source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Reginald Dwayne Spence
    (10608)
    Daly, O’Connell and Heiman, Js.
    Argued September 14
    decision released October 20, 1992

      M. Donald Cardwell, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Paul Murray, senior assistant state’s attorney, for the appellee (state).
   Daly, J.

This appeal arises out of the defendant’s claim that the trial court improperly refused to grant his motion to withdraw his plea of guilty entered pursuant to the Alford doctrine. The defendant, Reginald Spence, argues that his plea was involuntary and was accepted without substantial compliance with Practice Book §§ 720 and 721. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. On May 16, 1991, the defendant entered a plea of guilty to the first count of an original information charging sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). He was also charged in the same information with conspiracy to distribute narcotics in violation of General Statutes §§ 21a-277 (a) and 53a-48, but this charge was nolled.

The defendant’s plea stems from his involvement in a cocaine sale that occurred on October 24,1989. The defendant initially retained Attorney Wesley S. Spears to represent him and subsequently retained Attorney M. Donald Cardwell. On May 15,1991, Cardwell filed an appearance on behalf of the defendant. His appearance was struck by the trial court the following day because he was unable to appear for jury selection. The trial court ordered that jury selection be conducted by Spears, who was present, and that the commencement of the taking of evidence be deferred to allow Card-well to represent the defendant at trial. Before jury selection began, the defendant decided to plead guilty. The trial court held a subsequent hearing that day where the defendant entered a guilty plea pursuant to the Alford doctrine. The trial court accepted the defendant’s plea after determining that it was made knowingly and voluntarily in accord with Practice Book §§ 711 and 712.

On July 9,1991, Cardwell filed a second appearance with the court. At the defendant’s sentencing hearing on August 23, 1991, the trial court heard arguments on the defendant’s motion to withdraw his guilty plea in which he claimed that the plea was involuntary and was accepted without substantial compliance with Practice Book § 711. The defendant maintained that he was coerced into pleading guilty by the trial court in its canvass because the trial court stressed that the defendant would have received a sentence of twenty years had he gone to trial and been convicted. The defendant argued that this coercion rendered the plea involuntary. The trial court disagreed and denied the defendant’s motion. The defendant was then sentenced to eight years in the custody of the commissioner of correction.

The defendant claims on appeal that the trial court’s refusal to permit him to withdraw his guilty plea was improper (1) because the plea was accepted without substantial compliance with the requirements of Practice Book § 711; see Practice Book § 721 (1); and (2) because his plea was not knowingly and voluntarily made. See Practice Book § 721 (2). We find the defendant’s claims to be without merit.

I

The defendant first claims that the trial court’s denial of his motion to withdraw his guilty plea was improper because he had satisfied the first ground for withdrawal under Practice Book § 721. “After a guilty plea is accepted but before the imposition of sentence the court is obligated under [Practice Book § 720] to permit withdrawal upon proof of one of the grounds in § 721.” State v. James, 197 Conn. 358, 361, 497 A.2d 402 (1985). It is the defendant’s burden to demonstrate a plausible reason for the withdrawal of a guilty plea. State v. Crenshaw, 210 Conn 304, 309, 554 A.2d 1074 (1989); State v. Risk, 17 Conn. App. 447, 451, 553 A.2d 1145, cert. denied, 211 Conn. 802, 559 A.2d 1137, cert. denied, 493 U.S. 818, 110 S. Ct. 71, 107 L. Ed. 2d 38 (1989). The trial court determined that none of the grounds set forth in Practice Book § 721 had been established by the defendant to justify withdrawal of his plea.

“ ‘[0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears there has been abuse of discretion.’ ” State v. Crenshaw, supra, 308-309, quoting Szarwak v. Warden, 167 Conn. 10, 23, 355 A.2d 49 (1974); State v. Ramos, 23 Conn. App. 1, 7, 579 A.2d 560 (1990). Practice Book § 721 (1) provides that a motion to withdraw a plea of guilty may be granted if the court failed to comply substantially with Practice Book § 711. The defendant asserts that the purpose of § 711 was not satisfied when the court accepted his guilty plea because of certain statements made by the trial court during its canvass of the defendant. The defendant’s claim is not supported by the record.

It is important to note that the defendant does not claim that the trial court failed to comply with a spetifie subsection of § 711. Instead, he asseverates that, contrary to the purpose underlying § 711, the trial court on three occasions indicated that the defendant would receive a sentence of twenty years if he elected to proceed to trial and was convicted. Our Supreme Court has stated that the purpose underlying Practice Book § 711 is to ensure that a defendant’s guilty plea is knowing and voluntary pursuant to the principles embodied in Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160 (1986); State v. Godek, 182 Conn. 353, 356-57, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). The defendant contends that § 711 requires that he understand the range of possible sentences. This purpose was not fulfilled, according to the defendant, because the trial court’s suggestion, allegedly made during the plea canvass, that there was no possibility that he would receive less than the maximum sentence if he was found guilty at trial was “subtly coercive.”

It is evident from the record before us that the defendant was not misled or coerced by the trial court’s statements. In fact, the trial court explained the full range of possible sentences facing the defendant. Thus, the record does not support the defendant’s claim that he was induced to believe that a range of sentencing was not available to him. After careful consideration of the record and the transcripts, we conclude that the defendant was not coerced, subtly or otherwise, into pleading guilty as a result of the court’s statements, and that the trial court substantially complied with § 711. Therefore, the trial court did not abuse its discretion in denying the defendant’s motion to withdraw his guilty plea.

II

The defendant next claims that his guilty plea was not made knowingly and voluntarily as is required by Practice Book §§ 712, 720 and 721. The defendant argues that through those same three statements; see footnote 6, supra; the trial court “subtly” coerced him into believing that if he did not plead guilty, he would definitely receive a twenty year sentence. Pursuant to § 721 (2), a trial court may allow a defendant to withdraw a guilty plea if it was not made knowingly and voluntarily.

“ ‘It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.’ ” State v. Ramos, supra, 3, quoting State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983). The record must disclose that a plea of guilty was made voluntarily and intelligently. State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983). This is necessary because a defendant who pleads guilty waives certain constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Childree, supra, 120. Because of the effect of the guilty plea, courts must ensure that defendants grasp the meaning and consequences of such a plea. Boykin v. Alabama, supra, 243-44; State v. Childree, supra.

“ ‘A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances.’ ” State v. Crenshaw; supra, 309, quoting State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1989). Our review of the record and transcripts of the May 16, 1991 plea hearing demonstrates that the defendant knowingly and voluntarily entered his Alford plea. The court personally addressed the defendant and conducted a thorough canvass. The court displayed concern about the defendant’s decision to change his plea to guilty. The defendant assured the court that the plea was not being made because Cardwell was unavailable to represent him for jury selection.

The trial court repeatedly asked the defendant whether anyone was forcing him to plead guilty. During the canvass, the defendant acknowledged that he understood the charge to which he was pleading guilty, that he understood he was waiving his constitutional rights by pleading guilty, and that he had discussed the plea with his attorney. The defendant also acknowledged that the state had enough evidence to convict him as is required under the Alford doctrine. On the basis of this canvass, the trial court found that the defendant’s plea was knowing and voluntary.

While it is true that “[t]he length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty”; State v. Collins, 176 Conn. 7, 9-10, 404 A.2d 871 (1978); the defendant has failed to establish that the court’s statements caused him to plead guilty involuntarily or unknowingly. We conclude that the defendant’s plea was knowingly and voluntarily made pursuant to Practice Book § 721 (2).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant actually filed a motion to vacate his plea under Practice Book § 720, the purpose of which was the same as a motion to withdraw the guilty plea. For purposes of this opinion, we shall refer to the motion as a motion to withdraw the plea.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Practice Book § 720 provides in pertinent part: “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. . . .”

       Practice Book § 721 provides: “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “{3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sen-fences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”
      Practice Book § 712 provides: “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his counsel.”

       The defendant’s arguments are based on the following three exchanges during the canvass. The trial court asked: “Your lawyer is claiming that you are drug dependent but he is entering his plea to accept my indicated sentence rather than go to trial and get twenty years, am I right?” The defendant responded in the affirmative.
      The court then explained that the defendant could receive an additional three years to any sentence he would have received because of his probation violation. “Three years. You could get that on top of the twenty years in this case, do you understand that?” The defendant responded, “Yes.”
      Later in the canvass, the trial court inquired: “What you have done, and tell me if I am wrong, you have made the best deal you can make rather than go to trial and get twenty years, am I right?” The defendant replied, “Yes.”

       The defendant refers us to the Supreme Court’s statement, “[ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality.” Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

       “The Court: Now, you pled to a felony. You could get not less than five nor more than twenty years, the minimum mandatory sentence of five years. You commit the offense when you possess narcotics with intent to sell or you sell narcotics and you are a non-drug dependent person, do you understand that?
      “Mr. Spence: Yes.”
      The court later explained that, in addition to the twenty years, the defendant could receive three years for a violation of his probation on another matter.

         For example, the following exchange occurred during the canvass:
      “The Court: So in no way is your change of plea reflected upon the fact that Mr. Cardwell is not here and you feel forced or pressured by me or anyone else?
      “Mr. Spence: No.”

       "The Court: Now, has anyone forced you to plead guilty?
      “Mr. Spence: No.
      “The Court: Anyone threaten you to plead guilty?

        “Mr. Spence: No.”
      Later in the proceeding the following exchange occurred:
      “The Court: So no one forced or threatened you, am I right?
      “Mr. Spence: Yes.”

       “The Court: By pleading guilty you give up your right to continue to plead not guilty, have a trial before a judge or a jury, have an attorney represent you at that trial, present a defense, confront your accusers, cross-examine witnesses and also your right against self-incrimination, do you understand?
      “Mr. Spence: Yes.”

       After the state explained the evidence against the defendant the court stated, “Mr. Spence, you pled guilty pursuant to the Alford Doctrine. You are not admitting that you made a sale or had the drugs. You are not admitting you are non-drug-dependent. You plead to accept a sentence of eight years and secondly if the case [went] to trial it would have been more probable than not you would have been convicted, do you understand that?” The defendant replied, “Yes.”


author: Per Curiam.

text:
    Luis Irizzary v. Daisy Irizzary
    (10958)
    Dupont, C. J., O’Connell and Freedman, Js.
    Submitted on briefs September 15
    decision released October 20, 1992

      Mark Kostecki filed a brief for the appellant (plaintiff).

      Paul J. Yamin filed a brief for the appellee (defendant).
   Per Curiam.

We have reviewed the record and briefs in this appeal from a judgment of modification of an order of child support and hold that the decision of the trial court should be upheld.

The trial court correctly found that there had been a substantial change in circumstances due to the fact that one of two children had attained his majority. The plaintiff’s argument that such modification was prohibited because the change was contemplated ignores the plain language of General Statutes § 46b-86 as amended by Public Acts 1990, No. 90-213, § 46, which provides in pertinent part that “[a]fter the date of judgment, modification of any child support order issued before or after July 1,1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution.”

The plaintiff also argues that General Statutes § 46b-215b, which creates the rebuttable presumption that the amount of child support determined by the application of the child support guidelines is the amount to be ordered, is not retroactive and therefore is not applicable to the order entered by the trial court. This argument overlooks the recent decision of our Supreme Court in Turner v. Turner, 219 Conn. 703, 718, 595 A.2d 297 (1991).

The judgment is affirmed.


author: Heiman, J.

text:
    Patricia Harvey et al. v. Robert Daddona, Sr., et al.
    (10868)
    Daly, Landau and Heiman, Js.
    Argued September 21
    decision released November 3, 1992

      Raymond A. Garcia, with whom, on the brief, was Justine Fitzgerald Miller, for the appellant (defendant).

      Barry B. Johnson-Fay, for the appellees (plaintiffs).
   Heiman, J.

The defendant appeals from the trial court’s judgment in the plaintiffs’ favor rendered in this action in which the plaintiffs sought money damages, declaratory relief and a mandatory injunction. On appeal, the defendant claims that the trial court improperly (1) found that the defendant’s obligation for his sons’ “reasonable college expenses” required him to pay full tuition and all related expenses at schools of his sons’ choosing, regardless of the costs, and (2) issued a mandatory injunction as a remedy in a breach of contract claim for money damages. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiffs, Patricia Harvey and her two sons, Robert Dad-dona, Jr., and Peter Daddona, brought this action against the defendant, Robert Daddona, Sr., individually and as trustee, to enforce both a separation agreement between Patricia Harvey and Robert Daddona, Sr., and a trust agreement in which Robert Daddona, Sr., was the settlor and trustee and his sons, Robert Daddona, Jr., and Peter Daddona, were the beneficiaries. They sought money damages for past educational expenses and declaratory and injunctive relief for Peter’s future college expenses.

Patricia Harvey and the defendant were married in 1966. In May, 1968, their first son, Robert, Jr., was born. Two years later, in August, 1970, their second son, Peter, was born. The parties’ marriage was dissolved in 1975. They executed a separation agreement, which was incorporated into the judgment of dissolution and the defendant executed a separate trust agreement. Paragraph four of the separation agreement contained the following provision concerning the funding of the college education of their sons Robert, Jr., and Peter:

“4. College Education. Husband shall pay for the college education of each of the minor children if:
(a) the children desire to attend college, and
(b) they have the aptitude to attend college. Husband’s obligation for said college education shall continue until five (5) years have elapsed from the anticipated high school graduation date of each child, but in no event shall Husband’s obligation continue after each child has passed the age of 23 years, or after his death.”

The fifth paragraph of the separation agreement provided for the creation of a trust agreement to secure the defendant’s obligation.

The trust agreement sets forth the duties and obligations of the defendant. It provides that the corpus of the trust is real property located on Kukas Lane in Waterbury. The income from that trust is to be paid to the defendant as long as he is not in default of his obligations for the support and education of his sons. If default occurs, the trustee is obligated to pay the college expenses of his sons from the income and principal of the trust. Notice of default by either son or any person acting on their behalf is to be evidence of default unless a court rules to the contrary.

Paragraph three of the trust agreement elaborates on the defendant’s obligations relating to the college education of his sons. It provides: “The obligations . . , are to pay expenses of up to four (4) years of college education for each of the children, such four (4) years to occur within five (5) years of the anticipated graduation of each child from high school; provided, however, that in no event shall the obligation to either child continue after the child attains the age of twenty-three (23) years . . . and, further, provided that the obligation to each child shall exist only if the child shall have the ability and inclination to attend college. Expenses of college education shall include the reasonable costs of tuition and other required fees of the college, room and board, books, and other essential costs. Each child shall consult with and consider the wishes of ROBERT L. DADDONA with respect to the college the child will attend, but the wishes of ROBERT L. DADDONA for the choice of college shall not be binding upon the children.” Although granting the defendant and his sons or their guardian the ability to amend or revoke the agreement, the trust agreement restricts the ability to waive the sons’ rights to a college education.

Robert, Jr., graduated from high school in June, 1986, and matriculated at Northeastern University in the fall of 1986. The defendant paid the costs of his first year at college. Experiencing academic difficulty, Robert, Jr., did not return to Northeastern University after his freshman year. While living with his father, he enrolled at Mattatuck Community College and completed three semesters. During the spring semester of 1989, he matriculated at New Hampshire College. The trial court found that pursuant to the separation and trust agreements, the defendant was obligated to pay for only four years of his son’s college education. The court calculated that he owed $9049.76 for these expenses. In rendering its judgment, however, it found that the defendant was entitled to a credit of $4200 for educational expenses that he had paid for what would have been Robert, Jr.’s fifth academic year. The court thus rendered judgment in favor of Robert, Jr., for $4849.76, the balance due after allowing the credit to the defendant.

Peter graduated from high school in June, 1989. He entered Norwich University in the fall of 1989. The defendant paid Peter’s educational expenses for his first two years at Norwich University. He failed, however, to pay his son’s educational expenses for the 1991 fall term. His failure to pay the college charges jeopardized Peter’s ability to undertake his final examinations and receive academic credits for courses he took during that semester.

The court found that the defendant was obligated to pay Peter $771.98 to reimburse him for college expenses. By way of declaratory relief, the trial court ordered that, in addition to the $771.98 damages payable to Peter, the defendant pay the cost of Peter’s tuition, room, board, college fees and books for the 1991-92 academic year within ten days of receipt of those bills and pay for any of the academic years in which Peter is engaged in obtaining a college education up to a total of four years of college or until he attains age twenty-three. The court further enjoined the defendant in his individual capacity from failing to pay for future expenses within ten days of presentation of bills and in his capacity as trustee from failing to pay all such expenses from the trust upon a declaration of default in the performance of his individual obligation. This appeal followed.

I

The defendant first claims that the trial court improperly found that his obligation for his sons’ reasonable college expenses required him to pay full tuition and all related expenses at schools of his sons’ choosing regardless of the amount. We disagree.

Separation agreements executed with and incorporated into dissolution decrees are construed and enforced as contracts. Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); Greenburg v. Greenburg, 26 Conn. App. 591, 595, 602 A.2d 1056 (1992). Construction of these agreements presents issues of fact to be resolved by the trial court as the trier of fact. Greenburg v. Greenburg, supra. We review the trial court’s construction of these agreements under a “clearly erroneous” standard. Zivic v. Zivic, 26 Conn. App. 5, 7-8, 596 A.2d 475 (1991); Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985). Under this standard, an appellate court’s role is to determine if the trial court could reasonably have decided the way it did. Greenburg v. Greenburg, supra, 596. “[E]very presumption is given in favor of the correctness of the trial court’s action.” Id.; Gallagher v. Gallagher, 11 Conn. App. 509, 514, 528 A.2d 379 (1987).

To give meaning to contracts, courts interpret the intent of the parties by construing the whole contract and all relevant provisions together. Barnard v. Barnard, supra. In construing contract terms, the court seeks to effectuate the intent of the parties. Id.; Green-burg v. Greenburg, supra. To ascertain the parties’ intent, the courts “ ‘consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish.’ ” Barnard v. Barnard, supra, 109-10, citing Connecticut Co. v. Division 425, 147 Conn. 608, 616, 164 A.2d 413 (1960). The parties’ intent is ascertained by a “fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983). Secret intentions entertained by the parties are not considered by a court when determining their intent. Greenburg v. Greenburg, supra.

The defendant argues that the trial court’s interpretation of the term “reasonable costs” in the trust agreement ignored the generally accepted meaning of that term and failed to give effect to the clause in paragraph three of that agreement and in the separation agreement limiting his obligation for his sons’ college expenses. The third paragraph describes the defendant’s obligations for his sons’ college expenses. It provides that “[ejxpenses of college education shall include the reasonable costs of tuition and other required fees of the college, room and board, books, and other essential costs.” (Emphasis added.) He argues that by failing to follow generally accepted principles of contract interpretation the court misconstrued his obligation.

The trial court logically interpreted the separation agreement, trust agreement and its provision for “reasonable costs” to mean that the defendant has the obligation to pay the full tuition and other expenses related to securing an education at the colleges chosen by his sons for the defined periods. It noted that the defendant sought to have the court construe the term “reasonable costs” to mean a range that the defendant regards as reasonable. The court rejected this interpretation by examining other language in the separation and trust agreements. The sentence following the one that involves payment of “reasonable costs” provides that the children shall consult their father about the colleges that they will attend, but are not bound by their father’s choice. This language supports the trial court’s finding that the father is obligated to pay in full all of his sons’ reasonable college expenses. His obligation is not limited by an amount that he deems to be reasonable. The trust agreement delineates the father’s obligations under the separation agreement. The separation agreement further describes the father’s obligation to pay for his sons’ college educations. It provides that he “shall pay for the college education of each of the minor children.” The defendant has failed to meet his burden of proving that the court’s interpretation is clearly erroneous. Zivic v. Zivic, supra.

The defendant argues, as an alternative construction of the word “reasonable,” that it was intended to impose some limit on the dollar amount he would be obligated to pay for his sons’ college expenses. The trial court’s rejection of this argument and its interpretation of the intent and meaning of the separation agreement, trust agreement and their provisions concerning the defendant’s obligation to pay his sons’ college expenses are not clearly erroneous.

II

The defendant next asserts that the trial court improperly issued a mandatory injunction as a remedy in a breach of contract action for money damages. We conclude that the trial court properly found that Peter was entitled to injunctive relief.

The granting of injunctive relief rests within the discretion of the trial court. Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992); Dukes v. Durante, 192 Conn. 207, 225, 471 A.2d 1368 (1984). To obtain such relief, the applicants must demonstrate that they would suffer irreparable harm and that they lack an adequate remedy at law. Walton v. New Hartford, supra; Stocker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967). Injunctions should not be issued when damages can adequately protect the injured party. Belinsky v. Belinsky, 5 Conn. App. 133, 136, 497 A.2d 84 (1985). Our review of the trial court’s granting of injunctive relief is limited to determining whether the decision was based on erroneous statements of law or on an abuse of discretion. Walton v. New Hartford, supra. The defendant’s son Peter established that he would suffer irreparable harm and lacked an adequate remedy at law. Unless his tuition expenses were paid, Peter risked losing all credits for the courses in which he was enrolled during the 1991 fall semester and his opportunity to enroll in the spring semester. Under the circumstances, money damages do not constitute an adequate remedy at law. A judgment in his favor could not be collected prior to the school’s tuition deadline. The defendant’s failure to pay his expenses is also capable of repetition. Peter would be delayed in collecting his expenses until years after he was entitled to complete his education. The issuance of the mandatory injunction was appropriate and, thus, was not an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Subsequent to the completion of oral argument, the defendant attempted to file certain material for consideration by the court. The plaintiffs objected to its consideration. Treating the objection as a motion to strike, we granted the motion and gave no consideration to the material.

       That paragraph provides:
      “5. Trust Agreement. As security for Husband’s obligations as set forth in Paragraphs 3 and 4 above, Husband shall hold the property at 300 Kukas Lane, or a parcel of equal value, as Trustee, for the benefit of said minor children. The trust agreement, attached hereto as Exhibit A, more fully describes said trust obligation, and either a deed expressing said obligation, or Exhibit A, shall be recorded on the land records of the Town of Waterbury.”

       The trust agreement provides that the defendant is obligated to pay for four years of college.

       At the trial court’s urging, the parties closed the pleadings and agreed that the hearing as to preliminary relief should be consolidated with a hearing as to permanent relief.

       The trial court properly acknowledged that it lacked the authority to enforce by powers of contempt the portions of the dissolution judgments entered before October 1, 1977, that apply to obligations to support or educate children after they reach the age of majority. General Statutes § 46b-66; Lavigne v. Lavigne, 3 Conn. App. 423, 425, 488 A.2d 1290 (1985).

       The defendant did not argue that even under the trial court’s definition of “reasonable costs” his sons' college expenses were unreasonable. The defendant has the burden of establishing that the college related expenses were unreasonable. He has failed to meet this burden. The court held that the facts did not indicate that the plaintiffs were seeking expenses that were unreasonably incurred in the pursuit of their college educations.


author: Freedman, J.

text:
    John D. Stevens v. The Hartford Accident and Indemnity Company
    (10981)
    Landau, Heiman and Freedman, Js.
    Argued September 24
    decision released November 3, 1992

      Charles J. Goddard, for the appellant (plaintiff).

      Philip F. von Kuhn, for the appellee (defendant).
   Freedman, J.

This appeal arises out of a case that had not been concluded before the trial judge died. A successor judge then issued a decision. Because we conclude that the method by which the successor judge reached his decision was not proper, we reverse the judgment of the trial court and remand the case for further proceedings.

This case involves a request to compel arbitration. The plaintiff claimed that he was a resident in his father’s household and therefore had standing to compel arbitration on the uninsured motorist portion of an insurance policy held by his father. The defendant insurance company disputed this issue. An evidentiary hearing was held before Judge James D. O’Connor on October 3 and 4, 1990, and Judge O’Connor took the matter under advisement. Judge O’Connor died without having issued his decision in this case. Shortly after Judge O’Connor’s death, Judge Arnold W. Aronson rendered judgment on November 22, 1991, based on an unsigned, handwritten document that was found among Judge O’Connor’s papers. Judge Aronson issued the following memorandum of decision:

“The court finds that in the months preceding November 27,1990 and particularly June 8,1986, the plaintiff by his own testimony lived at the residence of friends, at the residence of a girlfriend, in tents when taking excursions on a motorcycle, and also on occasion, in the basement of his parents’ home.

“It was also the testimony of the plaintiff that any living accommodations afforded the plaintiff by his father [were] temporary.

“The court takes particular note of defendant’s exhibit 1 which reads as follows: T, John D. Stevens withdraw all claims against the following policy holders, and their insurance company: John and Dorothy Stevens, Mary and Ronald Stevens. I also acknowledge that I was not a member of my father’s household at the time of my accident, and did not have a Connecticut driver’s license at that time.’

“The court concludes that the plaintiff’s residence was not at the home of his parents.

James D. O’Connor, Judge

“The above written Memorandum of Decision was typed from the decision of Judge O’Connor made in script prior to his death but not reduced to the usual typewritten form.

“Based on the decision of Judge O’Connor that John D. Stevens was not a resident of his father’s household, he therefore, does not have standing under the father’s insurance policy to demand arbitration under that policy.

“The application for arbitration is denied.

/§/_

Arnold W. Aronson, Judge”

On November 27, 1991, the plaintiff filed a motion to set aside the judgment and for a new trial. In that motion, the plaintiff argued, inter alia, that Judge O’Connor’s handwritten decision “is not a proper basis for the Court’s ruling on the Application to Proceed With Arbitration . . . [because] there is no way of determining that this was a final decision [of Judge O’Connor] in that [he] did not cause the decision to be typed, signed, and filed with the Clerk of the Court.” On December 23,1991, after hearing argument on the plaintiffs motion, Judge Aronson denied the motion from the bench, concluding that “[i]t did appear that this was a final decision by Judge O’Connor in his own handwriting and, for that reason, it was the decision of this court to consider that to be a final decision by Judge O’Connor and to have it reduced in a proper typewritten form.” The plaintiff asserted that until the decision was filed it was possible that Judge O’Connor could have changed it. Judge Aronson responded that “that always is a possibility. Whether it was a reasonable probability, it does not appear to be the case in this situation.” This appeal followed.

The plaintiff argues that Judge O’Connor’s handwritten decision, which was neither signed nor filed, was not a proper basis for the rendition of judgment by Judge Aronson. We agree.

It is abundantly clear that Judge O’Connor never rendered judgment in this case. “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.” Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 535, 294 A.2d 573 (1972). 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. Id., 536. Consequently, the handwritten decision by Judge O’Connor, which was neither signed by him nor filed with the clerk, could not be given the force or effect of a judgment of the court.

This conclusion does not give preference to form over substance. Here, form and substance are inextricably intertwined. While Judge O’Connor did draft a preliminary decision, he did not sign the document, nor did he cause it to be typed or filed with the clerk. While Judge O’Connor may have intended to take those final steps toward the rendition of judgment, we cannot determine with certainty what his intention was at the time of his death. Cf. Kasarauskas v. McLaughlin, 25 Conn. Sup. 60, 61, 196 A.2d 118 (1963) (“[n]o one knows how the motion to set aside would have been decided or what was in Judge Healey’s mind when he directed a verdict”). 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, irrespective of whether it has been signed, it is at best a proposed order subject to change along with the judge’s thought process . . . .” State v. Dowdell, 55 Md. App. 512, 515, 464 A.2d 1089 (1983), cert. denied, 298 Md. 310, 469 A.2d 864 (1984). While Judge Aronson may have been correct in noting that there was no reasonable probability that the handwritten decision would not have been the final decision of Judge O’Connor, we do not believe that that is a conclusion that the successor judge can or should reach. Such a conclusion is necessarily based on a degree of speculation that, no matter how small, involves too great a risk of error to be the basis of the adjudication of substantive rights. Without a signed decision filed with the clerk, a draft decision found among a deceased judge’s papers is simply a draft decision, which unfortunately leaves the judicial proceedings incomplete. “[T]he paper upon which [the successor judge] acted was merely a tentative and potential finding. It was in the breast of the court and subject to change and modification until its public announcement in court or filing gave it force as a finding, and it therefore could not be considered as determining the cause.” Wainwright v. P. H. & F. M. Roots Co., 176 Ind. 682, 698, 97 N.E. 8 (1912).

Judge Aronson, as the successor judge in this case, had the power to complete the proceedings commenced before Judge O’Connor. General Statutes § 51-183f provides in relevant part that “if any judge of the superior court is retired because of a disability, dies or resigns during the pendency of any proceeding before him, any other judge of that court, upon application, shall have power to proceed therewith as if the subject matter had been originally brought before him.” Because § 51-183f authorizes the successor judge to proceed in the matter as if it had been originally brought before the successor judge, it is incumbent on the successor judge to exercise independent judgment in completing the proceedings. In this case, it was Judge Aronson’s responsibility to find the facts and apply the law to those facts. Rather than finding the facts himself, Judge Aronson relied on the inchoate findings articulated in Judge O’Connor’s draft decision. Nowhere is it indicated that Judge Aronson made his own findings of fact. Just as a successor judge, “if the case comes before him regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed . . . may apply his own judgment”; Breen v. Phelps, 186 Conn. 86, 100, 439 A.2d 1066 (1982); a successor judge must apply his own judgment to the evidence in order to determine the facts where his predecessor leaves that task incomplete by reason of death.

Having determined that the judgment of the trial court must be reversed, we must now address the appropriate scope of the remand in this case. The plaintiff urges us to remand this case for a new trial. We do not believe, however, that a new trial is required under the circumstances of this case.

Our appellate courts have not had occasion to consider the proper procedure under General Statutes § 51-183Í to be followed in a trial to the court. To order a new trial here because of the death of Judge O’Con-nor would be tantamount to declaring a mistrial due to his death because he had not completed the trial of this case. This result, we believe, would be contrary to the provisions of General Statutes § 51-183f, which authorizes any other judge, in the event a judge dies during the pendency of a proceeding, to continue with the case as if the matter had been originally brought before the successor judge. The plain language of § 51-183Í, therefore, authorizes further proceedings before another judge where the original trial judge is unable to complete proceedings due to death, disability or resignation.

In conducting these further proceedings, however, the trial court must be extremely cautious in deciding issues in a case in which it has not heard the evidence. “In cases tried without a jury, the general rule is that a party litigant is entitled to a decision on the facts by a judge who heard and saw the witnesses, and a deprivation of that right is a denial of due process.” Paul- son v. Meinke, 352 N.W.2d 191, 193 (N.D. 1984); Anderson v. Dewey, 82 Idaho 173, 180, 350 P.2d 734 (1960); 46 Am. Jur. 2d, Judges § 37. While this rule would appear to mandate a new trial in a case like the present one, which involves disputed issues of fact, we believe that recent amendments to rule 63 of the Federal Rules of Civil Procedure provide proper guidance to our trial courts in both carrying out the mandate of § 51-183f and ensuring that no party is deprived of its due process right to a decision by the judge who heard and saw the witnesses. Rule 63 now provides: “If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. In a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.” Rule 63 seeks to prevent unnecessary expense and delay by allowing completion of a proceeding halted by the death, disability or resignation of the original trial judge. At the same time, it recognizes the risks inherent in a successor judge’s determination of the credibility of a witness not seen or heard who is available to be recalled. See Fed. R. Civ. P. 63, Advisory Committee Note of 1991.

The guidance we receive from the requirements of rule 63 in determining how our courts should proceed under § 51-183Í allows us to formulate the proper procedure to assure the expeditious resolution of this case, submitted for ultimate decision over two years ago, while, at the same time, ensuring that, pursuant to the mandates of due process, “[t]he one who decides must hear.” Morgan v. United States, 298 U.S. 468, 481, 56 S. Ct. 906, 80 L. Ed. 1288 (1936). Accordingly, we hold that upon the death, disability or resignation of a judge of the Superior Court during the pendency of a trial or hearing to the court, a successor judge should take the following steps pursuant to the authority granted by § 51-183Í: (1) become familiar with the entire existing record, including, but not necessarily limited to, transcripts of all testimony and all documentary evidence previously admitted; (2) determine, on the basis of such record and any further proceedings as the court deems necessary, whether the matter may be completed without prejudice to the parties; (3) if the court finds that the matter may not be completed without prejudice to the parties it should declare a mistrial, but if the court finds that the matter may be completed without prejudice to the parties then; (4) upon request of any party, or upon the court’s own request, recall any witness whose testimony is material and disputed and who is available to testify without due burden; (5) take any other steps reasonably necessary to complete the proceedings; and (6) render a decision based on the successor judge’s own findings of fact and conclusions of law.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Although the plaintiff claimed that this issue was one of coverage and therefore was itself arbitrable; see Gaudet v. Safeco Ins. Co., 219 Conn. 391, 593 A.2d 1362 (1991); he consented to a hearing in Superior Court to resolve this threshold issue.

       The plaintiff raises five claims on appeal, one of which was abandoned at oral argument before this court. Because we conclude that the plaintiff’s first argument is dispositive of this appeal, we confine our decision to a discussion of this issue alone.

       In this regard, we note that, in a remarkably similar case, the Supreme Court of New Hampshire aptly observed long ago: “[I]t cannot be found that he did what he did not do. Report of an oral statement of the trial judge as to the finding he proposed to make would be evidence of the same character as the written memoranda left in this case; but it would hardly be contended that a post mortem judgment could be rendered upon the statement of a trier of fact as to what he intended to find.” Labonte v. Lacasse, 78 N.H. 489, 490, 102 A. 540 (1917).

       Of course, this concern is not present where the parties have stipulated to a decision by the successor judge based on a review of the evidence before the original trial judge. See Nahas v. Nahas, 25 Conn. App. 595, 597 n.1, 595 A.2d 926 (1991).


text:
    State of Connecticut v. Stanley Jagiello
    (10602)
    Dupont, C. J., Foti and Freedman, Js.

      Argued September 21
    decision released November 3, 1992

      Barbara J. Sorrentino, assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, was John Connelly, state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the decision of the trial court denying his request, made pursuant to General Statutes (Rev. to 1985) § 17-251 (b), for sentence reduction upon his discharge from Whiting Forensic Institute (Whiting) and returning him to the custody of the commissioner of correction. The defendant claims that the trial court improperly (1) concluded that his prior plea agreement effectively waived his right to sentence reduction under § 17-251 (b), and (2) considered his prior plea agreement to have already incorporated a sentence reduction based on his mental status. Because we conclude that the trial court properly fulfilled its obligation under § 17-251 (b) to review the defendant’s sentence in light of his improved mental status, we affirm the judgment of the trial court.

The following facts are relevant to this appeal. In 1987, the defendant agreed to plead guilty to murder in violation of General Statutes § 53a-54a pursuant to the Alford doctrine. Under the plea agreement, the state would recommend a sentence of thirty years incarceration, with the defendant reserving the right to argue for less. The trial court, Dranginis, J., accepted the defendant’s plea and ordered a psychiatric evaluation pursuant to General Statutes (Rev. to 1985) § 17-244 (now § 17a-566).

After taking testimony regarding the defendant’s psychiatric condition, the trial court sentenced the defendant to be committed to the custody of the commissioner of correction for a period of thirty years, and, pursuant to § 17-245 (now § 17a-567), ordered him to be confined at Whiting “for custody, care and treatment, until such time as he is a fit candidate for incarceration under his sentence.”

On December 20, 1990, Whiting filed a report indicating that the defendant no longer required custody, care and treatment there and recommended his discharge from Whiting. After a hearing on April 19, 1991, the trial court, Byrne, J., determined, pursuant to General Statutes (Rev. to 1985) § 17-251 (b) (now § 17a-570 [b]), that the defendant should be discharged from Whiting. The case was then continued to July 24, 1991, when the court held a further hearing pursuant to § 17-251 (b) to determine “whether the defendant [upon his discharge from Whiting] should be released, granted parole or returned to the custody of the commissioner of correction . . . .”

The testimony adduced at the July 24 hearing revealed that, while at Whiting, psychotherapy and pharmacological intervention had helped to change the defendant’s behavior dramatically. He had participated in nearly all available rehabilitation programs at Whiting and had helped to organize a charitable fund-raising program at the facility. The defendant was calmer and more relaxed, handling stressful situations more appropriately. Aggressive outbursts, characteristic of his admitting diagnosis, had disappeared. Neurological testing that previously indicated brain dysfunction now indicated normal brain functioning. At the time of the hearing, the defendant’s illness was diagnosed as being in remission.

On August 16,1991, the trial court denied the defendant’s request for sentence reduction and remanded him to the custody of the commissioner of correction to serve the remainder of the sentence imposed in 1987. In making its decision, the court indicated that it had reviewed the presentence report that was used in 1987 along with the transcript of the 1987 sentencing proceeding, the various psychiatric and psychological reports from Whiting and the testimony of various members of the defendant’s treatment team at Whiting. The court noted that there are several purposes served by incarceration: rehabilitation, punishment and prevention. The court also noted that the state’s attorney had taken the defendant’s mental condition into consideration in making the original sentencing recommendation and that it was the parties’ understanding that the commitment to Whiting was a way of preparing the defendant to serve the sentence imposed by the court. After considering the nature of the offense, the purposes of incarceration, the thoughts of the parties at the time of sentencing, and the procedures used at Whiting that had put the defendant’s illness into remission, the court indicated that it could not overlook the punishment aspect of incarceration. In denying the relief requested by the defendant, the court concluded that “although there has been the rehabilitative process commenced on behalf of the defendant, still we must take into consideration the aspects of the other parts of sentencing. . . . [T]he idea that a life has been taken . . . has to be taken into consideration.”

The defendant contends that the trial court did not properly carry out its mandate under § 17-251 (b) to consider events transpiring since the original sentencing, especially the successful treatment of the defendant’s mental illness. In support of this claim, the defendant points to two factors that he claims the court relied on in making its determination under § 17-251 (b). First, the defendant asserts that the trial court improperly concluded that the defendant had effectively waived his right to a sentence reduction under § 17-251 (b) because, in its view, the parties at the original hearing considered the commitment at Whiting as a way of preparing the defendant to serve the sentence imposed by the court. Second, the defendant argues that the trial court refused to consider the defendant’s improved mental health because it concluded that the state had already taken into account the defendant’s mental status in its original sentencing recommendation and therefore it should not credit the defendant again for his progress at Whiting. We find insufficient support, however, for either of these conclusions ascribed to the trial court.

Under § 17-251 (b) prior to its 1989 amendment, a defendant could be considered for early release from a previously imposed sentence upon discharge from Whiting. State v. Hanson, 210 Conn. 519, 566 A.2d 1007 (1989). Whether to suspend the previously imposed sentence under § 17-251 (b) is a sentencing decision of the trial court; id., 531; and, as such, calls on the court to exercise its very broad discretion. Id.; State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986); State v. McNellis, 15 Conn. App. 416, 445, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). A sentencing decision will be reversed only for an abuse of that discretion.

Here, the trial court’s remarks indicate that it carefully considered the progress made by the defendant while at Whiting. The court, however, gave determinative weight to the nature of the crime and the punishment, which, in the exercise of its discretion, it believed was necessitated by such conduct. The nature of the crime is certainly a factor that may be considered in determining the punishment to be imposed. State v. Williamson, 206 Conn. 685, 703, 539 A.2d 561 (1988); Copeland v. Warden, 26 Conn. App. 10, 13, 592 A.2d 477, cert. granted, 220 Conn. 926, 598 A.2d 365 (1991); State v. McClain, 23 Conn. App. 83, 88, 579 A.2d 564, cert. denied, 216 Conn. 822, 581 A.2d 1056 (1990). The court’s remarks about the original sentencing must be read in the context of the entire § 17-251 (b) sentencing hearing. State v. McNellis, supra, 449-50. When so read, those remarks implied neither a conclusion that the defendant had waived his rights to sentence modification nor a refusal to give weight to the defendant’s improved condition. We view the challenged remarks to be, at best, tangential to the court’s decision. The mere reference to extraneous or improper information at the sentencing hearing does not require the sentence to be set aside “unless the defendant shows . . . that the trial court substantially relied on the information in determining the sentence.” State v. Collette, 199 Conn. 308, 321, 507 A.2d 99 (1986). We are not persuaded that the trial court placed any substantial reliance on the information challenged by the defendant.

Accordingly, we conclude that the trial court properly carried out its mandate under § 17-251 (b) to consider events transpiring since the previously imposed sentence. Not being confined solely to a consideration of those events, however, the trial court did not abuse its discretion when it determined that the defendant should be returned to the custody of the commissioner of correction to serve the unexpired portion of his sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       In 1986, at the time the defendant committed the underlying criminal offense, General Statutes (Rev. to 1985) § 17-251 (b) provided in pertinent part: “The court, upon its own motion or at the request of the defendant or his attorney, may at any time hold a hearing to determine whether such person [committed to Whiting Forensic Institute pursuant to § 17-245] should be discharged from the institute prior to the expiration of the maximum period of his sentence. . . . If the court determines the patient should be discharged from the institute, it shall then determine whether the patient should be released, granted parole or returned to the custody of the commissioner of correction. ” (Emphasis added.) In 1989, the legislature amended the last sentence of § 17-251 (b) to provide: “If the court determines the patient should be discharged from the institute, he shall be returned to the custody of the commissioner of correction. ” (Emphasis added.) In 1991, the provisions of § 17-251 were transferred to § 17a-570.
      The trial court held that, because the change created by the 1989 amendment to § 17-251 (b) was substantive, the amended statute could not be applied retroactively. The court therefore applied the version of the statute in effect at the time of the commission of the crime. Although the state did not seek permission to appeal this issue, it states in its appeal brief that “it in no way concedes that General Statutes § 17a-570 (b) could not be applied retroactively.” We express no opinion on this issue as it is not before us.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       See footnote 1, supra.


author: O’Connell, J.

text:
    Grace Somohano et al. v. Bobby Somohano
    (11085)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued September 25
    decision released November 3, 1992

      Kathryn L. Braun, with whom, on the brief, was Laurence V. Parnoff for the appellants (plaintiffs).

      Ruth Beardsley, for the appellee (defendant).
   O’Connell, J.

This case arises from a Florida motor vehicle accident in which all the parties are Connecticut residents. The two year Connecticut statute of limitations expired before this negligence action was commenced but prior to the expiration of the four year Florida statute of limitations. The trial court granted the defendant’s motion for summary judgment on the ground that the Connecticut statute of limitations applied. The trial court was correct. The established law of this state is that the statute of limitations is procedural and, therefore, the law of the forum applies. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 525, 562 A.2d 1100 (1989).

The plaintiffs urge us to overturn the established rule. This court will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated in subsequent cases and possibly discarded is not for this court to decide. D’Arcy v. Shugrue, 5 Conn. App. 12, 29, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985).

The judgment is affirmed.

In this opinion the other judges concurred.

       The pertinent portion of General Statutes § 52-584 provides: “No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained . . . .”

       The pertinent portion of Florida Statutes § 95.11 provides: “Actions other than for recovery of real property shall be commenced as follows:
      * * *
      “(3) WITHIN FOUR YEARS.—
      “(a) An action founded on negligence.”


text:
    State of Connecticut v. Joseph Johnson
    (10360)
    Dupont, C. J., Daly and Freedman, Js.
    Argued October 8
    decision released November 3, 1992

      Denise Derby, for the appellant (defendant).

      JohnP. Talbot, Jr., certified legal intern, with whom were Rita M. Shair and Christopher Morano, assistant state’s attorneys, and, on the brief, John Bailey, state’s attorney, for the appellee (state).
   Freedman, J.

This appeal concerns the trial court’s application of the rules of discovery and sanctions in a criminal proceeding. The defendant claims that the trial court improperly (1) admitted certain identification testimony notwithstanding the state’s failure to disclose part of the basis of that identification to the defendant pursuant to his pretrial disclosure request and (2) excluded certain testimony of a defense expert as a sanction for the defendant’s failure to disclose certain discovery information pursuant to Practice Book § 769. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On July 21,1989, the defendant and some friends stole a 1989 Chrysler New Yorker from a Thrifty Rent-A-Car lot and then engaged the police in high speed pursuit through the streets of Hartford. Officer Alice Gibbs of the Hartford police department observed the defendant driving the Chrysler through the intersection of Mather and Main Streets at a fast rate of speed.

During her subsequent pursuit of the Chrysler, Gibbs had a second opportunity to view the defendant. Gibbs pursued the Chrysler onto the westbound lane of 1-84. Gibbs was directly behind the Chrysler as both cars entered 1-84. Traffic on the highway was at a standstill and the driver of the Chrysler made a U-turn directly in front of Gibbs’ police car. When this occurred, Gibbs observed the defendant behind the wheel of the Chrysler for approximately five to ten seconds from a distance of about five to ten feet.

After heading east in the westbound lane of 1-84, the Chrysler entered the interchange with 1-91 and began traveling north in the southbound lane of 1-91. There the Chrysler collided with a gray Toyota Célica. When the police arrived on the scene, the Chrysler had been deserted. The driver of the Toyota suffered multiple fractures and internal injuries. She later died from loss of blood due to those injuries.

The jury convicted the defendant of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and larceny in the first degree in violation of General Statutes § 53a-122 (a) (3). This appeal followed.

The defendant first claims that the trial court should not have permitted the state to offer Gibbs’ identification testimony. The defendant filed a motion to suppress as evidence any pretrial or in-court identification because of the allegedly suggestive procedures used by the police. When the defendant learned that Gibbs had based her identification of the defendant, in part, on her prior knowledge of and contact with him, however, he withdrew the motion to suppress.

On appeal, the defendant argues that the state failed to disclose Gibbs’ prior acquaintance with the defendant notwithstanding the fact that he had filed a pretrial motion for disclosure that requested “the type of pre-trial identification process utilized by the law enforcement officials.” The defendant claims that Gibbs’ identification testimony should have been excluded by the trial court as a discovery sanction. The defendant has not properly preserved this claim for appellate review. He never objected to Gibbs’ identification of him at trial on the basis of failure to comply with his motion for disclosure. In fact, the defendant withdrew his motion to suppress identification upon learning the facts that he now claims mandate exclusion of the identification testimony. On appeal, the defendant does not maintain that his claim is reviewable as an exceptional circumstance within the doctrine of State v. Golding, 213 Conn. 233, 238-42, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or under the plain error rule of Practice Book § 4185. We ordinarily do not review issues raised for the first time on appeal, although we occasionally have done so. State v. Geisler, 25 Conn. App. 282, 284 n.2, 594 A.2d 985 (1991), aff’d, 222 Conn. 672, 610 A.2d 1225 (1992). In the present case, such a review is not warranted. State v. Weinberg, 215 Conn. 231, 257, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); see also State v. Johnson, 26 Conn. App. 433, 438, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992).

The defendant next claims that the trial court should not have excluded certain testimony of his expert witness as a sanction for his failure to disclose information to the state pursuant to its motion for disclosure under Practice Book § 769. The defendant argues, inter alia, that he had no obligation to disclose this potential testimony and that the trial court’s action precluded him from introducing critical impeachment evidence.

The following additional facts are relevant to our resolution of this claim. The state filed a pretrial motion for disclosure of any reports pursuant to Practice Book § 769. See footnote 1, supra. Although defense counsel stated that she did not anticipate receiving a written report from any defense witnesses, she volunteered to discuss the subject matter of the testimony of the witnesses with the assistant state’s attorney. An examination of the record, however, reveals that at no time did this become an order of the court.

During trial, defense counsel provided the state with a written report prepared by accident reconstruction expert Edmund Sullivan that had just been given to defense counsel by Sullivan. Sullivan testified for the defendant regarding his opinion of the identity of the driver of the Chrysler based on his accident reconstruction knowledge. The defendant then attempted to elicit from Sullivan his opinion of what the speed of the Chrysler must have been when it crossed in front of Gibbs’ police car at the intersection of Mather and Main Streets in order to afford Gibbs an opportunity to view the driver for five to ten seconds, as she had testified. The defendant’s offer of proof showed that Sullivan would testify that the Chrysler would have to have been traveling at a much slower speed than indicated by Gibbs’ testimony for her to have had a sufficient opportunity to observe the defendant in the car during their first encounter. This information bearing on Gibbs’ ability to view the driver of the Chrysler was based on the application of a mathematical calculation of time, distance and speed.

The state objected to this testimony. The state claimed that this testimony should be excluded because this information was not contained in the report nor was it otherwise disclosed to the state. The court sustained the objection concluding that disclosure of this information was required by applicable discovery rules and that the failure to disclose this information preeluded the defendant from presenting this evidence. See Practice Book § 774.

The defendant correctly argues that there was no violation of § 769 in that the proffered testimony was outside the scope of the materials discoverable by the state. In State v. Genotti, 220 Conn. 796, 601 A.2d 1013 (1992), which was decided after the conclusion of the defendant’s trial, our Supreme Court had its first opportunity to construe § 769 as it pertains to reports and statements from a defense expert witness. In Genotti, the court concluded that § 769 does not apply to oral information and, consequently, “the defendant was not obligated to disclose to the state the expert witness’ unrecorded observations and conclusions.” Id., 809. Because the defendant had no obligation to disclose Sullivan’s calculations of time, distance and speed, the trial court improperly excluded this testimony.

This analysis, however, does not end our inquiry. We must consider whether this improper exclusion of Sullivan’s testimony regarding the rate of speed necessary to permit Gibbs to have had sufficient opportunity to observe the driver of the Chrysler when it crossed through the intersection of Mather and Main Streets requires us to reverse the judgment of the trial court. To make this determination, we apply the harmless error doctrine to the circumstances of this case.

“The allocation of the burden of proof under harmless error analysis depends on whether the error reaches the level of a constitutional violation. If the error is of constitutional magnitude, then the burden is on the state to prove that this error was harmless beyond a reasonable doubt.” State v. Flanders, 214

Conn. 493, 500, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990). “When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the error.” Id., 502.

The defendant argues that the trial court’s exclusion of evidence intended to impeach Gibbs’ testimony implicated his constitutional right to confront witnesses against him. It is well settled, however, that not every evidentiary ruling that denies a defendant a line of inquiry to which the defendant claims entitlement rises to the level of a constitutional violation. State v. Crumble, 24 Conn. App. 57, 65, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991). A defendant’s constitutional right to confrontation is satisfied “if [the defendant] is given the opportunity to expose facts from which the jury can appropriately draw inferences concerning a witness’ reliability.” State v. Cobb, 27 Conn. App. 601, 611-12, 605 A.2d 1385 (1992), citing Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).

The defendant’s cross-examination of Gibbs was virtually unrestricted. He had ample opportunity to impeach the reliability of her identification. Since the defendant asked numerous questions regarding Gibbs’ opportunity to observe the driver of the car as it passed through the intersection of Mather and Main Streets, the defendant was not “precluded from presenting the only evidence available to impeach the credibility of witness Gibbs,” as he claims in his brief. The exclusion of Sullivan’s testimony concerning time, distance and speed calculations, therefore, did not violate the defendant’s confrontation rights. See State v. Cobb, supra, 612.

Because the trial court’s ruling here involves only an evidentiary claim, the burden is on the defendant to demonstrate the harmfulness of the exclusion of the testimony. State v. Flanders, supra. We conclude that the defendant has failed to show that it is likely that the result would have been different had the trial court permitted Sullivan to testify regarding his calculation of the speed of the Chrysler as it crossed the intersection of Mather and Main Streets.

Gibbs testified that she was able to identify the defendant as the driver twice during the chase. The defendant’s expert would have been used to rebut only the first identification, which occurred at the corner of Mather and Main Streets. Gibbs herself admitted that this first identification occurred under less than ideal conditions as the car driven by the defendant was moving at a fast rate of speed. Gibbs testified that she also saw the defendant driving as he made a U-turn on 1-84. This identification did not involve the speed of the car because Gibbs testified that after the Chrysler came to a standstill upon entering 1-84, it made a U-turn directly in front of her police car. At that time, Gibbs was able to observe the defendant behind the wheel of the Chrysler for approximately five to ten seconds from a distance of about five to ten feet. During this time, Gibbs was looking right at the driver’s face. In light of this second, and stronger, opportunity to identify the defendant during the chase, it is highly unlikely that, had Sullivan’s testimony been admitted into evidence, the jury would have reached a different verdict. The exclusion of this testimony was therefore harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       “[Practice Book] Sec. 769. [disclosure by the defendant]- — access TO DOCUMENTS AND OBJECTS
      “Upon written motion of a prosecuting authority made within ten days after the entry of a plea, the defendant shall, within the time set by the judicial authority, disclose in writing the existence of, and allow the prosecuting authority to inspect, photograph, copy, or have reasonable tests made upon, any book, paper, document, photograph, or tangible object which is adequately identified by the prosecuting authority and within the defendant’s possession or control and:
      “(1) Which the defendant intends to offer in evidence, except to the extent that it contains any communication of the defendant; or
      “(2) Which is a report or statement as to a physical or mental examination or scientific test or experiment made in connection with the particular case prepared by, and relating to the anticipated testimony of, a person whom the defendant intends to call as a witness.”

       Practice Book § 774 authorizes the trial court, on motion of the prosecuting authority, to “grant appropriate relief’ if the defendant fails to comply with a disclosure requirement set forth in Practice Book §§ 757 through 773, inclusive.

       Although the defendant has framed his claim under both the state and federal constitutions, he has not provided an independent analysis of our state criminal constitutional provisions. In the absence of any such analysis by the defendant in this case, we confine our analysis to a discussion of his rights under the federal constitution. State v. Pinnock, 220 Conn. 765, 776 n.3, 601 A.2d 521 (1992); Phillips v. Warden, 220 Conn. 112, 131 n.15, 595 A.2d 1356 (1991). Although we do not afford review here, it does not mean that we are not able to review a state constitutional claim if we choose to do so. State v. Hernandez, 28 Conn. App. 126, 131 n.2, 612 A.2d 88, cert. denied, 223 Conn. 920, 614 A.2d 828 (1992); State v. Geisler, 25 Conn. App. 282, 284 n.2, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992).


author: Landau, J.

text:
    City of New London et al. v. Zoning Board of Appeals of the Town of Waterford
    (10307)
    Daly, Landau and Heiman, Js.
    Argued September 21
    decision released November 3, 1992

      Emmet L. Cosgrove, with whom, on the brief, was Barbara J. Claire, for the appellant (defendant).

      Thomas J. Londregan, with whom, on the brief, was Myron B. Bell, for the appellees (plaintiffs).
   Landau, J.

The defendant Waterford zoning board of appeals appeals from the judgment of the trial court sustaining the appeal of the plaintiffs, the city of New London and the New London police department (New London). The trial court concluded that the decision of the board limiting the term “municipal facilities,” as used in the Waterford zoning regulations § 6.2.4, to municipal facilities of the town of Waterford was illegal. On appeal to this court, the board claims that the trial court improperly substituted its judgment for that of the board by concluding that the term “municipal facility” means facilities of every municipality and not just facilities of the town of Waterford.

The following facts are pertinent to this appeal. The city of New London purchased a parcel of land in the town of Waterford in 1923. During the 1960s, the city established a police firearms training facility on the property. Since that time, the area surrounding the training facility has been developed and is designated a rural residential district (RU-120).

On December 18, 1978, the zoning regulations of the town of Waterford were adopted. On September 7, 1989, the Waterford zoning enforcement officer issued an abatement order, which stated that New London was to cease and desist in its use of the premises as a firearms training facility, and further stated that such use was not permitted in an RU-120 district without the approval of the Waterford planning and zoning commission.

New London appealed the abatement order to the board of appeals claiming that the firearms training facility was a “municipal facility,” as defined in § 6.2.4 of the regulations, and, because the facility existed prior to the adoption of the regulations, it is a permitted use under § 3.32 of the regulations. Alternatively, New London argued that the training facility is a nonconforming use that was not abandoned after the adoption of the regulations.

After public hearings, the board denied New London’s request to reverse the abatement order. The board concluded that the training facility was not a municipal facility within the meaning of the regulations, and was therefore a nonconforming use, rather than a permitted use. The board further concluded that the site had been abandoned by the city. New London appealed the board’s decision to the Superior Court, pursuant to General Statutes § 8-8. The Superior Court sustained New London’s appeal and reversed the board’s decision.

The trial court determined that the word “municipal,” as used in the phrase “municipal facility” in § 6.2.4 of the regulations, is to be interpreted according to its plain meaning, and therefore includes any municipal facility of any municipality, including a New London facility, and not just a town of Waterford municipal facility. The trial court concluded that the municipal police training facility was a permitted use under the regulations. We disagree.

General Statutes § 8-6 provides that the zoning board of appeals shall, inter alia, hear and decide appeals where it is alleged that there is an error in any order made by a zoning enforcement officer. The board is entrusted with the function of interpreting and applying its own zoning regulations. Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 257, 576 A.2d 589 (1990). When deciding an appeal from a decision of the board, the trial court must determine whether the board has correctly interpreted its regulations and applied them with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117, 186 A.2d 377 (1962); Baron v. Planning & Zoning Commission, supra. The burden is on the plaintiffs to demonstrate that the board has acted improperly in making its decision. Adolphson v. Zming Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). A decision of the board will be reversed only when the plaintiff has proven that the decision was unreasonable, arbitrary or illegal. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it. Therefore, as long as honest judgment has been reasonably and fairly exercised at the local level, the trial court must not substitute its judgment for that of the zoning board. Baron v. Planning & Zoning Commission, supra, 257; Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989).

The principles governing interpretation of zoning regulations are well settled. Promulgation of zoning regulations is a legislative process, although local in scope. Park Regional Corporation v. Town Plan & Zoning Commission, 144 Conn. 677, 682, 136 A.2d 785 (1957). When this court interprets a local legislative enactment, it looks for the expressed intent of the legislative body in the language it used to manifest that intent. If it is clear and unambiguous on its face, we will look no further. Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823 (1988). Furthermore, we will construe the language of zoning regulations so that no clause is deemed superfluous, void or insignificant. Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 601, 539 A.2d 101 (1988). The regulations must, however, be interpreted so as to reconcile their various provisions and make them operative as far as possible. Donohue v. Zoning Board of Appeals, 155 Conn. 550, 557, 235 A.2d 643 (1967). When we encounter a situation in which more than one construction is possible, we will adopt the construction that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results. Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984).

There is no legislative definition of the term “municipal” in the Waterford zoning regulations. Therefore, we must examine the regulations as a whole to determine its meaning. Essex Leasing, Inc. v. Zoning Board of Appeals, supra, 601. Section 3.17 of the regulations, entitled “Municipal Water and Sewer Facilities,” provides that “the Planning and Zoning Commission may grant a Special Permit to the Town for the construction in any district of facilities such as pump stations, treatment and/or control installations and the like, reasonably necessary to provide for adequate water supply, sewerage, and drainage systems. ...” New London argues that because this section uses “Town” to denote the town of Waterford, the term “municipal facilities” in § 6.2.4 must mean a facility in addition to the town of Waterford. We disagree.

When construing a zoning regulation, our primary goal is to ascertain and give effect to the intent of the local legislative body as expressed in the regulation as a whole. It is neither our purpose nor our intention, however, to engage in a microscopic examination of these regulations in an attempt to uncover technical infirmities and render the regulations ineffective. See id.; Silver Lane Pickle Co. v. Zoning Board of Appeals, 143 Conn. 316, 319, 122 A.2d 218 (1956). When we interpret the Waterford regulations in their entirety, it is clear that the intent of the town of Waterford was to permit the placement of municipal facilities owned and operated by Waterford in only certain districts. New London’s water filtration plant, for instance, located in Waterford, was approved as a public utility building under § 6.2.3 of the regulations, as opposed to a municipal facility under § 6.2.4. Furthermore, New London’s water supply well, also located in Waterford, was approved as a public utility, not a municipal facility. The creation of the public use category clearly anticipated and made provisions for existing New London utilities and for future improvements of these facilities.

It is clear that the town of Waterford, in its discretion, can determine the categories used in its zoning regulations. We must invest broad discretion in local zoning authorities when determining the public need and the manner in which it is met, because they are closest to the circumstances and conditions that create the problem and shape the solution. Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988); Stiles v. Town Council, 159 Conn. 212, 219, 268 A.2d 395 (1970).

A finding that any facility owned by any town, city or borough in this state and beyond would constitute a municipal facility in its broadest sense could lead to bizarre and unintended results. Under such a construction, it is possible that a town that owned land in another town could build, for instance, a waste treatment facility in that other town and would be exempt from that locality’s zoning regulations simply because it is a facility owned by a municipality. We cannot countenance such a construction.

The trial court determined that because the training facility was a municipal facility, it need not consider the nonconforming use and abandonment issues. Yet in its memorandum of decision, the trial court stated that “[ujnder the circumstances it would be difficult for this record to support a finding of nonuse . . . .” Although the trial court, technically, made no explicit finding, such a conclusion is implicit in the court’s memorandum of decision, and is supported by testimony before the board and throughout the record. See Rene Dry Wall Co. v. Strawberry Hill Associates, 182 Conn. 568, 575, 438 A.2d 774 (1980). While there was no explicit finding that this was a nonconforming use that had not been abandoned, the language of the memorandum of decision, fairly and reasonably construed, points to just such a conclusion. See Connecticut Coke Co. v. New Haven, 169 Conn. 663, 673 n.5, 364 A.2d 178 (1975); King v. New Haven Trap Rock Co., 146 Conn. 482, 484, 152 A.2d 503 (1959).

While we do not agree with the trial court’s analysis, we do agree with New London’s alternative argument that the training facility is a nonconforming use that has not been abandoned. Therefore, the trial court’s decision is correct, but not for the reason stated. “This court is not required to reverse a ruling of the trial court which reached a correct result, albeit for a wrong reason.” Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274, 513 A.2d 1211 (1986); State v. Lamme, 19 Conn. App. 594, 604, 563 A.2d 1372 (1989), aff’d, 216 Conn. 172, 579 A.2d 484 (1990).

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 6.2 of the Waterford zoning regulations provides in pertinent part: “USES PERMITTED IN THE RU-120 district subject to the approval OF A SPECIAL PERMIT
      “The following uses may be permitted in the RU-120 District, if approved by the Commission in accordance with the provisions of Section 23 of these regulations. . . .
      “6.2.4 Municipal facilities including firehouses and parking lots serving firehouses.”

       Section 3.32 of the Waterford zoning regulations provides: “existing USES WHICH WOULD BE ALLOWED WITH THE APPROVAL OF A SPECIAL REMIT When the use of land or a building or structure existed prior to the adoption of these regulations which is only allowed hereafter upon approval of a special permit, such existing use shall be considered a permitted use, provided the provisions of Section 23.9 of these regulations shall apply to all proposed changes to such existing use.”

       General Statutes § 8-8 (b) provides in relevant part: “[A]ny person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. . . .”

       Because the trial court found that the training facility was a permitted municipal facility, it stated that it need not reach the nonconformity and abandonment issues. Although it made no specific finding, the trial court stated that “[u]nder the circumstances it would be difficult for this record to support a finding of nonuse, even though it is clear that ‘local governments are authorized to fashion zoning regulations that terminate nonconforming uses after a specified period of nonuse without regard to intent.’ Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 607, 539 A.2d 101 (1988).”

       Our interpretation of municipal is further supported by its plain and ordinary meaning. “Municipal” is defined as “restricted to one locality: having narrow limits.” Webster, Third New International Dictionary.