author: DRANGINIS, J.

text:
    JUDY DIVITO v. BRIAN DIVITO
    (AC 22445)
    Foti, Dranginis and Bishop, Js.

      Argued January 6
    officially released May 27, 2003

      Robert S. Kolesnik, Jr., for the appellant (defendant).

      Arnold M. Potash, with whom, on the brief, was Kenneth M. Potash, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

The defendant, Brian DiVito, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Judy DiVito. On appeal, the defendant claims that the court improperly (1) awarded the plaintiff twice as much equity as the defendant in two parcels of real estate after indicating that it intended to divide the real estate equally between the parties, (2) found that the parties had agreed on the value of the defendant’s one-half interest in one parcel of real estate, (3) allowed extensive dialogue by counsel for the parties during the defendant’s case, which prevented the defendant from presenting his case and (4) found that the defendant had had an extramarital affair. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. On September 7, 2000, the plaintiff filed for a dissolution of the marriage on the ground of irretrievable breakdown. A trial was held on September 26, 2001, and on October 11, 2001, the court issued a memorandum of decision in which it rendered judgment dissolving the marriage of the parties on that ground.

In its memorandum of decision, the court also made the following findings of fact. The parties were married in Naugatuck on April 22,1978. At the time of the dissolution, there were two adult children issue of the marriage, both of whom resided in the marital home with the plaintiff. Prior to the marriage, the plaintiff earned a bachelor’s degree from Southern Connecticut State University. She worked as a schoolteacher at the time the parties were married. After the children were bom, the plaintiff ceased working full-time and stayed at home to raise the children. When the children went to grade school, the plaintiff became employed for the borough of Naugatuck, where she worked for the next ten years as a full-time director of a child care program. The plaintiff claimed that while she was working in that position, she was subjected to harassment. The harassment was so severe that it ultimately caused her to resign. It also added a great deal of stress to the marriage. For the past two years, the plaintiff has been employed as a director of a child development program at Taft School in Watertown. In 1985, the plaintiff was diagnosed with cancer. She underwent two successful surgeries and has been cancer free since that time. At the time of the dissolution, the plaintiff was in generally good health.

The defendant graduated from Central Connecticut State University with a bachelor’s degree in business. He has worked at a local bank throughout the marriage and, at the time of dissolution, was the bank manager. The court further found that both parties were responsible for the breakdown of the marriage, but that the defendant’s extramarital affair contributed more to the breakdown of the marriage.

Additionally, the court found that the parties had worked equally hard throughout the marriage to acquire the marital assets listed on their respective financial affidavits, including the marital home, which they purchased about one year after they were married. The parties agreed that at the time of dissolution, the market value of the marital home was $165,000 and was encumbered by a mortgage of $62,000 for a net total equity of $103,000. At that time, the defendant also had a one-half interest in his mother’s home at 67 Hickory Road in Naugatuck (Hickoiy Road property). That property had a market value of $130,000 and a mortgage of $26,000. The court found that the parties agreed that the defendant’s interest in that property was $52,000.

In the judgment of dissolution, the court issued orders concerning, inter alia, distribution of the marital assets of the parties, including the two parcels of real estate, the marital home and the Hickory Road property. Specifically, the court ordered the defendant to transfer his interest in the marital home to the plaintiff and ordered the plaintiff to hold the defendant harmless from any liability related to that property. Additionally, the court ordered the plaintiff to release any interest she may have had in the Hickory Road property to the defendant.

On October 30, 2001, the defendant filed a motion for reargument, clarification or articulation. In his motion, the defendant first contended that page seven of the court’s October 11, 2001 memorandum of decision contemplated an equal division of the total equity in the two parcels of real estate, yet, the court awarded the plaintiff the marital home, which had $103,000 in equity and awarded the defendant the interest in the Hickory Road property, which had only $52,000 in equity. The defendant argued that the court, therefore, must have made a mathematical error in dividing the real estate. Second, he contended that the court improperly valued his one-half interest in the Hickory Road property. Third, the defendant contended that the court improperly determined that he had engaged in an extramarital affair and that the affair contributed more to the breakdown of the marriage than other factors, without first allowing the defendant to be heard on what he believed was the cause of the breakdown of the marriage.

On November 30, 2001, the court heard argument on the defendant’s motion for reargument, clarification or articulation. In its January 18, 2002 memorandum of decision on the defendant’s motion, the court elaborated on the rationale for its orders. The court explained that it awarded the plaintiff the marital home, not because of a mathematical error, but rather because it accepted the plaintiffs argument in her proposed order that she wanted to continue to live in the marital home with the adult children because it was the only home they had known. The court noted that in coming to the conclusion that it did, it considered all of the relevant criteria set forth in General Statutes § 46b-81, including the length of the marriage, the monetary and nonmonetary contributions of the parties, and the fact that the defendant was more at fault for the breakdown of the marriage than the plaintiff. The court also found that the defendant’s interest in the Hickory Road property was $65,000. Finally, the court reiterated its previous finding that the defendant had been involved in an extramarital affair. The court also noted that it believed the plaintiffs testimony that the affair was the primary cause of the breakdown. This appeal followed. Additional facts will be set forth as necessary for the resolution of the defendant’s claims.

I

The defendant first claims that court improperly awarded the plaintiff twice as much equity as it awarded to the defendant in the two parcels of real estate after indicating during the trial that it intended to divide the real estate equally between the parties. In other words, the defendant claims that in its memorandum of decision, the court abused its discretion in awarding the marital home, the equity of which was $103,000, to the plaintiff and awarding the Hickory Road property, the equity of which was $52,000, to the defendant because the court had indicated, during the trial, that it would divide the real estate equally. The defendant further argues that the court’s division of the real estate was the result of a mathematical error of the kind that occurred in Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 479 A.2d 826 (1984), and, therefore, requires reversal. Finally, the defendant argues that at the hearing on the motion for reargument, the court admitted that it had made a mistake in awarding the real estate. Those claims are wholly without merit.

As a preliminary matter, we set forth our standard of review. “With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . [judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Citations omitted; internal quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 530-31, 752 A.2d 978 (1998).

General Statutes § 46b-81 provides in relevant part: “(a) At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. ... (c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” We also note “[i]t is well established that, in a dissolution action, the court may distribute marital property unevenly.” Bleuer v. Bleuer, 59 Conn. App. 167, 172, 755 A.2d 946 (2000).

The defendant urges this court to review specific pages of the trial transcript, which he claims supports his argument that the court intended to divide the equity in the real estate equally, rather than the orders contained in the court’s memorandum of decision, to determine how the court intended to divide the real estate. In so doing, the defendant fails to appreciate that regardless of what the court may have indicated during the trial, the court did not render its decision regarding the distribution of the real estate of the parties until it filed its memorandum of decision with the clerk. Up until that time, the trial judge was entitled to change his mind. “Judges, like all other human beings, sometimes change their minds after further reflection on the evidence or the legal precedents controlling the conclusions to be drawn from the evidence. [Wjhile [a decision] is still in the judge’s possession . . . it is at best a proposed order subject to change along with the judge’s thought process . . . .” (Internal quotation marks omitted.) Stevens v. Hartford Accident & Indemnity Co., 29 Conn. App. 378, 382, 615 A.2d 507 (1992).

“A judgment is in fact rendered in a cause tried to the court when the trial judge officially announces his decision orally in open court, or, out of court, signifies orally or in a writing filed with the clerk in his official capacity the decision pronounced by him. . . . Where a memorandum of decision is the judgment of the court, [t]he judgment ... is not rendered when the judge arrives at his decision in the privacy of his chambers but when the paper is handed to the clerk.” (Citation omitted; internal quotation marks omitted.) Id., 381.

Furthermore, on the basis of our review of the trial transcript, we conclude that the court never gave any indication that it intended to divide the equity in the real estate equally between the parties. On the contrary, the trial transcript reveals that although the parties had agreed that other marital property should be divided equally between the two, meaning that each party would get 50 percent of the total value, the parties did not agree on how the real property should be divided. On the one hand, the plaintiff asked that the court order the defendant to transfer his interest in the marital home to her and that the defendant retain his interest in the Hickory Road property. On the other hand, the defendant asked that the marital home be sold and that the net proceeds be divided equally between the parties, and that he retain his interest in the Hickory Road property. The decision as to how the real property was to be distributed was, therefore, a matter within the discretion of the court.

We conclude that because the court properly considered the relevant statutory criteria in fashioning its award of the real estate, the court did not abuse its discretion in awarding the plaintiff the parcel of property that had greater equity.

The defendant also contends that the court’s decision as to the distribution of real estate is the result of a mathematical error of the type that occurred in Ehrenkranz v. Ehrenkranz, supra, 2 Conn. App. 416, and that at the hearing on the defendant’s motion, the court admitted that it had made a mistake in dividing the real estate. We disagree.

In Ehrenkranz, this court held that the trial court’s award was mathematically inconsistent and, therefore, plainly erroneous. Id., 423. In that case, the trial court awarded the wife the entire interest in the marital home. Id., 418. It then awarded the wife one half, or 50 percent, of the husband’s net worth without first subtracting the value of the husband’s interest in the marital home, which it already had awarded to the wife, from the husband’s net worth. Id., 418-20. Unlike the trial court in Ehrenkranz, the trial court in the present case did not employ a mathematical calculation in determining how the real estate should be distributed between the parties. The court simply awarded one parcel of real estate to the plaintiff, the marital home, and one parcel of real estate to the defendant, the Hickory Road property. This court’s reasoning in Ehrenkranz is, therefore, inapplicable here.

Furthermore, we disagree with the defendant’s contention that at the hearing on the defendant’s motion for reargument, clarification or articulation, the court admitted that it had made a mistake in distributing the real estate. In its January 18, 2002 memorandum of decision on the defendant’s motion for reargument, the court expressly stated that it did not make a mathematical error in awarding the marital home to the plaintiff. The court explained that it awarded the marital home to the plaintiff because it gave more weight to the plaintiffs position that she wanted the court to order the defendant to convey his one-half interest in the mar ital home to her because it is the only home that she and the parties’ adult children have lived in throughout the marriage. Additionally, we conclude that the portions of the transcript that the defendant relies on in his brief are taken out of context and do not support his position that the court agreed with him that it had made a mistake in dividing the real estate.

II

The defendant next claims that the court improperly found that the parties had agreed that the value of the defendant’s one-half interest in the Hickory Road property was $52,000. We are not persuaded.

We begin our analysis of the defendant’s claim by setting forth the appropriate standard of review. “We have long held that a finding of fact is reversed when it is clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Mongillo v. Mongillo, 69 Conn. App. 472, 476, 794 A.2d 1054, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002).

The following additional facts are necessary to our resolution of the defendant’s claim. The defendant’s parents originally owned the Hickory Road property. At some point prior to the dissolution, the defendant’s parents conveyed that property to the defendant and his brother, who hold title jointly, and retained a life estate for themselves. The defendant, therefore, has a one-half interest in the Hickory Road property. The defendant’s father has since died. The property is, therefore, subject to a life estate in the defendant’s mother. On his financial affidavit, the defendant listed $52,750 as the total amount of equity that he had in the property.

During the trial, the parties agreed that the Hickory Road property had a market value of $130,000 and a mortgage of $26,000, for a net value of $104,000. The defendant argued, however, that in assigning a value to the defendant’s one-half interest in the Hickory Road property, the court should consider that, if the property were sold, the defendant’s share of the proceeds would be subject to capital gains tax. The defendant also argued that the court should find that the value of his one-half interest in the Hickory Road property was further diminished by the fact that it was subject to his mother’s life estate. In its memorandum of decision, the court found that the parties had agreed that the value of the defendant’s one-half interest in the property was $52,000.

We conclude that the court’s finding that the parties had agreed that the value of the defendant’s one-half interest in the Hickory Road property was $52,000 was not clearly erroneous. The parties did not dispute that the Hickory Road property had an appraised value of $130,000 and that the property was encumbered by a mortgage of $26,000. From those undisputed facts, the court reasonably could have deduced that the parties had agreed that $52,000 was at least a starting point in valuing the property.

The fact that the court did not decrease the value of the defendant’s one-half interest in the Hickory Road property because the proceeds from any sale of that property would be subject to capital gains tax or because the property was subject to a life estate does not render clearly erroneous the court’s finding that the parties had agreed that the property was worth $52,000. “Under our law, a trial court is not required to consider the . . . tax consequences of its orders.” (Emphasis in original.) Rolla v. Rolla, 48 Conn. App. 732, 746, 712 A.2d 440, cert. denied, 245 Conn. 921, 717 A.2d 237 (1998); see also Damon v. Damon, 23 Conn. App. 111, 114, 579 A.2d 124 (1990). “[Neither statute nor case law requires that a trial court consider the . . . tax implications of the financial awards.” (Internal quotation marks omitted.) Rolla v. Rolla, supra, 747. “Although we have held that [a] court may consider the tax consequences of its orders in dissolution actions . . . and our Supreme Court has held such consideration to be proper . . . the cases have always used permissive rather than mandatory language with reference to a trial court’s consideration of the tax consequences of its orders in dissolution actions.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 746-47. The statute also does not require the court to consider how the value of property is diminished by a life estate in assigning property in a dissolution action. See General Statutes § 46b-81. Moreover, the defendant, himself, indicated on his financial affidavit that the value of his one-half interest in the Hickory Road property was $52,750.

Accordingly, we conclude that there was evidence in the record to support the court’s finding that the parties had agreed that the defendant’s interest in the Hickory Road property was $52,000. It was not, therefore, clearly erroneous.

III

The defendant next claims that the court improperly allowed an extensive dialogue by counsel for the parties during the defendant’s case, which prevented the defendant from presenting his case. Specifically, the defendant maintains that the attorneys’ dialogue was tantamount to having a final argument in the middle of the trial, which he claims interrupted his testimony. He claims that the court, thereafter, refused to allow him to complete his testimony concerning the marital breakdown and then entered orders against him that were based on the attorneys’ arguments regarding the cause of the breakdown, rather than on the evidence.

At the outset, we note that the trial transcript does not support the defendant’s characterization of what occurred at trial. Moreover, the defendant failed to object at trial to any of the conduct that he now alleges was improper. This court “shall be not bound to consider a claim unless it was distinctly raised at the trial . . . .” Practice Book § 60-5. Accordingly, we decline to address the claim.

IV

Finally, the defendant challenges the corut’s finding that he had had an extramarital affair that contributed more to the breakdown of the marriage than other factors. Specifically, the defendant contends that the court’s finding that he had engaged in an extramarital affair is clearly erroneous because there was no testimony that he ever had a sexual, romantic or intimate relationship with any one other than the plaintiff. We are not persuaded.

Again, the defendant challenges a finding of fact. “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Greco v. Greco, 70 Conn. App. 735, 737, 799 A.2d 331 (2002).

The following facts are relevant to our resolution of the defendant’s claim. The plaintiff testified that beginning in late 1996 or early 1997, the defendant became very distant toward her. It was about that time that the defendant indicated to her that he had found another woman and was going to start a new life with that person. The defendant moved out of the marital home a few days later, but that separation was short-lived; he returned a few days later. He moved out of the marital home again on June 1,1998. The plaintiff subsequently learned that the woman that the defendant was referring to was Shirley Anne Lisieski, an employee at the bank where the defendant worked.

The plaintiff also testified that on New Year’s Eve, 1999, while the defendant was visiting at the marital home, the defendant received a telephone call from Lisieski. A short time later, Lisieski left a package for the defendant on the doorstep of the marital home. The package contained a shirt that the defendant had left at Lisieski’s home. Lisieski testified that leaving the shirt on the doorstep was her way of letting the plaintiff know that she, Lisieski, was ending her relationship with the defendant. Lisieski also testified that she and the defendant were very good friends and that at some point they became something more than friends. The defendant testified that although he had had a relationship with Lisieski, it was not an intimate relationship.

“Where there is conflicting evidence ... we do not retry the facts or pass upon the credibility of the witnesses. . . . The probative force of conflicting evidence is for the trier to determine. ... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Pizza Connection, Inc., 55 Conn. App. 488, 498, 740 A.2d 408 (1999). Additionally, we note that a trier of fact is permitted to infer certain facts from the evidence presented. See State v. Spells, 76 Conn. App. 67, 77-78, 818 A.2d 808 (2003).

On the basis of the conflicting evidence presented in the present case, we conclude that the court’s finding that the defendant had engaged in an extramarital affair was not clearly erroneous because it is supported by evidence in the record. Although the defendant testified that he did not have an intimate relationship with Lisieski, the court was free to disbelieve the defendant’s testimony, and reasonably infer from the testimony of the plaintiff and Lisieski that the defendant had engaged in an extramarital affair with Lisieski.

It is true, as the defendant points out, that “[a] fact finder is not free to disbelieve uncontradicted testimony and simply to conclude that the opposite of that testimony is true, especially where there is no evidence to justify that conclusion.” Daniels v. Alander, 75 Conn. App. 864, 875, 818 A.2d 106 (2003). Such concerns, however, are not implicated in the present case. The court’s finding is supported by reasonable inferences that were drawn from the testimony of witnesses other than the defendant. Accordingly, the court’s finding is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Page 7 of the court’s October 11, 2001 memorandum of decision states in relevant part: “However, both of these two properties were acquired during the marriage. The parties agreed that the present market value of the marital home is $165,000 encumbered by a mortgage of $62,000 for a net equity of $103,000 and their respective one-half interest is worth $51,500. The market value of the home at 65 Hickory Road in Naugatuck is agreed to be worth $130,000 with a mortgage of $26,000 for a net value of $104,000. The defendant’s one-half interest is agreed to be $52,000. In their proposed orders, the plaintiff wants the defendant to transfer his one-half interest in the marital home to her and that he retain the property he owns with his brother. The plaintiff believes this would be an equal exchange. The defendant wants the marital home to be sold and the net proceeds divided equally, and the defendant would retain his one-half interest in his mother’s home.”

       Although the finding that the value of the defendant’s one-half interest in the Hickory Road property was $65,000 is different from the finding in the October 11, 2001 memorandum of decision that the value of the defendant’s one-half interest was $52,000, the defendant does not claim any error relating to the difference between those two findings.

       The defendant asked the court to take judicial notice of the capital gains tax statutes.

       We note that there was not evidence that the house was to be sold, which may have required that the court make further calculations.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    ANTHONY J. TARICANI, JR., ET AL. v. NATIONWIDE MUTUAL INSURANCE COMPANY
    (AC 23280)
    Lavery, C. J., and Foti and Peters, Js.

      Argued March 25
    officially released May 27, 2003

      Linda Clough, for the appellants (plaintiffs).

      Kristen Schultze Greene, with whom was Michael Feldman, for the appellee (defendant).
   Opinion

PETERS, J.

In this state, an insurance policyholder who fails to give an insurer timely notice of an insurable loss does not forfeit his insurance coverage if he can prove that his delay did not prejudice his insurer. Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 417-18, 538 A.2d 219 (1988). The principal issue in this case is whether this rule should be extended to protect a policyholder who has failed to comply with a cooperation clause in the insurance policy. This is an issue of first impression. The trial court declined to extend the rule and granted a motion for summary judgment filed by the insurer. We disagree with the court’s reasoning but affirm its judgment in favor of the insurer in light of the factual record in this case.

The plaintiffs, Anthony J. Taricani, Jr., and Bonnie E. Taricani, filed a complaint alleging that the defendant, Nationwide Mutual Insurance Company, had issued to them a business insurance policy that was in effect when a fire destroyed their property at 120 Winthrop Street in New Britain. They further alleged that, in breach of this policy, the defendant wrongfully had refused to pay them for the losses that they had incurred because of the fire.

In response, the defendant filed an answer and a special defense in which it claimed that the plaintiffs’ recovery was barred by their failure to cooperate with the defendant in its investigation of their claim. The gravamen of the defendant’s position was that, in violation of a cooperation clause in the insurance policy, the plaintiffs had declined to appear for examination under oath for a significant period of time after the occurrence of the fire. On this ground, the defendant filed a motion for summary judgment.

The plaintiffs objected to the defendant’s motion. They filed an affidavit alleging the existence of numerous unresolved issues of material fact. These factual issues were relevant, they claimed, because they had no duty to appear for examination until preliminary criminal proceedings concerning their possible complicity in the fire were resolved in their favor.

The trial court, concluding that the defendant was entitled to judgment as a matter of law, granted the defendant’s motion for summary judgment. The plaintiffs have appealed.

The trial court made the following findings of fact that are undisputed. The plaintiffs’ property was destroyed by fire on May 5, 2000. They filed a claim under a business insurance policy issued by the defendant. That policy required the plaintiffs to cooperate in the investigation of a claim and authorized the defendant to examine any insured under oath.

On July 11, 2000, the defendant notified the plaintiffs that they had to appear for examinations of their claims on July 25 and July 26, 2000. The defendant also asked the plaintiffs to produce certain documents by July 20, 2000. At the plaintiffs’ request, the defendant agreed to reschedule the oral examinations for August 9 and August 11, 2000.

On July 25,2000, the plaintiffs informed the defendant that they could not comply with its requests. At that time, the New Britain police department had begun a criminal investigation to determine whether the plaintiffs had committed arson. In conjunction with that investigation, the police had obtained a search warrant and had seized the documents requested by the defendant. They offered to cooperate fully once the police investigation had been concluded.

The defendant nonetheless, by a letter dated August 11, 2000, rescheduled the date of the oral examinations for August 23 and August 25, 2000. It informed the plaintiffs that it needed to conduct a prompt investigation of the plaintiffs’ loss “before evidence disappears and memories fade . . . .” Accordingly, it advised the plaintiffs that, if they failed to appear on the scheduled dates, their inaction would be treated as a deliberate breach of a material condition in the policy.

After the plaintiffs’ failure to appear, the defendant notified them, by a letter dated September 11, 2000, that their claim for coverage had been denied. The notice stated that the plaintiffs’ nonappearance was the reason for the denial of coverage.

Some months later, the criminal investigation was concluded. It exonerated the plaintiffs. The plaintiffs wrote to the defendant on March 15, 2001, indicating their readiness to produce the requested documents and to submit to examinations under oath. On April 10, 2001, the defendant, reiterating the position that it had taken in its September 11, 2000 letter, declined to proceed further.

The plaintiffs then initiated this lawsuit. They claimed that their refusal to submit to examinations under oath was justified by the criminal investigation that was then ongoing. They also challenged the defendant’s assertion that there were no undisputed questions of material fact by alleging that the defendant’s immediate access to the site and to police and fire reports afforded the defendant a significant opportunity to investigate the circumstances of the fire promptly. They alleged that those facts, if proven, would support their argument that the defendant was not prejudiced by the eight month delay in their personal cooperation with the defendant’s investigation.

The trial court nonetheless granted the defendant’s motion for summary judgment. It found that the plaintiffs had failed to comply with the policy’s cooperation clause by their refusal to submit to examinations under oath in July or August, 2000. It was not persuaded by the plaintiffs’ argument that, because the policy did not contain an express time limitation clause, their offer to be examined in March, 2001, demonstrated their compliance with the cooperation clause. It declined to adopt the plaintiffs’ claim that their noncooperation was not dispositive if the defendant could be shown to have suffered no prejudice because of the delay in the conduct of the examinations under oath.

The plaintiffs’ appeal challenges the court’s summary judgment in two respects. They maintain that they had substantially cooperated with the defendant’s request for examinations under oath and that whatever delay was caused thereby did not prejudice the defendant.

The plaintiffs’ appeal is governed by a well established standard of appellate review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Tarnowsky v. Socci, 75 Conn. App. 560, 564, 816 A.2d 728 (2003); see also W & D Acquisition, LLC v. First Union National Bank, 262 Conn. 704, 709, 817 A.2d 91 (2003).

I

THE COOPERATION CLAUSE

The plaintiffs’ first claim is that the record presents genuine issues of fact about their compliance with the cooperation clause in the insurance policy issued to them by the defendant. Those alleged issues of fact arise, they claim, because they should be permitted to make a factual showing that they substantially complied with the cooperation clause. We disagree.

The plaintiffs acknowledge that, “absent estoppel, waiver or other excuse, the substantial or material breach of the cooperation provisions of the insurance policy by an insured puts an end to the insurer’s obligation.” Brown v. Employer’s Reinsurance Corp., 206 Conn. 668, 675, 539 A.2d 138 (1988); see also O’Leary v. Lumbermen’s Mutual Casualty Co., 178 Conn. 32, 38, 420 A.2d 888 (1979). They recognize that, once the defendant raised the issue of violation of the cooperation clause, it was their burden to prove their compliance with the cooperation clause. O’Leary v. Lumbermen’s Mutual Casualty Co., supra, 38. They nonetheless claim that their failure to appear for prompt examinations under oath was not a substantial breach of the cooperation clause.

At the outset, we note what the plaintiffs do not claim. They have not characterized the cooperation clause as ambiguous. In a similar vein, they have not challenged the timeliness of their receipt of notices sent to them by the defendant or the suitability of the location in which their examinations were scheduled to take place.

The gravamen of the plaintiffs’ claim is that they substantially complied with the requirements of the cooperation clause by expressing their willingness to be examined under oath ten months after the occurrence of the fire that destroyed their property. In their view, their delayed agreement to be examined was excused because, while the criminal investigation into the fire was ongoing, they had a right to invoke the privilege against self-incrimination contained in the fifth amendment to the United States constitution. We disagree.

As the trial court noted, numerous cases in state courts, including our own Superior Court, have held that constitutional immunity from self-incrimination does not justify or excuse the obligation of an insured to cooperate in the prompt investigation of the event on which a claim of insurable loss is based. See, e.g., Capello v. Aetna Life & Casualty Co., Superior Court, judicial district of Hartford, Docket No. 0510478 (April 12, 1993) (8 Conn. L. Rptr. 582, 583-84); Warrilow v. Superior Court, 142 Ariz. 250, 253-55, 689 P.2d 193 (1984); Hickman v. London Assurance Corp., 184 Cal. 524, 529-31, 195 P. 45 (1920); Mello v. Hingham Mutual Fire Ins. Co., 421 Mass. 333, 337-41, 656 N.E.2d 1247 (1995); Standard Ins. Co. of New York v. Anderson, 227 Miss. 397, 406-409, 86 So. 2d 298 (1956); Dyno-Bite, Inc. v. Travelers Cos., 80 App. Div. 2d 471, 475-76, 439 N.Y.S.2d 558, appeal dismissed, 54 N.Y.2d 1027 (1981). We agree with the holdings of these cases.

The plaintiffs’ position is, however, even less tenable than that of the noncooperating insureds discussed in the cases cited. The plaintiffs assume that they might defend against the duty to answer the defendant’s questions by a blanket invocation of the privilege against self-incrimination. That assumption is incorrect. The federal courts uniformly have held that witnesses invoking the fifth amendment do not have a blanket right to refuse to testify but are obligated to answer those questions that they can answer and to make a specific claim of the privilege as to the rest. See, e.g., Hoffman v. United States, 341 U.S. 479, 486-87, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); In re DG Acquisition Corp., 151 F.3d 75, 80-81 (2d Cir. 1998); Nationwide Mutual Fire Ins. Co. v. Dunkin, 850 F.2d 441, 442-43 (8th Cir. 1988); Anglada v. Sprague, 822 F.2d 1035, 1037 (11th Cir. 1987); North River Ins. Co. v. Stefanou, 831 F.2d 484, 486-87 (4th Cir. 1987), cert. denied, 486 U.S. 1007, 108 S. Ct. 1733, 100 L. Ed. 2d 196 (1988); United States v. Moore, 682 F.2d 853, 856-57 (9th Cir. 1982); National Life Ins. Co. v. Hartford Accident & Indemnity Co., 615 F.2d 595, 598 (3d Cir. 1980); United States v. Johnson, 577 F.2d 1304, 1311 (5th Cir. 1978); United States v. Carroll, 567 F.2d 955, 957 (10th Cir. 1977); Maffie v. United States, 209 F.2d 225, 229 (1st Cir. 1954).

We conclude, therefore, that, as a matter of law, the plaintiffs’ failure to appear to be examined under oath was a breach of a material condition in their business property insurance policy. The language of the policy therefore justified the defendant’s decision to decline the plaintiffs’ claim for insurance coverage for the fire at their property.

II

PREJUDICE

The plaintiffs’ second claim is that, even if they failed to comply with the cooperation clause, the defendant was not prejudiced by their default. They maintain that, as a matter of law, a showing of lack of prejudice is a defense to denial of their insurance claim because of their noncooperation. They further maintain that the affidavit that they submitted in their opposition to the motion for summary judgment alleged facts that, if proven, would substantiate their claim of lack of prejudice. Because of a factual dispute on the issue of prejudice, they claim that the trial court should not have granted the motion for summary judgment. We agree with their assertion of legal principle but we disagree that their affidavit was sufficiently factual to afford them the relief that they seek.

A

We first address the plaintiffs’ contention that, although their insurance policy makes noncompliance with the cooperation clause a basis for denial of their coverage claim, their noncompliance is excusable if the defendant was in no way prejudiced by their breach of this condition of the defendant’s liability. This contention rests on the applicability of Aetna Casualty & Surety Co. v. Murphy, supra, 206 Conn. 409.

In Murphy, our Supreme Court held that an insured might be relieved from his contractual obligation to give his insurer timely notice of the occurrence of a loss if the insured could show that his delay in giving notice did not prejudice the insurer. Id., 417-18. The court first observed that the modem law of contracts seeks to accommodate the principle of strict compliance with contract conditions and the principle of avoiding a disproportionate forfeiture for a default that is not wilful. Id., 412-13. The court cited Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 242-44, 129 N.E. 889 (1921), in which Chief Judge Benjamin N. Cardozo stated: “Those who think more of symmetry and logic in the development of legal mies than of practical adaptation to the attainment of a just result will be troubled by a classification where the lines of division are so wavering and blurred. . . . The same omission may take on one aspect or another according to its setting. . . . We must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence.” (Citation omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Murphy, supra, 206 Conn. 415.

Murphy held that a showing of the absence of prejudice would excuse a failure to give timely notice of the occurrence of an insurable loss for three reasons. First, because insurance policies are “contracts of adhesion,” purchasers of such policies have no opportunity to bargain about the consequences of delayed notice. Id., 415-16. Second, because cancellation of an insurance policy for failure to give timely notice takes no account of past payments of premiums, possibly extending many years back, enforcement of these notice provisions may operate as a forfeiture. Id., 416. Third, although an insurer has a legitimate interest in guaranteeing itself a fair opportunity to investigate accidents, that interest can be protected without an irrebuttable presumption that late notice is always prejudicial to the insurer. Id.

It is difficult to see why the principle announced in Murphy should not be extended to this case. Both involve clauses in insurance contracts that are intended to afford an insurer a fair opportunity to investigate accidents presumptively covered by the insurance policy.

The trial court found this analogy unpersuasive. It relied on the fact that the notice clause and the cooperation clause do not serve identical purposes. The notice clause, the court held, is designed to enable prompt investigation of the accident, while the cooperation clause is designed to investigate the conduct of the insureds. The court further observed that strict enforcement of a cooperation clause could not result in a disproportionate forfeiture because the clause could not be invoked unless the insurer’s demand for an examination was reasonable with respect to time, place and manner. Finally, it noted that, under other circumstances, delay in responding to a reasonable request for examinations under oath might be excused, although it cited no case in which such an excuse has been upheld.

The court relied on two cases in other jurisdictions that have declined to assign any significance to prejudice in the enforcement of a cooperation clause. These cases are, however, distinguishable because they involve an argument that the insurer must prove that delay by the insured prejudiced its investigation of the insured’s claim. United States Fidelity & Guaranty Co. v. Wigginton, 964 F.2d 487, 490-91 (5th Cir. 1992); Mello v. Hingham Mutual Fire Ins. Co., supra, 421 Mass. 336. That is not our law. Under Murphy, it is the insured who must establish that his delay did not cause prejudice to the insurer.

We conclude, therefore, that the principle underlying our decision in Murphy is equally applicable to the circumstances of this case. It may be that it will be more difficult for an insured to prove lack of prejudice in the context of a breach of a cooperation clause as compared with a breach of a notice clause. That difficulty does not persuade us to adopt a rule that would categorically deny the insured the opportunity to make the required showing.

B

This case illustrates the problem that an insured faces in establishing the absence of prejudice. In addition to its legal conclusion that prejudice is irrelevant, the trial court also found that the plaintiffs had not included sufficient allegations with respect to the absence of prejudice in the affidavit that they filed in opposition to the defendant’s motion for summary judgment. We agree with the court that the affidavit did not contain factual allegations that, if proven, would establish that their noncompliance with the cooperation clause caused no prejudice to the defendant.

The trial court addressed this issue as follows: “Although Anthony Taricani attests that the defendant was given prompt notice of the loss and had access to police and fire department investigation reports, he does not specify or explain, and the court fails to see, how such factors protect the defendant’s interests in promptly obtaining statements and proofs from the plaintiffs and cross-examining them upon such. Particularly in light of the plaintiffs’ assertion of their fifth amendment privilege, it is illogical that many, if any, statements of the plaintiffs would be contained in the reports to which Anthony Taricani refers. At any rate, even if this were possible, the plaintiffs have failed to present any evidence that the reports contain such information as would sufficiently reduce the prejudice to the defendant stemming from staleness and faulty memories. The plaintiffs therefore have not sufficiently provided a factual basis for their claim of non-prejudice.”

The plaintiffs argue nonetheless that they sufficiently raised other material questions of disputed fact about nonprejudice that made it improper for the trial court to grant the defendant’s motion for summary judgment. We are not persuaded. While it is true that the defendant, having been informed promptly of the fire, might have been able to examine the property promptly, the plaintiffs do not consider the possibility that such access might have been limited during the ongoing police and fire investigation. The plaintiffs maintain that the police and fire reports to which the defendant had access would have been illuminating without identifying the illuminating information contained therein. The plaintiffs further suggest that the defendant might have obtained useful information by interviewing other witnesses, but in their affidavit they do not identify who these other witnesses were. Because their failure to comply with the cooperation clause is presumed to have been detrimental to the defendant’s interests, they cannot rely on the defendant’s failure to articulate the manner in which their delay impaired its investigation of the fire.

The absence of responsive factual allegations to rebut the defendant’s allegations in its motion for summary judgment is fatal to the plaintiffs’ appeal. It was the plaintiffs’ burden to file an affidavit reciting relevant evidentiary matter to establish the existence of a genuine issue as to a material fact. Practice Book § 17-45; Conference Center Ltd. v. TRC, 189 Conn. 212, 217, 455 A.2d 857 (1983); Faigel v. Fairfield University, 75 Conn. App. 37, 43-44, 815 A.2d 140 (2003). They did not meet their burden.

We conclude, therefore, that the judgment in favor of the defendant must be affirmed. The plaintiffs did not present a valid excuse for their failure to comply with the cooperation clause in their insurance policy. As a matter of law, even in the absence of such an excuse, they would have had a viable claim for coverage of the damage that the fire caused to their property if they had been able to establish that their delay in presenting themselves for examination under oath did not result in any prejudice to the defendant. They failed, however, to file an affidavit with sufficient factual allegations to show that their delay in fact did not cause any prejudice. The trial court, therefore, properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint also contained three other counts, alleging that the defendant’s failure to pay was a breach of the implied covenant of good faith and fair dealing; a violation of the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq.; and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The trial court, Shortall, J., struck those counts. The plaintiffs have not challenged that decision.

       The defendant also filed four other special defenses, alleging that the plaintiffs had intentionally set the fire, had made material misrepresentations about their claim, had failed to protect their property after the fire and had failed to mitigate their damages.

       In a section of the business property insurance policy entitled “Property Loss Conditions,” the policy lists “Duties in the Event of Loss or Damage.” This part of the policy requires the insured to “[c]ooperate with us in the investigation or settlement of the claim.” It also states that “[w]e may examine any insured under oath while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured’s books and records. In the event of an examination, an insured’s statement must be signed.”

       The defendant asserts that the plaintiffs’ breach was intentional, i.e., wilful. The court made no such finding.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. REGINALD REESE
    (AC 23075)
    Flynn, Bishop and Hennessy, Js.

      Argued January 14
    officially released June 3, 2003

      Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Reginald Reese, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the trial court improperly (1) prohibited him from presenting evidence to rebut the court’s finding of probable cause, (2) prohibited him from introducing the prosecution’s statements from the previous trial of another defendant for the same offense and the long form information used in that trial, (3) admitted a redacted version of a witness’ statement that misled the jury and was fimdamentally unfair, and (4) admitted a photograph of the defendant taken approximately six weeks prior to the incident at issue. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August, 10, 1998, at approximately 2:35 p.m., at the courthouse on Golden Hill Street in Bridgeport, Sheriff William Harrell was standing outside on a break from work. Informed by an unknown male that a fracas was taking place in front of the courthouse, Harrell walked to the sidewalk area of the parking lot and looked around the comer. He saw a group of six or seven black males involved in a fight in the middle of the street directly in front of the courthouse steps. As he proceeded to the area of the fight, hearing a gunshot, he dove to the ground and then heard five or six more gunshots. Approximately thirty seconds later, he looked to the area of the fight and saw that the group was dispersing. He also saw one male lying on the ground. Harrell was unable to identify any of the males involved in the altercation.

Brian Steskla, an off-duty employee of the department of correction, was seated in his car parked diagonally across the street from the front of the courthouse. He heard a commotion coming from the front of the courthouse, looked over his left shoulder and saw a group of nine or ten people. He observed that five or six people were kicking one male. He diverted his gaze to turn off his car engine and at that moment he heard three or four rapid gunshots. Looking back at the group, he saw one male standing over the victim with a gun in his right hand. Although he could not see the gunman well enough to identify him, he noted that he was a black male, with facial hair in the sidebum area and short dreadlocks. Steskla did not see that person actually fire the gun. The victim, Donte Jones, was found to have two gunshot entry wounds to his left shoulder area and two exit wounds on the front side of his body. Those injuries were fatal.

Following the initial police investigation, Jermaine Reese, Mark Montgomery, John Weaver and Elliot Walker were charged in the incident. The state prosecuted Jermaine Reese, the defendant’s cousin, as a principal and the sole shooter of the victim. Jermaine Reese was acquitted of all charges following a jury trial (Reese trial).

In August, 1999, after the Reese trial, the state police took a written statement from James Lindsay that implicated the defendant as the person who had shot Jones. In March, 2000, Walker gave a written statement to the state police, also implicating the defendant as the shooter.

Thereafter, the defendant was arrested and charged with murder in violation of § 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (5), two counts of using a firearm in the commission of a class A or B felony in violation of General Statutes § 53-202k, assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and conspiracy to commit murder and assault in the first degree. At trial, the state filed a substitute information charging the defendant with murder, assault in the first degree and assault in the third degree.

In addition to the testimony of Steskla and Harrell, the state called Walker, who testified that on August 10, 1998, he went to the courthouse where he saw Jermaine Reese, the defendant, Montgomery, Weaver and others, all individuals he knew. He saw Jones exit the courthouse and walk down the stairs, and he saw Weaver grab him. He observed Weaver drag Jones, the victim, down the steps, then pull him into the street where Weaver and Jermaine Reese punched and kicked Jones. Walker then saw Tyrone Allen retrieve a silver gun from a car and hand it to the defendant. At that point, Walker testified, he began to walk away and then he heard gunshots, but did not see who fired the gun.

Weaver testified that on the day of the incident, he went to the courthouse where he saw the defendant, Jermaine Reese, Walker, Jermaine Gray and others outside near the steps. He recalled that Jones attacked somebody and that everyone then started fighting. He acknowledged that he joined in. As Weaver ran from the scene, believing the sheriffs were on their way, he heard gunshots. Turning, he saw the defendant shooting the victim.

The defendant called Allen, who testified that the defendant had not been at the courthouse on the day in question, thus disputing Walker’s testimony concerning his presence at the scene. Andrew Urbanovsky, a sheriff at the courthouse, testified that he did not recall seeing the defendant at the courthouse on the day in question. The defendant recalled Steskla, who testified that the gun was black and not silver, as claimed by Walker. Barrington Erskine, a witness to the altercation, testified that he did not see the defendant at the courthouse or participating in the fight. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly prohibited him from presenting evidence to rebut the court’s finding of probable cause at his probable cause hearing. We are not persuaded.

“We review evidentiary claims pursuant to an abuse of discretion standard.” State v. Pereira, 72 Conn. App. 107, 117, 806 A.2d 51 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).

At the probable cause hearing, the defense alerted the court that the state previously had prosecuted the defendant’s cousin, Jermaine Reese, for the same offense. The state called Steskla and Harrell, whose probable cause testimony paralleled that later given during the trial. Additionally, Jermaine Reese testified that the defendant was at the courthouse on the day in question. The state also called Lindsay, who denied making any statement to the police implicating the defendant as Jones’ shooter. In light of that testimony, the state submitted Lindsay’s written statement for substantive purposes pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). In the statement, Lindsay asserted that a couple of weeks after the shooting, while he was using drugs with the defendant, the defendant told him that he had been the gunman in the courthouse shooting.

On the basis of the state’s evidence and once the court determined that probable cause existed, the court asked the defendant whether he had any offer of proof. At that juncture, defense counsel indicated that he wanted to offer “the statement of Mr. Jermaine Gray concerning the identification of Mr. Jermaine Reese as the killer in this case and also the court’s finding with respect to the believability of that testimony.”

The portion of Jermaine Gray’s testimony in the Jermaine Reese trial that the defendant sought to introduce was Gray’s testimony during the probable cause hearing from the earlier trial. In that testimony, Gray stated that he observed Jermaine Reese shoot Jones. Although that testimony conflicts with testimony that the defendant was the shooter, it did not rebut Lindsay’s statement that the defendant told him he had shot Jones. It also did not rebut the probable cause testimony of Steskla, Harrell or Jermaine Reese. On that basis, we conclude that the court did not abuse its discretion in declining to admit the prior trial testimony of Jermaine Gray as rebuttal evidence at the probable cause hearing.

II

The defendant’s second claim is that the court improperly prohibited the defendant from introducing statements made by the state at the trial of Jermaine Reese and the long form information utilized by the state in that matter. We will review only the portion of the claim that relates to the defendant’s contention that the long form information utilized by the state in the Jermaine Reese trial should have been admitted as an admission of a party opponent.

The defendant’s claim has two aspects. To prevail, the defendant must argue successfully that the state is a “party opponent” for purposes of the rule permitting an admission of a party’s opponent pursuant to Connecticut Code of Evidence § 8-3 and that the information is relevant evidence, i.e., that it is probative in this case. Because the defendant must establish both parts, if his analysis is flawed in either respect, the claim fails. Conversely, to assess his claim adequately, we need not discuss both parts of it if either of its parts is unavailing.

As an initial matter, we review a court’s decision to admit or to exclude evidence under a deferential standard, i.e., whether the court’s ruling was an abuse of discretion. Absent a clear and prejudicial abuse of discretion, the court’s ruling will be affirmed. State v. Pereira, supra, 72 Conn. App. 117. Here, the court did not abuse its discretion in excluding the information from the prior case as evidence in this matter.

We agree with the decision of the court to exclude the information, not on the basis that the state is not a party for any purposes in a criminal prosecution, but because the information was not probative. In short, the information fails the test of relevance. In support of his claim of admissibility, the defendant cites the federal interpretation of a parallel evidentiary rule. Cf. United States v. GAF Corp., 928 F.2d 1253, 1260 (2d Cir. 1991); United States v. McKeon, 738 F.2d 26 (2d Cir. 1984). In McKeon and GAF Corp., the United States Court of Appeals for the Second Circuit observed that in ruling on the admission of a statement of a party opponent, the rules of relevancy are relaxed. Commenting on the applicable federal evidentiary rule, Fed R. Evid. 801 (d) (2), the court in GAF Corp. stated: “Moreover, as explained in McKeon, the admissions rule is distinct from normal evidentiary rules relating to relevancy. . . . [I]t is in some respects an exception to the general proposition that probative value and reliability are the touchtone of the law of evidence where non-privileged matters are concerned .... Although the reasons for relaxing the relevancy requirements for admissions are not clear, ‘[i]n all probability, these aspects of the rule are derived vestigially from an older, rough and ready view of the adversary process which leaves each party to bear the consequences of its own acts . . . .” (Citations omitted; internal quotation marks omitted.) United States v. GAF Corp., supra, 1261.

Although Connecticut’s evidentiary rule, Connecticut Code of Evidence § 8-3 is, in most respects, a state counterpart to Fed. R. Evid. 801 (d), it is not in every aspect identical. Significantly, we have no jurisprudence relaxing the requirement of relevancy for the admissibility of such statements. To the contrary, in Connecticut our evidentiary rule regarding the admission of statements of a party opponent includes a threshold requirement that such statements must be “relevant and material to issues in the case.” (Internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 15, 629 A.2d 386 (1993). Similarly, “[statements made out of court by a party-opponent are universally deemed admissible when offered against him ... so long as they are relevant and material to issues in the case.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 357-58, 796 A.2d 1118 (2002).

The question, then, is whether the state’s information in the trial charging Reese with the murder of Jones is probative as evidence in the present prosecution in which the state charged the defendant with the identical crime. We believe it is not. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter.” (Internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 685-86, 800 A.2d 1160 (2002). Here, the long form information the defendant sought to introduce had no logical tendency to aid the trier in the determination of whether the state had met its burden of proving the defendant’s criminal culpability. In fact, it is a basic tenet of criminal prosecution that neither the charging document nor any of counsel’s argument may be considered by the jury as evidence. See D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (3d Ed. 2001) § 1.3. What the state could not utilize as evidence in the Reese trial should not, therefore, be available as evidence in the trial at issue here merely because it evinces a different, even inconsistent, theory of the case. Put succinctly, if a jury can not convict on the basis of the contents of the charging document, a later jury should not be invited to acquit on the basis that one charging document differs from another, even to the point that the two read together are incompatible.

Having determined that the information sought to be introduced by the defendant is not relevant evidence, we need not reach the question of whether the state is a “party opponent” for purposes of Connecticut Code of Evidence § 8-3 (1).

Ill

The defendant’s third claim is that the court improperly admitted a redacted version of a witness’ statement that misled the jury and was fundamentally unfair. We disagree.

We note again that we “will disturb the court’s evidentiary rulings only upon a showing that the ruling resulted in substantial prejudice or injustice to the defendant.” (Internal quotation marks omitted.) State v. McHolland, 71 Conn. App. 99, 109, 800 A.2d 667 (2002).

The following additional facts are relevant to the discussion of the defendant’s claim. As part of his defense, the defendant maintained that he was not present at the time of the shooting and, therefore, could not have been the shooter. The day that he was arrested for allegedly shooting the victim, August 11, 1999, his girlfriend, Charletta Bland, was with him. She was arrested for unrelated reasons and gave a statement to the police in which she stated that the defendant had admitted to her that he had been at the scene of the shooting.

At trial, Bland denied giving the statement to the police, but agreed that the document proffered to her bore her signature. That document, a redacted version of Bland’s statement to the police, was admitted into evidence pursuant to State v. Whelan, supra, 200 Conn. 753. The portion of the statement that was admitted detailed Bland’s activities on the day of the shooting, and recited the defendant’s admission that he was at the courthouse at the time of the shooting and had witnessed the shooting.

Objecting to the redaction, the defendant sought to introduce two of the redacted paragraphs in the statement pursuant to Connecticut Code of Evidence § 1-5. They stated as follows:

“I know in my heart that Reggie was not the one who shot the ‘boy’ because he would have told me. From the group that was there during the beat-down, Jermaine and LT are the ones who would have had the gun. Jermaine is always arguing with people and running his mouth, that’s why he always loses his temper and gets angry all the time. I also know that ‘LT is crazy enough to shoot anybody out there in the street.

“I have talked to many people on the ‘street’ and they have told me that Jermaine was the one that shot the ‘boy,’ and that he got away with it.”

The defendant claims that those two paragraphs should have been admitted because the redacted version of Bland’s statement “misled the jury concerning her belief in the defendant’s guilt.” Her beliefs, however, were not material. Because the excluded paragraphs reflect only Bland’s personal opinion and the opinion of “other people” concerning the probable guilt of the defendant, they were not probative. Their omission also did not render the admission of portions of the statement unfair. Nothing in the excluded portions contains a statement of fact that contradicts the admitted portions. They do not even address the issues of whether the defendant was present at the courthouse and whether he was a participant in the disturbance that led to the victim’s death. It is clear from the record that the court assessed the defendant’s proffer for fairness in accordance with the dictates of Connecticut Code of Evidence § 1-5. The court did not abuse its discretion in excluding the previously redacted portions of Bland’s statement.

IV

The defendant last claims that the court improperly admitted a photograph of him that was taken approximately six weeks prior to the incident at issue. We disagree.

At the outset, we set forth the standard of review in regard to photographic evidence. “[Pjhotographic evidence is admissible where the photograph has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. . . . [Moreover] [t]here is no requirement . . . that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible; rather, the test for determining the admissibility of the challenged evidence is relevancy and not necessity. . . . Thus, although irrelevant evidence of [an inflammatory] character is inadmissible, [t]he [state], with its burden of establishing guilt beyond a reasonable doubt, is not to be denied the [ability] to prove every essential element of the crime by the most convincing evidence it is able to produce. . . . Accordingly, [a] potentially inflammatory photograph may be admitted if the court, in its discretion, determines that the probative value of the photograph outweighs the prejudicial effect it might have on the jury. . . . Furthermore, a trial court has broad discretion in weighing the potential prejudicial effect of a photograph against its probative value. . . . On appeal, we may not disturb . . . [the trial court’s] finding absent a clear abuse of discretion.” (Internal quotation marks omitted.) State v. Dorans, 261 Conn. 730, 757, 806 A.2d 1033 (2002).

Here, identification of the shooter was an issue. The state offered as evidence a photograph of the defendant, relative to a prior arrest, that had been taken by the Bridgeport police department on June 28, 1998, a little less than six weeks before the incident. The photograph was relevant to show the defendant’s appearance during the summer of 1998. That was significant because there had been testimony concerning the shooter’s facial characteristics, and there also had been evidence that the defendant’s facial appearance was different during the trial from what it was at the time of the shooting.

The defendant objected to the introduction of a police photograph from his prior arrest, arguing that the jury might infer that he had a criminal record and was, therefore, more likely to have committed the charged crime than a person without a criminal record. See, e.g., State v. Woods, 171 Conn. 610, 612-13, 370 A.2d 1080 (1976).

To avoid prejudice to the defendant, the court instructed the jury that the “police have many pictures of people. Simply because police have a person’s picture does not mean that he has ever committed a crime before or since. So, please understand that there is no connotation of guilt of any kind simply because some pictures of the defendant were in the possession of the police.” “It is to be presumed that the jury followed the court’s . . . instructions unless the contrary appears.” (Internal quotation marks omitted.) State v. McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999). In light of the court’s cautionary instruction to the jury and the probative value of the photograph, we find no abuse of discretion in the court’s ruling admitting the photograph as demonstrative evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant claims, as well, that the court applied an improper standard of review in making its probable cause determination. Although the defendant did not seek an articulation from the court to determine the standard of review it utilized, the defendant claims that it can be implied from the record that the court did, in fact, employ an incorrect standard. In his brief, the defendant asserts that “[t]he trial court acknowledged that ‘clearly, there’s an [identification] problem in this case.’ . . . Despite that, it prohibited the defense from presenting evidence that the defendant was not the shooter, declaring, ‘I don’t think it makes any difference.’ ... By its actions, the court implicitly drew all inferences and resolved any questions of credibility in favor of the state . . . .” (Emphasis added.) We do not believe that those comments of the trial judge, without further articulation, provide an adequate basis to conclude that the court utilized an improper standard in determining probable cause. As a consequence, the record is inadequate to review the defendant’s claim. See State v. Feliciano, 74 Conn. App. 391, 402, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d 110 (2003).

       In his principal brief, the defendant asserts that he also sought to introduce trial transcripts from Jermaine Reese’s trial in which “the state . . . argued that Jermaine Reese had been the principal and sole shooter of the victim.” Assuming that the defendant is claiming on appeal that he attempted to introduce arguments made by the state in the Jermaine Reese trial to rebut the finding of probable cause, we find nothing in the record that discloses any such offer. In any case, for reasons we will discuss, even if the defendant had offered arguments made by the state in an earlier trial for the same offense, such a proffer would have been legally insufficient to rebut a probable cause finding.

       As to the statements made by the prosecutor at the Reese trial, the defendant’s claim is not. adequately particularized for our review. Our review of the record reveals that the defendant sought to introduce “the statements of the state with respect to the fact, that Jermaine Reese was the murderer and shooter of Donte Jones.” As to the identification of those statements, the defendant refers in his brief to the transcript of the Jermaine Reese trial with the apparent view that we should search that transcript to make our own determination of what maybe encompassed in the category of “statements of the state.” That we will not do. Without an adequate identification of the particular statements the defendant wanted to introduce, we will not unilaterally search the record to find those that may or may be pertinent to the defendant’s claim. See Gold v. University of Bridgeport School of Law, 19 Conn. App. 379, 383-84, 562 A.2d 570, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989).

       Although we do not reach the question of whether in a criminal matter the state is a “party” for purposes of application of the rule concerning admissions of a party opponent, we are aware that the Supreme Court in State v. Rodriguez, 180 Conn. 382, 397, 429 A.2d 919 (1980), held that the state is not a party for purposes of allowing evidence of a judicial admission. In affirming the exclusion of the state’s answer to an interrogatory offered as a judicial admission, the court opined, “Moreover, in a criminal prosecution, the state is unlike a party to a civil action with respect to judicial admissions. This is so because the state is not an actor in the transaction or event giving rise to the prosecution as is a party to a civil action, but only exercises the public’s power to vindicate its criminal laws.” Id.; see also State v. Jones, 50 Conn. App. 338, 352, 718 A.2d 470 (1998), 248 Conn. 915, 734 A.2d 568 (1999). Although our courts have not ruled on whether, in a criminal prosecution, the state can be considered a party for the purpose of offering a statement of a party opponent pursuant to § 8-3 of the Connecticut Code of Evidence, we note with interest that in a federal prosecution, a bill of particulars from a previous prosecution espousing a theory different from the government’s present theory may be admitted as an evidentiary admission. See United States v. GAF Corp., 928 F.2d 1253, 1260 (2d Cir. 1991). As we will discuss, however, in admitting a document such as a statement of a party opponent, the federal courts have relaxed the threshold evidentiary requirement of relevance.

       Section 801 (d) (2) of the Federal Rules of Evidence provides in relevant part that a statement is not hearsay if: “The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship...."
      Section 8-3 (1) of the Connecticut Code of Evidence provides in relevant part: “A statement that is being offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity, (B) a statement that the party has adopted or approved, (C) a statement by a person authorized by the party to make a statement concerning the subject . . . .”

       Connecticut Code of Evidence § 1-5 provides: “(a) Contemporaneous introduction by proponent. When a statement is introduced by a party, the court may, and upon request shall, require the proponent at that time to introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered contemporaneously with it.
      “(b) Introduction by another party. When a statement is introduced by a party, another party may introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered with it.”

       Both the state and the defendant agreed that the third paragraph, which details the events leading the defendant’s arrest on August 11, 1999, could be redacted.