text:
    State of Connecticut v. William Daugaard
    (10709)
    Dupont, C. J., Daly and Schaller, Js.

      Argued June 1
    decision released August 17, 1993

      Brian S. Carlow, assistant public defender, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Batan, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). He claims that (1) the state’s suppression of allegedly material evidence favorable to him violated his constitutional right to a fair trial, (2) the trial court abused its discretion by denying his request for a continuance so that he could subpoena the victim to testify, (3) the trial court improperly admitted evidence that was obtained pursuant to an illegal warrantless arrest, and (4) the trial court improperly admitted testimony detailing the defendant’s invocation of various constitutional rights. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 11 p.m. on May 30,1990, the victim was sitting on the front steps of her apartment building in West Haven when Michael Murray, Kristen Anderson and the defendant arrived in the defendant’s car. Murray lived in the same building and he and Anderson were friends of the victim, but the defendant was unknown to the victim.

Murray invited the victim to his apartment, and the four drank there until the liquor they had was consumed. The victim then said that she knew the location of an after-hours club where they could purchase more. The defendant and the victim left to purchase liquor. The defendant told the victim that he wanted to drive because the car belonged to his sister and was not registered.

When the victim noticed that the defendant was ignoring her directions, she became frightened and demanded that the defendant drive her back to Murray’s apartment. The defendant told the victim that “she wasn’t going anywhere” and that he was “taking her to Las Vegas to be a prostitute.” The defendant then punched the victim in the face and forced her head under the dashboard so that she was unable to see where they were going, although she was able briefly to see a highway sign that read “Wallingford-North Haven.”

The victim testified that eventually the defendant drove the car off the highway to a secluded spot down a small, narrow road lined with tall weeds. The victim testified that she could see cars on the highway nearby, but that the area where the car had stopped was secluded and that there was no way that she could escape. The defendant pulled the victim into the backseat of the car and sexually assaulted her. After the attack, the defendant allowed the victim to leave the car and she walked to the highway and hitchhiked back to the apartment building.

Upon arriving at Murray’s apartment, the victim related details of the attack to Anderson and Murray, who called the West Haven police department. A West Haven police officer took the victim to Yale-New Haven Hospital where she was examined by several physicians. The victim was then interviewed at the hospital by Detectives Theodore Milewski and Patricia Miranda of the Wallingford police department. After the victim was released from the hospital, the detectives twice unsuccessfully attempted to ascertain the location of the attack by driving around the New Haven area with the victim.

The morning following the assault, the West Haven police received a call from the defendant’s sister complaining that the defendant had taken her car without her permission on the previous evening. The West Haven police arrested the defendant, without a warrant, at his sister’s house where he lived, and charged him with using his sister’s car without permission in violation of General Statutes § 53a-119b. Later, while the defendant was incarcerated at the West Haven police station in connection with the car theft, detectives from the Wallingford police department interviewed him in connection with their investigation of the sexual assault.

I

The defendant’s first claim is that the state withheld favorable and material evidence from him, thus violating his constitutional right to a fair trial. Related to this claim is the defendant’s assertion that the trial court abused its discretion by denying his request for a continuance so that he could subpoena the victim to testify as a defense witness regarding the evidence that the state allegedly withheld from him. Both parties agree that the two claims are interrelated, and we, therefore, will consider them together.

Prior to trial, the defendant moved to compel the state to disclose all exculpatory information and materials. The motion was granted and the state turned over numerous documents to the defendant. Later, at the conclusion of the victim’s direct testimony at trial, the state gave the defendant a copy of the victim’s formal statement as required by General Statutes § 54-86b and Practice Book § 752. The defendant then conducted a voir dire examination of the victim to determine whether any discoverable materials existed in addition to those already disclosed. After voir dire, the defendant served a subpoena on the Wallingford police department seeking all police reports prepared in the course of their investigation. In response, the requested reports, including two narrative reports prepared by Miranda, were delivered to the court, which ordered that they be sealed and marked as a court’s exhibit.

The defendant requested that the court, Ripley, J., conduct an in camera review of the sealed reports in order to ascertain whether the defendant was entitled to any of them pursuant to the court’s earlier discovery order. The court refused. The trial continued, and the defendant conducted an extensive cross-examination of the victim. Upon completion of her testimony, the victim returned to California where she had relocated after the incident.

The state proceeded to present its case, including testimony by Miranda. At the completion of Miranda’s direct testimony, the state provided the defendant with two narrative reports Miranda had prepared. The first of these reports, defense exhibit eleven for identification, comprises the basis of the defendant’s claims. Miranda’s report states that while she and Milewski were driving around with the victim on the morning following the assault in an attempt to locate the scene of the assault, the victim “mentioned that she believed the location of the sexual assault was in a rest area off the highway, which had a tourist information center.”

After receiving the report, the defendant moved to compel the state to produce the victim and to reopen her cross-examination, claiming that the victim’s description of the location of the assault, as related in Miranda’s report, contradicted the victim’s testimony on direct examination and the description in her formal statement. The court denied the motion. The defendant then moved for a continuance so that he could subpoena the victim and present her as part of his case. This motion was also denied. The defendant was permitted, however, to cross-examine Miranda regarding the victim’s statement that the location of the assault was “in a rest area off the highway.” In response to defense questioning, Miranda testified that her report was in error and that the victim had told her that the attack had taken place “near” a rest area, not “in” a rest area as stated in her report.

A

We first address the defendant’s contention that his due process rights were violated by the state’s suppression of material evidence favorable to him after he specifically requested it. It is well established that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Demers v. State, 209 Conn. 143, 149, 547 A.2d 28 (1988); State v. Pollitt, 205 Conn. 132, 141, 531 A.2d 125 (1987). To establish a Brady violation, the defendant has the burden of demonstrating (1) that the state suppressed evidence after a request by the defense, (2) that the evidence was favorable to the defense, and (3) that the evidence was material. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972); State v. Rasmussen, 225 Conn. 55, 90, 621 A.2d 728 (1993); State v. Shannon, 212 Conn. 387, 398, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); Demers v. State, supra, 150. “To prevail on a claimed violation of Brady and its progeny, a defendant must establish each of these three prongs.” State v. Green, 194 Conn. 258, 263, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985).

It is undisputed that Miranda’s report was provided to the defense at the completion of her direct testimony. The defendant concedes that disclosures made at trial may comport with constitutional requirements under certain circumstances, but argues that disclosure must be made at a time when it can effectively be used at trial. The defendant contends that because the report was not disclosed prior to the victim’s return to California, he was precluded from effectively utilizing the report. We agree with the defendant that due process requires Brady material to be disclosed to the defendant in such a manner that he may effectively utilize it at trial.

“The circumstance that claimed Brady material was disclosed during, and not after, trial hardly precludes the application of Brady which declared the right to material and favorable evidence as part of the fundamental right to a fair trial. . . . Brady’s due process basis, therefore, requires a determination of when disclosure must be made to ensure a fair trial. . . . The unmistakable tone of Brady is that evidence required to be disclosed must be disclosed at a time when it can be used. . . . No denial of due process occurs if Brady material is disclosed . . . in time for its effective use at trial.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Pollitt, 199 Conn. 399, 413-14, 508 A.2d 1 (1986); State v. Harris, 32 Conn. App. 476, 479, 629 A.2d 1166 (1993).

Thus, in cases where the evidence is disclosed during trial, “the defendant can complain only of the timing of the disclosure and has no basis for a claim of suppression.” State v. Reddick, 197 Conn. 115, 121, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); accord State v. Rasmussen, supra, 91. The defendant therefore appropriately acknowledges that “[ujnder these circumstances, [he] bears the burden of proving that he was prejudiced by the state’s failure to make the information available to him at an earlier time. . . . The appropriate standard to be applied in a case such as this is whether the disclosure came so late as to prevent the defendant from receiving a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. Reddick, supra, 121-22; State v. Harris, supra. In making this determination, “[t]he focus is not on the fact of nondisclosure, but the impact of the nondisclosure on the jury’s verdict. . . . The effect then of disclosable evidence should be viewed in terms of its likely effect upon those on whom the outcome rests — the jury.” (Citations omitted.) State v. Pollitt, supra, 199 Conn. 414. We conclude that the disclosure of the police report after the victim had left Connecticut did not constitute a violation of the defendant’s due process rights.

The defendant argues that the “tardy” disclosure of Miranda’s report was prejudicial to him because he was unable to cross-examine the victim regarding the alleged inconsistencies in her testimony at trial, her formal statement and the statement in Miranda’s report concerning the location of the assault. The defendant claims that, although the location of the assault was not at issue, the victim’s credibility was, and he was denied the opportunity to attack the victim’s credibility by means of the “inconsistent” statement. The statement in the police report, however, was not substantially contradictory to the victim’s trial testimony or her formal statement. Additionally, any inconsistency was adequately presented to the jury during the defendant’s cross-examination of Miranda.

The defendant also had ample opportunity to cross-examine the victim as to all of the details of the assault, including the location where the assault transpired. The defendant’s cross-examination of the victim was extensive, covering parts of three days and consisting of approximately 133 pages of transcript. During that cross-examination, as on direct examination, the victim consistently testified that the defendant had pushed her under the dashboard of the car and that she did not know the location of the assault. The victim was also thoroughly cross-examined as to the area surrounding the location of the assault. We cannot conclude, therefore, that the timing of the disclosure of Miranda’s report so prejudiced the defendant that he was deprived of a fair trial.

We also determine that the defendant has not met his burden of proving that the report was “favorable” to him in a constitutional sense. “Favorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about guilt.” (Internal quotation marks omitted.) State v. Green, supra, 265. The statement of the victim in the police report does not constitute substantive exculpatory evidence because, by itself, it does not demonstrate the defendant’s innocence or necessarily give rise to reasonable doubt as to the defendant’s guilt. The defendant asserts, however, that the statement has impeachment value and correctly points out that favorable evidence under Brady is not limited to exculpatory evidence but also includes impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Shannon, supra, 399.

The police report is not in direct contradiction to the victim’s testimony or her formal statement. The inconsistency between the report and the statement was explained by Miranda on cross-examination. Any inconsistency between the statement contained in the report and the victim’s testimony or formal statement was not so substantial as to “alter the jury’s judgment of the credibility of a crucial prosecution witness.” State v. Green, supra, 266. The evidence would not have led the jury to entertain a reasonable doubt about the defendant’s guilt, either because of its evidentiary value or because the victim’s credibility would be severely damaged. We conclude that the statement was not “favorable” to the defendant within the meaning of Brady and its progeny.

Similarly, we also conclude that the evidence was not “material” as defined by Brady and its progeny. Materiality is determined by an examination of the entire record. Id., 265. “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, supra, 682; State v. Rasmussen, supra, 92. The defendant argues that where “a conviction depends entirely upon the testimony of certain witnesses . . . information affecting their credibility is material in the constitutional sense . . . since if they are not believed a reasonable doubt of guilt would be created. ...” (Citations omitted; internal quotation marks omitted.) Demers v. State, supra, 161-62.

The statement in Miranda’s report was not substantially inconsistent with the victim’s testimony or formal statement and, consequently, its impeachment value was extremely limited. The victim’s testimony was unequivocally that the defendant had raped her. The particular site of the car at the time of the rape was of much less significance. Moreover, there was substantial evidence, including physical evidence and corroborating testimony, to support the jury’s finding. After carefully reviewing the record and the entire trial transcript, we conclude that there is not a reasonable probability that, had the report been disclosed to the defendant prior to the victim’s return to California, the result of the trial would have been different.

B

The defendant also claims that the trial court abused its discretion in denying his request for a continuance for the purpose of subpoenaing the victim to compel her to return to Connecticut to testify as part of the defense case regarding the alleged inconsistencies between her testimony and the statement in Miranda’s report. “Whether the tardy disclosure of Brady material fairly requires a continuance or a delay in order to make effective use of such matter is essentially a factual question in each case.” State v. Pollitt, supra, 199 Conn. 414. “The law is clear that requests for continuances are matters of judicial discretion and that on review every reasonable presumption in favor of the trial court’s discretionary ruling will be made. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. . . . Rather, the answer must be found in the particular facts of each individual case. . . . The party seeking the continuance has the burden of establishing good cause for such a continuance.” (Citations omitted; internal quotation marks omitted.) State v. Haye, 214 Conn. 476, 483, 572 A.2d 974 (1990); see also State v. McKnight, 191 Conn. 564, 576-77, 469 A.2d 397 (1983).

On the basis of our earlier determination that the state did not improperly suppress Miranda’s report, we conclude that the trial court did not abuse its discretion in denying the continuance.

II

The defendant’s last two claims relate to events that transpired subsequent to the defendant’s warrantless arrest by the West Haven police and during the time that the defendant was being interviewed at the West Haven police station by the Wallingford detectives. Prior to trial, the defendant moved to suppress any statements made by him to Milewski and Wallingford Detective Patrick Shanley on the ground that they were the inadmissible fruits of an illegal arrest. The defendant also moved to suppress any testimony that was to be offered at trial by Milewski and Shanley regarding the defendant’s invocation of his constitutional rights. The motions were denied after a hearing by the suppression court, Flanagan, J. The statements, as well as testimony regarding the defendant’s invocation of his constitutional rights, were subsequently admitted at trial.

On the morning following the sexual assault, the defendant was arrested without an arrest warrant by the West Haven police at his sister’s house, where he lived. He was charged with using his sister’s car without her permission. There was no evidence to indicate that there was consent to the entry or emergency circumstances that would provide justification for entry into the house. The defendant was taken to the West Haven police station and incarcerated. Sometime around noon, the Wallingford police department was notified that the defendant was at the West Haven police station. At approximately 6:30 p.m., Milewski and Shanley arrived from Wallingford to interview the defendant in connection with their investigation of the sexual assault.

At the suppression hearing, the testimony of Shanley and Milewski was substantially similar. They testified that upon arriving at the West Haven police station, they introduced themselves to the defendant and explained that he had been implicated in a sexual assault that they were investigating. The defendant responded: “It didn’t happen, man.” Milewski then read the defendant his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). This was the only statement made before the defendant’s rights were read. The defendant indicated that he understood his rights, but he refused to waive them, stating that he would not give up anything. The defendant asked when the attack had occurred. After hearing the answer, the defendant stated that “it couldn’t have happened that way” because he had been at a local bar with several other people from 7 p.m. until closing and that when he left the bar he “was too drunk to remember what he did later.”

The detectives asked the defendant if he would consent to a search of his body, and provide them with hair, blood and saliva samples. The defendant again invoked his constitutional rights, indicating that he would not submit to such a search unless the police obtained a search warrant. The defendant was then asked if he knew a girl with the victim’s first name, to which the defendant replied that he wanted to speak with an attorney. At that point, the detectives terminated the interview and placed the defendant under arrest for sexual assault, kidnapping and unlawful restraint. One of the motions to suppress concerns the statements that “It didn’t happen” and that he had been at a bar until it closed and that when he left he was too drunk to remember what happened later. The other motion to suppress concerns the statements involving the defendant’s constitutional rights.

A

The defendant’s first motion to suppress “lies at the crossroads of the Fourth and the Fifth Amendments.” Brown v. Illinois, 422 U.S. 590, 591, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). The defendant argues that any statements he made to Milewski and Shanley while he was incarcerated at the West Haven police station should have been suppressed at trial because the statements were obtained pursuant to an illegal warrant-less arrest in violation of the fourth amendment. The defendant’s statements were inculpatory and involved the fifth amendment. The defendant argues that under the doctrine commonly and colorfully known as “the fruit of the poisonous tree,” any evidence obtained by the Wallingford detectives as a result of the illegal arrest by the West Haven police must be suppressed.

The question to be resolved is whether the statements were obtained by the exploitation of the illegality arising from the initial, warrantless arrest by the West Haven police or whether any taint on the statements was purged by attenuating and intervening circumstances. We conclude that the suppression court properly refused to suppress the defendant’s statements, and that they were properly admitted at trial.

The “fruit of the poisonous tree” doctrine “requires courts to exclude evidence that is the product or 'fruit’ of police conduct in violation of the fourth amendment.” State v. Ostroski, 201 Conn. 534, 545, 518 A.2d 915 (1986); Segura v. United States, 468 U.S. 796, 804-805, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984); Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The suppression court did not hear evidence regarding the details of the initial arrest and it failed to determine specifically whether the arrest was illegal. The record is devoid, therefore, of any details of that arrest, including whether the defendant was actually living with his sister at that time, whether she or another member of the household with authority consented to the police entry onto the premises, or whether there were exigent or emergency circumstances. We need not remand the case for a determination of this issue, however, because we determine that even if the initial arrest was illegal, any taint on the statements subsequently made by the defendant to the detectives was purged by intervening circumstances. See State v. Cates, 202 Conn. 615, 619, 522 A.2d 788 (1987) (holding that because any taint that might have been created by an illegal search warrant had dissipated, it was unnecessary to consider whether the warrant was, in fact, defective).

Evidence that would not have been discovered but for the illegal actions of the police is not necessarily the fruit of the poisonous tree. Wong Sun v. United States, supra, 487-88; State v. Cates, supra, 619-20. Thus, a “for want of a nail the kingdom was lost” argument will not suffice. The defendant cannot successfully argue that were it not for the illegal entry into the house, the defendant would not have been in the custody of the police, and, therefore, would not have made any statements that inculpated him in another crime. In this case, an underlying question to be resolved is whether the statements were, in fact, the product of the warrantless arrest.

“[T]he question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint. . . . This standard reflects a deterrence based policy, which is [t]he core rationale consistently advanced ... for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct . . . (Citations omitted; internal quotation marks omitted.) State v. Ostroski, supra, 545-46. In deciding whether the evidence should be suppressed, the courts “have focused upon the attenuation aspect; at what point does the nexus between the fourth amendment violation and the challenged evidence . . . become so attenuated as to dissipate the taint of the primary illegality.” Id., 546.

The question of whether evidence is attenuated from the initial illegality and is thus a product of a defendant’s free will “must be answered on the facts of each case. No single fact is dispositive.” Brown v. Illinois, supra, 603. In determining whether the confession was obtained by exploitation of the illegal arrest, relevant factors include whether the defendant was given Miranda rights that broke the connection with the initial illegality, the temporal proximity between the arrest and the statements sought to be suppressed, the presence of intervening circumstances and the purpose and flagrancy of the official misconduct. Id., 603-604; State v. Cates, supra, 621-24; State v. Ostroski, supra, 547.

The flaw in the defendant’s argument that the statements should be suppressed is that the evidence was “uncovered” by the Wallingford police and not the West Haven police. The defendant’s statements were not the product of the West Haven warrantless arrest, but of the proper Wallingford investigation. The statements were made to a different sovereign conducting an independent investigation and had no relation to the crime for which the allegedly illegal arrest was made but related to a wholly different and unrelated crime. The purpose of the exclusionary rule is to penalize law enforcement officials by suppressing evidence obtained by illegal means in order to deter police conduct that tramples on the fourth amendment rights of citizens. The application of the exclusionary rule to the Walling-ford police in this case would not serve to deter future improper conduct on the part of the West Haven police, and it would unfairly penalize the proper investigatory efforts of the Wallingford detectives.

We find that a review of the other relevant factors supports the conclusion that any statements made to the Wallingford detectives were sufficiently attenuated from the initial arrest so as to be purged of any taint. Here, unlike in State v. Geisler, 22 Conn. App. 142, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657, aff'd on remand, 25 Conn. App. 282, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992), there was a period of eight or nine hours between the allegedly illegal arrest and the statements sought to be suppressed. Thus, temporal proximity is lacking. The statements made by the defendant to the detectives were voluntary, and were not elicited as a result of intensive interrogation. See State v. Copeland, 205 Conn. 201, 207, 530 A.2d 603 (1987). One of the statements was made after Miranda warnings, and, although the warnings are not necessarily sufficient to break the connection between the illegal act and the statement, their existence is a factor. Id. In addition, there is no evidence that, during the defendant’s incarceration, he was extensively questioned, fingerprinted, subjected to a lineup, or spent any sustained period of time doing anything other than sitting in a jail cell. Compare Taylor v. Alabama, 457 U.S. 687, 691, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982).

In sum, this is not a case in which the defendant “was arrested without probable cause in the hope that something would turn up, and he confessed shortly thereafter without any meaningful intervening event.” Taylor v. Alabama, supra. Our careful examination of the record as a whole discloses that even if the defendant’s statements to the Wallingford police were to be considered a product of the initial arrest by the West Haven police, such evidence was sufficiently purged of any taint created by the initial arrest so that its admission was proper.

B

The defendant’s next claim is that the court improperly permitted Detectives Shanley and Milewski to testify at trial regarding the defendant’s invocation of his constitutional rights, namely, the refusal to consent to a warrantless body search, the refusal to waive any rights, and the desire to speak to an attorney. The defendant attempted to preclude this testimony by means of a pretrial motion to suppress, a pretrial motion in limine, and a second motion in limine prior to the testimony of Shanley and Milewski. The first two motions were denied by the suppression court and the second motion in limine was denied by the trial court. The specific ground for the motions was that if the testimony was admitted into evidence, the defendant’s constitutional rights, as defined in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), would be violated.

“The factual predicate of a claimed Doyle violation is the use by the state of a defendant’s postarrest and postMiranda silence either for impeachment or as affirmative proof of his guilt.” State v. Joly, 219 Conn. 234, 256, 593 A.2d 96 (1991). The introduction of evidence concerning the defendant’s invocation of his constitutional rights is constitutionally prohibited if such evidence is introduced for the purpose of impeaching the defendant or demonstrating his guilt, but such evidence may be presented to show the investigative effort made by the police and the sequence of events as they unfolded, or the adequacy of the Miranda warnings given. State v. Jones, 215 Conn. 173, 186, 575 A.2d 216 (1990); State v. Casey, 201 Conn. 174, 183, 513 A.2d 1183 (1986); State v. Moye, 177 Conn. 487, 496-99, 418 A.2d 870, vacated and remanded on other grounds, 444 U.S. 893,100 S. Ct. 199, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979); State v. Rogers, 9 Conn. App. 208, 217, 518 A.2d 399, cert. denied, 202 Conn. 806, 520 A.2d 1288, cert. denied, 481 U.S. 1051, 107 S. Ct. 2185, 95 L. Ed. 2d 841 (1987).

Here, the statements about the invocation of the defendant’s Miranda rights related to the “silence” described in Doyle because they were an affirmative expression of the defendant’s refusal to give up any rights, and to his right to speak to an attorney. The silence of Doyle includes orally claiming constitutional rights as well as remaining mute. Wainwright v. Greenfield, 474 U.S. 284, 295 n.13, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986); State v. Casey, supra.

The rationale oí Doyle is that it would be fundamentally unfair if the state, after having told defendants, via Miranda warnings, that they have a right to remain silent, later uses that silence against them. The silence of a defendant is ambiguous because it cannot be known whether it is an assertion of his constitutional rights or an indication of his guilt. If a defendant chooses to assert his Miranda rights, the state may not comment on that assertion during trial. State v. Apostle, 8 Conn. App. 216, 223, 512 A.2d 947 (1986). The introduction into evidence in this case of the defendant’s statements was violative of the defendant’s due process rights because it was equivalent to an impermissible comment on his right to remain silent.

The next question is whether the statements had a direct impact on the substantive issue of the defendant’s guilt or whether they merely showed the investigative efforts of the state or the sequence of events. If the former is true, the admissibility of the statements would be harmful, and the defendant would be entitled to a new trial. If the latter is the case, the admissibility would be harmless, and the defendant’s conviction would be upheld. State v. Jones, supra, 186.

Because the admission of the statements was of constitutional dimension, the state has the burden of proving their admission was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24-26, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). “The test for harmfulness is whether there is a reasonable possibility that the improperly admitted evidence contributed to the conviction .... The harmlessness of an error depends upon its impact on the trier and the result, not upon whether the particular evidence involved was legally essential to support the finding.” (Citations omitted; internal quotation marks omitted.) State v. Jones, supra, 184-85. The statements of the defendant that involved his constitutional rights were among other statements he made and were part of a colloquy between him and the two officers. The testimony only established the chronology and background of the statements. The state did not comment on the statements during its closing arguments. This makes it unlikely that the statements had a reasonable possibility of making an impact on the substantive issue of the defendant’s guilt.

Our review of the record indicates that the evidence presented to the jury was more than sufficient to sustain its verdict even if testimony concerning the defendant’s invocation of his constitutional rights had not been admitted. The admission of such testimony is harmless where, as here, the state does not focus on or highlight the defendant’s silence. Id., 185. The reference to the defendant’s invocation of his constitutional rights was slight in the context of the entire trial. Such evidence was presented only in the course of the narrative testimony of two witnesses and comprised only a few minutes in a fourteen day trial and a few transcript pages out of more than 1000. See Brecht v. Abrahamson, 507 U.S. , 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) (improper references to defendant’s postMiranda silence that comprised less than two pages of a 900 page transcript and a few minutes in a four day trial constituted harmless error).

“[T]he central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence . . . .” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). “ ‘[T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one.’ ” Ross v. Oklahoma, 487 U.S. 81, 91, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988); State v. Canty, 223 Conn. 703, 722, 613 A.2d 1287 (1992). Here, the defendant received that to which he is constitutionally entitled, a fair trial. We conclude that the Doyle violation was so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible admission. See State v. Jones, supra, 185.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-86b provides: “(a) In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use.
      “(b) If the prosecution fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”
      Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       Exhibit eleven was also included in court’s exhibit one, which had been sealed by the court. The defendant’s exhibit eleven was marked for identification but was never admitted into evidence.

       On direct examination, the victim testified:
      “Q. Did there come a time when the car left the highway that you were on?
      “A. Yes.
      “Q. Can you tell us what the area looked like?
      “A. I remember pulling into a small, narrow road, I guess he pulled into weeds. It was very secluded.
      * * *
      “Q. You left the highway and went into that area?
      “A. Yes.
      “Q. Can you see any cars from where you were?
      “A. There was a hill with the highway on the left side. I could see cars were going by, but the road that went near the weeds, there was no cars. It was secluded. I don’t think that road was even used that I could see.
      “Q. But you could see the cars on the highway from where you were?
      “A. Yes.
      “Q. Were they close enough to get the attention of someone?
      “A. No. There was like a hill and the cars on the highway I was able to see, but I wouldn’t be able to get anyone’s attention from where I was.
      “Q. Were there any other cars or people in this area?
      “A. No.
      “Q. Can you describe the area for us?
      “A. It was like a swamp. There were tall, five foot weeds.
      “Q. Was it a quiet area or was there a lot of activity?
      “A. It was quiet.
      “Q. During this time that you were there, did you see any other cars go by?
      “A. Not on that road, only the highway.”

       The victim’s formal statement provides in relevant part: “After he got off the highway, he drove down a sort of dirt, one way road that was deserted and that had grass on the right. Let me add that before he drove off the highway, Bill passed a truck rest area. The one way road that we were on had a large field of grass on the left. If you looked up to the right a little, you could see cars. Some of the grass on the left was high. Bill parked the car in the field on the left. However, the car could be seen from the road, but no cars went by.”

       The defendant makes no claim that the state failed to comply with General Statutes § 54-86b or Practice Book § 752.

       The defendant did not attempt to introduce the police report into evidence.

       There is no dispute that this doctrine applies with equal force to statements derived from an unauthorized arrest as it does to physical, tangible materials seized pursuant to an unlawful search. Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

       Obviously the evidence could not have been offered to impeach the defendant’s credibility as the defendant exercised his right not to testify.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    State of Connecticut v. Melvin Brokaw
    (11114)
    Foti, La very and Schaller, Js.

      Argued January 12
    decision released August 17, 1993

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

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and Maxine Wilensky, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine with the intent to sell by person who is not drug-dependant in violation of General Statutes § 21a-278 (b). The defendant claims that the trial court improperly (1) denied his motion to suppress evidence by improperly ruling that he was not illegally seized in violation of his rights under the fourth amendment to the United States constitution and árticle first, § 7, of the Connecticut constitution, (2) denied his motion for a mistrial which was based on the state’s improper cross-examination of a defense witness, and (3) permitted testimony concerning his prior arrest. We affirm the judgment of the trial court.

The record reveals the following facts. On December 21, 1990, at approximately 5:10 p.m., Detective Trevor Thorpe of the narcotics division of the Meriden police department received a telephone call from a confidential informant. In the past, this informant’s reliable and accurate information had resulted in arrests and seizures of narcotics. The informant told Thorpe that at approximately 5:30 p.m. the defendant would be in the Fontana DiCalabria bar possessing cocaine for sale, and that a truck belonging to the defendant’s son would be outside. The informant also stated that he had purchased cocaine from the defendant in the bar on a regular basis, most recently within the prior two weeks.

On the basis of this information, Thorpe and two other police officers went to the Fontana DiCalabria bar at 5:30 p.m. to investigate. After verifying that a truck parked in front of the bar, which matched the informant’s description, belonged to the defendant’s son and that the defendant was inside, the officers entered the bar. They wore plain clothes and did not identify themselves or display any weapons as they approached the defendant to question him. When the defendant noticed the three officers approaching him, he turned to his left toward the kitchen to evade them. Simultaneously, the defendant pulled from his pocket a clear plastic bag containing what appeared to be narcotics. The defendant fled into the nearby kitchen, pursued by the officers, and dropped the bag into a trash can. The police officers arrested the defendant and retrieved the plastic bag, which proved to contain cocaine.

I

The defendant’s first claim is that the trial court improperly denied his motion to suppress the narcotics found in his possession. The trial court found that the defendant was not seized in violation of his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, and that the officers had probable cause to arrest the defendant. We conclude that the defendant was not seized in violation of his constitutional rights. Therefore, we do not have to reach the issue of probable cause.

For the purposes of our state constitution, our Supreme Court defines a person as “seized” when “ ‘by means of physical force or a show of authority, his freedom of movement is restrained.’ ...” State v. Ostroski, 186 Conn. 287, 291, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982), quoting United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). This objective test hinges on whether “ ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” State v. Ostroski, supra, 291-92. Recently, our Supreme Court reiterated this standard in State v. Oquendo, 223 Conn. 635, 652, 613 A.2d 1300 (1992). The Oquendo court held that our state constitution affords a higher level of constitutional protection with regard to seizures than does the fourth amendment to the United States constitution, as interpreted by the United States Supreme Court. Id., 649-50.

Seizure does not require physical restraint. See id., 653. Absent physical restraint, seizure results from a show of authority sufficient in the particular circumstances to make a reasonable person believe he was not free to walk away. State v. Ostroski, supra. Such a seizure occurred in State v. Oquendo, supra. In that case, a uniformed police officer in his cruiser stopped a couple walking along a deserted street at 1 a.m. The officer questioned them about their activities and told them to approach him with the duffle bag they were holding. The late hour, the deserted locale, and the visible display of weapons persuaded our Supreme Court that “a reasonable person in the defendant’s position would not have believed that he was free to ignore [the officer’s] instruction and walk away.” State v. Oquendo, supra. Thus, although not physically restrained, the defendant was seized.

In this case, however, no seizure occurred. The defendant claims that the officers seized him by entering the bar and walking toward him. To uphold the defendant’s claim we would have to conclude that a reasonable person would have believed he was not free to leave when, while sitting in a bar with several other patrons, he was approached by three men he did not know, who wore plain clothes and did not display weapons or badges. We are unable to do so; the approach of three unidentified people under those circumstances does not create a constitutional seizure.

In State v. Rivera, 23 Conn. App. 592, 594, 583 A.2d 931 (1990), cert. denied, 217 Conn. 807, 584 A.2d 1192 (1991), we said: “A fleeing defendant’s fourth amendment rights are not implicated until the pursuing police officer first issues a command to halt. Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). ‘Our own case law brings us to the same result. “We know of no Connecticut case . . . that holds that merely following another, absent any show of force or authority or direction to halt, constitutes a stop within the meaning of the fourth amendment.” ’ State v. Oliver, 17 Conn. App. 108, 110-11, 550 A.2d 316 (1988), quoting State v. Rodriguez, 14 Conn. App. 574, 577, 542 A.2d 342 (1988).” The defendant in Rivera was followed by a police officer who did not display a weapon or make a show of authority, while the defendant in the present case was approached by plain clothes officers who did not display weapons or make a show of authority. Like the defendant in Rivera, the fourth amendment rights of the defendant here were not implicated through the mere approach of the police officers.

We conclude, on the basis of the foregoing reasons, that a seizure did not take place within the meaning of article first, § 7, of the Connecticut constitution and, therefore, that the defendant’s motion to suppress was properly denied.

II

The defendant next claims that the trial court incorrectly denied his motion for a mistrial which was based on the state’s improper examination of a defense witness. We disagree.

The defendant called a witness to testify that, contrary to the police officers’ assertions, the bar was crowded when the officers approached the defendant. The following exchange occurred during the state’s cross-examination:

“[State’s Attorney]: A couple of last questions, have you ever bought cocaine from the defendant?
“[Defense Counsel]: Objection. Objection. May I ask for the jury to be excused?
“[State’s Attorney]: I believe the question was asked and answered, Your Honor.
“[Defense Counsel]: I would like to make an argument outside the presence of the jury, Your Honor.
“[The Court]: The objection is going to be sustained. The jury will disregard the question and any answer that was given to it.”

After the jury was excused, the defendant moved for a mistrial, arguing that the question was prejudicial and so tainted the proceedings as to deny the defendant a fair trial. The court denied the defendant’s motion, stating that it had already told the jury to disregard the question and answer, and offered to make another curative instruction. Defense counsel requested that the court not give another curative instruction because such an instruction would only accentuate the offending question.

On appeal, the defendant claims that the state’s attorney’s question about past cocaine purchases constituted prosecutorial misconduct sufficient to deprive the defendant of a fair trial. In Connecticut, a mistrial is granted only where it is apparent that some occurrence during trial has deprived the defendant of a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); see Practice Book § 887. The burden is on the defendant to show that the prosecutor’s remarks were prejudicial in light of the entire proceeding. State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing claims of prosecutorial misconduct. Id. In determining whether prosecutorial misconduct was so serious as to deny a fair trial, our courts focus on “the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).

Our careful review of the record in this case reveals that the prosecutor’s challenged conduct, while of questionable propriety, was not so prejudicial as to taint the entire proceeding and deprive the defendant of a fair trial. State v. Hammond, 221 Conn. 264, 289, 604 A.2d 793 (1992); State v. Tweedy, 219 Conn. 489, 509, 594 A.2d 906 (1991). Admittedly, the state’s question was uninvited by the defense. The state’s attorney’s question, however, was an isolated incident. A single questionable statement by the state’s attorney will not, in all probability, impair the effectiveness or integrity of the defendant’s trial. State v. Joyner, 225 Conn. 450, 473, 625 A.2d 791 (1993). Also, the trial court took adequate and appropriate curative measures under the circumstances, and the defendant requested that no further measures be taken. “[A] prompt cautionary instruction to the jury regarding improper prosecuto-rial remarks obviates any possible harm to the defendant.” State v. Ubaldi, supra, 563. Finally, the state’s case against the defendant, even without the allegedly improper statement, was sufficiently strong to support conviction. Because the defendant has failed to persuade us that this single statement denied him a fair trial, we conclude that the trial court properly denied his motion for a mistrial.

Ill

The defendant’s final claim is that the trial court improperly allowed testimony regarding the defendant’s prior arrest. We are unpersuaded.

The defendant testified that as he was leaving the kitchen area of the Fontana DiCalabria bar he was jumped by three men he did not recognize, and pushed back into the kitchen. The state offered to rebut that assertion with testimony of one of the police officers that the defendant recognized the officers as they approached, prompting him to flee and discard his drugs. After an offer of proof and extended colloquy among court and counsel, the trial court permitted the testimony but prohibited any reference to the prior arrest to avoid prejudice. The relevant portion of the officer’s rebuttal testimony was as follows:

“[State’s Attorney]: And lastly, Detective, have you encountered the defendant before?
“[Detective Thorpe]: Yes, I have.
“[State’s Attorney]: And where did you encounter him?
“[Detective Thorpe]: In a municipal building and on the streets of Meriden.
“[State’s Attorney]: And at the encounter in the municipal building how long were you in the presence of the defendant?
“[Detective Thorpe]: A half an hour to forty-five minutes.
“[State’s Attorney]: And could he clearly see you?
“[Detective Thorpe]: Yes, he could.
“[State’s Attorney]: About how far away from him were you for that half an hour to forty-five minutes?
“[Detective Thorpe]: With the defendant and another detective within an eight by ten room.”

The defendant claims that the officer’s testimony amounted to evidence of the defendant’s prior arrest. As such, the evidence was inadmissible for impeachment purposes, and could be admitted only if its materiality and relevance outweighed the prejudicial effect. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984). That important rule, however, is inapplicable in this case because actual evidence of the defendant’s prior arrest was never admitted. The trial court prudently ensured that the officer’s testimony would not imply that the defendant had been previously arrested. There are a number of reasons why the defendant may have encountered the officers in a municipal building including his reporting a crime, providing information as a potential witness, or reporting lost or stolen property. Moreover, the defendant invited the line of inquiry, to an extent, by offering evidence that he did not recognize the three undercover officers. See State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986).

Neither are we persuaded that the officer’s testimony coupled with the state’s attorney’s objectionable cross-examination of a defense witness constitute evidence of the defendant’s prior arrest. In both instances, the trial court properly exercised its discretion to make certain that the jury received a fair presentation in accordance with our rules of evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       In 1991, the United States Supreme Court narrowed the definition of what constitutes an illegal seizure for fourth amendment purposes in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). There, the court held that a suspect, who fled at the sight of police officers, was not seized under the fourth amendment when the officers gave chase. The court concluded that a seizure for fourth amendment purposes is equivalent to an arrest at common law, which it defined as “either physical force . . . or . . . submission to the assertion of authority.” Id., 626. After a thorough historical analysis of the development of article first, § 7, of the Connecticut constitution, the Oquendo court declined to adopt the restricted definition of “seizure” in California v. Hodari D., supra. Rather, our Supreme Court chose to adhere to its broader standard of what constitutes a seizure under the state constitution. State v. Oquendo, 223 Conn. 635, 652, 613 A.2d 1300 (1992).

       Because we find that the defendant’s rights under article first, § 7, of the Connecticut constitution were not violated, and because the Connecticut constitution affords a greater level of protection than does the federal constitution, we need not address the defendant’s federal claims.


author: Freedman, J. Dupont, C. J., dissenting.

text:
    Whisper Wind Development Corporation v. Planning and Zoning Commission of the Town of Middlefield et al.
    (11497)
    Dupont, C. J., Freedman and Schaller, Js.

      Argued May 4
    decision released August 17, 1993

      Lori Welch-Rubin, with whom, on the brief, was Roger Sullivan, for the appellant (plaintiff).

      Thomas P. Byrne for the appellees (defendants).
   Freedman, J.

The plaintiff appeals from the judgment of the trial court dismissing its appeal from the decision of the planning and zoning commission of the town of Middlefield, which had denied its application for a special permit. The plaintiffs application sought approval for the excavation and removal of sand and gravel from a fifteen acre parcel of land. On appeal, the plaintiff claims that the trial court improperly (1) concluded that the plaintiffs failure to meet the general health, safety and welfare requirements set forth in the town’s zoning regulations may be considered in determining whether to grant or deny the permit and need not be considered only for the purpose of placing conditions on a special permit, and (2) reviewed the actions of the commission by applying the discretion afforded to a zoning authority acting in its legislative capacity as opposed to its administrative capacity. We affirm the judgment of the trial court.

The following facts are not in dispute. The plaintiff is the developer of the Whisper Wind subdivision located on Whisper Wind Road in Middlefield. The plaintiff seeks to excavate and remove sand and gravel from lots that are a part of the Whisper Wind subdivision. The lots to be excavated are located behind lots on which houses have already been built. The only access to the lots to be excavated is a narrow strip of land (approximately fifty feet wide and 450 feet long) that begins at Whisper Wind Road and passes through the subdivision adjacent to some of the lots on which houses are located. Whisper Wind Road is a short U-shaped street developed by the plaintiff as part of the subdivision. There are a number of undeveloped and unsold lots along the road. The plaintiff’s plan would have the trucks, filled with excavated materials, travel on the narrow strip of land and turn onto Whisper Wind Road. The trucks would then travel 1000 feet on Whisper Wind Road past lots on which, at present, there are no houses, finally turning onto Hubbard Street.

On December 7, 1990, the plaintiff filed an application for a special permit in accordance with § 9 and § 10.02 of the town’s regulations. Section 9 of the regulations sets forth the special conditions for the requirements involving excavation and removal of earth products. Section 10.02 sets forth the general considerations for approval of special permits.

Commencing on January 23, 1991, the commission held public hearings on the special permit application. On April 10,1991, the commission denied the plaintiff’s application for the special permit stating that “[t]he proposed use would not be harmonious with the existing development in the district and would be detrimental to the orderly development of adjacent properties” and that “[t]he location, size, nature and intensity of the use would create a pedestrian and traffic hazard and would conflict with the traffic characteristics of the surrounding neighborhood.” The plaintiff timely appealed from the commission’s decision to the Superior Court.

In the trial court, the plaintiff claimed that its application complied with all of the requirements of §§ 9 and 10.02 of the regulations and that the reasons given by the commission in denying its application (1) constituted a legally insufficient basis for denial of the application, (2) had no factual basis, and (3) were motivated by prejudice and bias. The plaintiff further claimed that it was denied equal protection of the law and due process of law under the Connecticut and the United States constitutions. These equal protection and due process claims, however, were orally withdrawn by the plaintiff at the hearing before the trial court.

The trial court concluded that a zoning authority may deny a special permit application on the basis of general considerations in the local zoning regulations even where the plaintiffs application complies with the detailed technical requirements established in the regulations for the specific proposed use. The trial court also determined that the plaintiff failed to prove that the record did not support the reasons for the denial given by the commission. Finally, the trial court concluded that because the plaintiff presented no evidence of bias or prejudice by the commission, that claim was abandoned. We granted certification for appeal to this court.

“The basic rationale for the special permit ... is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site.” T. Ton-dro, Connecticut Land Use Regulation (2d Ed. 1992), p. 175; Barberino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 612, 610 A.2d 1205 (1992).

The plaintiff contends that the broad legislative statements contained in the general considerations section of the regulations (§ 10.02) do not provide an independent basis for denying special permit applications. Instead, the plaintiff asserts, § 10.02 may be used solely to place restrictions on an approved permit and may not be used as an alternative to the standards contained in the technical considerations section of the regulations (§ 9). In essence, the plaintiff argues that once the specific requirements in § 9 are met, the permit must be granted, subject to any limitations that may be placed on that approval under the terms of § 10.02. Thus, according to the plaintiff, § 10.02 cannot serve as the sole basis for denying a special permit application, but can serve as the basis only for attaching conditions to the proposed plan. We do not agree.

“ ‘The terms special permit and special exception have the same legal import and can be used interchangeably. ... A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values. . . . Acting in this administrative capacity, the [zoning commission’s] function is to determine whether the applicant’s proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied. (Citations omitted; internal quotation marks omitted.) A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974).’ ” Felsman v. Zoning Commission, 31 Conn. App. 674, 677-78, 626 A.2d 825 (1993); Mobil Oil Corporation v. Zoning Commission, 30 Conn. App. 816, 819, 622 A.2d 1035 (1993).

In its decision, the trial court properly relied on Cameo Park Homes, Inc. v. Planning & Zoning Commission, 150 Conn. 672, 192 A.2d 886 (1963), to support its conclusion that a special permit application may be denied on the basis of the general considerations alone. In Cameo, our Supreme Court upheld the denial of a special permit for a garden apartment under the general considerations of a town’s regulations alone. The Cameo court concluded that “[t]he commission’s power to stipulate such restrictions as appear to it 'to be reasonable and the minimum necessary to protect property values in the district as a whole and the public health, safety and welfare’ necessarily implies the power to withhold its approval of the proposed use in its entirety if the commission finds that the circumstances warrant that action.” Id., 676-77.

The plaintiff attempts to distinguish Cameo on the basis of the language of the Middlefield regulations. In Cameo, the language of the regulations stated: “Before approving”; id., 674-75 n.l; while in this case the language of § 10.02.01 of the regulations states: “In authorizing.” See footnote 1. The plaintiff concedes that the words “Before authorizing” might allow the general considerations to be used as a basis for denying the permit. The plaintiff claims, however, that even if Cameo stands for the proposition that a permit may be denied under the general considerations, the use of the words “In authorizing” in § 10.02.01 of the Middle-field regulations is limiting language. That is, the “In authorizing” language limits the commission’s use of the general considerations to the attaching of conditions to an approved permit, and it cannot serve as a basis for denying the application. We do not find this argument to be persuasive.

It is well settled that in granting a special permit, an applicant must “satisf[y] all conditions imposed by the regulations.” (Emphasis added.) Weigel v. Planning & Zoning Commission, 160 Conn. 239, 246, 278 A.2d 766 (1971). Furthermore, “[o]n more than one occasion, our Supreme Court has held that standards set forth in the zoning regulations for the grant of a special permit may be general in nature.” Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn. App. 1, 7, 613 A.2d 1358 (1992). Moreover, in Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, supra, we specifically noted that the Cameo court rejected the limitation on the commission’s function urged by the plaintiff here. Id., 9. We cannot conclude that, by the use of the words “in authorizing,” the commission in its own regulations chose to surrender the otherwise broad discretion afforded to it by Cameo and its progeny. Therefore, the plaintiff’s claim that the general health, safety and welfare requirements contained in the regulations must be considered only for the purpose of placing conditions on a special permit and may not be considered in determining whether to deny or grant the permit must fail.

We now consider whether the evidence before the commission adequately supports the reasons given for its decision. “The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied. . . . When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. . . . The zoning [commission’s] action must be sustained if even one of the stated reasons is sufficient to support it. . . .” (Citations omitted; internal quotation marks omitted.) Felsman v. Zoning Commission, supra, 678.

The commission gave the following reasons for denying the special permit: (1) the proposed use would not be harmonious with the existing development in the district and would be detrimental to the orderly development of adjacent properties; and (2) the location, size, nature and intensity of the use would create a pedestrian and traffic hazard and would conflict with the traffic characteristics of the surrounding neighborhood. These reasons trace the language of §§ 10.02.01 (2) and 10.02.01 (3) (a) of the regulations. See footnote 1.

In its brief, the plaintiff points to the existence of conflicting evidence in support of its claim that the evidence before the commission did not support its decision. A reviewing court, however, cannot substitute its judgment as to the weight of the evidence for that of the commission. Housatonic Termino! Corporation v. Planning & Zoning Board, 168 Conn. 304, 306, 362 A.2d 1375 (1975). Furthermore, on factual issues material to the reasons for the commission’s decision, the credibility of witnesses is within the province of the commission. Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn. App. 159, 163, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988). “So long as it appears that an honest judgment has been reasonably and fairly exercised by the commission after full hearing, courts should be cautious about disturbing [the commission’s] decision.” Cameo Park Homes, Inc. v. Planning & Zoning Commission, supra, 677. Our examination of the record reveals that there was adequate evidence to support the commission’s reasons for denying the special permit.

The plaintiff’s second claim, in its statement of the issues, is that the trial court improperly reviewed the actions of the planning commission by applying the standard of discretion afforded to a zoning authority acting in its legislative capacity as opposed to its administrative capacity. Because the plaintiff failed to brief this argument, we deem it abandoned. Budlong v. Nadeau, 30 Conn. 61, 64, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290 (1993).

In its argument on this claim, however, the plaintiff contends instead that the commission, in reviewing and deciding to deny the special permit, acted in a legislative capacity, not in its administrative capacity. Although the plaintiff failed to raise this claim in its statement of the issues, as required by Practice Book §§ 4013 (a) (1) and 4065 (a), we will address it because it has been fully briefed. See DiSesa v. Hickey, 160 Conn. 250, 262-63, 278 A.2d 785 (1971); D’Arcy v. Shugrue, 5 Conn. App. 12, 28, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985).

“When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied.” Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56, 549 A.2d 1076 (1988). “Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process.” Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, supra, 6.

In this case, the planning commission considered only whether the plaintiff had met the requirements set forth in its previously established special permit regulations. Acting in a legislative capacity involves the creation of policy, not simply the application of previously established policy. If the planning commission had acted in its legislative capacity, it would have created its own policy and not simply applied a previously established policy. As there is no evidence of such legislative activity by the planning commission, the plaintiffs second claim must fail.

The judgment is affirmed.

In this opinion Schaller, J., concurred.

Dupont, C. J., dissenting.

I respectfully dissent from the result reached by the court in this case for two reasons. I conclude that under the express language of § 10.02.01 of the Middlefield zoning regulations, the commission could not deny the plaintiffs application for a special permit solely on the basis of a claimed failure to meet the general considerations enumerated in that section, and that the holdings of Cameo Park Homes, Inc. v. Planning & Zoning Commission, 150 Conn. 672, 192 A.2d 886 (1963), and Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn. App. 1, 613 A.2d 1358 (1992), do not apply to this case.

“When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied. ... It has no discretion to deny the special exception if the regulations and statutes are satisfied.” (Citation omitted.) Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56, 549 A.2d 1076 (1988).

The function of a special permit is to allow a property owner to use his property in a manner expressly permitted under the zoning regulations, subject to certain conditions necessary to protect the public health, safety, convenience, and surrounding property values. Mobil Oil Corporation v. Zoning Commission, 30 Conn. App. 816, 819, 622 A.2d 1035 (1993). The regulations permit the use here, and, therefore, a conclusive presumption arises that the use per se cannot adversely affect the zone in which it is to be conducted. TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 532-33, 577 A.2d 288 (1990). The presumption precludes a commission from denying a special permit because the use does not coincide with the general harmony of the particular zone. A special permit may be denied only for failure to meet specific standards in the regulations, and not for vague or general reasons. See DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970); accord Kosinski v. Lawlor, 177 Conn. 420, 423, 418 A.2d 66 (1979) (site plan). This is especially important because as we recently noted: “The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied.” Felsman v. Zoning Commission, 31 Conn. App. 674, 678, 626 A.2d 825 (1993).

Two recent cases dealing with site plan permits and subdivision approval, TLC Development, Inc. v. Planning & Zoning Commission, supra, and Sowin Associates v. Planning & Zoning Commission, 23 Conn. App. 370, 376, 580 A.2d 91 (1990), cert. denied, 216 Conn. 832, 583 A.2d 131 (1991), support the proposition that general considerations should not serve as the basis of a denial of an application. Although TLC involved an application for site plan approval, and Sowin Associates pertained to subdivision permits, the rationale of their holdings is equally applicable to special permit applications. Special permits, as do site plans and subdivision applications, allow a town to exercise greater control over the development of a specific parcel of land even though the proposed activity is explicitly permitted by the regulations. See Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 353, 232 A.2d 916 (1967). The TLC and Sowin courts have recognized that general considerations regarding compliance with public health and safety regulations do not provide a sufficient basis for rejection of a subdivision permit or site plan and have implicitly recognized that, instead, such approval should be given subject to restrictions or conditions.

In this case, the commission concedes that all of the specific requirements pertaining to special permits for excavation had been fulfilled by the plaintiff. In spite of the compliance with these requirements, the commission denied the permit on the basis that “[t]he proposed use would not be harmonious with existing development in the district and would be detrimental to the orderly development of adjacent properties” and that “[t]he location, size, nature and intensity of the use would create a pedestrian and traffic hazard and would conflict with the traffic characteristics of the surrounding neighborhood.” These reasons reflect the general conditions described in § 10.02.01 (2) and (3) (a).

The road, Whisper Wind Road, on which the plaintiffs trucks would pass in order to reach the area of excavation, is fifty feet wide and is an accepted public street in Middlefield. The site of the proposed activity is bound by land owned by the state, the town, a nonprofit conservation corporation and the road. The plaintiff intended to excavate from 7 a.m. to 3:30 p.m., Monday through Friday, and from 7 a.m. to noon on Saturday, with truck trips limited to five per hour. The commission could have imposed more stringent conditions, but I do not believe, given the language of the regulation and the nature of the use, that it could deny the permit altogether.

The language of the regulations in this case is fundamentally different from that of the regulations at issue in Cameo and Connecticut Health Facilities because it involves a different sequence of events. Here, § 10.02.01 of the regulations, entitled “General Considerations” and a subsection of § 10.02, entitled “Special Permits,” provides: “In authorizing the issuance of a special permit, the commission shall take into consideration the public health, safety and welfare and shall prescribe appropriate conditions and safeguards to insure the accomplishment of the following objectives . . . .’’(Emphasis added.) The regulation at issue in Cameo, § 20.2, stated: “The Commission may . . . approve the use after making special application of these regulations in harmony with their general intent by stipulating such restrictions as appear to the Commission to be reasonable and the minimum necessary to protect property values in the district as a whole and the public health, safety and welfare. Before approving any special case the Commission shall consider [various enumerated factors].” (Emphasis added.) Cameo Park Homes, Inc. v. Planning & Zoning Commission, supra, 675 n.l. The regulation in Connecticut Health Facilities, § 19.3.2, provided: “Special Exceptions shall be granted by the reviewing board only upon afind-ing that the proposed use or structure . . . is in accord with the public convenience and welfare after taking into account, where appropriate [various enumerated factors].” (Emphasis added.) Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, supra, 5 n.l.

Here, the commission is directed to take into consideration the various factors listed in the regulations during the course of approving the permit, rather than before granting the permit, or only upon a finding. The express language of § 10.02.01 permits the commission only to place conditions on the approval of the plaintiff’s application and does not allow it to deny the application altogether if the plaintiff has complied with the specific technical requirements for the permit.

Cameo and Connecticut Health Facilities do not mandate that a commission may deny a special permit application in toto in all cases. Both cases involve an application seeking a special permit for a use that would permanently effect a fundamental change in the character of the surrounding neighborhood, namely, the building of garden apartments and the construction of a nursing home and child day care facility, respectively. The use sought in this case would be of a limited duration and, after the completion of the project or the expiration of the time provided for the use, the effect on the surrounding neighborhood would cease. An absolute denial of a special permit should occur only in cases where it is impossible to address all of the concerns of the commission through the use of conditions. This was true in Cameo and Connecticut Health Facilities, but not in the present case. In my opinion, neither Cameo nor Connecticut Health Facilities stands for the broad proposition that a zoning commission has the option, in every case, either to grant the permit with restrictions or, alternatively, to deny it entirely, even though the applicant has complied with all technical requirements. These cases merely recognize that there are limited instances where the commission has the authority to deny the application in toto.

A zoning authority should not be able to insulate a denial of a special permit from reversal by an appellate court simply by stating a subjective conclusion such as the use is not in harmony with existing development or that the use would be detrimental because of an increase in traffic congestion. Daughters of St. Paul v. Zoning Board of Appeals, supra, 68. In those cases where the language of the regulations is similar to that of § 10.02, and the nature of the proposed use will not produce a permanent, fundamental change in the character of the neighborhood, I would hold that a commission does not have discretion to deny the application for a special permit but must grant it, subject to reasonable conditions and restrictions.

Because I believe that the case should be remanded to the commission with direction to grant the special permit, subject to such conditions as the commission deems necessary, I respectfully dissent.

       “Section 10.02. Special Permits
      “10.02.01. General Considerations: The Planning and Zoning Commission may, upon application, authorize the issuance of special permits where required for specific uses within these regulations. In authorizing the issuance of a special permit, the Commission shall take into consideration the public health, safety and welfare and shall prescribe appropriate conditions and safeguards to insure the accomplishment of the following objectives:
      * ** *
      “(2) That the proposed use shall be of such location, size, and character that, in general, it will be in harmony with the appropriate and orderly development of the district in which it is proposed to be situated and will not be detrimental to the orderly development of adjacent properties in accordance with the zoning classification of such properties.
      “(3) That, in addition to the above, in the case of any use located in, or directly adjacent to or served by way of, a residential district:
      “(a) the location and size of such use, the nature and intensity of operations involved in or conducted in connection therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from and in the vicinity of the use will not be hazardous or inconvenient to, or detrimental to the character of the Said residential district or conflict with the traffic characteristics of the neighborhood.” (Emphasis added.)

       Even if the plaintiff had briefed the argument, it would not have changed the outcome of this decision. There is nothing in the trial court’s memorandum of decision to suggest that the trial court applied the broader standard of review afforded an agency acting in its legislative capacity as opposed to that afforded to an agency acting in its administrative capacity.


author: O’Connell, J.

text:
    Dainty Rubbish Service, Inc. v. Beacon Hill Association, Inc.
    (11619)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued May 10
    decision released August 17, 1993

      Richard H. Pentore, for the appellant (plaintiff).

      Domenique S. Thorton, with whom, on the brief, was Nancy Conaway-Raczka, for the appellee (defendant).
   O’Connell, J.

This is a breach of contract action in which the plaintiff appeals from a judgment for the defendant rendered after a trial to the court. The plaintiff claims that the trial court improperly (1) construed the contract as being terminable at any time upon the giving of sixty days notice, (2) found that the defendant terminated the contract in a timely fashion, (3) found that the contract was a contract of adhesion, (4) applied the theory of estoppel, (5) found the contract to be unenforceable due to mutual mistake, and (6) found that the plaintiff failed to mitigate his damages. We reverse the judgment of the trial court.

The plaintiff corporation is in the garbage and trash collection business and the defendant is a residential condominium association. The parties entered into a written contract dated October 1, 1989, in which the plaintiff agreed to collect and remove garbage and trash from the defendant’s condominiums. The plaintiff’s president personally prepared the contract. On October 31, 1990, the defendant’s president signed a letter purporting to give the plaintiff a sixty day notice of termination of the contract as of December 31,1990. Additional facts are included in discussion of the individual issues.

The principal issue concerns the nature of the parties’ agreement. The plaintiff claims that the contract was for a five year term and was automatically renewable each year thereafter unless terminated by the defendant by giving sixty day notice prior to any anniversary date commencing with the first anniversary date after the expiration of the five year term. The defendant argues that the contract was terminable any year by a sixty day notice of termination.

The dispute arises from the use of the term “anniversary date” in two sections of the contract. The first paragraph of the contract provides that the plaintiff’s services would commence “the first day of October, 1989 for a period of five (5) years.” The paragraph concludes by stating that there would be a cost of living increase on the service charge “at each anniversary date.” On the second page, a paragraph entitled “Renewal” provides that the agreement would be automatically renewed “for a period of (1) year as of its anniversary date” unless the defendant notified the plaintiff of its “desire to terminate the service provided hereunder not less than sixty (60) days prior written notice.”

At trial, the plaintiff acknowledged that the “anniversary date” mentioned in each paragraph was the anniversary of the contract’s execution. He explained, however, that in the cost of living paragraph, the term referred to a date commencing one year after the contract was executed (i.e., October 1,1990), while in the automatic renewal paragraph, the term referred to a date commencing at the expiration of the five year contractual period (i.e., October 1, 1994). The defendant argued that in light of the two uses of the term, the contract was ambiguous and must be construed against the plaintiff. The trial court agreed and concluded that the contract was an agreement for one year rather than five years and that the defendant had properly terminated it.

The trial court relied on the principle that “[i]t is generally accepted . . . when two or more meanings may fairly be given to language in a contract, the language is to be construed against the one who drew it . . . and, likewise, the language of a contract is typically construed most strongly against the party whose language it is and for whose benefit it was inserted.” (Citation omitted; emphasis added.) Sturman v. Socha, 191 Conn. 1, 9, 463 A.2d 527 (1983). The court’s reliance on this principle, however, was misplaced. Before this rule of construction may be applied, there must be a determination that the terms of the contract are actually ambiguous. Kelly v. Figueiredo, 223 Conn. 31, 37, 610 A.2d 1296 (1992). In the present case, the language in each clause is sufficiently clear. The fact that the defendant argues to the contrary does not necessitate a conclusion that the term is ambiguous. Id. Consequently, the issue before the trial court was not the interpretation of ambiguous language, but rather, the construction of a contract containing inconsistent or conflicting clauses.

In treating the issue as one of ambiguity, the trial court rendered meaningless the clause providing that the plaintiffs services were to continue “for a period of five (5) years.” Parties do not ordinarily insert meaningless provisions in their agreements and, therefore, if it is reasonably possible to do so, every provision must be given effect. Mack Financial Corporation v. Crossley, 209 Conn. 163, 168-69, 550 A.2d 303 (1988); Hatcho Corporation v. Della Pietra, 195 Conn. 18, 23, 485 A.2d 1285 (1985); Roby v. Connecticut General Life Ins. Co., 166 Conn. 395, 402-403, 349 A.2d 838 (1974); Connecticut Co. v. Division 125, 147 Conn. 608, 617, 164 A.2d 413 (1960). We are reluctant to conclude that a contractual provision “constitutes a meaningless gesture by the parties.” Mack Financial Corporation v. Crossley, supra, 169. The rules of construction “dictate giving effect to all the provisions of a contract, construing it as a whole and reconciling its clauses. . . . Where two clauses which are apparently inconsistent may be reconciled by a reasonable construction, that construction must be given, because it cannot be assumed that the parties intended to insert inconsistent and repugnant provisions.” (Citations omitted.) Dugan v. Grzybowski, 165 Conn. 173, 179, 332 A.2d 97 (1973); Eastern Bridge & Structural Co. v. Curtis Building Co., 89 Conn. 571, 576, 94 A. 921 (1915).

In the present case, the construction set forth by the plaintiff is reasonable, given the different contexts within which the term is used in the two paragraphs. Unlike the construction employed by the trial court, the plaintiffs construction gives effect to all the clauses of the contract. So construed, the contract was for a five year term, automatically renewable each year thereafter unless terminated by the defendant by giving a sixty day notice commencing with the first anniversary date after the expiration of the five year term. In addition, the amount due for services rendered would be adjusted annually according to the cost of living clause commencing at the conclusion of the first year after execution. Accordingly, the trial court improperly concluded that the contract was for a one year term.

Because we conclude that this was a five year contract, the defendant had no right to terminate it short of the five year expiration date. We, therefore, do not reach the second claim, which is concerned with the validity of the defendant’s attempted early termination.

The plaintiffs third claim challenges the trial court’s finding that this was a contract of adhesion. The hallmark of a contract of adhesion is that its terms “are not subject to the normal bargaining processes of ordinary contracts.” Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988). In the present case, the contract, which was only two double-spaced pages long and drafted by the plaintiff’s president, was subjected to the bargaining process. This is evident in the addition of two amendments and clarifying language to the contract by the defendant’s president, Marcia L. Baker. At the bottom of the contract’s second page, Baker wrote: “With the proviso that if we can secure Middletown [municipal trash collection] services, we can terminate this contract.” She further wrote: “We will also be presented with an acceptable way to handle recycling mandated in January, 1991 by the State of Conn.” Additionally, Baker altered the contract’s first page, which originally provided for an unquantified yearly increase in the service charge. She wrote and initialed on that section of that contract, “COL,” thereby specifying that the increase would be a cost of living increase. Accordingly, because the contract itself reveals that it was subjected to negotiation, the trial court improperly found that it was one of adhesion.

The plaintiff next claims that the trial court improperly concluded that the plaintiff was estopped from denying that the contract was subject to renegotiation after one year because the plaintiff had indicated a willingness to renegotiate it. “There are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.” (Internal quotation marks omitted.) DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 544-45, 391 A.2d 170 (1978). The trial court made no factual finding of misleading words or conduct on the plaintiff’s part that were intended to influence the defendant to act to its detriment, nor did the trial court make a finding that the defendant changed its position as a result of any misleading conduct on the plaintiff’s part. We, therefore, conclude that the trial court improperly applied the theory of estoppel.

Finally, the plaintiff contends that the trial court improperly found that the contract was unenforceable because of mutual mistake. The court equated mutual mistake with the ambiguity it found as to the construction of the term “anniversary date.” We have concluded that there was no ambiguity as that term is used in the two paragraphs of the contract. In any event, mutual mistake exists where both parties are mutually mistaken about the same material fact. Buol Machine Co. v. Buckens, 146 Conn. 639, 641, 153 A.2d 826 (1959). There is no evidence that both parties were mutually mistaken about the same fact. They simply disagreed on the meaning of the contract. Consequently, the trial court improperly found that there was a mutual mistake.

We conclude that the plaintiff proved that the defendant breached the contract and that the judgment must be reversed. The issue of the plaintiffs damages was fully litigated, but because of the trial court’s conclusion as to the defendant’s liability, it made no findings concerning damages.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff and to determine damages.

In this opinion the other judges concurred.

       The defendant had been organized as a not-for-profit Connecticut corporation. Shortly before this contract was executed, the corporation was dissolved by the secretary of the state for failure to file its biennial report. General Statutes § 33-387 (b). The record is silent concerning reinstatement following this dissolution. Both parties, however, treated the defendant as having valid corporate existence. We will do likewise. See Blue v. Boroughf, 11 Conn. App. 213, 216, 526 A.2d 875 (1987).

       In view of our disposition of this appeal, an issue raised by the defendant concerning the exact date of execution is irrelevant.

       The paragraph provides: “THIS AGREEMENT, for waste collection and removal is made and entered into this first day of October, 1989 by and between BEACON HILLS CONDO ASSOCIATION (hereinafter referred to as ‘Account’) and DAINTY RUBBISH SERVICE, INC., (hereinafter referred to as ‘Dainty’). Dainty hereby agrees to perform the services set forth on the attached Schedule A, attached hereto and incorporated herein by reference, commencing the first day of October, 1989 for a period of (5) five years, payable according to the following schedule: The rate for the period commencing October 1,1989 will be THREE THOUSAND ONE HUNDRED ELEVEN AND 50/100 DOLLARS ($3,111.50) a month plus tax. There will be a [COL MRB] % increase on the service charge commencing at each anniversary date.”

       That paragraph provides: “This agreement shall be automatically renewed for a period of (1) year as of its anniversary date, unless Account shall have notified Dainty in writing, of its desire to terminate the service provided hereunder not less than sixty (60) days prior written notice.”

       “While interpretation and construction are generally regarded as synonyms and used interchangeably, it is not only possible, but desirable to draw a distinction. The word ‘interpretation’ is used with respect to language itself; it is the process of applying the legal standard to expressions found in the agreement in order to determine their meaning. ‘Construction,’ on the other hand, is used to determine, not the sense of the words or symbols, but the legal meaning of the entire contract . . . .” 4 S. Williston, Contracts (3d Ed. Jaeger 1961) § 602, p. 320.

       This principle is so well embodied in the law that it even applies to the construction of insurance policies; see Kelly v. Figueiredo, 223 Conn. 31, 36, 610 A.2d 1296 (1992); A. M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622, 220 A.2d 32 (1966); notwithstanding the law’s predilection toward construing contracts of insurance in favor of the policyholder and against the insurance company. See Kelly v. Figueiredo, supra, 36-37; Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991); Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987).