of trial he fully expected Colwell to testify. Griffith’s testimony was as follows:

“[State’s attorney] Q. And to your knowledge did Detective Nichols speak to Arnold Colwell, the one who was apprehended?
“[Griffith] A. Yes, he did.
“Q. And was that the source of the information with respect to the other two names?
“A. I believe it was.”

The testimony of Nichols was as follows:

“[State’s attorney] Q. And did [Colwell] identify the persons whose names he gave you by photo?
“[Nichols] A. Yes, sir, he did.
“Q. And who were the two persons?
“A. Franklin Briggs and Silas Harris.”

On redirect, the state elicited the following testimony from Nichols:

“[State's attorney] Q. Did you inquire into who, did you ask him who the two men were who fled the vehicle?
“[Nichols] A. Yes.
“Q. And his response to that was what?
“A. Frank Briggs and somebody he just met by the name of China.
“Q. The names he gave you was Franklin Briggs who he had known, is that right?
“A. Yes.
* * *
“Q. And he positively identified two of those photos, is that correct?
“A. Yes, sir.
“Q. And that was Franklin Briggs?
“A. And Silas Harris.”

The defendant contends that because of these statements, he was denied a fair trial and a mistrial should have been granted. We disagree. “A mistrial is an extreme remedy and is warranted only where it is apparent that as a result of some occurrence during trial a party has been deprived of an opportunity for a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980).” State v. Ridley, 7 Conn. App. 503, 513, 509 A.2d 546, cert. denied, 201 Conn. 803, 513 A.2d 698 (1986). The decision to declare a mistrial lies in the court’s discretion and the burden is on the party requesting a mistrial to show that he has been denied a fair trial. Id.

The defendant, in effect, is claiming that the alleged hearsay statements became objectionable and prejudicial oply after it became apparent that Colwell would not testify. Since the defendant did not object to these statements at trial, he cannot now claim that he was denied a fair trial by their admission. Moreover, the defendant never asked the trial court to strike the statements or for a curative instruction to the jury. Furthermore, the defendant was offered a continuance in order that an effort might be made to try to find Colwell, but he declined the offer. There is no merit to this claim.

The defendant’s third claim is that the trial court erred in allowing into evidence through a police witness tjie statements made by a coconspirator who was not produced at trial. The defendant did not object to these statements at the time of trial, but seeks review under State v. Evans, 165 Conn. 61, 71, 327 A.2d 576 (1973), based on violations of his right to confrontation. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The defendant bases this claim, as he did his motion for mistrial, on statements made by Colwell to Griffith and Nichols and introduced through the officers during their testimony.

In Bruton v. United States, the United States Supreme Court held that the confession of a nontestifying codefendant that expressly implicates the defendant is inadmissible at a defendant’s trial because it violates a defendant’s confrontation rights. As the court has made clear, Bruton is limited to those confessions that are incriminating on their face in that they “expressly implicate” the defendant in the actual commission of the crime. Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987); see also State v. Smith, 15 Conn. App. 122, 129-30, 543 A.2d 301 (1988).

The testimony that the defendant complains of does not “expressly implicate” him in the commission of the crime, but merely places him in the car with Colwell at the time the car was stopped. This is not a Bruton statement. It is not a constitutional claim but an evidentiary issue, and since the testimony has not undermined the defendant’s opportunity for a fair trial, we decline to review this claim of error. See State v. Veal, 201 Conn. 368, 376, 517 A.2d 615 (1986).

The defendant’s next claim is that the trial court erred in admitting into evidence the time and place of the defendant’s arrest. He claims that the prejudicial effect of the evidence outweighed its probative value because the evidence was completely without probative value.

The trial court allowed the testimony because it was relevant to the issue of flight. “Flight, when unexplained, tends to prove a consciousness of guilt.” State v. Ferrara, 176 Conn. 508, 516, 408 A.2d 265 (1979); see also State v. Holloway, 209 Conn. 636, 651, 553 A.2d 166 (1989). The defendant claims that in this case, the issue of flight was not relevant because at the time of his arrest, numerous warrants stemming from other charges had been issued against him. Consequently, he argues, his flight might well have been due to consciousness of guilt on other charges. We disagree.

A trial court has wide discretion in its rulings on relevancy. State v. Gold, 180 Conn. 619, 646, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). Here, the time and place of the defendant’s arrest tended in some degree to show flight from this crime and, hence, the trial court did not err in allowing such evidence.

The defendant also claims that the evidence was unfairly prejudicial because he was unable to rebut the issue of flight without bringing into evidence the existence of the other warrants for which he was being sought. That was a tactical decision he made at trial. The defendant’s difficulty was of his own doing and is not attributable to the trial court. It is a risk he assumed. There is no merit to this claim.

The defendant’s fifth claim is that the trial court erred in its instructions to the jury. The defendant claims the charge unfairly emphasized the state’s evidentiary claims and failed to accord his claims a fair review. Specifically, the defendant points to the instructions concerning the defendant’s flight, Colwell’s statements, and the fingerprint evidence. We will not review this claim because the defendant failed to raise these issues at the trial level and has not briefed a claim of entitlement to review under either State v. Evans, supra, or Practice Book § 4185.

At trial, the defendant’s only objection to the jury instructions was based upon the fact that he felt that an inconsistent statement by Griffith was not brought sufficiently to the attention of the jury. He was referring to the testimony by Nichols that Griffith never had told him that he had had a face to face encounter with the defendant. We find that Griffith’s allegedly inconsistent testimony was adequately summarized by the trial court. There is no merit to this claim.

The defendant’s final claim is that the trial court erred in denying his motions for acquittal and to set aside the verdict. He claims that the state’s evidence was extremely weak and speculative. In reviewing a challenge to the sufficiency of the evidence, we consider whether, on the basis of the evidence at trial and the proper inferences to be drawn therefrom, a jury could reasonably conclude that the defendant was guilty beyond a reasonable doubt. See State v. LoSacco, 12 Conn. App. 172, 174, 529 A.2d 1348 (1987). In this case there was more than sufficient evidence from which the jury could conclude that the defendant was guilty. There is no merit to this claim.

There is no error.

In this opinion the other judges concurred.

       This man was later identified as Silas Harris.

       This discussion took place outside of the presence of the jury. The defendant told the trial court that Colwell had previously testified for the state in its case against Harris.

       The trial court ordered that no reference be made to the other warrants issued against the defendant.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Ronnie Braun v. Herbert R. Edelstein
    (6383)
    Dupont, C. J., Borden and Daly, Js.
    Submitted on briefs November 15,1988
    decision released March 14, 1989

      Alan M. Solomon and Scott M. Harrington filed a brief for the appellant (defendant).

      Gary I. Cohen and Laurel A. Ellson filed a brief for the appellee (plaintiff).
   Dupont, C. J.

The plaintiff brought a complaint against the defendant alleging physical and emotional injuries resulting from a claimed assault and battery by the defendant on September 14,1985. After a court trial, the court rendered judgment for the plaintiff in the amount of $25,000. The defendant appeals, claiming that the trial court erred (1) in admitting the testimony of the plaintiff relating to the defendant’s offer to compromise, (2) in concluding that the plaintiff was entitled to damages for emotional injuries, (3) in awarding excessive damages to the plaintiff, and (4) in declining to draw an adverse inference from the plaintiff’s failure to produce a witness. We find no reversible error.

The trial court found that the plaintiff had been involved in a long term romantic relationship with the defendant, and that on the evening of September 14, 1985, the plaintiff was with the defendant at his invitation. The court further found that during the course of the evening, the defendant became angry with the plaintiff and assaulted her with his fists causing injuries to her.

The defendant testified that any injuries sustained by the plaintiff were accidental, and not intentional. The court found the testimony of the plaintiff’s treating physician corroborative of the plaintiff’s claim that her injuries were caused by an intentional assault.

The defendant first claims that the court improperly admitted testimony by the plaintiff of an alleged offer of settlement by the defendant. During redirect examination of the plaintiff, she was asked whether “[the defendant] ever offerfed] you anything to make you drop this lawsuit?” Over the defendant’s objection, the court allowed the plaintiff, to answer the question, reasoning that the defendant had raised this line of questioning on cross-examination. The plaintiff then testified that the defendant had offered her $10,000 to drop the lawsuit.

On appeal, the defendant argues that the testimony of the plaintiff was inadmissible because it concerned an offer relating to a compromise. “It has long been the law that offers relating to compromise are not admissible on the issue of liability.” Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 490, 446 A.2d 1071 (1982). The plaintiff asserts that her testimony was admissible because the defendant opened this line of questioning during cross-examination. We find no basis for the plaintiff’s assertion in the record. The defendant’s questioning of the plaintiff on cross-examination did concern communication between the parties after the alleged assault, but did not relate to offers of settlement. The testimony, therefore, was not admissible on the ground that testimony about the subject had been elicited during cross-examination. The rule excluding evidence of offers of settlement reflects the strong public policy of promoting the settling of disputes. C. Tait & J. LaPlante, Connecticut Evidence § 11.5.4 (b) (2d Ed. 1988). We conclude that the trial court erred in admitting the testimony of the plaintiff relating to the defendant’s alleged offer of compromise. As the error is evidentiary in nature, however, the defendant bears the burden of establishing that the error was harmful. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142, 491 A.2d 389 (1985).

The defendant argues that the admitted testimony was harmful and prejudicial to him as unduly suggestive of his liability. Aside from this general claim of prejudice, however, nowhere in the defendant’s brief or in the record is there any showing of specific harm to the defendant. See State v. Boyd, 178 Conn. 600, 604, 424 A.2d 279 (1979). Furthermore, upon a motion for articulation by the plaintiff, the trial court issued a memorandum of decision that stated that it “did not rely upon testimony regarding communication by the defendant to the plaintiff about [the] offers of settlement.” The court stated: “Instead, [it] relied upon the evidence adduced in the case to the effect that the plaintiff was caused to suffer great pain and disability; was unable to attend to her studies at Yale University; that the seriousness of the injuries went unchallenged; that although the plaintiff’s injuries did heal, she still suffers emotional trauma from the attack; must still consult with a psychiatrist and still experiences ‘flashback’ of the assault.” In view of the court’s statement that it did not rely on the inadmissible testimony relating to the defendant’s offer of compromise to the plaintiff, we consider the error harmless.

The defendant next claims that the trial court erred in concluding that the plaintiff was entitled to damages for emotional injuries. Specifically, the defendant argues that the evidence presented at trial does not support a finding that the alleged assault caused the defendant to seek the treatment of a psychiatrist. The defendant supports this contention with the fact that the plaintiff did not call her treating psychiatrist to testify on the issue of whether the assault caused the plaintiff emotional injury and only presented her own testimony to show that the assault did in fact cause her emotional trauma.

In LaBieniec v. Baker, 11 Conn. App. 199, 204-206, 526 A.2d 1341 (1987), we held that expert testimony is “not required” in order to prevail on a claim for mental suffering. “A plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiffs subjective complaints. Hook v. Dubuque, 153 Conn. 113, 115, 214 A.2d 376 (1965).” Delott v. Roraback, 179 Conn. 406, 409, 426 A.2d 791 (1980). “ ‘A plaintiff need only establish a claim for mental or emotional distress by a fair preponderance of the evidence.’ Buckley v. Lovallo, 2 Conn. App. 579, 589, 481, A.2d 1286 (1984).” LaBieniec v. Baker, supra, 204. The defendant does not demonstrate that the plaintiff failed to meet this burden. “ ‘Our function is to decide whether the decision of the trial court was “clearly erroneous in view of the evidence and pleadings in the whole record”; Practice Book § [4061]; Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 564, 438 A.2d 759 (1980); and “where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence.....” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).’ ” Temple v. Meyer, 208 Conn. 404, 407, 544 A.2d 629 (1988). Our careful review of the record indicates that the facts set out in the memorandum of decision are supported by the evidence. Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role. Id.

The defendant next claims that the damages awarded by the trial court were excessive. In awarding the plaintiff damages of $25,000, the trial court stated in its memorandum of decision that it considered the evidence presented on the plaintiffs physical and emotional injuries. The defendant claims that the plaintiffs medical expenses were covered by health insurance and, therefore, the damage award was excessive as a matter of law. Benefits received by a plaintiff from a collateral source, however, will not diminish the damages otherwise recoverable. Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 579, 271 A.2d 94 (1970).

In addition, the fact “[tjhat incurred medical expenses represent only a small percentage of the award for damages does not, ipso facto, invalidate the award. The award of damages for pain and suffering is peculiarly within the province of the trier, and will be sustained, even though generous, if it does not shock the sense of justice.” Manning v. Michael, 188 Conn. 607, 616, 452 A.2d 1157 (1982). “Proper compensation cannot be computed by a mathematical formula, and there is no iron-clad rule for the assessment of damages.” Id. With these principles in mind, we cannot conclude that the award was excessive. The trial court found that the plaintiff was attacked by the defendant, that the attack was intentional, and that it resulted in-the infliction of severe physical and emotional injuries to the plaintiff. The record supports these conclusions. We therefore conclude that the record before us adequately supports the trial court’s monetary award.

The defendant’s final claim is that the trial court erred in failing to draw an adverse inference under Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), when the plaintiff failed to call her psychiatrist to testify on her behalf. Secondino applies to situations in which a party has failed to produce a witness who was within his power to produce and who would naturally have been produced by him. Such a failure to produce permits an inference that the testimony of that witness would have been unfavorable to the party’s case. We decline to review this claim, however, as the defendant has failed to present an adequate record for review. The memorandum of decision does not reflect whether the trial court drew a negative inference. The defendant had the duty to invoke Practice Book § 4051 and request the trial court to articulate the basis of its decision more fully. It is the appellant’s responsibility to secure an adequate appellate record, and we will not remand a case to correct a deficiency the appellant should have remedied. Dixon v. Trubisz, 17 Conn. App. 216, 218, 551 A.2d 1259 (1988).

There is no error.

In this opinion the other judges concurred.

       An admission of fact made during negotiations, where the statement was intended to state a fact, however, is competent evidence. Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 490, 446 A.2d 1071 (1982). The plaintiff does not contend that the statement was an admission of fact elicited during negotiations.


author: Foti, J.

text:
    Hal Eis et al. v. Mary D. Meyer
    (6949)
    Spallone, Norcott and Foti, Js.
    Argued January 10
    decision released March 21, 1989

      Gorden R. Paterson, for the appellant (defendant).

      Myra L. Graubard, for the appellees (plaintiffs).
   Foti, J.

The defendant appeals from the judgment rendered in accordance with the attorney trial referee’s report declaring an easement to be fully enforceable and issuing a permanent injunction restraining the defendant from hindering or interfering with the plaintiffs’ use and enjoyment of that easement. The dispositive issue on appeal is whether the trial court erred in failing to find that the easement terminated, by its express terms, upon the “enlargement” of the plaintiff’s home. We find error.

The parties are adjoining property owners residing on Woodbine Road in Stamford. The plaintiffs can gain access to their home via two routes: a main entrance and driveway that leads directly from Woodbine Road to the front of their house, and a right of way onto their property created by an easement that bisects the defendant’s property.

The history and terms of the creation of this easement, as found by the trial referee, are as follows: Prior to 1951, Beulah G. Barnard owned approximately thirteen acres of land on Woodbine Road. Her son, William Spiegelberg, and his family lived in the large house located on Barnard’s property. In 1951, Barnard conveyed approximately three and one-fifth acres of her property to her nephew, Charles Meyer, the defendant’s deceased husband. Thereafter, Spiegelberg acquired title to Barnard’s remaining tract of land and in two separate conveyances, granted an additional two and one-fifth acres to Meyer. An easement benefiting Speigelberg’s property to use an existing driveway that crossed the defendant’s property for ordinary and reasonable use was in effect from the earliest deed. The terms of the final conveyance to Meyer in 1954 required the termination of that easement if Spiegelberg or his heirs or assigns failed to contribute one-half of the expenses for the maintenance of the driveway, or if any new building was erected or any existing building on Spiegelberg’s property was enlarged.

In 1955, Spiegelberg quitclaimed this easement to Meyer, who later restored and amended it subject to the stipulations and conditions pertaining to the original easement. Subsequently, Spiegelberg sold his property to a purchaser who in 1977 sold it to Hal and Shirley Eis, the present plaintiffs. At the time the plaintiffs acquired the property, they were aware of the terms and conditions of the easement. The defendant, Mary Meyer, inherited her property from her husband Charles in 1962.

In 1978, Hal Eis informed the defendant of his plans to construct an addition on his house in order to extend his kitchen. The defendant did not respond or react when she was told of her neighbor’s plans. Thereafter, the plaintiffs added a 230 square foot addition to their house.

The court’s decision that the plaintiffs’ enlargement of their residence did not terminate the easement was premised on two grounds. First, it concluded that the improvements made by the plaintiff were “insignificant” and that the original parties to the agreement creating the easement had not intended to “prevent an owner from maintaining, improving, or updating the large house as the need arose.” Second, the trial court found that the defendant, by her silence, had induced the plaintiffs to proceed with the renovations in derogation of their easement rights and was, therefore, estopped from enforcing the terms of the easement. In accordance with these findings, the trial court rendered judgment declaring the easement to be in full force, and enjoining the defendant from interfering with the plaintiffs’ use and enjoyment of the driveway.

“Although in most contexts the issue of intent is a factual question on which our scope of review is limited; see, e.g., Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 408, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987); the determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); Marion Road Assn. v. Harlow, 1 Conn. App. 329, 332, 472 A.2d 785 (1984).” Grady v. Schmitz, 16 Conn. App. 292, 295-96, 547 A.2d 563 (1988). When faced with a question not based on the credibility of witnesses regarding the construction of deeds, “the reviewing court does not give the customary deference to the trial court’s factual inferences.” Marion Road Assn. v. Harlow, supra. After reviewing the trial court’s findings and the express terms of easement in this case, we find that the trial court’s conclusion was erroneous.

“[A]n easement may be created which will terminate upon the happening of an event or contingency, or which maybe terminated on the occurrence, [or] breach ... of a condition . . . and the limitation or condition will ordinarily be enforced unless it is not sufficiently definite ... or is contrary to law or public policy.” 25 Am. Jur. 2d, Easements § 99; Harris v. Pease, 135 Conn. 535, 541, 66 A.2d 590 (1949). When the granting of an easement is conditioned on a particular event, the easement is automatically terminated when that event occurs. 25 Am. Jur. 2d, Easements §102.

In interpreting the terms of an easement, when the language is clear and unambiguous, the court must examine its express terms and not resort to extraneous circumstances or parol evidence. 25 Am. Jur. 2d, Easements § 23. “In determining the meaning and effect of the controverted language in the [written instrument], the inquiry must focus on the intention expressed in the [written instrument] and not on what intention existed in the minds of the parties. Lampson Lumber Co. v. Caporale, 140 Conn. 679, 682, 102 A.2d 875 (1954). The construction and legal effect of the express terms will not be varied by reason of inconvenience to the parties or unreasonableness of the terms.” Hatcho Corporation v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985); see also Moore v. Serafin, 163 Conn. 1, 10, 301 A.2d 238 (1972). “ ‘Contractual terms are to be given their ordinary meaning and when the intention conveyed is clear and unambiguous, there is no room for construction.’ ” Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984). “The words as written, moreover, must be accorded a fair and reasonable construction and their ‘common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.’ ” Albert Mendel & Son, Inc. v. Krough, 4 Conn. App. 117, 123, 492 A.2d 536 (1985).

The terms of the easement in this case are clear and provide that: “Said right shall cease, and terminate and be extinguished at any time when any building is erected on any part of the land now owned by the grantee in addition to the buildings now on said land, or when any building on said land is enlarged. ” (Emphasis added.) The trial court found the wording of the easement to be unambiguous, and that by the express terms of that agreement, the plaintiffs’ right to use the driveway would terminate when any building on the land was enlarged. It further found that the plaintiffs were aware of the terms conditioning the continued existence of the easement.

We conclude that it was error for the trial court to construe the unambiguous language of the easement. The words, “when any building on said land is enlarged,” are clear in meaning, and require no construction, addition or interpretation. The construction of a 230 square foot addition plainly constituted an enlargement. The trier cannot expand the clear meaning of the agreement by adding a condition that it be a “significant” enlargement. The meaning and effect of the words are to be determined not by what may have been intended by the parties, but the intent that was actually expressed. See Kelly v. Ivler, supra. According to the express terms of the deed, the easement terminated when the plaintiffs enlarged their home. The trial court’s conclusion to the contrary was erroneous.

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

In this opinion the other judges concurred.

       The easement states in pertinent part: “KNOW ALL MEN BY THESE PRESENTS: THAT I, CHARLES H. MEYER . . . herein referred to as the ‘Grantor’, for the consideration of One Dollar ($1.00), and other valuable consideration received to my full satisfaction of WILLIAM I. SPIE-GELBERG .... herein referred to as the ‘Grantee,’ do give, grant, bargain, sell and confirm unto the said WILLIAM I. SPIEGELBERG an easement to use, for ordinary purposes of ingress and egress by passenger automobiles and delivery wagons only, and to a reasonable extent, the existing driveway on land owned by the Grantor on Woodbine Road, directly to thei present buildings on the land owned by the Grantee adjoining the land of the Grantor, which driveway is shown, and marked ‘existing drive’, on the map recorded as Map No. 4880 in the Stamford Land Records; provided, however, that said right shall cease, terminate and be extinguished in the event that the Grantee or his heirs or assigns, shall fail to pay to the grantor or his heirs or assigns, one-half any amount expended by the grantor, his heirs or assigns for the upkeep, maintenance, repair or rebuilding of that part of said driveway which lies between Woodbine Road and the drive which branches off to the buildings on the land of the Grantor, within twenty (20) days after written request therefor is delivered or mailed tó the Grantee, his heirs or assigns or left at the main building now on the land owned by the Grantee or in the letterbox used in connection therewith; and provided, further, that said right shall cease, terminate and be extinguished at any time when any building is erected on any part of the land now owned by the Grantee in addition to the buildings now on said land, or when any building on said land is enlarged; and provided, further, that the Grantor shall not be required to keep up, maintain, repair or rebuild, nor have any obligation with respect to any portion of said driveway; and provided, further, that the Grantor, his heirs and assigns shall have the unlimited right to the use of said driveway for any purposes.”

       We cannot uphold the trial court’s decision based on its alternative holding that the defendant, by her silence, induced the plaintiffs to construct the addition to their property and was therefore, estopped from terminating the easement. “ ‘ “[l]t is the burden of the person claiming estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.” Pet Car Products, Inc. v. Barnett [150 Conn. 42, 53-54, 184 A.2d 797 (1962)]. Linahan v. Linahan, 131 Conn. 307, 327, 39 A.2d 895 [1944].’ Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 28-29, 392 A.2d 966 (1978).” Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987). Because the trial court expressly found in his corrected findings that the deed of conveyance specifically referred to the easement and the plaintiffs were aware of the terms of the easement when they purchased the property, the trial court erred in concluding that the requisite elements of estoppel had been met in this case.


author: Daly, J.

text:
    Roberta L. Main v. George E. Main
    (6689)
    Borden, Spallone and Daly, Js.

      Argued December 20, 1988
    decision released March 21, 1989

      Katherine M. Delisle, with whom, on the brief, was James E. Mattern, for the appellant (defendant).

      Shelley M. Weiss, for the appellee (plaintiff).
   Daly, J.

The defendant appeals from the judgment rendered in this dissolution of marriage action. He claims that the trial court erred (1) in permitting testimony concerning the plaintiffs self-serving declarations, (2) in permitting testimony from the plaintiffs psychologist, (3) in receiving posttrial evidence from the plaintiff, and (4) in making various financial orders. We find error in part.

The following facts are relevant to the resolution of this appeal. The parties were married on July 6,1963, and have one minor child who was born on August 13, 1971.

The plaintiff instituted this dissolution action on May 1,1986, claiming that the breakdown of the marriage was caused by the defendant’s physical and mental abuse of her. The defendant denied that claim, and alleged that the plaintiff’s involvement with a third party was the actual cause of the breakdown. The plaintiff responded that her relationship with the third party evolved after the breakdown of the marriage. The trial court found the testimony of the plaintiff and her witnesses more credible and found that both parties were at fault for the breakdown of the marriage.

At the time of their separation, the plaintiff took her clothing, personal possessions and approximately $10,000 that she had earned from a real estate commission. The defendant retained eight pieces of real estate, including the family residence, two joint bank accounts, a boat, and he collected the rents and mortgage payments on the rental properties. He also retained the proceeds from the sale of a coin collection, a second boat, and the cash value of his life insurance policy.

The plaintiff’s financial affidavit listed her weekly income as $1410, derived from real estate commissions, and the defendant’s financial affidavit listed his weekly income as $224, derived from unemployment compensation.

The trial court ordered, inter alia, that (1) the real estate be divided between the parties, (2) neither party receive alimony, (3) neither party receive counsel fees, (4) the defendant execute a mortgage note and deed to the plaintiff in the amount of $125,000 with 8 percent interest payable monthly over five years, and (5) the defendant have custody of the minor child, with reasonable rights of visitation to the plaintiff. The court ordered the plaintiff to pay the defendant $25 per week as support and to furnish medical insurance for the minor child. This appeal ensued.

I

The defendant’s first claim of error concerns the testimony of Virginia Hungerford, one of the plaintiff’s witnesses. The defendant objected on hearsay grounds to the following question that was posed to Hunger-ford: “Did [the plaintiff] ever state to you during the time you knew her about the condition of her marriage or the state of her marriage?” The trial court overruled the objection, and Hungerford answered the question. On appeal, the defendant claims that the trial court erred in admitting this testimony because it contained the plaintiff’s hearsay declarations.

We agree with the defendant that the trial court erred in its ruling. It is a fundamental rule of appellate procedure in the review of evidentiary rulings, however, that an appellant bears the burden of establishing the harmfulness of the erroneous ruling. Shelnitz v. Greenberg, 200 Conn. 58, 79, 509 A.2d 1023 (1986); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed.) § 60i, p. 385. The defendant has failed to sustain his burden. The plaintiff herself testified that her marriage was unhappy and that the defendant constantly criticized her. Hungerford’s testimony merely reiterated that of the plaintiff. Moreover, the trial court found that both parties, and not just the defendant, were at fault for the breakdown of the marriage. The ultimate question in determining the harmfulness of an error is whether the error is likely to affect the result. Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 677, 482 A.2d 91 (1984). On the basis of the foregoing, we do not think the error affected the result of the case.

II

The defendant’s next evidentiary claim of error concerns the testimony of Charles Doyle, a psychologist whom the plaintiff consulted subsequent to the commencement of this action. On direct examination, Doyle testified that the plaintiff was frightened by some of the things that had occurred during her marriage. When asked more specifically what the plaintiff was frightened of, the defendant objected, claiming that the question called for hearsay. The trial court overruled the objection.

A physician who is consulted for professional treatment or advice may testify as to statements made to him by the patient. Brown v. Blauvelt, 152 Conn. 272, 274, 205 A.2d 773 (1964). This exception to the hearsay rule does not apply, however, “where the physician is being consulted, not for the purposes of advice or treatment, but merely for the purpose of enabling him to give his opinion as a witness.” Id.

A review of Doyle’s testimony clearly indicates that he was the plaintiff’s treating psychologist for a period of six months and that he was consulted for the purpose of treating the plaintiff. There is nothing in the record to demonstrate that Doyle was retained with an eye toward the impending litigation. The trial court did not err in allowing this testimony.

The defendant further claims that the court erred in permitting Doyle to testify as to his opinion of the plaintiff’s credibility with respect to the allegations she raised in her therapy sessions. The record discloses that the defendant failed to object to this question. Accordingly, we decline to consider this evidentiary claim raised for the first time on appeal. Practice Book 4185.

III

The defendant next claims that the court erred in considering posttrial evidence submitted by the plaintiff in her posttrial brief. In order successfully to attack the trial court’s decision on this ground, however, the defendant must show that the record reasonably discloses that the court relied on matters not in evidence or not properly in evidence for the basis of its conclusion. Velsmid v. Nelson, 175 Conn. 221, 224, 397 A.2d 113 (1978); Castellani v. Criscuolo, 39 Conn. Sup. 485, 487, 466 A.2d 812 (1983). There is no error on this claim because the record does not disclose that the trial court relied on improper evidence.

IV

The defendant next challenges several financial orders made by the court. “ ‘As a preliminary matter, we note that a trial court has broad discretion in domestic relations cases. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Flynn v. Flynn, 7 Conn. App. 745, 746, 510 A.2d 1005 (1986). A reviewing court allows every reasonable presumption in favor of the correctness of the trial court’s ruling. Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981).’ Little v. Little, 14 Conn. App. 195, 196, 540 A.2d 102 (1988). The standard of review is whether the trial court abused its legal discretion. deCossy v. deCossy, 172 Conn. 202, 204, 374 A.2d 182 (1977). In determining whether the trial court abused its discretion, the ultimate issue is whether the court could reasonably conclude as it did. Fattibene v. Fattibene, 183 Conn. 433, 442, 441 A.2d 3 (1981).” Pasqua v. Pasqua, 16 Conn. App. 278, 279, 547 A.2d 556 (1988).

The defendant claims, inter alia, that the trial court abused its discretion in ordering the plaintiff to pay only $25 per week toward the support of their minor child. General Statutes § 46b-84 (b) provides: “In determining whether a child is in need of maintenance and, if in heed, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.”

“The amount of an award for the support of children incident to a divorce is a matter within the sound discretion of the court and will not be disturbed unless the discretion appears to have been abused. . . . An order for the support of minor children is not based solely on the needs of the children but takes into account what the parent can afford to pay. In consequence of this, a child support order may not accurately reflect what the children actually require but only what the parent can reasonably be expected to pay. ...” (Citations omitted.) Fowler v. Fowler, 156 Conn. 569, 572, 244 A.2d 375 (1968). The award of $25 per week is highly disproportionate to the plaintiff’s weekly earnings of $1410 and, accordingly, we conclude that this is one of those rare cases in which the trial court abused its broad discretion in making the order. See McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982). After a thorough review of the record, however, we cannot say that the trial court abused its discretion in making the remaining financial orders.

V

In her brief, the plaintiff has claimed that the defendant’s appeal is frivolous and that she is therefore entitled to receive attorney’s fees on the defense of this appeal. We decline to consider this issue because the plaintiff failed to raise this claim in a motion for sanctions pursuant to Practice Book § 2036. See Texaco, Inc. v. Golart, 206 Conn. 454, 463, 538 A.2d 1017 (1988) (where the court considered a motion for sanctions that had been filed, was presumably denied' and was later renewed at oral argument).

There is error in part, the judgment with respect to the amount of child support is set aside and the case is remanded for a new hearing limited to that issue.

In this opinion the other judges concurred.

       Hungerford’s answer to the question was as follows:
      “Just within the last several years. Maybe about four years ago, she said, you know, that she wasn’t happy. That she would go home and George would be there and tell her what the hell was she doing there. They didn’t need her. She said that she would go up in her room and spend most of the evening, when she did come home, in her bedroom. And that he criticized everything she did. That she never cooked. That she never did this, she never did that, which I know differently.”


text:
    State of Connecticut v. Jose Marino
    (6846)
    Borden, O’Connell and Stoughton, Js.
    Argued January 3
    decision released March 21, 1989

      John F. Kavanewsky, Jr., for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Mark Hurley, assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant appeals from a judgment of conviction rendered after a jury found him guilty of possession of narcotics with intent to sell, a violation of General Statutes § 21a-277 (a).

The sole claim made by the defendant in this appeal is that the trial court erred in denying his motion to suppress certain evidence seized without a warrant and a statement made by him. The defendant was arrested on June 22,1987, and the police seized a certain quantity of cocaine which the defendant subsequently moved to suppress. The police had neither an arrest warrant nor a search warrant.

A search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well delineated exceptions. State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). It is an established rule that a properly conducted warrantless search incident to a lawful arrest is not illegal as long as the arrest itself is valid. State v. Christian, 189 Conn. 35, 39, 454 A.2d 262 (1983).

The defendant claims that he was arrested before the police had probable cause to place him under arrest, that his arrest was invalid, and that use of any evidence obtained subsequent thereto should have been suppressed because it was not obtained as an incident to a lawful arrest.

At the hearing on the defendant’s motion to suppress, the court found the following facts. At approximately 10:30 a.m. on June 22, 1987, Joseph Lorenti, a Stamford police officer, saw a truck parked in the travel lane of a parking lot in such a way that it prevented other vehicles from leaving their parking spaces. Lorenti had been a police officer for seven and one-half years and had served for thirteen months as a narcotics agent on a statewide task force. He approached the truck and saw two males inside, one of whom was the defendant. The truck had Florida license plates and, as Lorenti spoke to the driver, the defendant got out and walked away. The driver, who did not have an operator’s license, identified himself as Alberto Fernandez; Lorenti was unable to obtain any information about an operator’s license from police headquarters. He told Fernandez to park the vehicle and not to drive it from the parking lot.

As Lorenti left the area, a person whose name he did not know but whom he had seen previously in the neighborhood called to him. This person told him that the people in the truck had been selling drugs for some time. Lorenti then notified another Stamford patrolman, Louis Gorliacci, that he was going to watch the truck. Gorliacci had received one day’s training in narcotics and had field experience including having made arrests. Lorenti and Gorliacci went to a roof that overlooked the parking lot, from which they observed two vehicles and one pedestrian approach the truck. They saw transactions take place when the vehicles and the pedestrian came close to the truck, after which the vehicles and the pedestrian left. They saw nothing transferred but based upon the fact that this was a high crime area where drug dealing had occurred, upon the information received from the person who spoke to Lorenti and upon their own observations, they suspected that they had seen drug transactions. Gorliacci noticed that after each of these contacts, the driver or the defendant would enter the cab of the truck and get out again. After a time, the truck left and the two police officers went to their vehicles to wait for it to return. Upon the truck’s return Gorliacci approached it, and the two occupants got out. Gorliacci told them to put their hands on the hood of his car, and the defendant did so but the driver did not. Gorliacci recognized the defendant, having seen him in the area frequently and having arrested him for narcotics violations. Lorenti arrived on the scene after Gorliacci. Both he and Gorliacci were watching the driver when Gorliacci saw the defendant reach into a pocket of his trousers. Gorliacci either pulled the defendant’s hand from the pocket or reached into the pocket himself, and a packet was removed from the defendant’s pocket that both officers believed, based on their experience and training, contained cocaine.

The court concluded that when Gorliacci approached the truck the police officers had a reasonably articulable suspicion that the defendant and the other man were engaged in illegal drug transactions. The court further concluded that, when the driver refused to comply with the request that he put his hands on the car, and when the defendant reached into his pocket, Gorliacci had probable cause to believe that the defendant was attempting to hide or destroy evidence of a narcotics transaction and that there were narcotics in the defendant’s pocket.

The court also found that Gorliacci had arrested the defendant, handcuffed him and taken him to his police vehicle, and had read him his Miranda rights. Gorliacci then asked where the drugs were, and the defendant told him that they were behind the seat in the cab of the truck. Gorliacci found a paper bag containing fifteen bags of cocaine in a hole in the door panel.

The court concluded that Gorliacci had not conducted any sort of intensive interrogation, that there was probable cause to believe that there was contraband in the truck, and that a search of the vehicle in conjunction with a lawful arrest was permissible. The court further found that after his arrest, spontaneously and not in response to any interrogation, the defendant said that they were dealing but were just small dealers and he asked for a break.

The court denied the motion to suppress. After noting that the major thrust of the defendant’s motion concerned the evidence found in his pocket and in the truck, the court denied the motion as to the statements, subject to any additional evidence concerning those statements that the defendant might want to submit at trial.

The defendant makes no additional claim as to his statements. As stated succinctly in his brief, the defendant’s claim is that (1) he was under arrest prior to the discovery of any evidence or the making of any statement, (2) the arrest was not supported by probable cause, and (3) the acquisition of the evidence sought to be suppressed was causally related to the unlawful arrest. He concedes that the police had a reasonable and articulable suspicion that he was involved in a crime when they accosted him in the parking lot. He claims that he was actually under arrest from the time Gorliacci ordered him to get out of the truck and to put his hands on the hood of Gorliacci’s car. He does not contest the conclusion of the trial court that Gorliacci had probable cause to arrest the defendant when the defendant reached into his pocket. The scope of the defendant’s claim is thus very narrow.

The police may momentarily detain a person for investigative purposes if the police have a reasonable and articulable suspicion that he has engaged in criminal activity. State v. Rodriguez, 11 Conn. App. 140, 144, 525 A.2d 1384 (1987). The trial court found, and the defendant concedes, that the police had such a suspicion when Gorliacci approached the defendant and the other man in the parking lot. This was a lawful investigatory stop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

A primary objective of a Terry stop is the preservation of the “status quo” for a short period of time to permit the investigation of suspected crime. State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985); State v. Bowden, 15 Conn. App. 539, 544, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988). Determination of the means reasonably necessary to maintain the “status quo” necessarily depends on examination of the circumstances of the particular governmental intrusion on the personal security of a suspect. State v. Braxton, supra; State v. Bowden, supra. The police officer who has articulable grounds to make such an investigatory stop must be permitted to make reasonable use of the resources at his disposal at the site of the investigatory stop. State v. Bowden, supra.

When Gorliacci approached the truck, the defendant and the driver got out. At that point, Lorenti had not yet arrived from the roof where he had been watching, and Gorliacci was alone with the two men. It was entirely reasonable for him to instruct the two men to place their hands on the hood of the car. The police officers suspected that the two men were engaged in the illegal sale of narcotics. It is by now common knowledge among police officers that sellers of narcotics are frequently armed. See State v. Amaral, 179 Conn. 239, 241, 425 A.2d 1293 (1979). It was merely an exercise of prudence on the part of the lone officer to request that the two men place their hands where he could see them.

The defendant argues that Gorliacci arrested him when he ordered him to get out of the truck or, if not then, when he ordered him to place his hands on the hood of the car. The first difficulty with this argument is that there is no finding that Gorliacci ordered the defendant to get out of the truck. The trial court found: “[T]he two occupants [of the truck] dismounted.” The defendant neither challenged this finding nor asked for articulation. We have already stated that the direction to the two men to put their hands on the hood of the car was not unreasonable under the circumstances. We hold that this did not amount to an arrest of the defendant.

The trial court found, and the defendant concedes, that when the defendant reached for something in his pocket the suspicion previously held by the police ripened into probable cause to believe that the defendant had narcotics in his possession. The police were then able to make a lawful arrest without a warrant and to make a contemporaneous search of the person of the defendant incidental to that arrest. State v. Guertin, 190 Conn. 440, 454, 461 A.2d 963 (1983). They were also permitted to search the truck. State v. Santiago, 17 Conn. 273, 277, 552 A.2d 438 (1989).

Our holding as to the time of the arrest is also dis-positive of the defendant’s claim that the statements he made to the police and the narcotics found in the truck should have been suppressed. The only claim as to those statements raised by the defendant is that they all flow from an invalid arrest made before the police had probable cause. We do observe, however, the defendant was a passenger who claimed no possessory interest in the truck. Because it does not clearly appear that he claimed either a possessory interest in the truck or a possessory interest in the cocaine seized from the truck and thus that he had a reasonable expectation of privacy, he is precluded from contesting the search of the truck. State v. Delarosa, 16 Conn. App. 18, 32, 547 A.2d 47 (1988).

The conclusions of the trial court are legally and logically correct and we find no error in the denial of the motion to suppress.

There is no error.

In this opinion the other judges concurred.

       Although the defendant alludes to both the federal and state constitutions, he does not offer a separate analysis of the Connecticut constitution as a basis for different treatment of federal and state claims. Consequently, we will abstain from undertaking such an analysis. See State v. Bowden, 15 Conn. App. 539, 543 n.2, 545 A.2d 591 (1988).

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


text:
    Edward J. Seperack et al. v. Effie Solaz
    (6581)
    Borden, Daly and Foti, Js.

      Submitted on briefs December 22, 1988
    decision released March 21, 1989

      Laurence V. Parnoff filed a brief for for the appellants (plaintiffs).

      Lawrence A. Ouellette, Jr., filed a brief for the appellee (defendant).
   Foti, J.

In this negligence action, stemming from an automobile accident, the plaintiffs appeal from the judgment rendered in their favor, after a jury trial, challenging the adequacy of the jury’s award of damages. The plaintiff claims the court erred (1) in giving a Secondino instruction to the jury, (2) in failing to admit certain medical reports into evidence, (3) in failing to instruct the jury, as the plaintiff requested, on the issue of permanency, and (4) in failing to set aside the verdict as inadequate. We find no error.

I

The plaintiff’s first claim is that the trial court erred in instructing the jury that it could draw an adverse inference from the fact that he failed to call as witnesses his treating physicians, whose reports had been submitted into evidence pursuant to General Statutes § 52-174 (b). We disagree.

The plaintiff’s complaint did not specify the exact nature of the injuries sustained as a result of the accident but only that he had suffered “permanent” and “serious” injuries. Prior to trial, the only related medical conditions disclosed by the plaintiff were an injury to his upper back and neck, headaches and memory loss. On August 24, 1987, the date the case was called for trial, the plaintiff disclosed that in addition to his neck and upper back injury, he was also claiming a related injury to his lower back. He claimed that he had been receiving treatment for a herniated disc in his lower back since May, 1986, and that surgery was required to cure this ailment.

During the trial, pursuant to General Statutes § 52-174 (b), the plaintiff introduced into evidence a number of documents relating to the injuries he sustained as a result of the accident, including certain Bridgeport Hospital records indicating that the plaintiff had complained of pain in his neck and right shoulder and the following reports prepared by the plaintiff’s treating physicians: Eugene Citrano’s report diagnosing the plaintiff’s injuries as “muscular and ligamentous strain and sprain of the neck and back”; David B. Brown’s report which referred only to injuries to the upper back and neck; K. N. Sena’s report, prepared more than fourteen months after the accident, which indicated that the plaintiff was suffering from mid lower back pain; and the report of Robert Russo, Jr., which noted “a minimal bulge of the annulus . . . atL5-Sl.”

The defendant presented evidence that Citrano, Brown, Sena and physician Laurence J. Guido were available and requested the court to give a Secondino charge. The defendant argued that the plaintiff had the burden of showing that the herniated disc in his lower back was caused by the accident, and that, consequently, the treating physicians should have been produced by the plaintiff to clear up the ambiguities in their respective reports.

In addition to giving a Secondino charge, the court read General Statutes § 52-174 (b) and (c) verbatim to the jury. The court instructed the jury that in considering whether it would be natural for the plaintiff to produce a witness, the jury also should consider General Statutes § 52-174 (b), which permits the plaintiff to introduce reports and bills of a treating physician without the necessity of producing the physician as a witness at trial. The court also instructed the jury that it should consider evidence of the plaintiff’s attempts to present these witnesses and the difficulties involved in procuring a doctor’s in-court appearance.

The plaintiff’s first challenge to this charge is that it was improper per se for the court to instruct the jury that it could draw an adverse inference from his failure to produce the treating physicians at trial because such a charge specifically negates the purpose, intent and rationale of General Statutes § 52-174 (b). We find this argument unpersuasive.

This court has implicitly affirmed the use of a Secondino charge as a proper vehicle for a defendant to challenge a plaintiff’s medical evidence albeit introduced pursuant to General Statutes § 52-174 (b). See Pulaski v. Ledwith, 5 Conn. App. 629, 632, 501 A.2d 396 (1985), cert. denied, 198 Conn. 803, 503 A.2d 1186 (1986); see also Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167, 477 A.2d 685 (1984). The inclusion of a Secondino charge in a case in which a plaintiff takes advantage of the liberal evidentiary provisions of General Statutes § 52-174 (b) does not, as the plaintiff asserts, negate the purpose of this provision, nor does the language of the statute preclude such a charge.

General Statutes § 52-174 (b) permits a party, in an action for personal injuries, to introduce as a business record a physician’s signed treatment report and bills. This statute serves the remedial purpose of relieving a party from the burden of establishing the evidentiary prerequisites for introducing a business record. See General Statutes § 52-180. The rationale for allowing self-authenticating documents from physicians in personal injury or wrongful death actions is to avoid trial delays due to the difficulty in scheduling doctors’ appearances; especially because in the majority of cases the physician’s testimony is consistent with his treatment report. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3,1977 Sess., pp. 689-90, testimony of Richard Bieder and Sen. Salvatore C. DePiano.

Furthermore, the language of this statute is permissive, and does not preclude the giving of a Secondino charge in a case in which a party utilizes General Statutes § 52-174 (b). Section (c) of the statute expressly provides: “This section shall not be construed as prohibiting either party or the court from calling the treating physician .... as a witness.” Thus, even though a party takes advantage of this evidentiary shortcut to the introduction of a physician’s report, he or opposing counsel remains at liberty to call the witness to explain or supplement a written report. When a party’s failure to produce a physician can be attributed to General Statutes § 52-174, that party can request a jury instruction explaining the statute and its purpose.

General Statutes § 52-174 is a rule of judicial economy and does not, by implication or statutory fiat, lend instant credibility to a doctor’s report. “Once in evidence, the [physician’s] report and the hospital records are subject to the same standards of credibility as any other evidence.” Pulaski v. Ledwith, supra, 632. “It is basic that the merit of each party’s presentation is to be evaluated not only in the light of the evidence he produces at trial but also in consideration of the evidence available to him that he would naturally be expected to produce if it were favorable to him. ‘It is an ancient maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.’ Secondino v. New Haven Gas Co., 147 Conn. 672, 674, 165 A.2d 598 (I960).” Pedersen v. Vahidy, 209 Conn. 510, 524-25, 552 A.2d 419 (1989). On the basis of the language of this statute and its purpose, we conclude that it is not improper per se to give a Secondino charge in a case in which a party has introduced physicians’ reports pursuant to General Statutes § 52-174 (b).

Having determined that General Statutes § 52-174 does not preclude the court from giving an adverse inference charge, we must decide whether the charge was appropriately given under the circumstances of this case. We conclude that the instruction was proper.

The Secondino rule is well established and permits a jury to draw the adverse inference that the failure of a party to produce a witness implies that that witness, if called, would have exposed facts unfavorable to the party’s cause. Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 460, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986); Secondino v. New Haven Gas Co., supra, 675. In order to draw this inference, the jury must first find (1) that the witness was available, and (2) that the witness was one the party would naturally produce. Grabowski v. Fruehauf Trailer Corporation, supra, 170; Secondino v. New Haven Gas Co., supra. “ ‘ “To charge a party on this rule, the party claiming the benefit of the rule must show he is entitled to it. . . (Citations omitted.) Grabowski v. Fruehauf Trailer Corporation, supra, citing Nichols v. Coppola Motors, Inc., 178 Conn. 335, 340-41, 422 A.2d 260 (1979).

The plaintiff does not contest the availability of the physicians but argues that there was no basis in the evidence for the court to give the adverse inference charge because the evidence demonstrated that the physicians, if called to testify, would have supported the plaintiff’s position. We presume that the plaintiff is challenging the second requirement under Secondino and arguing that he would not naturally produce the physicians because their testimony would merely have been repetitious of their treatment reports. The record in this case demonstrates that the trial court could reasonably have found that their testimony might have aided the jury in reaching its verdict, and would not have been merely cumulative.

Guido’s report indicated a diagnosis of a ruptured disc in the plaintiff’s lower back. The balance of the other medical evidence showed no indication of related lower back problems for approximately fifteen months of treatment after the accident. Russo’s x-ray report indicated only a minimal bulge, as opposed to a ruptured or herniated disc approximately two and one-half years after the accident. The defendant offered the testimony of Anthony Camarda, the defendant’s examining physician, that established that no doctor could, with a reasonable degree of medical certainty, diagnose and connect to the accident a ruptured disc without first acquiring further evidence or undertaking tests as to the condition’s being more than a “minimal bulge” and obtaining information as to whether the plaintiff ever had symptoms relating to the lower back during the first fifteen months after the accident. The physicians could have advised the jury as to whether there were any complaints of pain or injury to the lower back prior to the plaintiff’s first reporting it, fifteen months after the accident, and whether those medical reports admitted into evidence that merely referred to back pain specifically meant upper or lower back pain.

A Secondino charge merely gives rise to a “permissive inference and not to a mandatory presumption.” Grabowski v. Fruehauf Trailer Corporation, supra, 172. The trial court instructed the jury that it was for them to decide whether or not to draw the adverse inference, and in making that determination, explained that they should consider the fact that the plaintiff properly admitted the physicians’ records pursuant to General Statutes § 52-174 (b). The extent to which the physicians’ testimony may have been cumulative, is a factor for the jury to consider when determining whether to draw an adverse inference. Grabowski v. Fruehauf Trailer Corporation, supra, 172. We conclude that under the circumstances of this case the defendant was entitled to a Secondino charge because it was shown the physicians were available and, by virtue of their relationship to the plaintiff and the issues, could reasonably have been expected to have superior information concerning the case, which, if favorable, the plaintiff would naturally have produced.

II

The plaintiff next claims that the trial court erred in refusing to admit into evidence a medical report of one of the treating physicians, David B. Brown. After the plaintiff rested his case and the defendant began to present his, the plaintiff attempted to offer a second medical report prepared by Brown that had not been disclosed previously in response to the defendant’s pretrial discovery requests. The trial court disallowed this document pursuant to Practice Book § 231 on the ground that it was untimely. The plaintiff argues that he made a good faith attempt to comply with Practice Book § 228 but that he was unaware of that report prior to the time he attempted to introduce it. The plaintiff contends that he first became aware of the existence of the report through the defendant’s efforts in subpoenaing the file of another doctor that contained a copy of Brown’s report.

“When a party fails to comply with the requirements of Practice Book [§ 232], the trial court is authorized, pursuant to Practice Book § 231 (d) to prohibit the party from introducing designated matters into evidence.” Perry v. Hospital of St. Raphael, 17 Conn. App. 121, 123, 550 A.2d 645 (1988). The consequences of a party’s failure to comply with discovery requests should fall on that party. Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 508, 541 A.2d 893 (1988).

Our role as a reviewing court is to measure “the trial court’s action against the familiar standard that, in deciding whether to impose a sanction of exclusion . . . the trial court has wide discretion, to which great weight and every reasonable presumption of correctness should be afforded, and that the ultimate issue is whether the court could have reasonably reached its conclusion.” Kemp v. Ellington Purchasing Corp., 9 Conn. App. 400, 404, 519 A.2d 95 (1986); Caccavale v. Hospital of St. Raphael, supra, 507-508; Cronin v. Blaisdell, 12 Conn. App. 632, 634-35, 533 A.2d 884 (1987); Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 422-27, 513 A.2d 1235, cert. denied, 201 Conn. 811, 516 A.2d 887 (1986); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 517-19, 509 A.2d 552 (1986).

Applying these principles to the facts of this case, we conclude that the trial court did not abuse its broad discretion in excluding Brown’s medical report, which was not disclosed in compliance with the requirements of Practice Book § 232. The record reveals that Brown was one of the plaintiff’s treating physicians. In response to the defendant’s interrogatories, the plaintiff submitted, as evidence of special damages, a bill from Brown for $435. The plaintiff had in his possession and was permitted to introduce another letter from Brown dated May 16,1984, that discussed his diagnosis of the plaintiff’s injuries. The letter in question, which the plaintiff attempted to introduce, was addressed to Citrano and dated February 1, 1984. As Brown was one of the plaintiffs treating physicians and his witness, the plaintiff had the opportunity and duty to obtain whatever records Brown prepared that were related to his case. We find the principle adopted in Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (1984), appropriate here: “The rules of discovery are designed to make a ‘ “trial less of a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” ’ United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958).”

Ill

The plaintiffs third claim of error is that the trial court erred in refusing to instruct the jury, as the plaintiff had requested, that the plaintiffs disability would in all probability be permanent, and that the jury could consider his testimony on the issue of permanency as to his physical limitations.

This is not a case in which the trial court instructed the jury not to consider the permanency of the plaintiffs injury. Compare Niles v. Evitts, 16 Conn. App. 696, 698-99, 548 A.2d 1352 (1988). Rather, in this case, the court in its charge specifically addressed the issue of permanency. In its charge, the court reviewed the conflicting evidence presented by both parties and instructed the jury that the ultimate determination on whether the plaintiff was permanently injured was a question of fact for them to decide after weighing all the evidence.

“The standard of review of a jury instruction by a trial court is perfectly clear. We must be careful to examine the instruction in its entirety and not to isolate particular aspects for review. Rogers v. Delfino, 13 Conn. App. 725, 730, 539 A.2d 156 (1988). ‘ “The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170 (1954). . . .” ’ Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 240, 520 A.2d 1008 (1987).” Caccavale v. Hospital of St. Raphael, supra, 511.

“That the court did not adopt the plaintiff’s request verbatim does not afford a ground for reversal so long as the jury [was] adequately apprised of the relevant issues.” Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981). The court did not err in refusing to charge in the exact language requested by the plaintiff as to the permanence of any disability. We have reviewed the jury instruction as given and conclude that it was sufficiently correct in law, adapted to the issues and ample to guide the jury properly in its factual determination.

IY

The plaintiff’s final claim is that as a result of the trial court’s erroneous evidentiary rulings and charge to the jury, the jury’s award of damages was inadequate.

The complaint alleged that the plaintiff sustained a permanent injury to his back as a result of the automobile accident. The plaintiff also claimed damages for pain and suffering, lost wages, hospital and doctors’ bills, pharmaceutical supplies and damages to his car. The jury returned a verdict for the plaintiffs and awarded $500 to Maryann Seperack for loss of consortium and awarded $25,504.65 to the plaintiff on his negligence claim. Pursuant to Practice Book § 320, the plaintiff moved to set aside the verdict based on errors in the court’s evidentiary rulings, charge to the jury and the inadequacy of damages awarded by the jury. The trial court denied the motion.

The plaintiff’s challenge to the adequacy of the verdict is merely a wholesale attack on the trial and a repetition of his previous claims of error on appeal. We have reviewed these claims and found no errors in the trial court’s rulings and charge. We refuse to undertake a second review of these claims.

Because the plaintiff has not argued or provided this court with any other reason why the amount of damages awarded in this case “shocks the sense of justice” as to what is fair and reasonable, or that the jury was misguided in making its decision; Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327-28, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986); we conclude that the trial court did not abuse its discretion in denying the plaintiff’s motion to set aside the verdict.

There is no error.

In this opinion the other judges concurred.

       There are two plaintiffs to this action, Edward Seperack and his wife, Maryann Seperack, who sought damages for loss of consortium. Edward Seperack hereinafter will be referred to as the plaintiff.

       General Statutes § 52-174 (b) provides: “In all actions for the recovery of damages for personal injuries or death, pending on October 1,1977, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist and that the report and bill were made in the ordinary course of business.”

       In Secondino v. New Haven Gas Co., 147 Conn. 672, 674-76, 165 A.2d 598 (1960), our Supreme Court approved the rule permitting a negative inference to be drawn in a case in which a party fails to call a witness who was available to him and whom he would naturally be expected to produce.

       Practice Book § 231 provides in pertinent part: “If any party has failed to answer interrogatories or to answer them fairly . . . or has failed otherwise substantially to comply with any other discovery order . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following . . . (d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence.”

       Practice Book § 228 provides in pertinent part: “The party to whom the request is directed or his attorney shall file and serve a written response within thirty days after the filing of the notice required by Sec. 227 (b), unless:
      “(a) Counsel file with the court a written stipulation extending the time within which responses may be served; or
      “(b) Upon motion, the court allows a longer time . . . .”

       The relevant portion of the court’s instruction follows: “Now let’s talk about a few of the areas in question. You’ve heard and seen, or will see, the hospital report and the doctors’ reports. There were some findings as to the immediate injuries. The loss of consciousness, the fact that there was a hospitalization, that there were painful areas of the body reported, the various injuries that were immediately reported, or symptoms complained of at the time of the hospital treatment. You’ve heard the plaintiff describe his course of recovery. The fact that, at the present time, he describes various symptoms, which he indicates are still of his physical presence.
      “You’ve also heard testimony, or seen, or will be seeing reports, if you haven’t, concerning various opinions of doctors concerns the results of the accident. And of course, we also have the situation, which the court would make the observation, is obviously highly in dispute as to this disc, which has a swelling to it. And whether, first of all, it was the result of the accident in question. And secondly, the nature of its consequences as to its permanency, etc. And of course these are all facts that you’re going to have to determine, because depending on those facts, which you find proven, as to those injuries and consequences, which you find were connected or foreseeable consequences, of the accident, for all those you must come up with, what you believe to be a fair amount in money damages for those consequences.
      “The plaintiff, in this particular case, through his attorney, of course claims that he has a permanent injury, in the fact that he has this disc that is, at this point, minimally impinging, according to the testimony I heard at least, on some part of his spinal column. And of course it is his claim that the resulting pain, and of course the resulting lack of his ability to go about his normal activities, all are a result of this particular situation.
      “The defense, of course, in this particular issue, makes the claim and through Dr. Carmada presented some testimony that this was a matter that was not permanent, was of relatively little consequence and there is not to be much made of this particular injury. And of course also, that it is the other claim of the defendant is, that there is no clear chain of events to connect this particular injury to the incident in question.
      “So this is one of the very cutting edges of your function here, because you are the trier of facts and with the standard of knowing that it is the burden of the plaintiff to prove those claims, the plaintiff makes, if you believe, by a fair preponderance of the evidence, all, or some, or any of these claims, having found liability, then of course you must come up a fair, just and reasonable amount, in dollar amounts, for those injuries you find have been proven as to have been a consequence of this particular event.
      “Because I believe it was Dr. Russo indicated that he thought that this disc would never naturally change by itself. You may infer, if you wish, that the plaintiff is going to be suffering, by the symptoms he described, for the remainder of his life expectancy, which at this point is 37.69 years, or as a round figure, say 38 years. And of course you must, if you find that there is a connection between the incident in question and this particular symptom and it is, in your finding, permanent, after hearing both what Dr. Russo said and what Dr. Carmada said, who said, many of these things resolve of themselves, you then would, of course, award for that particular situation and its effect upon the lifestyle of the plaintiff during that period of time.”