author: Landau, J.

text:
    State of Connecticut v. Warren Patterson
    (10752)
    (10855)
    O’Connell, Lavery and Landau, Js.
    Argued December 1, 1994
    decision released May 16, 1995

      David M. Cohen, with whom, was Gregory J. Williams, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Carol Dreznick, assistant state’s attorney, for the appellee (state).
   Landau, J.

This matter is currently before us on remand from our Supreme Court. State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994). In this consolidated appeal, the defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b) and a judgment of revocation of probation. The defendant was also charged with possession of marijuana in violation of General Statutes § 21a-279 (c), but was acquitted of that charge. In State v. Patterson, 31 Conn. App. 278, 624 A.2d 1146 (1993), rev’d, 230 Conn. 385, 645 A.2d 535 (1994), we reversed both judgments of the trial court. The Supreme Court granted certification, reversed our judgment and remanded the case for our consideration of the defendant’s remaining claims. The defendant claims that the trial court improperly (1) sustained the state’s peremptory challenge of an African-American venireperson, (2) failed to suppress an inculpatory statement made by the defendant to the police, and (3) failed to follow certain procedural rules when sentencing the defendant.*

I

The defendant, who is African-American, first claims that the trial court improperly concluded that the state did not discriminatorily employ a peremptory challenge to exclude an African-American venireperson from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

The following facts are relevant to our analysis. The jury selection in this case occurred on October 3 and 4,1991. The trial judge, without objection from either party, chose not to be present during these proceedings. Counsel for the parties examined twenty-three venirepersons, from which six jurors and two alternates were chosen. Five venirepersons were excused by the trial court for cause, seven were excused by the defendant, and three by the state.

There were three African-American venirepersons in the panel. The state exercised peremptory challenges to excuse the first two African-American panel members questioned. On the state’s second peremptory challenge, which it used to excuse venireperson Barbara Dereff, the defendant made a Batson challenge. The trial judge reentered the courtroom and the defendant argued that the state’s two successive peremptory challenges to prospective African-American jurors and Dereff’s impartiality, demonstrated by her testimony, indicated a Batson violation. The trial judge asked the prosecutor whether she had neutral reasons for excusing Dereff. The prosecutor replied that “[bjased on one of the questions where asked if she makes up her mind, does she listen to other people — it was the impression that I got that she — once she makes up her mind, she makes up her mind and doesn’t listen to what anybody else has to say when she goes straight into the jury room.” The trial court then requested to hear the tape recording of the state’s questions and Dereff’s replies regarding the issue. After listening to the tape recording, the trial court ruled: ‘Tve listened to what the juror said and I agree with the state — that the state had a legitimate motive and reason for excusing this juror. It has nothing to do with the juror’s race, color or creed.” The defendant took an exception and the judge returned to his chambers.

“Batson established the guidelines for evaluating a criminal defendant’s claim that the state’s exercise of a peremptory challenge was based on purposeful racial discrimination.” State v. Holloway, 209 Conn. 636, 640, 553 A.2d 166, cert. denied, 490 U.S. 1071, 129 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); see State v. Gonzalez, 206 Conn. 391, 394-95, 538 A.2d 210 (1988). A defendant who alleges that he has been the victim of purposeful racial discrimination in the use of a peremptory challenge carries the ultimate burden of persuasion. Batson v. Kentucky, supra, 476 U.S. 94 n.18. “Once the defendant has established a prima facie case of purposeful racial discrimination, the burden shifts to the state to advance a neutral explanation for the venireperson’s removal. . . . The defendant is then afforded the opportunity to demonstrate that the state’s articulated reasons are insufficient or pretextual.” State v. Holloway, supra, 641. “Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of [the prosecutor’s] credibility . . . a trial court’s determination that there has or has not been intentional discrimination is entitled to appropriate deference upon review on appeal.” (Citation omitted; internal quotation marks omitted.) Id., quoting State v. Gonzalez, supra, 395. Therefore, we may overrule the trial court’s conclusion only if we determine that it was clearly erroneous.

In Holloway, our Supreme Court departed from Bat-son to the extent that it held that an accused does not have to first make out a prima facie case to be entitled to an explanation from the state. The court in Holloway stated that rather than deciding, based on the existence of a prima facie case, whether an accused is entitled to an explanation of the prosecutor’s use of peremptory challenges, “the better course to follow would be to hold a Batson hearing on the defendant’s request whenever the defendant is a member of a cognizable racial group and the prosecutor exercises peremptory challenges to remove members of the defendant’s race from the venire.” (Internal quotation marks omitted.) State v. Holloway, supra, 209 Conn. 646 n.4, quoting State v. Jones, 293 S.C. 54, 57-58, 358 S.E.2d 701 (1987).

“The ultimate decision as to whether the defendant has successfully demonstrated that the prosecution has used their peremptory challenges in a racially discriminatory manner rests with the trial court. Batson v. Kentucky, supra, [476 U.S.] 96-97. In deciding whether the defendant has made the requisite showing, or if the prosecution’s explanation is neutral or merely pretextual, the trial court should consider all relevant factors and circumstances. Id. A neutral explanation ‘means an explanation based on something other than the race of the juror. At this step in the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. ’ Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). If the prosecutor’s reason, however, is ‘without regard to the particular circumstances of the trial or the individual responses of the jurors, [it] may be found by the trial judge to be a pretext for racial discrimination.’ Id., 371-72; see also State v. Jones, 29 Conn. App. 304, 331-32, 615 A.2d 149 (1992). The factors that might be used to determine pretext have been discussed by our appellate courts. See State v. Smith, [222 Conn. 1, 6, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992)]; State v. Gonzalez, supra, [206 Conn. 391]; State v. Jones, supra, 29 Conn. App. 329 (Norcott, J., dissenting). ‘These include whether the prosecutor’s reasons are related to the case or are based on a group bias inapplicable to the prospective juror; whether the prosecutor questioned the juror, did so only perfunctorily, or asked questions not asked of other jurors so as to elicit a particular response; whether jurors of different races but similar characteristics were treated differently; and whether a disproportionate number of peremptory challenges were used to strike from the venire members of one particular race.’ State v. Jones, supra, 332; State v. Gonzalez, supra, 399. In Hernandez v. New York, supra, [352] the United States Supreme Court stated that ‘invidious discriminatory purpose may often be inferred from the totality of the relevant facts. . . .’As Justice Norcott noted in his dissent in State v. Jones, supra, 334, ‘the most basic element in any determination of whether there was purposeful discrimination is the voir dire proceedings themselves.’ See also Gomez v. United States, [490 U.S. 858, 874-75, 109 S. Ct. 2237, 104 L. Ed. 2d 923 (1989)].” State v. Patterson, supra, 31 Conn. App. 290-92.

In this case, the trial court determined that the state’s explanation of its peremptory challenge was facially valid. The court concluded that the explanation concerned the individual response of the juror and had “nothing to do with the juror’s race, color or creed.” The state’s justification was couched in terms of a “holdout” claim; that is, that Dereff would not listen to what any other juror had to say during deliberations. The defendant argues that Dereff subsequently testified, in response to his questioning, that she would, in fact, listen to other jurors. The state was certainly free to accept Dereff’s first statement and discount her testimony on the defendant’s rehabilitation. We conclude that the trial court’s evaluation of the prosecutor’s credibility and its finding that a neutral explanation existed for Dereff s removal was not clearly erroneous.

The defendant also claims that the trial court’s ruling was improper because the court ruled on the merits of the Batson challenge immediately after listening to the state’s explanation of its peremptory challenge. He asserts that it was incumbent upon the trial court to afford him an opportunity to demonstrate that the state’s explanation was insufficient or pretextual.

In State v. Patterson, supra, 230 Conn. 393, our Supreme Court concluded that “because the defendant can waive one of the primary rights protected by judicial supervision of the entire voir dire, namely, his equal protection right against discriminatory peremptory challenges, the defendant can also waive the right to judicial supervision over the voir dire process itself.” It follows that the defendant can waive part of the process intended to protect his equal protection right, that is, his opportunity to demonstrate that the state’s neutral explanation of its peremptory challenge is in fact pretextual.

The Patterson court also held that, in such circumstances, “waiver can be made by counsel, and it will ordinarily be inferred from the absence of an objection.” Id., 396. In this case, the record indicates that defense counsel took an exception to the trial court’s ruling that the defendant’s Batson claim was without merit. There is no indication, however, that defense counsel objected to the court’s failure to afford him an opportunity to respond to the state’s neutral explanation. Nor does the record reflect that defense counsel requested such an opportunity. We conclude, therefore, that the defendant waived his right to respond to the state’s explanation of its peremptory challenge.

II

The defendant next claims that the trial court improperly failed to suppress an inculpatory oral statement made by him during a custodial interrogation. He argues that the state failed to meet its burden of establishing that he waived his constitutional privilege against self-incrimination, as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Prior to trial, the defendant filed a motion to suppress the statement. A hearing was conducted, at which the state offered the testimony of Officer Teresa Czarnecki and Sergeant Richard Caldwell of the Stamford police department. The defendant was also questioned about the circumstances leading to his making the incriminating statement. “On appeal, in order to determine whether the defendant’s constitutional rights have been infringed, we review the record in its entirety and are not limited to the evidence before the trial court at the time the ruling admitting the statements was made.” State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986).

The following facts were elicited at the suppression hearing. The defendant was arrested on May 10,1991, after being the subject of surveillance by the Stamford police CO-PACT squad, a unit specializing in narcotics enforcement. Caldwell arrested the defendant and, at that time, informed the defendant of his constitutional rights. A search of the defendant and his car produced bags of marijuana, $1614 and a beeper. The defendant, who indicated that he understood his rights, was then transported to police headquarters for processing.

At the police station, Czarnecki read the provisions of a standard notification of rights form to the defendant, who had requested that the form be recited to him rather than reading it himself. Czarnecki read the form verbatim and, after each section, asked the defendant if he understood. The defendant responded each time that he did understand his rights. When Czarnecki finished reading, the defendant signed the form.

During the arrest and booking process, the defendant was coherent, displaying no abnormalities in his speech, gait or conduct. The officers detected no odor on his breath. He indicated no difficulty understanding the officer’s questions and was not handcuffed during the booking process.

After the defendant was read his rights, Caldwell inquired as to where he had obtained the marijuana. The defendant answered that he had bought a quarter pound in New York for $300 and had brought it back to Connecticut to sell. When asked about the $1614 found on his person, the defendant responded that he recently cashed a check at his credit union to pay rent and bills.

The defendant testified that he had been arrested on two prior occasions for marijuana possession and was on probation for possession with intent to sell. He had signed a similar notice of rights form previously and knew of his right not to incriminate himself. He claimed that Caldwell had not questioned him after he had been read his rights and that he had never stated that he obtained the marijuana in New York.

After the hearing, the trial court denied the motion to suppress, finding the testimony of the police officers “more credible than the uncorroborated denial by the accused.”

On appeal, the defendant asserts that the inculpatory statement was the result of a custodial interrogation; that is, his statement was made when he was in police custody and it was in response to questioning that was reasonably likely to elicit an incriminating response. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). He does not claim, however, that he received inadequate constitutional warnings from the officers. He argues instead that the state failed to prove by a preponderance of the evidence that he knowingly and intelligently waived his right to silence by his course of conduct.

“ Tn order to show that the defendant waived his privilege against self-incrimination, the state must prove by a preponderance of the evidence that he knowingly and intelligently waived his constitutional right to remain silent. State v. Alfonso, 195 Conn. 624, 628, 490 A.2d 75 (1985); State v. Perry, 195 Conn. 505, 516 n.8, 488 A.2d 1256 (1985).’ State v. Aversa, 197 Conn. 685, 695, 501 A.2d 370 (1985); see Miranda v. Arizona, supra [384 U.S. 436]. ‘The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.’ North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); State v. Frazier, 185 Conn. 211, 226, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). ‘[T]he question of waiver must be determined on “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464 [58 S. Ct. 1019, 82 L. Ed. 1461 (1938)].’ North Carolina v. Butler, supra, 374-75. The issue of waiver is factual, ‘but our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence. Culombe v. Connecticut, 367 U.S. 568, 605, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).’ State v. Frazier, supra, 219.

“Whether the defendant has ‘knowingly and intelligently waived’ his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. See Tague v. Louisiana, 444 U.S. 469, 469-70, 100 S. Ct. 652, 62 L. Ed. 2d 622 (1980); Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 61 L. Ed. 2d 197, reh. denied, 444 U.S. 887, 100 S. Ct. 186, 62 L. Ed. 2d 121 (1979); see generally 1 LaFave & Israel, Criminal Procedure (1984) § 6.9 (b). Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings . . . his level of intelligence, including his IQ . . . his age ... his level of education ... his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication ... his emotional state . . . and the existence of any mental disease, disorder or retardation.” (Citations omitted.) State v. Toste, supra, 198 Conn. 579-81.

Reviewing the record in this case in light of those factors, we find that the state has met its burden of showing that the defendant had the capacity to understand the meaning of his constitutional rights. The defendant is an adult and, having been arrested several times previously, was familiar with police procedures. He had no difficulty communicating with the officers and indicated on multiple occasions that he understood his rights. Although the state offered testimony indicating that the defendant could not read the notification of rights form read to him by Czarnecki, there was no testimony that would cast doubt on the defendant’s ability to understand the meaning of the Miranda warnings. There was no evidence that the defendant was intoxicated at the time he made the incriminating statements; in fact, the testimony established that the defendant was not intoxicated. There was also no evidence that the defendant’s emotional state impaired his ability to understand his rights. In fact, on appeal, the defendant does not contest the fact that he had the ability to understand and act on his constitutional rights.

“ ‘Waiver is not conclusively established by demonstrating that Miranda warnings were given and understood. State v. Wilson, [183 Conn. 280, 284, 439 A.2d 330 (1981)]; see United States ex rel. Abubake v. Redman, 521 F. Sup. 963, 975 (D. Del. 1981). . . .’ State v. Aversa, supra, [197 Conn.] 695, quoting State v. Harris, [188 Conn. 574, 579-80, 452 A.2d 634, cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1982)]. ‘In the absence of an express waiver, the state bears the heavy burden of demonstrating, as a matter of fact, that “waiver can be clearly inferred from the actions and words of the person interrogated.” North Carolina v. Butler, supra, [441 U.S.] 373.’ State v. Harris, supra, 580.” State v. Toste, supra, 198 Conn. 582.

A review of the record in this case reveals that there was substantial evidence that the defendant, through his actions and words, waived his right to remain silent. After having been fully apprised of his rights, the defendant was asked where he obtained the marijuana and the $1614. The evidence established that he was not coerced into responding; the officers made no promises or threats. The defendant was not handcuffed at the time, nor was he under the influence of any drug or emotional strain. His responses to Caldwell’s questions were forthright and detailed. Because he was admittedly familiar with police procedure, the defendant may be presumed to know the consequences of responding to the officers after he was advised of his Miranda rights. “[T]he [Miranda] warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as an act of free will.” (Internal quotation marks omitted.) Ahmad v. Redmand, 782 F.2d 409, 413 (3d Cir. 1986). The defendant “never expressed any desire to remain silent or that the officers stop asking him questions.” State v. Aversa, supra, 197 Conn. 696. “ ‘Under these circumstances, the defendant’s expressed willingness to speak constituted an explicit affirmative act evidencing waiver . . . .’” State v. Toste, supra, 198 Conn. 583, quoting State v. Harris, supra, 188 Conn. 580. We therefore conclude that the trial court properly admitted the defendant’s inculpatory statement.

Ill

In his last claim, the defendant argues that the trial court improperly failed to follow certain procedural rules when sentencing him for his conviction pursuant to General Statutes § 21a-277 (b). The defendant asserts that the trial court improperly sentenced him in that it failed (1) to order and have available a presentence investigation (PSI) in violation of Practice Book § 910, (2) to afford him an opportunity to be heard or to present evidence in violation of Practice Book § 919 (l), (3) to allow him to make a personal statement or to present mitigating evidence in violation of Practice Book § 919 (3), (4) to announce a reason for the sentence in violation of Practice Book § 919 (6), (5) to allow the state an opportunity to review its files so as to comply with its obligation to disclose to the court information favorable to the defendant as required by Practice Book § 921,* and (6) to provide the defendant’s counsel an opportunity to review medical reports and records or to supply supplemental documentation.

The state asserts that the defendant did not raise these claims before the trial court and that, therefore, the claims are not reviewable on appeal. See Practice Book § 4185. In addition, the state argues that the defendant does not seek review pursuant to Evans-Golding or the plain error doctrine.

As to his first claim, regarding the absence of a PSI, the defendant asserts in his reply brief that the claim was preserved when he filed a motion to vacate the sentence on October 15, 1991. While not ruling on the validity of this assertion, we will assume that the defendant’s first claim is preserved. The gravamen of the defendant’s argument is that, pursuant to Practice Book § 910, a PSI is mandatory for all noncapital felonies.

The following facts provide a context for our analysis of this claim. Immediately following the verdict, the trial court excused the jury and stated its intention to impose a sentence at that time. The defendant’s counsel made an oral motion for a one week continuance “for the defendant to get certain affairs in order” and in order “to file motions.” Shortly after the court denied this motion, counsel reiterated his request asserting, “I’m going to ask again for a short continuance. If not a week, Your Honor, then a day or two so the defendant can get his life in order prior to being incarcerated.” The trial court, which did not address this second request, thereafter sentenced the defendant for his violation of § 21a-277 (b).

In sentencing the defendant, the trial court did not comply with the requirements of Practice Book § 910. That section, which provides in part that “the judicial authority shall order a presentence investigation, or the supplementation of any existing presentence investigation report,” required the trial court to order a PSI. As with similar language in other sections of the Practice Book, this requirement was intended to establish a procedural rule that is mandatory and not directory. See State v. Williams, 205 Conn. 456, 477, 534 A.2d 230 (1987).

The defendant asserts that the absence of a PSI in this case violated his right to due process as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Because the sentencing process is a critical stage of a criminal trial, it must satisfy the requirements of the due process clause. See Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977); Carter v. Illinois, 329 U.S. 173, 178, 67 S. Ct. 216, 91 L. Ed. 172 (1946); Consiglio v. Warden, 153 Conn. 673, 676, 220 A.2d 269 (1966). “Although a criminal defendant is entitled to due process of law at sentencing . . . the range of due process rights in sentencing procedures is not as extensive as that at trial. Williams v. New York, 337 U.S. 241, 246-47, 69 S. Ct. 1079, 93 L. Ed. 1337, reh. denied, 337 U.S. 961, 69 S. Ct. 1529, 93 L. Ed. 1760 (1949); United States v. Adams, 694 F.2d 200, 202-203 (9th Cir. 1982) [cert. denied, 462 U.S. 1118, 103 S. Ct. 3085, 77 L. Ed. 2d 1347 (1983)].” State v. Thompson, 197 Conn. 67, 77, 495 A.2d 1054 (1985).

“ ‘Once it is determined that due process applies, the question remains what process is due. It has been said so often ... as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. . . . Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.’ Morrissey v. Brewer, 408 U.S. 471, 481, [92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)].” Gardner v. Florida, supra, 430 U.S. 358 n.9.

We must determine, then, whether the failure to afford a PSI, when one is due according to Practice Book § 910, implicates the due process clause. Several considerations convince us that it does. First, “[a] system of individualized sentencing cannot be fairly and effectively employed unless the sentencing decision is informed as well as structured. The principal method for supplying information to the court is the [PSI] . . . .” A. Spinella, Connecticut Criminal Procedure (1985), p. 749. “ ‘PSIs result from a presentence inquiry into the circumstances of the offenses, the attitude of the victim or his immediate family, the criminal record, social history and present condition of the defendant, and, if desirable, the mental and physical state of the defendant. General Statutes § 54-91a (formerly § 54-109); Practice Book § 911. “Their sole purpose is to enable the court, within the limits fixed by statute, to impose an appropriate penalty fitting the offender as well as the crime.” State v. Gullette, 3 Conn. Cir. 153, 167, 209 A.2d 529 (1964).’ ” State v. Cofield, 22 Conn. App. 10, 21-22, 576 A.2d 156 (1990), rev’d on other grounds, 220 Conn. 38, 595 A.2d 1349 (1991), quoting Steadwell v. Warden, 186 Conn. 153, 158-59, 439 A.2d 1078 (1982).

It has been determined that the PSI does in fact have a significant effect on sentencing decisions. In a 1980 survey of eighty-three Connecticut trial court judges, 91 percent responded “always” or “usually” when asked how often PSI reports affected their sentencing decisions. A. Spinella, supra, p. 750 n.18, citing A. Drude, Evaluation of Connecticut Judicial Department Office of Adult Probation’s Presentence Investigation Report Project (1981), p. 22.

Among the procedural safeguards to which a criminal defendant is entitled at sentencing hearings is the right to counsel. See State v. Thompson, supra, 197 Conn. 77; Consiglio v. Warden, supra, 153 Conn. 676. This is based in part on the further requirement that a criminal defendant may not be sentenced on the basis of improper factors or erroneous information. See United States v. Lemon, 723 F.2d 922, 933 (D.C. Cir. 1983); State v. Thompson, supra, 77. It is presumed that counsel will be able to ascertain the reliability of and comment on the information relied on by the trial court in meting out a punishment. As stated previously, the principal method of furnishing information to the trial court for the purpose of sentencing is the PSI. For the right to counsel to have meaning at this stage, then, the PSI must be a critical aspect of the sentencing process. For these reasons, we conclude that the PSI is a procedural safeguard, the absence of which undermines a defendant’s right to due process. Because in this case a PSI was never ordered, the defendant’s right to due process was violated. This conclusion, however, does not end our inquiry. We must next consider whether the violation can be considered harmless.

“ ‘[Bjefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Pittman, 209 Conn. 596, 608-609, 553 A.2d 155 (1989); State v. Plourde, 208 Conn. 455, 469, 545 A.2d 1071 (1988); State v. Green, 207 Conn. 1, 9, 540 A.2d 659 (1988). The state bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. State v. Colton, 227 Conn. 231, 253-54, 630 A.2d 577 (1993). That determination must be made in light of the entire record. See State v. Francis, 228 Conn. 118, 125, 635 A.2d 762 (1993).” State v. Daugaard, 231 Conn. 195, 212, 647 A.2d 342 (1994).

In light of the paucity of testimony or other evidence before the trial court when it sentenced the defendant, we find it impossible to say that the absence of a PSI or a supplemental PSI was harmless beyond a reasonable doubt.

The judgment of conviction of possession of marijuana with intent to sell is reversed as to the sentence only and the case is remanded for resentencing in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       We do not address the following claims inasmuch as they have been decided by this court. The trial court improperly (1) failed to set aside legally inconsistent verdicts; State v. Patterson, supra, 31 Conn. App. 305; (2) failed to suppress the fruits of a search of the defendant’s vehicle; id., 310; and (3) failed to follow certain procedural rules in revoking the defendant’s outstanding probation. Id., 312. As to the last claim, the Supreme Court noted that this court’s remand for a new probation revocation hearing was not within its certified questions and, therefore, was not directly affected by its disposition of the appeal. State v. Patterson, supra, 230 Conn. 387 n.2.

       The defendant states that his claim is based on Batson because the contours of the state constitutional right have not yet been delineated. Nonetheless, he asserts that a greater burden of justification for its peremptory challenges is placed on the state by the fair cross-section requirement of article first, §§ 1 and 8, of the Connecticut constitution, in that the defendant need not show that the prosecutor’s exclusionary practice has been intentional. See State v. Castonguay, 194 Conn. 416, 421, 481 A.2d 56 (1984). Thus, he claims that, “if the prosecutor’s conduct has run afoul of the Bat-son standards, a fortiori the defendant’s rights to a fair cross-section jury panel under article first, §§ 1 and 8, have been infringed.” Because the defendant makes this claim without adequate analysis under the state constitution; see State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992) (analysis should include examination of [1] text of constitutional provisions, [2] state case law interpreting provisions, [3] federal precedent, [4] precedent of other jurisdictions, [5] historical factors, and [6] economic or sociological considerations); and because he fails to give any reasoned explanation of the logic behind his position, we decline to review the defendant’s state constitutional contention. See State v. Ephraim, 28 Conn. App. 306, 309 n.4, 610 A.2d 1320, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992).

       The relevant colloquy between the prosecutor and Dereff was as follows:
      “Q. If you went into the jury deliberation room and when you walk in, each of you have an opinion as to the evidence in the case. You take a vote and it’s five to one. You’re that one holdout juror. Are you the type of person who wants to hear what everybody has to say, and if you feel that you’ve missed something, you would be able to listen to what other people say and change an opinion, or are you the type of person that once you reach a conclusion, you don’t want to hear anything and that’s it?
      “A. Once I reach my conclusion?
      “Q. Right.
      “A. Yes.
      “Q. Once you reach your conclusion, you don’t want to hear what anybody else has to say?
      “A. No.
      “Q. No?
      “A. I don’t want to hear what nobody else has to say because I have to decide for myself.”
      The trial judge did not listen to the defendant’s subsequent questions to Dereff on the same topic, which revealed the following:
      “Q. Ms. Dereff, just on this last point .... When you reach a conclusion, you’re going to have reached a conclusion; am I correct?
      “A. Right.
      “Q. Are you going to listen to what the other jurors have to say?
      “A. Sure, I would listen.
      “Q. Yes. And you’ll discuss it; you’ll have an open mind?
      “A. Sure. I will listen to what they have to say.”

       On appeal, much of the defendant’s argument is based on factual allegations concerning the race of members of the venire, jury, witnesses and others. He contends that one of the other venirepersons excused by the state was African-American; that there were a total of three African-Americans questioned; that there were three Caucasian jurors who responded similarly to Dereff; that the judge, prosecutor, and all seven state witnesses were Caucasian; and that all three of the principal defense witnesses were African-American. These facts are unsupported by the record in that they cannot be discerned from the audiotape of the proceedings and the trial court, who was not present during the jury selection, was not in a position to make such findings.
      These facts, however, tend to support the defendant’s argument that the state’s proffered neutral explanation was in fact pretextual. The trial court determined that the state’s explanation was facially valid. Because the defendant did not then argue at the Batson hearing that the explanation was pretextual, the court did not rule on that issue. Having determined that the trial court’s threshold conclusion of facial validity was not clearly erroneous, we need not review the defendant’s claim of pretext, which is raised for the first time on appeal. Consequently, whether the facts on which the defendant relies for his pretext argument are supported by the record is irrelevant to our analysis.

       At the suppression hearing, the defendant denied that he had been questioned by Caldwell after having been read his rights. He also denied having made the inculpatory statement. On appeal, however, he admits that “[t]he statement clearly stems from custodial interrogation . . . .”

       Practice Book § 910 (a) provides: “If the defendant is convicted of a crime other than a capital felony, the punishment for which may include imprisonment for more than one year, the judicial authority shall order a presentence investigation, or the supplementation of any existing presentence investigation report. The judicial authority may, in his or her discretion, order a presentence investigation for a defendant convicted of any crime or offense.
      “A defendant who is convicted of a crime and is not eligible for sentence review pursuant to Gen. Stat., § 51-195 may, with the consent of the sentencing judge and the prosecuting authority, waive the presentence investigation.”

       Practice Book § 919 (1) provides that, during a sentencing hearing, “[t]he judicial authority shall afford the parties an opportunity to be heard and, in his discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report, the alternate incarceration assessment report or any other document relied upon by the judicial authority in imposing sentence.”

       Practice Book § 919 (3) provides: “The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his own behalf and to present any information in mitigation of the sentence.”

       Practice Book § 919 (6) provides: “In cases where sentence review is available, the judicial authority shall state on the record, in the presence of the defendant, the reasons for the sentence imposed.”

       Practice Book § 921 provides: “The prosecuting authority shall inform the judicial authority of the offenses for which the defendant is to be sentenced and shall give a brief summation of the facts relevant to each offense. He shall disclose to the judicial authority any information in his files that is favorable to the defendant and relevant to sentencing. He shall state the basis for any recommendation which he chooses to make as to the appropriate sentence.”

       See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       Because we find this argument dispositive, we do not address the defendant’s remaining elaims.

       The state suggests that, because the defendant was on probation at the time of sentencing, having been convicted of the same offense one year before, a PSI was not necessary. The state urges this court to amend the mandatory PSI requirement of Practice Book § 910 by interpretation to conform with the provisions of General Statutes § 54-91a. Section 54-91a requires a PSI if the defendant has never been convicted or has had no conviction during the previous five years. The state mistakenly suggests that the timing of the PSI is somehow a substantive right, which the judiciary may not “enlarge, abridge or modify” under General Statutes § 51-14 (a). Plainly, however, the frequency of use of a PSI in court proceedings is a matter of practice and procedure over which the judiciary has plenary authority. See Steadwell v. Warden, 186 Conn. 153, 162-63, 439 A.2d 1078 (1982).

       “Due process claims under the federal and state constitutions can be treated together because they impose similar constitutional limitations. Keogh v. Bridgeport, 187 Conn. 53, 59-60, 444 A.2d 225 (1982). The defendant offers no argument for separate treatment of his state constitutional claim. Accordingly, we will consider only his federal constitutional claim. State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988).” State v. Flanders, 214 Conn. 493, 500 n.4, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990).

       This case does not present a situation “where the constitutional violation must be deemed harmful under all circumstances or where it is of such a nature that ascertainment of its harmfulness is impossible or so difficult as not to warrant the endeavor. Such cases are rare exceptions to ‘the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).” State v. Mebane, 204 Conn. 585, 604-605, 529 A.2d 680 (1987) (Shea, J., concurring), cert. denied, 484 U.S. 1046, 108 S. Ct. 784, 98 L. Ed. 2d 870 (1988).


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Edmond G. Gioielli, Jr. v. Mallard Cove Condominium Association, Inc.
    (13719)
    Dupont, C. J., and O’Connell and Hennessy, Js.
    Submitted on briefs March 17
    decision released May 16, 1995

      Frank C. White, Jr., filed a brief for the appellant (defendant).

      Robert L. Curzan filed a brief for the appellee (plaintiff).
   Dupont, C. J.

The defendant appeals, after a trial to the court, from a judgment for the plaintiff, granting him an easement by prescription and enjoining the defendant’s interference with that easement.

The defendant claims that the plaintiff did not sustain his burden of proof and that the trial court improperly (1) granted a permanent injunction when the plaintiff had no prescriptive easement, (2) found that any additional use of the right-of-way at issue after 1986 was not an overuse of any previously acquired right, and (3) excluded from evidence an aerial photograph of the property. We affirm the decision of the trial court.

When the factual basis of a trial court decision is challenged, our scope of review is limited to a determination of whether the facts set out in the memorandum of decision are supported by the evidence, or whether, in light of the evidence and pleadings in the whole record, those facts are clearly erroneous. Powers v. Grenier Construction, Inc., 10 Conn. App. 556, 558, 524 A.2d 667 (1987). The elements of prescriptive use are questions of fact for the trial court and should not be disturbed absent a finding, upon review, that the facts were legally and logically inconsistent with the subordinate facts. Wad Realty, Inc. v. Licamele, 1 Conn. App. 371, 372, 472 A.2d 352 (1984). The defendant’s claims that the plaintiff did not sustain his burden of proof and that the court should have found an overuse of the right-of-way are attacks on the factual findings of the court from which the court concluded that the plaintiff had established an easement by prescription. We review those claims, therefore, against the background of the procedural facts of the appeal and the facts that the court found or could have found reasonably from the testimony and evidence.

The plaintiff filed suit against the defendant because the defendant blocked the plaintiffs access to a portion of a private road known as Carrier Road. The plaintiff claimed that he had acquired a right-of-way over Carrier Road by prescriptive easement. The defendant condominium association is the owner and possessor of a parcel of land that includes Carrier Road. Carrier Road borders the plaintiffs tract of land on the west and the north. Approval for the construction of the Mallard Cove condominium complex was granted on May 23, 1986.

The plaintiff is the owner and possessor of a certain parcel of land known as 27-29 East High Street in the town of East Hampton. The East High Street property is a commercial building that was once partially used as a restaurant, but since 1952 has been used by the plaintiff and his immediate predecessor in title, his father, for a dry cleaning business and a video store. In 1986, the plaintiff improved 27-29 East High Street by adding a second floor. The plaintiff and his father have owned and exercised dominion over this property since 1952. The plaintiff received the property from his father in 1985.

The plaintiffs property also includes a triangular parcel of land acquired in 1952 by the plaintiffs father from the Carrier family by quitclaim deed. This parcel is bound on the west by Carrier Road. Its other boundaries are 27-29 East High Street and Route 66, a public highway that passes the plaintiff’s land on the south side. We will refer to both of these parcels as the plaintiff’s property. The portion of Carrier Road bordering the plaintiffs property and leading to Route 66 is the portion of land over which the plaintiff claims to have acquired a prescriptive easement.

In the 1930s and 1940s, the public frequently used Carrier Road for, among other things, access to a casino, a skating rink, and a nearby lake. The public use of Carrier Road declined through the 1940s and 1950s and by the mid 1960s, there was little public use. Previously, there were houses and an automobile dealership on Carrier Road. The residents of those houses and the automobile dealer made frequent use of Carrier Road. Carrier Road has at all times been a private road. There was testimony that both the town and the automobile dealership had plowed the road.

When the plaintiffs father purchased the property in 1952, there was a discernible driveway between his property and Carrier Road. At present, there is a paved driveway. The plaintiff testified that he paved the driveway, but he did not testify as to when.

Since 1952 and until the commencement of this action, the plaintiff and his father openly used the driveway and its access to Carrier Road for the conduct of their businesses. The plaintiff testified that his father began using the road because it was used by the public. The driveway and Carrier Road were also used by customers and by service and delivery people for both ingress and egress to 27-29 East High Street. The trial court found that the second story addition to 27-29 East High Street did not cause a noticeable increase in the use of the driveway and Carrier Road for ingress and egress to the premises, even though the video store has a drop box in the back of the building. The plaintiff testified that a maximum of ten to twelve cars per day use the driveway for access to Carrier Road.

The driveway that extends from the plaintiffs premises to Carrier Road is approximately twenty feet wide. Through the years, it has had its area of abutment with Carrier Road paved by both the town and others. Carrier Road is slightly elevated over the plaintiffs driveway. The driveway is not fused with Carrier Road.

In February, 1986, when the plaintiff filed an application with the East Hampton zoning commission for site plan approval to add a second floor to the premises, the driveway was noted on the zoning records. The plaintiffs application, introduced into evidence during the trial as a public document, included a map that distinctly outlined the driveway and its access to Carrier Road as well as the triangular piece of land bordering Carrier Road, where the plaintiff represented that there were four to five parking spaces for his customers. The plaintiffs application was approved in March, 1986.

In October, 1986, the defendant’s predecessor in title filed a declaration for the purpose of creating the Mallard Cove Condominium Complex. The declaration was recorded in the East Hampton land records on November 6,1986, and was also introduced into evidence during the trial as a public document. The real property described in the declaration included the private roadway known as Carrier Road. The declaration included several surveys and attachments. One survey lists easements and has the notation “Rights to use private drive for egress to East High Street in favor of Gioielli.” The record does not indicate who made that notation on the document. East High Street, also known as Route 66, is the roadway that runs in front of the plaintiff’s premises.

Neither the plaintiff nor his predecessor in title ever inquired or sought permission to use Carrier Road, nor was permission ever granted by anyone to the plaintiff to use this roadway for access to the rear of the plaintiff’s property. The plaintiff testified that he had once been approached by a local land developer about the plaintiff’s purchasing a right-of-way. The plaintiff declined the offer, believing that he and his father had used Carrier Road for so long that he did not need one.

In 1992, the defendant attempted to block the plaintiff’s driveway, and consequently the plaintiff’s access to Carrier Road, by planting trees on Carrier Road. Prior to the defendants’ actions in 1992, Carrier Road was never blocked and the plaintiff was never denied access to Carrier Road. The defendant attempted to break up the pavement at the end of the driveway with a jackhammer to plant the trees. The plaintiff’s father called the police. The plaintiff immediately obtained an injunction against the defendant and, thereafter, brought this action. The plaintiff testified that for a brief time after he had told the defendant not to break up the driveway, the defendant placed sawhorses in front of the driveway to prevent access to and from the plaintiff’s premises via Carrier Road. The plaintiff removed the sawhorses and eventually the defendant stopped placing them there.

At trial, after the conclusion of the plaintiff’s evidence, the defendant made a motion to dismiss for failure to make a prima facie case. The court denied the motion. The defendant thereafter did not produce any of its own evidence, although it had tried unsuccessfully to introduce an aerial photograph of the plaintiffs premises during the cross-examination of the plaintiff.

The trial court found that the plaintiffs use of the portion of Carrier Road abutting the plaintiffs driveway was open, visible, and continuous since 1952, and used under a claim of right to the extent that it put the owner of the fee to Carrier Road on notice of the distinct and adverse use being made of this southern portion of Carrier Road by the plaintiff and his predecessors in title. The trial court also found that there is a discernible, regularly used route of travel followed by the plaintiff, its customers, and others, on the portion of Carrier Road leading to the plaintiff’s driveway, for the distinct purpose of access to the plaintiff’s property. The court also found that anyone traveling on Carrier Road could easily distinguish the driveway entrance to the plaintiff’s property as a distinct and separate use of that portion of Carrier Road.

In accordance with these findings, the court concluded that the plaintiff had established by a fair preponderance of the evidence that it had acquired an easement by prescription to enter and use the private roadway known as Carrier Road from the plaintiff’s established driveway on the northern portion of its premises at the point where the driveway widens and enters Carrier Road. The court therefore ordered that a restraining order and permanent injunction be granted to prevent interference “in any way, shape, or form” by the defendant and its successors and assigns, with the rights of the plaintiff to enter on and use Carrier Road for ingress and egress from its premises.

I

Prescriptive Easement

General Statutes § 47-37 provides: “No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.” In Connecticut, therefore, a prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right. McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 753, 630 A.2d 1372, cert. denied, 227 Conn. 933, 632 A.2d 707 (1993). The standard of proof that is required is a fair preponderance of the evidence. Id.

“A use by express or implied permission or license cannot ripen into an easement by prescription. . . . Where the use depends on authority from the owner, it involves a recognition of his right to terminate, which negates the adverse character of the use.” (Citation omitted; internal quotation marks omitted.) Klar Crest Realty, Inc. v. Rajon Realty Corp., 190 Conn. 163, 168, 459 A.2d 1021 (1983). “Where . . . there is neither proof of express permission of the landowner, nor proof of an express claim of right by the person using the way, the character of the use, whether adverse or permissive, is to be determined as an inference from the circumstances of the parties and the nature and character of the use.” DiSorbo v. Grand Associates One Ltd. Partnership, 8 Conn. App. 203, 206, 512 A.2d 940 (1986).

“Where the use of a right-of-way is in common with the public, the common use is considered to negate a presumption of grant to any individual use. In such a case, the individual user must, in order to establish an independent prescriptive right, perform some act of which the servient owner is aware and which clearly indicates his individual claim of right. . . . Whether the requirements for such a right have been met in a particular case presents a question for the trier of facts after the nature and character of the use and the surrounding circumstances have been considered.” (Citation omitted.) Krohner v. Seyburt Associates Ltd. Partnership, 20 Conn. App. 298, 301, 566 A.2d 995 (1989). A finding that the use made by the claimant and his predecessors in title was not different from that made by the general public is fatal to the establishment of any prescriptive right in the claimant. Peterson v. Ramcke, 140 Conn. 202, 207, 99 A.2d 94 (1953). “In such cases, the trier’s determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not reasonably be reached.” Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 619, 495 A.2d 1006 (1985).

We agree with the trial court that the use of the portion of Carrier Road abutting the plaintiff’s driveway by the plaintiff, his employees, customers, and delivery people to gain access to 27-29 East High Street is a sufficiently distinct use from that of the public to constitute an independent claim of right by the plaintiff. See Missionary Society v. Coutu, 134 Conn. 576, 583, 59 A.2d 732 (1948). Even during the period of frequent public use, the use of Carrier Road by the plaintiff and his father was distinct from that of the public. Since 1952, the plaintiff and his father have continued to use Carrier Road for access to and from 27-29 East High Street for business purposes. The public, when it used Carrier Road, used it for access to places of recreation. There are no longer homes or an automobile dealership on Carrier Road, and, when there were, the use of Carrier Road to access those places was also a use distinct from that of the plaintiff. The plaintiff’s use of Carrier Road has always been in conjunction with the operation of the businesses located at 27-29 East High Street, and we hold that that is a sufficiently distinct use to constitute an independent claim of right.

We hold, therefore, that the plaintiff did sustain his burden of proof as to his acquisition of a prescriptive easement over Carrier Road.

The defendant also claims that even if the plaintiff did sustain his burden of proving that he had a prescriptive easement, the trial court should have found that any additional use of the right-of-way after the 1986 addition of a second story to 27-29 East High Street was an overuse of any previously acquired right. The defendant claims that the addition of a second story to 27-29 East High Street and the placement of a video drop box at the rear of 27-29 East High Street has resulted in an increased use of the right-of-way. The defendant argues that because the plaintiff has owned the property only since 1985, any right-of-way found by the trial court had to be based on the use of that right-of-way by the plaintiffs father.

“[T]he right of an owner of an easement and the right of the owner of the land are not absolute, but are so limited, each by the other, that there may be a reasonable enjoyment of both.” (Internal quotation marks omitted.) McCullough v. Waterfront Park Assn., Inc., supra, 32 Conn. App. 756, quoting 2 G. Thompson, Real Property (1980 Replacement) § 427, p. 663. “An easement created by prescription is more limited than an easement by grant. Lichteig v. Churinetz, 9 Conn. App. 406, 410, 519 A.2d 299 (1986).” McCullough v. Waterfront Park Assn., Inc., supra, 756. “[W]hen an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it. . . . The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.” (Citations omitted; internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987).

Even though, however, “the common and ordinary-use which establishes the prescriptive right also limits and qualifies it, as one court aptly observed, ‘the use made during the prescriptive period does not fix the scope of the easement eternally.’ ” (Emphasis added.) Id., 342, quoting Glenn v. Poole, 12 Mass. App. 292, 293, 423 N.E.2d 1030 (1981). One commentator has observed that if the “common and ordinary use” rule “ ‘were applied with absolute strictness, the right acquired would frequently be of no utility whatsoever. A right-of-way, for instance, would, as has been judicially remarked ... be available for use only by the people and the vehicles which have passed during the prescriptive period. But the rule is not applied with absolute strictness.’ ” Kuras v. Kope, supra, 205 Conn. 342, quoting 4 H. Tiffany, Real Property (3d Ed. 1975) § 1209, p. 1039. “ ‘The problem is to ascertain the limits of permissible variation.’ ” Kuras v. Kope, supra, 343, quoting 3 R. Powell, Real Property (1987 Rev.) f 416, pp. 34-204-34-205.

“[0]ne who has an easement by prescription has the right to do such acts that are reasonable and necessary to effectuate that party’s enjoyment of the easement unless it unreasonably increases the burden on the servient tenement.” McCullough v. Waterfront Park Assn., Inc., supra, 32 Conn. App. 756. “ ‘An unreasonable increase in burden is such a one as it is reasonable to assume would have provoked the owner of the land being used to interrupt the use had the increase occurred during the prescriptive period.’ ” Id., quoting 5 Restatement, Property § 479, comment (c), p. 3003 (1944). “ ‘[WJithin reasonable limits, the possessor of the servient tenement is required to anticipate the future and guard against it. Obviously, he should not be required to guard against the unforeseeable. Hence, prescriptive interests do not include the privilege to make uses necessitated by a development of the dominant tenement not foreseeable during the prescriptive period as a normal development of that tenement.’ ” Kuras v. Kope, supra, 205 Conn. 350, quoting 5 Restatement, supra, p. 3003. “This is not to overlook, however, that ‘[t]he owner of an easement has all rights incident or necessary to its proper enjoyment, [although] nothing more.’ ” Kuras v. Kope, supra, 341.

“A normal development is one that accords with common experience and, therefore, one that might reasonably have been foretold.” 5 Restatement, Property § 479, comment (a) (1944). Such uses, however, must be consistent with the pattern formed by the adverse use by which the prescriptive easement was created.” Kuras v. Kope, supra, 205 Conn. 350.

“The decision as to what would constitute a reasonable use of a right-of-way is for the trier of fact whose decision may not be overturned unless it is clearly erroneous.” Somers v. LeVasseur, 230 Conn. 560, 564, 645 A.2d 993 (1994). Because the right-of-way here has always been used by employees, customers and delivery and service persons, we agree with the trial court that any use of the right-of-way connected with the addition of a second story to 27-29 East High Street and the video drop box does not exceed the scope of the prescriptive easement and was not an overuse of the easement.

II

Evidentiary Claim

The defendant claims that he should have been allowed to admit into evidence an aerial photograph of the plaintiff’s property. The plaintiff agreed that the photograph was a fair and accurate representation of his property, but he could not accurately state the year the photograph was taken. The plaintiff’s counsel objected to the admission of the photograph on the basis of lack of foundation. The court told the defendant to make a claim or the court would sustain the objection because aerial photographs have some “peculiarities on having their authenticity established.”

The defendant then further questioned the plaintiff about whether, in the plaintiffs opinion, the photograph was authentic or had been altered in any way. The plaintiffs counsel objected again, this time on the basis that without an accurate time frame, the probative value of the photograph was unclear. The court agreed that a time frame was necessary to determine the relevancy of the photograph and sustained the objection. The defendant took an exception.

The defendant correctly notes that in Connecticut the testimony of the photographer is not essential for the authentication of a photograph, as long as other evidence is produced that satisfies the court. Cagianello v. Hartford, 135 Conn. 473, 475, 66 A.2d 83 (1949). No one at the trial court proceedings disputed that the proffered photograph was an accurate picture at some point in time of the plaintiff’s premises. The dispute was over the date of the photograph and, therefore, its relevancy. The defendant made no offer of proof as to when the photograph was taken or why it was relevant and makes no argument in his brief as to how he was harmed by the trial court’s ruling that it could not be admitted.

“Our rules require that counsel clearly state the grounds upon which he is relying either to admit or to object to . . . proffered evidence. . . . Once the court stated that the [evidence] would be excluded because it was irrelevant . . . it was incumbent upon the defendant, to preserve the claim on appeal, to point out how the testimony would be relevant . . . .’’(Citations omitted.) DiSorbo v. Grand Associates One Ltd. Partnership, supra, 8 Conn. App. 208-209.

Furthermore, “ ‘[t]he trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court’s ruling on the admissibility of evidence in the absence of a clear abuse of discretion.’ ” State v. Gant, 231 Conn. 43, 58, 646 A.2d 835 (1994).

Because the defendant provided neither the trial court nor this court with any argument as to how the aerial photograph would have defeated the plaintiff’s claim of a prescriptive easement, we find no error in the court’s ruling that the photograph was inadmissible.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant filed a motion to strike from the plaintiffs brief and reply brief the plaintiffs alternate grounds for affirmance because, in making those arguments, the plaintiff raised new issues that were not before the trial court. We denied the motion without prejudice. Because we decide this case on the theory of prescriptive easement, which was the theory argued before the trial court, we need not consider the plaintiffs alternate grounds for affirmance.

       Because we hold that the plaintiff did establish by a fair preponderance of the evidence that he has a prescriptive easement, we need not address this claim.

       The plaintiffs predecessors in title originally had a right-of-way across Carrier Road to draw water from a well on the premises located to the west across the roadway from the plaintiffs premises. This right-of-way still exists, but has not been used since the 1980s, when the plaintiff constructed his own well on his premises.

       Prior to the purchase of the premises by the plaintiff’s father, Carrier Road was used to make deliveries to the building then used as a restaurant. There was also a period of time when Carrier Road was used to make oil deliveries to a tank that serviced the plaintiffs premises and was buried on the west side of the building, partially under Carrier Road. The oil tank was replaced with another underground tank approximately ten years ago.

       The plaintiffs testimony on this point does not reveal the year he was approached by the developer, nor whether the developer owned Carrier Road.

       The plaintiff testified that there was no noticeable increase in the use of the right-of-way after the addition of the second floor and video box drop to 27-29 East High Street. The plaintiff testified that even with these improvements, a maximum of ten to twelve cars use the right-of-way everyday. The plaintiff also testified that the video box drop is infrequently used, because customers of the video store normally park in the front of 27-29 East High Street, and, therefore, do not use the right-of-way.

       The plaintiff said it “seemed” to be a photograph taken after 1952 and that it was “hard to say” whether it was taken before 1970.


author: Lavery, J.

text:
    Rosemary McNulty v. City of Stamford et al.
    (13290)
    Foti, Lavery and Heiman, Js.

      Argued February 6
    decision released May 16, 1995

      Taka Iwashita, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant Second Injury Fund).

      Kristin Dorney Foley, for the appellee (plaintiff).

      Booth M. Kelly, Jr., for the appellee (named defendant).
   Lavery, J.

The sole issue in this appeal is whether the second injury fund is hable to municipalities for payment under the heart and hypertension statute, General Statutes § 7-433c, in the same manner as it is liable for workers’ compensation claims. The compensation review board (board) answered in the affirmative. We disagree.

The pertinent facts are as follows. On June 29,1977, Edward McNulty (decedent), then a member of the police department of the city of Stamford, was found to be suffering from heart disease compensable under the provisions of General Statutes § 7-433c. He sustained a 20 percent permanent partial disability to his heart, entitling him to a specific award of 195 weeks of compensation at his basic weekly compensation rate of $135.

The decedent died on February 4,1991, from cardiac arrest due to arteriosclerotic heart disease, leaving a widow and dependent child. During his lifetime, the decedent received no temporary total or temporary partial disability benefits. He did receive the specific award of 195 weeks of compensation for the 20 percent permanent partial impairment to his heart and twenty-five weeks of compensation for permanent and significant scarring from surgery required for treatment of his compensable heart disease.

On April 12,1991, the decedent’s estate and the city of Stamford stipulated to a finding and an award that was approved by the commissioner. The award provided for “four thousand dollars for funeral expenses, dependent spouse benefits until remarriage or death and benefits for the dependent child until he reaches 18 or as otherwise provided under § 31-306.”

On October 29,1991, pursuant to a motion to modify the finding and the award, the commissioner found that the plaintiff was entitled to cost of living adjustments, to come into effect on and after October 1, 1991, to be paid by the employer and reimbursed from the second injury fund, that the plaintiff was to reimburse the employer for its payment to her of the $4000 funeral expense, and that the waiting period provided in General Statutes (Rev. to 1977) § 31-306 (i) was applicable. This finding meant that the plaintiff was not entitled to compensation until the expiration of 220 weeks, representing the number of weeks of benefits received by the decedent during his lifetime.

On appeal, the board held that the plaintiff was entitled to cost of living adjustments from the date of injury to be paid by the city of Stamford, and reimbursed by the fund. Also, pursuant to the then newly enacted Public Acts 1992, No. 92-31, the plaintiff was found to be entitled to a $4000 funeral expense payment and compensation benefits retroactive to the date of death, notwithstanding any offset period, to be paid by the municipal employer and reimbursed by the fond. The fund appeals this decision on the sole issue of reimbursement to the employer.

The history of the second injury fund; see Civardi v. Norwich, 231 Conn. 287, 649 A.2d 523 (1994); and of the heart and hypertension law; see Morgan v. East Haven, 208 Conn. 576, 546 A.2d 243 (1988); has been set forth on many occasions by our Supreme Court and does not require repetition.

“Payment of an award from a special fund such as the second injury and compensation assurance fund, which was established, inter alia, to assist in the payment of compensation awarded to handicapped and disadvantaged workers; General Statutes §§ 31-349 [through] 31-355; see Everett v. Ingraham, 150 Conn. 153, 158, 186 A.2d 798 [1962]; should be made only in accordance with express statutory authority; 101 C.J.S., Workmen’s Compensation, § 837 [1958]; in order to protect that special fund and prevent unwarranted diversions of it from the specific purpose for which it was created.” Going v. Cromwell Fire District, 159 Conn. 53, 61, 267 A.2d 428 (1970). The absence of any such express statutory authority therefore undermines the claim that the fund must assume liability.

One purpose of amendments to the heart and hypertension law, according to our Supreme Court, is to avoid prior constitutional difficulties. The legislature did not include the benefits available under § 7-433c as compensation under the workers’ compensation scheme, chapter 568. Rather, the current provision is separate and distinct from chapter 568. Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984). It provides “an outright bonus” to those police and fire personnel who qualify and, thus, is not a taking of property without due process of law. Grover v. Manchester, 168 Conn. 84, 88, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975). Chapter 568 is used only as a “procedural avenue” for administration of the benefits under § 7-433c so that a duplicate procedure did not have to be created. Bakelaar v. West Haven, supra, 68, citing Plainville v. Travelers Indemnity Co., 178 Conn. 664, 671-72, 425 A.2d 131 (1979); see Morgan v. East Haven, supra, 208 Conn. 581.

General Statutes § 31-345 specifies the situations in which the fund will be liable and does not include reimbursements for payments made pursuant to § 7-433c. The legislature’s use of words to itemize the situations that bring a statute into play connotes the legislative intent to exclude that which is not included. Stuart v. Dept. of Correction, 221 Conn. 41, 601 A.2d 539 (1992); State v. Kish, 186 Conn. 757, 765, 443 A.2d 1274 (1982). The fund was created, not to serve the purposes found in § 7-433, but to serve those in the Workers’ Compensation Act, General Statutes § 31-354 et seq.

Section 7-433c makes no reference to the fund. It begins with a declaration of its legislative purpose and is immediately followed by a clear, unambiguous description of who is to provide the specific benefits. It also clearly states who is to benefit from it. Section 7-433c (a) provides as follows: “In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusually high degree of susceptibility to heart disease and hypertension . . . municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 ... in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or Ms dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment . . . . The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. . . .” (Emphasis added.)

Section 7-433c clearly limits the source of benefits to the claimant’s municipal employer. The statutory description of benefits begins, “the municipal employer shall provide.” Throughout § 7-433c, the legislature limits the source of benefits to the municipal employee in clear, unambiguous language. The express language of § 7-433c provides for one and only one payor of the benefits of compensation and medical care: the municipal employer. The fund is not a municipal employer. The fund is never mentioned in § 7-433c as a payor or reimburser. Unlike § 7-433a, which concerns benefits payable under chapter 568, § 7-433c provides only that benefits are calculated pursuant to chapter 568.

In reviewing § 7-433c, we note the difference in language compared to other related statutes. In General Statutes § 7-314a, concerning volunteer municipal firefighters, the issue of compensation for heart disease and hypertension incorporates chapter 568 as the basis for liability.

General Statutes § 7-314a (d) provides: “For the purpose of adjudication of claims for the payment of benefits under the provisions of chapter 568, any condition of impairment of health occurring to an active member of a volunteer fire department while such member is in training for or engaged in volunteer fire duty, caused by hypertension or heart disease resulting in death or temporary or permanent total or partial disability, shall be presumed to have been suffered in the line of duty and within the scope of his employment, provided such member had previously successfully passed a physical examination by a licensed physician appointed by such department which examination failed to reveal any evidence of such condition.” (Emphasis added.)

Similarly, General Statutes § 5-145a, with respect to certain state employees, provides: “Any condition of impairment of heal th caused by hypertension or heart disease resulting in total or partial disability or death to a member of the security force or fire department of The University of Connecticut . . . or to any state employee designated as a hazardous duty employee pursuant to an applicable collective bargaining agreement who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of chapter 568 . . . .” (Emphasis added.)

Unlike those statutes, which expressly bring certain heart and hypertension cases within chapter 568, § 7-433c does not. Two Supreme Court cases have illustrated this point, Plainville v. Travelers Indemnity Co., supra, 178 Conn. 664, and Bakelaar v. West Haven, supra, 193 Conn. 59. Municipal employers had become liable to a dependent widow in Plainville and to an employee in Bakelaar pursuant to § 7-433c. The municipal employers then sought indemnification from their workers’ compensation insurance carriers.

In both cases our Supreme Court definitively held that § 7-433c benefits are not benefits payable under any part of the Workers’ Compensation Act. In Plain-ville, the court stated: “[W]e cannot conclude that benefits paid by an employer under General Statutes § 7-433c are benefits required by a ‘workmen’s compensation law’ or ‘occupational disease law’ of this state. ... To do so would require us to ignore the plain effect of this legislation and to contradict our own characterization of this legislation as ‘providing special compensation, or even an outright bonus, to qualifying policemen and firemen.’ Grover v. Manchester, 168 Conn. 84, 88, 357 A.2d 922 [1975]. Moreover, our holding that § 7-US3c is neither a ‘workmen’s compensation law’ nor ‘occupational disease law’ within the meaning of the policy provisions of the insurance contract involved in this case is fortified by an examination of the discussion and debate on the floor of the state House of Representatives prior to the passage of this statute which reveals a legislative understanding that payments made pursuant to this provision would not be within the coverage of traditional workmen’s compensation insurance policies. The fact that a policy of insurance against liability under chapter 568 must cover the entire liability of the employee thereunder; General Statutes § 31-287; has no application to employer liability imposed by special bonus legislation unrelated to traditional workmen’s compensation concepts.” (Emphasis added.) Plainville v. Travelers Indemnity Co., supra, 178 Conn. 673-74.

In Bakelaar, our Supreme Court again rejected the argument that the municipal employer’s carrier should be liable for § 7-433c benefits. Our Supreme Court reiterated its holding in Plainville that § 7-433c is a right separate from workers’ compensation under chapter 568.

The board supported its decision in the present case by relying on Felia v. Westport, 214 Conn. 181, 571 A.2d 89 (1991), and Ancona v. Norwalk, 217 Conn. 50, 584 A.2d 454 (1991). In each of these cases, our Supreme Court referred to § 7-433c as being the basis of eligibility, with compensation “in the same amount and same manner as that provided under chapter 568 . . . .” General Statutes § 7-433c (a). The issue of whether § 7-433c is a benefit separate from chapter 568 was not before the court in either of those cases, which did not overrule Plainville or Bakelaar. The issue in those cases was the calculation of benefits only. The question of whether anyone other than a municipality was liable for the payment of benefits was not at issue.

For the second injury fund to be liable for payment of an award, the award must have been made pursuant to the Workers’ Compensation Act, or some other express statutory authorization for fund liability is required. As there is neither in this case, the board was incorrect and we, therefore, reverse and remand the case ordering that the fund is relieved of any liability.

The decision of the compensation review board is reversed and the case is remanded with direction to sustain the appeal by the second injury fund.

In this opinion the other judges concurred.

       General Statutes § 31-345 provides: “(a) No insurer or employer to whom a certificate of solvency pursuant to subsection (b) of section 31-284 has been issued, shall issue any policy of insurance purporting to cover the liability of an employer under the provisions of this chapter until a copy of the form of such policy has been filed with and approved by the insurance commissioner. No insurer or employer who is self-insured in whole or in part shall engage in writing insurance under this chapter or providing the compensation and benefits directly to employees unless he files with the insurance commissioner a receipt from the state treasurer or the comptroller on or before the first day of October, that the employer has paid his pro rata cost of administration required by this section or if the self-insured employer has not, prior to July first of any year, provided compensation and benefits under this chapter, the self-insured employer shall file such receipt on or before October first, annually that he has paid an amount equal to one-quarter of one per cent of the self-insured employer’s payroll for the twelve months immediately preceding such July first.
      “(b) (1) When, after the close of a fiscal year ending prior to July 1,1990, the chairman of the Workers’ Compensation Commission and the comptroller have determined the total amount of expenses of the Workers’ Compensation Commission in accordance with the provisions of subsection (d) of section 31-280, the treasurer shall thereupon assess upon and collect from each employer, other than the state and any municipality participating for purposes of its liability under this chapter as a member in an interlocal risk management agency pursuant to chapter 113a, the proportion of such expenses that the total compensation and payment for hospital, medical and nursing care made by such self-insured employer or private insurance carrier acting on behalf of any such employer bore to the total compensation and payments for hospital, medical and nursing care made by all such insurance carriers and self-insurers. The amount so secured shall be used to reimburse the treasurer for appropriations theretofore made by the state for the payment in the first instance of the expenses of administering this chapter. On and after July 1, 1986, the treasurer shall, as soon as possible after the close of a fiscal year ending prior to July 1, 1990, estimate the pro rata cost to each employer based upon the costs assessed to such employer in the immediately preceding fiscal year and shall assess upon and collect from each such employer such estimated costs annually which shall be payable as provided in subsection (a) of this section except each annual assessment shall include an amount which represents the difference between the payments collected and the actual costs assessed to such employer for the immediately preceding fiscal year. The treasurer is authorized to make credits or rebates for overpayments made under this subsection by any employer for any fiscal year.
      “(2) Effective July 1,1990, the chairman of the Workers’ Compensation Commission shall annually, on or after July first of each fiscal year, determine an amount sufficient in his judgment to meet the expenses of the Workers’ Compensation Commission. Effective July 1,1991, such expenses shall include the costs of the rehabilitation division and the programs established by its director and the costs of the division of worker education and the programs established by its director. The treasurer shall thereupon assess upon and collect from each employer, other than the state and any municipality participating for purposes of its liability under this chapter as a member in an interlocal risk management agency pursuant to chapter 113a, the proportion of such expenses, based on the immediately preceding fiscal year, that the total compensation and payment for hospital, medical and nursing care made by such self-insured employer or private insurance carrier acting on behalf of any such employer bore to the total compensation and payments for the immediately preceding fiscal year for hospital, medical and nursing care made by such insurance carriers and self-insurers, provided, effective July 1,1991, such assessments for any fiscal year shall not exceed four per cent of such total compensation and payments made by such insurance carriers and self-insurers. Such assessments and expenses shall not exceed the budget estimates submitted in accordance with subsection (c) of section 31-280. Effective July 1,1991, such assessments shall be made in one annual assessment upon receipt of the chairman’s expense determination by the treasurer. All assessments shall be paid not later than sixty days following the date of the assessment by the treasurer. Any employer who fails to pay such assessment to the treasurer within the time prescribed by this subdivision shall pay interest to the treasurer on the assessment at the rate of eight per cent per annum from the date the assessment is due until the date of payment. On and after July 1,1991, all assessments received by the treasurer pursuant to this subdivision shall be deposited in the Workers’ Compensation Administration Fund established under section 31-344a. The treasurer is hereby authorized to make credits or rebates for overpayments made under this subsection by any employer for any fiscal year.”

       General Statutes (Rev. to 1991) § 7-433a, repealed in 1992, was the applicable statute at the time of this case.


text:
    Joseph L. Lynch et al. v. Granby Holdings, Inc., et al. Granby Holdings, Inc. v. Daniel L. Lynch
    (11222)
    O’Connell, Landau and Freedman, Js.
    Submitted September 23, 1994
    decision released May 16, 1995

      Timothy Brignole, for the appellant-appellee (Daniel L. Lynch, plaintiff in the first case, defendant in the second case).

      Eliot B. Gersten, with whom, on the brief, was Andrea A. Hewitt, for the appellee-appellant (named defendant in the first case, plaintiff in the second case).
   Landau, J.

This matter is currently before us on remand from our Supreme Court. Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994). This appeal and cross appeal arise out of two actions, consolidated at the trial level, concerning a lease agreement between the parties. In the first action, the tenant, Daniel L. Lynch, doing business as Lynch Associates, and his subtenants, Joseph Lynch and Joan Lynch, doing business as The Sun Capsule, filed a four count complaint charging the lessor, Granby Holdings, Inc. (Granby Holdings), with breach of lease, breach of an oral agreement and negligent misrepresentation. In the second action, Granby Holdings sued Daniel Lynch to recover unpaid rent. A jury returned verdicts in favor of Joseph Lynch and Joan Lynch in the first action on their claims of breach of an oral agreement and negligent misrepresentation. The jury also found in favor of Daniel Lynch on his claim of breach of lease, but awarded him zero damages. In the second action, the jury found Daniel Lynch liable for unpaid rent. The trial court rendered judgments in accordance with the jury verdicts.

Daniel Lynch appealed from the judgment in both actions, claiming that the trial court improperly (1) charged the jury on the doctrine of mitigation of damages in the first action, resulting in a verdict in his favor with an award of zero damages, (2) charged the jury on the amount of damages that he claimed in his action against Granby Holdings, (3) failed to charge the jury on how his defenses in Granby Holdings’ action against him affected damages, (4) refused to admit evidence of Granby Holdings’ failure to obtain a certificate of occupancy in the first action to show a pattern of dealing between Granby Holdings and the town of Granby, and (5) refused to admit evidence of Granby Holdings’ failure to obtain a certifícate of occupancy as a defense to Granby Holdings’ action against him. Granby Holdings filed a cross appeal from the judgment for Joseph Lynch and Joan Lynch in the first action. It claimed that the trial court improperly (1) admitted evidence of settlement negotiations and compromise discussions, and (2) denied its motion for a directed verdict.

When this matter was first before us, we did not directly address Daniel Lynch’s first claim, but reversed the judgment of the trial court on the ground that the jury’s verdict in favor of him with an award of zero damages was improper. Lynch v. Granby Holdings, Inc., 32 Conn. App. 574, 578-79, 630 A.2d 609 (1993), rev’d, 230 Conn. 95, 644 A.2d 325 (1994). Upon the granting of certification, the Supreme Court reversed our judgment and remanded the case with direction to consider Daniel Lynch’s first claim and any other issues that were properly raised on appeal. Lynch v. Granby Holdings, Inc., supra, 230 Conn. 99.

The following facts are relevant to our disposition of this appeal. Daniel Lynch (Lynch) and Granby Holdings entered into a written agreement whereby Lynch would lease 2500 square feet of space in a shopping plaza owned by Granby Holdings. The lease provided Lynch with the option of subletting all or any part of the premises, subject to certain restrictions and agreements. Lynch subsequently sublet half of the space to his parents, Joseph and Joan Lynch, doing business as The Sun Capsule (hereafter Sun Capsule), for the establishment of a suntanning business.

After entering into the sublease, Sun Capsule contracted to have a sign made for its business. A representative of Granby Holdings had no objection upon being shown where the sign would be located. Once the sign was placed on the building, the town of Granby notified Sun Capsule that the sign would have to be removed because its size caused the total sign area for the building to violate town regulations. The sign was removed and the parties discussed alternatives to the placement of the sign for Sun Capsule. No alternative proved acceptable.

At trial, the parties disputed whether Granby Holdings had failed to provide space for a commercial sign for Sun Capsule. Sun Capsule introduced testimony of discussions between the parties regarding the various alternatives considered to cure the problem of the placement of the sign. Granby Holdings objected to this evidence, claiming that it was evidence of alleged settlement negotiations and compromise discussions. The trial court admitted the testimony over the objection, cautioning that the evidence was being offered only to show that discussions to correct the problem had taken place, not to show that Granby Holdings took responsibility for the sign problem. During the course of the trial, Granby Holdings did not call any witnesses, but rather relied solely on its cross-examination of the plaintiffs’ witnesses. This cross-examination established that several options were available to the plaintiffs regarding the placement of the sign. Also, Lynch testified that he never seriously considered any of the solutions available and instead relied solely on the efforts of Granby Holdings to remedy the situation.

Lynch claims that the trial court improperly instructed the jury on the doctrine of mitigation of damages. Specifically, he argues that the court failed to instruct the jury as to which party had the burden of proof with respect to mitigation of damages.

“In reviewing a challenge to jury instructions, we must examine the charge in its entirety.’ Felsted v. Kimberly Auto Services, Inc., 25 Conn. App. 665, 668, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991). While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury. . . . Id., quoting Preston v. Keith, 217 Conn. 12,17, 584 A.2d 439 (1991).” (Internal quotation marks omitted.) Geren v. Board of Education, 36 Conn. App. 282, 287, 650 A.2d 616 (1994); cert. denied, 232 Conn. 907, 653 A.2d 194 (1995).

In a breach of contract action, the defendant bears the burden of proving that the plaintiff failed to exercise reasonable care to mitigate damages. Preston v. Keith, 217 Conn. 12, 20-21 n.9, 584 A.2d 439 (1991); Newington v. General Sanitation Service Co., 196 Conn. 81, 86, 491 A.2d 363 (1985). In Preston v. Keith, 20 Conn. App. 656, 570 A.2d 214 (1990), rev’d in part on other grounds, 217 Conn. 12, 584 A.2d 439 (1991), we held that, because the trial court failed to instruct the jury as to which party bore the burden of proof on the issue of mitigation of damages, the charge was defective and a new trial on the issue of damages was required.

Although Preston was a negligence action, we conclude that its law is applicable in this contract action. In Preston, we held that the rule in contract actions placing the burden of proving mitigation of damages on the defendant also applies in negligence actions. Preston v. Keith, supra, 20 Conn. App. 663-64. The Supreme Court agreed, finding that the rationale for the rule pertains to both contract and negligence cases. Preston v. Keith, supra, 217 Conn. 20. That is, “[a] defendant claiming that the plaintiff has failed to mitigate damages ‘ “seeks to be benefited by a particular matter of fact, and he should, therefore, prove the matter alleged by him. The rule requires him to prove an affirmative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, and therefore the proof should come from the defendant. He is the wrongdoer, and presumptions between him and the person wronged should be made in favor of the latter. For this reason, therefore, the onus must in all such cases be upon the defendant.” ’ 1 T. Sedgwick, Damages (9th Ed. 1912) § 227, p. 448.” Id., 22. Because both the rule regarding who bears the burden of proving mitigation of damages and the rationale for the rule are the same in contract and negligence actions, the result must be the same when the rule is violated.

In this case, the court properly instructed the jury as to the parties’ respective general burdens of proof. It stated that “the plaintiff has the burden of proof in this case as to his claims against the defendants .... As to the defenses which the defendant . . . has interposed, the defendant has the burden of proof. In other words, the plaintiff has the burden of proof. That is, Joseph Lynch and Daniel Lynch have the burden of proof in their claims against Granby Holdings and Mr. Lassman.” The court then went on to discuss each of the five counts involved in the action. Some time later, while addressing the issue of damages as it related to several of the counts, the trial court correctly instructed the jury that Lynch was required to mitigate his damages. Although it discussed Lynch’s duty to mitigate, however, the trial court did not mention that Granby Holdings bore the burden of proof on that issue. We cannot assume that the court’s earlier general instruction that Granby Holdings had the burden of proving its defenses alerted the jury to the specific fact that Granby Holdings had the burden of proof on the issue of mitigation of damages.

The judgment is reversed as to the amount of damages awarded in Lynch’s breach of lease claim and the case is remanded for a new trial limited to that issue.

In this opinion the other judges concurred.

       The complaint in the first action also included a count in which Joseph Lynch and Joan Lynch charged S. Michael Lassman with breach of contract and negligence. The jury’s verdict on that count, in favor of the Lynches, is not at issue in this appeal.

       We do not address Daniel Lynch’s other claims or Granby Holdings’ claims on cross appeal because we have decided them previously. See Lynch v. Granby Holdings, Inc., supra, 32 Conn. App. 574.

       Lynch also asserts that the trial court improperly instructed the jury on the factors to be considered concerning the reasonableness of efforts to mitigate. Because we find his first argument persuasive, we need not address this claim.

       The Supreme Court held that this result was consistent with the decision in Lane v. Smith, 71 Conn. 65, 71, 41 A. 18 (1898), where a new trial was required because the trial court committed plain error when it failed to instruct the jury on which party bore the burden of proof on the amount of damages. Preston v. Keith, supra, 217 Conn. 23 n.12.

       The court instructed: “Now, even if the plaintiff is entitled to damages there is another rule that requires him to mitigate damages. And that rule is: damages are not recoverable for a loss that the injured party could have avoided without undue risk or burden. But the injured party is not precluded from recovery to the extent that he has made reasonable or unsuccessful efforts to avoid loss. So the query here is whether or not, if the plaintiffs are entitled to damages, have they failed to avoid their loss by failing to take efforts which were not undue burdens. And in that regard you can consider the evidence regarding the sharing of the sign. That is, sharing the sign between Daniel Lynch and Joseph Lynch. ... If Daniel Lynch ... did not make reasonable efforts to avoid the loss [he is] not entitled to damages for the losses which reasonably might have been avoided.”

       Our remand, like that in Preston v. Keith, supra, 20 Conn. App. 664 n.11, is limited because the issues of liability and damages in this case are distinct and the error lies only in the court’s charge with respect to mitigation of damages.