author: HULL, J. SCHALLER, J.

text:
    STATE OF CONNECTICUT v. TERRELL LEDBETTER
    (13306)
    (13407)
    Foti, Schaller and Hull, Js.
    Argued October 23, 1995
    officially released May 21, 1996

      Helen L. Edmonds and Dina S. Wenger, special public defenders, with whom, on the brief, was Linda L. Morkan, special public defender, for the appellant-appellee (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee-appellant (state).
   HULL, J.

The defendant, Terrell Ledbetter, was charged by an information with one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), one count of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), and one count of carrying a dangerous weapon in violation of General Statutes § 53-206 (a).: In addition, he was charged with being a persistent felony offender in violation of General Statutes § 53a-40 (d).* ** The jury found the defendant guilty on the first three charges, and the court found him not guilty of being a persistent felony offender. The trial court imposed a sentence of twenty years incarceration, to be suspended after fifteen years, and three years of probation with special conditions.

The defendant appeals his convictions of robbery in the first degree, larceny in the second degree, and carrying a dangerous weapon. The state appeals the defendant’s acquittal by the trial court of the persistent felony offender charge. We affirm the judgment of the trial court on both the appeal and the cross appeal.

I

The defendant first claims that the state violated his constitutional privilege against self-incrimination under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, by failing to advise him of his Miranda rights prior to his presentence interview. He claims that any statements he made at that time were involuntary and, therefore, inadmissible at his sentencing hearing. He claims that this renders the entire sentencing phase of his trial void as a matter of law. He asks that a new sentencing hearing be held. Because this claim is first raised on appeal, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

A constitutional claim not raised at trial may, under certain exceptional circumstances, be reviewed on appeal. Id. “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id. In the present case, we focus on whether the appellant has provided an adequate record for review.

“The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” Id., 240. In order to determine whether the record is adequate for review, we must consider the specific claim raised, and whether the record provided is adequate for meaningful review of that claim.

The defendant claims that he was not advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prior to the presentence interview, in violation of his state and federal constitutional rights. An individual is entitled to be advised of his Miranda rights prior to any “custodial interrogation” in order to protect his privilege against self-incrimination and to ensure that all confessions used against him are knowingly and voluntarily made. Id. Therefore, we must determine whether a custodial interrogation took place.

The definition of custody is not the same for every purpose. The United States Supreme Court has stated, for example, that “custody for purposes of Miranda has been more narrowly circumscribed” than, for instance, custody for purposes of federal habeas corpus. Minnesota v. Murphy, 465 U.S. 420, 430, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1983). “Although the circumstances of each case must certainly influence a determination of whether a suspect is in custody for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977)]. State v. Pittman, [209 Conn. 596, 608, 553 A.2d 155 (1989)], quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983). A person is in custody only if a reasonable person would have believed he was not free to leave. State v. Hoeplinger, [206 Conn. 278, 286-87, 537 A.2d 1010 (1988)]. We must look at the totality of the circumstances of the questioning in order to determine whether a reasonable person would have construed those circumstances as placing him in a custody situation. Id., 287.” (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 76, 621 A.2d 728 (1993).

“[T]he Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices . . . .” (Emphasis added.) Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). However, “the definition of interrogation [for purposes of Miranda] can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Emphasis in original.) Id., 301-302. Interrogation must also “reflect a measure of compulsion above and beyond that inherent in custody itself.” Id., 300. “ ‘[W]e must decide whether a [given curtailment of freedom of action] exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.’ ” United States v. Willoughby, 860 F.2d 15, 23 (2d Cir. 1988), quoting Berkemer v. McCarty, 468 U.S. 420, 437, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).

It is undisputed that the defendant in this case was incarcerated at the time of the presentence interview. “Although one who is imprisoned has in one obvious way been deprived of his freedom . . . the mere fact of imprisonment does not mean that all of a prisoner’s conversations are official interrogations that must be preceded by Miranda warnings. Rather, [fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.” (Citation omitted; internal quotation marks omitted.) United States v. Willoughby, supra, 860 F.2d 23.

“Custodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers’ will and to confess. Miranda v. Arizona, [supra, 384 U.S. 456-57], . . . Moreover, custodial arrest thrusts an individual into ‘an unfamiliar atmosphere’ or ‘an interrogation environment . . . created for no purpose other than to subjugate the individual to the will of his examiner.’ Id., [457], Many of the psychological ploys discussed in Miranda capitalize on the suspect’s unfamiliarity with the officers and the environment. . . . Finally, the coercion inherent in custodial interrogation derives in large measure from an interrogator's insinuations that the interrogation will continue until a confession is obtained. Id., [468], Since [the defendant] was not physically restrained and could have left the office, any compulsion he might have felt from the possibility that terminating the meeting would have led to revocation of probation was not comparable to the pressure on a suspect who is painfully aware that he literally cannot escape a persistent custodial interrogator.” Minnesota v. Murphy, supra, 465 U.S. 433.

“[A] number of circuits have concluded that the fact of incarceration does not of itself make a prisoner’s statements involuntary. See, e.g., United States v. Conley, 779 F.2d 970, 972-73 (4th Cir. 1985), cert. denied, 479 U.S. 830, 107 S. Ct. 114, 93 L. Ed. 2d 61 (1986); Flittie v. Solem, 751 F.2d 967, 974 (8th Cir. 1985), cert. denied, 475 U.S. 1025, 106 S. Ct. 1223, 89 L. Ed. 2d 333 (1986); Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir. 1978).” United States v. Willoughby, supra, 860 F.2d 23. In Willoughby, the Second Circuit stated: “[The defendant’s] conversation with [the informant] was voluntary and thus did not require Miranda warnings. Though [the defendant] was indeed a prisoner, not free to leave [the prison], there was nothing in the circumstances that suggested any measure of compulsion above and beyond that confinement.” Id., 24.

Similarly, in Flittie v. Solem, supra, 751 F.2d 974, the Eighth Circuit held that an inmate’s recorded statements to an informant during a prison visit were not involuntary. The court stated: “While Flittie may have been constrained within the penitentiary walls, he was not forced to remain in the visitors’ room with [the informant]. Thus the imprisonment did not produce a coerced statement.” Id., 974 n.11. The fact that he was free to terminate the conversation “at his pleasure” was a factor in determining whether the statements were coerced. Id., 974-75. In United States v. Willoughby, supra, 860 F.2d 24, the court stated: “Though [the defendant] was not free to leave [the prison], he was free to cut off a conversation with a visitor . . . .” Therefore, despite the fact that the statements were secretly recorded, the statements did not require Miranda warnings. Id.

In the present case, the only information in the record as to whether the defendant was “in custody” for purposes of Miranda at the time of the presentence interview is that the defendant was incarcerated. The record is totally silent as to the circumstances under which the presentence interview was conducted. We can not determine from the record before us whether any questioning occurred, let alone any questioning likely to “elicit an incriminating response” or to make the defendant feel coerced, and therefore constituting an interrogation. For all this court can tell from the record, the defendant may not have been asked a single question at the presentence interview and may have been informed that he could leave at any time.

We conclude that the fact of incarceration alone is not sufficient to establish that a “custodial interrogation” occurred. The defendant has failed to provide an adequate record for this court to determine the issue sought to be raised under Golding, and has therefore failed to satisfy the first prong of Golding. The defendant is not entitled to review of this claim.

II

The defendant next claims that the trial court should not have admitted the testimony of Officer Gerald Antunes of the New Haven police department. The defendant claims that the testimony was inadmissible because it did not quality either as a prior consistent statement or as a business record, and did not satisfy the best evidence rule. We need not consider those issues, however, because we conclude that the defendant has failed to demonstrate that the admission of the testimony at issue was harmful to him. He, therefore, cannot prevail on this claim.

“It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). The question is whether the claimed erroneous action of the trial court is likely to have affected the result of the trial. State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); State v. Gonzales, 196 Conn. 115, 119, 491 A.2d 1067 (1985). State v. Torrice, 20 Conn. App. 75, 91, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989). . . . [0]ur inquiry focuses on the impact of the improperly introduced evidence on the jurors’ perceptions and understanding of the other evidence presented in the case, rather than an analysis of the sufficiency of the remaining evidence to uphold the conviction in the absence of the admission of the [allegedly improperly admitted] evidence .... See Swenson v. Sawoska, 215 Conn. 148, 152-53, 575 A.2d 206 (1990).” (Internal quotation marks omitted.) State v. Merritt, 36 Conn. App. 76, 92, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995) (certification improvidently granted). Erroneously admitted evidence is not grounds for reversal if the court “cannot conclude . . . that the jury’s perceptions of the other evidence presented in this case . . . were so affected by the improperly admitted testimony . . . that it is likely that the result of the trial would have been different in the absence of [that evidence].” Id., 93.

The defendant claims that the admission of Antunes’ testimony “harmed the defendant both by the admission of facts that were not established by any other evidence, and by adding credibility to [the victim’s] testimony.” He also claims that the admission of the statements regarding a search for the perpetrator was harmful because the court “specifically found that these facts were relevant to the issues of flight and consciousness of guilt, which the state discussed in its closing argument, and on which the court instructed the jury at the close of evidence.” The defendant claims that this testimony was the only evidence of consciousness of guilt presented. We find that even if the admission of this testimony was erroneous, we cannot say that it is likely to have affected the result of the trial or that it was probably harmful to the defendant.

The following facts are relevant to this issue. At trial, Antunes testified to his duty as keeper of the records for the police department and to the type of record that is made when a complaint is received. He also testified that a complaint was received from the alleged victim in this matter at 12:24 a.m. on the evening of the alleged robbery. On the basis of the police dispatch cards, Antunes testified as to the complaint received from the victim and the response of the police department to the complaint. He also testified that the complainant reported a robbery at Wintergreen and Famham Avenues at approximately 12:24 a.m. on the date in question. He further testified that three officers were dispatched to the area approximately one-half hour later. Antunes also testified that the officers reported at approximately 4:07 a.m. that they were “going to this particular search” for the alleged perpetrator, who was not named, in the area of Rockville Circle. Antunes testified that the search lasted until approximately 4:23 a.m., and that it was unsuccessful.

The defendant claims that Antunes’ testimony “bolstered” the victim’s testimony that he reported a robbery on the date in question. It is obvious, however, even without the testimony that the victim reported that a robbery had occurred because, had no report been made, there would be no case before this court. Therefore, even if the testimony was erroneously admitted, we cannot say that Antunes’ testimony that the victim reported a robbery on the date in question “probably impacted the jurors’ perceptions and understanding of the other evidence presented by the state” or that it was “probably harmful” to the defendant.

The defendant next claims that if Antunes’ testimony had not been admitted, the only admitted evidence directly linking the defendant to the crimes charged would have been the victim’s testimony. Antunes, however, did not identify the defendant as the perpetrator in his testimony. His testimony, therefore did not directly link the defendant to the crimes charged, and the victim’s testimony remains the only testimony directly linking the defendant to the crimes. Therefore, we cannot say that Antunes’ testimony “probably impacted the jurors’ perceptions and understanding of the other evidence presented by the state” relating to whether the defendant was the perpetrator, or that it was “probably harmful” to the defendant.

The defendant also claims that Antunes’ testimony was the sole source of information that police searched for the defendant at Rock View Circle and failed to find him. Antunes did not testify, however, that the police searched for the defendant on the morning of November 4, 1991. He testified only that the police conducted a search of the area in question some time after the alleged incident, and that the search was not successful. The defendant was not identified as the object of the search. We cannot say that Antunes’ testimony in this regard “probably impacted the jurors’ perceptions and understanding of the other evidence presented by the state” or that it was “probably harmful” to the defendant.

The defendant further claims that the testimony relating to an unsuccessful search was harmful to the defendant because the court specifically found the facts relating to an unsuccessful search relevant to issues of flight and consciousness of guilt, which the state discussed in its closing argument and on which the court instructed the jury at the close of evidence. Contrary to the defendant’s claim, however, the testimony of Antunes regarding the unsuccessful search was not the only evidence of the defendant’s flight and consciousness of guilt. The victim testified that after the robbery on the date in question, “[The defendant] vanished. He was gone .... Yes, he ran. He vanished.” When subsequently asked whether he ever saw the defendant again after the date in question, the victim testified: “I saw him a couple times, but he was ducking. He knows my car. He knows the car anyway. He was ducking. I saw him in West Haven and I saw him in New Haven a couple times.” In light of this testimony regarding flight and consciousness of guilt, Antunes’ is not the sole testimony regarding these issues. Further, the search did not occur until some time after the alleged robbery. Therefore, the fact that no perpetrator was found at that time does not appear to be critical to the issues of flight and consciousness of guilt. We cannot say that Antunes’ testimony in this regard “probably impacted the jurors’ perceptions and understanding of the other evidence presented by the state” or that it “probably harmed” the defendant.

The defendant also argues that the record reflects that the jury actually considered Antunes’ testimony in reaching its verdict. In his brief, the defendant claims that “[d]uring its deliberations, the jury specifically asked to see the police report filed by J. Douglas. The court responded to the jury that ‘[tjhere was a reference to a report by Lieutenant Antunes, but that was not introduced as a full exhibit.’ This exchange between the jury and the court indicates that the officer’s testimony likely played a key role in the jury’s deliberations.”

The court’s response to the jury’s request made it clear to the jury that the police report was not an exhibit, and the police report was not provided to the jury. Thus, the jury was correctly advised as to the proper status of the police report, and the record provides no indication that the jury subsequently improperly considered either the report in question or any testimony relating to it. Further, the only information provided by Antunes’ testimony was that previously discussed, with respect to which we cannot say that the testimony “probably impacted the jurors’ perceptions and understanding of the other evidence presented by the state” or that it “probably harmed” the defendant. We cannot say that in the absence of any of the challenged evidence, it is likely that the result of the trial would have been different. Therefore, the defendant cannot prevail on this issue.

Ill

In its cross appeal, the state raises the issue of whether the persistent felony offender provision of § 53a-40 (d) requires that commission of the second offense occur after conviction and sentencing on the first offense.

The defendant was convicted of attempted kidnapping in the second degree and sexual assault in the first degree. As the trial court stated in its memorandum of decision: “Each charge emanated from a separate incident committed against different victims on different dates and was the subject of a separate information. However, the defendant pleaded guilty to the two charges at the same time. Subsequently . . . the defendant was sentenced to concurrent terms of imprisonment of six years for each of these offenses at the same disposition proceeding.” On the basis of those convictions, the defendant was charged with being a persistent felony offender. The trial court found the defendant not guilty of that charge.

General Statutes § 53a-40 (d) provides: “A persistent felony offender is a person who (1) stands convicted of a felony other than a class D felony, and (2) has been, at separate times prior to the commission of the present felony, twice convicted of a felony other than a class D felony.” (Emphasis added.) Thus, the persistent felony offender statute, on its face, requires that the defendant have been convicted of the predicate offenses at separate times. The state argues that “it appears the [Commission to Revise the Criminal Statutes] in adopting the ‘at separate times’ language, merely intended to follow the New York and Model Penal Code requirement that the first and second offense stem from separate transactions.”

“As is true in every case involving the construction of a statute, our starting point must be the language employed by the legislature.” Verdon v. Transamerica Ins. Co., 187 Conn. 363, 366, 446 A.2d 3 (1982). “[W]ell defined principles of statutory interpretation . . . require us to ascertain and give effect to the apparent intent of the legislature. ... If the language of a statute is plain and unambiguous, we need not look beyond the statute because we assume that the language expresses the intention of the legislature.” (Citations omitted.) State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). The words used by the legislature in a statute must be given their ordinary meaning and must be construed with common sense. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983).

Moreover, “ [c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986). “A penal statute must be construed strictly against the state and liberally in favor of the accused.” State v. Torres, 206 Conn. 346, 355, 538 A.2d 185 (1988). “It is a fundamental tenet of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. . . . We must construe statutory language strictly to avoid imposing criminal liability where none is expressly intended by the legislature.” (Citation omitted; internal quotation marks omitted.) State v. Jacobson, 31 Conn. App. 797, 802, 627 A.2d 474 (1993). “ When a[n] . . . unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.’ Bouie v. Columbia, 378 U.S. 347, 354-55, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964) . . . .” (Citation omitted.) State v. McGann, supra, 177.

Our Supreme Court has not addressed the meaning of the phrase “at separate times . . . twice convicted” in § 53a-40 (d). The Maryland Court of Special Appeals, however, in reviewing Maryland’s mandatory sentencing provision, considered the meaning of the phrase “ ‘convicted on two separate occasions of a crime of violence where the convictions did not arise from a single incident . . . (Emphasis added.) Lett v. State, 51 Md. App. 668, 677, 445 A.2d 1050 (1982). In doing so, that court held that “the term ‘two separate occasions’ has a plain meaning and is not fairly susceptible of an interpretation other than that of two unconnected, distinct, or unique times.” Id., 679. We conclude that the language “has been, at separate times . . . twice convicted” in § 53a-40 (d) likewise cannot mean anything other than conviction at “two unconnected, distinct, or unique times.” Id. This defendant’s convictions were indisputably rendered on a single occasion.

We conclude that in the present case the defendant’s prior convictions were not rendered “at separate times.”

The judgment is affirmed.

In this opinion FOTI, J., concurred.

SCHALLER, J.

dissenting. I agree with parts I and II of the majority decision. I disagree, however, with part III, in which the majority holds that the persistent felony offender provision of General Statutes § 53a-40 (d) requires that the convictions of prior felonies must have occurred at separate times from each other even when the convictions arose out of entirely distinct incidents that occurred at separate times.

It is important to emphasize what is involved in this case. As the trial court indicated: “Each [prior conviction] emanated from a separate incident committed against different victims on different dates and was the subject of a separate information.” By virtue of the fortuities of the scheduling process, the defendant pleaded guilty to the two crimes on the same day and received concurrent sentences. My analysis of § 53a-40 (d) leads me to conclude that persistent felony offender status arises when the first two felonies were committed at separate times, that is, arose out of separate incidents. This position is consistent with a reasonable interpretation of the statutoiy language, and is supported by the reasoning of our Supreme Court in State v. Clemons, 168 Conn. 395, 408-409, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80 (1975), and State v. Dolphin, 203 Conn. 506, 523, 525 A.2d 509 (1987).

My disagreement is based on fundamental principles of statutory interpretation. “ ‘[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.’ ” State v. Burns, 236 Conn. 18, 22, 670 A.2d 851 (1996), quoting State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80 (1995). “ ‘It is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1184 (1990). That axiom applies in full force, however, only “[w]here . . . the language of a statute is . . . absolutely clear” on its face and where no ambiguity is raised in applying the statute in a particular case. . . . Anderson v. Ludgin, 175 Conn. 545, 554, 400 A.2d 712 (1978) ....’” (Citation omitted; emphasis in original.) Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992).

I disagree with the majority — but agree with the trial court — that the language of § 53a-40 (d) is ambiguous. I note initially that the language of the statute can be read in a variety of ways. A literal reading appears to require the conviction of two felonies (“twice convicted”) at more than one time (“at separate times”). Could the legislature have intended a minimum of four prior convictions before persistent felony status attached? Aside from that literal reading, it is unclear whether the language “at separate times” creates a time differential between the two prior convictions or merely a time differential between the present conviction and both prior convictions. Common sense and logic suggest that the legislature would have anticipated that, under normal circumstances, prior convictions involving separate incidents would occur on separate dates. On the basis of that premise, the legislature logically adopted the present language to cover such a situation.

Moreover, this is a situation in which “application of the statute . . . reveals a latent ambiguity in seemingly unambiguous language”; Rose v. Freedom of Information Commission, supra, 221 Conn. 227; because it creates “unworkable results.” State v. Cain, 223 Conn. 731, 744, 613 A.2d 804 (1992). Our Supreme Court stated that “even if a statute is considered clear on its face if a literal interpretation of that statute would lead to unworkable results, resort to other aids to determine legislative intent is appropriate.” Id., 744. The result reached by the majority in the present case is clearly unworkable. Persistent felony offender status would hinge on the fortuities and uncertainties of the criminal plea and sentencing process — not to mention being subject to potential manipulations by participants in the process. A defendant who was convicted on different days of two offenses that arose out of a single incident could be charged as a persistent felony offender. On the other hand, a defendant in the present situation could not be so charged. I cannot believe that the legislature contemplated such an unpredictable and absurd result.

The majority cites a Maryland Court of Appeals decision, Lett v. State, 51 Md. App. 668, 677-80, 445 A.2d 1050 (1982), in support of its conclusion that § 53a-40 (d) is unambiguous and has a plain meaning. That case is distinguishable, however, because the Maryland court applied a different standard of statutory construction. That court was bound by an earlier Maryland decision in which it was held that, even though the persistent felony offender statute before it was “ ‘neither sensible nor reasonable and manifestly leads to an absurdity,’ ” the court was “ ‘not at liberty to depart from’ ” a strict construction of the statute. Id., 678. Under the strict rules of statutory construction in Maryland, therefore, it could not render a common sense interpretation.

Fortunately, we are not so constrained. The law of our state permits us to look further in order to ascertain the legislative meaning where unartful statutory language creates an inherent ambiguity. State v. Cain, supra, 223 Conn. 744; Rose v. Freedom of Information Commission, supra, 221 Conn. 227. In People v. Preuss, 436 Mich. 714, 461 N.W.2d 703 (1990), the Supreme Court of Michigan was also not so constrained. In interpreting Michigan’s fourth time habitual offender statute, Michigan Compiled Laws § 769.12, the court “recogniz[ed] the well-established principle that a literal reading of a statute may be modified if that reading leads to a clear or manifest contradiction of the apparent purpose of the act, or if necessary to correct an absurd and unjust result . . . .” People v. Preuss, supra, 721. After examining the statute’s legislative history, purpose and cases from other jurisdictions, the court concluded: “The statute requires only that the fourth offense be preceded by three convictions of felony offenses, and that each of those three predicate felonies arise from separate criminal incidents.” Id., 717.

I now undertake a similar examination of § 53a-40 (d). Unfortunately, the legislative history provides minimal illumination. Whereas the trial court found support in the legislative history to formulate a theory that the statute has a rehabilitative purpose, I conclude that the legislative history suggests a punitive purpose for the statute. Because the legislative history is essentially inconclusive, however, we must turn to other methods of statutory construction.

In ascertaining the legislative puipose, my analysis differs from that of the majority and the trial court concerning the puipose of the statute and the degree of strictness with which the statute should be read. First, our Supreme Court’s decision in State v. Clemons, supra, 168 Conn. 395, while not directly on point, is analogous to the present situation. In that case, which involved a prior statute, General Statutes (Rev. to 1969) § 54-121, our Supreme Court rejected a defendant’s claim that because he was given concurrent sentences on two convictions, one in 1966 and one in 1968, he could not be found to have been twice sentenced. State v. Clemons, supra, 408-409. The court held that they clearly were “separate judgments” and “separate terms of imprisonment” because, even if one could be modified, the defendant still would have to serve the entirety of the other. Id., 407-408. That reasoning, whereby the court rejected the idea that third offenders must have two separate chances to reform, is highly persuasive here. Id., 407-409.

Second, both the majority and the trial court rely on the rule of lenity in order to bolster their interpretations. The rule of lenity seems oddly out of place in this situation, however, in view of our Supreme Court’s decision in State v. Dolphin, supra, 203 Conn. 506, in which the court made it clear that General Statutes (Rev. to 1987) § 53a-40 (a) is designed to provide increased punishment. The court stated that “it is clear that the purpose of this statute is to provide increased punishment for those who have committed dangerous felonies and have been deemed dangerous to society, regardless of the date of conviction and imprisonment.” Id., 523. The court, therefore, rejected the defendant’s argument that because § 53a-40 is a penal statute, any ambiguity should be resolved in favor of lenity, preferring instead to apply the “presumption that the legislature intends to accomplish a reasonable and rational result rather than a ‘ “difficult and possibly bizarre” ’ one.” Id., 524, quoting State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987).

Clemons and Dolphin lead me to conclude that neither the rule of lenity nor any claimed rehabilitative purpose can serve as an appropriate basis for an interpretation of § 53a-40 (d). Without support for the trial court’s theory that rehabilitation is the primary purpose of this statute, there is no basis whatever on which to conclude that the first two convictions must be rendered on separate occasions. It would be anomalous to have one person found guilty of being a persistent felony offender because he committed two felonies in separate incidents and was convicted on separate occasions, while another person, who also committed two felonies in separate incidents, not be considered a persistent felony offender because, by mere happenstance, he was convicted of both felonies on one occasion. Compare State v. Dolphin, supra, 203 Conn. 524.

The only sensible way of reading the statute is to interpret it as requiring that the first two convictions arise out of separate criminal incidents, as they did here. That interpretation fulfills the punitive purpose that appears in the legislative history and that was underscored by our Supreme Court in Dolphin. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) State v. Guckian, 226 Conn. 191, 201, 627 A.2d 407 (1993), quoting Warkentin v. Burns, 223 Conn. 14, 20, 610 A.2d 1287 (1992).

Accordingly, I would reverse the judgment of acquittal on the persistent felony count and remand for a new trial on that count alone.

For all the foregoing reasons, I respectfully dissent.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another. . . .”

       General Statutes § 53-206 (a) provides in relevant part: “Any person who carries upon his person . . . any knife the edged portion of the blade of which is four inches or over in length . . . unless such person has been granted a written permit issued and signed by the first selectman of a town, the mayor, chief of police of a city or the warden of a borough, authorizing such person to carry such weapon or instrument within such town, city or borough, shall be fined not more than five hundred dollars or imprisoned not more than three years or both. . .

       General Statutes § 53a-40 (d) provides: “A persistent felony offender is a person who (1) stands convicted of a felony other than a class D felony, and (2) has been, at separate times prior to the commission of the present felony, twice convicted of a felony other than a class D felony.”

       The plaintiff and defendant brought separate appeals. The court consolidated the two appeals on April 15, 1994.

        “Miranda warnings are independently required under article first, § 8, of the Connecticut, constitution to the same extent that they are required under the federal constitution.” State v. Williams, 227 Conn. 101, 115, 629 A.2d 402 (1993), citing State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987).

       The trial court stated that “most jurisdictions that have determined the issue of chronology of convictions have resorted to statutory construction, the legislative history of the statute and the case law of other jurisdictions with other similar provisions. . . . However, the most decisive factor appears to be the courts’ determination of the purpose behind their persistent felony offender provisions.” Thus, while the trial court did not expressly state that it found § 53a-40 (d) ambiguous, it clearly resorted to tools of statutory construction beyond the language of the statute.

       Section 53a-40 (d) provides that in order to be punished as a persistent felony offender, the defendant must have been “at separate times prior to the commission of the present felony, twice convicted of a felony other than a class D felony.” (Emphasis added.)

       Article 27, § 643B (c), of the Michigan Compiled Laws provides in pertinent part: “Anyperson who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident” may be sentenced as a persistent felony offender.

       The court specifically cited holdings from Hawaii, Nevada, and every United States Court of Appeals. People v. Preuss, supra, 436 Mich. 735.

       In examining this issue, the Supreme Court of Michigan evaluated both its existing law and its predecessor statute. People v. Preuss, supra, 436 Mich. 721. Michigan’s existing law, § 769.12, provides in pertinent part: “If a person has been convicted of 3 or more felonies, attempts to commit felonies, or both . . . and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows . . . .” “Before that, the language was somewhat different: ‘A person who after having been 3 times convicted ... of felonies or attempts to commit felonies .. . commits any felony within this state . . . may be sentenced upon conviction of such fourth or subsequent offense to ... . [1949 P.A. 56; 1929 P.A. 24; 1927 P.A. 175.]” People v. Preuss, supra, 720-21. The court continued: “While the original language of the statute clearly requires that the fourth offense be committed after the three prior convictions, and the present language probably requires the same, neither contains any requirement that a fourth offender’s three prior offenses, convictions, or sentences occur in any particular sequence.” Id., 721.

       In responding to a question of the effect of No. 80-422 of the 1980 Public Acts, Representative Alfred Onorato stated: “Well, it seems what it would do is lock somebody up on the third offense if it is a felony.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1980 Sess., p. 1148. In addition, Chief State’s Attorney Austin McGuigan stated that the “persistent felony offender statute . . . recognizes the need that some people, who are committing violent predatory street crimes, must be incarcerated for the streets to be safe.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5,1980 Sess., p. 1161.1 conclude that the trial court’s theory that the statute has exclusively a rehabilitative purpose excludes “other penal goals such as taking repeat offenders off the streets for especially long periods, or simply visiting society’s retribution upon repeat offenders more severely.” Deal v. United States, 508 U.S. 129, 136, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993).

         General Statutes (Rev. to 1987) § 53a-40 (a) provides: “A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in ihe first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1, 1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) or (2).”

       The court specifically found that: “It would be anomalous to have one person found guilty of being a persistent dangerous felony offender because he committed the crime of assault with intent to kill, was convicted and imprisoned prior to October 1, 1971, while another person, who committed the same crime on the same day, not be considered a persistent dangerous felony offender because, by mere happenstance, he was not convicted and imprisoned until after October 1, 1971. Such a result would undermine the legislative intent of § 53a-40 and would frustrate the purpose of the persistent dangerous felony offender statute.” State v. Dolphin, supra, 203 Conn. 524.


source: Caselaw Access Project

author: HEIMAN, J.

license: Public Domain

text:
    CELLU TISSUE CORPORATION v. BLAKE EQUIPMENT COMPANY
    (14606)
    Dupont, C. J., and Heiman and Hull, Js.

      Argued January 18
    officially released May 21, 1996

      Lois A. Frankforter, for the appellant-appellee (defendant).

      James A. Zeller, with whom, was F. Timothy McNamara, for the appellee-appellant (plaintiff).
   HEIMAN, J.

The defendant appeals from the judgment rendered in favor of the plaintiff after a trial to the court. The plaintiff cross appeals. The defendant claims that the trial court improperly (1) decided the case on a theory of negligence not raised in the complaint and (2) found that the defendant was negligent based on the facts presented at trial. The plaintiff asserts that the trial court improperly determined that the plaintiff failed to sustain its burden of proof as to its breach of contract claim. We affirm the judgment of the trial court.

The following procedural facts are relevant to a resolution of this appeal. This case arose out of a two count complaint filed by the plaintiff, a tissue paper manufacturing company, against the defendant, a boiler repair company. The first count sounded in negligence, and the second count sounded in breach of contract. The plaintiff sought to recover damages from the defendant arising out of the failure of the plaintiffs boiler. The defendant filed a special defense alleging that the losses of the plaintiff were caused by the plaintiffs negligence. The trial court found the defendant 50 percent negligent and the plaintiff 50 percent contributorily negligent. The court also found that the plaintiff had not sustained its burden of proof as to its breach of contract claim. The court awarded damages to the plaintiff in the net amount of $29,036.64.

I

The defendant first claims that the trial court improperly decided the case on a theory of negligence not pleaded in the complaint, namely, the failure of the defendant to advise the plaintiff to monitor the water level of the boiler. We do not agree.

In the first count of its complaint, the plaintiff alleged that the defendant was negligent in its responsibilities regarding the repair of the malfunctioning boiler. According to the complaint: “[T]he Defendant . . . was called to the [plaintiffs] plant because it was experiencing problems with [the] boiler water level. The [defendant] was hired to repair the level controls so that the device would work correctly. The Defendant undertook the responsibility to see to it that the water level control equipment operated in a proper way and was charged with a duty to so do by virtue of the purposes for which it was retained by the Plaintiff. . . . It was the responsibility of the Defendant to see to it that all functions of the level control of the boiler level devices were performing properly so that the type of occurrence that occurred to this boiler would not occur. That is if a low water level situation developed the devices with which the boiler was equipped would deal with them properly, and shut down the boiler. ... By reason of the Defendant’s breach of its duty that it . . . undertook to see to it that these levels properly operated in a low water level position, so as to protect the boiler and as a result of that failure by the Defendant, the Plaintiff has suffered the damages herein before set forth.” (Emphasis added.)

The trial court made the following relevant findings of fact. On Thursday, August 23, 1990, the defendant found that the water in the plaintiffs boiler was not keeping up to the proper level and concluded that the modulating motor on the boiler needed to be changed. The defendant proceeded to order a new motor. At that time, however, the defendant did not conduct the tests necessary to pinpoint the problem with the boiler because the plaintiff did not want to shut down the boiler. The defendant, however, cautioned the plaintiff to check the water level of the boiler regularly. On Friday, August 24,1990, the defendant advised the plaintiff that the new motor had arrived and could be installed on that day. The plaintiff asked the defendant to wait until Monday, August 27, 1990, to install the new motor because the plaintiff needed the boiler for production. The plaintiff monitored the boiler throughout the weekend, closely at times and not so closely at other times. On Sunday, August 26, 1990, the plaintiff discovered that water was leaking from the boiler, and a subsequent inspection revealed that serious damage had occurred to the inside of the boiler. The trial court concluded that the damage to the boiler occurred because there was an insufficient level of water maintained in the boiler to protect it from overheating.

The trial court determined that the defendant was negligent in failing (1) to run a complete test of the boiler prior to the weekend in order to pinpoint the problem with the boiler, and (2) to advise the plaintiff in sufficiently specific language and in writing, particularly in view of the fact that a new modulating motor had been ordered and that there might be a problem with the primary water cutoff, that operation of the boiler could not be safely continued without twenty-four hour surveillance of the water level. According to the defendant, the trial court improperly determined that the defendant was negligent on the second ground because that ground was not pleaded by the plaintiff in the complaint.

“It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint. . . . Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). However, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988); Fuessenich v. DiNardo, 195 Conn. 144, 150-51, 487 A.2d 514 (1985). As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery. Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990) , on remand, 24 Conn. App. 377, 588 A.2d 656 (1991) , rev’d, 222 Conn. 233, 610 A.2d 574 (1992); Giul-letti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 434, 534 A.2d 213 (1987); see also Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57 (1987); see also Practice Book §§ 108 and 109.

“Furthermore, a judgment ordinarily cures pleading defects .... Tedesco v. Stamford, supra, 215 Conn. 458. The absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike, however, is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice. [I]f parties will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found. . . . Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect. . . . Id., 457.” (Internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496-97, 646 A.2d 1289 (1994).

The gravamen of the plaintiffs complaint was that the defendant was negligent in not seeing to it that the plaintiffs boiler operated properly following the time that the plaintiff retained the defendant to examine and rectify the problem with the malfunctioning boiler. The trial court agreed with the plaintiff and, on the basis of the evidence presented at trial, the court made specific determinations regarding the defendant’s failure to exercise its responsibilities concerning the oversight and repair of the boiler. The trial court found that these responsibilities included the defendant’s obligations to test the boiler adequately and to advise the plaintiff clearly to monitor the boiler during the time period prior to the defendant’s installation of the new motor. We decline to read the plaintiffs complaint in the narrow and technical manner suggested by the defendant in order to conclude that the trial court improperly made findings that did not comport with the allegations of the complaint. The complaint alleged that the defendant was negligent in failing to make sure that the boiler operated properly pursuant to its employment by the plaintiff, and the court found such negligence. The trial court’s findings, when examined in light of the complaint, did not allow for recovery under a theory of negligence that deviated from the general allegations of the complaint so as to surprise or prejudice the defendant. See id., 496. Moreover, the case was pleaded and tried on the general premise that the defendant’s negligence somehow created the condition that resulted in the plaintiffs damages, and the defendant does not claim here that the trial court improperly admitted any evidence presented at trial in support of the plaintiffs claim. The defendant contested the case on the basis of the evidence presented at trial and has not shown us that it raised any questions at trial regarding any defects in the plaintiffs complaint. See id., 497.

II

The defendant’s remaining claims on appeal and the plaintiffs claim on cross appeal are attacks on the factual findings of the trial court. Both parties claim that the trial court made improper findings based on the evidence introduced at trial. We disagree with these claims.

“We note initially that [t]he factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40—41, 632 A.2d 1134 (1993).” (Internal quotation marks omitted.) Miceli v. Helper, 40 Conn. App. 336, 340-41, 671 A.2d 826 (1996).

The factual issues in this case were clearly in dispute and much of the evidence was complex in nature. The trial court carefully examined the evidence presented and filed a thorough memorandum of decision regarding its findings. The court determined that the defendant was 50 percent negligent and that the plaintiff was 50 percent contributorily negligent. The trial court also found that the plaintiff had failed to meet its burden of proof as to its breach of contract claim. Subsequent to the trial court’s filing of its memorandum of decision, neither party filed a motion to correct or a motion for articulation as to the trial court’s findings. Our examination of the record leads us to conclude that ample evidence existed to support the trial court’s findings and that no mistake was committed by the trial court in reaching its findings. Thus, we conclude that the trial court’s findings are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant raises the following issues regarding the factual findings of the trial court: “[1] Did the court err in finding that the defendant was negligent in failing to advise the plaintiff that the boiler should be monitored on a twenty-four hour basis, where the court found that the plaintiff knew that the boiler should be monitored on a twenty-four hour basis. [2] Did the court err in finding the defendant negligent for failing to perform certain tests where the court found that the plaintiffs conduct prevented the defendant from performing those tests. [3] Where the court did not find that the cause of the loss was the defendant’s failure to test, is the trial court’s judgment sustainable.” (Emphasis in original.)

       The plaintiff characterizes the defendant’s claim as one of “variance” between the pleadings and the proof offered at trial. The defendant claims, however, only that the trial court improperly decided the case on a theory of negligence not pleaded in the plaintiffs complaint. The defendant makes no claim that the evidence offered at trial varied from the allegations of the complaint. We note, however, that even if the defendant had made a claim of “variance,” such a claim would have failed on the ground of waiver. As we stated, the defendant has not shown that it objected to any evidence at trial that may have varied from the allegations of the complaint. “The appeal process should not be utilized to correct pleading deficiencies which could have been remedied in the trial court. Fuessenich v. DiNardo, [supra, 195 Conn. 149], The failure to object to the [evidence] constituted a waiver of any variance between the pleadings and the proof. Samson v. Bechtel, 180 Conn. 96, 100, 429 A.2d 820 (1980).” Girgenti v. Cali-Con, Inc., 15 Conn. App. 130, 135, 544 A.2d 655 (1988); see also Tedesco v. Stamford, supra, 215 Conn. 461 (“ ‘[t]he proper way to attack a variance between pleadings and proof is by objection at the trial to the admissibility of that evidence which varies from the pleadings, and failure to do so at the trial constitutes a waiver of any objection to such variance’ ”).


author: DUPONT, C. J.

text:
    PHILIP IRELAND v. TOWN OF WETHERSFIELD
    (14401)
    Dupont, C. J., and Heiman and Spear, Js.
    Argued March 19
    officially released May 21, 1996

      Robert Heagney, for the appellant (plaintiff).

      Kerry R. Callahan, with whom, on the brief, was Jennifer A. Osowiecki, for the appellee (defendant).
   DUPONT, C. J.

The plaintiff applied, on July 3, 1990, for relief, pursuant to General Statutes §§ 12-117a and 12-118, from a claimed excessive tax valuation of his real estate by the defendant town of Wethersfield for each assessment year from 1989 to the date of any judgment. The property was assessed in connection with a decennial revaluation of real estate required by General Statutes § 12-62. The trial court found, relying on the town’s assessment, that the true and actual value of the property on October 1, 1989, was $769,000 and that its assessed value was 70 percent of that value or $538,300.

The court rendered judgment reducing to that figure the assessment that the town had made, from which the plaintiff appeals, claiming that the court improperly (1) took judicial notice of the judgment in another action between the same parties, (2) failed to take into account the presence of wetlands on the property, (3) allowed the town’s assessor to testify as to the value of the property without personal knowledge of it or knowledge of specific comparable property sales, and (4) kept the burden of proof on the plaintiff after the plaintiff showed that the defendant’s valuation was erroneous.

The trial court concluded that the highest and best use of the property was for residential purposes, namely, as a subdivision with twelve building lots. It found that on the assessment date in question, October 1,1989, “the plaintiffs subdivision was a viable subdivision with subdivision approval and wetlands commission approval,” and that “[1]ots in the subdivision could have been sold if the plaintiff had provided the suitable guarantee required by the town of Wethersfield that all public improvements would be completed.”

The issues revolve around the difference of opinion between the plaintiff and the defendant as to what was the highest and best use of the land, which in turn rests on the status or readiness of the parcel’s development for sale as building lots, and the proof necessary for a finding of an excessive valuation. The plaintiffs appraiser testified that the highest and best use of the land was recreational and that it should be valued as one parcel whereas the defendant’s assessor argued its best use was as individual residential building lots.

The trial court, in its memorandum of decision, outlined the zoning and wetlands permit history of the plaintiffs eight acre parcel. It was purchased in the 1960s and in 1980, the plaintiff obtained subdivision approval for twelve building lots, with the restriction that he would not convey any lots until all public improvements were made to the satisfaction of the town. In addition to his application to the planning and zoning commission, the plaintiff applied to the inland wetlands and watercourses commission for permission to conduct work on wetlands located on the eight acres. His application for a wetlands permit was granted, and, pursuant to it, he installed storm sewers and sanitary sewer lines, filled in wetlands and conveyed title to roads and open space wetlands to the town. In September, 1990, and thereafter, the building inspector refused to issue a building permit on the ground that the permit issued by the wetlands commission in 1980 had expired. The plaintiffs second application for a wetlands permit was also denied in October, 1990. On May 4, 1991, the town informed the plaintiff by letter that the town did not recognize the 1980 wetlands permit as valid. In a separate suit, brought by the plaintiff against the town, and decided on September 24, 1993, another trial court held that the unilateral invalidation of the wetlands permit in 1990 by the town was invalid and that the permit of the wetlands commission issued in 1980 continued in full force and effect.

The plaintiffs appraiser valued the property at $206,000 and the defendant’s appraiser, at $769,000. The plaintiffs appraiser deemed the land to be best suited for recreational use, but, according to the trial court, used comparable sales that were unrelated to such use in establishing value. The defendant’s assessor testified that he had studied land sales in Wethersfield for three years prior to revaluation and that he based his valuation of the plaintiffs lots on sales of forty to fifty lots or larger parcels. He did not, however, cite any particular comparable sale or sales to support his valuation of the plaintiffs property. He ascribed a value to each lot and then reduced that value by 50 percent because the improvements to the subdivision were not complete as of the assessment date.

The first two claims of the plaintiff are intertwined. If the plaintiff had a wetlands permit as of October 1, 1989, the presence of wetlands would make little difference in value. If the plaintiff did not have such a permit, the presence of the wetlands would affect the value because, without the permit, the plaintiff would not have twelve building lots.

The plaintiff primarily bases his argument that the defendant’s assessment was excessive on the claim that the defendant erroneously based its assessment on the belief that the plaintiff had a wetlands permit as of October 1, 1980. The plaintiff testified that he had been told by the town’s head building inspector in the summer of 1989 that he did not have an approved wetlands permit. He did not introduce any other evidence to substantiate the fact that he did not have a viable wetlands permit as of October 1, 1989.

Because the court took judicial notice of a separate action between the same parties in the Superior Court that determined that the plaintiff did have a permit from the wetlands commission on October 1, 1989, the plaintiff claims to have been harmed. He claims that that fact should not have been in evidence because it was a fact found in the parallel case in September, 1993, which could not be applied retroactively to the situation as it existed on October 1, 1989. It was the plaintiff, however, who introduced the memorandum of decision in that case as an exhibit at trial. There is nothing in the record to establish that the trial court applied the holding of the case retroactively or relied on the resolution of the separate action to find that a wetlands permit existed as of October 1, 1989. Other than the plaintiffs testimony, which the trial court did not find credible, there was no evidence that the plaintiffs wetlands permit was not valid as of that date. We, therefore, conclude that the court’s finding that the plaintiff had the requisite permits to use his land as a subdivision with twelve building lots, and that the highest and best use of the land was as residential building lots was proper.

The plaintiff also claims that the town assessor’s testimony should be discounted because he had no personal knowledge of the plaintiffs property or of any particular comparable sales when he determined its assessment value.

A private firm prepared the valuation of the plaintiffs property on the basis of land sales in the entire town over a three year period. The town’s assessor called this a “broad comparable sales approach” but did not compare specific sales of property similar to that of the plaintiff. The plaintiff claims that the trial court could not base its conclusion as to value on an allegedly impermissible method of valuation, namely a “broad comparable sales approach.”

A trial court hears a § 12-117a tax appeal case de novo; Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 25 n.1, 633 A.2d 1368 (1993); with the burden of proof on the taxpayer who claims aggrievement to prove that the assessor’s valuation is not the true and actual value of the property. Executive Square Ltd. Partnership v. Board of Tax Review, 11 Conn. App. 566, 571, 528 A.2d 409 (1987). A trial court need not defer to an assessor’s value in the absence of any evidence as to how the assessment value was determined. Carol Management Corp. v. Board of Tax Review, supra, 37. Thus, an insufficiency of data or the selection of an inappropriate method of valuation can be the basis for not crediting an appraisal report as to value. See Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 343, 597 A.2d 326 (1991). An assessor’s valuation, therefore, is not granted a presumption in favor of its validity. Stamford Apartments Co. v. Stamford, 203 Conn. 586, 525 A.2d 1327 (1987).

If an assessment is based on a method of valuation that is invalid as a matter of law; see Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 100, 626 A.2d 1292 (1993); or if factors prevent a trial court from correctly determining whether the assessment is based on the true and actual value, or the fair market value of the property, it cannot be upheld. See Grosso-manides v. Wethersfield, 33 Conn. App. 511, 517, 636 A.2d 867 (1994).

The defendant is attempting to rely on general probabilities to establish values of land for purposes of a decennial revaluation. There are instances where a general mathematical formula applicable to all land similarly zoned may be used in the absence of any comparable land sales. See Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 674-76, 154 A.2d 608 (1969). This case, however, is not one of them. Here, there were many comparable land sales cited as a group by the assessor, but no sale was cited to substantiate the valuation of the plaintiffs property by the assessor. Even when a method of valuation based largely on a mathematical process applicable to all real estate with the same use may be used, the true and actual value as established by the assessment cannot be upheld on appeal to the trial court if the plaintiff can show that the factors used in the mathematical process were improper and resulted in an unjust assessment. Id., 676.

In Burritt Mutual Savings Bank, the assessor valued all land located in a business zone according to a basic unit valuation of land, without regard to the particular land of the plaintiff taxpayer. The factors involved in the basic unit valuation were known, however, to the plaintiff who could have established, therefore, that the factors used were improper, resulting in an unjust and illegal assessment. Id., 676-81. The plaintiff in the present case could not show that the factors involved in the “broad comparable sales approach” led to an excessive tax because no factors, except a general view that land values were rising, were described or enumerated in the assessor’s testimony.

The trial court did not find the fair market value of the plaintiffs expert or his view of the highest and best use of the land to be worthy of acceptance, and it, therefore, could properly reject that expert’s opinion. The court, however, was then left without sufficient evidence to determine whether the assessment of the town would result in the payment of an unjust tax. If an appeal is taken from a judgment that is based on a trial court’s finding of true and actual value, which finding is not based on evidence that can form the basis for such a finding, there must be a new trial. See Burritt Mutual Savings Bank v. New Britain, supra, 146 Conn. 680-81; Grossomanides v. Wethersfield, supra, 33 Conn. App. 517.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The plaintiff amended his application on November 29, 1994, and the trial court rendered its final decision on January 10, 1995.

       There is no authority for the proposition that the burden of proof ever shifts from an aggrieved taxpayer to the town in an action brought pursuant to § 12-117a, and we need not discuss the claimed issue.

       Under the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45, an inland wetlands municipal agency may grant permits to conduct regulated activities. The permits are valid for five years, and the agency may not extend the original permit beyond ten year's from the date such permit was granted. General Statutes § 22a-42a (d). Neither the plaintiff nor the defendant relies on this section to substantiate whether the wetlands permit had expired by October 1, 1989, by operation of law.

       The defendant did not introduce an appraisal report into evidence. His only exhibits were a map of the plaintiffs property and twelve assessment cards for the twelve subdivided building lots.

       Excerpts from the cross-examination of the defendant’s assessor follow:
      '‘Q. Mr. Dagata, can you identify for this court one comparable that you relied upon in making this judgment?
      “A. No, I can’t identify one. It takes a long explanation.
      “Q. Okay. That’s fine. That's what I kind of thought the result would be. Now, you indicated there was an increase in value in properties in 1985. You also testified you heard the testimony this morning of Mr. Sjostrom that that market peaked in 1988. Do you agree with that?
      “A. No.
      “Q. And when do you think the market peaked?
      “A. I did a month-by-month study of all the sales in Wethersfield from the period of early 1988 through early 1990, and it peaked in March of 1989, to be exact.
      “Q. So it was going down when we get to October of 1989.
      “A. It was pretty flat that summer. It just started the downward trend in the latter pari, near October of 1989; that’s correct.

        “Q. And in those — in your experience, in looking at undeveloped land, when did that peak?
      “A. I would say about the same time.
      “Q. Do you have any records that would inform the court of that, that you’ve maintained, and you personally have indicated?
      * * *
      “A. . . . The valuation of the — base valuation of land in Wethersfield has remained pretty constant right through, you know, to September of 1990. And there are still residential subdivisions being built in Wethersfield.”
      The only other testimony of the assessor as to the value of building lots in terms of comparables was as follows: “I’ve looked at each parcel as an individual parcel, whether or not [the plaintiff] owned all of them or anybody else owned all of them. They’re each individual parcels. We had lot sales in Wethersfield in that time period, even in lesser neighborhoods in excess of $130,000 each, and going up to $190,000 for a one-half acre lot in Wethers-field at point in time.”
      On redirect examination, the defendant’s assessor testified as follows:
      “Q. Mr. Dagata, among the three recognized methods of appraisal, what method did you employ in evaluating Ireland Estates as of October, 1989?
      “A. In a broad sense, we use the comparable sales approach.
      “Q. All right. In what period did you look at for comparables?
      “A. 1987 right up until mid 1989.
      “Q. All right. And did you look at individual lot sales?
      “A. Yes.
      “Q. Did you do that because you were appraising individual lots?
      “A. Yes.
      “Q. If you can look, Mr. Dagata, at plaintiffs exhibit C, which, I believe, is in front of you, what’s the range of sizes of the lots that make up Ireland Estates?
      “A. Okay. They’re not indicated on here, but to the best of my recollection, they average around a one-half acre, plus or minus, most of them plus. That would be on — I can give it to you exactly, because they’re on the property records.
      “Q. Take a look at those, and I don’t need the exact for each one, but if you can give us an idea as to the size of these parcels.
      “A. Okay. It looks like a range of one-half acre to eight tenths of an acre, some of them at sixty-five hundredths and some of them at three quarters of an acre.
      “Q. Now, Mr. Dagata, in your review of comparables and for purposes of evaluating Ireland Estates and other properties, how many land sales did you review for the period that you’ve described of lots in the one-half an acre to eight tenths of an acre range?”
      The plaintiff objected to this question and the defendant’s eliciting of any further testimony from the assessor as to specific comparables. The defendant then withdrew the question.

       The court, in sustaining the plaintiffs objection to any further testimony of the defendant’s assessor on redirect examination to expand on his statement on cross-examination that he could not identify one comparable in making his judgment as to value, noted as follows:
      “The Court: The purpose of this hearing is to afford the court with enough information to make some determination on the value of the property as of October 1, 1989. And I’ve heard some testimony. I’m not prepared to review what I have heard until I’ve heard all of the evidence, and have had an opportunity to hear argument of counsel. But this case presents a substantial problem for the court. And being able to analyze and to determine what the factors are that go into making up the value of this case. You’re technically correct, Mr. Heagney [plaintiffs counsel], that, from our strict procedural rules, that we have a direct examination, and then the cross-examination, and the redirect limited to the area of the cross. And the witness did not go into the comparables on direct examination. And, I gather, Mr. Callahan [defense counsel] is now seeking to have him go into those comparables. It seems that comparables, whether they come in from the plaintiffs appraiser, or the defendant’s appraiser, are certainly factors for the court to consider. But we do have certain rules and procedure. So if you raise as an objection, I will sustain the objection.”
      “Mr. Callahan: Well, Your Honor, if I may be heard on the objection.
      “The Court: Yes.
      “Mr. Callahan: Well, I think what happened on direct is I did ask Mr. Dagata how these properties were evaluated. On cross, Mr. Heagney attacked the way in which Mr. Dagata valued the properties. What I am attempting to do now is, you know, discuss that issue. As an offer of proof, you know, Mr. Heagney attempted to cast the shadow of a doubt over Mr. Dagata’s evaluation, because he couldn’t name the comparables. What I’m trying to demonstrate to Your Honor, as the finder of facts, as an offer of proof, what he did.
      “The Court: Well, but I do recall, at least on the direct examination, the witness did not go into the comparables. And my memory doesn’t serve me that well, but it seems to me that there were — in the reevaluation, that wasn’t necessarily the assessor that did the field work, and I’m not sure that — well, he did not testify to specific comparables, and now it’s coming out . . . .”


author: SPEAR, J.

text:
    BENNIE EPPS v. BEIERSDORF, INC., ET AL.
    (14847)
    Dupont, C. J., and Spear and Hennessy, Js.
    Submitted on briefs February 13
    officially released May 21, 1996

      Lawrence D. Church filed a brief for the appellant (plaintiff).

      Michael T. Bologna filed a brief for the appellees (defendants).
   SPEAR, J.

The plaintiff appeals from the decision of the workers’ compensation review board (board) affirming the compensation commissioner’s dismissal of the plaintiffs claim for workers’ compensation benefits. The plaintiff claims that the board improperly found that his workplace exposure to chemicals was not an aggravating factor or substantial causal factor that worsened his preexisting respiratory condition. The plaintiff also claims on appeal that the board improperly failed to find that his diagnosed occupational disease, industrial bronchitis, was entirely compensable by his employer. We agree with the plaintiffs first claim, but not with his second. Accordingly, we reverse the decision of the board and remand the case for further proceedings.

The record discloses the following relevant facts and procedural history. The plaintiff was employed as a chemical compounder at Beiersdorf, Inc. (employer), from 1985 through October 30,1990. His responsibilities during this time involved working in a room with no windows or ventilation, mixing chemicals with a paddle in a large vat.

In 1987, the plaintiff received treatment for a viral infection and began to experience pain in his chest and shortness of breath. He also complained of episodes where he had spit up blood. These symptoms persisted until October 30,1990, at which time the plaintiff sought medical treatment at Stamford Hospital. The treating physician at the hospital released the plaintiff to return to light duty work, but on November 5, 1990, he was authorized to leave work when his symptoms persisted.

The plaintiff began treatment at Yale-New Haven Hospital. Garland Jackson, a physician specializing in occupational medicine, diagnosed the plaintiffs condition as industrial bronchitis that “is more probably than not a direct result of [his] employment at Beiersdorf, Inc.” The employer’s insurance carrier then arranged for the plaintiff to be examined by Thomas Godar, an independent medical examiner specializing in pulmonary diseases. Godar concluded that the plaintiffs “workplace exposure was not the cause of his condition, but was an aggravating factor on his already existing hyper-reactive airways, upon which was superimposed [the plaintiffs] 1987 viral infection, inducing clinical asthma.” Godar also testified that the plaintiff was able to return to work as of June, 1991, provided that he would not be exposed to volatile chemicals. Both physicians testified that the plaintiff has a permanent partial disability of each lung.

The commissioner, in dismissing the plaintiffs claim for benefits, found that the plaintiff had failed to sustain his burden of proving that he sustained an injury or disease arising out of and in the course of his employment. The board affirmed the decision of the commissioner and this appeal followed.

Pursuant to the statutory provisions governing workers’ compensation claims, “[a] disease is compensable as an injury ... if it arises out of and in the course of the employment . . . and . . . if it is an occupational disease that is peculiar to the occupation in which the employee was engaged . . . .” (Citations omitted; internal quotation marks omitted.) Hansen v. Gordon, 221 Conn. 29, 32, 602 A.2d 560 (1992); see also General Statutes § 31-275 (1) and (15). Furthermore, § 31-275 (1) (D) provides for compensation where the employee’s employment causes an aggravation of a preexisting disease. Compensation for such aggravation, however, “shall be allowed only for that proportion of the disability .. . due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based.” General Statutes § 31-275 (1) (D); see also Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 156 (1992).

I

The plaintiff claims that the commissioner improperly determined that he had not proved that his continued employment aggravated his preexisting respiratory disease. “In viewing the [issue] raised in this case, we are mindful of the remedial purposes of the Workers’ Compensation Act and that it should be broadly construed to accomplish its humanitarian purpose.” (Internal quotation marks omitted.) Hansen v. Gordon, supra, 221 Conn. 32, quoting Adzima, v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979); see also Ash v. New Milford, 207 Conn. 665, 672, 541 A.2d 1233 (1988). “Nevertheless, we also recognize that the legislature did not intend ... to transform the Workers’ Compensation Act into a general health and benefit insurance program . . . .” Hansen v. Gordon, supra, 32.

“In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990); see also Fair v. People’s Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). “Our scope of review of the actions of the review [board] is similarly limited. . . . The decision of the review [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Capen v. General Dymanics Corp., 38 Conn. App. 73, 79-80, 659 A.2d 735 (1995), quoting Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994).

Applying these principles to the facts of this case, we conclude that the record contains no evidence on which the commissioner could have reasonably relied in determining that the plaintiffs exposure to chemicals while employed as a compounder did not aggravate his preexisting respiratory condition. While we recognize that great deference is afforded to the commissioner’s conclusions; Six v. Thomas O’Connor & Co., 235 Conn. 790, 801, 669 A.2d 1214 (1996); our review of the record reveals only facts that support a finding that the plaintiffs respiratory condition was aggravated by his constant exposure to chemicals. Where the commissioner’s conclusion is not sustainable by the underlying facts or reasonably supported by the evidence, we have the authority to disturb that conclusion on appeal. Id., 799.

The board, in reviewing the decision of the commissioner, addressed Godar’s testimony that the plaintiffs workplace exposure was an “aggravating factor.” The board found that it was within the commissioner’s discretion to interpret such testimony so as to preclude the application of § 31-275 (1) (D). The board concluded that “it is clear from the substance of [Godar’s] testimony that he was referring to the tendency of the chemicals to irritate the condition the claimant had acquired as a result of the viral infection, and not to a worsening of the claimant’s condition caused by his exposure to ‘nonspecific irritants.’ ” Relying on this interpretation of the testimony, the board concluded that “the commissioner could reasonably have relied on . . . Godar’s testimony in concluding that the [plaintiff] did not prove that his disease was caused or aggravated by occupational exposure within the meaning of the Workers’ Compensation Act.” We disagree with the board’s conclusion.

Our review of the record reveals uncontradicted medical testimony indicating that the plaintiffs constant workplace exposure to chemicals aggravated his respiratory condition. Only two physicians testified before the commissioner. Jackson, the plaintiffs treating physician at Yale-New Haven Hospital, testified that the plaintiffs industrial bronchitis “is more probably than not a direct result of [his] employment at Beiersdorf, Inc.” Godar, an independent medical examiner retained by the employer’s insurance carrier, then testified that the plaintiffs “workplace exposure was not the cause of his condition, but was an aggravating factor on his already existing hyper-reactive airways . . . .” The board interpreted this testimony to support the conclusion that the plaintiffs exposure irritated, but did not aggravate, his preexisting respiratory condition within the meaning of § 31-275 (1) (D). This interpretation, however, overlooks a fundamental tenet of workers’ compensation law, namely that an employer takes the employee in the state of health in which it finds the employee. See Cashman v. McTernan School, Inc., 130 Conn. 401, 409, 34 A.2d 874 (1943); Prisco v. North & Judd, supra, 10 Conn. Workers’ Comp. Rev. Op. 157. Furthermore, Godar used the word “aggravating” and not “irritating.” We conclude, therefore, that the plaintiff established that his condition was, indeed, aggravated by his employment as a chemical compounder within the meaning and spirit of § 31-275 (1) (D), and that the commissioner’s contrary finding is not supported by the subordinate facts.

II

The plaintiff also claims on appeal that the board improperly failed to find that his diagnosed occupational disease, industrial bronchitis, was entirely com-pensable by his employer. The plaintiffs claim is contrary to the plain language of § 31-275 (1) (D) and relevant case law interpreting that statute.

Section 31-275 (1) (D) entitles an employee whose preexisting disease is aggravated by his or her employment to be compensated for that aggravation. Compensation, however, “shall be allowed only for that proportion of the disability . . . due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based.” General Statutes § 31-275 (1) (D). The plaintiff relies on our Supreme Court’s decision in Henry v. Keegan, 121 Conn. 71, 75, 183 A. 14 (1936), for the proposition that the employer bears the burden of proving the extent of the aggravation. The plaintiff also asserts that where an employer fails to prove what portion of an employee’s disease is attributable to the workplace exposure, that employee shall be entitled to full compensation for treating the disease. See Romaniec v. Collins Co., 107 Conn. 63, 66-67, 139 A. 503 (1927). We conclude that the application of this latter principle to the facts of this case is inappropriate.

The commissioner determined that the plaintiff had not suffered a workplace injury or disease. Consequently, the employer did not submit evidence on the issue of apportionment. Our conclusion that the plaintiff did, in fact, sustain a compensable injury now necessitates a determination as to what proportion of the disease is attributable to the aggravation he suffered while employed as a chemical compounder. This determination can be made by the commissioner only after conducting a hearing on the issue. See Cashman v. McTernan School, Inc., supra, 130 Conn. 409 (Supreme Court remanded case to commissioner to determine extent of employer’s liability).

The decision of the workers’ compensation review board is reversed and the case is remanded to the board with direction to remand the case to the commissioner to determine the extent of the employer’s liability for compensation.

In this opinion the other judges concurred.

       Jackson testified that the plaintiff has a 15 percent disability of each lung whereas Godar testified that the permanent partial disability totaled 10 percent.

       The decision in Henry was subsequently overruled on other grounds in Cashman v. McTernan School, Inc., supra, 130 Conn. 409. In Henry v. Keegan, supra, 121 Conn. 71, the Supreme Court determined that the statutory provision providing for the apportionment of liability applied to all diseases. Subsequent to that decision, the Supreme Court in Cashman, relying on its earlier decision in Bongialatte v. Lines Co., 97 Conn. 548, 552, 117 A. 696 (1922); concluded that the provision applies only to occupational diseases. In the present case, the record clearly indicates, and the plaintiff concedes in his brief, that his industrial bronchitis constitutes an occupational disease.